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53841731-fa55-4f1c-9df8-810765820946 | Smith v. Smith | 565 So. 2d 72 | N/A | Alabama | Alabama Supreme Court | April 20, 1990 |
|
66ce9a62-bde4-4949-be6a-222b8b448217 | Vaughn v. Griffith | 565 So. 2d 75 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 75 (1990)
Starla L. VAUGHN, a minor, who sues By and Through her father and next friend, Walter J. VAUGHN; and Walter J. Vaughn, individually
v.
Dr. Charles H. GRIFFITH, Jr.
88-549.
Supreme Court of Alabama.
April 27, 1990.
Rehearing Denied June 22, 1990.
*76 Walter J. Vaughn, pro se and as next friend of Starla L. Vaughn.
W. Stancil Starnes, Michael A. Florie and Ann Sybil Vogtle of Starnes & Atchison, Birmingham, for appellee.
ALMON, Justice.
This is a pro se appeal from a judgment rendered on a jury verdict in favor of Dr. Charles H. Griffith, Jr., and against Starla L. Vaughn and her father, Walter J. Vaughn, in a medical malpractice action.
Starla, a juvenile diabetic, was admitted to Holy Name of Jesus Hospital in 1982 and was cared for by Dr. Griffith. She was suffering from diabetic ketoacidosis and after admission developed a rare complication of that condition known as cerebral edema, a swelling of the tissues of the brain. As a result of that condition, Starla lost her eyesight and became partially paralyzed.
Starla, by and through her father and next friend, Walter J. Vaughn, and Walter J. Vaughn individually, filed a complaint against Dr. Griffith, Dr. Richard O. Rutland III, and Holy Name of Jesus Hospital, alleging that they were negligent or wanton and that their negligence or wantonness was the proximate cause of Starla's injuries.[1] Before the case came to trial, Dr. Rutland and the hospital were voluntarily dismissed on the plaintiffs' motion. A trial was held on the claim against Dr. Griffith, and the jury returned a verdict in his favor. The trial court entered a judgment on that verdict, and the plaintiffs appealed. Although they do not attack the verdict on grounds of the weight or sufficiency of the evidence, they allege numerous errors on the part of the trial court that they maintain require reversal of the trial court's judgment. They contend that the trial court abused its discretion by (1) denying their challenge of a juror for cause; (2) denying their motion for mistrial based on allegations of wrongful influence on the jury; and (3) instructing the deadlocked jury for a third time, thereby placing an alleged undue emphasis on particular matters. They also argue that the trial court committed reversible error by allowing a "surprise" expert witness to testify for Dr. Griffith. Finally, they ask this Court to reinstate Dr. Rutland and the hospital as defendants, alleging that they were dismissed without the plaintiffs' knowledge and consent.
After the jury was impanelled, two of the jurors informed the trial judge that they had been acquainted with a relative of one of the parties in the past. One of those jurors, Randall Burgess, had been a student of Dr. Griffith's sister in elementary school. He had also travelled to Europe with a group, and Dr. Griffith's sister was a member of that group. The plaintiffs' attorney challenged Burgess for cause, then agreed that the trial judge should conduct an interview with Burgess to determine if he would be biased. The plaintiffs' attorney agreed to accept the judge's decision on that matter. Following an interview with Burgess, the trial judge determined *77 that Burgess would be able to make a fair decision. After being informed of the judge's decision, the plaintiffs' attorney expressed reservations about Burgess, but agreed to defer to the trial court's judgment. However, after the close of the evidence, the attorney again asked that Burgess be removed from the jury and replaced with an alternate. The trial judge denied that request, explaining that his interview with Burgess had convinced him that Burgess would be able to be fair.
Trial judges are vested with broad discretion in determining whether to sustain challenges to jurors for cause. Ex parte Nettles, 435 So. 2d 151 (Ala. 1983). This Court has held that mere acquaintance with a party was not sufficient to disqualify a juror. Engineers of the South, Inc. v. Goodwin, 366 So. 2d 673, 674 (Ala.1978). Logically, the same result is even more appropriate when the juror's acquaintance is with a relative of one of the parties. Instead, the trial judge must determine whether the juror's acquaintance with the party or relative is such that it would result in probable prejudice. Grandquest v. Williams, 273 Ala. 140, 135 So. 2d 391 (1961). In the instant case the trial judge thoroughly examined Burgess and was satisfied that he would not be biased. This Court concludes that his denial of the challenge to Burgess was not an abuse of discretion.
The plaintiffs also maintain that the trial judge abused his discretion by denying their motion for a mistrial based on allegations of wrongful influence on the jury. Those allegations were based on the presence in the courtroom of a number of members of the original venire who had been struck, but were serving in other trials. The plaintiffs contend that in the presence of the jury those other jurors conversed with, and showed support for, members of Dr. Griffith's family. The plaintiffs' attorney moved for a mistrial, alleging that those actions prejudiced their chances for a fair trial. The judge denied the motion, explaining that no evidence of prejudice had been presented and that he could not presuppose that such prejudice had resulted from the alleged actions of the struck jurors.
The plaintiffs contend that such prejudice was the inevitable result of the struck jurors' alleged actions, or, in the alternative, that the mere appearance of prejudice should warrant a mistrial. This Court, in Kinard v. Carter, 518 So. 2d 1248 (Ala. 1987), rejected a similar argument. In that case, a juror was seen speaking to the defendant's wife during a recess. The plaintiff's motion for a new trial on that ground was denied, and this Court affirmed that denial. Kinard, supra, at 1252. In that case, the record did not reflect the content and tenor of the conversation between the juror and the defendant's wife, and this Court refused to assume that any prejudice had resulted therefrom. Id. In the present case, the record does not reveal any evidence of prejudice to support the bare allegations of the plaintiffs' attorney. Absent evidence that the misconduct of others had prejudiced the jurors, the motion for mistrial was properly denied. First Nat'l Bank of Pulaski, Tenn. v. Thomas, 453 So. 2d 1313 (Ala. 1984).
The plaintiffs also contend that the trial judge erred by instructing the deadlocked jury a third time. They maintain that those repeated instructions placed an undue emphasis on "particular matters," but they do not specify which matters received that emphasis. However, an examination of the record reveals that attorneys for both of the parties expressed satisfaction with the trial judge's third charge to the jury, and no later objections or exceptions are noted. That failure to make a timely objection or to otherwise preserve alleged errors in jury instructions leaves this Court nothing to review. Hancock v. City of Montgomery, 428 So. 2d 29 (Ala. 1983).
The plaintiffs maintain that the testimony of one of Dr. Griffith's expert witnesses, Dr. Elliott Krane, was improperly admitted because, they say, his presence as an expert witness was an unfair surprise. That contention appears to be based on the fact that their attorney was not given a list *78 of potential expert witnesses by Dr. Griffith's attorney. However, pre-trial correspondence between those attorneys indicates that the plaintiffs' attorney was aware that Dr. Krane would testify and was given a copy of Dr. Krane's curriculum vitae. In addition, their attorney did not object to Dr. Krane's testimony. Because the trial judge was not made aware of any potential objections to Dr. Krane's testimony, this Court cannot put that court in error. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846 (1958).
Finally, the plaintiffs have submitted a motion to this Court asking that Holy Name of Jesus Hospital and Dr. Rutland be reinstated as defendants. In their motion, they contend that those defendants were dismissed by their attorney without their knowledge or consent; that the dismissals were fraudulent; and that they were not aware of the dismissals until after they received the court's records while preparing their appeal. They argue that they also filed such a motion in the trial court after the record on appeal was completed, but they have not included that motion or a ruling thereon in a supplemental record. Thus, without any ruling by the trial court, we have nothing to review. Totten v. Lighting & Supply, Inc., 507 So. 2d 502 (Ala.1987); Kemp Motor Sales, Inc. v. Lawrenz, 505 So. 2d 377 (Ala.1987). Therefore, the motion to reinstate must be denied. In any event, the fact that Starla and her father were present throughout the trial against Dr. Griffith calls into question their allegation that they had no knowledge that Dr. Rutland and the hospital had been dismissed.
This Court finds no error on the part of the trial court in this action, and that court's judgment is affirmed.
AFFIRMED; MOTION TO REINSTATE DEFENDANTS DENIED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Although this is a pro se appeal, Starla and her father were represented by an attorney throughout the proceedings at the trial level. | April 27, 1990 |
d664d465-0d85-4318-829e-c8297eb599ee | Ex Parte Allied-Signal, Inc. | 561 So. 2d 1062 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1062 (1990)
Ex parte ALLIED-SIGNAL, INC., a corporation.
(In re NATIONAL ENERGY PARTNERS, a partnership
v.
ALLIED SIGNAL, INC., a corporation).
89-4.
Supreme Court of Alabama.
March 30, 1990.
*1063 N. Lee Cooper and Tony G. Miller of Maynard, Cooper, Frierson & Gale, Birmingham, for petitioner.
Edward S. Allen and Cavender C. Kimble of Balch & Bingham, Birmingham, for respondent.
STEAGALL, Justice.
Allied-Signal, Inc., petitions for a writ of mandamus directed to the Honorable Jack D. Carl of the Jefferson Circuit Court ordering him to dismiss the declaratory judgment action filed by National Energy Partners (hereinafter "NEP"), based on the doctrine of forum non conveniens, Ala. Code 1975, § 6-5-430. Specifically, Allied-Signal contends that California, rather than Alabama, is the more appropriate forum for NEP's suit.
The basis for NEP's action was a purchase agreement entered into between it and the Garrett Corporation on August 18, 1987, in which NEP bought from Garrett all of the issued and outstanding capital stock of two of Garrett's wholly owned subsidiaries, GWF Power Systems Company, Inc. (hereinafter "GWF"), and Combustion Power Company, Inc. (hereinafter "CPC"). The closing date of that contract was September 15, 1987. Shortly after August 18, 1987, Garrett merged with its parent company, Allied-Signal, which became Garrett's successor in interest under the purchase agreement.
While it was owned by Garrett, CPC was under two contracts by which CPC provided fluidized bed boiler systems for the production of steam for two power plants then under construction, the Biogen Power, Inc., project and the Port of Stockton District Energy Facility project. Subsequent to NEP's purchase of CPC, NEP incurred substantial liability in connection with the Biogen and Stockton projects; CPC's equipment was allegedly defective and failed to meet performance standards. NEP claims that Garrett did not disclose these equipment/performance warranty-related problems with CPC's projects at any time during the negotiations or prior to signing the purchase agreement and that Allied-Signal, as successor to all the rights and liabilities of Garrett, is obligated to indemnify it under § 8.1(i) of the purchase agreement. NEP filed its declaratory judgment action in Jefferson Circuit Court on May 23, 1989.
NEP and Allied-Signal are both Delaware corporations. NEP's principal place of business is Birmingham, Alabama. NEP alleged in its complaint that Allied-Signal's principal place of business is Morristown, New Jersey, and that Allied-Signal was doing business by agent in Jefferson County when it entered into the purchase agreement. Garrett, GWF, and CPC are all California corporations and the Biogen and Stockton projects are both in California. Allied-Signal argues that California is the center of gravity of the conflict for the following reasons: 1) the majority of witnesses reside in California; 2) the majority of documents relating to the *1064 dispute are in California; and 3) California law governs the case.
In support of its motion to dismiss, Allied-Signal submitted the affidavit of Anthony Kruszewski, currently the director of business administration of Allied-Signal Aerospace Company, an unincorporated unit of Allied-Signal, who stated that the purchase agreement was executed in California. In opposition to that motion, NEP filed the affidavit of Leonard Wohadlo, currently one of the co-chief executive officers of NEP, president of Harbert Cogen, Inc. (one of two general partners of NEP), and a senior vice president of Harbert International, Inc. (the parent company of Harbert Cogen). Wohadlo stated that the agreement was executed in Morristown, New Jersey, at Allied-Signal's office.
The trial court's order denying Allied-Signal's motion to dismiss reads:
Amendment 473 to Ala.Const.1901, § 232, treats foreign corporations the same as domestic corporations for venue purposes. Section 6-5-430 (as amended by Ala.Acts 1987, Act No. 87-182), the forum non conveniens statute, is applicable to foreign corporations as well as to domestic corporations. After Ex parte Southern Railway Co., 556 So. 2d 1082 (Ala.1989), trial courts are required to apply the forum non conveniens doctrine in determining whether to exercise jurisdiction over a foreign cause of action. That case also emphasized that the decision whether to dismiss a case is discretionary with the court, and that "[o]nly when all factors are positively found to require dismissal, should a case be dismissed."
Those factors, under § 6-5-430, are "the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice." All of them must be "positively found" to justify dismissal, Ex parte Southern Railway Co., supra, and the defendant has the burden of proving them, as § 6-5-430 indicates ("upon motion of the defendant"). The court will weigh the relative advantages and burdens and, "`unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.'" Ex parte Auto-Owners Ins. Co., 548 So. 2d 1029, 1032 (Ala.1989) (quoting Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947)) (emphasis added in Auto-Owners Ins. Co.).
The parties dispute where the purchase agreement was signed. Allied-Signal claims it was signed in California; NEP contends it was signed in New Jersey. Neither Allied-Signal nor NEP is a California corporation and neither has its principal place of business there. Allied-Signal argues that most of the potential witnesses are present and past employees of GWF or CPC. NEP points out that those witnesses are now its employees pursuant to the sale of GWF and CPC to it and argues that the defendant cannot base a forum non conveniens claim on inconvenience to the plaintiff. It cites American Can Co. v. Crown Cork & Seal Co., 433 F. Supp. 333, 338 (E.D.Wis.1977), which held:
(Citations omitted.) We find this language persuasive and adopt it as it pertains to the facts of the present case.
The fact that this case will be controlled by California law also does not warrant transfer of the case. The purchase agreement contains a clause that states *1065 that it shall be construed in accordance with California law and performed entirely in that state. Again, as NEP points out, its action seeks a declaration of the rights, duties, and obligations of both parties under the indemnity provisions of the contract; the action is not one for breach of warranty. Resort can be had to the contract itself and a resolution of the issues should not necessitate extensive construction of California law.
Sorrels Steel Co. v. Great Southwest Corp., 651 F. Supp. 623, 630 (S.D.Miss. 1986). Likewise, Allied-Signal has made no such contention with regard to the applicable California law.
Finally, with regard to Allied-Signal's argument concerning the location of pertinent documents, this Court addressed a similar contention in Keelean v. Central Bank of the South, 544 So. 2d 153, 158 (Ala.1989), and stated that the location of documents outside of Alabama does not "[create] inconvenience to the defendants, given our ample selection of discovery devices." (Emphasis added.)
We conclude that the trial judge did not abuse his discretion in denying Allied-Signal's motion to dismiss. The petition for writ of mandamus is hereby denied.
WRIT DENIED.
MADDOX, ALMON, ADAMS and KENNEDY, JJ., concur. | March 30, 1990 |
c23dcca0-758d-4d73-8cd4-adfbd658819d | Fisher v. Amaraneni | 565 So. 2d 84 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 84 (1990)
Ervin FISHER and Vibha Fisher
v.
Ramiah V. AMARANENI, et al.
89-30.
Supreme Court of Alabama.
April 27, 1990.
*85 Billy C. Bedsole of Stockman & Bedsole, Mobile, for appellants.
John W. Parker, Mobile, for appellees.
MADDOX, Justice.
The primary issue presented in this case is whether the facts showed that the defendants were avoiding service of process so that service by publication was authorized under Rule 4.3(c), A.R.Civ.P.
When the defendants failed to answer the plaintiffs' complaint, the court entered a default judgment against them. When the defendants became aware of the judgment, they filed a motion under Rule 60(b), A.R.Civ.P., to set it aside. The court denied their motion and they appeal from that denial.
In August 1986, Ervin and Vibha Fisher, Dr. Ramiah Amaraneni, Bryan Leveritt, and Dr. Lakshmi Gaddam entered into an oral partnership agreement by which they would purchase a business and properties located in Baldwin County, Alabama, namely, the Perdido Winery, in a bankruptcy sale conducted in Mobile, Alabama. Allegedly, the partners agreed amongst themselves that upon the purchase of the bankrupt business its assets would be liquidated and the resulting proceeds would be distributed to the respective partners; however, the evidence tends to show that a dispute arose between the Fishers and the other partners. Amaraneni and the other two partners wanted to run the winery and use its wine and its assets to fund the business; the Fishers apparently wanted to liquidate the winery and distribute its proceeds to the respective partners according to their understanding of the agreement.
On February 20, 1987, Amaraneni and the other two partners filed a complaint against the Fishers in the Circuit Court of Mobile County. In their complaint, Amaraneni and the other two partners alleged that the Fishers had systematically attempted to cause the financial ruin of the winery; furthermore, the plaintiffs requested that the trial court issue a preliminary injunction compelling the defendants to release all the partnership books, records, and accounts to a court-appointed receiver; that the trial court issue an order of dissolution to the partnership; that the plaintiffs, upon dissolution of the partnership, be awarded the assets of the former partnership, and that the plaintiffs, because of alleged bad faith misconduct on the Fishers' part regarding the operation of the partnership, be permitted to continue the business as a new partnership with the plaintiffs as the sole owners.
Pursuant to Rule 4.1(b)(2), A.R.Civ.P., Forest Aubrey was designated as the court's process server. The record shows that from February 24 to March 24, 1987, Aubrey unsuccessfully attempted service of process upon the Fishers at their known residence in Daphne, Alabama. During one of Aubrey's attempts to serve process at their residence, he encountered at the Fishers' residence a gentleman who told him that the Fishers were in California on a business trip. After six (6) unsuccessful attempts to serve process upon the Fishers, Aubrey returned the process to the circuit clerk's office marked "not found."
Amaraneni and the other partners subsequently filed a motion to have service made by publication pursuant to the provisions of Rule 4.3, A.R.Civ.P. In their affidavit filed in support of their motion, the plaintiffs alleged as follows:
The court granted that motion. After publication of the notice and a failure by the Fishers to answer, the plaintiffs filed a motion for default judgment on June 17, 1987. On that same day, the trial court conducted an ore tenus hearing to consider the plaintiffs' complaint and their motion for default judgment. On June 29, 1987, the trial court granted the plaintiffs' motion for default judgment and entered an order granting the plaintiffs' requested relief.
On March 28, 1988, the Fishers filed a Rule 60(b)(4), A.R.Civ.P., motion for relief from the default judgment; that motion was subsequently amended on April 11, 1988. The Fishers alleged that they had first became aware of the existence of a default judgment against them on January 27, 1988, when Mrs. Fisher noticed an advertisement in the Mobile Press Register stating that a wine license had been issued to Amaraneni and Gaddam, the owners of the winery. Mrs. Fisher's notice of that newspaper advertisement eventually led her and her husband to discover that they had lost their ownership interest in the winery as the result of a default judgment entered against them by the Circuit Court of Mobile County.
On May 2, 1988, a hearing was conducted by the trial court to consider the Fishers' motion to set aside its default judgment. On September 19, 1989, the trial court denied the motion. On October 5, 1989, the Fishers filed a notice of appeal to this Court.
Rule 60(b), A.R.Civ.P., sets forth six (6) circumstances that serve as grounds upon which a trial court can relieve a party or his representative from a final judgment, order, or proceeding. These six (6) circumstances include the following:
In addressing the procedure that a movant must follow in order to obtain Rule 60(b) relief, this Court stated in Raine v. First Western Bank, 362 So. 2d 846, 848 (Ala. 1978):
The standard of review applicable to an order granting or denying a Rule 60(b)(4) motion was stated by this Court in Smith v. Clark, 468 So. 2d 138, 141 (Ala.1985):
In that same case, this Court added that "[a]n appeal from an order denying a Rule 60(b) motion presents for review only the correctness of that order," and that on such an appeal "[t]he final judgment is not brought up for review," citing Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So. 2d 271 (1975).
The Fishers argue that the trial court erred in not granting their Rule 60(b)(4) motion because, they say, the default judgment entered against them was "void" on the ground that the court had never acquired personal jurisdiction over them. Specifically, the Fishers argue that the notice by publication used by the plaintiffs was inoperative because, they say, the plaintiffs had failed to aver in their affidavit in support of their motion for notice by publication "facts" showing the Fishers' avoidance of service of process.[1]
Rule 4.1(a), A.R.Civ.P., states in part:
Furthermore, Rule 4.3(b), A.R.Civ.P., states in part:
Finally, Rule 4.3(c), A.R.Civ.P., states in part:
In the official comments to Rule 4.3(c), it is stated that "more than mere inability to find the defendant is required because of the use of the term `avoidance' of service. Without this element of culpability on the part of the defendant when plaintiff has failed to obtain service other than by publication, substantial constitutional questions may be posed by the obtaining of an in personam judgment by publication." In Federal Deposit Ins. Corp. v. Sims, 100 F.R.D. 792, 796 (N.D.Ala.1984), a district court, interpreting Rule 4.3, A.R.Civ.P., stated the following:
In Gross v. Loewen, 522 So. 2d 306 (Ala.Civ. App.1988), the court held that a wife's affidavit stating that "the defendant [her husband] is avoiding service, as service attempted by certified mail was returned undelivered" was an insufficient averment of *88 facts showing that her husband had avoided service of process; therefore, the affidavit did not satisfy the requirement of Rule 4.3(d)(1), and service by publication in that case was improperly allowed by the trial court. Consequently, the trial court's judgment in that case was void, since the court had not acquired personal jurisdiction over the defendant.
In this case, the plaintiffs essentially stated in their affidavit that because the process server had failed in six (6) attempts to serve process upon the Fishers at their residence and had returned the process to the circuit clerk's office endorsed "not found" that such "facts" were sufficient to show avoidance of service on the Fishers' part and to allow the trial court to authorized service by publication. We disagree.
A reading of the plaintiffs' affidavit does indicate that the process server attempted on numerous occasions to serve process on the Fishers at their residence and was unable to serve them because of their absence, an absence that the process server was told was due to the Fishers' presence in California, but these "facts" are not enough to show that the Fishers avoided service of process.[2]
We cannot hold, under the facts of this case, that the conclusory statements made in the plaintiffs' affidavit that the Fishers were avoiding service, coupled with the process server's failed attempts to perfect service of process upon them and his later endorsement of the returned process as "not found," are sufficient to satisfy the requirement of Rule 4.3(d)(1), A.R.Civ.P., so that service by publication was proper.
Based on the foregoing, we conclude that the court never obtained personal jurisdiction over the Fishers and that its entry of a default judgment against them was therefore void. Consequently, the trial court erred in not granting the Fishers' Rule 60(b) motion for relief from the judgment.
The judgment denying the Rule 60(b) motion is, therefore, reversed and the cause is remanded.
REVERSED AND REMANDED
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] See Rule 4.3(d)(1), A.R.Civ.P.
[2] At the hearing held by the trial court to consider the Fishers' motion to set aside the default judgment, Aubrey, the designated process server in this case, testified as follows:
"Q. Now you've served papers over a ten-year period, haven't you?
"A. Yeah.
"Q. And you've come across different instances of people trying to avoid service, haven't you?
"A. Oh, yeah.
"Q. Did you have any indication this time that these people [the Fishers] were trying to avoid any type of service?
"A. Not unless that was Mr. Fisher that I was talking to and he said he wasn't so I'll have to take his word for it.
"Q. Well you don't recognize him here in Court so that wasn't him was it?
"A. No, that wasn't him. Well, now I know it.
"Q. Oh, I understand that.
"A. I didn't know it then because I can't force a man to show me an I.D.
"Q. But there's no evidence that you can testify to in the court of them [the Fishers] trying to avoid service in any way whatsoever
"A. No, sir." | April 27, 1990 |
0280eac2-d206-477b-886c-f48b1b2eeb90 | Stacks v. Pate | 561 So. 2d 1072 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1072 (1990)
Ted W. STACKS
v.
Jacque PATE, Jr.
88-1660.
Supreme Court of Alabama.
April 6, 1990.
*1073 Richard G. Alexander of Alexander and Associates, Mobile, for appellant.
Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
MADDOX, Justice.
This is an appeal from a summary judgment in favor of the defendant in a malicious prosecution action.
On or about November 5, 1985, Ted W. Stacks was in the process of moving out of a house located in Mobile that he was renting from Jacque Pate, Jr. As Stacks was packing his belongings into his automobile, Pate arrived. Pate alleged that Stacks told him that he, Stacks, would "mess up" the house and also harm Pate. Pate left and then returned to the house less than two hours later, and he allegedly found damage done to the carpet, walk, doors, and floor of the house. Pate saw obscene words written on the carpet with spray paint and noticed that certain drapes and window blinds were missing.
Pate's attorney, Michael Murphy, stated in an affidavit that Pate had informed him about the alleged events regarding Pate's encounter with Stacks and Pate's subsequent discoveries made inside the house. Murphy stated that, based upon Pate's statements to him and upon Murphy's analysis of the applicable law, he advised Pate that there appeared to be sufficient circumstantial and direct evidence to warrant Pate's instituting a criminal action against Stacks.
After Pate swore out a complaint against Stacks charging him with criminal mischief in the first degree,[1] and with theft of property in the second degree,[2] a Mobile district court magistrate issued an arrest warrant for Stacks. After a preliminary hearing, the district court judge issued certificates of judgment binding Stacks over to the Mobile County grand jury on the ground that there existed "probable cause" to believe that Stacks had committed the offenses filed against him by Pate. The Mobile County grand jury returned two indictments against Stacks for criminal mischief in the first degree and theft of property in the first degree.[3] Because of Pate's failure to appear on the day scheduled for Stacks's trial, the Mobile district attorney nol prossed the charges against Stacks, but another Mobile County grand jury later reindicted Stacks on the same two offenses. Stacks was tried. At the conclusion of his trial, the jury returned a "not guilty" verdict on both charges.
Stacks subsequently filed the instant civil complaint against Pate and in it he made claims of malicious prosecution, false imprisonment, and abuse of process. The trial court granted Pate's motion to dismiss the false imprisonment, and abuse of process counts; however, the trial court did not dismiss the complaint for malicious prosecution. Pate filed a motion for summary judgment as to the remaining count alleging malicious prosecution. Attached to that motion, Pate submitted one affidavit from himself and one from his attorney Murphy. Pate also submitted certified copies of the Mobile District Court's certificates of judgment entered against Stacks, as well as certified copies of the Mobile County grand jury indictments against *1074 Stacks. The trial court granted Pate's motion for summary judgment.
The issue presented by this appeal is whether the trial court erred in granting Pate's motion for summary judgment. Summary judgment is proper only when the pleadings and affidavits submitted by the movant show 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(c), Ala.R.Civ.P.; Bon Secour Fisheries, Inc. v. Barrentine, 408 So. 2d 490 (Ala.1981).
The elements of a cause of action for malicious prosecution have been set forth by this Court:
"`[A]nyone who has reasonable cause to believe that there is reasonable cause for legal redress and protection has a lawful right to seek such redress without risk of being sued and having to respond in damages for seeking unsuccessfully to enforce his rights.'"
Alabama Power Co. v. Neighbors, 402 So. 2d 958, 962 (Ala.1981). (Emphasis added.)
One of the necessary elements to be proven by a plaintiff in a malicious prosecution action is that the defendant instigated the prior judicial proceeding against him "without probable cause." In Lumpkin v. Cofield, 536 So. 2d 62, 64 (Ala.1988), this Court stated that a "grand jury indictment [of a defendant in a prior judicial proceeding] is prima facie evidence of [the existence] of probable cause." As further noted in Lumpkin, such "a prima facie defense can be overcome by a showing that the indictment was `induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment.' National Security Fire & Casualty Co. v. Bowen, 447 So. 2d 133, 140 (Ala.1983)." Id. The record in this case does not show that the indictment was induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment. The record further shows that Pate sought advice of counsel before instigating the proceedings.
The law provides that "advice of counsel, honestly sought and acted on in good faith, supplies an indispensable element of probable cause for legal action and is a complete defense to an action for malicious prosecution." Hanson v. Couch, 360 So. 2d 942, 945 (Ala.1978).
Upon review of the evidence submitted by the movant in support of his motion for summary judgment, we find that the record shows, as a matter of law, that Pate did not instigate the judicial proceeding without probable cause. The evidence before the trial court consisted of four affidavits and court documents pertaining to the prosecution. The four affidavits were from Pate; his attorney, Michael Murphy; Stacks; and a witness to certain events that occurred after the day in question, one Claudia Cain. The court records filed in support of the motion were from the District Court and the Circuit Court of Mobile County; they were the arrest warrants, the district judge's finding of probable cause and his binding over of Stacks to the grand jury, the first set of grand jury indictments, and the second set of grand jury indictments.
Pate's affidavit establishes that before commencing criminal charges, he sought the advice of attorney Michael Murphy. Pate gave to attorney Murphy "a detailed and complete statement of the facts as *1075 [Pate] knew them." While Murphy and Pate were talking, Murphy consulted his law books. Murphy then advised Pate that, in Murphy's opinion, sufficient circumstantial and direct evidence existed to warrant Pate's instituting criminal proceedings if Pate chose to do so. Murphy further advised Pate that Murphy thought a district judge would find probable cause based on the information. Pate's affidavit further states that Pate sought Murphy's advice honestly, acted on it in good faith, and acted on the advice of counsel.
The affidavit of attorney Michael Murphy states that at all pertinent times he was a practicing attorney in Mobile, that Pate contacted Murphy as a lawyer about the matter before Pate instituted the criminal proceedings, and that "[Pate] gave [Murphy] a detailed statement of the facts which [Murphy] regarded as a complete statement of the facts as [Pate] knew them." Murphy's affidavit states that he consulted some of his law books and advised Pate that, in Murphy's opinion, there was sufficient circumstantial and direct evidence to warrant Pate's instituting the criminal proceedings if Pate chose to do so and that Murphy thought that a district judge would find probable cause based upon the information.
We find no admissible evidence that would contradict any of the affidavits submitted by Pate.
Garrigan v. Hinton Beef & Provision Co., 425 So. 2d 1091, 1093 (Ala.1983).
The trial court did not err in entering Pate's summary judgment. That judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Ala.Code 1975, § 13A-7-21.
[2] Ala.Code 1975, § 13A-8-4.
[3] Ala.Code 1975, § 13A-8-3. | April 6, 1990 |
8fc41b19-cfe7-4fb8-ad1e-69a88a178089 | Stevens v. Gary | 565 So. 2d 73 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 73 (1990)
Frederick H. STEVENS, et al.
v.
Louise H. GARY.
88-986.
Supreme Court of Alabama.
April 20, 1990.
Rehearing Denied June 22, 1990.
Frederick H. Stevens, pro se.
James E. Hart, Jr., Brewton, for appellee.
KENNEDY, Justice.
This Court's opinion of March 9, 1990, is withdrawn and the following is substituted therefor:
PlaintiffsFrederick H. Stevens, Ray G. Stevens, Thomas G. Stevens, Guice Stevens, and Elizabeth Stevens Barnes, all of whom are the brothers and sister of L.M. Stevens, Jr., deceasedappeal from a dismissal of their action contesting the will of Ada C. Stevens, who had been the widow of L.M. Stevens, Jr.
L.M. Stevens, Jr., had died intestate on January 17, 1982, leaving a widow but no lineal descendants. Ada C. Stevens died testate in Conecuh County, Alabama, on October 4, 1987. The petition for probate and the will were filed in the probate court on October 22, 1987. On December 7, 1987, the court admitted the will to probate and granted letters testamentary to Louise Gary, the sole beneficiary under the will. On that same date, the plaintiffs filed in the probate court a document that read in pertinent part:
Louise Gary, appellee and the executor of the will, contends that she did not become aware of the filing of the notice of contest until July 1988, at which time she filed a petition for removal of the estate from the probate court to the circuit court. The cause was removed on August 4, 1988. Subsequently, the circuit court granted Gary's motion to dismiss the contest.
In Alabama, a will may be contested in two ways: (1) under § 43-8-190, Code of Alabama 1975, before probate, the contest may be instituted in the probate court or (2) under § 43-8-199, Code of Alabama 1975, after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.
Under either § 43-8-190 or § 43-8-199, an action to contest a will can be brought only by a person interested in the will or by any person who, had the testator died intestate, would have shared in the estate.
The appellants held as tenants in common with their brother, L.M. Stevens, Jr., a large city lot. In its order, the trial court found that the entire estate of L.M. Stevens, Jr., both real and personal, descended to his widow, Ada C. Stevens, pursuant to § 43-3-1(1), Code 1975 (repealed effective January 1, 1983) (see Act 80-764, Ala.Acts 1980). The appellants assert standing to contest the will of Ada C. Stevens based on their status as tenants in common with Ada C. Stevens as the successor to her husband's interest.
In the case of Allen v. Pugh, 206 Ala. 10, 89 So. 470 (1921), the Court, in reviewing the right to contest a will, construed the clause "any person interested in any will" to embrace any person who has an interest in the estate disposed of that would be conserved by defeating the probate of the will or jeopardized or impaired by its establishment.
In Braasch v. Worthington, 191 Ala. 210, 213-14, 67 So. 1003 (1915), the Court *75 stated: "A contestant of a will must have some direct legal or equitable interest in the decedent's estate, in privity with him, whether as heir, purchaser, or beneficiary under another will, which would be destroyed or injuriously affected by the establishment of the contested will."
The appellants assert standing based on a tenancy in common with Ada C. Stevens in the city lot. They are not the heirs of Ada C. Stevens, nor are they purchasers or beneficiaries under any other will. The appellants have failed to produce any evidence to indicate that they have an interest that would entitle them to contest Ada C. Stevens's will. Their interest in the real estate will not be defeated, destroyed, or injuriously affected by the establishment of the contested will.
Next, the appellees contend that the document giving notice of the contest was not filed in the probate court before Ada C. Stevens's will was admitted to probate and thus that the contest was not timely and did not meet the procedural requirements of § 43-8-190. However, because we have found that the appellants lack standing to contest the will, we do not make a determination on the timeliness issue.
Based on the reasons stated, the dismissal was proper.
The motion to dismiss the appeal and the motion for damages and/or attorney fees and costs for frivolous appeal are denied.
The judgment is due to be, and it is hereby, affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED; MOTIONS DENIED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | April 20, 1990 |
64fd0d27-4424-4d87-86e9-d3494a15c53e | Atkins v. Shirley | 561 So. 2d 1075 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1075 (1990)
E.R. ATKINS, as administrator of the estate of Ruth A. Davis Shirley, deceased
v.
Murphy SHIRLEY.
88-1455.
Supreme Court of Alabama.
April 6, 1990.
*1076 J.H. Crow III, Birmingham, for appellant.
Joe Fine, Russellville, for appellee.
JONES, Justice.
This is an appeal from the trial court's sua sponte dismissal of the lawsuit for the plaintiff's failure to prosecute. We reverse the judgment of dismissal and remand the cause for reinstatement of the plaintiff's claim.
A chronological summary of the events leading up to the judgment of dismissal will be helpful to an understanding of this appeal:
6-17-87 Plaintiff E.R. Atkins, administrator of the estate of Ruth A. Davis Shirley, sued Defendant Murphy Shirley, former husband of the deceased, for misappropriation of estate assets (CV-87-108). Atkins alleged, among other things, that Shirley had converted an automobile; had sold 11 head of cattle; had obtained the money in two checking accounts; and had obtained a certificate of deposit, all of which belonged to the deceased.
7-21-87 Defendant Shirley filed an answer to the complaint and filed a counterclaim in which he argued that Atkins had interfered with Shirley's possessory rights in the homeplace; that Atkins had converted personalty rightfully belonging to Shirley; that the estate owed Shirley money in repayment for the expenses of the decedent's last illness and death; and that Shirley had a homestead right in the property.
7-31-87 Atkins filed a motion to dismiss or to strike portions of Shirley's counterclaim, alleging that jurisdiction of those portions had "attached" in the probate court where the decedent's will had been filed for administration. Atkins also filed an answer to the counterclaim, interrogatories to Shirley, and a request for production of documents.
8-31-87 Shirley filed an amendment to the counterclaim, an amended answer, interrogatories to Atkins, and a request for production. On this same date, Shirley filed a motion for a general continuance in this case (CV-87-108). Shirley stated that another case pending in the same court (CV-87-5897) (a complaint for declaratory relief and construction of the decedent's will), when decided, would moot several of the issues in case CV-87-108.
4-12-88 The trial court granted Shirley's motion and ordered that the case be "continued generally, to be reset upon motion of any party, or by this court upon final disposition of [Case Number] 87-5897."
3-14-89 The trial court entered an order of continuance in CV-87-108 on the joint motion of the parties, and ordered that the case be "continued generally, to be reset upon motion of any party, or by this court upon final disposition of [Case Number] 87-5897."
3-20-89 Atkins filed a motion to dismiss or to strike portions of Shirley's counterclaim.
4-12-89 Atkins's lawyer wrote the following letter to the trial judge in CV-87-108:
4-19-89 The trial court entered an order of dismissal and stated: "This cause coming on to be heard on the Pretrial Docket set for this day, and the plaintiff being called, but answered not, it is the Order and Judgment of the court that the same be, and it is hereby, dismissed for want of prosecution."
5-2-89 Atkins filed a motion for new trial, which motion was denied by operation of law at the expiration of 90 days. (See A.R.Civ.P. 59.1.)
8-2-89 Notice of appeal to this Court.
Rule 41(b), A.R.Civ.P., provides that an action may be dismissed "for failure of the plaintiff to prosecute or to comply with these rules or any order of court." The rule also states that unless the trial court's order of dismissal specifies otherwise, that order "operates as an adjudication upon the merits." Our cases interpreting Rule 41(b), consistent with the language of that subsection, have held that the trial court "has the inherent power to act sua sponte to dismiss an action for want of prosecution" (Riddlesprigger v. Ervin, 519 So. 2d 486 (Ala.1987); and Smith v. Wilcox County Board of Education, 365 So. 2d 659, 661 (Ala.1978)), and that a Rule 41(b) dismissal is a final judgment that will support an appeal to this Court. Freeman v. Freeman, 282 Ala. 330, 211 So. 2d 464 (1968). However, when, as here, the appeal presents only the alleged error of the trial court's dismissing the action for failure to prosecute, that issue alone is before this Court for review and disposition. Id.
Riddlesprigger, supra, 519 So. 2d at 487.
Turning to the resolution of the instant case, we first point out that this Court has consistently held that a dismissal of a plaintiff's case "for any reason is a severe sanction which should be resorted to only in appropriate circumstances. Where lesser sanctions are available they should be tried." Marcoal, Inc. v. United Mine Workers of America, 292 Ala. 567, 569, 298 So. 2d 6, 8 (1974).
Selby v. Money, 403 So. 2d 218, 220-21 (Ala. 1981).
In Selby, supra, the parties had caused numerous delays in the discovery and in the setting of a trial date. Despite a final *1078 warning from the trial court that no further delays would be tolerated, the plaintiffs, on the date set for trial, refused to proceed without the live testimony of their expert witness, even though the deposition testimony of that witness was available for admission into the record. The Selby Court upheld the trial court's dismissal of the plaintiffs' action on the motion of the defendants, citing the willful failure of the plaintiffs to continue with the trial.
In the more recent case of Cassady v. Montgomery County Board of Education, 496 So. 2d 764 (Ala.1986), we found that the trial court was correct in dismissing the plaintiff's case sua sponte because the plaintiff "sought and attained a series of continuances over a period of 20 months, failed to appear at two scheduled pre-trial conferences, and failed to appear on the date the case was set for trial."
In contrast, in Smith v. Wilcox County Board of Education, supra, we found that "although there appeared to be a long period of inactivity from 1966 to 1973, nevertheless within the eleven months before the dismissal the defendants filed interrogatories, the parties reconstructed the record, and the plaintiff's attorney had tried to have a hearing set on the case." 365 So. 2d at 661. Under those circumstances, we held that the trial court's dismissal of the plaintiff's case was error.
Likewise, in Riddlesprigger, supra, we found that the plaintiff had not failed to take affirmative action when the burden was upon her to do so; that the defendant had not filed a motion to dismiss for failure to prosecute; that the trial court had not called a pre-trial conference or set the case for trial; and that there was no evidence of "purposeful delay, willful default, or some other contumacious conduct" on the part of the plaintiff. In that case we held that the trial court had abused its discretion in dismissing the plaintiff's action for failure to prosecute.
In the record before us in the instant case, we find no evidence to support the trial court's sua sponte dismissal of Atkins's lawsuit against Shirley. Rather, the record shows the timely filing of pleadings (including the defendant's answers to interrogatories), early notice to the trial court of the related case pending in the same court, the trial court's willingness to continue the case because of the pending related case, the parties' continued activity despite the absence of a trial date, and the plaintiff's lawyer's concern that the trial court be advised that a pre-trial conference would not yet be necessary. We conclude that, in light of the history of affirmative action on the part of the plaintiff and the defendant in keeping this lawsuit active, the trial court's dismissal of this action was an abuse of its discretion. Therefore, the trial court's judgment of dismissal, pursuant to Rule 41(b), A.R.Civ.P., is clearly erroneous and is due to be, and it is hereby, reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | April 6, 1990 |
4acb16ae-3b3a-44c4-b2ca-39692e644f97 | Brown v. Flying Wheels Motorcross Club | 569 So. 2d 313 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 313 (1990)
David Ray BROWN, et al.
v.
FLYING WHEELS MOTORCROSS CLUB and Dudley Carver.
87-1553.
Supreme Court of Alabama.
June 22, 1990.
Rehearing Denied September 28, 1990.
Michael J. Gamble of Cherry & Givens, Dothan, for appellants.
*314 Richard A. Ball, Jr. and T. Cowin Knowles of Ball, Ball, Matthews & Novak, Montgomery, for appellees.
ADAMS, Justice.
This is an appeal from a judgment based on a directed verdict in favor of defendant Dudley Carver and a jury verdict in favor of defendant Flying Wheels Motorcross Club ("Flying Wheels").
The record reveals that in August 1985 David Ray Brown took his wife and son to motorcross races sponsored by Flying Wheels. Carver was an officer of the Flying Wheels Club. While motorcross races were being held on the motorcross track, "hare-scramble" races were being conducted on trails through the woods near the motorcross track.[1] The evidence tended to show that periodic announcements were made over the public address system regarding the status of the hare-scramble races; however, Brown contended that he never heard them. In addition, there was evidence that someone at the front gate gave out instructions regarding where the hare-scramble races were being held. Brown denied receiving such instructions.
After the Browns had been at the races for approximately 30 to 45 minutes, Brown allowed his son to take his "dirt bike" to the western side of the ridge (where the hare-scramble race was being conducted). After his son had been gone for about 30 minutes, Brown, noticing activity in the area where he thought his son was riding, became concerned for his son and went to find him. Brown took his bike onto the trails where the hare-scramble race was being conducted and headed in a direction opposite that in which the race participants were riding.[2] Subsequently, Brown collided with a race participant; the collision resulted in the death of the other party and in injury to Brown. Thereafter, Brown sued Flying Wheels and Dudley Carver, alleging negligence and wantonness on the part of both defendants in conducting the hare-scramble races. Brown's wife also sued, claiming damages for loss of consortium. The trial judge granted Carver's motion for directed verdict at the close of the Browns' case, and the jury returned a verdict in favor of Flying Wheels. A judgment was entered accordingly. The Browns appeal. We reverse and remand.
Brown's first argument is that the trial court erred in directing a verdict in favor of Dudley Carver. We agree. Carver contends that Brown offered absolutely no evidence at trial that Carver, in his individual capacity, should be liable for damages based on Brown's accident. He argues that the evidence clearly shows that Carver was acting in his capacity as an officer of Flying Wheels and that Carver at no time exceeded his authority or assumed responsibility for the races on the date in question beyond his responsibilities as a member of the club. While the evidence shows that the entire club was responsible for safety during the races, and that that responsibility was not given solely to Carver, we note that if the club was responsible for safety, then Carver, as one of its members, was also responsible. There could be no finding of liability against Flying Wheels unless one or more of its members committed acts resulting in that liability. There was evidence that Carver was in charge of the hare-scramble races on the date in question. There was also evidence tending to show that he appreciated the risks involved, because he warned the participants to be careful to watch for trucks or horses that might wind up on the race track. In light of this evidence, we conclude that the trial judge erred in directing a verdict in favor of Carver. In fact, because the duty owed by Carver and the duty owed by Flying Wheels are so closely intertwined, the judge's directed verdict in favor of Carter mandates the reversal of *315 this case for a new trial as to Flying Wheels, as well as to Carver.
Because the remaining issues raised by the appellant will also become issues in the new trial, for the sake of expediency, we will address them.
Brown also argues that he should have been allowed to present evidence of subsequent remedial measures for the purpose of impeaching Dudley Carver's testimony that "[e]very conceivable thing we thought we could do we did to keep somebody from getting hurt."
Holland v. First National Bank of Brewton, 519 So. 2d 460, 462, (Ala.1987), quoting Banner Welders, Inc. v. Knighton, 425 So. 2d 441, 444-45 (Ala.1982). While we acknowledge that evidence of subsequent remedial measures is often admissible for impeachment purposes, id., see also, Stauffer Chemical Co. v. Buckalew, 456 So. 2d 778 (Ala.1984), the determination of whether to allow such evidence is within the discretion of the trial judge, after considering several factors; we have written:
Holland v. First National Bank of Brewton, 519 So. 2d 460, 462 (Ala.1987).
It is obvious to us from the evidence that the trial judge did not abuse his discretion, because there were other ways for Brown to establish that other safety measures could have been taken by Flying Wheels. In fact, evidence of other measures was indeed offered at trial. Therefore, "the trial court in its discretion may have determined that the probative value of the evidence... was outweighed by its inherently prejudicial effect." Id., at 465. For this reason, we find no error.
Brown additionally argues that the trial court erred in refusing to allow certain testimony of an investigator who had interviewed several club members. Brown attempted to offer testimony of what those club members told the investigator they had told Brown when he entered the gates on the date in question. An example of the type of evidence Brown tried to have admitted is set forth below:
Brown contends that this testimony should have been allowed for the purpose of indicating notice, or lack thereof, of the fact that a hare-scramble race was in progress and where it was being conducted. Brown cites C. Gamble, McElroy's Alabama Evidence § 273.02 (3d ed. 1977) as authority:
(Footnotes omitted.) In the present case, Brown offered the investigator's testimony not to prove notice, but to prove a lack thereof. In fact, from the record, it is not clear that the investigator ever even asked if instructions were given; rather, the only evidence being offered, as far as we can tell, is that club members did not volunteer to the investigator whether instructions were in fact given. Clearly, this does not fall within the above exception.
Brown's final contentions are that the trial court erred in giving jury instructions on the duty owed an invitee when that invitee has exceeded the scope of the invitation and that it erred in instructing the jury with regard to certain actions taken by the motorcross club that was the predecessor to Flying Wheels. Neither of these arguments has any merit, and our review regarding them reveals no error on the part of the trial court.
For the foregoing reasons, the judgment is due to be, and it hereby is, reversed and remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, ALMON, SHORES and KENNEDY, JJ., concur.
[1] A hare-scramble race, in this instance, is a race that meandered on trails through the woods. The approximate distance of the race was 11.9 miles, and it began and ended at the motorcross track.
[2] Brown maintains that he was unaware that the race was going on. | June 22, 1990 |
22b255bd-3461-4552-8cb4-1dbc277af453 | Ex Parte Hudson | 562 So. 2d 248 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 248 (1990)
Ex parte Deborah Hooks HUDSON.
(Re Thomas Clinton HUDSON v. Deborah Hooks HUDSON).
89-559.
Supreme Court of Alabama.
April 12, 1990.
L. Drew Redden of Redden, Mills & Clark, Birmingham, for petitioner.
Guy Fullan and James M. Fullan, Jr., Birmingham, for respondent.
HOUSTON, Justice.
This is a petition for writ of mandamus filed by Deborah Hooks Hudson, seeking a review de novo[1] pursuant to Rule 21(e)(1), A.R.App.P., which provides, in pertinent part, as follows:
The issue before us is whether the trial court correctly held that it had no authority to appoint the private court reporter proffered by Ms. Hudson as the official court reporter.
Ms. Hudson had previously filed a similar petition in the Court of Civil Appeals. After thoroughly reviewing the briefs and the arguments of both parties, we are persuaded that the Court of Civil Appeals' opinion issued regarding that petition correctly states the applicable law:
"French provides, in pertinent part, as follows:
"After the court made counsel for both parties aware of the implications of French, [Ms. Hudson's] attorney requested that the court appoint her privately engaged reporter as an official court reporter for the trial of the case. [Ms. Hudson] agreed to pay for the expense of the reporter.
558 So. 2d 394 at 394-95. (Emphasis added.)
Mandamus is a drastic and extraordinary writ to be issued only where there is a clear, legal right in the petitioner to the order sought; only where there is an imperative duty upon the respondent to perform, accompanied by refusal to do so; only where there is a lack of another adequate remedy; and only where there is properly invoked jurisdiction of the court. Ex parte Army Aviation Center Federal Credit Union, 477 So. 2d 379 (Ala.1985).
In the case at bar, absent consent by both parties that the trial court appoint an official court reporter (see Ex parte French, 547 So. 2d 547 (Ala.1989)), counsel for Ms. Hudson could have requested that the trial court recommend to and seek approval from the administrative director of courts according to §§ 12-17-271, 12-17-272, and Rule 12, A.R.J.A. Failing to take these steps precludes Ms. Hudson from being heard to complain that the trial court erroneously held that it had no authority to appoint the proffered private reporter as the official court reporter regardless of the expense involved.
Based on the foregoing, we hold that, because Ms. Hudson has no clear, legal right to the order sought, the trial court did not abuse its discretion in holding that it had no statutory authority to appoint the private court reporter proffered by Ms. Hudson to serve as the official court reporter. Therefore, we deny the petition for writ of mandamus.
WRIT DENIED.
JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Ms. Hudson previously filed a petition for mandamus on the same issue in the Court of Civil Appeals, which denied the petition. See Ex parte Hudson, 558 So. 2d 394 (Ala.Civ.App. 1990). | April 12, 1990 |
ab5d8b83-f367-459a-9357-8294915c73df | Bay Shore Properties, Inc. v. Drew Corp. | 565 So. 2d 32 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 32 (1990)
BAY SHORE PROPERTIES, INC.
v.
DREW CORPORATION.
88-695.
Supreme Court of Alabama.
March 30, 1990.
Rehearing Denied May 18, 1990.
*33 James W. May, Gulf Shores, for appellant.
Jerry A. McDowell and Walter T. Gilmer, Jr. of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
ALMON, Justice.
This is an appeal from a summary judgment entered in an action to rescind a conveyance of real property. The question presented is whether the trial court erred in holding that the payment of a commission to a real estate broker by a seller of real property did not create an agency relationship between the seller and the broker.
On December 13, 1984, James Alexander, the president of Bay Shore Properties, Inc. ("Bay Shore"), executed a document authorizing Meyer Real Estate to sell the property that is the subject of this dispute. On February 9, 1985, Joseph Wade Ward of Wade Ward Real Estate submitted an offer to buy that piece of property; that offer was submitted to Meyer Real Estate on behalf of Dr. Charles Norton. Ward and Norton were at the time of the conveyance, and they remain, officers and shareholders of the Drew Corporation. During the negotiations for the purchase of the subject real property, their connection with the Drew Corporation was not revealed to Alexander.[1]
Paul Abbott, a broker working for Meyer Real Estate, relayed Norton's initial offer to Alexander. Alexander rejected that offer as being too low. Shortly thereafter, Ward submitted a second "purchase agreement" to Abbott on behalf of Norton. That offer was for a higher purchase price and provided that the title to the property would be taken in the name of Norton and/or his assignees. It also provided that Abbott and Ward would act as co-brokers in the conveyance, and would split any commission *34 from the sale 60/40. Alexander accepted the second offer on behalf of Bay Shore. On March 6, 1985, Meyer Real Estate was informed that title to the property was to be taken in the name of the Drew Corporation. The closing and the execution of the deed took place on March 29, 1985, and in December 1986 part of the property was conveyed to the United States Postal Service by the Drew Corporation.
In November 1987, Alexander learned that Ward was an officer and shareholder in the Drew Corporation and had been such at the time of the conveyance. On March 8, 1988, Bay Shore filed an action against Ward and the Drew Corporation, seeking rescission of the conveyance. In its complaint Bay Shore alleged that Ward had acted as its agent during the conveyance and therefore had a duty to disclose his connection with the Drew Corporation. Bay Shore further alleged that Ward's failure to disclose that connection was fraudulent, and that, because Ward was working for the Drew Corporation, the conveyance was voidable.
On April 8, 1988, Bay Shore voluntarily struck Ward as a defendant, and on July 22, 1988, filed a motion for summary judgment. That motion was supported by the depositions of Ward and Alexander and the affidavit of Alexander. On August 4, 1988, the Drew Corporation filed a motion for summary judgment. That motion was supported by the depositions of James Alexander, George Alexander, Abbott, and Ward, and the affidavits of Norton and Ward. On October 19, 1988, the Drew Corporation's motion was granted by the Circuit Court of Baldwin County. Following the grant of that motion, Bay Shore filed an A.R.Civ.P., Rule 59(e), motion, requesting the trial court to alter, amend, or vacate its judgment. That motion was not ruled on within 90 days, and pursuant to A.R.Civ.P., Rule 59.1, was considered denied on February 1, 1989. Bay Shore now appeals from the trial court's judgment, contending that an issue of material fact existed concerning Ward's status as an agent.
The law is well settled in Alabama and other jurisdictions that an agent owes his principal a fiduciary duty and therefore must act in the utmost good faith and must make known to his principal all material facts within his knowledge that in any way affect the transaction and the subject matter of the agency. Myers v. Ellison, 249 Ala. 367, 31 So. 2d 353 (1947). If an agent represents two principals without fully disclosing that dual representation to both of the principals, the resulting transaction is usually voidable by either of the principals. Barker v. First Nat'l Bank, 20 F. Supp. 185, 190 (N.D.Ala.1937); See also, 3 C.J.S. Agency § 277 (1973). Therefore, if Ward was Bay Shore's agent, his failure to reveal his connection with the Drew Corporation could be fatal to the conveyance giving rise to this dispute. However, the obligation of full disclosure does not extend to parties who are not in a principal-agent relationship.
For an agency relationship to exist, there must be a right of control by the principal over the agent. However, it is not essential that the right of control be exercised, so long as that right actually exists. National Security Fire & Casualty Co. v. Bowen, 447 So. 2d 133, 137 (Ala. 1983). In addition, there must be a meeting of the minds of both the principal and the agent as to the scope of the agent's employment. Cordes v. Wooten, 476 So. 2d 89, 91 (Ala.1985). Ordinarily, the question of whether such an agency relationship exists is one for the trier of fact, provided there is evidence in dispute. Cordes, supra, at 91.
In the instant case, the only evidence produced that would indicate the existence of any relationship between Ward and Bay Shore was evidence that Ward received a portion of the commission paid by Bay Shore as a result of the sale. However, the receipt of a commission does not, standing alone, serve to create an agency relationship. See Velten v. Robertson, 671 P.2d 1011, 1012 (Colo.App.1983); see also 2A C.J.S. Agency § 40 (1973). The remainder of the evidence, including the depositions of James Alexander, George Alexander, Wade Ward, and Paul Abbott, indicates that Ward had no contact at all with Bay Shore concerning the conveyance to the Drew Corporation. In fact, the Alexanders and Ward had met only one time before this action was commenced, and that *35 occasion was in 1984 and had no connection to the conveyance giving rise to this dispute.
There was no evidence presented to indicate that Bay Shore possessed the right to exercise any control over Ward's actions during the course of the events that led to the conveyance. In addition, the absence of any communication between Ward and Bay Shore makes a meeting of the minds between those parties impossible. Therefore, Bay Shore failed to produce any evidence that created a genuine issue of material fact concerning Ward's status as an agent. National Security, supra; Cordes, supra. This Court finds that no agency relationship existed between Ward and Bay Shore. Ward, therefore, had no obligation to disclose his capacity as an officer and shareholder of the Drew Corporation, and Bay Shore failed to establish any grounds for rescission of the contract. The Drew Corporation was entitled to a judgment as a matter of law. Whitehead v. Johnston, 467 So. 2d 240 (Ala.1985). The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Both Ward and Norton testified during depositions that the Drew Corporation had considered buying the property before Norton tendered his offer, but elected not to. Norton asserted that at the time the offers for the property were made, the purchase of the property was intended to be a personal investment. No evidence was produced to contradict these assertions. | March 30, 1990 |
128f340d-6c1a-4558-b0d8-f4ce360959eb | Mann v. Smith | 561 So. 2d 1112 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1112 (1990)
Mary MANN and Luther G. Mann, Sr.
v.
Joe SMITH, individually and d/b/a Nan's Ruffled Curtains, ABC.
88-1608.
Supreme Court of Alabama.
April 12, 1990.
Charles L. Anderson of Wood & Parnell, Montgomery, for appellants.
*1113 William L. Lee III of Lee & McInish, Dothan, for appellee.
ADAMS, Justice.
The plaintiffs, Mary Mann and Luther G. Mann, Sr., appeal from a summary judgment in favor of the defendant, Joe Smith, who was sued individually and doing business as Nan's Ruffled Curtains, ABC (hereinafter "Smith"). Plaintiff Mary Mann was injured when she slipped and fell while on Smith's premises.
On August 13, 1987, during a steady, "misty" rain, Mary Mann stopped at a roadside drapery boutique owned by Smith. After browsing through the store, she left by the same door through which she had entered. As she was descending the steps, she slipped and fell onto the pavement outside the building.
On December 9, 1988, Mary and her husband, Luther Mann, filed suit against Smith, seeking damages for injuries Mary had received in the fall. Mr. Mann filed a claim for loss of consortium as a result of his wife's injury. The Manns alleged that Smith had negligently caused or allowed a hazardous and dangerous condition to exist on his premises. In particular, they asserted that Mrs. Mann's fall was caused by an unreasonably dangerous condition created by the physical structure of the concrete steps leading into and out of Smith's business.
Smith moved for summary judgment, offering in support of his motion the depositions of the parties. In opposition to Smith's motion, the Manns presented the affidavit of Louis B. Trucks, an engineer. Trucks's affidavit stated that the steps leading to the entrance of the building were unreasonably dangerous because of their physical structure and geometric shape.
The trial court entered summary judgment for the defendant on August 2, 1989. This appeal followed.
Mrs. Mann was a business invitee on Smith's premises at the time of her accident. Because she was a business invitee, Smith owed her a duty to exercise reasonable care in maintaining his premises in a reasonably safe condition. In Quillen v. Quillen, 388 So. 2d 985 (Ala.1980), we clearly expressed the standards applicable to the duty owed an invitee:
"`This court is firmly committed to the proposition that the occupant of premises is bound to use reasonable care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, expressed or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in any respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. Geis v. Tennessee Coal, Iron & R.R. Co., 143 Ala. 299, 39 So. 301 [ (1904) ].
"`This rule ... includes (a) the duty to warn an invitee of danger, of which he knows, or ought to know, and of which the invitee is ignorant; and (b) the duty to use reasonable care to have the premises to which he is invited in a reasonably safe condition for such contemplated uses, and within the contemplated invitation.'
"`In 45 C.J. § 244, p. 837, the rule is thus stated: "The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee *1114 assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.'
"Accord, McRee v. Woodward Iron Co., 279 Ala. 88, 182 So. 2d 209 (1966); Claybrooke v. Bently, 260 Ala. 678, 72 So. 2d 412 (1954). The entire basis of an invitor's liability rests upon his superior knowledge of the danger which causes the invitee's injuries. Gray v. Mobile Greyhound Park, Ltd., 370 So. 2d 1384 (Ala.1979); Tice v. Tice, 361 So. 2d 1051 (Ala.1978). Therefore, if that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable."
388 So. 2d at 989.
The Manns have established sufficient evidence from which a jury could find that a defect existed in the steps leading to and from Smith's business. The evidence indicates that the steps at Smith's business were constructed of concrete and had been painted. Some of the steps were approximately five and one-half feet wide and two of the steps rose six inches high. The top step was not level with the door jamb, but was slightly below the jamb so that someone entering the store had to step from the top step up to enter the store. The first step at the bottom was 16 inches deep and the top step was 6 inches deep.
Smith argues that the steps were not defective; however, he argues that if the steps were defective, the defect was open and obvious to Mrs. Mann, and that she had either seen it, or, in the exercise of reasonable care, should have seen it.
The facts of Bogue v. R & M Grocery, 553 So. 2d 545 (Ala.1989), are strikingly similar to those in this case. In Bogue, the plaintiff was injured when she slipped and fell as she was leaving the defendant's place of business, a grocery store; she contended that her fall was caused by a significant drop in elevation from the doorway to the parking lot. In reversing a summary judgment for the defendant, we noted that the plaintiff had established evidence from which a jury could find that a defect existed in the ramp or slanting structure at the door of the grocery store. We noted in that case that once it has been determined that the duty owed to an invitee has been breached, questions such as contributory negligence, assumption of the risk, and whether the plaintiff should have been aware of the defect are normally questions for the jury. Id. See also Terry v. Life Insurance Co. of Georgia, 551 So. 2d 385 (Ala.1989).
The Manns have established evidence from which a jury could find that a defect existed in the steps. Accordingly, we reverse the judgment of the trial court and remand the cause.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES and ALMON, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
I concur, but in doing so I must point out that while Bogue v. R & M Grocery, 553 So. 2d 545 (Ala.1989), involved a slip and fall at the entrance of a business, I think the facts of this case are materially different from the facts that compelled me to dissent in Bogue. As I stated in my dissent in that case, Bogue, by her own testimony in that case, "fully appreciated the alleged defect or hazard that she state[d] might have caused her to fall." Based upon the plaintiff's own testimony in that case, there was no evidence from which a jury could have found that the alleged defect proximately caused her to fall and sustain her injury. My dissent in Bogue was bottomed on the same principle of law I set out in one of the first cases to apply Rule 56 in a negligence case, Folmar v. Montgomery Fair Co., 293 *1115 Ala. 686, 309 So. 2d 818 (1975).[1] As I stated in my dissent in that case, I realize, as a general proposition, that "issues of negligence are ordinarily not susceptible to summary adjudication," but as I pointed out there, there are occasions in which summary judgment is appropriate, even in negligence actions. I am concerned, therefore, about a rule of law, restated in the majority opinion, that "once it ha[s] been determined that the duty owed to an invitee had been breached, questions of contributory negligence, assumption of the risk, or whether the plaintiff should have been aware of the defect, are normally questions for the jury." The scholar will immediately see that the element of proximate cause has not been included in the statement of the rule. My dissents in Bogue and in Folmar were based upon the principle that if a plaintiff is unable to present evidence, even at summary judgment stage, that the alleged defect was the cause of the injury, then summary judgment is appropriate in a negligence case.
In this case, of course, the plaintiff not only knew of the cause of her fall, but presented expert testimony from which a jury could conclude that the steps were defectively constructed and maintained. Because the plaintiff presented sufficient evidence on each element of her cause of action, I agree that, in this case, summary judgment was inappropriate, but because the majority cites as authority two of this Court's cases in which I dissented, I thought it appropriate to spell out the reason I concur in this case.
[1] In Folmar, after stating the general rule that summary judgment is rarely appropriate in a negligence case, I said the following:
"Summary judgment in a negligence action is sometimes appropriate. See Herbert v. Regency Apartments, Inc., 292 Ala. 417, 295 So. 2d 404 (1974). Previously, this Court, applying the scintilla evidence rule, has also found that a negligence action can be taken from a jury, if a jury verdict could only be based upon pure speculation and conjecture. Colonial Life and Accident Insurance Co. v. Collins, 280 Ala. 373, 194 So. 2d 532 (1967); McDowell and McDowell, Inc. v. Barnett, 277 Ala. 302, 169 So. 2d 324 (1964); Southern Ry. v. Woodstock Mills, 230 Ala. 494, 161 So. 519 (1935); [citation omitted;] St. Louis & S.F. R.R. v. Dorman, 205 Ala. 609, 89 So. 70 (1921). It is axiomatic that the mere happening of an accident raises no presumption of negligence.
"In Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505 (1946), this Court reversed the trial court for refusing to give the affirmative charge requested by the defendants in that case. In Griffin Lumber, this Court followed the rule as laid down in the case of Southern Ry. v. Dickson, 211 Ala. 481, 100 So. 665, 669 (1924), as follows:
"`"Proof which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause."
"`But a nice discrimination must be exercised in the application of this principle. As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a judicial basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.'"
293 Ala. at 694-95, 309 So. 2d at 825-26. | April 12, 1990 |
638c9824-da75-473f-b301-072de41e7dbb | Norton v. Mobile County | 562 So. 2d 503 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 503 (1990)
Rubye A. NORTON
v.
MOBILE COUNTY, et al.
88-312.
Supreme Court of Alabama.
March 23, 1990.
*504 Mark Ezell, Butler, and John W. Sharbrough, Mobile, for appellant.
Merceria Ludgood, Mobile, for appellees Mobile County and Mobile County Comm'n.
James C. Wood and J. Randall Crane, Mobile, for appellee Lionel W. Noonan, Probate Judge.
PER CURIAM.
This Court's original opinion of September 29, 1989, is withdrawn and the following is substituted therefor.
The plaintiffs appeal a summary judgment entered in favor of the defendants. We affirm.
The issues are whether Act 87-616, Alabama Acts of 1987, is a local act that applies only to Mobile County or is a general act that applies statewide; whether the $10 surcharges on the recordation of deeds and mortgages in Mobile County are "costs and charges of court" as prescribed in § 96 of the Alabama Constitution of 1901; and whether the Act was properly published.
The $10 surcharge at issue was established by Act 87-616.[1] The plaintiff, Rubye A. Norton, filed a deed in the Mobile County Probate Court and was assessed the $10 surcharge. She then filed a class action, challenging the constitutionality of the Act and naming Mobile County, the Mobile County Commission, and the Judge of Probate of Mobile County as defendants. The class was certified by the circuit court and, subsequently, a summary judgment was entered for all the defendants.
The plaintiffs challenged the constitutionality of Act 87-616 on numerous grounds. We discuss them as follows:
Amendment No. 397 of the Alabama Constitution of 1901 defines "general law" and "local law" as follows:
*505 When a dispute arises over whether a law is local or is general in nature, a court is obligated, when possible, to read the law as a general one. State ex rel. Montgomery v. Merrill, 218 Ala. 149, 152, 117 So. 473 (1928). If a statute may be read to apply, in some way, to the "entire state in some of its chief features," it will be considered a general law. State ex rel. Collman v. Pitts, 160 Ala. 133, 134, 49 So. 441, 442 (1909). However, an act that was clearly intended to apply to a single county must be construed as a local act. Opinion of the Justices No. 197, 284 Ala. 626, 227 So. 2d 396 (1969). Act 87-616 clearly applies to Mobile County only and is, therefore, a local act.
Article IV, Section 96, Constitution of Alabama of 1901, reads as follows:
Because we have already determined that Act 87-616 is "not applicable to all counties in the state," we must decide whether the surcharge falls within the term "costs and charges of court" as that term is used in § 96. The cardinal rule in construing statutory language is to ascertain the legislative intent. Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So. 2d 1211 (Ala.1985). Therefore, to construe § 96 we turn to the proceedings of the Constitutional Convention of 1901. Section 96, as originally proposed, read:
2 Official Proceedings, Constitutional Convention of 1901, p. 2643 (Wetumpka Printing Co.1940). (Emphasis added.)
It is significant that the portion of the proposed section which prohibited the legislature from enacting local legislation "increasing the uniform charge for registrations of deeds and conveyances" was specifically struck out of the final draft of § 96 by an amendment proposed by Mr. Oates of Montgomery. It is, therefore, clear that the intent of the framers of § 96 was to specifically except charges for the recordation of deeds and conveyances from the prohibitive effect of the section.
We find further support for this construction of § 96 in Opinion of the Justices No. 154, 264 Ala. 181, 86 So. 2d 1 (1956). In that opinion, this Court addressed the constitutionality of a proposed bill that would have required a $1 recording fee on all instruments filed in the Mobile County Probate Office "affecting the title to real and personal property." This Court opined that such fees would not be "costs and charges of court" and stated the following:
264 Ala. at 182, 86 So. 2d at 3.
Although advisory opinions are not binding on this Court, In re Opinion of the Justices, 209 Ala. 593, 594, 96 So. 487 (1923), we feel that the language used by the Court there is very persuasive in this case because the fee discussed in Opinion of the Justices No. 154 was so similar to the fee authorized by Act 87-616.
We are of the opinion that § 96 of the Alabama Constitution does not prohibit the legislature from authorizing, by a local act, a surcharge such as we have under consideration here. The framers of the Constitution specifically struck from proposed § 96 the provision that would have prohibited this legislative action.
Based upon the foregoing, we hold that the $10 surcharges of Act 87-616 are not *506 "costs and charges of court." Because the surcharges go to the county treasury and to no public officer, it is clear that they are not "fees, commissions or allowances of a public officer."[2] Therefore, Act 87-616 is not a local act prohibited by § 96 of the Constitution of 1901.
Article IV, § 106, Alabama Constitution of 1901, states that no local law may be passed unless notice has been given (in the county that the law will affect); and the notice must state "the substance of the proposed law" and must be "published at least once a week for four consecutive weeks." The plaintiffs argue that the substance of Act 87-616, as advertised, was materially different from its enacted form and they point out that only 16 days passed from the first day of advertisement until introduction of the bill.
The versions of Act 87-616 as advertised in the Mobile Press Register and as enacted are as follows:
As Advertised
"Section 1. The Judge of Probate of Mobile County is hereby mandated to charge an additional ten ($10.00) dollar fee for each and every document or instrument filed in the Probate Court of Mobile County, Alabama."
As Enacted
"Section 1. The Judge of Probate of Mobile County shall assess an additional surcharge at the rate of $10.00 per instrument for all documents submitted for recordation in Probate Court which are subject to a deed or mortgage tax."
To determine whether the substance of an act has been materially altered from the date of advertisement to the date of enactment, this Court has stated the following:
State ex rel. Wilkinson v. Allen, 219 Ala. 590, 592-93, 123 So. 36 (1929).
In its order entering summary judgment, the trial court held as follows:
We agree with the trial court's interpretation. Therefore, we hold that there was not a material change in the substance of the Act.
Art. IV, § 106, as amended by Amendment No. 341.
Was Act 87-616, Alabama Acts of 1987, properly published before it was adopted? Notice of intention to introduce the bill that became Act 87-616 was required to be published "at least once a week for four consecutive weeks in some newspaper published in [Mobile County]."
The publication appeared in a newspaper published in Mobile County on Saturday, June 20, and on the following three Mondays: June 22, June 28, and July 5.
In Black's Law Dictionary 1429 (5th ed. 1979), "week" is defined as: "A period of seven consecutive days of time; and, in some uses, the period beginning with Sunday and ending with Saturday."
The first two definitions of "week" in The American Heritage Dictionary of the English Language (1969) are "[a] period of seven days" and "[a] seven-day calendar period especially one starting with Sunday and continuing through Saturday."
In Ronkendorff v. Taylor's Lessee, 4 Pet. 349, 361, 29 U.S. 349, 7 L. Ed. 882 (1830), the United States Supreme Court held: "A week is a definite period of time commencing on Sunday and ending on Saturday."
In the Ronkendorff case, the words of the law requiring publication were "once a week" for a certain number of consecutive weeks. The Court held that a publication on "Monday, January the 6th, and omitted until Saturday, January the 18th, leaving an interval of eleven days" was sufficient and complied with the requirement of consecutive weekly publications.
The case at issue is the mirror image of Ronkendorff, supra. The publication on Saturday, June 20, was a publication in one week, and the publications on the following three Mondays, June 22, June 28, and July 5, were publications in the three following consecutive weeks, for a total publication of "once a week for four consecutive weeks."
In Ex parte Lower, 178 Ala. 87, 59 So. 611 (1912), this Court held:
178 Ala. at 97-98, 59 So. at 614.
The summary judgment is affirmed.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS and HOUSTON, JJ., concur.
JONES, STEAGALL and KENNEDY, JJ., concur in part and dissent in part.
JONES, Justice (concurring in part and dissenting in part).
I concur as to parts I and II of the majority opinion, but I respectfully dissent as to part III.
The original opinion (released September 29, 1989), upholding the constitutionality of Act No. 87-616, overlooked the critical language of Amendment 341 to Art. IV, § 106, Ala. Const.1901: "[T]he the notice and proof shall be attached to the original copy of the subject bill and shall be filed in the department of archives and history where it shall constitute a public record." Thus, the majority, in its original opinion, rejected the challenge to the subject bill and held that "the trial judge correctly disregarded evidence that would have impeached the journal entries, and we likewise defer to the legislative certification of compliance [with the publication requirement] and hold the act to be constitutional."
On original deliverance, the dissenting Justices accepted as evidence the "public record" on file in the Department of Archives and History, which revealed that the bill was published on June 20, 22, and 29 and July 6, 1987, but opined that 16 days between the date of the first publication of the bill and the date of its introduction was not in compliance with § 106's "once a week for four consecutive weeks" requirement, citing Code 1975, § 6-8-62(a)(4).
The majority now concedes (albeit implicitly) that the "public record" conclusively shows the dates of publication, but holds, nevertheless, that these dates of publication comply with the constitutional requisite of "once a week for four consecutive weeks," without any reference to § 6-8-62(a)(4), which provides:
By ignoring this plain and unequivocal statutory language, the majority opinion not only overrules the longstanding precedents of case law interpreting the statute, but also, in effect, removes from the books this 94-year-old statutory method of computing the "time for publication prior to proceeding or act to be done." In the 1912 case of Ex parte Lower, 178 Ala. 87, 59 So. 611 (1912), cited and quoted from by the majority, the publication dates were February 24, March 3, 10, and 17 (seven days apart), and the introduction of the bill was March 22, 26 days after the first date of publication. Indeed, the Court of Appeals, in that same case, rested its holding of constitutionality on the fact of compliance with the 24-day requirement of the statute. Lower v. State, 3 Ala.App. 122, 57 So. 500 (1912).
I agree with the majority that, as held in Ex parte Lower, 28 days is not required; but I find no authority for the proposition that a publication on Saturday and a publication two days later on Monday comports with the constitutional term "once a week," so that these publications can be counted *509 as two of the requisite four weeks. Not only does the majority opinion approve of publications two days apart as amounting to two of the requisite four weeks, but it also approves of the one day between the date of the last publication and the date of the introduction of the bill as satisfying the requisite fourth week.
In Carnley v. Moore, 218 Ala. 274, 118 So. 409 (1928), this Court, addressing the lack of compliance with § 106's notice requirement for publication of a local act, stated:
218 Ala. at 275, 118 So. at 410. (Emphasis in original.) Thus, the Carnley Court, finding that the bill was introduced on the 21st day after the first publication, which was also the day of the fourth publication, held that the publication violated both the statutory 24-day requirement and the constitutional "prior to the date of introduction of the bill" requirement. See, also, Opinion of the Justices No. 53, 237 Ala. 657, 188 So. 387 (1939); and Doody v. State ex rel. Mobile County, 233 Ala. 287, 171 So. 504 (1936).
Clearly, § 6-8-62(a)(4) contemplates that, at a minimum, each of the four publications will be one week apart, but that the fourth week may be shortened by four days; or, stated another way, the introduction of the bill may legally occur three days after the last publication, or even one day after the last publication, if the constitutional and statutory requisites are otherwise complied with. Absent such compliance, how could the purpose of publication, as notice to the public for its reaction to the proposed local legislation, possibly be fulfilled? In the instant case, neither the purpose of § 106 of our organic law nor the legislative intent of § 6-8-62, as recognized in our prior decisions, is being carried out by the majority's holding.
STEAGALL and KENNEDY, JJ., concur.
[1] The Act reads in pertinent part as follows:
"Section 1. The Judge of Probate of Mobile County shall assess an additional surcharge at the rate of $10.00 per instrument for all documents submitted for recordation in Probate Court which are subject to a deed or mortgage tax.
"Section 2. These funds generated from these fees, and any interest earned thereon at any time, shall be appropriated to the Mobile County General Fund by the Judge of Probate on a monthly basis to be used for general county purposes.
"Section 3. All laws or parts of laws which conflict with this Act are hereby repealed.
"Section 4. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law."
[2] Even if the surcharge could be considered to be "costs and charges of court, or fees, commissions, or allowances of public officers, Amendment 28, applicable to Mobile County, would permit such legislative action, by general or local act. Amendment 28 provides:
"The legislature of Alabama may hereafter from time to time by general or local laws, but subject to the provisions of section 281 of the Constitution of Alabama, fix, regulate and alter the costs, charges of court, fees, commissions, allowances or salaries to be charged or received by the following county officers of Mobile county, Alabama, being, the judge of probate, the tax assessor, the tax collector, the clerk of the circuit court, and the register of the circuit court, including the method and basis of the compensation of such officers." | March 23, 1990 |
9acb2b93-fc97-48a0-9d74-16a6195911df | Craig v. Perry | 565 So. 2d 171 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 171 (1990)
Zadie CRAIG
v.
Mary F. PERRY and Florida V. Perry.
89-89.
Supreme Court of Alabama.
June 8, 1990.
Merceria L. Ludgood, Mobile, for appellant.
Jack W. Morgan of House & Morgan, Mobile, for appellees.
HORNSBY, Chief Justice.
This is an appeal from a judgment of the Mobile County Probate Court holding invalid a purported will of Robert F. Perry, deceased. The contest was tried before L.W. Noonan, Probate Judge. We affirm.
The plaintiffs, Mary and Florida Perry and two persons claiming to be the sons of Robert F. Perry, challenged a purported *172 will on the basis of an alleged lack of testamentary capacity. The purported will was executed on October 22, 1986. The plaintiffs claimed that Mr. Perry, who at that time was in the last stages of a long bout with cancer, was unable to understand the consequences of the document he executed. Mr. Perry died on November 4, 1986.
Perry was a resident of Mobile County. Described as a robust man during his earlier life, Perry was emaciated and bedridden at the time of his death. Evidence tended to show that he was unable to care for himself and that his mother had moved into his house to care for him.
Perry's wife, Mary Perry, filed a petition for letters of administration and that petition was granted on November 7, 1986. On November 19, 1987, Perry's mother, Zadie Craig, tendered to the probate court a document purporting to be the last will and testament of Robert Perry and filed a petition for letters testamentary naming her as executrix. With the petition for letters testamentary, Craig produced the purported will that became the focal point of this dispute. Subsequently, the petition for letters testamentary was amended to add as persons interested in the estate the two persons claiming to be Perry's sons. These two young men were represented by a guardian ad litem during the subsequent contest of the alleged Perry will. Mary Perry and Florida Perry, the testator's daughter, filed a contest on August 10, 1988, claiming, among other things, that Robert Perry lacked testamentary capacity at the time the purported will was drawn.
It is apparent that this will contest grew out of Mary Perry's dissatisfaction with the provisions made for her in the purported will. She acknowledges that she and Perry had lived apart for a number of years, but alleges that had he been "in his right mind" he would have provided for her in any will he might have made. The two men who claim to be Perry's sons, and who claim to have been openly recognized by Perry as his children, were not provided for at all in the alleged will. The guardian ad litem representing the two young men also contended that Perry lacked testamentary capacity at the time the document was executed.
Much testimony was presented on the issue of the validity of the alleged Perry will of October 22, 1986, and Perry's capacity to make a will on that date. As will be shown, the evidence was clearly in conflict.
Zadie Craig, the proponent of the document, did not testify in the contest. Neither did any of the other beneficiaries under the purported will.
While none of the beneficiaries testified, Merceria Ludgood, the attorney who prepared the will, did testify. Her testimony indicated that Annie Pettway approached her with a will that was not prepared by a lawyer but was supposedly dictated by Robert Perry and was typed by a friend of Perry. Ludgood stated that she informed Mrs. Craig that the writing Mr. Perry had dictated was not sufficient as a will under the laws of this state. Ludgood stated that she went to Mr. Perry's home and had Perry tell her what he wanted to include in his will. Ludgood said that Perry did not tell her that he had two illegitimate sons and stated that he had one child by his marriage and that he intended to provide for her. She said that Perry stated that he wished to leave only one dollar to his wife, Mary. Ludgood said that when she questioned Perry concerning the bequest to his wife he stated that he and she had been separated for more than 25 years, that his wife had never before shown any interest in him, and that she had no interest in him at that time. Ludgood stated that she knew of no reason that should prevent the will she had prepared from being probated.
The proponents rested following Ludgood's testimony.
V.R. Vaughn testified first for the contestants. He stated that he had known Robert Perry all of his life and that he considered himself to have been close to Mr. Perry. Mr. Vaughn testified that he had remained in close touch with Mr. Perry after Perry became ill and that he had often visited Perry at his home.
Vaughn testified that Mary Perry left her out-of-state job to return to Mobile to take care of Mr. Perry in 1986. Furthermore, Vaughn stated that although Robert and Mary Perry were separated, they remained in close touch with each other and often visited. He said Mrs. Perry provided financial assistance to Mr. Perry.
Vaughn stated that, following Mrs. Perry's return to Mobile, Lula Mae Matthews, Zadie Craig, and Theodore Perry tried to remove Mrs. Perry from the Perry home by telling Mrs. Perry that they intended to take Mr. Perry to New Orleans. Vaughn stated that these people told Mrs. Perry to leave the house because they were going to lock it up. Vaughn stated that after this encounter he took Mrs. Perry to stay with a friend, and that when Mrs. Perry was persuaded to leave the house, Mr. Perry's mother, Zadie Craig, moved in.
Vaughn stated that up until August 1986 Mr. Perry could still feed himself. Vaughn *174 testified that by September of that same year, Perry could no longer recognize him and "was just there." Vaughn stated that by October there was no way Perry could recognize even a deed or handle a check book.
Monroe James then testified for the plaintiffs. He stated that he had known Mr. Perry for some 25 or 30 years. James testified that he often visited Mr. Perry and that he often saw Mary Perry during those visits. James said that Mr. Perry had become unable to take care of his business affairs at least two weeks prior to his death.
Rev. G.L. King testified next for the plaintiffs. He stated that he had known Mr. Perry for over 20 years; that he visited Mr. Perry two or three times a week beginning in the summer prior to his death; that during his visits to the Perry house in the summer before Mr. Perry's death, Mrs. Perry was with Mr. Perry; that Mr. Perry was "completely out" at least a month before his death; and that Mr. Perry "wasn't any more than a baby." In response to a question from the Court, Rev. Mr. King replied that he thought that Mr. Perry did not even know he was in this world as of October 22, 1986.
Fannie Dennis, a friend of Mr. Perry's, testified that she last saw Mr. Perry a couple of weeks before his death. She stated that at that time Mr. Perry was semi-conscious and could not be expected to understand business transactions. She stated that Mr. Perry had difficulty recognizing her, but that at times he might recognize her voice. Mrs. Dennis stated that Mary Perry came to live with her following the threats to move Mr. Perry to New Orleans, and that Mrs. Perry did not return to the Perry home because she was afraid to go back there.
Ansonia Smith, the mother of one of the two men claiming to be Mr. Perry's sons, testified that she visited Mr. Perry on several occasions before his death. She said that on one occasion, some four weeks prior to his death, Mr. Perry was delirious and talked about "things that didn't really make any sense." She said that during a visit just three weeks prior to his death, Mr. Perry was lying on his bed with his eyes open staring at the ceiling and failed to recognize either Smith or her son. Smith testified that Zadie Craig often refused to let her in the house to see Mr. Perry. Mrs. Smith stated that on several occasions Zadie Craig told her that Mr. Perry was asleep when he in fact was not, and that on other occasions, Mrs. Craig refused to let her in the house at all. On at least one occasion, the two had a verbal confrontation after Mrs. Smith sneaked into Mr. Perry's room to visit while Mrs. Craig was distracted.
Mary Perry was the final witness for the plaintiffs. She testified that she had married Robert Perry in 1958 and that she had been married to him from that time until his death. Mrs. Perry testified that she and her husband did live apart, because she was a school teacher and she had to go where the best job was. However, she said that they stayed in close contact with each other and visited each other when they could. Mrs. Perry also testified that she often gave Mr. Perry money to help defray the expenses of his cancer treatments.
Mrs. Perry testified that in 1986 she was asked by Mr. Perry to come to Mobile to stay with him. Mrs. Perry stated that she dressed wounds from surgery, performed hygienic services, and generally saw to Mr. Perry's needs. Furthermore, Mrs. Perry said, her husband told her that he had no relationship with his mother, Zadie Craig, and that Mrs. Craig had not been in his home for over three years. Mrs. Perry said that during Mr. Perry's illness, Theodore Perry, Mr. Perry's brother, would often take personal property from Mr. Perry without his permission. Mary Perry stated that someone had broken into a strong box which Mr. Perry kept in his home.
Mrs. Perry also testified to some bizarre occurrences during Mr. Perry's illness. She stated that on one occasion, Zadie Craig and some relatives from New Orleans came to the house and stated that they were going to take Mr. Perry to New Orleans. This trip was to be made so that Mr. Perry could be carried across a body of *175 water to break the "spell" that he was under. Mrs. Perry stated that she left the house on this occasion because she was afraid. Mrs. Perry said that Zadie Craig and the other relatives made it clear to Mrs. Perry that she was not to return. On another occasion, Mrs. Perry said, Zadie Craig came to the house and sprinkled some sort of dust on the floors. Mrs. Perry stated that Mrs. Craig did this to keep Ansonia Smith out of the house.
Annie Pettway, a witness to the alleged will, was called by the proponents to testify at a subsequent proceeding due to her absence at trial. This procedure was stipulated to by all of the parties. Mrs. Pettway stated that Robert Perry's "expression" was that Mary Perry was not his wife. Moreover, she stated, Mr. Perry would become "aggravated" if Mrs. Perry was referred to as his wife. Mrs. Pettway stated that despite his illness, Mr. Perry did "have his rational mind" at the time the will was executed, and that he understood what he was doing. She stated that Mr. Perry was weak but that he always recognized her when she came to visit. She stated that Mr. Perry was not forced to sign the will. Mrs. Pettway stated that the idea of going to New Orleans was Mr. Perry's idea, because he wanted to get away from Mary Perry.
The parties agree that this case is controlled by the "ore tenus" rule. Under that rule, when a court hears ore tenus evidence in a nonjury case, its ruling based on that evidence is presumed correct and will be overturned only if clearly erroneous or manifestly unjust. Parker v. Barnes, 519 So. 2d 945 (Ala.1988); Reliance Insurance Co. v. Substation Products Corp., 404 So. 2d 598 (Ala.1981). Its findings of fact will not be disturbed on appeal if they are supported by the evidence or any reasonable inference therefrom. First Alabama Bank of Montgomery, N.A. v. Coker, 408 So. 2d 510 (Ala.1982). The presumption of correctness is especially applicable where, as here, the evidence was conflicting. Leslie v. Pine Crest Homes, Inc., 388 So. 2d 178 (Ala.1980). The weight to be given the witnesses' testimony was for the trial judge, because he had the opportunity to view the witnesses and their demeanor. Jones v. Estelle, 348 So. 2d 479 (Ala.1977).
It is presumed that every person has the capacity to make a will. Johnston v. Johnston, 174 Ala. 220, 227, 57 So. 450, 452 (1912). Because of the presumption of capacity, this court has stated:
Fletcher v. DeLoach, 360 So. 2d 316, 318 (Ala.1978). (Citations omitted.)
Based upon the foregoing, we conclude that the trial court did not err in finding that Robert Perry lacked testamentary capacity at the time the purported will was signed. Therefore, the judgment of the trial court based on that finding is due to be, and it hereby is, affirmed.
AFFIRMED.
JONES, SHORES, HOUSTON and KENNEDY, JJ., concur. | June 8, 1990 |
e66ba523-3062-4607-a14f-88a39f233442 | BRIDGEWAY COM. INC. v. Trio Broadcasting, Inc. | 562 So. 2d 222 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 222 (1990)
BRIDGEWAY COMMUNICATIONS, INC. (WMML RADIO STATION1410 AM), Douglas Eason and Lynette Eason
v.
TRIO BROADCASTING, INC. (WBLX RADIO STATION93 FM).
89-52.
Supreme Court of Alabama.
March 23, 1990.
*223 Ronnie L. Williams, Mobile, for appellants.
George M. Walker and Forrest C. Wilson III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
SHORES, Justice.
The plaintiffs, Bridgeway Communications, Inc., Douglas Eason, and Lynette Eason, appeal from a summary judgment in favor of Trio Broadcasting, Inc., on the plaintiffs' claim that Trio tortiously interfered with their business and contractual relations.
The plaintiffs own and operate radio station WMML in Mobile, the city's first and only black-owned radio station. Trio owns radio station WBLX, which has the same "urban contemporary" format as WMML. The plaintiffs claim that, shortly after they began business, the defendant approached their advertisers with an advertising package that required them to cease doing business with WMML. The plaintiffs also claim that, when their agents approached these advertisers, the defendant made libelous statements to the effect that Douglas Eason was a homosexual, and that his wife, Lynette Eason, was a homosexual and an alcoholic.
The tort of intentional interference with business or contractual relations requires:
Justification is an affirmative defense, which the defendant must plead and prove. Id. at 597 n. 3. Legitimate economic motives and bona fide business competition qualify as justification for intentional interference with a competitor's business. Dunnivant v. Bi-State Auto Parts, 851 F.2d 1575, 1583 (11th Cir.1988). In Bi-State Auto Parts, Dunnivant, an automotive parts retailer, alleged that another retailer in the same area had tortiously interfered with his business relations with suppliers when suppliers refused to do business, or discontinued doing business, with Dunnivant, causing him to go out of business. The other retailer had threatened to discontinue doing business with the suppliers because of their business with Dunnivant. The Eleventh Circuit held that the other retailer was not liable because he was acting for legitimate economic reasons.
In Beasley-Bennett Electric Co. v. Gulf Coast Chapter of National Electrical Contractors Ass'n, 273 Ala. 32, 134 So. 2d 427 (1961), the plaintiff claimed that the defendants had unlawfully interfered with its business relations with contractors by telling the contractors that if they accepted bids from the plaintiff, the defendants would not give them any bids in the future. This Court found that the defendants were engaged in lawful competition to increase their own business. The Court further held that "[c]ompetition in business, even though carried to the extent of ruining a rival, constitutes justifiable interference in another's business relations, and is not actionable, so long as it is carried on in furtherance of one's own interests." 273 Ala. at 35, 134 So. 2d at 429.
Summary judgment is appropriate if there is no genuine issue of material fact *224 and the moving party is entitled to a judgment as a matter of law. A.R.Civ.P. 56(c). Silk v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 437 So. 2d 112 (Ala.1983). The defendant, Trio Broadcasting, produced evidence that, in regard to the matters in dispute, it was attempting to protect its own advertising clients, that it was trying to promote its new AM station, and that its advertising packages were not directed at WMML. Douglas Eason even admitted that it was a common practice in the radio industry to monitor other stations and that his own station monitored others in order to get advertising. Thus, because Trio produced evidence that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law, the burden shifted to the plaintiffs to show by admissible evidence that a genuine issue of material fact existed. Horner v. First Nat'l Bank of Mobile, 473 So. 2d 1025 (Ala. 1985). The plaintiffs should have presented specific facts showing a genuine issue for trial rather than resting upon the mere allegations of their complaint. A.R.Civ.P. 56(e); Kemp Motor Sales, Inc., v. Lawrenz, 505 So. 2d 377 (Ala.1987).
The plaintiffs alleged in their amended complaint that WBLX's employees, in soliciting WMML's advertisers, made statements that Douglas Eason was a homosexual and that his wife was a homosexual and an alcoholic. The plaintiffs also alleged that WBLX sought to run WMML out of business because it is a black-owned station. The record, however, is devoid of any evidence to support these allegations. There was testimony by Douglas Eason that WBLX employees told advertisers that WMML could not pay its bills and was about to go out of business. This testimony, however, was hearsay and was not admissible in opposition to a summary judgment motion. Horner, 473 So. 2d 1025 (Ala.1985). Further, there is no admissible evidence that the advertising packages required the advertisers to cease doing business with WMML, only the hearsay testimony of Mr. Eason and his wife. The only advertiser questioned stated that he had advertised with WBLX previously and that he would not have advertised on both WBLX and WMML at the same time.
The summary judgment in favor of Trio Broadcasting is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | March 23, 1990 |
97779ebe-6da7-45fa-8cb3-9a4eccb43039 | Hill v. McGee | 562 So. 2d 238 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 238 (1990)
Kenneth Dale HILL
v.
Enoch McGEE.
89-186.
Supreme Court of Alabama.
April 6, 1990.
Rodney B. Slusher, Florence, for appellant.
John E. Higginbotham and Thomas W. McCutcheon of Higginbotham & Whitten, Florence, for appellee.
SHORES, Justice.
This lawsuit involves a claim of conversion based on the disposition of three 1984 Freightliner trucks and one 1978 International truck. The plaintiff, Kenneth Dale Hill, sold the realty and other assets of Ponderosa Manufacturing Company (including these trucks) on August 2, 1988, to Douglas Blan Stewart, Jr., and his wife. As part of the sales transaction, Stewart *239 and his wife executed a document styled "security agreement" and a UCC-1 financing statement. The UCC-1 financing statement was filed with the Alabama secretary of state on August 16, 1988.
Upon taking possession of the vehicles, Stewart sold them to Muscle Shoals Mack Sales, Inc. ("Mack Sales"), providing certificates of title for the trucks. Mack Sales subsequently sold them to Enoch McGee for the sum of $38,688.75. Shortly thereafter, McGee sold the vehicles. Stewart and his wife defaulted on the promissory note to Hill in October 1988 and Hill foreclosed, taking possession of the remaining assets of the corporation. Stewart has disappeared.
Hill sued McGee and Mack Sales on February 2, 1989. The complaint alleged conversion of the four vehicles. McGee filed an answer and filed a cross-claim against his co-defendant, Mack Sales, on March 20, 1989. McGee subsequently filed a motion for summary judgment, which was heard on June 15, 1989. The trial court entered a summary judgment in favor of defendant McGee on the grounds that the Alabama Uniform Certificate of Title and Antitheft Act, Code 1975, §§ 32-8-1 et seq. (the "Act"), provides the "exclusive" method of perfecting a security interest in a motor vehicle covered by the Act:
C.R. 267-70.
This judgment was made final pursuant to Rule 54(b), A.R.Civ.P., on September 27, 1989, and from it Hill appeals.
The issue before us is whether the trial court erred in holding that the Alabama Uniform Certificate of Title and Antitheft Act, § 32-8-1 et seq., provides the exclusive method of perfecting a security interest in a motor vehicle covered by the Act so that a UCC-1 financing statement is not effective to perfect a security interest in such a motor vehicle. The Act covers all motor vehicles designated as 1975 and subsequent year models (§ 32-8-30), with specific exceptions (§ 32-8-31). The four trucks involved in this case fall within the Act. Section 32-8-66 provides: "The method provided in this article of perfecting and giving notice of security interest in motor vehicles required to be titled under the terms of this chapter or titled under the terms hereof, shall be exclusive." (Emphasis added.) Section 7-9-302(3)(a) and (b), part of Alabama's enactment of the Uniform Commercial Code, provide that a financing statement is "not effective" to perfect a security interest under Alabama's certificate of title act. "Where motor vehicles are concerned, this Act rather than Article 9 of the U.C.C. governs the perfection of security interests. Sections 7-9-302(3)(b) and 32-8-66, Code of Alabama 1975." First Dallas County Bank v. General Motors Acceptance Corp., 425 So. 2d 460, at 464 (Ala.Civ.App.1982), aff'd, Ex parte General Motors Acceptance Corp., 425 So. 2d 464 (Ala.1983).
For the reasons stated above, we affirm the judgment of the trial court.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | April 6, 1990 |
5bd24726-26db-40ea-9b49-afdf98dca235 | Paige v. State Farm Fire & Cas. Co. | 562 So. 2d 241 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 241 (1990)
Ernest PAIGE
v.
STATE FARM FIRE & CASUALTY COMPANY and James S. Germany.
88-1394.
Supreme Court of Alabama.
April 6, 1990.
*242 Barre C. Dumas, Mobile, for appellant.
G.B. McAtee of Stokes & McAtee, Mobile, for appellees.
HOUSTON, Justice.
State Farm Fire and Casualty Co. ("State Farm"), as subrogee of James S. Germany, sued Ernest Paige for damages resulting from fire loss to Germany's rental house allegedly caused by Paige's negligence. Paige filed a general denial. State Farm's motion for summary judgment was denied. Subsequently, the trial court heard the case without a jury and rendered a judgment for State Farm in the amount of $30,547. Paige's motion for a new trial was denied. Paige appealed. We affirm.
Under the ore tenus rule, the trial court's decision, where supported by the evidence, is presumed correct and should be reversed only if the judgment is found to be plainly and palpably wrong, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence. See American Casualty Co. v. Wright, 554 So. 2d 1015 (Ala.1989); City of Birmingham v. Sansing Sales of Birmingham, Inc., 547 So. 2d 464 (Ala.1989); King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala.1987); Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986); see, also, Meeks v. Hill, 557 So. 2d 1238 (Ala. 1990).
The issue for our review is whether the trial court's findings that Paige's negligence resulted in damage to the premises in question was plainly and palpably erroneous.
Paige contends that the trial court's resolution of the case involved speculation, because, he says, there was no direct evidence or expert testimony as to the origin of the fire; that there was no evidence that he was in control of the fire that ignited the kitchen or that any act of his was negligent; and that the doctrine of res ipsa loquitur, on which he says State Farm therefore must rely, is inapplicable in the instant case. See Viking Motor Lodge, Inc. v. American Tobacco Co., 286 Ala. 112, 237 So. 2d 632 (1970). We disagree. At all times, State Farm attempted to recover based on Paige's negligence; it never attempted to eliminate other causes and then trace liability back to Paige; therefore, unlike the situation in Viking, supra, State Farm does not rely on res ipsa loquitur to establish liability.
The facts before the trial court were as follows:
Paige leased a house from Germany. The house was destroyed by fire during the lease period while Paige occupied the premises. Germany testified that he did not make a physical inspection of the electrical system or the appliances during the term of the lease; that everything that could have caused the fire was in the kitchen area where most of the damage occurred; and that he settled with State Farm for $36,176.23. Germany further testified that, upon inspection of the premises, he found that the bottom of the pot that Paige told Germany he had put on the stove was totally burned.
State Farm's claims adjuster, who examined the premises after the fire testified that there was a pot on top of the stove; that the switch that had controlled the burner where the pot was located was in the "high" position; and that one of the photographs he took of the scene showed the impression of the burner burned into the pot that was on top of the stove.
Paige, called as an adverse witness, testified that on the night of the fire he arrived home after 10:00 p.m. and placed oil on the stove to cook french fries, turning the burner on low; that he then went to his bedroom to change clothes; and that upon his return to the kitchen, smoke was so thick that he was unable to see into the kitchen, so he fled the house. He also *243 testified that he was unaware of the cause of the fire.
Paige concedes that he had a duty not to negligently burn the rental house and that State Farm suffered a loss as a result of the fire. However, Paige denies that he breached his duty, and he contends that there is no evidence that any negligence of his was the proximate cause of the fire.
After viewing all the evidence that the trial court had before it, and after making all reasonable inferences that could be drawn from the evidence, we conclude that the trial court's findings that Paige was negligent and that his negligence was the proximate cause of the fire were not plainly and palpably erroneous. The trial court's judgment for State Farm in the amount of $30,547 is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | April 6, 1990 |
9bb42a61-b787-4240-b1ab-8bbf3e1cbad5 | Gowens v. Goss | 561 So. 2d 519 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 519 (1990)
Katherine GOWENS
v.
Beatrice GOSS.
88-271.
Supreme Court of Alabama.
March 30, 1990.
*520 Bert Latham and Robert D. McWhorter, Jr., Centre, for appellant.
Merrill Vardaman, Anniston, for appellee.
ALMON, Justice.
This is an action to quiet title to real property located in Cherokee County, Alabama. The question presented is whether the surviving spouse of a decedent who died while domiciled in a state other than Alabama can utilize provisions of the Alabama Probate Code to claim a homestead allowance in real property located in Alabama.
Beatrice and Clyde Goss were married in 1955. During part of their marriage the Gosses lived on the property that is the subject of this dispute. That property was conveyed to Clyde by Shelby and Inez Mann, Beatrice's parents, on October 8, 1966. Beatrice was not named as a grantee in that instrument. In 1971, Beatrice and Clyde began to have marital difficulties, and Beatrice left the residence because of marital strife. She thereafter lived apart from Clyde, except for one period lasting for six weeks. Both Beatrice and Clyde sought a divorce in 1972, but their petitions were denied by the Circuit Court of Cherokee County, presumably because at that time irretrievable breakdown of the marriage was not a ground for divorce. Although neither party took any further action to dissolve the marriage, they never again lived together. It is clear from Beatrice's testimony that she did not take any action, during Clyde's lifetime, to assert whatever interest she may have had in the property.
In 1981, Clyde executed a deed conveying the property to his sister, Katherine G. Gowens, without securing Beatrice's signature to the conveyance. At that time, and for the remainder of his life, Clyde was domiciled in Georgia. Clyde died intestate on August 25, 1987.
On April 5, 1988, Beatrice filed a complaint against Gowens in the Circuit Court of Cherokee County. She alleged that both she and Gowens claimed sole ownership of the property. Beatrice requested the court to determine each party's interest in the property and, if the court found that both she and Gowens had an interest in the property, to order a sale and division of the proceeds. Gowens answered, averring that she was the sole owner of the property, and filed a counterclaim to quiet title.
The trial court entered a judgment holding that the conveyance by Clyde to Gowens was valid, but that Gowens's interest was subject to the homestead interest of *521 Beatrice. The trial court held that Beatrice retained her interest because she did not leave the property voluntarily, but had been caused to leave by marital strife. The trial court denied Beatrice's request for a sale of the property, citing Richardson v. Richardson, 417 So. 2d 158 (Ala.1982).
Following that judgment, Gowens filed a motion to vacate the judgment and for a new trial. Gowens contended that Ala. Code 1975, § 43-8-110 (Supp.1988), which establishes homestead allowances for surviving spouses, requires that the decedent be domiciled in Alabama at the time of death in order for the allowance to apply. The trial court denied that motion, holding that Gowens's construction of § 43-8-110 was too narrow and would violate the policy that gave rise to homestead statutes. The trial court also held that under Ala. Code 1975, § 6-10-3, Clyde's conveyance to Gowens would be void because of his failure to secure Beatrice's signature to the conveyance. However, because the property conveyed appeared to exceed the value of the homestead allowance, $6,000, the trial judge did not void the conveyance, but held that Gowens's interest was subject to Beatrice's homestead interest.[1] It is from this ruling that Gowens appeals.[2]
Because we are unsure what homestead interest the court declared Beatrice to have, we will discuss each kind of homestead interest.
Article X, § 205, of the Alabama constitution provides for a homestead exemption. That section reads as follows:
(Emphasis added.)
The requirement of a spouse's signature on a conveyance is intended to protect that spouse from a conveyance of the homeplace without his or her assent. Leonard v. Whitman, 249 Ala. 205, 30 So. 2d 241 (1947).
For § 205 to apply, the property must qualify as a homestead. One of the requisites is that the property must be the actual place of residence. Wildman v. Means, 208 Ala. 487, 94 So. 823 (1922). However, a temporary absence from the property will not be construed as an abandonment if the person seeking to invalidate the alienation has the intention to return to the property. In those situations, the requirement of occupancy may be satisfied by a finding of constructive occupancy. McConnaughy v. Baxter, 55 Ala. 379 (1876).
At the time of the conveyance to Gowens, neither Beatrice nor Clyde lived on the property, and there is no evidence that either party intended to return to it. There is some dispute as to whether Beatrice *522 left the property voluntarily or was driven off. The trial judge determined that Beatrice did not leave voluntarily and attached great significance to that conclusion. This Court agrees that, under the proper circumstances, a forcible ouster should not deprive a spouse of his or her rights in the homestead. To hold otherwise would allow one spouse to fraudulently convey away the other spouse's interest in the homestead. Cf. Lewis v. Lewis, 201 Ala. 112, 77 So. 406 (1917). However, the record in this case shows that Beatrice waited 17 years, an unreasonably long time, to assert her purported rights in the property. Beatrice did not attempt to regain or assert any rights in the property from the time she left in 1971 until after Clyde's death in 1988. Her failure to assert whatever rights she may have had leads this Court to the conclusion that she lacked the intention to return to the property and claim it as her homestead.
At the time of the conveyance the property was not occupied by either Clyde or Beatrice, and neither party showed an intention to return to the property after leaving. Therefore, the property was not their "homestead" as that term is used in § 205, McConnaughy, supra, at 382-83, and Clyde was under no obligation to secure Beatrice's signature and assent to the conveyance. His failure to do so does not invalidate the conveyance of the property to Gowens, and the property is not otherwise subject under § 205 to a homestead interest in favor of Beatrice.
Ala.Code 1975, § 6-10-2 (Supp.1988) and § 6-10-3, are essentially a codification of Article X, § 205, of the Alabama Constitution. However, there are some material differences, such as increases in both the acreage and value of land that can be exempt, and the inclusion of mobile homes as homesteads. It is clear from the language of these statutes that they, like § 205, were intended to protect the homes of debtors and their families:
(Emphasis added.)
Actual occupancy of the property is a threshold requirement of § 6-10-2, as it is of § 205. In re Quinlan, 12 B.R. 824 (Bankr.M.D.Ala.1981); In re Brasington, 10 B.R. 76 (Bankr.M.D.Ala.1981). The nature of the required occupancy has been described as "occupancy in fact and a clearly defined intention of present residence and occupancy." In re Brasington, supra, at 78 (citing Blum v. Carter, 63 Ala. 235 (1879)). There is a line of cases holding that a widow's right to a homestead interest will not be defeated by her departure from the property after her interest has vested. However, those cases recognize that the property concerned must be occupied by the husband at the time of his death. See, Cox v. McLemore, 236 Ala. 559, 183 So. 860 (1938); Bodeker v. Tutwiler, 211 Ala. 537, 100 So. 776 (1924); Johns v. Cannon, 199 Ala. 138, 74 So. 42 (1917); *523 Gist v. Lucas, 122 Ala. 557, 25 So. 41 (1899); Norton v. Norton, 94 Ala. 481, 10 So. 436 (1892). Because neither Clyde nor Beatrice occupied the property at the time of Clyde's transfer to Gowens and because Beatrice never before his death showed any intent to return, § 6-10-2 cannot be utilized to give Beatrice an interest in the property. Also, because the property does not qualify as a homestead under § 6-10-2, the signature requirement of § 6-10-3 is not applicable and does not operate to void the conveyance by Clyde to Gowens.
Ala.Code 1975, § 43-8-110 (Supp. 1988), provides for a $6,000 allowance to the surviving spouse or minor children of the decedent; this allowance is in addition to any provision in the decedent's will, or in addition to any share received by intestate succession or by way of elective share. The purpose of § 43-8-110 is to preserve a portion of the decedent's estate from creditors and to protect the surviving spouse and minor children. Cater v. Coxwell, 479 So. 2d 1181, 1183 (Ala.1985). The homestead allowance created by § 43-8-110 can be satisfied by any assets within the decedent's estate. It is not confined to real property. Garrard v. Lang, 514 So. 2d 933, 934 (Ala.1987).
In order for the surviving spouse to receive the homestead allowance provided by § 43-8-110, the decedent must have been domiciled in Alabama at the time of his death. The relevant language is set out below:
There is no dispute that Clyde was domiciled in Georgia at the time of his death. Therefore, his surviving spouse, Beatrice, is not entitled to a homestead allowance under Alabama law.
For the reasons discussed above, the signature requirements found in Article X, § 205, of the Alabama Constitution and § 6-10-3 are not applicable to Clyde's conveyance to Gowens, and Beatrice has no homestead interest in the property. We affirm the judgment insofar as it holds that that conveyance was valid, but we reverse the judgment insofar as it holds that Gowens's interest in the property is subject to a homestead exemption or allowance in favor of Beatrice.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] The trial judge apparently confused the homestead allowance provided in § 43-8-110, in the amount of $6,000, with the homestead exemption found in § 6-10-2, in the amount of $5,000, and therefore held that Clyde's conveyance to Gowens was subject to the signature requirement of § 6-10-3.
[2] Beatrice has not filed an appellee's brief. | March 30, 1990 |
e63c3cd8-fae6-45ab-8c42-61d9a12940dd | Kumar v. Lewis | 561 So. 2d 1082 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1082 (1990)
Dr. Naresh KUMAR
v.
Gloria LEWIS, individually and as administratrix of the estate of Christopher Lewis, deceased.
88-1059.
Supreme Court of Alabama.
April 6, 1990.
*1083 Robert B. Harwood, Jr. of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellant.
D. Leon Ashford of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
SHORES, Justice.
Dr. Naresh Kumar appeals from a judgment entered on a jury verdict, followed by the denial of his motion for judgment notwithstanding *1084 the verdict, or new trial, rendered against him in a wrongful death action initiated by Mrs. Gloria Lewis, who sued individually and as administratrix of the estate of her son Christopher Lewis. Other defendants were Dr. David Hefelfinger, Dr. Carol Mitchell, Dr. Omar Smith, DCH Regional Medical Center, and Capstone Medical Center. Capstone Medical Center was dismissed on the grounds that it is a state agency, and a summary judgment was entered in favor of Dr. Smith. Before trial, Dr. Hefelfinger and Dr. Mitchell entered a pro tanto settlement with the plaintiff. During trial, defendant DCH Regional Medical Center was dismissed, leaving Dr. Kumar as the sole remaining defendant.
Christopher Lewis was born on March 30, 1984. It was soon discovered that he had an enlarged left ureter, an inguinal hernia, and an umbilical hernia. Dr. Smith, a urologist, referred him to Dr. Kumar for surgical repair of the hernias. Dr. Kumar operated on Christopher on June 7, 1984. After surgery Christopher developed a high fever and it was discovered that he had septicemia. At this point, Dr. Hefelfinger began to oversee his pediatric treatment. Dr. Kumar performed exploratory surgery on Christopher on June 9, 1984, during which he discovered that the left ureter was caught in the area he had sutured. In attempting to dislodge the ureter, he inadvertently tore it. Dr. Smith was called in, and he performed more extensive surgery on Christopher. After surgery, Dr. Kumar and Dr. Hefelfinger and his staff attended Christopher, who died the next morning.
On appeal, Dr. Kumar challenges the constitutionality of punitive damages awarded pursuant to the Alabama wrongful death statute and also challenges the trial judge's instruction regarding the Hefelfinger and Mitchell settlement, the disallowance of a challenge for cause, and the trial judge's striking of juror affidavits.
The defendant argues that his due process rights under the United States and Alabama Constitutions were violated by the trial judge's instruction that the jury could award punitive damages against him if it was reasonably satisfied of the truthfulness of the plaintiff's claims. He argues that the "clear and convincing" standard of proof should apply. Defense counsel, however, did not request that the trial judge so instruct the jury, nor did he object to the trial judge's failure to give an instruction on the clear and convincing standard. Because the defendant did not comply with A.R.Civ.P. 51 by objecting to the judge's charge "before the jury retire[d]..., stating the matter to which he object[ed] and the grounds of his objection," this issue is not preserved for review. Central Alabama Elec. Co-op. v. Tapley, 546 So. 2d 371, 375-76 (Ala.1989).
The defendant next argues that there is a lack of standards governing the awarding of punitive damages in wrongful death actions, and that this lack of standards deprives defendants in such cases of procedural and substantive due process under the United States and Alabama Constitutions. He claims that Alabama Code 1975, § 6-5-391, the wrongful death act pertaining to minors, is unconstitutional in that, he argues, it does not give a defendant fair notice of the conduct that will subject him to punitive damages or fair notice of the amount of punitive damages that may be assessed. The defendant also claims that punitive damages awarded under the Alabama wrongful death act violate the excessive fines clause of the Eighth Amendment of the United States Constitution. This Court has previously rejected these arguments. Central Alabama Elec. Co-op. v. Tapley, supra; United American Ins. Co. v. Brumley, 542 So. 2d 1231 (Ala.1989); Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.1988).
Next, the defendant argues that the trial judge erred in giving the following instruction to the jury:
The defendant made a timely objection to this charge on the ground that it prejudicially assumed there would be a "balance remaining" if the jury determined that the plaintiff was entitled to recover against him. The defendant argues that the charge should have included qualifying language that only if the jury's assessment of damages exceeded $225,000 should they return a verdict against him. To determine if this instruction was erroneous, we must look to the entirety of the trial court's instructions. Nelms v. Allied Mills Co., 387 So. 2d 152 (Ala.1980). We have examined the entire jury charge and find no prejudice resulting from the phrase challenged. The trial court instructed the jury that it was to determine whether the plaintiff should recover in this case and the amount of any recovery. He instructed the jury that the question of the plaintiff's entitlement to, and the amount of, any recovery was "all ... for [its] determination." Consequently, there was no prejudicial error in the trial judge's instruction with respect to the amount of recovery.
The defendant claims that the trial judge erred in denying his challenge for cause of juror J.Y. Alexander. This juror attempted to leave the courtroom during defense counsel's voir dire without notifying anyone of his need to do so. Defense counsel challenged Mr. Alexander for cause, claiming that he was unable to be attentive, fair, and observant and lacked respect for the obligations of a juror. The court denied the challenge for cause, and Alexander became a member of the petit jury.
After the opening statements were partially completed, the trial court excused Alexander when it became apparent that his fidgeting was distracting the other jurors. Counsel for both sides consented to trying the case with the remaining eleven jurors. A trial judge is given broad discretion in regard to sustaining or denying a challenge for cause. His decision is therefore "entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion." Ex parte Nettles, 435 So. 2d 151, 154 (Ala.1983) (citing Collins v. State, 385 So. 2d 993, 1000 (Ala.Cr.App.1979), reversed on other grounds, 385 So. 2d 1005 (Ala.1980)).
At the time of the challenge for cause, the trial judge denied the challenge because he thought the juror simply had to go to the restroom. We do not find that his denial of the challenge was an abuse of discretion. Moreover, after it became apparent that juror Alexander had a medical problem and was excused by the trial judge, attorneys for both sides consented to proceeding with 11 jurors.
Last, the defendant argues that the trial judge erred in refusing to consider juror affidavits from nine of the eleven jurors indicating that the jury intended to award $625,000 in damages against Dr. Kumar and that the jury understood the instruction to be that the trial judge would deduct the $225,000 settlement from the verdict it returned. The trial judge granted the plaintiff's motion to strike the affidavits on the ground that the affidavits were an attempt to impeach the verdict.
The defendant claims that the affidavits do not serve to impeach the verdict, but, rather, to reveal the actual verdict, and that the written verdict, through mistake, did not correctly express the true verdict. In support of this argument, the defendant cites case law from other states that allows the introduction of juror affidavits *1086 to show that, because of a mistake, the true verdict was not correctly expressed in writing. Alabama follows the general rule that affidavits of jurors may not be offered to impeach their verdict. General Motors Corp. v. Lucas, 530 So. 2d 224 (Ala.1988). Under A.R.Civ.P. 60(a), a trial court is authorized to amend a jury verdict with respect to matters of form or clerical error. This authority does not apply to substantive matters decided by the jury. Great Atl. & Pac. Tea Co. v. Sealy, 374 So. 2d 877 (Ala.1979). In Sealy, as in this case, a party attempted to introduce a juror affidavit stating that the jury thought the trial court would reduce the verdict they returned by the amount of a pro tanto settlement. This Court held that a reduction of the verdict was a substantive matter and that the affidavit could not be received to impeach the verdict. Thus, the trial judge in this case correctly granted the motion to strike the affidavits.
For the reasons stated above, we affirm the judgment of the trial court.
AFFIRMED.
HORNSBY, C.J., and JONES and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I concur specially merely to note my dissent in Tatum v. Schering Corp., 523 So. 2d 1042, 1047-63 (Ala.1988), which explains why I cannot equate damages for wrongful death with punitive damages qua punitive damages (page 1050) and why I think this Court should correct its prior mistake of allowing only "punitive damages" to be recovered in a wrongful death case (pages 1062-63). This Court has held that there was no right to a trial by jury in a wrongful death case at common law; therefore, there is no constitutional requirement that the jury set the amount of punitive damages in a wrongful death case, although there is such a requirement in other cases involving punitive damages. (See, Charter Hospital of Mobile, Inc. v. Weinberg, 558 So. 2d 909 (Ala.1990) (Houston, J., concurring specially, 558 So.2d at 913). Therefore, in a wrongful death case a post-trial review, of a punitive damages assessment only, would not violate any constitutional provision, Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989); see, Olympia Spa v. Johnson, 547 So. 2d 80 (Ala.1989), for an analysis employed by me in applying the Green Oil Co. test in a wrongful death case (Houston, J., concurring in part and concurring in the result in part, 547 So.2d at 88-90); however, it would violate the legislative mandate ("and recover such damages as the jury may assess") of Alabama Code 1975, § 6-5-410(a). As long as we retain our peculiar system of assessing damages in wrongful death cases, unless we dispense "burnt toast" justice by setting the amount of damages by a ukase of this Court, I know of no other way to test the amount of the award when it is attacked as being excessive or inadequate. | April 6, 1990 |
ca520817-825c-4b14-9729-7d42ca7ab61c | Hellums v. Reinhardt | 567 So. 2d 274 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 274 (1990)
Clarence HELLUMS
v.
Richard REINHARDT, as executor of the estate of Lela Mae Sherman, deceased, et al.
88-1454.
Supreme Court of Alabama.
June 29, 1990.
Rehearing Denied August 31, 1990.
*275 G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellant.
Frank M. Wilson of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellees.
ALMON, Justice.
This appeal is from a judgment of the probate court admitting the will of Lela Mae Sherman to probate and holding that her husband, Clarence Hellums, was not entitled to an intestate share in her estate as an omitted spouse, Ala.Code 1975, § 43-8-90, but was entitled only to an elective share, § 43-8-70. Hellums argues that the trial court did not properly apply the test for determining whether an omitted spouse is entitled to an intestate share and that, under the proper test, the evidence entitled him to such a share. The appellees, who are the beneficiaries of Sherman's will, contend that the record is insufficient to support a reversal.
Sherman executed her will on June 29, 1987. On May 20, 1988, she married Hellums, and she remained married to him until her death on December 1, 1988. Sherman died without surviving issue or parents. After Sherman's death, Hellums filed a petition with the probate court, requesting that court to find that he was an omitted spouse and therefore entitled to the entire estate as his intestate share, pursuant to Ala.Code 1975, § 43-8-90, reproduced below:
Alternatively, Hellums petitioned for an elective share pursuant to § 43-8-70. He also requested his homestead allowance under § 43-8-110, his exempt property under § 43-8-111, and his family allowance under § 43-8-112.
On February 24, 1989, a hearing was held on Hellums's petition. On March 1, 1989, the probate court entered an order holding Sherman's June 1987 will to be her valid last will and finding Hellums to have been lawfully married to her at her death and thus entitled to participate in her estate. The order continued:
Hellums filed a motion to alter, amend, or vacate that order, and the probate court denied that motion on May 22, holding:
On June 26 the court entered a final judgment on those orders pursuant to Rule 54(b), Ala.R.Civ.P.[2] Hellums appeals from that judgment.
Because no record had been made of the February 24 hearing on Hellums's petition, he filed a statement of those proceedings pursuant to Rule 10(d), Ala.R.App.P. Reinhardt objected to that statement and requested a hearing. The probate court held a hearing and entered an order settling the record. That order recited that, at the February 24 hearing,
The appellees argue that this sparse record[3] provides no basis on which to reverse *277 the judgment at issue. Hellums counters that, because the appellees presented nothing in addition to his statement of the February 24 proceeding but rather accepted the pertinent portions thereof, and because the court thereupon settled the record on appeal, the appellees have not contradicted his argument that, based on what was presented at the February 24 hearing, the trial court had no ground on which to deny his petition for an intestate share as an omitted spouse. To resolve this controversy, we turn to an examination of the standard for awarding an intestate share to an omitted spouse.
Alabama's current probate code was derived from the Uniform Probate Code ("UPC") drafted by the National Conference of Commissioners on Uniform State Laws. The statutes contained in those chapters are to be liberally construed and applied so that their underlying purposes and policies can be achieved. Ala.Code 1975, § 43-8-2(a).
The purpose of § 43-8-90, which is based on UPC § 2-301, is to remedy the unintentional disinheritance of a spouse when the decedent's will was executed before their marriage. The adoption of that section reflects "the view that the intestate share of the spouse is what the decedent would want the spouse to have if he had thought about the relationship of his old will to his new situation." Commentary to § 43-8-90.
There are no Alabama cases interpreting § 43-8-90 or assigning the burden of proof in actions brought under that statute.[4] However, a reading of cases from other jurisdictions reveals a considerable difference of opinion regarding the burden of proof that must be met by the surviving spouse. Two states, interpreting their versions of UPC § 2-301, have held that the surviving spouse has the burden of proving: (1) that he was not provided for in the decedent's will; and (2) that the decedent did not provide a substitute for a testamentary provision by a gift or transfer outside the will. See In re Estate of Keeven, 110 Idaho 452, 716 P.2d 1224 (1986); In re Estate of Christensen, 655 P.2d 646 (Utah 1982). Other states have held that once the surviving spouse proves that he was omitted from the will, the burden of proof shifts to the proponent of the will to show that the testator provided for the surviving spouse by inter vivos transfers and that those transfers were intended to be in lieu of a testamentary provision. In re Estate of Knudsen, 342 N.W.2d 387 (N.D.1984); In re Estate of Beaman, 119 Ariz. 614, 583 P.2d 270 (Ariz.Ct.App.1978). A third view is that UPC § 2-301 creates an irrebuttable presumption in favor of the omitted spouse. In re Estate of Dumas, 413 So. 2d 58 (Fla. Dist.Ct.App.), cert. denied, 422 So. 2d 843 (Fla.1982), appeal dismissed sub nom. Sanford v. Dumas, 460 U.S. 1076, 103 S. Ct. 1761, 76 L. Ed. 2d 337 (1983).
We find that the burden of proof adopted by Idaho and Utah requires the surviving spouse to prove a negative, which is rarely possible. This overly harsh burden seems to be at odds with the stated purpose of § 43-8-90 and contrary to the liberal construction policy set out in § 43-8-2(a). However, the "irrebuttable presumption" viewpoint expressed in the Florida appellate court decision is too extreme. Therefore, this Court finds the interpretation using the shifting burden of proof employed by North Dakota and Arizona to be the better reasoned view. Shifting the burden to the proponent of the will to prove that the testator provided for the spouse outside the will is most consistent with the terms of the statute, which requires that the will make apparent an intent to omit the future spouse or that the testator's intent to substitute an inter vivos transfer for a testamentary provision be reasonably proven.
Examples of inter vivos transfers that have been held to be in lieu of testamentary provisions are the opening of joint tenancy checking and saving accounts and the assignment of retirement or insurance benefits. *278 In re Estate of Taggart, 95 N.M. 117, 619 P.2d 562 (N.M.Ct.App.1980). For further discussion of the types of transfers that satisfy this requirement, see Annot., 11 A.L.R. 4th 1213 (1982).
In the instant case, the evidence shows that Hellums was omitted from Sherman's will. That will does not contain any language indicating that Sherman intended to omit or restrict a future spouse's inheritance, and none of the evidence suggests that Sherman made inter vivos gifts to Hellums with the intention that they be a substitute for a testamentary provision. In fact, none of the evidence indicates that Sherman made any gifts to Hellums. The probate court based its decision that Hellums was not an omitted spouse primarily on its determination that Sherman was competent at the time she executed her will. The competency of the testatrix was stipulated to at the February 24 hearing and is not conclusive in determining whether Hellums was unintentionally omitted from Sherman's will executed before the marriage or in determining whether she provided for him by transfers outside the will in lieu of a testamentary provision.
Because the probate court, in finding that Hellums was not entitled to an intestate share as an omitted spouse, did not properly employ the test set out in § 43-8-90, that court's judgment must be reversed. Therefore, that judgment is reversed and this case is remanded for a new hearing consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, SHORES and ADAMS, JJ., concur.
STEAGALL, J., concurs in the result.
[1] The reference to change of residence pertains to an attempt to transfer this case to a different venue.
[2] After making this judgment final, the court awarded Hellums his homestead allowance, exempt property, and family allowance, and awarded him one-third of Sherman's estate as his elective share.
[3] On June 26, the day it entered the Rule 54(b) certification of finality on the orders at issue here, the court held a hearing to determine the value of Hellums's elective share. At that hearing, Hellums testified that he had executed the deeds recited in stipulation "e" to protect Sherman, his new wife, from his exwife's claims to the property, which he owned before his marriage to Sherman. Thus, those transactions do not support a finding that Sherman made extra-testamentary transfers to Hellums in lieu of a testamentary provision.
[4] One other case has been before this Court involving § 43-8-90. However, that case involved the petitioner's right to a jury trial, and the applicability of the Dead Man's Statute. No interpretation of § 43-8-90 was required. Kemp v. Kroutter, 531 So. 2d 854 (Ala.1988). | June 29, 1990 |
322122b4-4f3a-462c-b9dd-481895d37599 | Watts v. TI, INC. | 561 So. 2d 1057 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1057 (1990)
Dee Roosevelt WATTS, Jr.
v.
TI, INC., et al.
88-1498.
Supreme Court of Alabama.
March 23, 1990.
Charles R. Godwin, Atmore, for appellant.
*1058 James J. Duffy, Jr. of Inge, Twitty, Duffy, Prince & McKean, Mobile, for appellee TI, Inc.
Harold Albritton of Albrittons, Givhan & Clifton, Andalusia, for appellee Ford Motor Co.
James P. Green and Thomas H. Nolan, Jr. of Brown, Hudgens, Richardson, Mobile, for appellee Moyer Ford Sales, Inc.
Edward T. Hines of Garretts, Thompson & Hines, Brewton, for appellee Truxmore, Inc.
STEAGALL, Justice.
Plaintiff, Dee Roosevelt Watts, Jr., appeals the summary judgments entered in favor of defendants, TI, Inc., Truxmore, Inc., Ford Motor Company, and Moyer Ford Sales in an action alleging liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), and liability for breach of warranty and negligence.
Watts was employed by the City of Foley as a garbage handler. On March 9, 1987, Watts fell from a step mounted on the right rear side of the garbage body of a truck and was run over by the right rear wheels of the truck, and was thereby caused injury. The truck was driven by Greg D. Sharratt. On August 27, 1987, Watts filed suit against Sharratt and their immediate supervisor, John Hardin, alleging willful misconduct; and against TI, Inc. (formerly Truxmore Industries, Inc.), the manufacturer of the garbage barrel (sometimes referred to in the record and briefs as a "garbage body" or "packer"); Truxmore, Inc., a subsequent purchaser of substantially all of the assets of Truxmore Industries, Inc.; Ford Motor Company, the manufacturer of the cab and chassis of the garbage truck; and Moyer Ford Sales, the local dealership through which the City of Foley purchased the truck, alleging breach of warranty and negligence and alleging liability under the AEMLD. After extensive discovery, the trial court granted motions for summary judgment in favor of Ford Motor Company on January 4, 1989, and on July 19, 1989, granted such motions in favor of TI, Inc., Truxmore, Inc., and Moyer Ford Sales, but denied the summary judgment motions made by Sharratt and Hardin. The summary judgments were made final pursuant to Ala.R.Civ.P., Rule 54(b).[1]
Watts argues on appeal that substantial evidence was presented to support his cause of action against these corporate defendants for their breach of duty under the AEMLD and, therefore, that summary judgment was improper.
This Court has stated the standard of review governing summary judgment:
Rowden v. Tomlinson, 538 So. 2d 15, 18 (Ala.1988).
On March 4, 1983, the City of Foley solicited bids for "two new 1983 Chassis and Cabs." Nowhere in the notice, bid, or purchase requisition was there made any mention of what use was to be made of the chassis and cabs. Moyer Ford Sales presented a bid based on specifications prepared by the streets and sanitation superintendent for the chassis and cab only, and received a contract for the chassis and cab on April 4, 1983. The City of Foley solicited bids for garbage barrels on April 21, 1983. These specifications were prepared by the City of Foley and were for "hydraulic refuse truck body" only. TI, Inc., subsequently bid on and received a contract for the garbage body on May 16, 1983.
This Court addressed a similar situation in the recent case of Johnson v. Niagara Machine & Tool Works, 555 So. 2d 88 (Ala.1989). In that case, this Court held that the manufacturer of a drill press was entitled to a summary judgment where the *1059 "press had been substantially modified after it left the control" of the manufacturer. Johnson, supra, at 92. The Court went on to state that the manufacturer "should not be charged with a duty to guard or make safe all possible applications of its general purpose product. The possible application of a general purpose machine in a given manufacturing process not designed by the manufacturer is unforeseeable as a matter of law." Johnson, supra, at 92-93. Likewise, here, the Ford cab and chassis were general purpose products. There is absolutely no evidence that Moyer Ford Sales or Ford Motor Company knew for what purpose the truck would be used at the time it contracted to provide the cab and chassis. Therefore, summary judgment was proper as to Moyer Ford Sales and Ford Motor Company.
TI, Inc., a Virginia corporation, manufactured the garbage packer made the subject of this lawsuit and sold it to the City of Foley on October 19, 1983. In June 1985, TI, Inc., was sold to Truxmore, Inc., and on July 2, 1986, in compliance with Virginia law, articles of dissolution, a certificate of dissolution, and a certificate of termination of TI, Inc., were filed and registered with the Commonwealth of Virginia. This Court is bound to apply Virginia law as regards the survival of a remedy after the dissolution of a Virginia corporation. See Fitts v. National Life Association of Hartford, Connecticut, 130 Ala. 413, 30 So. 374 (1900).
The Code of Virginia, § 13.1-755, provides:
(Emphasis added.) The clear intent of the statute is to allow causes of action against dissolved corporations for actions that arose prior to the termination or dissolution of the corporation. The law is the same in Alabama. See Ala.Code 1975, § 10-2A-203.
Here, the cause of action did not arise until March 9, 1987, the date the injury occurrednine months after TI, Inc., was terminated. Therefore, summary judgment was proper as to TI, Inc.
The question now is whether Truxmore, Inc., is liable in tort as a corporate successor to TI, Inc. Both Watts and Truxmore, Inc., argue Alabama law as determinative of this issue. Because neither argues that Virginia law applies and because the tests used to determine when successor liability exists are substantially the same under both Virginia and Alabama law, we will apply Alabama law to determine this issue. See Pepper v. Dixie Splint Coal Co., 165 Va. 179, 181 S.E. 406 (1935).
This Court in Colonial Bank of Alabama v. Coker, 482 So. 2d 286 (Ala.1985), explained the grounds sufficient to support a finding of successor liability:
"`Liability of a successor corporation under corporation law is largely dependent on the form of the acquisition. When corporations merge, the successor remains liable for its predecessors' liabilities. This result is also obtained where, regardless of the denomination of the transaction by the parties, the acquisition constitutes a de facto merger. When, on the other hand, a corporation purchases the assets of another company the transferee is generally not liable unless (1) there is an express agreement to assume the obligations of the transferor, (2) the transaction amounts to a de facto merger or consolidation of the two companies, (3) the transaction is a fraudulent attempt to escape liability, or (4) the transferee corporation is a mere continuation of the transferor.'"
482 So. 2d at 292, quoting Rivers v. Stihl, Inc., 434 So. 2d 766, 771 (Ala.1983). Watts *1060 argues that Truxmore, Inc., should be held liable under (1), (2), and (4) of the Coker criteria. We have reviewed the record, including the asset purchase agreement, the articles of incorporation, the "organizational action of directors" and the affidavits; none of the criteria set out in Coker for successor liability has been met.
Watts contends that Paragraph 10 in the asset purchase agreement, entitled "Indemnification," constitutes an express agreement to assume the obligations of TI, Inc. After reviewing the indemnification portion of the asset purchase agreement, we conclude that that document, while indicating an agreement to assume some existing contractual obligations, does not amount to an express agreement to assume future claims in tort. Watts also argues that the purchase of TI, Inc., by Truxmore, Inc., was a mere continuation of the transferor or a de facto merger of the two corporations. The record, however, reveals that Truxmore, Inc., purchased substantially all the assets of TI, Inc.; none of the officers, directors, or shareholders of TI, Inc., became officers, directors, or shareholders of Truxmore, Inc., and within one year after the transaction, all plant level supervisory employees of TI, Inc., had been replaced. There is absolutely no evidence to support Watts's contention that Truxmore, Inc., was a mere continuation of, or that there was a de facto merger with, TI, Inc. Therefore, as to Truxmore, Inc., summary judgment was proper.
We, therefore, hold that summary judgment was properly entered as to TI, Inc., Truxmore, Inc., Moyer Ford Sales, and Ford Motor Company. The summary judgments are due to be, and they are hereby, affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] This case was filed after June 11, 1987. The "substantial evidence rule," therefore, applies. See Ala.Code 1975, § 12-21-12. | March 23, 1990 |
96d3d6f8-1b34-42d9-8e1e-9b3c1e0dba98 | Sumbry v. State Ex Rel. Grant | 562 So. 2d 224 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 224 (1990)
Arthur Lee SUMBRY
v.
STATE of Alabama, ex rel. William GRANT and Anthony Wallace.
88-1450.
Supreme Court of Alabama.
March 23, 1990.
*225 Kenneth L. Funderburk of Phillips and Funderburk, Phenix City, for appellant.
Greg Waldrep, Asst. Dist. Atty., Phenix City, for appellees.
STEAGALL, Justice.
Two residents of Russell County, William Grant and Anthony Wallace, filed a quo warranto action on behalf of the State of Alabama against Arthur Lee Sumbry in his capacity as a city council member from District 3 in Phenix City. That action was based on the facts that Sumbry was convicted on October 3, 1980, of unlawful voter registration; that on March 27, 1981, he pleaded guilty to first degree perjury; and that he was later convicted again of unlawful voter registration. On July 16, 1984, the Alabama Board of Pardons and Paroles granted a pardon to Sumbry for all three of his convictions, restoring "all civil and political rights which were forfeited as a result of the conviction[s]." Sumbry withdrew his demand for a jury trial on the one factual issue to be tried[1] (residence of one of the complainants), and the trial court entered summary judgment for the State, based on Randolph County v. Thompson, 502 So. 2d 357 (Ala.1987), and Alabama Constitution of 1901, § 60, holding that Sumbry was excluded from running for city council in the future.
Section 60 states that "[n]o person convicted of embezzlement of the public money, bribery, perjury, or infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state." (Emphasis added.) Sumbryargues that this provision is limited to State employees and legislators only, and that it does not apply to city officials. That question has already been decided against Sumbry. See State ex rel. Woods v. Thrower, 272 Ala. 344, 131 So. 2d 420 (1961) (§ 60 applied to city commissioner although plea of nolo contendere did not constitute a "conviction" under that section), and Hogan v. Hartwell, 242 Ala. 646, 7 So. 2d 889 (1942) (conviction of city commissioner triggered application of § 60 to him even though pardon restored his eligibility for public office).
The dispositive issue is whether a pardon allows a convicted elected official to hold public office.[2] Sumbry contends that it does under Hogan, pointing out particularly the fact that his pardon reinstated his right to vote under Ala.Code 1975, § 17-3-11 (§ 11-43-1 requires that a councilperson be a qualified elector of the city or town in which he or she has been elected). As the trial court correctly held, Randolph County, supra, precludes Sumbry from running for public office, his pardon notwithstanding.
Randolph County quoted from and relied on Mason v. State, 39 Ala.App. 1, 103 So. 2d 337 (1956), affirmed, 267 Ala. 507, 103 So. 2d 341 (1958), cert. denied, 358 U.S. 934, 79 S. Ct. 323, 3 L. Ed. 2d 306 (1959), which was decided after Hogan. Randolph County stated:
502 So. 2d at 366 (emphasis in last two paragraphs added).
Clearly, as this language indicates, Randolph County reaffirmed the holding of Mason, which implicitly overruled Hogan. Therefore, because Randolph County, rather than Hogan, controls this case, we hold that Sumbry's pardon does not allow him to hold "any office of trust or profit in this state." The judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, JONES, ALMON, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Sumbry did not object to the trial court's conclusion that all other issues were issues of law.
[2] At the time the quo warranto action was filed, Sumbry had qualified to run for a third term, which, had he won, would have begun in October 1989. | March 23, 1990 |
2d2355a6-d06e-48c1-9b86-9f4a7864bb61 | Parsons v. Bank Leumi Le-Israel, BM | 565 So. 2d 20 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 20 (1990)
Frank A. PARSONS
v.
BANK LEUMI LE-ISRAEL, B.M.
88-1451.
Supreme Court of Alabama.
March 30, 1990.
Rehearing Denied May 18, 1990.
*21 William R. Lewis of Pate, Lewis & Lloyd, Birmingham, for appellant.
George M. Neal, Jr., and Jeffrey H. Wertheim of Sirote & Permutt, Birmingham, for appellee.
MADDOX, Justice.
This appeal involves two issues: (1) Whether service of process by an Israeli court under the provisions of the Hague Convention was sufficient to obtain personal jurisdiction of an Alabama resident, and (2) whether in this suit based on a foreign *22 judgment, the trial court could, under the provisions of Rule 54(b), A.R.Civ.P., enter a final judgment against the defendant while there was still pending a third-party claim in which the defendant was seeking indemnification from a third party if the defendant was found liable on the main claim.
The trial court entered summary judgment for the plaintiff, Bank Leumi Le-Israel, B.M. (hereinafter "Bank Leumi"), on its complaint seeking enforcement of an Israeli court's judgment entered against the defendant, Frank A. Parsons, on a claim that Parsons, as guarantor of a loan, had not paid the loan. Under the provisions of Rule 54(b), A.R.Civ.P., the trial court certified the summary judgment as a final judgment, even though there was still pending a third-party complaint for indemnification filed by Parsons against a third-party defendant, First Family of Travel Specialists, Ltd. (hereinafter "First Family"), which is not a party to this appeal.
In late 1980, Parsons, an Alabama citizen and a resident of Birmingham, Alabama, became acquainted with Francisco De Araujo, a producer/director of a stage play depicting the last days of Jesus Christ entitled "The Passion Play." Parsons became interested in De Araujo's dream of performing that play in Israel for visiting American tourists. In an effort to secure financing for the project, Parsons, his wife, and the then-pastor of his church formed an Alabama corporation named Passion Play of Jerusalem, Inc. (hereinafter "Passion Play").
On February 9, 1982, while Parsons was in Israel making final plans for the production of the play, he executed a guarantee agreement with Bank Leumi, which had loaned Passion Play $50,000 for its production of the play. Passion Play planned to repay the loan through its sale of advance tickets to American citizens who were planning to travel to Israel. Upon the outbreak of hostility between Israel and Lebanon in mid-1982, a number of Americans who had sent deposits to Passion Play cancelled their reservations and demanded refunds. The refunding of those ticket deposits by Passion Play resulted in its eventual default on its loan with Bank Leumi.
On January 14, 1983, after repeated attempts by Bank Leumi to collect its loan from Passion Play and from Parsons, Bank Leumi filed an action against Passion Play as the principal debtor on its loan, and against Parsons as the guarantor, in the district court of Tel-Aviv-Jeffo, Israel. Passion Play and Parsons were served with process in Birmingham by the bank's attorney under the provisions of Fed.R.Civ.P. 4(c)(2)(A). Passion Play failed to file a responsive pleading in the Israeli action, and the Israeli court entered a default judgment against Passion Play on May 13, 1983, for the sum of $59,641.90, which reflected the principal loan of $50,000 plus $9,641.90 in accrued commissions, interest, and expenses. On August 15, 1984, Bank Leumi received a check for $10,000 from Parsons, and it credited that amount against the judgment. Neither Passion Play nor Parsons made further payments to Bank Leumi. On March 26, 1985, the same Israeli court entered a default judgment against Parsons as the guarantor on the bank loan. Like Passion Play, Parsons had failed to file a responsive pleading, even though he had received service of process in Birmingham.
On August 12, 1986, Bank Leumi filed an action in the Circuit Court of Jefferson County against Passion Play and Parsons. In its complaint, Bank Leumi requested the trial court to recognize and enforce the judgment rendered by the Israeli court. Neither Passion Play nor Parsons filed an answer to the bank's complaint; however, Passion Play and Parsons filed a motion to dismiss the complaint, claiming that the foreign judgments rendered against them were void ab initio because, they argued, the bank had failed to effect service in the manner provided under an applicable Hague Convention agreement.
Later, Bank Leumi filed an amended complaint to delete Passion Play as a party defendant and a motion to dismiss without prejudice Passion Play as a party defendant. On December 17, 1986, the trial *23 court granted the motion and entered an order dismissing Passion Play as a party defendant.
On February 25, 1987, Parsons filed a third-party complaint for indemnification against First Family, alleging that First Family had agreed to assume "all" the debts of Passion Play, including the loan from Bank Leumi, in exchange for its receiving a controlling interest in Passion Play.
Bank Leumi subsequently filed a motion for summary judgment, and, after an ore tenus hearing, the trial court entered a summary judgment for the bank against Parsons for $121,697.49, the amount of the foreign judgment plus accumulated interest. Parsons subsequently filed an amendment to his third-party complaint against First Family in which he substituted the amount of $121,697.49 as the amount of indemnification sought from First Family.
Bank Leumi filed a motion to make the summary judgment order a final judgment pursuant to Rule 54(b), A.R.Civ.P., over Parsons's objections that the entry of a final judgment would prejudice and harm him in regard to his third-party complaint for indemnification against First Family. The trial court initially denied Bank Leumi's motion to make the summary judgment final, but on rehearing granted it and entered a final judgment against Parsons in the amount of $121,697.49.
One of the two issues raised by Parsons is whether the Israeli default judgment entered against him was based upon a sufficient service of process that would make the judgment valid and, therefore, subject to recognition and enforcement by an Alabama court. Parsons contends that because Bank Leumi did not provide him with either an English or a French translation of the service of process his procedural due process rights were violated, and, therefore, that the trial court should not have recognized and enforced the foreign default judgment entered against him.
Parsons's second issue is whether his third-party claim for indemnification against First Family is so directly related to, and intertwined with, Bank Leumi's claim against him as guarantor on its loan to Passion Play that the trial court should not have made its summary judgment final pursuant to Rule 54(b).
The United States Constitution requires that each state give full faith and credit "to the public acts, records, and judicial proceedings of every other state."[1] However, that provision of the Constitution does not bestow any right, privilege, or immunity in regard to the judgments of courts of foreign countries. Aetna Life Ins Co. v. Tremblay, 223 U.S. 185, 190, 32 S. Ct. 309, 310, 56 L. Ed. 398, 399 (1912). Instead, American courts generally hold that their recognition of foreign judgments is governed by the doctrine of comity. See Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895); Somportex, Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.1971), cert. denied, 405 U.S. 1017, 92 S. Ct. 1294, 31 L. Ed. 2d 479 (1972); Perrin v. Perrin, 408 F.2d 107, 109 (3d Cir.1969); Yoder v. Yoder, 24 Ohio App.2d 71, 263 N.E.2d 913, 914-15 (1970). The United States Supreme Court defined "comity" in 1895 as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." Guyot, 159 U.S. at 164, 16 S. Ct. at 143, 40 L. Ed. at 108. In the Guyot case, the United States Supreme Court outlined the basic requirements that must be met before an American court will recognize and enforce a judgment rendered in a foreign country:
159 U.S. at 205-06, 16 S. Ct. at 159-60, 40 L. Ed. at 123. (Emphasis added.) One of the requirements mentioned by the United States Supreme Court as prerequisites for an American court to recognize and enforce a foreign country's judgment entered against an American citizen is that the citizen must have been given an "opportunity to defend" against the action filed against him in that foreign country's court. Implicit in that requirement is the need to notify an American defendant through acceptable service-of-process methods that a plaintiff has filed an action against him in another country's court. In Griffin v. Griffin, 327 U.S. 220, 66 S. Ct. 556, 90 L. Ed. 635 (1946), the United States Supreme Court stated that a judgment, no matter where entered, would not be given legal effect, even as a matter of comity, if that judgment was obtained in violation of procedural due process.
In order to further protect an American citizen against the entry of a foreign default judgment against him because of a plaintiff's failure to notify him through an acceptable method of service of process, the United States joined 24 other nations, including Israel, at The Hague, Netherlands, to sign the following multilateral agreement: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361, T.I.A.S. 6638, 658 U.N.T.S. 163 (entered into force for the United States on February 10, 1969, and hereinafter referred to as the "Hague Convention"). Article 1 of the Hague Convention states that it "shall apply in all cases, in civil or commercial matters, where there is occasion to transmit judicial or extrajudicial documents for service abroad." Because the Hague Convention has been held to have the status of a treaty,[2] under the Supremacy Clause of the United States Constitution, it is the "supreme law of the land."[3] Generally, state courts, like this one, have held that the Hague Convention supersedes state service provisions by virtue of the Supremacy Clause. See Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 882 (Ala. 1983); Dr. Ing. H.C.F. Porsche A.G. v. Superior Court, 123 Cal. App. 3d 755, 757-58, 177 Cal. Rptr. 155, 156 n. 1 (1981); Kadota v. Hosogai, 125 Ariz. 131, 608 P.2d 68 (Ct.App.1980); Aspinall's Club Ltd. v. Aryeh, 86 A.D.2d 428, 450 N.Y.S.2d 199 (1982).
There are three categories of permissible service of process methods set out in the Hague Convention. Process can be served by (1) the designated "Central Authority" of the receiving nation[4] (the designated Central Authority for the United States is the Justice Department), (2) various non-objectionable methods (i.e., service of process through diplomatic, consular, or postal channels),[5] or (3) any other method permitted by international agreements or the internal law of the receiving nation.[6]
*25 Parsons alleged in his motion to dismiss that he did not receive either an English or a French translation of the summons and complaint filed against him by Bank Leumi in Israel; that that fact constituted a defect in service that violated the Hague Convention; and, therefore, that that defect violated his procedural due process rights guaranteed by the United States Constitution, citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). We cannot accept Parsons's argument.
Parsons's contention that the Hague Convention requires the service of either an English or French translation of the summons and complaint would be correct if Bank Leumi had chosen to effect service or process through the designated Central Authority for the United Statesthe Justice Department. See Arts. 2, 3, 5, 7, 20 U.S.T. at 362-63. The record indicates that service of process was not made through the Central Authority designated by the United States, but by means of an alternative method of service permitted by the United States. See Art. 19, 20 U.S.T. at 365. In this case, Bank Leumi sought to effect service by mail pursuant to Fed.R.Civ.P. 4(c)(2)(C)(ii). However, because it failed to receive acknowledgement of service from Parsons, Bank Leumi effected service upon Parsons through its attorney in Birmingham, Alabama, pursuant to Fed.R.Civ.P. 4(c)(2)(A). See Jugolinija v. Blue Heaven Mills, Inc., 115 F.R.D. 13, 15 (S.D.Ga.1986). Because service of process upon Parsons was not effected through this nation's designated Central Authority, but through an alternative method of service permitted under the Hague Convention, Bank Leumi was not required to provide him with either an English or a French translation of the summons and complaint served upon him; therefore, Parsons's argument that service of process upon him was ineffective under the Hague Convention is incorrect; we find, as did the trial court, that the procedures used for obtaining service of process complied with the Hague Convention. See Art. 15, 20 U.S.T. at 364.
Finally, it should be noted that despite Parsons's attempt to contest the validity of the Israeli default judgment by asserting errors in law or in facts allegedly committed in the Israeli court proceeding, our judicial duty is not to retry the merits of that case. Our duty, as noted by the United States Supreme Court in Guyot, is only to ascertain whether the American defendant, Parsons, was subjected to such an unfair proceeding by the foreign court that this nation's policy of comity should not allow that judgment to be recognized and enforced through our court system. 159 U.S. at 202-03, 16 S. Ct. at 158, 40 L. Ed. at 122. Our review of the record does not indicate that the proceeding conducted against Parsons was unfair; in fact, the record indicates the opposite.
The second issue involves an interpretation of Rule 54(b), A.R.Civ.P. Parsons argues that his third-party claim for indemnification against First Family is so directly related to, and intertwined with, Bank Leumi's claim for recognition and enforcement of its foreign default judgment that the trial court abused its discretion in making the summary judgment for Bank Leumi final pursuant to Rule 54(b).
Rule 54(b), A.R.Civ.P., states:
This rule clearly provides that under an appropriate set of facts a trial court may enter a judgment on fewer than all the claims and make that judgment a final judgment. See Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So. 2d 92 (1976); Pate v. Merchants Nat. Bank of Mobile, 409 So. 2d 797 (1982).
*26 When the issues raised in a complaint containing multiple claims are directly related to, and intertwined with, each other to such a degree that a separate adjudication of one of those claims would pose an unreasonable risk of inconsistent results on the adjudication of the remaining claims, then, of course, the entry of a final judgment as to that claim would be an abuse of discretion by the trial court. See Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373 (Ala.1987); Gray v. Central Bank of Tuscaloosa, 519 So. 2d 477 (Ala.1987).
The facts surrounding this case clearly show that there is no risk of inconsistent results on Bank Leumi's claim and Parsons's third-party claim for indemnification against First Family.
Parsons's contention that First Family agreed to assume all the debts of Passion Play, including the bank loan, in exchange for First Family's receiving a controlling interest in Passion Play does not in any way affect Bank Leumi's right to have its foreign default judgment against Parsons recognized and enforced. Parsons does not deny that the bank loan was due and unpaid; he merely asserts that First Family was obligated to pay it. The liability of First Family, of course, is still pending in the third-party action, which remains in the trial court.
Because Bank Leumi's claim for recognition and enforcement of its foreign judgment against Parsons is independent and separate from Parsons's third-party claim for indemnification from First Family, we hold that the trial court did not abuse its discretion in making the summary judgment for Bank Leumi a final judgment pursuant to Rule 54(b).
The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] U.S. Const. art. IV, § 1.
[2] Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S. Ct. 2104, 100 L. Ed. 2d 722 (1988).
[3] U.S. Const. Art. VI, CI. 2.
[4] Arts. 2-6, 13, 20 U.S.T. at 362, 364.
[5] Arts. 8-10, 20 U.S.T. at 363.
[6] Arts. 11, 19, 24-25, 20 U.S.T. at 363-64, 365, 366. | March 30, 1990 |
6a11d062-d2c8-491c-8ae3-7cf9f70517c2 | Humphries v. Whiteley | 565 So. 2d 96 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 96 (1990)
Travis HUMPHRIES, individually and as co-executor of the estate of Bernice M. Whiteley, deceased, and Gwinnette Meyers
v.
Robert F. WHITELEY, individually and as co-executor of the estate of Bernice M. Whiteley, deceased, et al.
88-614.
Supreme Court of Alabama.
April 6, 1990.
Rehearing Denied June 22, 1990.
*97 Walter J. Price, Jr. of Price & Smith, Huntsville, for appellants.
Bill G. Hall of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellees.
STEAGALL, Justice.
This appeal involves reciprocal wills made by a husband and wife, each of whom had children by a former marriage, and whose children were made beneficiaries of the estate of the surviving party. The trial judge found that the surviving spouse had violated the provisions of the reciprocal will by inter vivos transfers to her own children to the exclusion of her stepchildren.
Frank and Bernice Whiteley's reciprocal wills contained the following clauses:
Bernice's will also contained the following:
Frank's will also had a similar provision to leave all his property to all their children equally in the event that Bernice died first.
Frank died first, and Bernice took title to all their property and began making gifts to her children. By the time of Bernice's death, the total estate had been reduced somewhat significantly, and after her death, Bernice's children sued for a declaratory judgment to determine how Bernice's estate was to be handled and to have Robert F. Whiteley, Frank's son, removed as a co-executor. The defendants, Frank's children, filed a counterclaim to have set aside all the gifts that Bernice had made to her children. After an ore tenus hearing, the trial judge ruled in favor of Frank's children *98 and set aside the gifts from Bernice to her children. Bernice's children appealed.
The trial judge made the following findings of fact and conclusions of law in his order:
"Frank and Bernice Whiteley were married in 1969. Each then had children from previous marriages. The children of Bernice Whiteley are the plaintiffs in this action: namely, Travis L. Humphries and Gwinnette Meyers. The children of Frank Whiteley are the defendants, and they are: Robert F. (Bobby) Whiteley; Morris W. Whiteley; Lanny Whiteley; and David Whiteley.
"On 13 September 1978, Frank and Bernice Whiteley met with attorney Douglas Claude Martinson to discuss the preparation of wills. Mr. Martinson testified that the Whiteleys wanted whatever property was left at the death of the last of them to die to go to their children, in equal shares. Martinson said that he discussed several approaches with the Whiteleys: e.g., two wills with an agreement not to revoke; a testamentary trust; an inter vivos trust; a life estate; and a joint will. The Whiteleys selected the option of `reciprocal wills, along with an agreement not to revoke or change their respective wills.' Mr. Martinson said he then advised the Whiteleys that such an approach only would apply to the property remaining after both had died, and that it would not prevent a survivor from giving property away before then. `I warned them that all this would do is take care of what was left at' the death of the last of them to die, `but in the meantime, one of them [the last to die] could mortgage it, sell it, or give it away.' Mr. Martinson also told the Whiteleys they could prevent the survivor from giving away all property prior to death by creating a trust, but neither Mr. nor Mrs. Whiteley wanted the other to become involved in complicated estate arrangements. According to Mr. Martinson, the Whiteleys therefore agreed to `take that chance.' `They did not want to restrict' one another's power `to dispose, or use, or have complete control' over property during the lifetime of the last of them to die. Nevertheless, Mr. Martinson added in a prescient phrase, the Whiteleys `presumed... there would be some assets left' for division among their children at the death of the last of them to die.
"Mr. Martinson then prepared the subject wills, which were executed in his office the following weekon 21 September 1978.
"Based upon all evidence submitted, this Court finds that neither Mr. nor Mrs. Whiteley wanted the other to become involved in complicated estate arrangements, such as a trust, because: (i) the Whiteleys were not wealthy, and they feared the erosion of their joint assets by extraneous administrative expenses; and (ii) neither Whiteley was in particularly good health, and they consequently did not want the other to be handicapped by a trust officer in using the assets of their joint estates for basic needs and necessitiessuch as food, clothing, and shelteror medical & hospitalization expenses. Nevertheless, this Court also infers that the Whiteleys selected the option of reciprocal wills and an agreement not to revoke their respective wills because neither intended for the other to disproportionately favor the survivor's children in the distribution of assets, to the detriment of the children of the first to die.
"Frank W. Whiteley died on or about 12 March 1983.
"Six days later, on 18 March 1983, a safe deposit box was opened in the names of Mrs. Bernice Whiteley, Travis Humphries, and Gwinnette Meyers at the First Alabama Bank branch on University Drive in Huntsville.
"On 21 March 1983, Mr. Martinson read Frank Whiteley's will and the agreement not to revoke to Bernice Whiteley, Robert Whiteley, Lanny Whiteley, and David Whiteley. Waivers then were executed by all of the aforesaid.
"On 2 April 1983, Travis Humphries and Bernice Whiteley opened a joint checking account `with [right of] survivorship' at the Bank of Ardmore, in Ardmore, Tennessee.
*99 "On 6 May 1983, Travis Humphries opened a savings account in his name alone at the Bank of Ardmore, and deposited four checks drawn payable to Bernice Whiteley, and aggregating $9,111.11, into that account.
"On 30 November 1983, after the six months statutory period for filing a claim against the estate had passed, Mr. Martinson sent a letter to Mrs. Whiteley, which explained the extent of her interest in the property inherited from her deceased husband.
"At some point, Mrs. Whiteley permitted the defendants to have sentimental heirlooms which had belonged to their father. These heirlooms included: old wicker furniture, a dining room table and chairs, and a shotgun.
"In February of 1984, Gwinnette Meyers moved to Madison County, Alabama, for the purpose of taking care of her mother. Allegedly, Bernice Whiteley then was quite ill and required continuous, twenty-four hour care: Mrs. Whiteley is reported to have suffered from asthma, bronchitis, arthritis, emphysema, a heart condition, and high blood pressure, among other ailments. Additionally, Mrs. Whiteley ingested as many as twenty-seven different kinds of medication each day, and frequently required hospitalization.
"Following her husband's death in 1983, and until the time of her own death in 1987, Mrs. Whiteley's income consisted solely of $435.00 a month in Social Security benefits. On the other hand, her expenses included $150 to $200 each month for medicine, a $1,000 annual deductible for medical insurance (which dropped to $500 a year in 1986), and an average utility bill of $80.00 a month.
"Following Frank Whiteley's death, Mrs. Whiteley and her children (who had access to her bank accounts) made several large purchases.
"For example, on 6 June 1983, Mrs. Whiteleywho was herself unable to drivepurchased a used 1981 Honda Accord automobile for $7,825.09. Frank Whiteley's 1973 pick-up truck was used as a trade-in. The Honda was titled in the name of `Bernice M. Whiteley or Travis L. Humphries.' Gwinnette Meyers continues to drive this car today.
"On or about April 11 or 12, 1984, Mrs. Whiteley sold the Toney Lake Farm upon which she and Mr. Whiteley had resided during his lifetime for $76,500. On 12 April 1984, $33,910.75 of the proceeds from that sale were used to purchase property on Beaver Dam Road near Toney, Alabama, upon which Mrs. Whiteley resided at the time of her death. The remaining $42,589.25 was distributed between two bank accounts at the Bank of Ardmore: $17,589.25 being deposited to the savings account opened in the name of Travis L. Humphries, and $25,000 going to joint checking account number XXXXXXX, which previously had been maintained in the names of Frank W. or Bernice Whiteley, but which obviously had been changed to a joint account upon which Travis L. Humphries also could draft checks at some time that is not established by the evidence. (That conclusion is established by the following fact: On 12 April 1984, Travis Humphries wrote a $12,300 check on the account to purchase 6.27 acres of land next door to his mother's house and land on Beaver Dam Road. Claiming that such acreage was a `gift' from his mother, Travis Humphries built a house on the property and resides there still.)
"More purchases followed, as Travis Humphries wrote several checks during the next few months. Among such purchases were the following:
"In addition to the foregoing, Bernice Whiteley also spent at least $2,000 for the purchase and moving of a house trailer, to permit Gwinnette Meyers and her family to live nearby. An additional $915 was expended by Mrs. Whiteley for installation of a septic tank for the trailer. Gwinnette Meyers continues to reside in that house trailer.
"On the other hand, Travis Humphries presented checks drawn on his personal account at the First Alabama Bank, totaling $7,655.31, which allegedly were expenditures on behalf of his mother out of his personal funds.
"Bernice M. Whiteley died on 30 January 1987.
"In accordance with her Last Will and Testament, Mrs. Whiteley's son (Travis Humphries) and Frank Whiteley's son (Bobby Whiteley) were appointed Co-Executors of the estate of Bernice M. Whiteley. That occurred on 6 February 1987.
"Shortly thereafter, on 16 February 1987, Bobby Whiteley wrote a letter to Travis Humphries asking him to account for the assets of the estate of Frank W. Whiteley. That letter, among other demands by defendants, prompted plaintiffs to ask this Court for a declaratory judgment defining the respective rights of the parties.
"Wagar v. Marshburn, 241 Ala. 73, 78-79, 1 So. 2d 303, 307 (1941). See, Schumaker v. Smith, 44 Ala. 454, 4 Am.Rep. 135 (1870). See also, Allen v. Bromberg, 163 Ala. 620, 50 So. 884 (1909); Allen v. Bromberg, 147 Ala. 317, 41 So. 771 (1906). But cf., Walker v. Yarbrough, 200 Ala. 458, 76 So. 390 (1917).
"Defendants produced several decisions from other jurisdictions establishing that the type of instruments executed by the Whiteleys have contractual aspects.
"Indeed, all of the cases cited by defendants are consistent on one point: once the survivor probates the will of the first to die, and accepts the benefits of that will, that person cannot thereafter defeat the purposes of reciprocal wills through inter vivos transfers. Only one exception to that general rule has been noted: good faith transfers or sales of property which are for the purpose of meeting the daily needs and necessities of the surviving spouse are not prohibited.
"Those same cases also demonstrate that, in situations involving instruments similar to those in this case, courts will infer the intent of the parties from the instruments themselves, and, from the circumstances of the case.
"Based upon both the language of the instruments at issue here (leaving the remainder of the estates to the couple's children `in equal shares'), and, the facts established at trial, this Court concludes that Mrs. Bernice Whiteley's substantial inter vivos transfers of property to her own children were unreasonably large, and were not made in good faith (because they were not related to Mrs. Whiteley's daily needs or necessities, but instead were intended to defeat the purpose of the Whiteleys' reciprocal wills). Hence they violated the couple's written agreement, and should be set aside. Wagar v. Marshburn, supra.
(Emphasis original.)
The standard of review applicable to judgments based on ore tenus evidence *102 is well established. "[W]here a trial court has heard ore tenus testimony, as in this case, its judgment based upon that testimony is presumed correct and will be reversed only if, after consideration of the evidence and all reasonable inferences to be drawn therefrom, the judgment is found to be plainly and palpably wrong." McInnis v. Lay, 533 So. 2d 581, 582 (Ala.1988) (citation omitted). Furthermore, "[t]his Court ... will affirm the trial judge's decision if, under any reasonable aspect, it is supported by any credible evidence." Chism v. Hicks, 423 So. 2d 143, 144 (Ala. 1982) (citation omitted) (emphasis added). Finally, "[t]his Court cannot overturn [the] finding[s] of fact by the lower court unless the decision is unsupported by the evidence ... and is plainly and palpably erroneous.... Further, the presumption of correctness exists even though there may be conflicting evidence." Kershaw v. Knox Kershaw, Inc., 523 So. 2d 351, 356 (Ala.1988) (citations omitted) (emphasis added).
The appellants contend that Bernice's gifts to her children, in light of her failing health, were made in good faith because they were given as consideration for her children's caring for her. However, the fact that Bernice's transfers were made so quickly after her husband's death casts doubt on the bona fide nature of those transfers. The trial court heard all of the facts regarding the intent of the parties, the purpose of Bernice's transfers to her children, and the good faith of the parties, and it concluded, based on that evidence, that Bernice's gifts were not made in good faith.
Because there is "credible evidence" from the record to support the trial judge's findings and because we find that he correctly applied the law to those findings, his judgment is affirmed.
AFFIRMED.
JONES, ALMON, SHORES and HOUSTON, JJ., concur.
HORNSBY, C.J., and MADDOX and KENNEDY, JJ., dissent.
MADDOX, Justice (dissenting).
This appeal requires the Court to apply the law concerning reciprocal wills made by a husband and wife, each of whom had children by a former marriage and whose children were made beneficiaries of the estate of the surviving party. The trial judge found that the surviving spouse had violated the provisions of the reciprocal will by making inter vivos transfers to her own children to the exclusion of her stepchildren. I believe that the trial judge erred, and I would reverse.
Frank and Bernice Whiteley both had children from previous marriages; they executed reciprocal wills that contained the following clauses:
Bernice's will also contained the following:
Frank's will also had a similar provision to leave all his property to all their children equally in the event that Bernice died first. Frank died first, and Bernice took title to *103 all their property and began making gifts to her children.[1]
The trial judge made the following conclusions in his order:
When the trier of fact has the task of construing a will or a provision thereof, it must endeavor to ensure that the intent of the testator is effectuated. Bullard v. Lee, 470 So. 2d 1197, 1198 (Ala.1985). "The polestar to guide a court in the construction of a will is the intent of the testator and that intent should be determined by considering the instrument as a whole and not by construing any subpart separately." McLean v. Brasfield, 460 So. 2d 153, 155 (Ala.1984). It is the intent of the testator "which controls the construction of a will, and such intention is to be arrived at by reference to the entire document, read in light of the circumstances under which the will was written." Crippled Children's Foundation v. Cunningham, 346 So. 2d 409, 410 (Ala.1977). As this Court stated in Black v. Black, 286 Ala. 233, 238, 238 So. 2d 861, 865 (1970):
After reviewing the record, I believe that the trial court erred in determining that Bernice's gifts should be set aside. While the statements of law that the trial judge based his decision upon are correct, the wills in question do not fit the law stated. It is obvious that the trial judge based his decision upon his interpretation of a single section of the wills when he stated that the Whiteleys left "the remainder of the estates to the couple's children `in equal shares.'" (Emphasis added.) However, the wills do not say that the survivor will leave the remainder of the joint estates to all the children equally; they say "in the event my said spouse shall predecease me, then in such event I give, devise and bequeath all my estate ... [to the children] in equal shares, share and share alike." (Emphasis added). The trial court was correct that Bernice was contractually bound not to revoke or defeat her will, but her will did not say that she would preserve the joint estate and pass it on to the children equally; it said that she would pass her estate to the children equally, and this was done.
To construe the wills as the trial court did has the effect of holding that Frank left his estate to Bernice only for her to preserve it for their children, and that conclusion is defeated by the language in Frank's will that left his estate to Bernice in "absolute fee simple." He could have left her a life estate or he could have limited her ability to deplete his estate if that had been his intent.
*104 The lawyer who drafted these wills testified that he discussed a number of options with the Whiteleys, that they expressed the desire to have all the deceased spouse's property pass to the other, that they did not want to restrict the right of the survivor to use the property in any manner the survivor wanted, and that they specifically rejected the option of using testamentary trusts or life estates. Both of the Whiteleys were in poor health when these wills were executed, and they expressed the desire that the survivor not be encumbered, especially in regard to the sale of any real estate. While the Whiteleys also expressed a desire to have all the children share equally in what was left after both of them died, they specifically told the lawyer that they wanted the survivor to have complete control over the property despite his warnings that the survivor could deplete the estate under these wills.
Furthermore, the majority's blanket approval of the trial court's decision means that Bernice's children will have to pay back moneys and return gifts that were made to them in return for their care of their mother. The trial court never took into account the facts that Bernice's children cared for her and provided for her needs and that some of the moneys given to Bernice's son were paid back. Thus, the holding of the majority is clearly inequitable. I do not see how the gifts, such as a fairly inexpensive house trailer, furniture, and a septic system to Bernice's daughter, could be only an improper device to circumvent the reciprocal wills. The daughter moved all the way from Houston, Texas, with her family, in order to care for her ailing mother, and the majority says that the living provisions that the mother made for the daughter in return were improper and were designed only for circumventing the wills. Such a conclusion is baffling, to say the least.
I must dissent.
HORNSBY, C.J., concurs.
[1] These gifts included cash, furniture, real estate, a mobile home, the installation of a septic tank, and half the payments on an automobile. The trial court determined that the total value of these gifts was over $50,000. However, there was ample evidence that these gifts were in return for her children's taking care of her. There was testimony that Bernice had had asthma, bronchitis, crippling arthritis, a heart condition, emphysema, and high blood pressure, and that she took 27 different kinds of medicine. Bernice's daughter moved from Houston, Texas, in order to care for her mother, and Bernice provided the trailer next door for her daughter to live in while tending to her mother. There was also testimony that some of the gifts were repaid by Bernice's son and that he also paid for some of his mother's debts from his own money.
The trial judge did not take into account the son's payments or the need for Bernice to be cared for when he made his calculations of how much the gifts were. | April 6, 1990 |
3891561e-66f5-4b45-87f9-0d42fdd339b7 | Underwood v. Adamson Ford, Inc. | 564 So. 2d 51 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 51 (1990)
Betty J. UNDERWOOD and Josephus Underwood
v.
ADAMSON FORD, INC., and Mike Baker.
89-252.
Supreme Court of Alabama.
May 4, 1990.
Carl E. Chamblee, Sr., Birmingham, for appellants.
William A. Ratliff and Timothy S. Ritchie of Wallace, Brooke & Byers, Birmingham, for appellees.
SHORES, Justice.
This appeal arises out of a fraud action filed by Betty J. and Josephus Underwood against Adamson Ford, Inc., and its sales man Mike Baker, who sold them an automobile that the Underwoods say they believed to be new. The defendants moved for partial summary judgment on the issue of whether they had misrepresented that the automobile was new. The trial court granted the motion and made the judgment final pursuant to Rule 54(b), A.R.Civ.P. This appeal followed.
On September 30, 1986, Flora Lawler contacted Mike Baker at Adamson Ford, Inc., in Birmingham, about purchasing an *52 automobile. She entered into a conditional sales contract with Adamson Ford to purchase a red 1986 Ford Escort. One of the documents Ms. Lawler signed on that date provided that the purchase of the automobile was conditioned on a certain finance company's approval of a loan to Ms. Lawler. That agreement also stated:
The odometer disclosure form completed on September 30 showed that the Escort had been driven eight miles. Ms. Lawler kept the car until October 3, 1986, when Mr. Baker telephoned to tell her that her loan had not been approved. Ms. Lawler returned the Escort to Adamson Ford that day. Although the testimony about the exact number of miles Ms. Lawler drove the car is unclear, it appears certain that she drove fewer than 100 miles. Ms. Lawler did not receive a bill of sale for the Escort, and Adamson Ford did not file an application for title in her name with the Alabama Department of Revenue.
On November 22, 1986, Betty and Josephus Underwood contacted Mr. Baker about purchasing a new, red automobile with an automatic transmission. Mr. Baker showed them the red Escort that Ms. Lawler had previously attempted to purchase. At that time, the vehicle had been driven 491 miles, according to Mrs. Underwood's deposition testimony. Mrs. Underwood testified that when she questioned why a new car had been driven so many miles, Mr. Baker told her that Adamson Ford had received it in trade from an Atlanta dealer and that the Escort had been driven to Birmingham from Atlanta.
The Underwoods decided to purchase the Escort. They signed numerous documents before leaving the dealership, including an application for title that indicated that the Escort was new, a disclosure form indicating an odometer reading of 491 miles, and a conditional purchase agreement like the one Ms. Lawler had signed, stating that the sale would not be consummated until the Underwoods' financing was approved.
A few days after the Underwoods purchased the Escort, Mrs. Underwood found inside the car the documents Lawler had signed when she attempted to purchase it a few weeks earlier. Mrs. Underwood testified that she telephoned Adamson Ford and asked Mr. Baker to explain again why the Escort had been driven so many miles and that he again said that the Escort had been traded for a vehicle in Atlanta. Mrs. Underwood stated that Mr. Baker assured her that the Escort was new and that no one else had signed papers relating to it. Later, when Adamson Ford employee Price Hollis learned that Mrs. Underwood had Ms. Lawler's documents, he told her that the Escort was still "new" because Ms. Lawler had not received title to the vehicle.
The Underwoods filed suit against Mr. Baker and Adamson Ford on July 8, 1987, claiming damages for fraud. They alleged that before the sale the defendants had represented that the Escort was new and that the odometer registered 491 miles because the car had been driven from a dealership in Atlanta. The Underwoods asserted that the defendants' representations were false and that they had relied on the representations in purchasing the automobile. They demanded $500,000 as compensatory and punitive damages.
On September 14, 1989, the defendants filed a motion for partial summary judgment only on the issue of whether their representation that the Escort the plaintiffs purchased was new was a false representation. The motion was based on the pleadings and all discovery, including the depositions of the Underwoods and Ms. Lawler. The plaintiffs filed objections to the defendants' motion and attached their affidavits, in which they stated that they *53 would not have purchased that Escort if they had known that it had been "given over to Flora Lawler" previously. The trial court granted the defendants' motion and entered a partial summary judgment, relying on this Court's decision in Ivey Corp. v. Yates, 516 So. 2d 558 (Ala.1987).[1]
On appeal, the Underwoods argue that a close reading of Ivey Corp. v. Yates establishes that the trial court reached the wrong result, and that this case presents a question for a jury to resolve regarding whether the defendants' representations that the Escort was "new" constituted actionable fraud. They also contend that Baker deliberately misrepresented that the Escort had been received from an Atlanta dealer and that the misrepresentation caused them to suffer emotional injuries for which they should receive redress.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. For a claim of misrepresentation to go to a jury, a plaintiff must put forth evidence of each element of fraud that there was 1) a false representation 2) concerning a material fact 3) relied upon by the plaintiff, 4) who must, as a proximate result of the misrepresentation, have sustained damages. Bank of Red Bay v. King, 482 So. 2d 274, 281 (Ala.1985).
The facts in Ivey Corp. v. Yates, supra, upon which the trial court relied, are as follows: The plaintiffs, Mr. and Mrs. Yates, wanted to purchase a new automobile from Toyota of Anniston. (Toyota of Anniston was the trade name of Ivy Corporation.) At the time of purchase, the car they selected had 942 miles on the odometer. Upon inquiry from Mrs. Yates, the dealer told her that the mileage was attributable to other customers' test drives. The Yateses later discovered that the owner's manual for the car listed Cedrick Farrior as the owner. The president of Toyota of Anniston then explained to the Yateses that Mr. Farrior had attempted to purchase the car and had taken it home on approval, but that the sale had failed for lack of financing. Mr. Farrior had signed a retail installment sales contract, an odometer mileage statement, and an application for certificate of title, but none of these was filed by Toyota of Anniston. Mr. Farrior did not acquire title to the car. Mrs. Yates sued Ivy Corporation for fraud in representing that the vehicle was "new" when, in her estimation, it was actually "used." The case proceeded to trial and the jury returned a general verdict in favor of Mrs. Yates and awarded damages of $40,000. Ivy Corporation's motion for a JNOV was denied; on appeal the judgment was reversed. This Court determined that because Ivy Corporation did not accept Mr. Farrior's application for credit, file the application for title, or deliver a bill of sale to Mr. Farrior, and because Mr. Farrior did not keep the car, no "sale" occurred. We stated that the negotiations with Mr. Farrior did not constitute a sale and that they were not a material fact that needed to be disclosed to Mrs. Yates. We further held that "[b]ecause the car had not been sold to Mr. Farrior and because its status as a new car was not otherwise in question," there was insufficient evidence of misrepresentation in the sale, so the motion for a JNOV should have been granted. 516 So. 2d at 560.
The trial court here correctly relied on Yates and entered a judgment in favor of the defendants on the issue of whether they misrepresented that the Escort was a "new" car. In spite of the Underwoods' efforts to distinguish the cases, we find the relevant facts in this case to be substantially identical to those in Yates. In Yates and in this case, the automobile was sold as "new" and the buyers were not informed of previous negotiations with prospective purchasers that failed to result in a completed sale. As in Yates, we hold here that the preliminary negotiations between Ms. Lawler and the defendants did not constitute a sale and they were not a "material *54 existing fact" that these defendants needed to disclose to the Underwoods. Based on our decision in Yates, we hold that there was no evidence of misrepresentation regarding the "new" status of the Escort the Underwoods purchased.
Based on the foregoing, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and HOUSTON, J., concur.
JONES and KENNEDY, JJ., concur in the result.
[1] Although the style of the case refers to "Ivey" Corporation, the opinion refers to "Ivy" Corporation. | May 4, 1990 |
26458ce6-3042-4795-bd6f-fd10634eb75a | Bailey v. Bruno's, Inc. | 561 So. 2d 509 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 509 (1990)
Dorothy M. BAILEY, et al.
v.
BRUNO'S, INC.
88-694.
Supreme Court of Alabama.
March 30, 1990.
Stanley B. Sikes of Sikes & Kelly and Charles H. Morris III, Selma, for appellants.
W. H. Brittain II of Ball, Ball, Matthews & Novak, Montgomery, for appellee.
ALMON, Justice.
This is an appeal from a summary judgment entered against the plaintiffs, Dorothy and Hiram Bailey, in an action against Bruno's, Inc. ("Bruno's").
At approximately 7:45 p.m., on February 14, 1987, Dorothy Bailey was leaving the Food World supermarket in Selma after purchasing groceries. She was accompanied by her two young granddaughters. Bailey reached her automobile and was unlocking the door when she was assaulted by a man armed with a pistol. The man demanded her purse, and when she refused he began to hit her on the head with the barrel of his pistol. She fell to her knees, momentarily losing consciousness, and the man fled with her purse. Bailey was then carried into the supermarket by some Food World employees. Paramedics were summoned, and she was transported to the Selma Medical Center.
On December 9, 1987, Bailey and her husband filed a complaint against Bruno's, the corporation that owns the Food World supermarket in Selma. The Baileys' complaint alleged that, prior to the assault on Ms. Bailey, there had been "[r]epeated incidents of criminal activity in the parking lot" of the Food World supermarket in Selma, and that Bruno's had a duty to either protect its patrons or provide adequate warnings of any potential risk of harm to its patrons. The Baileys alleged that Bruno's had negligently or wantonly failed to provide such protection or warnings and that as a proximate result of that *510 failure Ms. Bailey had been assaulted and injured. Mr. Bailey claimed damages for the loss of his wife's companionship, consortium, and services.
Although this Court has recognized that a duty may be imposed on a business owner to take reasonable precautions to protect invitees from criminal attack, that duty has been imposed only when the business owner possessed actual or constructive knowledge that criminal activity that could endanger an invitee was a probability. Williams v. First Alabama Bank, 545 So. 2d 26, 27 (Ala.1989); Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208, 1212 (Ala.1988); Childers v. Winn-Dixie Stores, Inc., 514 So. 2d 879, 880 (Ala.1987); Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1371 (Ala.1986); Law v. Omelette Shop, Inc., 481 So. 2d 370, 371 (Ala.1985); Ortell v. Spencer Companies, Inc., 477 So. 2d 299 (Ala.1985); Henley v. Pizitz Realty Co., 456 So. 2d 272, 277 (Ala.1984). The requirement that the business owner possess such knowledge is based on this Court's reluctance to impose liability on one party for an intentional criminal act committed by another party. CIE Service Corp. v. Smith, 460 So. 2d 1244, 1247 (Ala.1984).
A recent decision imposing a duty to protect an invitee was Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208 (Ala.1989). In Nail, two competing produce retailers at a farmer's market had been feuding over one retailer's refusal to vacate his leased space. The operators of the market were aware of the growing hostility between the retailers and had hired an extra security guard to patrol the area occupied by those retailers. Nail, supra, at 1212-13. The security guard became ill and left work and was not replaced by another guard by the market operators, contrary to the market's usual procedure. On that date a shoot-out occurred, and one of the retailers and a market employee were injured. Nail, supra, at 1210. This Court held that the plaintiffs in Nail produced sufficient evidence that the market operators knew, or should have known, that there was a probability of conduct by third persons that would endanger the plaintiffs. Nail, supra, at 1212. That knowledge was evidenced by the fact that the operators knew that feuding was occurring, knew who the participants were, knew why the hostility was mounting, and had been warned on more than one occasion of the possibility of violence. In addition, this Court found that the market operators, by hiring an extra security guard, had assumed a duty to exercise reasonable care to protect their invitees from the specific act of violence that occurred. Nail, supra, at 1212.
In the instant case, the evidence showed an increase in the amount of criminal activity in the area around the Food World supermarket. There was also evidence that the manager of the supermarket had been negotiating with off-duty Selma police officers for the purpose of getting them to work as security guards. In addition, there was evidence indicating that there had been an increase in the amount of shoplifting in the store. The plaintiffs also submitted a number of incident reports filled out by officers of the Selma Police Department. Those reports show that the following instances occurred either at the supermarket, in its parking lot, or in the parking lot of the adjacent Big B drugstore in the period between May 1985 and February 1987, when Dorothy Bailey was assaulted:
1. (5) Robbery;
2. (1) Shoplifting;
3. (1) Assault; and
4. (1) Kidnapping, rape.
This Court has held that a large volume of crime in the area surrounding a business owner's premises, or on the premises themselves, does not, by itself, impose a duty on a business owner to provide protection against criminal attack. Law, supra, 481 So. 2d at 372; Ortell, supra, 477 So. 2d at 300. In Ortell, a female customer was assaulted by an armed robber after she entered a convenience store during a robbery. The plaintiff sued the storeowner for damages based on its failure to protect her from that attack. Evidence showed that during the three-year period preceding *511 the assault, eight incidents of assault, theft, robbery, or burglary had occurred on the premises. Furthermore, during the same period, over 80 separate criminal incidents had occurred within a two-block area surrounding the store. This Court held that these occurrences did not, alone, impose a duty on the storeowner to protect the plaintiff from attack. Ortell, supra, at 300.
Bailey also argues that the fact that the manager of Food World had negotiated with off-duty Selma police officers in an attempt to secure their services as security guards indicates that Bruno's had knowledge of the risk of criminal attack. This Court has repeatedly rejected the argument that the presence of security guards or security systems gives rise to an inference that the business owners foresaw the possibility of criminal activity on the part of third persons. Moye, supra, 499 So. 2d at 1373; Henley, supra, 456 So.2d at 276-77; Latham v. Aronov Realty Co., 435 So. 2d 209, 211-13 (Ala.1983). We therefore cannot logically permit mere negotiations for security guards to give rise to that inference.
In Henley supra, this Court held that a determination as to the existence of a duty to protect hinges on the foreseeability of the particular criminal conduct that harmed the plaintiff. Henley, supra, 456 So. 2d at 277. In Henley, this Court quoted the Tennessee Supreme Court, with approval:
"`In our opinion the appropriate rule applicable to this case is as follows: There is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers, generally, whose mode of operation of their premises does not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or [are] about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such act arises.'"
Henley, supra, at 276-77 (quoting Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975)).
The police records submitted to the trial court revealed only seven incidences of violence or threats of violence in the 21-month period preceding the assault on Ms. Bailey. It should be noted that that earlier assault occurred inside the store, not in the parking lot. The volume of crime indicated by the reports and other evidence does not approach the volume present in Ortell, supra, where this Court found no duty. In addition, the evidence presented to the trial court did not indicate that the defendant had reason to know that acts were occurring or were about to occur on the premises that posed an imminent probability of harm to Dorothy Bailey or any other invitee. Unlike the defendants in Nail, supra, Bruno's did not have the sort of specialized knowledge that gives rise to a duty to protect. Therefore, the trial court's judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and STEAGALL, JJ., concur. | March 30, 1990 |
0248c959-30a9-46f3-8c86-689c23033be9 | Lambeth v. State | 562 So. 2d 575 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 575 (1990)
Ex parte State of Alabama.
(Re Farrell Lewis LAMBETH v. STATE.)
88-1078.
Supreme Court of Alabama.
March 30, 1990.
*576 T. Jefferson Deen III and W. Lloyd Copeland of Clark, Deen & Copeland, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
The State filed this petition for writ of certiorari to have this Court reverse the judgment of the Court of Criminal Appeals in Lambeth v. State, 562 So. 2d 573 (Ala. Crim.App.1989). The Court of Criminal Appeals reversed Farrell Lewis Lambeth's conviction for the unlawful selling, furnishing, or giving away of cocaine in violation of Ala.Code, 1975 § 20-2-70, and remanded the case to the circuit court. We granted the writ to address the State's argument that the Court of Criminal Appeals' holding effectively prohibits the State from attempting to disprove the defense's theory of entrapment.
Deputy Jim Long, a narcotics officer of the Mobile County Sheriff's Department, instructed Jerri Scott, an undercover operative, to make a "drug buy" at the Sports Event club. During the evening of September 24, 1986, Scott met the defendant, but she did not purchase any drugs that night. She claims that the next night the defendant left the club and purchased some cocaine for her.
The defendant visited the club three to five times a week to meet friends, play pool, or listen to the band. He testified that he "slow danced" with Scott's friend and that when Scott asked if he could get her some cocaine he replied that he could not. He further stated that she leaned over and placed her left hand on his right thigh. The defendant said that he then saw an acquaintance who was rumored to sell drugs and that he told Scott that he would talk to someone about getting her some cocaine.
The defendant left with his acquaintance to pick up the cocaine. Scott went outside with him, where she gave him $100 for the cocaine, and she told him she would be back to party after she had picked up her friend.
*577 During the presentation of the prosecution's evidence, Deputy Long, the officer in charge of the investigation, was asked the following question:
Defense counsel objected. The trial court overruled defense counsel's objection and allowed Deputy Long to answer:
Defense counsel renewed his objection on the basis that the response was prejudicial and was hearsay. The trial court again overruled the objection and allowed Deputy Long to complete his answer:
During cross-examination the prosecutor asked the defendant the following question:
Again, defense counsel's objections to this testimony were overruled.
Finally, during closing argument, the prosecution made the following statements:
Defense counsel's objection to the prosecution's arguments as hearsay was overruled. The prosecution then stated:
Defense counsel moved for a mistrial, which was denied.
The defendant argued that the trial court improperly allowed the prosecutor to elicit testimony from a law enforcement officer that, prior to the offense charged, he had received information that drugs were being sold at the Sports Event club. Although the testimony of a law enforcement officer concerning information received from another source is generally admissible when it is offered to provide some explanation for the officer's subsequent actions and not to prove the truth of the matter asserted,[1] the Court of Criminal Appeals held that because of the repeated references by the prosecution to these facts, the evidence was highly prejudicial and could have unlawfully influenced the jury's verdict. Lambeth v. State, 562 So. 2d 573 (Ala.Crim. App.1989).
While we agree with the reasoning of the Court of Criminal Appeals, we find that the judgment was properly reversed and the case properly remanded for a new trial for a more fundamental and compelling reason. Our discussion begins with a review of the law regarding the defense of entrapment.
The entrapment defense was first recognized by the United States Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932). Sorrells and two other Supreme Court cases establish that entrapment occurs "when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Sorrells, 287 U.S. at 442, 53 S. Ct. at 213; United States v. Russell, 411 U.S. 423, 429, 93 S. Ct. 1637, 1641, 36 L. Ed. 2d 366 (1973); Sherman v. United States, 356 *578 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958); Chillous v. State, 441 So. 2d 1055 (Ala. Crim.App.1983).
When a defendant raises an entrapment defense, he must initially come forward with evidence that the governmental conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it. Pierce v. United States, 414 F.2d 163, 168 (5th Cir.), cert. denied, 396 U.S. 960, 90 S. Ct. 435, 24 L. Ed. 2d 425 (1969). Once the defendant has carried this burden, the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. United States v. Gomez-Rojas, 507 F.2d 1213 (5th Cir.), cert. denied, 423 U.S. 826, 96 S. Ct. 41, 46 L. Ed. 2d 42 (1975).
Consequently, the focal point of inquiry in entrapment cases is the predisposition of the defendant. United States v. Webster, 649 F.2d 346, 348 (5th Cir.1981). Being "predisposed" means being "presently ready and willing to commit the crime," and it has been further held:
Chillous, 441 So. 2d at 1057 (quoting United States v. Burkley, 591 F.2d 903 (D.C. Cir.1978), cert. denied, 440 U.S. 966, 99 S. Ct. 1516, 59 L. Ed. 2d 782 (1979), and United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir.1983)).
In addition, the defense of entrapment is not available to a defendant who denies that he committed the offense charged. McCarroll v. State, 294 Ala. 87, 312 So. 2d 382 (1975); Brown v. State, 488 So. 2d 16 (Ala.Crim.App.1986); Jackson v. State, 384 So. 2d 134 (Ala.Crim.App.1979), writ quashed, 384 So. 2d 140 (Ala.1980). See also Annot., Availability in State Court of Defense of Entrapment When Accused Denies Committing Acts Which Constitute Offense Charged, 5 A.L.R.4th 1128 (1981). The entrapment defense rests on the defendant's admitting the deed but denying the thought. McCarroll v. State, 294 Ala. 87, 312 So. 2d 382 (1975); Lindsay v. State, 41 Ala.App. 85, 125 So. 2d 716 (1960), cert. denied, 366 U.S. 933, 81 S. Ct. 1656, 6 L. Ed. 2d 392 (1961).
We now address the issue of whether hearsay evidence can be admitted to establish predisposition when the defendant has raised the defense of entrapment. Some jurisdictions allow hearsay and reputation evidence to be admitted to establish predisposition. See United States v. Hawke, 505 F.2d 817 (10th Cir. 1974), cert. denied, 420 U.S. 978, 95 S. Ct. 1404, 43 L. Ed. 2d 658 (1975); State v. Talbot, 135 N.J.Super. 500, 343 A.2d 777 (1975), aff'd on other grounds, 71 N.J. 160, 364 A.2d 9 (1976). However, a substantial number of jurisdictions refuse to permit reputation or hearsay evidence to establish predisposition. See United States v. Richardson, 764 F.2d 1514 (11th Cir.), cert. denied, 474 U.S. 952, 106 S. Ct. 320, 88 L. Ed. 2d 303 (1985); United States v. Hunt, 749 F.2d 1078 (4th Cir.1984), cert. denied, 472 U.S. 1018, 105 S. Ct. 3479, 87 L. Ed. 2d 614 (1985); United States v. Webster, 649 F.2d 346 (5th Cir.1981) (en banc); United States v. McClain, 531 F.2d 431 (9th Cir.), cert. denied, 429 U.S. 835, 97 S. Ct. 102, 50 L. Ed. 2d 101 (1976); United States v. Ambrose, 483 F.2d 742 (6th Cir.1973); United States v. Johnston, 426 F.2d 112 (7th Cir.1970); United States v. Catanzaro, 407 F.2d 998 (3d Cir.1969); Whiting v. United States, 296 F.2d 512 (1st Cir.1961); Bauer v. State, 528 So. 2d 6 (Fla.Dist.Ct.App.1988); Bowser v. State, 50 Md.App. 363, 439 A.2d 1 (1981); State v. Jones, 416 A.2d 676 (R.I.1980); Price v. State, 397 N.E.2d 1043 (Ind.App. 1979); State v. Cox, 110 Ariz. 603, 522 P.2d 29 (1974).
The State argues that once the entrapment defense is raised, the usual evidentiary rules are discarded and the prosecutor may admit evidence generally barred as hearsay or as being more prejudicial than probative. In its brief the State relies *579 heavily on the case of United States v. Dickens, 524 F.2d 441 (5th Cir.1975), cert. denied, 425 U.S. 994, 96 S. Ct. 2208, 48 L. Ed. 2d 819 (1976). That case admitted hearsay evidence to prove predisposition where the entrapment defense had been raised. However, in United States v. Webster, 649 F.2d 346, 350 (5th Cir.1981), an en banc court overruled the case relied on by the State and an entire line of cases that had admitted hearsay evidence to prove predisposition. Prior to Webster, the Court of Appeals for the Fifth Circuit had for some time permitted the Government to introduce hearsay as proof of the defendant's predisposition.
In Webster, statements were made by an informant to a law enforcement officer about specific instances in which the defendant engaged in criminal activities. The Webster court stated:
649 F.2d at 350 (footnotes omitted).
We agree with the rationale of the Webster court.[2] We can find no justification for the proposition that where the predisposition of the defendant is in issue, traditional hearsay rules are thrown out the window. There is no legitimate basis why the rules of evidence should be bent or broken simply because the defendant raises the defense of entrapment.
We recognize that the Webster case dealt with reputation and hearsay evidence about the defendant. The hearsay evidence admitted in the instant case related to the reputation of the club where the defendant was arrested. We see no difference in the prejudicial effect of the two patterns of hearsay.
Our holding will not, as the State argues, prohibit prosecutors from "disproving the defense's theory of entrapment." The State may prove predisposition by using various common methods. Among the most common are proof of prior convictions for similar offenses and evidence of similar criminal acts committed by the accused. Brown v. State, 392 So. 2d 1248, 1258 (Ala. Crim.App.1980), cert. denied, 392 So. 2d 1266 (Ala.1981). See also Annot., Admissibility of Evidence of Other Offenses in Rebuttal of Defense of Entrapment, 61 A.L.R.3d 293 (1975).
We hold, therefore, that when an accused has raised the defense of entrapment, hearsay is admissible to prove predisposition only according to the customary rules of evidence. For the foregoing reasons, the judgment of the Court of Criminal Appeals is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, ALMON and SHORES, JJ., concur.
MADDOX, HOUSTON and KENNEDY, JJ., concur in the result.
[1] See Molina v. State, 533 So. 2d 701 (Ala.Crim. App.1988), cert. denied, ___ U.S. ___, 109 S. Ct. 1547, 103 L. Ed. 2d 851 (1989); Clontz v. State, 531 So. 2d 60 (Ala.Crim.App.1988); Petite v. State, 520 So. 2d 207 (Ala.Crim.App.1987); Clark v. City of Montgomery, 497 So. 2d 1140 (Ala. Crim.App.1986); Adams v. State, 459 So. 2d 999 (Ala.Crim.App.1984); Dent v. State, 423 So. 2d 327 (Ala.Crim.App.1982);
[2] To the extent that the Court of Criminal Appeals' cases of Sullivan v. State, 527 So. 2d 775 (Ala.Crim.App.1988), and Jackson v. State, 384 So. 2d 134 (Ala.Crim.App.1979), writ quashed, 384 So. 2d 140 (Ala.1980), are inconsistent with our holding today, they are expressly overruled. | March 30, 1990 |
8051b7c2-a90f-449b-b662-61d257fd3a73 | AmSouth Bank, NA v. Martin | 559 So. 2d 1058 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 1058 (1990)
AmSOUTH BANK, N.A.
v.
Frank MARTIN and Clark Harris.
88-1397.
Supreme Court of Alabama.
March 9, 1990.
*1059 A. Danner Frazer, Jr. of Armbrecht, Jackson, DeMouy, Crow, Holmes & Reeves, Mobile, for appellant.
E.E. Ball and Richard M. Kemmer, Jr. of Ball and Kemmer, Bay Minette, for appellees.
SHORES, Justice.
This appeal arises out of a suit seeking reimbursement for payment made on a letter of credit. A jury determined that the plaintiff (issuer) was not entitled to reimbursement, and assessed damages against it for losses the defendants (account customers) allegedly suffered as a result of the issuer's payment to the beneficiary under the terms of the letter of credit. The issuer's motion for a judgment notwithstanding the verdict or a new trial was denied, and this appeal followed. We reverse and remand with instructions.
On May 23, 1984, Joseph and Sally McCarron leased property known as the Gulf Gate Lodge to Peter Blalock, Frank Martin, and Clark Harris. (Some documents in the record indicate that the lease was signed on May 21.) The lease provided for an initial term of three years, with an option to renew, and rent for the entire term was $180,000, payable in monthly installments *1060 of $5,000 each. In the lease, the lessees agreed to provide an irrevocable letter of credit in the sum of $30,000 for a minimum term of 38 months; the letter of credit was to provide that if a monthly rent installment was more than 30 days late, or if any other term or condition of the lease was breached by the lessees, the lessors could declare the lease null and void and draw on the letter of credit. Finally, the lease provided that if the lessees violated any of the terms, conditions, or covenants of the lease, the lessors would have the right to terminate the lease, and that, upon their doing so, the letter of credit would become immediately due and payable.
On November 2, 1984, Blalock, Martin, and Harris signed an application for a letter of credit with AmSouth Bank, N.A., the plaintiff herein. By signing the application, Blalock, Martin, and Harris indicated that they agreed to be bound by the terms of the security agreement printed on the application. One of the terms provided that the applicants would reimburse AmSouth for any amount it paid on a sight draft, plus interest and expenses incurred. On November 19, 1984, AmSouth issued the letter of credit to Joe McCarron. Because the details of the letter of credit are important to the resolution of this case, the provisions of the letter of credit are set out below:
The letter of credit was assigned two different numbers and two different expiration dates. On November 24, 1984, Blalock, Martin, and Harris assigned to AmSouth all their rights as lessees under their lease with the McCarrons. AmSouth apparently required this assignment before it agreed to issue the letter of credit in favor of McCarron. The terms of the assignment provided that the lessees would perform all of the duties set forth in the lease and would indemnify AmSouth for any liability arising from the lease.
On November 15, 1985, the McCarrons delivered to the lessees a letter that purported to terminate the lease of Gulf Gate Lodge as a result of the lessees' failure to provide a letter of credit that complied with *1061 the terms set out in the lease, and, particularly, one that extended for a term of at least 38 months. In the letter, the McCarrons further stated that all remaining lease payments were declared accelerated and due to be paid immediately. The lessees did not pay the amounts declared due at that time.
On November 18, 1985, Joseph McCarron asked his attorney, Sam McKerall, to draft the documents he needed to present to AmSouth to draw on the letter of credit. McKerall prepared three sight drafts for $30,000, payable to McCarron; one draft referred to letter of credit # 10910, one draft referred to letter of credit # 10918, and one referred to letter of credit # 10910 and/or # 10918. McKerall also prepared the statement set out below for McCarron's signature:
Finally, McKerall prepared a cover letter for McCarron to deliver to AmSouth, listing the documents that were being presented, and explaining that he referred to two different expiration dates and two different letter of credit numbers in the documents because the original letter of credit drafted by AmSouth referred to the different expiration dates and numbers. The cover letter contained an acknowledgement of receipt, and spaces were provided for the time of receipt and the bank officer's signature.
McCarron presented to AmSouth the draft and the documents McKerall had prepared. AmSouth paid McCarron $30,000 in the form of a cashier's check dated November 25, 1985. The cashier's check referred to letter of credit number "10918(10)." AmSouth apparently was unable to obtain reimbursement from any of the lessees for the monies it paid to McCarron.
On September 2, 1986, AmSouth filed suit against Martin and Harris. Blalock was not named as a defendant. AmSouth alleged that it had paid $30,000 in accordance with the terms of the agreement, and that the defendants had refused to reimburse AmSouth and were in violation of their agreement. AmSouth demanded a judgment in the amount of $30,000, plus interest and attorney fees. The defendants counterclaimed, alleging that AmSouth had negligently or wantonly paid McCarron when it knew or should have known that the conditions of the letter of credit had not been satisfied and that the sum was not due to be paid. They further alleged that as a proximate result of AmSouth's actions, their livelihoods were destroyed, that their credit and reputation in the community were impaired, and that they suffered mental anguish. Each defendant sought $3.5 million in compensatory and punitive damages.
The case was tried before a jury. McCarron testified that on November 18, 1985, the earlier of the two expiration dates listed in the letter of credit, he took the documents needed to draw on the letter of credit to AmSouth in the morning, immediately after he left McKerall's office, and arrived at the bank approximately when it opened. He acknowledged that no one from AmSouth signed the form indicating when the documents were received. McKerall testified that he prepared the documents after McCarron arrived at his office *1062 at approximately 7:00 a.m., and that the documents were presented to AmSouth before 2:00 p.m. on November 18.
Blalock, Harris, and Martin testified that after McCarron delivered the November 15 letter terminating the lease, each of them told representatives of AmSouth that McCarron's allegations of default were not true and instructed AmSouth not to pay on the letter of credit. The lessees also testified that they lost substantial sums of money after the Gulf Gate Lodge closed and that the losses occurred as a result of the events detailed above.
AmSouth moved for summary judgment, which was denied, and then at trial moved for a directed verdict after all of the evidence was presented. The trial court also denied the directed verdict. The case was submitted to the jury in a bifurcated manner. In the first stage, the jury was presented with two interrogatories:
After deliberating, the jury answered each of the interrogatories "No," and the cause continued into the second stage. During the second stage of deliberations, the jury was instructed to determine whether the lease assignment placed a greater duty on AmSouth than AmSouth had under the letter of credit, and, if so, whether the bank met the duty. The court charged the jury that if it determined that AmSouth did not act reasonably in paying the letter of credit, it should return a verdict for the defendants and assess damages. The jury returned verdicts in favor of defendants Harris and Martin and assessed compensatory damages for each defendant in the amount of $45,000. AmSouth's motion for JNOV or a new trial was denied, and this appeal followed.
AmSouth's primary argument is that the trial court erred in denying its motions for a directed verdict or JNOV because, it argues, the issues should have been decided in its favor as a matter of law. The standard of review applicable to a motion for a JNOV is the same standard initially used by a trial court in determining whether to grant or deny a motion for a directed verdict. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala.1988). A JNOV motion is properly granted only when there is an absence of proof on a material issue or when there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law. Id. AmSouth contends that the trial court should not have submitted the interrogatories to the jury because, it argues, neither of the issues presented controverted questions of fact.
First, AmSouth argues that the documents McCarron presented in order to draw on the letter of credit were entirely consistent with the terms set out in the letter of credit; and that the only ambiguities or inconsistencies existed within the letter of credit, not between the letter of credit and the documents McCarron provided. Accordingly, AmSouth argues that it was obligated to pay McCarron on the sight draft.
Letters of credit are used to facilitate commercial transactions by providing the credit of a third party, usually a bank, as an independent guarantee of payment to protect the parties. The certainty of payment is the most important aspect of a letter of credit transaction, and this certainty encourages hesitant parties to enter into transactions, by providing them with a secure source of credit. Leon, Letters of Credit: A Primer, 45 Md.L.Rev. 432 (1986). In a basic transaction, a buyer and a seller enter into a contract for goods. In that agreement, the buyer promises to establish a letter of credit with a bank in the amount of the purchase price. Upon the buyer's application, the bank issues a letter of credit in favor of the seller, promising to *1063 pay the seller when he presents a draft and any documents specified in the letter. When the seller presents the appropriate documents, the bank pays the seller and seeks reimbursement from the buyer, who then takes the documents and retrieves the goods. In this context, the buyer is the "customer," the seller is the "beneficiary," and the bank is the "issuer."
Letter of credit transactions are often governed by statute, and in Alabama a letter of credit is statutorily defined as an engagement by an issuing bank, made at a customer's request, that the issuer will honor drafts or other demands for payment upon compliance by the beneficiary of the credit with the terms specified in the letter of credit. Ala.Code 1975, § 7-5-103(1)(a). Thus, there are two distinct sets of obligations involved in a letter of credit transaction: the agreement between the issuer and the beneficiary is the letter of credit itself, and the agreement between the customer and the beneficiary that calls for the letter of credit is the underlying contract for the goods or services. This Court has stated that the underlying contract between the customer and the beneficiary of the credit is independent of the rights and obligations created by the letter of credit. Citronelle Unit Operators Committee v. AmSouth Bank, N.A., 536 So. 2d 1387 (Ala. 1988). The issuing bank has no obligation, nor is it permitted, to go behind the terms of the letter and the documents required to be presented, and to enter controversies between the beneficiary and the customer for whom the account was opened. Bank of the Southeast v. Jackson, 413 So. 2d 1091 (Ala.1982).
This is consistent with the rules set out in Uniform Customs and Practice for Documentary Credits ("UCP"), which were specifically adopted in the letter of credit in this case. Article 3 provides:
Art. 3, UCP, 1983 Revision, International Chamber of Commerce ("ICC") Pub. No. 400. That document further provides:
"C. Liabilities and responsibilities
"a. If a bank so authorized effects payment, or incurs a deferred payment undertaking, or accepts, or negotiates against documents which appear on their face to be in accordance with terms and conditions of a credit, the party giving such authority shall be bound to reimburse the bank which has effected payment, or incurred a deferred payment undertaking, or has accepted, or negotiated, and to take up the documents.
"b. If, upon receipt of the documents, the issuing bank considers that they appear on their face not to be in accordance with the terms and conditions of the credit, it must determine, on the basis of the documents alone, whether to take up such documents, or to refuse them and claim that they appear on their face not to be in accordance with the terms and conditions of the credit.
"c. The issuing bank shall have a reasonable time in which to examine the documents and to determine as above whether to take up or to refuse the documents."
Arts. 15, 16, UCP, 1983 Revision, ICC Pub. No. 400.
Here, the letter of credit authorized McCarron to draw up to $30,000 upon presentation of a sight draft, the original letter of credit, and two statements certifying that the amount drawn represented monies due on the lease of Gulf Gate Lodge. The record establishes without contradiction *1064 that McCarron provided all of these documents to AmSouth in exactly the manner prescribed in the letter of credit. There are inconsistencies within the letter of credit, in that there are two different expiration dates and two different numbers assigned to the letter of credit. McCarron, however, took these discrepancies into account, referring to both of the numbers assigned to the letter of credit and submitting the documents on November 18, the earlier of the two expiration dates. The only discrepancies here were located within the letter of credit; the documents submitted by McCarron appeared, on their face, to be in exact accordance with the terms and conditions of the letter of credit.
The defendants contend that the documents McCarron submitted were not in compliance with the terms of the letter of credit because, they argue, those documents contained fraudulent assertions of which AmSouth was, or should have been, aware. They argue that McCarron falsely certified that rent payments were due and that AmSouth knew of the falsity because it was an assignee of the lease and because the defendants repeatedly informed AmSouth that they were not in arrears. Therefore, the defendants argue, with knowledge of the fraud in the documents McCarron presented, AmSouth could not recognize those documents as being in compliance with the terms of the letter of credit. These arguments do not constitute a defense to this lawsuit.
The UCP, which governs this dispute, does not refer to a fraud exception to the payment obligations established in a letter of credit. This Court, in other circumstances, has recognized a fraud exception when there is evidence of forgery or fraud in the issuance of the letter or fraud in the underlying transaction for which the letter of credit was issued. See Citronelle Unit Operators Committee. However, a fraud exception has no application here, for several reasons. First, the defendants did not plead or prove the elements of fraud in the trial court. Second, the defendants assert that they were not in arrears when McCarron drew on the letter of credit, but they fail to acknowledge that three days before McCarron submitted the documents to AmSouth, he delivered a letter to the lessees that terminated the lease for failure of the lessees to provide a 38-month letter of credit and that declared all rent payments due. Therefore, at the time McCarron presented the documents, the defendants were in default as to these accelerated payments. Third, Alabama law provides that an issuing bank acting in good faith may honor a draft despite notification from the customer of fraud or forgery not apparent on the face of the documents, but a court may enjoin the bank from honoring the draft. Ala.Code 1975, § 7-5-114(2)(b). As noted above, the documents appeared on their face to comply with the terms of the letter of credit; the lessees' verbal assertions to AmSouth that they were not in arrears did not relieve AmSouth of its obligation to pay the beneficiary, McCarron, according to the terms of the letter of credit. A contrary holding would unjustifiably place AmSouth in the position of determining issues that it had no duty to consider.
In summary, the documents presented by McCarron to AmSouth complied fully with the terms of the letter of credit, and the fraud exception is inapplicable here. The jury's negative answer to the interrogatory addressing this issue is not supported by any evidence.
AmSouth's second argument is that it is entitled to a judgment in its favor because the only evidence presented at trial clearly established that McCarron submitted the required documents before 2:00 p.m. on November 18. Thus, AmSouth contends, since there was no conflicting evidence about the timeliness of the presentation, the issue should not have been submitted to the jury and there is no support for the jury's determination that the documents were submitted late. The defendants respond by asserting that the timeliness of presentation was a jury issue because no bank officer testified about receiving the documents, because the acknowledgement of receipt on McCarron's letter was not *1065 completed, and because AmSouth did not pay on the letter of credit until November 25, seven days after McCarron allegedly submitted the documents.
A jury is not free to ignore the undisputed testimony of unimpeached witnesses and substitute its own conclusions for that testimony. Stinson v. Acme Propane Gas Co., 391 So. 2d 659, 661 (Ala. 1980); Farmers & Ginners Cotton Oil Co. v. Reliance Ins. Co., 341 So. 2d 147, 148 (Ala.1976). Evidence that is not contradicted by direct testimony or circumstances and that is not inherently improbable or unreasonable cannot be arbitrarily or capriciously disregarded, even though the witness is a party or an interested person. 32A C.J.S. Evidence § 1038 at 728-33 (1964).
McCarron and attorney McKerall, who prepared the documents on the morning of November 18, both stated unequivocally that the documents were presented to AmSouth before 2:00 p.m. on November 18. Their testimony was not impeached or called into question on cross-examination. The evidence is not inherently improbable, incredible, or unreasonable, but the defendants contend that the jury was free to disregard it and to infer that the documents were submitted at some other time, for the reasons cited above. We disagree with the defendants.
First, nothing in the letter of credit or the UCP required AmSouth to sign a written acknowledgment of receipt, and the lack of a signature can not necessarily lead to the inference that the documents were presented late rather than on time or early. Second, the UCP allows AmSouth a "reasonable time" to examine the documents and determine whether to pay on the draft. Art. 16c, UCP, 1983 Revision, ICC Pub. No. 400. The defendants contend that it is nonetheless possible to infer that the documents were presented late, because Alabama's version of the Uniform Commercial Code requires a bank to honor a documentary draft within three banking days. Ala. Code 1975, § 7-5-112(1)(a). Even if the more rigid standard of § 7-5-112 is applied to the facts of this case, it does not permit an inference of untimely presentation by McCarron. That statute indicates that the bank may defer payment if the presenter has expressly or impliedly consented to a deferred payment. Ala.Code 1975, § 7-5-112(1)(b). Because McCarron had the option of consenting to the deferred payment, and obviously did so, no inference of untimeliness arises from AmSouth's payment on November 25.
As noted in Woodward Iron Co. v. Goolsby, 242 Ala. 329, 6 So. 2d 11 (1942), "`where the uncontradicted testimony of an unimpeached witness, consistent with the facts actually proven, rebuts a fact resting solely on inference, an inference contrary to this testimony is not permissible.' "(Quoting Equitable Life Assur. Soc. of the United States v. Welch, 239 Ala. 453, 195 So. 554 (1940).) Presented only with uncontradicted testimony that AmSouth received the documents on the morning of November 18, the jury was not free to wholly disregard it and to infer instead that the documents were untimely presented.
The jury's verdict on the two special interrogatories is wholly unsubstantiated by the record evidence. Instead, the record establishes that McCarron presented the documents and demanded payment on November 18; that the documents, on their face, complied with the terms of the letter of credit; and that AmSouth was obligated, after a careful review of the documents, to pay on the draft. We therefore hold that the trial court erred as a matter of law in failing to grant AmSouth's motions for directed verdict and JNOV. Accordingly, we reverse the judgment appealed from and remand the cause for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | March 9, 1990 |
3d18968b-5223-4500-9d73-5a018b367bdb | Woodruff v. Johnson | 560 So. 2d 1040 | N/A | Alabama | Alabama Supreme Court | 560 So. 2d 1040 (1990)
James WOODRUFF
v.
Edlee JOHNSON.
88-1361.
Supreme Court of Alabama.
March 9, 1990.
*1041 Robert H. Turner, Marion, for appellant.
Frank R. Farish, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a judgment entered on a $25,000 jury verdict in a breach of contract action. The defendant contends that the judgment must be reversed due to the trial court's failure to grant his motion for a directed verdict or a judgment notwithstanding the verdict. We affirm.
In February 1985, Edlee Johnson contacted a home builder, James Woodruff, and inquired whether he could build a new house for her. After examining house plans and discussing Johnson's housing needs, Woodruff and Johnson agreed that Woodruff would build a four-bedroom, three-bath house for $80,000, and they entered into a written contract. Johnson testified that she paid $80,000 to Woodruff for the house.
Johnson moved into the house when the construction was nearly completed, and upon doing so discovered numerous deficiencies. Some of the major deficiencies Johnson cited to the court include the following: chipped exterior bricks; a 10½ inch crawlspace instead of the 24-inch crawlspace provided for in the building plans; rainwater falls into the fireplace and wind blows smoke from the fireplace into the house; the windows do not close completely; there was a leak in one of the bathrooms; and the wallpaper is peeling away from the walls. Johnson testified about several other problems with the house, and stated that, although she telephoned Woodruff's office three or four dozen times, he failed to correct the problems. An architectural engineer inspected Johnson's house and testified at trial about the repairs that needed to be made and about the estimated costs of these repairs.
On January 8, 1987, Johnson sued Woodruff, alleging breach of contract and fraud. Johnson also named the supplier of the exterior brick as a defendant, but she settled with that defendant before trial. After Johnson presented her evidence, Woodruff moved for a directed verdict on both counts. The trial court directed a verdict on the fraud count only. After hearing all of the evidence, the jury returned a $25,000 verdict in favor of Johnson on the breach of contract claim. Woodruff filed a motion for new trial or, in the alternative, for a judgment notwithstanding the verdict (JNOV). The trial court denied the motion, and Woodruff appealed.
Woodruff raises only one issue on appeal, and that is whether the trial court erred in denying his motion for a directed verdict on the breach of contract count. He claims that the directed verdict was due to be granted because Johnson had failed to plead or prove that she performed her obligations under the contract.
A directed verdict is properly granted only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact for the jury's determination. Timmerman v. Fitts, 514 So. 2d 907, 910 (Ala.1987). Upon review of a motion for a directed verdict or a JNOV, evidence must be viewed in the light most favorable to the nonmoving party, and if reasonable inferences in favor of the plaintiff's claim can be drawn from the evidence, the motion must be denied. Zaharavich v. Clingerman, 529 So. 2d 978, 980 (Ala.1988).
Based on our review of the record, we hold that Woodruff's motion for a directed verdict on the breach of contract count was properly denied because Johnson pleaded and offered evidence of payment of the contract price of $80,000, and offered evidence from which the jury could conclude that the defendant breached the contract to build the house according to the plans and specifications. Thus, contrary to Woodruff's assertion, the record was not barren of any allegation or evidence of Johnson's performance of her contractual duty to pay, and the breach of contract issue was properly submitted to the jury. The judgment *1042 of the circuit court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | March 9, 1990 |
cddd22d8-27c8-40c4-b667-602f3c6ac182 | Sintz v. Stone | 562 So. 2d 228 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 228 (1990)
Pete SINTZ, as executor of the Estate of John Woodson Stone, Jr., deceased,
v.
Helen Lucylle STONE.
88-1088.
Supreme Court of Alabama.
March 23, 1990.
Leon G. Duke, Jr. and Frank G. Taylor of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellant.
David P. Broome of McDonough & Broome, Mobile, for appellee.
KENNEDY, Justice.
The executor of the estate of John Woodson Stone, Jr. ("the Estate"), appeals from a judgment setting aside certain transfers of real property and vesting title in the appellee, Helen Lucylle Stone. We reverse and remand.
The issue is whether a transfer of real property by deed made in contemplation of divorce is valid although the divorce was never obtained.
John Woodson Stone, Jr., and Helen Lucylle Stone were married in November 1970. During the marriage, the couple acquired four parcels of real property, which they held jointly with the right of survivorship. In September 1985, in contemplation of divorce, the couple orally agreed to transfers of the four parcels of real property and other personal property jointly owned and acquired during the marriage.
With the aid of counsel, Mrs. Stone transferred her interest in two of the parcels to Mr. Stone, and likewise, Mr. Stone transferred his interest in the remaining two parcels to Mrs. Stone. The deeds were executed on September 9, 1985. The documents for a divorce proceeding were prepared, but no divorce complaint was ever filed. The couple continued living together until Mr. Stone's death on March 8, 1987.
On February 3, 1987, Mr. Stone executed a will wherein he revoked all former wills and left his entire estate to two of his three daughters. The will provided, in pertinent part:
Mr. Stone was survived by his wife, Helen Lucylle Stone, and three daughters. On April 20, 1987, the will was admitted to probate. Mrs. Stone, as the surviving spouse, filed a petition in probate court for an elective share, the homestead allowance, the exempt property allowance, and the family allowance. The probate court found that the value of Mrs. Stone's separate estate exceeded the value of the decedent's estate at the time of his death; therefore, the petition for an elective share and the family allowance was denied. However, the probate court awarded Mrs. Stone a homestead allowance in the amount of $6,000 and a personal property exemption allowance in the amount of $3,500.
Mrs. Stone moved to alter, amend, or vacate the judgment, or in the alternative, for a new trial. In the motion, she alleged that the property transfers that were made in September 1985 were made solely in anticipation of a divorce that was never obtained and argued, therefore, that the deeds were null and void for a lack of consideration. The motion for new trial was granted.
After a trial, the probate court held that "contemplation or intent for divorce was the sole consideration upon which the division of property (real and personal) was predicated. ... and therefore, failure to secure the divorce removed consideration for division of property." Pursuant to that holding, the court set aside the transfers of property made by Mr. Stone and Mrs. Stone and vested title in Mrs. Stone. The Estate's motion to alter or amend the judgment or, in the alternative, for a new trial was denied, and the Estate appealed.
The Estate argues, inter alia, that the trial court erred in setting aside the transfers because, it argues, a deed cannot be set aside due to inadequate consideration or lack of consideration. Mrs. Stone argues that the intention of the parties and the surrounding circumstances govern whether a property division made in contemplation of divorce is subsequently abrogated by a reconciliation of the parties.
A deed may represent a gratuitous conveyance of realty, and even a total failure of consideration is insufficient grounds for the cancellation of an otherwise valid deed. "A deed is valid and operative as between the parties and their privies whether founded on consideration or not." Porter v. Roberson, 263 Ala. 294, 296, 82 So. 2d 244, 245 (1955); Ingram v. Horn, 294 Ala. 353, 317 So. 2d 485 (1975). In any event, the exchange of property constitutes valuable consideration for a deed. Tyra v. Burns, 279 Ala. 84, 181 So. 2d 899 (1966).
Therefore, the judgment 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 HOUSTON, JJ., concur. | March 23, 1990 |
ec9042b7-dbd2-4c2e-9723-f5884170c36c | Dothan Area Chamber of Commerce v. Shealy | 561 So. 2d 515 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 515 (1990)
DOTHAN AREA CHAMBER OF COMMERCE, INC.
v.
Bill SHEALY, et al.
88-335.
Supreme Court of Alabama.
March 30, 1990.
*516 L.A. Farmer, Jr. of Farmer & Farmer, Dothan, for appellant.
J. Keith Givens and Allen G. Woodard of Cherry & Givens, Dothan, for appellees.
ALMON, Justice.
This is an appeal from a judgment entered in favor of Bill Shealy and other residents of the Meadowbrook subdivision of Dothan ("Shealy"), and against the Dothan Area Chamber of Commerce, Inc. ("Chamber").
In 1969 the City of Dothan ("City"), through condemnation proceedings, obtained the property that is the subject of this dispute. The City acquired the property so that it could erect an electrical power substation to service the surrounding area of the City. After its completion, the substation occupied only a portion of the property obtained by the City's exercise of eminent domain. In 1985 the City Commission passed a resolution authorizing a lease of the remainder of the property to the Chamber. That lease was for 25 years, with a right to extend the lease for 5 additional 10-year periods. As consideration, the City was to receive $1,000 per year. There was also evidence that, aside from the annual rent payments, the City would benefit from the Chamber's plan to include a visitors' welcome and information center for the City within the building it proposes to build on the property. Also, the City would retain any improvements left on the property at the end of the lease term. The estimated costs of the structure to be built on the property is $600,000. In 1988, Shealy filed a complaint, alleging that the lease was void. One of the defects alleged by Shealy was that the City had failed to authorize the lease by the passage of an ordinance, as required by Ala.Code 1975, § 11-47-21.
After Shealy filed his complaint, the City Commission passed Ordinance No. 88-251, authorizing a lease of the property, and a new lease to the Chamber was then executed with terms identical to those contained in the 1985 lease. Subsequent to the execution of the second lease, trial was had on Shealy's complaint. An advisory jury was empaneled, and the trial judge entered a judgment that was consistent with the *517 jury's findings. That judgment held that the lease did not comply with § 94 of the Alabama Constitution 1901, as amended by Amendment No. 112, because the City was not receiving "fair market rent" for the property; that the lease did not comply with § 11-47-21; and that the lease violated restrictive covenants in effect in the subdivision. The Chamber appealed, challenging the judgment and those findings of fact, and maintaining that the trial judge improperly denied a motion that he recuse himself from the trial of this case.
Section 94 of the Alabama Constitution, as amended by Amendment No. 112, reads:
The trial court held that this provision and "other legal requirements" require that a municipality receive "fair market rent" when it leases real property. It cited two Informal Attorney General Opinions, # 88-00123 (January 15, 1988) and # 88-00323 (June 10, 1988), as support for its interpretation of § 94, as amended by Amendment No. 112. We disagree with that interpretation. In addition, this Court has upheld both leases and conveyances of property by municipalities without requiring the municipality to prove that it has received fair market value for the property. O'Grady v. City of Hoover, 519 So. 2d 1292 (Ala.1987); Williams v. Water Works & Sanitary Sewer Board of Montgomery, 261 Ala. 460, 74 So. 2d 814 (1954).
This Court has expressed its reluctance to examine the adequacy of consideration in similar contracts, including sales of land:
Rogers v. City of Mobile, 277 Ala. 261, 278, 169 So. 2d 282, 298 (1964). We are equally hesitant to examine the adequacy of the consideration received by the City in this case, leaving that determination to the judgment of the City's duly elected officials. After reviewing the record, this Court has found no evidence of a constitutional violation. Therefore, the judgment of the trial court is in error on this point.
The trial court also held that the lease was invalid because the City had failed to comply with Ala.Code 1975, § 11-47-21. That statute is reproduced below:
"The governing body of any city or town in this state may, by ordinance to be entered on its minutes, lease any of its real property not needed for public or municipal purposes, and a lease made by the mayor in accordance with such ordinance shall be binding for the term specified in the lease, not to exceed a period of 99 years; provided, that in counties having a population of not less than 225,000 and not more than 400,000 inhabitants *518 according to the most recent federal decennial census, such limitation of the term to a period of 99 years shall not apply to any oil, gas or mineral lease made in accordance with such ordinance." (Emphasis added.)
The trial court held that this statute requires a finding by the City that the property to be leased is not needed for public purposes and held that a declaration in Ordinance No. 88-251 did not satisfy that requirement. That declaration is reproduced, in relevant part, below:
This Court does not agree that that declaration was not sufficient to comply with § 11-47-21. In Vestavia Hills Board of Education v. Utz, 530 So. 2d 1378 (Ala. 1988), this Court invalidated a land transfer by the city of Vestavia Hills, in part because the City failed to comply with § 11-47-20, a statute dealing with the sale of land by municipalities which also requires the city to declare that the property to be conveyed is no longer needed for public purposes. In Vestavia Hills, supra, there was no attempt by the city to comply with the statute, whereas in the instant case the City explicitly stated that the property was no longer needed for public or municipal purposes. A similar declaration was held to comply with § 11-47-20 in O'Rorke v. City of Homewood, 286 Ala. 99, 237 So. 2d 487 (1970). Neither § 11-47-20 nor § 11-47-21 requires that the ordinance contain a detailed recitation of facts supporting the statement that the land is no longer used for public purposes.
Shealy also argues that Ordinance No. 88-251 violated § 11-47-21 because the evidence showed that there were utility poles on the property to be leased. He contends that this constitutes a public use and would prevent the City from leasing the property. Although there are utility poles on the subject property, the property was originally condemned to give the City land on which to erect a substation. That purpose has been continuously carried out since 1969, and the City has retained possession of the property where the substation is located. The lease to the Chamber would in no way interfere with the City's use of the property, and there is no justification for restricting the use of more than one acre of real estate simply because it has utility poles on it.
In examining leases of this type, this Court must presume that the City's governing officials acted in good faith when it is clear on the face of the ordinance that those officials have approved the lease. City of Mobile v. Board of Water & Sewer Commissioners, 258 Ala. 669, 64 So. 2d 824 (1953); Newberry v. City of Andalusia, 257 Ala. 49, 57 So. 2d 629 (1952). Section 3 of Ordinance No. 88-251 complied with Ala.Code 1975, § 11-47-21, and the trial court also erred in its judgment as to this issue.
The trial court also held that the proposed use of the property by the Chamber would violate existing restrictive covenants in effect in the Meadowbrook subdivision. However, when a municipality acquires land that is subject to an enforceable covenant, the condemning authority acquires the land free from the burden of the covenant. 5 Powell on Real Property, § 679(4) (1987). That rule was adopted by this Court in Burma Hills Development Co. v. Marr, 285 Ala. 141, 145, 229 So. 2d 776, 779 (1969):
"`It has been argued that such restrictions were not intended to apply as against public improvements;that, since all property is held subject to the power of eminent domain the rights of the condemnor are impliedly excepted from the operation of the restrictive covenant.
"`It has further been held that such restrictions could not possibly inhibit the action of the sovereign because any such attempt would be void as against public policy since they constitute an attempt to prohibit the exercise of the sovereign power of eminent domain.'"
*519 (Quoting 2 Nichols on Eminent Domain, § 5.73) (1985).
In this case the City has not deeded the property to the Chamber, and the lease is a proper exercise of the authority given the City under § 11-47-21. Therefore, any attempt to enforce the covenants, under the facts of this case, would be an intrusion on the City's exercise of its statutory power. A different result might follow if the City had sold the property to the Chamber. However, since the City has retained title to the property, we need not speculate on that possibility. For the reasons stated above, the trial court erred on this issue also.
After reviewing the record, this Court finds the 1988 lease between the City and the Chamber to be valid. Therefore, the Chamber's contention that the trial judge improperly denied its motion that he recuse himself need not be addressed.
The judgment of the trial court is reversed, and this case is remanded with instructions to the trial court to reinstate the lease and vacate its order enjoining the Chamber from building its proposed office building on the subject property.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | March 30, 1990 |
a2a36319-33ab-4cd3-9b61-6df10a3a4f8c | Pressley v. Wiltz | 565 So. 2d 26 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 26 (1990)
Donald PRESSLEY
v.
Richard WILTZ.
88-1363.
Supreme Court of Alabama.
March 30, 1990.
Rehearing Denied May 18, 1990.
*27 Jeffrey W. Bennitt of Kizer & Bennitt, Birmingham, for appellant.
John W. Clark, Jr. and Judith E. Dolan of Clark & Scott, Birmingham, for appellee.
ADAMS, Justice.
The appellant, Donald Pressley, appeals from a summary judgment in favor of Richard Wiltz, general manager of S.P. Richards Company, in an action filed pursuant to Ala.Code 1975, § 25-5-11. Pressley alleges that he suffered injuries in a work-related accident when he fell from a lifter that had no guard rails attached to it. He contends that he offered substantial evidence to show that Wiltz was guilty of "willful conduct" as defined by § 25-5-11(c)(1) and (2) and, therefore, that summary judgment was improper. We affirm in part, reverse in part, and remand.
At the outset, we note that § 25-5-11 is part of the Workman's Compensation Act. This portion of the Act allows an employee "to pursue a civil action against a co-employee only if the injury sustained by the worker resulted from the `willful conduct' of the co-employee. Ala.Code 1975, §§ 25-5-11(b), -53; Reed v. Brunson, 527 So. 2d 102 (Ala.1988)." Turnbow v. Kustom Kreation Vans, 535 So. 2d 132, 134 (Ala.1988). Section 25-5-11(c)(1) and (2) read as follows:
"(c) As used herein, `willful conduct' means:
With regard to § 25-5-11(c)(1), we have stated:
Turnbow, supra, 535 So. 2d at 134. (Emphasis added.) In the present case, there is absolutely no evidence that Wiltz "consciously pursued a course of conduct with a purpose, design, or intent to injure someone." There is evidence that he knew *28 there were no guard rails on the lifter; however, he used the lifter himself without the rails. While there is evidence that Wiltz may have appreciated the risk involved in not having guard rails on the lifter, this alone does not mandate that the issue be submitted to a jury. Id.
We must now consider whether the trial judge erred in entering summary judgment as to Pressley's claim under § 25-5-11(c)(2), which, again, defines "willful conduct" as "[t]he willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from such removal...."
In Bailey v. Hogg, 547 So. 2d 498 (Ala. 1989), we noted as follows:
Id. at 499-500. In the case sub judice, Wiltz contends that no safety guards were on the lifter when he came to work for S.P. Richards. This fact alone, under Bailey, supra, would not shield Wiltz from liability. Pressley contends that on a day prior to the accident, when one of the managers from Atlanta was visiting the warehouse, the management ordered the guard rails put on the lifter for that one day, and that on the day following the manager's visit the rails were removed.[1] Although Wiltz argues that the rails provided by the manufacturer did not meet OSHA standards for full protection and that, subsequent to Pressley's injuries, new rails were ordered that conformed to those standards, this would not necessarily mean that the old guard rails would not have prevented Pressley's fall. Pressley, in his complaint, has alleged that the lack of guard rails was the proximate cause of his injuries, and we are of the opinion that the trial judge erred in entering summary judgment.
For the foregoing reason, the judgment is affirmed with regard to § 25-5-11(c)(1), but is reversed and the cause is remanded with regard to § 25-5-11(c)(2).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES and KENNEDY, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice (concurring in the result).
I concur in the result. See my dissent in Bailey v. Hogg, 547 So. 2d 498, 500-01 (Ala. 1989).
[1] Pressley admits that Wiltz did not order the rails removed; however, he contends that Wiltz was present when the order was issued and alleges that Wiltz was a party to the discussion regarding the removal. | March 30, 1990 |
6bb45862-4aca-444d-9f54-6a36e8430c31 | Ex Parte Fowler | 564 So. 2d 962 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 962 (1990)
Ex parte Samantha Ann Barratt FOWLER.
Re Samantha Ann Barratt FOWLER
v.
Robert Charles MERKLE, Jr., and Barbara Ann Merkle.
89-154.
Supreme Court of Alabama.
March 23, 1990.
Rehearing Denied May 18, 1990.
Walden M. Buttram, Gadsden, for petitioner.
Howard B. Warren, Gadsden, for respondent.
*963 MADDOX, Justice.
Samantha Ann Barratt Fowler petitions this Court for a writ of mandamus[1] directing the Honorable Robert E. Lewis, Judge of the District Court of Etowah County, to vacate his order denying her motion for denial of adoption and denial of award of custody and to enter an order granting said motion. Fowler submits that Judge Lewis abused his discretion in denying her motion for denial of adoption and award of custody, because, she argues, her consent to the adoption of her two children, Lillian Rachel Barratt and Rebecca Lea Barratt, by Robert Charles Merkle, Jr., and his wife, Barbara Ann Merkle, was obtained from her by fraud and, therefore, was void ab initio.[2]
In February 1988, Fowler, a resident of Etowah County and the natural mother of Lillian Rachel Barratt and Rebecca Lea Barratt, feared that her two children would be taken from her by the Alabama Department of Pensions and Security, because she had been interviewed a few months earlier by a Department of Pensions and Security (now the Department of Human Resources) caseworker who had received reports that Fowler was neglecting to provide adequate care for her two children. Fearing that D.P.S. would take her two children away from her, Fowler telephoned Fran and Jim Barratt (her ex-husband's parents, who lived in Michigan and who were the grandparents of her two children) and asked them to take physical custody of her two children.
Instead of accepting custody of their two grandchildren, Mr. and Mrs. Barratt told Fowler that they knew of a couple, the Merkles, who also resided in Michigan, who desperately wanted to adopt some children. After agreeing to permit the Barratts to approach the Merkles concerning the possibility of her permitting them to adopt her two children, Fowler received a telephone call from Barbara Merkle on Thursday, February 11, 1988. During that telephone conversation, Mrs. Merkle told Fowler that she and her husband wanted to adopt Fowler's two children. Later in that same conversation, Mrs. Merkle told Fowler that she and her husband would be contacting a lawyer in Alabama in order for him to make the necessary arrangements for the adoption. Furthermore, Mrs. Merkle told Fowler that she and her husband would travel to Etowah County to meet with her and her two children on Monday, February 15, 1988.
That Monday, the Merkles and Fran Barratt met with Fowler and her two children. Allegedly, during that encounter, Fowler reiterated her desire to have the Merkles adopt her two children. The next day, the Merkles, Mrs. Barratt, and Fowler arrived at the law office of W.N. Watson, the Alabama attorney representing the Merkles in the adoption proceeding. That afternoon, Mr. Watson met privately with Fowler in his law office to discuss the adoption process with her. During that one-on-one meeting, Mr. Watson allegedly went over a proposed written agreement with Fowler that authorized the adoption of her two children by the Merkles. In that discussion, Attorney Watson allegedly told Fowler that after she signed the agreement the only way that she could revoke that agreement would be through a court order. Allegedly, after Watson explained the consequences of signing the agreement, Fowler executed it in Watson's presence. That same day, the Merkles executed the adoption petition.[3]
*964 Despite Fowler's execution of the agreement, the Merkles and Fowler agreed that the two children would remain with Fowler until March 28, 1988, because Fowler wanted to be with the children to celebrate the birthday of one of them. However, on February 19, 1988, Fowler telephoned the Merkles, who were then back in Michigan, and asked them to come down and pick up her two children on February 27, 1988, almost one month prior to the date earlier agreed upon. On February 27, 1988, the Merkles picked up the two children and returned to Michigan. On April 8, 1988, the Merkles filed their adoption petition, along with Fowler's written agreement, in the Probate Court of Etowah County. On that same day, Fowler filed in probate court a motion for revocation of her consent to adoption of her two children by the Merkles. On April 15, 1988, Fowler filed a petition to transfer the adoption proceeding to the District Court of Etowah County, and that motion was granted that same day. On May 9, 1988, an ore tenus hearing was held in the district court on the issue of whether the agreement executed by Fowler was obtained through fraud, specifically through misrepresentation.[4] At that hearing, Fowler testified that, prior to executing the agreement, Watson told her that she could revoke the agreement within six months of its execution; however, during that same hearing, Watson testified that he had told Fowler only that it would take at least six months after a court's interlocutory order granting the Merkles' petition for adoption before that court could enter a final order granting the adoption petition.[5] Watson further testified at that hearing that when he specifically asked Fowler whether she wanted to execute the agreement she told him that she wanted to sign it. After listening to other testimony given by Mrs. Merkle and Fowler's ex-husband, James A. Barratt, District Judge Robert E. Lewis entered an order on July 13, 1988, declaring that Fowler had given an informed, intelligent consent to the adoption of her two children by the Merkles when she executed the agreement.[6]
Fowler filed a notice of appeal to the Circuit Court of Etowah County. On August 22, 1988, the Merkles filed a motion to dismiss the appeal, claiming that there was already an adequate record to support an appeal to the Court of Civil Appeals pursuant to Rule 28(A), A.R.Juv.P. On April 7, 1989, the circuit judge implicitly overruled the Merkles' motion to dismiss the appeal when he transferred the appeal to the Court of Civil Appeals pursuant to Rule 28(D), A.R.Juv.P. On June 28, 1989, the Merkles filed with that court a brief in support of their position, and on August 9, 1989, that court issued an opinion in which it ruled that the order entered by Judge Lewis on July 13, 1988, denying Fowler's motion for denial of adoption and denial of award of custody, did not amount to a final order and, therefore, was not appealable to that court. Consequently, the Court of Civil Appeals dismissed Fowler's appeal.
On August 23, 1989, Fowler filed an application for rehearing, and on October 18, 1989, the Court of Civil Appeals withdrew its original opinion and substituted an opinion for the one withdrawn. Fowler v. Merkle, 564 So. 2d 960 (Ala.Civ.App.1989). In that substituted opinion, the Court of Civil Appeals reached the merits of the case by treating Fowler's appeal as a petition for a writ of mandamus. In its opinion, the Court of Civil Appeals upheld Judge Lewis's finding that Fowler had given an informed and intelligent consent to the adoption of her two children by the Merkles. Consequently, the Court of Civil Appeals refused to order Judge Lewis to vacate his interlocutory order of July 13, 1988.
On October 30, 1989, Fowler filed in this Court a petition for a writ of certiorari. This Court has chosen to treat that petition as a petition for writ of mandamus, pursuant to Rule 21(e), A.R.App.P.
This Court has previously set forth the requirements for mandamus:
Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989).
Our review of Judge Lewis's denial of Fowler's motion for denial of adoption and denial of award of custody necessitates a discussion of the rule in Alabama regarding the revocation of parental consent to adopt a child. In In re Miller, 473 So. 2d 1069, 1070 (Ala.Civ.App.1985), the court stated the rule as follows:
(Emphasis added.)
The wisdom behind that rule is self evident. If a natural parent has freely and knowingly given the requisite consent to the adoption of his or her child, and that consent has been acted upon by the adopting parents by their commencing adoption proceedings, and if the proposed adopting parents have relied on that consent by taking the child into their custody and care for a substantial period of time and, especially if bonds of affection have been forged between them and the child, then to allow the natural parent to revoke his or her consent because he or she had a change of mind would create a great hardship for the child, for the adopting parents, and for the field of child adoption in general. See 2 Am. Jur.2d Adoption, § 46 (1962). For that important reason, the courts in Alabama have permitted a natural parent the right to revoke his or her consent to adoption only where that consent was acquired through 1) fraud, 2) undue influence, 3) coercion, or 4) other improper methods, or 5) where, under all the circumstances, the trial court finds it to be in the best interest of the child for it to be returned to the natural parent.
Our review of the record shows that the trial court could have found that Fowler formed a sane, rational, and intelligent decision to allow the adoption of her two children and that she understood the important ramifications of that consent. The record contains no evidence that Fowler's consent was procured by fraud, undue influence, coercion, or other improper method or that it would have been in the best interest of the two children for them to be returned to Fowler. In fact, Fowler testified at the district court hearing that she had been thinking about putting her two *966 children up for adoption for two years prior to her contact with the Merkles.
After a thorough review of the record, we conclude that the Court of Civil Appeals did not err in refusing to order the district court to set aside its order.
WRIT DENIED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Although the petition was styled as a petition for writ of certiorari, we have chosen to treat it as a petition for writ of mandamus. See Rule 21(e), A.R.App.P.
[2] Ala.Code 1975, § 26-10-3, requires the consent of both parents before a child can be adopted; however, the consent of one of the parents may be dispensed with when that parent 1) has abandoned the child, 2) cannot be found, 3) is insane, 4) is otherwise incapacitated, or 5) has lost guardianship of the child either through divorce or by an order of a court.
[3] Despite the fact that the Merkles' adoption petition purports to have been notarized on February 2, 1988, Watson testified in the district court that the Merkles actually executed the adoption petition on February 16, 1988.
[4] See Ala.Code 1975, § 6-5-101.
[5] See Ala.Code 1975, § 26-10-4.
[6] In that same order, Judge Lewis noted that on May 11, 1988, James A. Barratt, the natural father of Fowler's two children, had also executed a written agreement authorizing the adoption of his two children by the Merkles. | March 23, 1990 |
f3cd4cd8-a78e-4afa-9f3d-bee3c58f1237 | Murray v. Timberlake | 564 So. 2d 885 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 885 (1990)
William R. MURRAY, as administrator of the estate of Robert Lee Bibby, deceased
v.
Dr. Perry TIMBERLAKE.
89-173.
Supreme Court of Alabama.
May 11, 1990.
*886 William R. Murray, Northport, pro se.
Carl R. Robinson, Bessemer, for appellant.
Robert B. Harwood, Jr. of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellee.
JONES, Justice.
In this action for damages based on the alleged wrongful death of Robert Lee Bibby, the trial court granted the motion for summary judgment filed by Dr. Perry Timberlake, one of several named defendants. The trial court also expressly ordered that the judgment in favor of Dr. Timberlake be "final," pursuant to Rule 54(b), A.R.Civ.P. The plaintiff, William R. Murray, administrator of Bibby's estate, brings this appeal from the judgment in favor of Dr. Timberlake. We affirm.
Robert Lee Bibby began serving a 15-year prison sentence in September 1985 in a state correctional facility. During most of the first 10 months of his incarceration, Bibby was held in a state correctional system medical facility for treatment of medical complaints, especially for recurring chest pains. During the summer of 1986, Bibby was transferred to the Hale County jail in Greensboro, to serve his prison term in an area closer to his parents and his six-year-old daughter.
While in the Hale County jail, Bibby complained of chest pains. On July 31, 1986, a Hale County deputy sheriff took Bibby to Dr. Perry Timberlake, a private physician in Greensboro.[1] When Timberlake saw Bibby, neither Bibby nor the sheriff indicated that Bibby was "in distress" or in pain, and Bibby was not given medication for pain. Timberlake ascertained from Bibby's answers to questions asked by his office personnel that Bibby suffered from chronic asthma and that he had a history of heavy cigarette smoking.
As a result of his own examination of Bibby and of Bibby's description of his own symptoms (shortness of breath and wheezing for the past five days), Timberlake treated Bibby for "moderate asthmatic bronchitis" with an injection of epinephrine. Timberlake kept Bibby under observation until the medication relieved Bibby's symptoms and then Timberlake told Bibby, in the presence of the deputy sheriff, that, if Bibby's symptoms returned or became more severe, Bibby should contact him or have someone at the jail contact him. Timberlake also prescribed two medicines for Bibby to take after returning to jail.
Two days later, Bibby experienced chest pains and cut short a visit with his parents and daughter. Despite Bibby's request to the sheriff, he was not taken to a doctor, but was returned to his cell. Approximately 15 minutes later, Bibby suffered a full cardiac and pulmonary arrest as a result of an undiagnosed occlusion of the left descending coronary artery and died.
Bibby's lawyer, William R. Murray, was appointed administrator of his estate and, in that capacity, he filed the instant lawsuit on August 1, 1988, the day before the expiration of the limitations period for filing the action. See Ala.Code 1975, § 6-2-38.
The complaint, alleging wrongful death and a violation of the 8th Amendment to the United States Constitution and claiming relief under 42 U.S.C. § 1983, named the following defendants: 1) Correctional Medical Systems of Alabama, Inc. ("CMSOA"), a corporation that, at the time Bibby was a prisoner, operated the state correctional medical facilities under a contract with the *887 State of Alabama; 2) Dr. Roy Johnson, medical director of CMSOA; 3) Dr. James L. Guest, an employee of CMSOA who personally treated Bibby at the correctional medical facility; 4) Dr. Timberlake; 5) Sheriff Chester Colvin of Hale County; and 6) the Board of Commissioners of Hale County.
On April 24, 1989, Dr. Timberlake and Dr. Johnson filed motions for summary judgment, with their respective supporting affidavits. On May 15, 1989, after the attorneys for the parties had received copies of the trial court's "Civil Pre-Trial Bar Docket" for May 29, 1989, Timberlake's lawyer informed Murray that he would request a hearing on the pending motions during the pre-trial docket on May 19.
Murray responded by 1) writing to the clerk of the trial court and requesting that a "records subpoena" be issued to CMSOA; 2) filing a motion to delay the trial court's ruling on the motions for summary judgment until he obtained Bibby's full medical records; and 3) writing to Timberlake's lawyer, stating that he would seek a delay of the May 29 hearing, because of his lack of Bibby's complete medical records. However, in the letter to Timberlake's lawyer, Murray also stated that the problem of the lack of complete medical records "does not exist, of course, with respect to your client, Dr. Timberlake."
The trial court granted a continuance of the hearing on the defendants' motions for summary judgment and reset the hearing for August 2, 1989; however, the trial court advised the parties that there would be no further delays or continuances and that the defendants' motions for summary judgment would be ruled on on August 2. The trial court further advised Murray that he should "move expeditiously" to obtain whatever additional medical records he needed.
On July 14, 1989, at Murray's request, the clerk's office issued a "records subpoena" to St. Margaret's Hospital in Montgomery, Alabama. Bibby's records from the hospital were received in the clerk's office on July 31, 1989.
Despite the trial court's earlier admonition, Murray sought a continuance of the hearing scheduled for August 2. Murray contends that, approximately one week before the August 2 hearing, he and his expert witness, Dr. Arthur Pedersen of Cheraw, South Carolina, discovered "serious discrepancies" between the two sets of medical records supplied by defendant CMSOA. Murray further claims, as he did in the hearing on August 2, 1989, that the discrepancies between the two sets of medical records could not be understood or reconciled without in-person discussions between Murray and Pedersen.
When Murray advised Timberlake's lawyer of his intention to seek a further continuance, Timberlake's lawyer reminded Murray of the trial court's previous decision not to allow further delays and to rule on the pending motions (which, by now, included motions for summary judgment filed by CMSOA and Dr. Johnson) at the August 2 hearing. The continuance was not granted.[2] Murray, however, drove to South Carolina, worked on the medical records with Pedersen, and returned to Alabama on July 31, 1989, with Dr. Pedersen's affidavit (dated July 29, 1989) in support of Murray's opposition to the defendants' motions for summary judgment.
On August 2, 1989, just prior to the scheduled hearing, Murray filed with the clerk's office and served on counsel for the parties a packet of materials containing medical records, four motions, and Dr. Pedersen's affidavit. Thereupon, Timberlake's lawyer filed a motion asking the trial court to strike the Pedersen affidavit as to Timberlake or to disregard the affidavit and refuse to consider it in relation to Timberlake's motion for summary judgment. As grounds for his motion, Timberlake's lawyer pointed out 1) that the affidavit had been filed and served on the day of the hearing, in direct contravention of Rules 6(d) and 56(c), A.R.Civ.P.; 2) that the Pedersen *888 affidavit was not properly verified or sworn to; and 3) that portions of the affidavit relating to Timberlake were inadmissible hearsay because they were based on attached medical records that were not certified or verified.
On August 11, 1989, the trial court issued a written order that: 1) dismissed defendant Dr. Guest with prejudice, on the motion of the plaintiff; 2) held that the Pedersen affidavit had been filed in contravention of Rules 6(d) and 56(c), that it was not properly sworn to or verified, and that the affidavit's statements regarding Timberlake were based on hearsay, and, therefore, granted Timberlake's motion to strike Pedersen's affidavit; 3) held that, under the circumstances of the case, the trial court would not exercise its discretion in favor of Murray so as to allow the untimely filings; 4) granted defendant Timberlake's motion for summary judgment and certified the resulting judgment as final; 5) denied the summary judgment motions of defendants CMSOA and Johnson; and 6) granted Murray's motion to substitute a named party for fictitious party "A." This appeal attacks that portion entering a final summary judgment for Timberlake.
Murray first argues that Timberlake's treatment of Bibby places this case within an exception to the general rule in medical malpractice cases that "[t]o 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." Holt v. Godsil, 447 So. 2d 191, 192 (Ala.1984). See, also, Dobbs v. Smith, 514 So. 2d 871 (Ala. 1987). Murray contends that Timberlake's treatment of Bibby amounts to misconduct that is apparent to a layman and that can be comprehended through common knowledge and understanding without the assistance of expert testimony. Powell v. Mullins, 479 So. 2d 1119 (Ala.1985); and Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969). See, also, Swendsen v. Gross, 530 So. 2d 764 (Ala.1988); and Therrell v. Fonde, 495 So. 2d 1046 (Ala.1986). We disagree.
In his affidavit in support of his motion for summary judgment, Timberlake described in detail his examination and treatment of Bibby on the one occasion when Bibby was brought to Timberlake's office. The affidavit reads, in part:
Based on Bibby's history and symptoms, related to Timberlake by Bibby himself, Timberlake made a diagnosis consistent with the history and symptoms and treated Bibby in accordance with that diagnosis. Whether Timberlake should have diagnosed Bibby's other medical condition based on the same information is not a conclusion to be made without expert medical *889 guidance. Clearly, the resolution of such a question does not fall within the "layman's common knowledge and understanding" exception to the general rule requiring expert testimony in medical malpractice cases; therefore, to rebut Timberlake's affidavit, Murray was required to file the affidavit of a medical expert in support of his opposition to Timberlake's motion for summary judgment.
Having held that expert testimony was required to rebut Timberlake's affidavit, we turn to Murray's contention that the trial court erred in rejecting the proffered affidavit of Murray's expert, Dr. Pedersen.
Murray concedes that he filed and served his 48-page response to the pending summary judgment motions (including the supporting affidavit of Dr. Pedersen) approximately 2½ hours before the hearing on the motions was to begin. Murray claims, however, that such a procedure is authorized by "an amalgamation of A.R.Civ.P. Rules 1, 5(b), 6(d), and 56(c)," and that, under the totality of the circumstances, the trial court abused its discretion and erred in rejecting Murray's response and supporting affidavit as untimely filed. We disagree.
Murray relies on Nolen v. Peterson, 544 So. 2d 863 (Ala.1989), in which this Court held that the trial court had abused its discretion in rejecting the plaintiff's counter-affidavits filed on the day of the hearing on the pending motion for summary judgment. It is important to note, however, the specific language of the Nolen opinion upon which Murray rests his argument:
Nolen, 544 So. 2d at 865-66. (Emphasis in original.)
In Nolen, we held that the totality of the circumstances did not justify the trial court's refusal to accept the proffered affidavit. Indeed, Nolen's third lawyer found himself in the position of having only "one full day between his employment and the date of the hearing" (Nolen, 544 So.2d at 866), thus making the filing of the counter-affidavit on the date of the hearing a "timely filing" under the totality of the circumstances.
The facts of the instant case, however, convince us that the trial court was correct and did not abuse its discretion in disallowing the materials filed and served by Murray on the day of the hearing on the pending motions for summary judgment. Murray had already sought and obtained a two-month continuance after the first date set for a hearing on Timberlake's motion for summary judgment, for reasons similar to those advanced by Murray in support of his current argument for reversal: the lack of complete medical records on Bibby. It is interesting to note, however, that in the letter to Timberlake's lawyer advising him of Murray's intention to seek the first continuance, Murray stated that the problem of Bibby's incomplete medical records "does not exist, of course, with respect to your client, Dr. Timberlake."
Further, in granting the first continuance, the trial court warned Murray to "move expeditiously" to secure the needed medical records, and went on to put the parties "on notice" of its intention that no more delays or continuances would be granted. Therefore, Murray advised Timberlake's lawyer of his intention to seek a further continuance of the August 2 hearing, *890 and then asked for the delay, with full awareness of the trial court's earlier warning against such a request. Too, with the knowledge that his request for a continuance had been denied and that the hearing would take place on August 2, Murray left the state to travel to South Carolina to confer with Dr. Pedersen, returning to Tuscaloosa two days before the hearing.
"In the absence of a showing of excusable neglect, the trial court does not abuse its discretion when it refuses to accept out-of-time affidavits." Johnson v. Allstate Ins. Co., 505 So. 2d 362, 364 (Ala. 1987). The totality of the circumstances here reveals no "excusable neglect," and we hold that the trial court did not abuse its discretion in refusing to accept the untimely filed affidavit of Dr. Pedersen.
Murray next contends that the trial court erred in ruling on Timberlake's motion for summary judgment before Murray had completed his discovery of Bibby's medical records. We find no merit in this argument. There was no pending request for the production of documentary evidence from Timberlake at the time of the hearing and the entry of summary judgment. Despite Murray's supposition in his brief to this Court that medical records from Timberlake's office could have become commingled with CMSOA records, there was no evidence before the trial court, and there is none in the record before us, to support such a theory. Indeed, as noted earlier, in a letter to Timberlake's lawyer, Murray stated that Bibby's incomplete medical records did not affect Timberlake as a party to this action. In view of these circumstances, in addition to the fact that the hearing had already been delayed once because of Murray's failure to complete discovery, we find no error in the trial court's ruling on Timberlake's motion for summary judgment prior to Murray's completion of discovery in the case. See Reeves v. Porter, 521 So. 2d 963 (Ala.1988).
Murray's fourth argument is that the trial court erred in rejecting the Pedersen affidavit as being improperly sworn to or verified. This claim has been mooted by our holding that the Pedersen affidavit was properly disregarded by the trial court as being untimely filed. We note, however, that Murray's argument with respect to the verification of the affidavit is without merit.
Ala.Code 1975, § 12-21-4, sets out the requirements for obtaining an out-of-state affidavit that will be used in an action in an Alabama court:
The South Carolina notary public who signed the certification portion of Pedersen's affidavit failed to affix the seal of her office and, therefore, did not comply with the statutory requisites of § 12-21-4. This noncompliance with the statute's mandatory directive, couched in plain language that requires no special interpretation, would most certainly have rendered the affidavit void if it had been timely filed. See, e.g., Coastal States Gas Transmission Co. v. Alabama Public Service Comm'n, 524 So. 2d 357 (Ala.1988); and Mobile County Republican Exec. Comm. v. Mandeville, 363 So. 2d 754 (Ala.1978).
Despite Murray's vigorous argument to the contrary, his fifth argument on appeal is similarly without merit (this argument, too, is mooted by our holding that Murray's response to the summary judgment motions and supporting affidavit were untimely filed). The record does not contain evidence to support Murray's contention that the Pedersen affidavit was based upon certified copies of all of the papers and documents to which Pedersen refers. The record reflects that this requirement of Rule 56(e), A.R.Civ.P., was not complied with and that the Pedersen affidavit was deficient in this regard.
Murray's sixth argument on appeal attacks the trial court's adoption of an order drafted by Timberlake's lawyer, Robert B. Harwood, Jr. Murray makes the general *891 allegation that the order contains "a substantial number of distortions and untruths," but does not support this allegation with any specific instances of untruths or distortions. This argument is without merit.
Murray's final argumentthat the trial judge should have recused himself from this case because he had represented Bibby in a previous legal matterwas never argued until Murray filed his brief with this Court. Murray's failure to object to the judge's participation in the case constitutes a waiver of that objection, and this Court can not address arguments seeking reversal that were not raised in the trial court. See Ross v. Luton, 456 So. 2d 249 (Ala. 1984).
Therefore, we hold that the trial court properly entered the summary judgment for defendant Dr. Perry Timberlake. That judgment, therefore, is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Although Dr. Timberlake was not told why Bibby was brought to him for treatment, in his affidavit in support of his motion for summary judgment he states that the day on which he saw Bibby was a Thursday and that the local physician who normally sees and treats Hale County jail prisoners normally closed his office every Thursday afternoon.
[2] Although the trial court's case action summary sheet shows a continuance as having been granted on July 25, 1989, apparently the granting of the continuance was conditioned upon the consent of all other parties to the action, which consent was not given. | May 11, 1990 |
166b3476-40cc-4672-a5e7-f1dc4c9b294e | Segars v. Reaves | 567 So. 2d 249 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 249 (1990)
D.W. SEGARS and S & S Land Company, Inc.
v.
Steven L. REAVES, d/b/a Reaves Construction Company.
No. 87-1312.
Supreme Court of Alabama.
May 4, 1990.
Rehearing Denied August 31, 1990.
Bill Thomason, Bessemer, for appellants.
H. Jadd Fawwal of Fawwal & Fawwal, Bessemer, for appellee.
KENNEDY, Justice.
The defendants, D.W. Segars and S & S Land Company, Inc., appeal from a judgment entered on a jury verdict in favor of the plaintiff, Steven L. Reaves, d/b/a Reaves Construction Company, and from the denial of a motion for new trial. We affirm.
The issue is whether the plaintiff established by competent evidence an entitlement to damages, and, if so, the amount of damages.
In 1977, S & S Land Company purchased some land in Hueytown, Alabama. Segars, a principal and the primary stockholder of S & S Land Company, proposed to develop the property into a multi-lot residential subdivision. Reaves, d/b/a Reaves Construction Company, entered into an agreement with Segars to make certain improvements to the land to prepare it for subdivision. Reaves agreed to grade the land; to install storm and sanitary sewer lines; and to install gas lines. The work began in 1978 and was untimely completed in 1980, after numerous delays and work stoppages. The delays were mainly caused by Segars's problems in getting various permits and engineering plans approved by the local governmental authorities. During one of the delays, some of the sanitary sewer lines and gas lines were washed out of the ground by rain, and Reaves had to do that work again. Reaves testified that he incurred extra costs, exceeding the contract price, as a result of the delays, which, he claimed, were Segars's fault. The contract price was $63,064.63. Reaves was paid $66,500, which did not cover the extra costs for doing some of the work twice. In 1981, Reaves sued Segars for work and labor done and for breach of contract. In 1981, the jury returned a verdict in favor of Reaves in the amount of $33,854.35. The court denied Segars's motion for new trial, in which he alleged that the damages were excessive. Segars appealed the judgment and the denial of the motion for new trial.
In 1989, the case was remanded for a hearing in light of Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). After a hearing, the trial court entered an order upholding the verdict and the judgment based on that verdict.
Segars argues that a portion ($3253.70) of the total damages awarded by the jury was not supported by competent evidence. Reaves, of course, contends that *250 the verdict was substantiated by the evidence.
After a review of the evidence, we note that Reaves testified on direct examination that he incurred extra costs in the amount of $3253.70 as a result of having to do the same work twice. This included cleaning and replacing the washed out sanitary sewer lines. The itemized expenses for this work, totaling $3253.70, were in the amounts of $167.50; $851.20; $225; $90; and $1920.
The party claiming damages has the burden of establishing by competent evidence the existence of damages and the amount of those damages. Johnson v. Harrison, 404 So. 2d 337 (Ala.1981). Reaves's testimony that he incurred the extra expenses and that they were in the amounts stated above was competent evidence to establish that he was entitled to damages and provided a reasonable basis for the jury to assess those damages. If Segars wanted to contest the competency of the evidence establishing the extra expenses proven by Reaves, he could have done so on cross-examination. However, he did not. See generally Roland v. Krazy Glue, Inc., 342 So. 2d 383, 385 (Ala.Civ.App. 1977). We conclude that Reaves presented competent evidence of his loss and his entitlement to damages and that the verdict of the jury was substantiated by the evidence.
Accordingly, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | May 4, 1990 |
31a1451a-68ac-4885-a03b-bed8807cf436 | Eason v. Comfort | 561 So. 2d 1068 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1068 (1990)
Ronald D. EASON
v.
Julie V. COMFORT.
89-37.
Supreme Court of Alabama.
April 6, 1990.
*1069 Jack E. Held and Daniel J. Burnick of Sirote & Permutt, Birmingham, for appellant.
Stephen A. Rowe and Timothy A. Palmer of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
SHORES, Justice.
The plaintiff, Ronald Eason, was injured when he was struck by an automobile driven by the defendant, Julie Comfort.[1] The plaintiff appeals from a judgment for the defendant in his action seeking money damages based on his injuries.
The evidence tended to show that 60-year-old Eason arrived at his home at approximately 4:50 p.m. on the date of the accident, and was joined by two colleagues, Larry Stanfield and Mike White; that while at home, Eason drank two martinis, each of which, he said, contained approximately two jiggers, or about three ounces, of vodka that was "diluted" with an additional "good dollop" of vermouth; and that after consuming drinks and snacks, the three men left Eason's home at approximately 6:15 p.m. and drove to a restaurant in Mountain Brook, Alabama, for dinner. According to the testimony at trial, no alcoholic beverages were consumed with the meal. Eason consented to a blood test after the accident, and, according to the testimony of Dr. Andrew Robinson, Eason's blood alcohol level was .10%. Dr. Robinson testified that a man Eason's size, which was approximately 210 pounds, would have to consume *1070 a minimum of seven ounces of alcohol to reach a .10% blood alcohol level. On cross-examination, Dr. Robinson then stated that, according to his calculations, Eason could have consumed from six to eight ounces of alcohol.
When the men left the restaurant, at approximately 7:30 p.m., it was dark and a light rain or mist was falling. They had to walk across Church Street to reach the car they were traveling in, and the witnesses' testimony varied on the precise path they took. The testimony generally showed that they crossed near the intersection of Church and Dexter Streets, possibly at a slight angle, and not within a marked crosswalk. White and Stanfield walked next to one another as they crossed the street, while Eason, for an undetermined reason, remained 6 to 12 feet behind them. Eason was carrying two cartons containing leftover food, and he testified that he looked down at the cartons periodically to be sure that liquid from the food was not dripping onto his suit.
Barry Newton, who was driving south on Church Street at the time of the accident, testified that the three men stepped off the sidewalk into the street from his right. They did not appear to notice him, the witness said, and he jammed on his brakes to avoid hitting them. They continued across the street, and Eason was struck in the northbound lane of traffic, after White and Stanfield had stepped up onto the curb. According to Newton, Eason did not stop or look up from the time he stepped off the curb until he was struck.
Julie Comfort, the defendant, testified that immediately prior to the accident she was travelling approximately 25 miles per hour in the northbound lane of Church Street. She said she noticed only two people crossing the street from the left side, about half a block to a block away. She stated that when she saw the pair, she applied the brakes and almost stopped to be sure that they had ample time to cross the street. After the two men crossed the street, Comfort said, she accelerated in order to continue down the street. She heard a "thud" and realized that she must have hit someone. Comfort testified that she did not see Eason before he was struck.
An officer who investigated the accident testified that Comfort told him that she was travelling at 25 or 35 m.p.h., and that she told him, "[A]ll of a sudden there he was in front of me." When Eason's attorney asked the officer if Comfort had seen Eason before she hit him, the officer said he doubted it, but that it was possible. Eason testified that from the moment he stepped off the curb to cross the street until he was hit by Comfort's car, he did not stop and he did not see a car.
As a result of the accident, Eason suffered a dislocated shoulder, a torn rotator cuff, leg fractures, ligament and cartilage damage in his knee, and a concussion. He remained in the hospital for one month and spent an additional month at a rehabilitation center. His medical bills exceeded $40,000.
Eason filed suit on May 29, 1987, and alleged that Comfort negligently or recklessly drove her vehicle against him, causing him to suffer physical injuries and emotional distress. He sought $1 million in compensatory damages. Following a trial, the jury returned a verdict against Eason and in favor of Comfort. Eason filed a motion for a JNOV or a new trial, which the trial court denied in a written order. This appeal followed.
Eason first argues that the trial court erred in denying his request for a jury instruction on subsequent negligence. He contends that all the elements needed to prove subsequent negligence were present in this case, while Comfort argues that the requested jury charge was properly refused because, she says, it would have been based on nothing but hypothesis and conjecture.
The parties agree that the elements of subsequent negligence are:
Zaharavich v. Clingerman, 529 So. 2d 978, 979 (Ala.1988). The disagreement is whether Comfort had actual knowledge of Eason's peril and whether she had the opportunity to avoid the accident through the exercise of reasonable care.
Eason argues that Comfort's knowledge of his peril could be inferred from the totality of the circumstances. In support of his argument, he cites the following: Comfort testified that she was watching the road directly in front of her; that she saw Stanfield and White cross in front of her car; that she told an investigating officer, "[A]ll of a sudden there he was in front of me"; and that the intersection was illuminated by the lights of automobiles and nearby businesses. Comfort argues that this evidence was insufficient to permit a jury to draw a reasonable inference that she knew of Eason's peril.
In Zaharavich, supra, the driver of a truck struck a pedestrian as she "jaywalked" across five lanes of traffic. The driver testified at trial that he did not see the pedestrian until she was almost in front of his truck, but acknowledged that earlier, in response to the interrogatory "What was the plaintiff doing?" he had stated that she was running and dodging traffic. This Court held that the jury could have resolved this conflict in favor of the pedestrian and could have inferred that the driver had knowledge of her peril and could have inferred that he had enough time to take reasonable steps to avoid the accident. The Zaharavich Court cited Dees v. Gilley, 339 So. 2d 1000 (Ala.1976), in support of its determination that a defendant's knowledge of a plaintiff's peril may be inferred. In Dees, the defendant driver observed an object in the road 200 to 300 feet in front of her vehicle, but did not attempt to go around the object. Her view was unobstructed, but only when the driver got closer did she realize that the "object" was two teenage boys, and she then "froze" and ran over them. This Court held that the evidence was sufficient to submit to a jury for its determination the question whether the driver had acquired actual knowledge in time to avoid the accident.
The facts of this case are distinguishable from those in Zaharavich and Dees. Comfort's uncontested testimony at trial established that she saw White and Stanfield, but that she did not see Eason at any time prior to impact. She realized that she had hit someone only after she heard the "thud" sound caused by the impact. Thus, the evidence is not sufficient to establish unequivocally that Comfort had actual knowledge of Eason's peril, nor is it sufficient to permit a jury to infer that she had such knowledge. The trial court's refusal to charge the jury on subsequent negligence was not error.
A jury charge on subsequent negligence was not supported by the evidence for an additional reason, and that is that the doctrine is not properly applied where the manifestation of the plaintiff's peril and the accident are virtually instantaneous. Plenkers v. Chappelle, 420 So. 2d 41, 44 (Ala.1982). The record does not establish that Comfort failed to act in a reasonable manner to prevent the accident after she discovered Eason's peril, because her uncontradicted testimony was that she did not see Eason before the impact. Eason failed to introduce any evidence even suggesting that Comfort could have averted this accident after becoming aware of Eason's position. Because Eason failed to establish a prima facie case of subsequent negligence, the trial court did not err in refusing to give the requested charge.
Eason next argues that the trial court erred in admitting evidence that his blood alcohol level was .10%, because there was no testimony explaining the effect this alcohol level would have had on him. Eason contends that the evidence was irrelevant and might have confused the jury. Comfort argues that the evidence was relevant as tending to show the amount of alcohol Eason had consumed prior to the accident.
Evidence is relevant when it tends to shed some light on an issue in the case. Baker v. Merry-Go-Round Roller Rink, *1072 Inc., 537 So. 2d 1, 2 (Ala.1988). Decisions on the relevancy of testimony are within the trial court's sound discretion, and will not be reversed unless they are plainly erroneous. Id. In this case, the amount of alcohol Eason consumed and whether he was intoxicated were matters at issue. Eason admitted that he had had two martinis, but he testified that they were "the diluted kind," made with approximately two jiggers of vodka that was "diluted" with a good bit of vermouth. Eason also testified that he was not at all intoxicated on the night of the accident. The testimony of Dr. Robinson regarding Eason's .10% blood alcohol level was relevant to the issues at hand, and its admission by the trial court was not error.
Eason's final argument is that the verdict was against the weight of the evidence and that the trial court therefore erred in denying his motion for a JNOV or for a new trial. He contends that Comfort was traveling too fast, failed to keep a proper lookout, and should have seen him before her vehicle struck him; he claims that the jury's verdict was contrary to the evidence presented at trial.
The appropriate standard of review of a denial of a defendant's motion for a JNOV is whether the evidence, when viewed in the light most favorable to the plaintiff, furnishes any support for the theory of the complaint. Interstate Engineering, Inc. v. Burnette, 474 So. 2d 624 (Ala.1985). A motion for a new trial on grounds that the verdict is against the manifest weight and preponderance of the evidence should be granted only in extreme cases, when letting the verdict stand would lead to a palpably wrong and unjust result. Bradford v. Kimbrough, 485 So. 2d 1114, 1116 (Ala. 1986). The trial court's refusal to grant a new trial motion strengthens the presumption of correctness of the jury verdict. Id.
A careful review of the record establishes that the jury verdict is amply supported by the evidence. Viewing the evidence in the light most favorable to Comfort, it is clear that Eason crossed Church Street outside the marked crosswalk without keeping a lookout for oncoming traffic. He had consumed six to eight ounces of alcohol that evening and his blood alcohol level was .10%. There was evidence that Comfort almost stopped her car when she saw Eason's companions cross the street outside the crosswalk, but that she did not see Eason in front of her car before she struck him. The trial judge reviewed the evidence and found that the jury's verdict was fully supported by the evidence. Neither will we disturb the jury's verdict, because we find that it is in accord with the weight of the evidence and that to let it stand would not lead to a palpably wrong or unjust result.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur.
[1] Since this proceeding began, the defendant married and is now known as Julie Comfort Lockhart. Because the legal documents refer to Julie Comfort, we will refer to the defendant as Comfort in this opinion. | April 6, 1990 |
21b80cab-70ad-4daa-bf9d-70a3a2c5ff93 | Herndon v. State | 563 So. 2d 1065 | N/A | Alabama | Alabama Supreme Court | 563 So. 2d 1065 (1990)
Ex parte State of Alabama.
Re Richard HERNDON, Jr.
v.
STATE.
89-63.
Supreme Court of Alabama.
March 23, 1990.
*1066 George H. Jones, Birmingham, for respondent.
Don Siegelman, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for petitioner.
MADDOX, Justice.
We granted the writ of certiorari in this case to review a holding by the Court of Criminal Appeals that a defendant charged with first degree robbery was entitled to have the jury instructed on the lesser included offense of third degree robbery because there was evidence that the gun he used in the robbery was not loaded. We disagree, and we reverse the judgment of the Court of Criminal Appeals and remand the case to that Court for further proceedings consistent with this opinion.
Richard Herndon was convicted of first degree robbery; he appealed and raised the issue of whether the trial court erred in not instructing the jury on the lesser included offense of third degree robbery. The Court of Criminal Appeals reversed his conviction, saying that because the evidence was undisputed that the gun Herndon used was unloaded, he had presented evidence tending to rebut the presumption in Ala. Code 1975, § 13A-8-41(b), and was entitled to the instruction on third degree robbery. 563 So. 2d 1063. The facts are fully set forth in the opinion of the Court of Criminal Appeals, but the one fact that most specifically relates to the issue before this Court is the fact that it is undisputed that the gun Herndon used during the robbery was unloaded.
Section 13A-8-41 reads as follows:
Subsection (b) creates a rebuttable presumption that a person is armed with a deadly weapon if he displays what reasonably appears to be a loaded firearm. See commentary to §§ 13A-8-40 through 13A-8-44. "Deadly weapon" is defined in § 13A-1-2(11) as:
During the robbery, Herndon, without question, had a gun and threatened to shoot one of the victims. In short, the evidence was uncontradicted that Herndon used a "deadly weapon," as that term is defined in § 13A-1-2(11). As he ran from the scene, he dropped the bag in which he had put the gun, and the gun was found to have been unloaded. The Court of Criminal Appeals reasoned that this evidence tended to rebut the presumption that Herndon was armed with a deadly weapon and that it thus entitled him to an instruction on third degree robbery. The court's holding appears to be that the definition of robbery in the first degree, which requires the defendant to be "armed with a deadly weapon," requires that when the weapon is a firearm it must be loaded. The court's holding appears to be in conflict with Lidge v. State, 419 So. 2d 610 (Ala.Cr.App.), cert. *1067 denied, 419 So. 2d 616 (Ala.1982), wherein the Court of Criminal Appeals correctly stated:
419 So. 2d at 612-13.
Because of the apparent conflict in the opinion in this case and the holding in Lidge, we granted the writ of certiorari in order to resolve any potential conflict between Lidge and this case.[1] Of course, in Lidge, the evidence of whether the robber's gun was unloaded was in dispute, and the question regarding the entitlement of the defendant to an instruction was not properly preserved, but we do not believe that can detract from the statement in Lidge that "[t]he great weight of authority holds that an unloaded pistol, not used as a bludgeon, is nevertheless a dangerous or deadly weapon for armed-robbery purposes," and the specific holding that "neither the definition of robbery in the first degree, Section 13A-8-41, nor the definition of a `deadly weapon,' Section 13A-1-2(11), requires that the firearm be loaded." It is undisputed that Herndon dropped the bag with the gun in it immediately outside the door of the store and that the gun was found unloaded, and while this is a factual distinction between Lidge and this case, that factual difference does not answer the policy questions of whether an unloaded gun is, or is not, a deadly weapon under § 13A-8-41, and whether a defendant can use evidence that the gun was not loaded, under the provisions of § 13A-8-41(b), to redefine what constitutes first degree robbery when it is not disputed that a firearm was used, albeit unloaded.
Herndon and the Court of Criminal Appeals put a great deal of emphasis on the commentary to §§ 13A-8-40 through 13A-8-44, wherein it is stated:
Of course, a commentary to a statute, while of some persuasive value, is not binding upon the courts. In any event, even though the commentary does refer to the problem with an "unloaded and inoperative... weapon," and does cite statutes from other States, we do not believe the commentary, in any way, calls for a different construction of § 13A-8-41 than is given it by Lidge, and, as we shall hereinafter show, the statutes in other states are sufficiently different as not to be very useful in construing the Alabama statute.
Herndon calls our specific attention to the New York Penal Law, § 160.15, which states:
(Emphasis added.) Herndon cites a number of New York cases holding that an unloaded gun is not a deadly weapon for the purposes of a first degree robbery charge. However, it is important to note that the New York Penal Code explicitly states that proof that the gun was unloaded is an affirmative defense and defines first degree robbery in terms of the defendant's use of a deadly weapon, not in terms of whether what the defendant uses reasonably appears to any person present to be a deadly weapon. The provisions of the Alabama Code defining first degree robbery are different from the provisions of the New York Penal Code, and the statements in the commentary suggesting that § 13A-8-41 is analogous to the New York Penal Code and to other similar codes do not change the fact that our Legislature did not put in the Alabama statute a provision that would allow as an affirmative defense the fact that the gun was not loaded. Indeed, § 13A-8-41(b) relates to those factual situations where any person present reasonably believes that the robber is using a deadly weapon or dangerous instrument, not whether the robber is, in fact, "armed with a deadly weapon."
Although the New York statute is easily distinguishable, the armed robbery statutes in Colorado and Michigan are not as dissimilar. In fact, both do read very much like *1069 Ala.Code 1975, § 13A-8-41. Colo.Rev.Stat. § 18-4-302 (cum. supp. 1989), states:
Mich.Comp. Laws § 750.529, states:
Although the Colorado statute contains terms relating to the subjective perception of the victim or any other person present, Colo.Rev.Stat. § 18-1-901(3)(e)(I) defines "deadly weapon" as including a "firearm, whether loaded or unloaded." Thus, there is no question that under the Colorado statute, an unloaded gun is considered a "deadly weapon," just as it is in Alabama. Lidge, supra.
The Michigan Court of Appeals has made it clear that while an object may not be a "dangerous weapon" in itself, it may support a conviction for armed robbery because it was used in a manner that caused the victim reasonably to believe that the object was a dangerous weapon. In People v. Schofield, 124 Mich.App. 134, 136, 333 N.W.2d 607, 608, reversed on other grounds, 417 Mich. 988, 334 N.W.2d 376 (1983), the court said, "The use of a toy gun, disguised as a real one, may support a conviction for armed robbery." Also, in People v. Brooks, 135 Mich.App. 193, 353 N.W.2d 118 (1984), a conviction for armed robbery under Mich. Comp. Laws § 750.529 was upheld despite the fact that the robber's gun was inoperable at the time of the crime. The court held in People v. Barkley, 151 Mich.App. 234, 390 N.W.2d 705 (1986), that a toy gun was not a "dangerous weapon" but that it did meet the statute's alternative element of whether the victim reasonably believed that the object was a dangerous weapon. The court stated:
151 Mich.App. at 238 n. 2, 390 N.W.2d at 707 n. 2. Michigan's statute is very similar to our own in that a conviction can be based upon either the robber's use of a deadly weapon or the robber's use of an object that causes the victim or any other person present reasonably to believe that the object is a deadly weapon.
The Supreme Court of New Jersey has stated that a "person committing robbery with a toy gun is subject to conviction for first-degree robbery rather than second-degree robbery because he is armed with a `deadly weapon.'" under N.J.Stat.Ann. 2C:11-1(c), which definition includes both weapons capable of actual injury and objects where the victim would be led reasonably to believe the object to be capable of producing death or serious bodily injury. State v. Gantt, 101 N.J. 573, 585 n. 5, 503 A.2d 849, 855 n. 5 (1986).
The Supreme Court of Louisiana has also held that an unloaded gun is a "dangerous *1070 weapon" under the Louisiana armed robbery statute, despite the fact that Louisiana's armed robbery statute uses only the term "dangerous weapon" and does not include the element of an object used in such a manner as to cause the victim reasonably to believe that the object is a dangerous weapon. State v. Levi, 259 La. 591, 250 So. 2d 751 (1971). The Fifth Circuit Court of Appeals has given an excellent summary of Louisiana law on this subject:
We agree with the reasoning of the Fifth Circuit and the Louisiana Supreme Court. While we think that the presumption in § 13A-8-41(b) can be rebutted (such as by evidence that the gun was obviously a toy), we think that the Court of Criminal Appeals erred in holding that evidence that the gun was unloaded can rebut the presumption that it was a "deadly weapon or dangerous instrument." This Court holds that an unloaded gun qualifies as a deadly weapon or dangerous instrument under § 13A-8-41(b), because that statute's concern *1071 is with whether any person present is led "reasonably to believe it to be a deadly weapon or dangerous instrument."
As the Louisiana Supreme Court and the Fifth Circuit explained, the use of a gun, loaded or unloaded, can lead to danger, death, and serious bodily injury from a number of sources other than the gun itself. Furthermore, if we should construe the statute to provide that a defendant would be entitled to an instruction on a lesser included offense anytime there was some evidence that the gun used was not loaded, where would the line be drawn? What if the defendant had bullets in his pocket, or a full clip in his other hand or in his pocket? Or what if there was evidence that the defendant had a gun with a full clip in it but had not chambered a round at the time of the robbery? Would that be some evidence that the defendant was not "armed with a deadly weapon"?
We hold that the better rule is that an unloaded gun is a "deadly weapon" for the purposes of § 13A-8-41, and that when the evidence shows, as it does in this case, that the defendant was "armed" with a pistol at the time of the robbery, the showing that it was, in fact, not loaded, is not an affirmative defense, nor is it evidence that will entitle the defendant to a lesser included offense instruction.
For the above stated reasons, the judgment of the Court of Criminal Appeals is reversed, and this cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
JONES, J., dissents.
JONES, Justice (dissenting).
Respectfully, I dissent. Because I agree with the opinion of the Court of Criminal Appeals, I would quash the writ as improvidently granted.
[1] The Court of Criminal Appeals has also held in Sumpter v. State, 480 So. 2d 608 (Ala.Cr.App. 1985), that the definition of a deadly weapon under § 13A-1-2 and for purposes of the sentence enhancement statute at § 13A-5-6(a)(4) does not require that the firearm be loaded at the time of the offense. | March 23, 1990 |
6d8e125e-40d2-4d8d-a1b9-869589ea12fb | Barnett v. Ivey | 559 So. 2d 1082 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 1082 (1990)
Lisa BARNETT and Ernest Barnett
v.
Jim IVEY, individually and as agent of Low Cost Cars, Inc.
88-1639.
Supreme Court of Alabama.
March 16, 1990.
*1083 Jack W. Smith, Dothan, for appellants.
Alan C. Livingston of Lee & McInish, Dothan, for appellee.
PER CURIAM.
The plaintiffs, Lisa Barnett and Ernest Barnett, appeal from a denial of a Rule 60(b), A.R.Civ.P., motion to set aside a judgment of dismissal for lack of prosecution. We affirm.
On April 23, 1985, Lisa Barnett filed an action alleging fraud and misrepresentation on the part of Jim Ivey, individually and as agent for Low Cost Cars, Inc.; the action was filed by and through her attorney of record, Charles Amos. At the time the action was filed, Amos was practicing law in partnership with Denny L. Holloway, and Barnett was actually Holloway's client.
Denny L. Holloway was appointed District Judge for Houston District Court. Upon his appointment, Holloway requested that attorney Jack Smith assume the representation of Barnett in her action against Ivey.
On May 16, 1985, the court ordered that Ernest Barnett be added as a party plaintiff; however, the Barnetts never responded to the order.
On June 10, 1986, Amos filed a motion to withdraw as counsel for Barnett, and the motion was granted the same day.
On December 2, 1987, the court notified Attorneys Amos, Smith, and Alan C. Livingston (Ivey's lawyer) that the Barnetts' lawsuit would be dismissed for lack of prosecution unless good cause was shown. Subsequently, on January 5, 1988, the court dismissed the Barnetts' suit for lack of prosecution, and the case action summary sheet indicates that the clerk of the circuit court notified Smith and Livingston on that date that the case had been dismissed.
Smith says that, for some reason unexplained to this Court, he did not actually receive notice of the dismissal until June 12, 1989. Thereafter, on July 5, 1989, Smith, as attorney for the Barnetts, filed a Rule 60, A.R.Civ.P., motion to set aside the judgment of dismissal and requested that the case be restored to the docket. As grounds therefor, Smith stated that in 1985 he had tentatively agreed to represent Lisa Barnett; that Lisa Barnett was to return to his office to discuss a contract for representation and to review her case further; that Amos was her attorney of record until June 10, 1986; that he and Lisa Barnett never actually entered into a contract for representation; and that he had not received a timely copy of the January 5, 1988, order dismissing her case for lack of prosecution. Smith also moved to withdraw as counsel. The court granted Smith's motion to withdraw and allowed Smith to file an affidavit, which stated, in part, that Barnett "was out of the area for an extended period of time"; that no contract for representation had been made; and that he had not received a timely copy of the order of dismissal.
*1084 On August 12, 1989, the court denied the Rule 60, A.R.Civ.P., motion to set aside the dismissal, stating that the court "had lost jurisdiction to grant relief in this case." Lisa and Ernest Barnett appealed.
The Barnetts argue that the trial court had jurisdiction to reinstate this action to the trial docket under Rule 60(b)(6), A.R. Civ.P., which provides for relief from a final judgment, order, or proceeding for "any other reason justifying relief from the operation of the judgment."
This Court has written, regarding Rule 60(b)(6):
Ex parte Hartford Ins. Co., 394 So. 2d 933, 936 (Ala.1981). (Citations omitted.) (Emphasis added.)
In this case, based on a review of the record, we conclude that Rule 60(b)(1), A.R.Civ.P., is applicable to the facts of this case, rather than Rule 60(b)(6). Under the facts apparent from the record, it appears that, at best, the plaintiff could prove only that Smith failed to receive notice of the dismissal for reasons of "mistake, inadvertence, surprise, or excusable neglect." Thus, the four-month time limit for making a Rule 60(b)(1) motion expired on May 5, 1988. Furthermore, even if Rule 60(b)(6) was applicable, we would hold that the motion was not made within "a reasonable time" in this case. The Barnetts took no action in this case between June 10, 1986, and July 5, 1989. The Barnetts have not shown any exceptional circumstances justifying relief under Rule 60(b)(6), and a review of the record discloses no abuse of discretion by the trial court in denying relief from the dismissal.
Accordingly, we hold that the time limit for making the motion had expired and that, as a result, the trial court had lost jurisdiction to grant the motion. Therefore, the judgment is due to be, and it is hereby, affirmed.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and KENNEDY, JJ., concur. | March 16, 1990 |
89ff70fb-ee9e-4874-bde5-ba77b2fac4b4 | Bailey v. Avera | 560 So. 2d 1038 | N/A | Alabama | Alabama Supreme Court | 560 So. 2d 1038 (1990)
W.D. BAILEY
v.
Ralph AVERA and Max Carroll.
88-1344.
Supreme Court of Alabama.
March 9, 1990.
*1039 Joseph E. Sawyer, Enterprise, and Wendell W. Mitchell, Luverne, for appellant.
Frank J. Tipler, Jr. and John M. Pennington of Tipler and Tipler, Andalusia, for appellees.
STEAGALL, Justice.
Plaintiff, W.D. Bailey, sued Ralph Avera and Max Carroll, alleging defamation, invasion of privacy, and intentional infliction of emotional distress. At the close of the plaintiff's evidence, the trial court directed a verdict in favor of the defendants on the count alleging intentional infliction of emotional distress. The jury returned a verdict in the defendants' favor on the remaining counts. Bailey filed a motion for new trial, which was denied. Bailey appeals from the defendants' judgment.
Bailey presents two grounds for reversal: (1) That the trial court erred in giving certain jury charges and in refusing the plaintiff's requested written jury charges relating to defamation and invasion of privacy and (2) that the trial court erred in directing a verdict as to the count alleging intentional infliction of emotional distress.
The first issue raised by Bailey is not properly before this court. Rule 51, Ala.R.Civ.P., reads as follows:
Applying that rule, this Court has said:
Gavin v. Hinrichs, 375 So. 2d 1063, 1064 (Ala.1979) (citations omitted). Bailey made no objection to the trial court's charge before the jury retired and is, therefore, precluded from assigning as error the trial court's jury charges on defamation and invasion of privacy.
This case was filed after June 11, 1987. Accordingly, the "substantial evidence" rule is the standard for review in this Court. See Ala.Code 1975, § 12-21-12. Therefore, the standard of review applicable to a directed verdict would be whether the nonmoving party had presented substantial evidence in support of his position. If he had not, then a directed verdict would be proper. § 12-21-12.
Viewed most favorably to the appellant, the evidence at trial showed the following: In October 1985, Bailey, as chairman of the board of deacons of Brantley Baptist Church, retained the services of an attorney, Merrill Shirley, to represent the church in a lawsuit unrelated to this proceeding. The fee arrangement between the church and Shirley was that Shirley was to receive 20% of any recovery, plus $500 for expenses. In April 1986, a jury returned a verdict for the church in the amount of $100,000. Shirley approached Bailey about settlement of the case and compensation for extra time in preparation for trial. The board of deacons subsequently agreed that any money recovered over $80,000 would be paid to Shirley as an *1040 attorney fee. On May 29, 1986, Shirley recovered $107,500 for the church ($100,000 plus $7,500 accrued interest). Upon receipt of the settlement funds, Shirley presented two checks to Bailey. One check, for $70,400, was from Shirley's trust account; the second check, for $10,000, was from Shirley's personal account as a contribution to the church. Shortly thereafter, the board of deacons decided to deposit the money in the bank.
No one at the church, other than Bailey, knew the amount of recovery or the manner in which the checks were disbursed until the March 17, 1987, deacons' meeting; at that meeting these things were brought to the attention of Avera, the church's pastor. Over the next three months, Avera stated at deacons' meetings and to the congregation on at least one occasion that money was missing from the church. Carroll, a deacon, who was present at these meetings, stated to members of the community, including church members, that the church was missing some money and that Bailey was in charge of handling the church's money. In June 1987, after a vote of no confidence by the church, Bailey was removed as a deacon of the church.
To show that the trial court erred in directing a verdict for the defendants on the count alleging intentional infliction of emotional distress, the plaintiff must show that there was "substantial evidence" that the defendants, by extreme and outrageous conduct, intentionally or recklessly caused severe emotional distress to the plaintiff. This Court, in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1981), defined "extreme" conduct as "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." 394 So. 2d at 365. The Court went on to define "severe emotional distress" as "emotional distress so severe that no reasonable person could be expected to endure it." 394 So. 2d at 365.
The conduct involved in the present case is not so extreme in nature as to constitute "extreme and outrageous conduct." At most, the conduct involved "`mere insults, indignities, threats [or] annoyances' for which the law will not hold one liable in tort." Barrett v. Farmers & Merchants Bank, 451 So. 2d 257, 263-64 (Ala.1984).
The trial judge properly granted the defendants' motion for directed verdict. There was no "substantial evidence" to support the plaintiff's claim of intentional infliction of emotional distress.
The judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and ADAMS, JJ., concur. | March 9, 1990 |
502e2b12-2fa1-4352-a31c-a506f71a13d5 | Ex Parte Knox Kershaw, Inc. | 562 So. 2d 250 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 250 (1990)
Ex parte KNOX KERSHAW, INC., a Corporation.
(Re: KNOX KERSHAW, INC. v. Royce KERSHAW, Jr., and Kershaw Manufacturing Company, Inc.)
88-1200.
Supreme Court of Alabama.
April 12, 1990.
*251 William H. Mills of Redden, Mills & Clark, Birmingham, for petitioner.
Oakley Melton, Jr. and James E. Williams of Melton, Espy & Williams, Montgomery, for respondent.
Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for amicus curiae Miriam M. Kershaw.
ADAMS, Justice.
Petitioner, Knox Kershaw, Inc. (hereinafter "KK, Inc.), requests this Court to compel the Honorable Mark G. Monteil of the Circuit Court of Montgomery County, Alabama, to order the defendants, Royce Kershaw, Jr. (hereinafter "Royce, Jr.") and Kershaw Manufacturing Company, Inc. (hereinafter "KM, Co."), to respond to discovery in a civil contempt proceeding. For the reasons set forth below, the writ is granted.
We recognize that this is not the first time we have been called on to review the non-competition agreements made the basis of this contempt proceeding. Although the facts have been well recited with particularity on two previous occasions by this Court, a brief recitation of the facts is necessary to afford a better grasp of the issues in this appeal.
On March 1, 1985, Knox Kershaw (hereinafter "Knox"), and KK, Inc. filed a complaint seeking a declaratory judgment and an injunction enjoining and restraining Royce, Jr. and KM Co. from leasing railroad maintenance equipment in alleged violation of a covenant in the non-competition agreements. The covenant restricted Royce, Jr. and KM Co. from engaging in any business that was either directly or indirectly competitive with the business conducted by KK, Inc.
After a hearing, the trial judge entered an order in favor of Knox and KK, Inc. on the grounds that the covenant not to compete was valid, and that Royce, Jr. and KM Co. had violated the agreement by attempting to enter into lease agreements. The trial judge's order stated, in part:
On rehearing, the trial judge further clarified the scope of its order granting injunctive relief. That order stated, in part:
On appeal, in Kershaw v. Knox Kershaw, Inc., 523 So. 2d 351 (Ala.1988), this Court modified that part of the trial judge's order pertaining to the validity of the territorial language in the covenant. In all other respects, we affirmed the trial judge's order to the extent that it prohibited Royce Jr. and KM Co., for a five-year period, from leasing anywhere in the United States or Canada where KK, Inc. did business prior to September 1, 1983.[1]
On August 24, 1988, the petitioner, KK, Inc., filed a petition asking that KM Co. and Royce, Jr. be held to be in civil contempt for an alleged violation of the non-competition agreement and the injunctive order. The petition enumerated eight specific instances of alleged violations by Royce and KM Co. On September 23, 1988, KM Co. and Royce filed an answer asserting that the eight instances involved transactions that were lease purchase or demonstration-purchase agreements, which were authorized by the trial judge's order.
At the same time KK Co. filed its contempt petition, it served interrogatories and a request for production of documents on the defendants. That discovery sought information and production of certain documents pertaining to KM Co.'s transactions alleged in the contempt petition.
KM Co. did not answer any of the interrogatories or produce any of the documents, but rather on October 7, 1988, filed objections to the petitioner's interrogatories and request for production of documents. KM Co. objected to the discovery on the ground that the discovery sought information which, it says, "was totally irrelevant, illegal, and immaterial, and which was not reasonably calculated to lead to the discovery of admissible evidence" and on the ground that "the information and documents sought were private, confidential, proprietary, commercial information which Plaintiff was not entitled to obtain as a competitor in the marketplace with these Respondents."
On October 19, 1988, KK, Inc. filed a motion to compel the discovery. On April 11, 1989, KK, Inc. filed a second motion to compel, and a hearing was held on its motion. At the hearing KM Co. and Royce, Jr. provided certain documents for an in camera inspection by the trial judge. Although KK, Inc. contends that it was not aware of the identity, description, or content of the documents, it contends that the documents were evidence of the relationships between KM Co. and the railroads that were made the basis of the contempt proceeding. These documents were purportedly the documents that petitioner sought to discover.
The record indicates that at the hearing the trial judge said that he would "review the documents in camera to determine whether the documents on their face violated the injunctive order." On June 6, 1989, the trial judge entered an order denying the motion to compel all the discovery sought by KK Co.
KK Co. argues that the discovery sought is essential to its preparation for the contempt proceeding. It asserts that the discovery is needed in order to determine if Royce, Jr. and KM Co. entered into transactions with the railroads named in its petition, and, if so, the nature of those transactions, and whether those particular transactions *253 violated the injunction. KM Co. argues that the discovery sought private and confidential commercial information among competitors, the disclosure of which would have been beneficial to KK, Inc. and detrimental to KM Co.
It is well settled that discovery rules should be liberally construed in order to provide the parties with information relevant to the litigation. Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So. 2d 210 (1975). However, Rule 26(c), A.R.Civ.P., recognizes that the right of discovery is not unlimited. The court is given broad power to control the use of the process and to prevent its abuse by any party. The rule does not allow an arbitrary limit on discovery, but instead vests the trial court with discretion in the discovery process. Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala.1976).
Moreover, the trial court's role is to exercise its broad discretion in a manner that will allow full disclosure of relevant information and at the same time afford a party maximum protection against unnecessary disclosure. Ex parte Guerdon Industries, Inc., 373 So. 2d 322 (Ala.1979). Therefore, for this reason, mandamus will issue to compel discovery only in those cases where a clear abuse of discretion is shown. Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981); Ex parte Alabama Power Co., 280 Ala. 586, 196 So. 2d 702 (1967).
When assessing claims of confidentiality or privilege in discovery matters, the trial judge will often order that the documents be submitted for an in camera inspection. Where other portions of the document are discoverable, the trial judge might "excise" those portions of the documents that it finds to be confidential or privileged. This procedure allows the party seeking the discovery to obtain the information he legitimately needs, while at the same time the adverse party's confidences are preserved. Copies of any materials not required to be produced should be placed in a sealed envelope in the custody of the clerk of the court for preservation in the event of possible review by an appellate court.
Moreover, the trial judge could issue a protective order under Rule 26(c), A.R. Civ.P. With respect to protective orders, Rule 26(c) states in part:
KK, Inc. argues that the trial judge effectively prejudged the merits of the contempt proceeding when it refused to allow the discovery. In particular, KK, Inc. argues that the trial judge has reversed the function and purpose of discovery in that discovery precedes, not follows, a determination of the merits of the litigation. We agree.
Royce, Jr. and KM Co. objected generally on the ground that the information sought was confidential. However, they did not seek a protective order or argue with any particularity why the discovery was confidential. Moreover, when the trial judge conducted the in camera examination of the documents, he apparently did not do so to determine if they were indeed confidential, but to determine if the documents violated the injunction. The trial court erred in denying the motion to compel on the basis that the documents did not violate the injunction.
Accordingly, the trial judge abused its discretion in refusing to issue an appropriate order allowing the discovery sought. *254 The trial judge is instructed to order the discovery requested by the petitioner, utilizing the above-described procedures if it finds portions of the discovery to be confidential and not discoverable. Therefore, the writ is due to be, and it is hereby, granted.
WRIT GRANTED.
HORNSBY, C.J., and MADDOX, JONES and ALMON, JJ., concur.
[1] We also note that on remand from this Court the trial court entered an order modifying the judgment as instructed in Kershaw v. Knox Kershaw, Inc., 523 So. 2d 351 (Ala.1988). The trial court ruled that Knox and KK, Inc. were not entitled to damages, attorney fees, or an extension of the injunction. On appeal from that particular order, this Court in Knox Kershaw, Inc. v. Kershaw, 552 So. 2d 126 (Ala.1989), affirmed in part and reversed in part, holding that KK, Inc. was entitled to only nominal damages, an attorney fee, and an extension of the injunction. | April 12, 1990 |
23d5eb58-0631-4503-b193-49ac25d51edb | Phillips v. Knight | 559 So. 2d 564 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 564 (1990)
Wayne PHILLIPS
v.
Jimmy H. KNIGHT.
88-1527.
Supreme Court of Alabama.
March 2, 1990.
*565 Douglas L. McWhorter and Jesse P. Evans III of Najjar, Denaburg, Meyerson, Zarzuar, Max, Wright & Schwartz, Birmingham, for appellant.
Henry C. Wiley, Jr. of Laird and Wiley, Jasper, for appellee.
HORNSBY, Chief Justice.
This is an appeal from an order of the Circuit Court of Walker County finding that a settlement agreement existed between the parties and ordering it enforced. Knight and Phillips were the sole incorporators, officers, directors, and shareholders of Vidco, Inc., and Earthworks, Inc., with each owning 50% of the outstanding stock of both corporations.
Phillips was first to file an action; he filed his action in Jefferson County Circuit Court on July 9, 1985, alleging, among other things, that Knight had breached his fiduciary duties to the two corporations.[1] Knight filed a complaint two days later in the Circuit Court of Walker County alleging that Phillips had breached his fiduciary duties as an officer and director of the two corporations. The circuit judge of Walker County determined that Walker County was the proper forum for the lawsuit.[2] Phillips subsequently filed an answer and a counterclaim in the Walker County suit, alleging that Knight had breached his fiduciary duties to both corporations. Knight's answer to the counterclaim denied these allegations.
In June 1988, Knight's attorney filed a motion to enforce the settlement agreement he alleged had been agreed to by the parties as a result of negotiations that had taken place during the summer of 1986. In July 1988, Phillips hired a new attorney, Danny Lockhart. Lockhart responded to the motion to enforce the settlement agreement by alleging that neither Phillips nor his former attorney, Gould H.K. Blair, had ever agreed to settle the case on Phillips's behalf. This response included an affidavit by Phillips's former attorney, Blair, who stated that he had never had the authority to enter into a settlement agreement on behalf of Phillips. The trial court granted Knight's motion to enforce the settlement agreement, basing its order on the evidence submitted at the hearing on the motion. Phillips appeals from the trial court's order.
Phillips asserts that the trial court erred in three respects: 1) that it abused its discretion by finding facts not supported by the record; 2) that it failed to conduct an evidentiary hearing; and 3) that Phillips's attorney should not have been found to have had the authority to enter into the settlement agreement on behalf of his client. Because we reverse and remand this case to the trial court, we need not discuss the failure of the trial court to hold an evidentiary hearing.
The facts necessary to our decision appear in the trial court's order, as set forth in pertinent part below:
"[list of 15 documents attached necessary to conclude settlement]
At the outset, we note that the usual presumptions of correctness applied to the trial court's findings in ore tenus cases are not applicable here. Hacker v. Carlisle, 388 So. 2d 947, 950 (Ala.1980). We review the evidence presented in the record before us without any presumption of correctness, due to the trial judge's having taken no oral testimony. Ingram v. Pollock, 557 So. 2d 1199 (Ala.1989); Bownes v. Winston County, 481 So. 2d 362, 364 (Ala.1985) ("[w]here the evidence is stipulated, and no testimony is presented orally before the trial court, this Court will review without any presumption in favor of the trial court's findings and sit in judgment on the evidence"); Ex parte British Steel Corp., 426 So. 2d 409, 414 (Ala.1982); Hacker v. Carlisle, supra ("This case was tried without a jury on stipulations and briefs of the parties and primarily documentary evidence. No testimony of any witness was admitted into evidence on any material matter. In such a situation, the appellate court sits in judgment on the evidence") (emphasis original); see also Perdue v. Roberts, 294 Ala. 194, 314 So. 2d 280 (1975); McCulloch v. Roberts, 292 Ala. 451, 454, 296 So. 2d 163 (1974) "[t]his is in effect the negative expression of the ore tenus rule"); Sheehan v. Liberty Mutual Fire Ins. Co., 288 Ala. 137, 258 So. 2d 719 (1972); Kennedy v. State Dept. of Pensions & Security, 277 Ala. 5, 166 So. 2d 736 (1964); Adams v. Logan, 260 Ala. 346, 70 So. 2d 786 (1954); Redwine v. Jackson, 254 Ala. 564, 569, 49 So. 2d 115 (1950); 5 Am Jur 2d Appeal and Error, § 825 at 267 (1962). Thus, we must review the evidence in this case without any presumption in favor of the trial court's ruling.
However, Knight asserts that the trial court had before it "facts as stipulated and agreed upon by the parties" and that those facts were sufficient to support its order. As indicated above, however, there is no transcript of the proceedings of the hearing on the motion. Knight also asserts that Phillips filed no statement as allowed by A.R.App.P. 10(d). He argues that because there is no Rule 10(d) summary, the facts as found by the trial court must be "conclusively presumed" sufficient to support the judgment. Further, Knight correctly contends that it is Phillips's burden to ensure that all the proceedings before the trial court are contained in the record on appeal. Rule 10 imposes no absolute requirement that the appellant file such a statement, even though the burden is on the appellant if one is to be filed. Smith v. Haynes, 364 So. 2d 1168, 1170 (Ala.1978).
*568 A review of the authority cited by Knight persuades us that his argument is misplaced. In Adams v. Adams, 335 So. 2d 174, 176-77 (Ala.Civ.App.1976), the Court of Civil Appeals discussed A.R.App.P. 10(d) and its relation to the former principle set out in Davis v. Wolff, 53 Ala.App. 700, 304 So. 2d 201 (1974) (rev'd, 293 Ala. 408, 304 So. 2d 203 (1974)). As stated in Adams, "the principle was well settled in Alabama that the trial court's findings and conclusions on the facts would not be reviewed when it affirmatively appeared there was evidence before the trial court that was not in the record on appeal." 335 So. 2d at 176. A review of Adams and also of Smith v. Haynes, supra, reveals that in both cases oral testimony was presented to the trial court, yet no transcript was made of that testimony. Because the appellant has the burden to present a record on appeal, he is the party penalized for any omission. Adams held that "Where, as here, it affirmatively appears that oral testimony was considered by the trial court in reaching its decision, and this testimony is not present in the record either as a transcript or as a Rule 10(d) summary, it continues to be conclusively presumed that the testimony is sufficient to support affirmance." Id. at 177.
Here, the trial court's order and the argument of Phillips clearly indicate that the additional evidence was "facts as stipulated and agreed upon by the parties." There was no oral testimony presented to the trial court, and thus we are bound by the standard set forth above from Ingram, supra.
Section 34-3-21, Ala.Code 1975, states that "An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court." We have held that such an "agreement and the judgment entered pursuant to it are binding." Hales v. Roper, 378 So. 2d 225, 229 (Ala.1979), quoting Brocato v. Brocato, 332 So. 2d 722, 723-24 (Ala.1976); see also Bowman v. Integrity Credit Corp., 507 So. 2d 104, 106 (Ala.Civ.App.1987).
It appears from the above statute and our prior cases that either attorney Blair or attorney Wiley would have had the authority to bind his client upon an agreement, made in writing, or by an entry made on the minutes of the court. The record reveals that an entry was made by the trial court, as shown by the affidavit of Joan Miskelley, the official court reporter for Judge James E. Wilson. However, it appears that the understanding of the trial court, as shown by the entry was that a settlement was being negotiated between the parties. The evidence presented to the trial court, specifically the documents forwarded to attorney Blair, were unsigned. There is no document in the record showing that a "meeting of the minds" ever occurred to the extent that any of the documents were signed by Phillips or his attorney. See Ingram v. Pollock, supra. We are also aware that the Alabama Rules of Appellate Procedure provide that "[n]o private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby; provided, however, agreements made in open court or at pretrial conferences are binding, whether such agreements are oral or written." A.R.App.P. 47. This case is unlike those cases where specific proof was sufficient to show the existence of an actual agreement. See Reeves v. Orkin Exterminating Co., 457 So. 2d 402, 404 (Ala. 1984); Brocato v. Brocato, supra. There is no evidence that the agreement was in writing, nor that the agreement was made in open court or at a pre-trial conference. The evidence is quite the reverse. All of the documents in evidence show correspondence from the plaintiff's attorney, H.C. Wiley, to the defendant's attorney, Gould H.K. Blair. There is no return correspondence from Blair, and the documents sent to Blair needing signatures remained unsigned.
*569 We hold, therefore, that the trial court erred, as a matter of law, in granting the motion to enforce the settlement agreement. We reverse and remand to the trial court for the continuation of the proceedings in this matter.
REVERSED AND REMANDED.
JONES, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] We are not concerned in this action with the lawsuit filed in the Circuit Court of Jefferson County.
[2] Any question as to the proper forum for this litigation is not an issue on this appeal.
[3] The record contains no such specific stipulation of facts for our review. | March 2, 1990 |
db2fe7ad-4872-49d1-9f57-390a7aaef5bc | ODOM BY AND THROUGH ODOM v. Blackburn | 559 So. 2d 1080 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 1080 (1990)
Michael Brian ODOM, By and Through his mother and next friend, Melanie Lynn ODOM
v.
L.M. BLACKBURN and Pamela Blackburn.
88-1544.
Supreme Court of Alabama.
March 16, 1990.
Anthony J. Bishop, Evergreen and Mickey Womble, Monroeville, for appellant.
William R. Stokes, Jr. of Stokes, Jernigan & Stokes, Brewton, for appellees.
HOUSTON, Justice.
Plaintiff Michael Brian Odom, a minor, by and through his mother and next friend, Melanie Lynn Odom, appeals from a summary judgment in favor of defendants L.M. Blackburn and Pamela Blackburn in this action to recover damages under Ala.Code 1975, § 6-5-71, for the death of Brian D. Odom, the plaintiff's father. We affirm.
On June 27, 1987, Brian D. Odom was struck by an automobile and killed on a road in Escambia County. The plaintiff filed suit on October 13, 1988, alleging that the defendants, who owned and operated Blackburn's Club, Inc. ("the Club"), a combination package store and bar, had sold alcoholic beverages to his father just prior to his death; that his father had been visibly intoxicated at the time the sale was made; that the sale had been in violation of Chapter 20-X-6.02(4) of the Rules of the Alabama Alcoholic Beverage Control Board; and that the sale had caused or contributed to his father's death. The plaintiff sought damages pursuant to § 6-5-71 and Ala.Code 1975, § 28-3-49.
The defendants filed a motion for a summary judgment on November 29, 1988, supported by their respective affidavits. A hearing on the motion was held on April 25, 1989, at which time the plaintiff submitted the deposition of L.M. Blackburn in opposition. The deposition had been taken on January 16, 1989. The trial court entered a summary judgment for the defendants on *1081 May 2, 1989, without a detailed explanation as to the basis for its ruling, and made that judgment final pursuant to Rule 54(b), Ala. R.Civ.P., on May 6, 1989.[1] On May 9, 1989, the plaintiff filed a response to the defendants' motion for summary judgment, supported by the affidavit of Melanie Odom, and filed a motion to vacate the summary judgment. On May 10, 1989, the defendants filed a motion to strike the affidavit of Melanie Odom on several grounds, including the ground that it was untimely. The defendants also filed a response to the plaintiff's motion to vacate the summary judgment. The trial court did not rule on either motion. The plaintiff's motion to vacate the summary judgment was denied by operation of law pursuant to Rule 59.1, Ala.R.Civ.P. This appeal followed.
Summary judgment is proper when there is no genuine issue of material fact as to any element of a plaintiff's cause of action and the defendant 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 filed on October 13, 1988; therefore, the "substantial evidence rule" is applicable. Ala.Code 1975, § 12-21-12.
Section 6-5-71, supra, reads, in pertinent part, as follows:
Section 28-3-49(a), supra, states that rules promulgated by the Alabama Alcoholic Beverage Control Board "have the full force and effect of law." Chapter 20-X-6.02(4) provides: "No on premise licensee may serve a person any alcoholic beverage if such person is acting in such a manner as to appear to be intoxicated." See Vol. 1, Alabama Administrative Code.
The defendants concede that Brian D. Odom was present in the Club on the evening of his death. They contend, however, that the undisputed evidence showed that while he was there, Odom did not act "in such a manner as to appear to be intoxicated." Therefore, they argue, the summary judgment was proper. The plaintiff argues that the defendants did not raise this issue in their motion for summary judgment and, therefore, that they are precluded from raising it now on appeal. We disagree.
The motion for summary judgment reads, in pertinent part, as follows:
The abolition of the "scintilla of evidence rule" did not change the normal procedure for handling the burden of proof in summary judgment cases. If a defendant moves for a summary judgment and makes a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the plaintiff to present substantial evidence in support of his position. Bass v. SouthTrust Bank, 538 So. 2d 794 (Ala. 1989). The defendants' affidavits submitted *1082 in support of their motion in the present case did not make the necessary prima facie showing that Odom was not visibly intoxicated while he was at the Club on the evening of June 27, 1987. Therefore, the evidentiary showing that was made by the defendants did not shift the burden to the plaintiff to show that his father was visibly intoxicated while he was in the Club. Bass v. SouthTrust Bank, supra. However, on the day of the hearing on the motion for summary judgment, the plaintiff submitted the deposition of L.M. Blackburn to the trial court. Blackburn's deposition testimony revealed that Blackburn had been present at the Club on the evening of June 27, 1987; that he had observed Odom for five to seven minutes; and that he had asked Odom to leave the Club because Odom was being disruptive. Blackburn testified in deposition that he never saw Odom holding or drinking an alcoholic beverage and that Odom did not appear to be intoxicated. Blackburn further stated that he had no basis upon which to conclude that Odom's disruptive behavior had been caused by intoxication.
Because Blackburn's deposition was properly before the trial court for its consideration, see Kutack v. Winn-Dixie Louisiana, Inc., 411 So. 2d 137, 139 (Ala.1982) ("a trial court pursuant to Rule 56 may properly consider any material that would be admissible at trial and all evidence of record as well as material submitted in support of or in opposition to the motion when ruling on a motion for summary judgment" (emphasis in original)), it was incumbent upon the plaintiff, who had full knowledge of the contents of the deposition, to present sufficient evidence to show that a genuine issue of fact existed as to whether Odom was visibly intoxicated while he was at the Club on the evening of June 27, 1987. Although the plaintiff had sufficient time (approximately three months) in which to discover and present any evidence that would have rebutted Blackburn's testimony in this regard, he did not do so.
The record does not contain a transcript of the April 25, 1989, hearing on the summary judgment motion; therefore, we are not privy to the arguments that were made to the trial court at that time. Likewise, the trial court did not detail its reasons for entering the summary judgment. However, the record shows that the defendants were entitled to a judgment, because there was no genuine issue as to whether Odom had acted in such a manner as to appear to be intoxicated while at the Club. 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. Tucker v. Nichols, 431 So. 2d 1263 (Ala.1983). Furthermore, by not ruling on the plaintiff's motion to vacate the summary judgment, and thereby allowing it to be denied by operation of law, the trial court allowed its May 2, 1989, judgment to stand. In so doing, the trial court could have properly considered the affidavit of Melanie Odom to be untimely and could have refused to consider it.
For the foregoing reasons, we hold that the summary judgment was proper.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The Club was also named as a defendant; the claim against it remains pending. | March 16, 1990 |
35454d84-6af3-4cb2-ace8-0c8fe4c5e68f | Ex Parte Siebert | 562 So. 2d 600 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 600 (1990)
Ex parte Danial L. SIEBERT.
(Re Danial L. Siebert v. State of Alabama.)
89-269.
Supreme Court of Alabama.
March 30, 1990.
Rehearing Denied May 4, 1990.
William J. Willingham, Talladega, for petitioner.
Don Siegelman, Atty. Gen., and Mary Ellen Forehand and William D. Little, Asst. Attys. Gen., for respondent.
PER CURIAM.
We have carefully considered the petition for review of the opinion and judgment of the Court of Criminal Appeals affirming Danial L. Siebert's conviction of the capital murder of Linda Jarman and his sentence of death; additionally, we have made an independent and thorough review of the entire record of trial, including the bifurcated sentencing hearing. We find no error or defect in the proceedings that adversely affected the rights of the defendant. Therefore, the judgment of the Court of Criminal Appeals upholding Siebert's conviction and death sentence is due to be, and it hereby is, affirmed. For a full statement of the facts, the issues presented, and the disposition thereof by the Court of Criminal Appeals, see its opinion in Siebert v. State, 562 So. 2d 586 (Ala.Crim.App. 1989); see, also, Ex parte Siebert, 555 So. 2d 780 (Ala.1989) (reviewing many of the same issues presented here and affirming Siebert's conviction and death sentence for the capital murders of Sherry Weathers and her two sons).
AFFIRMED.
*601 HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | March 30, 1990 |
75970e0c-dcc8-480d-a591-97a52b772df3 | Professional Check Service, Inc. v. Dutton | 560 So. 2d 755 | N/A | Alabama | Alabama Supreme Court | 560 So. 2d 755 (1990)
PROFESSIONAL CHECK SERVICE, INC.
v.
Melba DUTTON, District Court Clerk, Morgan County; and Bob Burrell, Morgan County District Attorney.
89-462.
Supreme Court of Alabama.
March 16, 1990.
*756 John Zingarelli of Teague & Zingarelli, Decatur, for appellant Professional Check Service, Inc.
Don Siegelman, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee Melba Dutton.
Robert H. Harris and Barnes F. Lovelace, Jr. of Harris, Caddell & Shanks, Decatur, for appellee Bob Burrell.
SHORES, Justice.
This is an appeal by Professional Check Service, Inc. ("Professional Check"), from the denial of a motion for a writ of mandamus by the Morgan County Circuit Court. The writ of mandamus sought to compel the clerk of the Morgan County District Court to accept, from Professional Check, warrant affidavits against writers of bad checks and to compel the county district attorney to prosecute such cases.
Professional Check is a corporation that processes bad checks for merchants. Pursuant to arrangements among the merchants, Professional Check, and various banks, the banks would return dishonored *757 checks directly to Professional Check. Professional Check would then notify the drawer of the check by letter or telephone that the check had been returned and would request payment of the check plus a $10.00 service charge. If the drawer did not respond, Professional Check would send the drawer a certified letter threatening criminal prosecution. Then, if the drawer did not respond to this letter, Professional Check would contact the merchant for further instruction.
If the merchant instructed Professional Check to take the dishonored check to the magistrate, the merchant would complete an information sheet to determine whether the check would be suitable for prosecution. If the check was suitable for prosecution, the president of Professional Check, David Thompson, would present the check to Melba Dutton, clerk of the Morgan County District Court. Mr. Thompson would then testify under oath as to the items on the information sheet and give Ms. Dutton a copy of the certified letter and the returned check. If she found reasonable grounds to believe the drawer was guilty, Ms. Dutton would issue a warrant.
Upon learning that other district court clerks would not issue warrants for the offense of writing worthless checks based on affidavits signed by persons other than the victims, Ms. Dutton requested an opinion from the Attorney General of the State of Alabama regarding who was the proper affiant in the case of a warrant for the offense of writing worthless checks. On August 1, 1988, the Attorney General issued an opinion stating that a representative of a private check collection agency was not the proper party to sign the affidavit on which the warrant was issued, but, rather, that the victim of the offense was the proper person to sign the affidavit for an arrest warrant for the drawer of a worthless check.
On September 2, 1988, Professional Check filed, in the Morgan County Circuit Court, its petition for a writ of mandamus to compel the clerk of the Morgan County District Court to accept its warrant affidavits and to compel the county district attorney to prosecute the cases involved. Ms. Dutton filed a counterclaim, asking the court to declare whether she was required to issue the warrants on Mr. Thompson's affidavits.
The circuit court held that the victim of the offense of writing a worthless check was the proper person to swear out a complaint. This Court has held that affidavits for arrest warrants may not be based on mere conclusions that the offense has been committed, but, rather, must contain the factual basis for such a conclusion. Crittenden v. State, 476 So. 2d 632 (Ala. 1985). Under § 15-7-2, Code of Alabama 1975, a judge or magistrate is authorized to question a complainant who testifies that "in his opinion" an offense has been committed. This section further provides that the depositions taken by the judge or magistrate "must set forth the facts ... tending to establish the commission of the offense and the guilt of the defendant." Consistent with this law, the Attorney General, in an earlier opinion, issued on December 6, 1985, had stated that the complaint in a worthless check prosecution must be based on the complainant's personal knowledge of the commission of the offense and, in the opinion requested in regard to the present controversy, the Attorney General stated that the complainant in such prosecutions must be the victim. We affirm the judgment of the circuit court and hold that, in worthless check prosecutions, the proper person to sign the affidavit for a warrant is the victim of the offense. If the victim is a business, then an employee of that business who has personal knowledge of the offense may sign the affidavit.
Professional Check argues that it is the agent of the merchants involved and, thus, that it should be allowed to sign the affidavit. The circuit court found that Professional Check was not an agent of the merchants but was "a contractor in the business of collecting money owed for worthless checks given to merchants, i.e., a collecting agency." As noted by the circuit *758 court, the settled public policy of this state is that "criminal courts may not and must not be used for the purpose of collecting debts." See Harris v. State, 378 So. 2d 257 (Ala.Cr.App.), cert. denied, 378 So. 2d 263 (Ala.1979); Tolbert v. State, 294 Ala. 738, 321 So. 2d 227 (1975). The circuit court also found that Professional Check was not a holder of the instrument entitled to payment of the check or a holder in due course. The trial judge's findings in this case were based on ore tenus testimony. Thus, the findings are accorded a presumption of correctness and will not be disturbed on appeal unless they are plainly and palpably wrong. Russell v. Mullis, 479 So. 2d 727 (Ala.1985). The record supports the trial court's findings that the representatives of Professional Check are not agents, holders, or holders in due course.
The circuit court properly held that the writ of mandamus will not lie in this case to compel the issuance of the warrant by the magistrate or to compel the district attorney to prosecute the case. The writ will not lie to compel the performance of a discretionary function. McDowell-Purcell, Inc. v. Bass, 370 So. 2d 942 (Ala.1979); Deloney v. Teague, 508 So. 2d 1174 (Ala.Civ.App.1987). Under § 15-7-3, Code of Alabama 1975, the magistrate is to issue an arrest warrant only if he is reasonably satisfied that there are reasonable grounds to believe that the defendant is guilty of the offense complained of. Section 12-17-224, Code of Alabama 1975, provides for the operation of a worthless check unit under the discretion of the district attorney. Further, Ms. Dutton and the district attorney were clearly not abusing their discretionary duties by refusing to accept Thompson's affidavits and refusing to prosecute the cases. They were acting pursuant to the Attorney General's opinion, the statutory and case law of this state, and the public policy of the state.
The circuit court correctly held that it was not bound by the decisions of a bankruptcy court and a federal district court that had found that merchants could contract with Professional Check to initiate criminal prosecutions without violating the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., or the Alabama Worthless Check Act, § 13A-9-13.1 et seq., Campbell v. Thompson, BK 86-1697 (Bankr.N.D.Ala., Jan. 12, 1988); aff'd, CV 88-H-5105-NE (N.D.Ala., May 23, 1988). Neither federal decision dealt with the interpretation of § 15-7-2 and -3, Code of Alabama 1975, or the question whether persons signing affidavits to secure warrants against drawers of worthless check are required to have personal knowledge of the offense.
The judgment of the circuit court is therefore affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | March 16, 1990 |
c474ac12-c85a-48dd-a807-fef20ec449ad | McClure v. Moore | 565 So. 2d 8 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 8 (1990)
Virginia Moore McCLURE, et al.
v.
Irene J. MOORE, et al.
88-1367.
Supreme Court of Alabama.
March 2, 1990.
Rehearing Denied June 1, 1990.
Isaac P. Espy of Espy, Nettles and Scogin, Tuscaloosa, for appellants.
Jonathan A. Brown, Vernon, for appellees.
HORNSBY, Chief Justice.
The plaintiffs sought the imposition of a resulting or constructive trust in regard to certain lands in Lamar County, Alabama. Alternatively, they sought reimbursement of expenses incurred in reliance upon certain promises regarding that land. They claim that defendant Irene Moore committed fraud when she sold 89 acres of land, which the plaintiffs contend was rightfully theirs, to Fred Moore. The plaintiffs claim that Irene Moore had promised them that she would leave that 89 acres to them upon her death and that her promise to do so was evidenced in her will.
Curtis Moore (now deceased) and his second wife, defendant Irene Moore, residents of Lowndes County, Mississippi, owned approximately 91 acres of land (as joint tenants with right of survivorship) located in the Sulligent area of Lamar County, Alabama. Curtis Moore's only child by his first wife is Virginia Moore McClure, one of the plaintiffs in this action. The other plaintiffs are Virginia's husband, Robert McClure; Virginia and Robert's daughter, Teresa McClure Rogers; and Teresa's husband, Jerry Wayne Rogers.
The record reveals the following facts, which are set forth chronologically: Negotiations between Curtis Moore, Irene Moore, Virginia McClure, and Robert McClure sometime between 1968 and 1971 resulted in the conveyance of 2 acres of the *9 91 acres to the McClures by the Moores. The McClures were living in Arizona at the time of these negotiations. The record reveals that because Curtis Moore wanted his daughter closer to him, he made a gift of the two acres. There was a "general family understanding," according to the plaintiffs, that the McClures would receive the remainder of the Moores' property upon the death of both Curtis and Irene Moore. The McClures eventually built a house on the two acres and built a barn on that part of the remaining 89 acres nearest the McClures.
In 1971, both Curtis and Irene Moore executed wills. Each spouse was the principal beneficiary of the other's will. Both wills also contained a contingent beneficiary provision by which the remaining 89 acres would be devised to Virginia Moore McClure and Teresa McClure Rogers equally. Both Curtis and Irene executed new wills in 1978 that also included this contingent beneficiary provision.
On December 19, 1983, Curtis Moore executed a purported one-sentence holographic will. This document stated:
Virginia testified that this will was given to her by her father at her home one week before his death. The witness was a mechanic working on Teresa Rogers's automobile on that day.
On December 26, 1983, Curtis Moore died of a heart attack. On January 12, 1984, his 1978 will was filed for probate in Lowndes County, Mississippi. The record reveals that the holographic will was not admitted to probate in Mississippi "due to the statute of limitations."[1] In December 1987, the 1978 will was also filed for probate in an ancillary proceeding in Lamar County, Alabama.
During the summer of 1984, Teresa and Jerry Wayne Rogers had discussions with Irene Moore that resulted in the Rogerses' moving and permanently installing a mobile home on the 89-acre tract. They built a deck on the rear of the mobile home and poured a concrete slab for a screened porch on the front. The Rogerses also installed a dog kennel. When the well went dry, they installed 1500 feet of water line. They also installed a septic tank.
During the spring of 1987, additional discussions took place between the Rogerses and Irene Moore. As a result, the old homeplace on the property, near the mobile home, was torn down. The Rogerses testified that Irene gave them permission to tear down the house and gave them continued assurance that their improvement to the land would benefit only Teresa, since she was to inherit the property.
In August 1987, Irene Moore conveyed the remaining 89 acres to Fred Moore (Curtis Moore's cousin) for $40,000. Fred Moore then conveyed the same 89 acres to himself and his wife as joint tenants with right of survivorship.
The McClures and the Rogerses filed a complaint against Irene and Fred and Fred's wife. The complaint alleged the following: That both Curtis and Irene Moore had promised Virginia and Teresa that the remaining 89 acres would be left to them upon the deaths of both Curtis and Irene; that the McClures built a house on the 2 acres given to them by the Moores in reliance on the promise that the 89 acres would be left to Virginia and Teresa; that the Rogerses moved a trailer onto the 89 acres, also in reliance upon Curtis and Irene's promise that Teresa would eventually inherit one-half of the property; and that after Curtis's death Irene continued to represent to Virginia and Teresa that they would inherit the property, but only to keep Virginia from contesting Curtis's 1978 will with the 1983 holographic will. The complaint requested the imposition of a "resulting" or "constructive" trust, or in the alternative, reimbursement for the expenses incurred by the McClures and the Rogerses in reliance upon the promises made by Irene.
*10 The case was presented to the judge without a jury. After hearing testimony from Virginia McClure and Teresa and Jerry Wayne Rogers and considering selected deposition testimony of Irene Moore, the trial judge, upon motion, granted a "directed verdict"[2] in favor of the defendants.
The order of the trial court is set forth below:
The plaintiffs present the following issues: 1) whether a breach of contract to make or not to revoke a will is actionable; and 2) whether the plaintiffs proved a breach of contract that would support the imposition of a trust.[3]
We note at the outset that "[w]here the evidence before the trial court is undisputed... the ore tenus rule is inapplicable and the appellate court shall sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to the facts." Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538, 542 (Ala.1988).
For a constructive trust to be imposed, either the property must have been acquired by fraud or it must be inequitable to allow the property to be retained by him who holds it. See Pihakis v. Pihakis, 496 So. 2d 765, 768 (Ala.1986); Smith v. Davis, 352 So. 2d 451, 454 (Ala.Civ.App.1977). The fraud must have been present in the original transaction and must not have occurred later. Ledbetter v. Ledbetter, 271 Ala. 629, 630, 126 So. 2d 477 (1961); citing Talley v. Talley, 248 Ala. 84, 26 So. 2d 586 (1946). Here, the only alleged violation of the plaintiffs' rights is said to have occurred years after the wills were executed. For fraud to exist, Irene Moore must have intentionally deceived the plaintiffs at the time her will was executed. See Ledbetter, 271 Ala. at 631, 126 So. 2d 477.
The trial court found no evidence of misrepresentation. There is no evidence in the record to indicate that Irene Moore intentionally deceived the plaintiffs at the time the promise to will the land was made. On the contrary, the record indicates that at the time they were made Irene Moore fully intended to fulfill these promises. It appears from the record that she simply changed her mind due to a change in her relationship with the plaintiffs. See Brothers v. Moore, 349 So. 2d 1107 (Ala.1977); Sims v. Reinert, 285 Ala. 658, 235 So. 2d 802 (1970). We also find no evidence of misrepresentation.
The plaintiffs' authority cited in support of their request for a constructive trust does not support their claim. The cases cited support the general rule that when a *11 promisor repudiates a contract (made during the lifetime of the promisor to convey or to will property in consideration of services or support) and conveys or attempts to convey the promised property to others, a constructive trust may be imposed if there had been substantial performance on the part of the promisee.
The plaintiffs argue, alternatively, that a resulting trust was created. Resulting trusts are mainly in two categories those arising as the result of the failure of an express trust, and those arising on a conveyance to one person on a consideration from another. Pihakis v. Pihakis, 496 So. 2d 765, 767 (Ala.1986); Smith v. Davis, supra. The law in Alabama, however, concerning resulting trusts is that "they arise only where one has purchased property with the funds of another and has taken title in himself." Pihakis, 496 So. 2d at 767, citing Ledbetter v. Ledbetter, 271 Ala. 629, 126 So. 2d 477 (1961) (emphasis supplied). Because there was no purchase of the property, no resulting trust was created here.
We take note additionally of Ala.Code 1975, § 35-4-256, which states that "No such trusts [i.e., trusts concerning land, see § 35-4-255] whether implied by law or declared by the parties, can defeat the title of creditors or purchasers for a valuable consideration without notice." Thus, even if a trust was created by implication of law, it could not defeat Fred Moore's title, because the record shows that he purchased "for a valuable consideration without notice."
Ala.Code 1975, § 43-8-250, states:
The record indicates no compliance with this section.
The evidence, even though not discussed in the trial court's order, was sufficient also to support a finding that there was no contract to devise the 89 acres. Additionally, we note that even if there had been a contract, the judge could have found that there had been no compliance with the Statute of Frauds. See Ala.Code 1975, § 8-9-2. In fact, the evidence clearly indicates that there was no compliance with the Statute of Frauds and no compliance with Ala.Code 1975, § 43-8-250. The judgment denying the imposition of a trust was well supported by the evidence.
Assuming arguendo that such a contract did exist, the record shows no promise by the McClures or the Rogerses to serve or support in any way. The plaintiffs' only testimony as to possible consideration is that of Virginia McClure. She stated that she would not have spent all those years on the 2 acres if she had known she would not receive half of the other 89 acres. The record contained statements regarding some help given Irene Moore by the plaintiffs when Irene was in the hospital and regarding occasions when the plaintiffs did Irene's laundry. From our review of the record as a whole, we think it clear that this help was not given by the plaintiff as consideration under any alleged contract.
The trial judge made no ruling on the claim for reimbursement for expenses allegedly incurred in reliance on the promise. We must take that failure to rule as a denial of that claim. See Poston v. Gaddis, 372 So. 2d 1099, 1101 (Ala.1979). The appellants do not argue here that that denial was error. Therefore, in that regard we have nothing to review.
Because we find no basis for reversal, the judgment of the trial court is due to be affirmed.
AFFIRMED.
JONES, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] We make no determination as to the validity of the holographic will under either Mississippi law or Alabama law.
[2] We note that in a non-jury case the proper term would be a motion for dismissal. See A.R.Civ.P. 41(b); see also Quick v. Director of State of Alabama Dep't of Ind. Rel., 398 So. 2d 312, 314 (Ala.Civ.App.1981).
[3] The defendants did not file a brief on this appeal. While the plaintiffs structured the issues so as to address a breach of contract claim, the brief actually argues a constructive trust theory. | March 2, 1990 |
825cbe41-f63e-4819-b3fa-0ac45c1f1d41 | Ex Parte Holifield | 562 So. 2d 254 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 254 (1990)
Ex parte Clarence Ronald HOLIFIELD.
(Re Clarence Ronald Holifield v. State.)
89-332.
Supreme Court of Alabama.
March 23, 1990.
T. Jefferson Deen III and Gordon G. Armstrong III of Clark, Deen & Copeland, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for respondent.
SHORES, Justice.
Upon preliminary consideration, we granted the petition for the writ of certiorari to determine whether the opinion of the Court of Criminal Appeals in this case conflicts with the opinion in Williams v. State, 520 So. 2d 179 (Ala.Cr.App.1987).
Specifically, we granted the writ to determine whether the trial court erred to reversal *255 in its oral charge to the jury, when it stated:
In Williams v. State the Court of Criminal Appeals held that it is error for the trial court to assert a legal presumption of truthfulness of witnesses' testimony. "This is not the law and is error." Id. at 181. The court said:
520 So. 2d 179, 181 (Ala.Cr.App.1987).
However, the stating of such a charge can be harmless error. Rule 45, A.R. App.P., states in pertinent part: "No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."
We have carefully reviewed the trial court's oral charge to the jury in Holifield's case in its entirety. From our review, we conclude that any error by the trial judge was cured by the complete charge and was therefore harmless and caused no prejudice to the defendant. "The fact that isolated instructions are erroneous or misleading is no ground for reversal where the instruction as a whole presents the case properly." Harris v. State, 412 So. 2d 1278, 1281 (Ala. Cr.App.1982). See, in accord, Touart v. State, 562 So. 2d 625 (Ala.Cr.App.1989), Williams v. State, 538 So. 2d 1250 (Ala.Cr. App.1988), and Weaver v. State, [Ms. 1 Div. 748, December 1, 1989) ___ So.2d ___ (Ala. Cr.App.1989).
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | March 23, 1990 |
8fb165a0-c0a8-4adc-ba54-69e3fae60149 | Ex Parte Clay | 562 So. 2d 1307 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 1307 (1990)
Ex parte Mary Louise CLAY.
(Re Mary Louise Clay v. State.)
89-204.
Supreme Court of Alabama.
March 16, 1990.
Norman Bradley, Jr. of Callaway and Bradley, Huntsville, for petitioner.
Don Siegelman, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for respondent.
*1308 SHORES, Justice.
Mary Louise Clay was charged with first degree theft of services in Madison County. She pleaded guilty to a reduced charge of second degree theft of services and received a sentence of a year and a day in the penitentiary. The Court of Criminal Appeals affirmed, without issuing an opinion. 553 So. 2d 137 (Ala.Crim.App.1989). We issued our writ of certiorari to determine whether the trial court erred in failing to inquire about a plea bargain and in refusing Clay's timely request to withdraw her guilty plea.
Clay was indicted for first degree theft of services in violation of Alabama Code 1975, § 13A-8-10, for intentionally obtaining accommodations or rent in the value of $9,597 by providing false information to the Huntsville Housing Authority. On March 6, 1989, Clay appeared in open court with appointed counsel, and the charge was reduced at a hearing before the trial judge. Clay stated that she had looked at the form that explained her constitutional rights and the implications of a guilty plea, which was executed pursuant to Ireland v. State, 47 Ala.App. 65, 250 So. 2d 602 (1971). The trial court then thoroughly informed her of her right to a jury trial and of the presumption of innocence. Clay denied that she was entering her guilty plea in response to a threat or a promise of a deal or any benefit. She acknowledged that she was aware of the range of punishment and that even though her attorney and the district attorney may have discussed a certain punishment, the court was not bound by any discussions they may have had. A factual basis for the plea was given, and Clay then pleaded guilty to the charge.
Sentencing was deferred until March 31, 1989. On March 31, Clay appeared in court with a different defense attorney (although it appears that the two defense attorneys were associates), and the attorney from the Madison County District Attorney's office was not the same as the one who had been present when Clay entered her guilty plea. Before the court sentenced Clay, her attorney stated that it was his understanding that Clay had pleaded guilty specifically on the inducement of the State in the form of a plea bargain. Defense counsel stated that under the terms of the plea bargain, Clay would plead guilty and receive a term of a year and a day, suspended for five years, probation, and would pay restitution, costs, and attorney fees. In response, the trial judge stated:
The trial judge sentenced Clay to serve a year and a day in the penitentiary and to pay court costs, attorney fees, and $25 to the Crime Victims Compensation Fund.
After the court announced the sentence, Clay's attorney moved to withdraw her guilty plea on grounds that the trial court had declined to follow the plea agreement reached between the defendant and the district attorney's office. The judge then stated:
Neither the trial judge nor defense counsel asked the prosecuting attorney whether a plea agreement had been reached, and the prosecutor did not admit or deny that an agreement had been negotiated.
On appeal, Clay argues, first, that the trial court failed to allow the terms of the plea bargain to be presented before it accepted the plea and that that failure was error, and, second, that the court abused its *1309 discretion in refusing her request to withdraw her guilty plea.
Clay's first argument is meritless. She has cited several cases to support her contention that the trial court erred in failing to allow the terms of the plea bargain to be submitted for its consideration before she was required to plead. E.g., Ex parte Sides, 501 So. 2d 1262 (Ala.1986). However, we stated in those cases that a trial court should consider the terms of a plea bargain at the defendant's request, and Clay failed to mention the plea agreement to the trial court before she entered her plea. Nothing in the record suggests that the court refused to consider the terms of any agreement reached by the parties, or that it would not have considered the terms if they had been submitted for its consideration.
Clay's second argument on appeal is that the court erred to reversal in denying her motion to withdraw her guilty plea after it declined to follow the plea agreement. In Ex parte Yarber, 437 So. 2d 1330 (Ala. 1983), this Court held that once the State enters into a plea agreement with a defendant, the State cannot repudiate the agreement with impunity, and that the defendant has the right to have the agreement submitted to the court if he so requests. The trial court is not bound to accept the agreement, but "[w]hen the trial judge decides not to carry out an agreement reached between the prosecutor and the defense counsel, the accused must be afforded the opportunity to withdraw his or her guilty plea on motion promptly made." Ex parte Otinger, 493 So. 2d 1362, 1364 (Ala.1986). The State does not quarrel with these established principles of law.
However, before these principles can be applied by a trial court, the threshold question of whether a plea agreement exists must be determined. The trial court has the power to determine whether such an agreement exists, Congo v. State, 455 So. 2d 896, 897 (Ala.1984), and is in the best position to ascertain the facts and determine the intent of the parties. As a result, a trial court's decision regarding the existence of a plea bargain agreement is not readily disturbed on review. For example, in Fuller v. State, 481 So. 2d 1178 (Ala. Crim.App.1985), the trial court considered testimony, as well as the arguments of defense counsel and of the State at the sentencing hearing, before it entered a finding that no plea agreement existed. The Court of Criminal Appeals upheld the trial court's determination, stating that there was nothing in the record on appeal that discredited the decision. See also, Ex parte Swain, 527 So. 2d 1279 (Ala.1988).
This threshold question of whether a plea agreement existed was never directly addressed by the trial court in this case. Before the court sentenced Clay, defense counsel argued that a plea agreement had been reached and specified the terms of the alleged agreement, and the prosecutor stood by silently. At that point, the trial judge acknowledged that an agreement may have been reached, but stated that at the plea hearing nothing had been said about a plea arrangement. Instead of making a finding on the existence of a plea agreement, the trial judge noted that Clay had been advised of her rights and of the potential liability, but stated that the record "will speak for itself." The State now contends that no plea agreement existed.
The problem presented by this case, that is, whether the State and the defendant had actually reached a plea agreement, has repeatedly appeared in the Court of Criminal Appeals and in this Court. On previous occasions, we have set out a recommended solution, and we believe it is necessary to do so once again:
Proper resolution of this case necessitates a factual determination of whether defense counsel and the prosecutor had reached a plea agreement, and, if so, a determination of the terms of the agreement. Therefore, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded with instructions for that court to remand the cause to the circuit court for an evidentiary hearing on the issue of whether a negotiated plea agreement was reached and, if so, what the terms of that agreement were. The circuit court is instructed to prepare written findings of fact on this matter and to further proceed in a manner consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, JONES, ALMON, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | March 16, 1990 |
6f65032e-2656-4c74-b71c-4a7c81f9ae16 | Ex Parte Boswell | 558 So. 2d 918 | N/A | Alabama | Alabama Supreme Court | 558 So. 2d 918 (1990)
Ex parte Mark BOSWELL.
(In re STATE of Alabama v. Mark BOSWELL).
89-26.
Supreme Court of Alabama.
February 16, 1990.
*919 Paul D. Brown, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for respondent.
STEAGALL, Justice.
Mark Boswell petitions this Court for the issuance of a writ of mandamus ordering the Mobile District Court to process his appeal to the Court of Criminal Appeals.
On July 6, 1989, following a bench trial, Boswell was convicted of second degree possession of marijuana, pursuant to Ala. Code 1975, § 13A-12-214. For this conviction, Boswell received a sentence of one year's imprisonment, which was suspended with two years' probation, and a fine of $250. On July 18, 1989, Boswell filed a notice of appeal of his conviction and sentence to the Court of Criminal Appeals, pursuant to Ala.Code 1975, § 12-12-72(1), which the district court "denied" and failed to process. Following the trial court's denial of his motion to reconsider, Boswell filed with the Court of Criminal Appeals a petition for the issuance of a writ of mandamus ordering the Mobile District Court to process his appeal to that court. On September 26, 1989, the Court of Criminal Appeals denied his petition, 553 So. 2d 136. Boswell's petition is now before this Court for a de novo review pursuant to Rule 21(e), A.R.App.P.
Pursuant to § 12-12-72, Boswell may appeal directly to the appropriate appellate court. Section 12-12-72 provides:
"Appeals shall be directly to the appropriate court if:
The statute does not provide for an "objection to the record" but rather requires in the alternative "an adequate record" or a "stipulation of facts." In the case before us, the proceedings were recorded by a court reporter; the State was represented throughout the proceeding by an assistant district attorney, who offered no objection to the manner of recording the proceeding.[1] After Boswell filed a notice of appeal to the Alabama Court of Criminal Appeals, the trial court noted that the State "objects to the record." However, there has been no *920 showing by the State that the record is defective, not substantially true and correct, or otherwise not "adequate." See Dobbs v. State Dept. of Pensions & Security, 484 So. 2d 1052 (Ala. 1984).
We have examined the record in this case, including a transcript of the proceedings before the trial court, and we find that the record is an "adequate record" within the meaning of § 12-12-72(1).
The dispositive issue presented by this petition is, therefore, whether on a misdemeanor appeal the State is entitled to a jury trial. If it is, then it can, by refusing to waive the jury-trial right, prevent Boswell from appealing directly to the Court to Criminal Appeals pursuant to § 12-12-72(1). This is an issue of first impression in Alabama.
This Court has previously held in Singleton v. State, 288 Ala. 519, 262 So. 2d 768 (1971), that in a noncapital felony case the defendant may waive a trial by jury with the consent of the State and the trial court. However, that case did not extend to misdemeanor charges and, therefore, is not applicable to the case before us.
The district judge stated in his order denying rehearing of his order "denying" the appeal:
The district judge's reliance on § 12-12-71 is misplaced. Section 12-12-71 provides:
McDaniel v. State, 397 So. 2d 237 (Ala. Crim.App.), cert. denied, 397 So. 2d 239 (Ala.1981) (emphasis added).
The position of the Court of Criminal Appeals in McDaniel limiting § 12-12-71 to criminal defendants, civil plaintiffs, or civil defendants is supported by the Alabama Constitution. The Declaration of Rights set forth in Article I of the Alabama Constitution declares "[t]hat the right of trial by jury shall remain inviolate." Article I, § 11, Alabama Constitution of 1901. Section 6 further provides, in part, "[t]hat in all criminal prosecutions, the accused has a right ... in all prosecutions by indictment, [to] a speedy, public trial, by an impartial jury...." Article I, § 6, Alabama Constitution of 1901 (emphasis added).
These rights were established for the benefit and protection of the citizens of Alabama. Our constitution also declares:
Article I, § 36, Alabama Constitution of 1901 (emphasis added).
Ala.Code 1975, § 15-14-30, provides, in part:
(Emphasis added.) Applying § 15-14-30 and the above-stated provisions of the Alabama Constitution of 1901, we conclude that the State is not a party entitled to demand a trial by jury on a misdemeanor appeal within the meaning of § 12-12-72(1).
In light of our conclusion that the State is not a party entitled to a trial by jury on a misdemeanor appeal, within the meaning of § 12-12-72(1), its failure to waive the right to a jury trial has no effect and does not prevent Boswell's right to a direct appeal to the Court of Criminal Appeals. We hereby grant Boswell's petition for a writ of mandamus ordering the Mobile District Court to process his appeal to the Court of Criminal Appeals.
WRIT GRANTED.
HORNSBY, C.J., and JONES, SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX and HOUSTON, JJ., concur in the result.
[1] It appears that Boswell and the State each agreed to pay one-half the cost of hiring the court reporter. Thus, this case is factually different from Ex parte French, 547 So. 2d 547 (Ala.1989). | February 16, 1990 |
67758fba-8d08-47c0-96fd-00e520dcc598 | Campbell v. Campbell | 561 So. 2d 1060 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1060 (1990)
John H. CAMPBELL
v.
Claudette K. CAMPBELL, as executrix of the estate of Walter C. Koerper, deceased.
88-1213.
Supreme Court of Alabama.
March 23, 1990.
James D. Pruett, Gadsden, and Maibeth J. Porter of Maynard, Cooper, Frierson & Gale, Birmingham, for appellant.
Jack Floyd and Mary Ann Stackhouse of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellee.
HORNSBY, Chief Justice.
This Court's opinion of December 29, 1989, is withdrawn and the following opinion is substituted therefor:
This is a suit to collect a promissory note. The parties in this action, Claudette and John Campbell, were married in 1982. In that same year, they jointly executed a promissory note for $40,000 payable to Ms. Campbell's parents, Walter Claude and Anne Koerper. Under the terms of the note, the Campbells were to repay the indebtedness, without interest, in five annual installments, the first installment becoming due in May 1983. No payments were ever made; the Koerpers never demanded payment.
The Campbells separated, and by the time the third installment was due in May 1985, Ms. Campbell had instituted divorce proceedings. Mrs. Koerper died at some point while the divorce was pending, and Mr. Koerper died in July 1985. Ms. Campbell became the executrix of her father's estate on December 16, 1985. The Campbells were divorced 22 days later, on January 7, 1986.
In March 1987, Ms. Campbell, as executrix of her father's estate, sued Mr. Campbellher former husbandon the promissory note. She contended that Mr. Campbell owed the estate the entire amount of the note. Mr. Campbell contended that she was collaterally estopped from asserting this claim or was barred by res judicata and laches because of the prior divorce proceeding. He further contended that the entire amount of the loan, the repayment of which was secured by the note, had been used for the renovation of a beach house that Ms. Campbell obtained as a consequence of the divorce.
A jury returned a verdict in favor of Ms. Campbell in the amount of $20,000 with no interest.[1] Mr. Campbell appeals.
Mr. Campbell raises two issues on appeal: 1) whether the final judgment of divorce precluded Ms. Campbell's claims; and 2) whether the trial court erred in failing to give a certain requested jury charge.
In Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala. 1978), we explained the doctrines of res judicata and collateral estoppel:
"The elements of res judicata [claim preclusion] are as follows: (1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits [or those in privity with them] substantially identical; and (4) same cause of action present in both suits. [Citation omitted.] If these elements are present, then the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action. McGruder v. B & L Construction Co., 331 So. 2d 257 (Ala. 1976)."
See also Hughes v. Martin, 533 So. 2d 188, 190 (Ala.1988).
Wheeler 364 So. 2d at 1199.
The requirements for collateral estoppel, or issue preclusion, are not met here. For collateral estoppel to apply, the *1062 issue in the second suit must be identical to the issue involved in the previous suit. The issue here is whether Mr. Campbell owes the estate the debt evidenced by the note. The issue in the divorce proceeding was the status of the parties' marriage. Additionally, for collateral estoppel to apply, the issue must have been actually litigated in the prior action. The issue of the note was not raised in the divorce proceedings. Finally, the issue of liability on the note was not necessary to the determination of the issue in the prior divorce proceeding.
The elements of res judicata, or claim preclusion, are likewise not present in this case. While the judgment in the divorce proceeding was a "prior judgment rendered by [a] court of competent jurisdiction" and that prior judgment was rendered on the merits, the parties to both suits are not "substantially identical." Ms. Campbell in her status as plaintiff in the divorce action was not "substantially identical" to Ms. Campbell in her status as the executrix of her father's estate in the present action. Even though Ms. Campbell is the sole heir to the estate, she is not suing for the collection of the promissory note as the heir or beneficiary, but rather as executrix of the estate. Finally, the same cause of action is not present in both suits.
Even if a particular issue was not litigated in the prior action, res judicata will still bar the later action if the issue raised by it could have been litigated in the prior action and the four elements are present. Again, though, we note that two of the elements are missing: the parties to both actions are not substantially similar and the same cause of action is not presented in both suits. See Tatum v. Kelley, 481 So. 2d 1132, 1135 (Ala.1985).
In her capacity as executrix, Ms. Campbell has no personal rights in the proceeds of the note sued upon. As sole heir to her father's estate, however, she stands to inherit those proceeds. If a person other than Ms. Campbell had sued as the executor or the executrix of the estate, we would not have this perceived conflict. The right to sue on the note belongs to the estate and not to Ms. Campbell in her personal capacity.
Neither res judicata nor collateral estoppel bars Ms. Campbell's suit on the note.
Mr. Campbell claims that the trial court erred in failing to give a certain requested jury charge. He points us to no authority supporting the proposition of the requested charge, that "where the liability of one co-maker is extinguished, all co-makers are released." Additionally, two other jury charges given by the trial judge stated the correct law applicable in this case.
We therefore find this issue to be without merit. The judgment is hereby affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
JONES, J., not sitting.
[1] The record does not indicate why the jury awarded only one half the amount of the debt; however, no issue is made on appeal regarding that. | March 23, 1990 |
e932067b-1f78-4061-a39d-e19961ba50bf | Talb, Inc. v. Dot Dot Corp. | 559 So. 2d 1054 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 1054 (1990)
TALB, INC.
v.
DOT DOT CORPORATION.
DOT DOT CORPORATION
v.
TALB, INC.
88-1267, 88-1339.
Supreme Court of Alabama.
March 9, 1990.
J. Don Foster and Thack H. Dyson of Foster, Dyson & Curenton, Foley, for appellant/cross-appellee.
James B. Newman and Joseph P.H. Babington of Coale, Helmsing, Lyons, Sims & Leach, Mobile, for appellee/cross-appellant.
SHORES, Justice.
These appeals involve a suit on a promissory note and a counterclaim for fraud, which arose from a series of real estate transactions concerning a tract of land located on the Intra-Coastal Canal Waterway ("the canal property") near Gulf Shores, Alabama. On November 13, 1981, Frank J. Caron, a real estate investor, purchased the canal property for $617,000. Caron subsequently sold a portion of the property to Talb, Inc., in 1985 for $400,000. Talb paid $60,000 down and gave Caron a promissory note for $340,000.
On January 4, 1988, Caron assigned the Talb promissory note to Dot Dot Corporation for $347,000. On March 3, 1988, Dot Dot filed suit on the Talb promissory note, alleging that Talb was in default. A default judgment was taken on June 29, 1988, in the amount of $488,790.88.[1]
On October 13, 1988, Talb filed a motion for relief from judgment, pursuant to Rule 60(b)(4) and (6), A.R.Civ.P., averring "that the judgment entered by this court on June 29, 1988, is void because the court lacked *1055 jurisdiction over the parties and that the rendition of the judgment was inconsistent with due process." Talb's motion was granted by the trial court, which vacated the default judgment entered June 29, 1988. Talb then filed an answer to the complaint, denying the allegations and raising the affirmative defenses of release and estoppel. On January 13, 1989, Dot Dot filed a motion for summary judgment on the promissory note. On February 3, 1989, Talb amended its answer to Dot Dot's complaint and raised additional affirmative defenses. On March 24, 1989, Talb filed its second answer and a counterclaim that alleged that the sale of the property was procured by fraud. On March 27, 1989, the trial judge entered a preliminary order granting Dot Dot's motion for summary judgment on the claim based on the note. On May 24, 1989, the trial judge entered a final judgment against Talb in the amount of $456,081.10.[2] Talb appeals from this judgment. Dot Dot cross-appeals with respect to the attorney fees of $25,000 awarded by the trial court; Dot Dot contends this award was insufficient and an abuse of discretion by the trial court.
The facts of the case are as follows: After Caron acquired the canal property, he let it be known in the real estate community that he was willing to sell the property for $1,000 per foot. He did not list the property with any realtor. In the latter part of 1984, Walter Blaylock, a real estate broker, contacted Walter Edmond Thornton-Trump ("Trump"), an inventor-industrialist and president of Talb, and asked Trump if his company would be interested in buying a portion of this property. The property was shown to Trump by Edgar Smith, a real estate associate of Blaylock's. Trump contends that Blaylock and Smith were agents of Caron and that they made certain representations to Trump in order to fraudulently induce Talb to purchase the property.
The plaintiff contends that, by a document signed by Walter Blaylock "as agent for Ted Thornton-Trump, TALB, Inc.," Talb offered to purchase a portion of this tract from Caron for $400,000. This offer to purchase provided:
Trump argues that he never authorized this offer of purchase, and that Blaylock was Caron's agent, not his. The minutes of Talb, which was wholly-owned by Trump and his wife, Bernice, reflect a unanimous consent of shareholders to purchase the canal property. This consent of Talb's shareholders reads, in pertinent part, as follows:
Trump planned to be on a voyage on his yacht and thus unavailable at the closing. He signed a special limited power of attorney, dated February 14, 1985, and notarized by Joyce K. Hart, giving Fran Andrews the authority to execute the promissory notes and vendor's lien deed to allow Talb, Inc., to purchase the property. This special power of attorney provided that Ms. Andrews, on behalf of Trump as Talb's president, was empowered as follows:
Talb purchased the property on February 21, 1985, by vendor's lien deed from Frank Caron for the sum of $400,000. Sixty thousand dollars was paid as the down payment, with a promissory note being given to Caron for $340,000. Trump now contends that he never authorized Andrews to make such a large property acquisition. In February 1986, Talb paid one annual installment on the note in the total amount of $52,700.[3]
Trump contends that before the second annual installment on the promissory note was due in 1987, he contacted Blaylock to inform him that he recognized that the property was not a good investment and directed Blaylock to dispose of the property. Trump alleges that Blaylock represented to him that Caron would take the property back by way of a deed in lieu of foreclosure. He says he relied on this statement and made no subsequent payments required by the terms of the note. Thus the note was in default when Dot Dot Corporation brought suit.
We must determine whether the trial court erred in granting the motion for summary judgment on the promissory note claim. Summary judgment is proper if 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.
Talb filed a counterclaim based on fraud, alleging 1) that Blaylock and Smith were agents of Frank Caron, that they made certain fraudulent misrepresentations to him about the use and value of the canal property, and that those misrepresentations induced Talb to purchase the canal property; 2) that Ms. Andrews lacked authority to execute the vendor's lien deed and promissory note for Talb, Inc.; 3) that Talb's obligations on the promissory note are excused because Caron breached the vendor's lien deed; and 4) that Caron had agreed to take a deed in lieu of foreclosure.
The elements that must be proved to sustain a fraud claim are found in Code 1975, § 6-5-101, and are recited in Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752, 754 (Ala.1981):
"`Misrepresentations of a material fact made willfully to deceive, or recklessly *1057 without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.'
"Under this principle there must be (1) a false representation (2) concerning a material existing fact (3) relied upon by the plaintiff (4) who must be damaged as a proximate result." (Citations omitted.)
See, Brewton v. Alabama Farm Bureau Mut. Cas. Co., 474 So. 2d 1120, 1123 (Ala. 1985), and Sessions Co. v. Turner, 493 So. 2d 1387, 1389 (Ala.1986).
We have carefully examined the record in this case. This is a suit on a valid promissory note. The allegations of fraud made by Talb are not supported by the evidence. Trump testified by deposition that Blaylock had shown him the canal property. He characterized the representations made by Blaylock as being "a real sales pitch" and admitted that he had recognized them as a sales pitch. Trump stated in his deposition that he recognized there had been no guarantee that he would make money on the property. (R. 166.) The sales pitch did not rise to the level of a material misrepresentation: there is no evidence that the statements were made with the intent to deceive, and there could have been no justifiable reliance on the sales pitch. Further, there is no evidence of any agency relationship between Blaylock and Caron. In his deposition, Blaylock stated that he was representing himself as a real estate broker and that he was not Caron's agent. (R. 587.)
Trump next avers that Andrews lacked the authority to execute the vendor's lien deed and the promissory note for Talb. This is simply not supported by the evidence. The unanimous consent given by Trump and his wife, the sole stockholders of Talb, authorized Trump to buy the canal property and to authorize Andrews to serve as Talb's agent at the closing. Trump executed a special power of attorney before a notary public so authorizing Andrews. He made the down payment on the property and paid the first installment on the promissory note.
Talb also asserts that its obligations on the promissory note are excused because, it says, Caron breached the vendor's lien deed. This argument has no merit.
Finally, Trump argues that Caron agreed to take the canal property back in lieu of pursuing Talb on the promissory note. There is no evidence that Trump and Caron had ever had a conversation. There is also no evidence that Blaylock attempted to make such an agreement, or that he had any authority from Caron to make any such agreement concerning this property.
We said in Lamb v. Opelika Production Credit Ass'n, 367 So. 2d 957 (Ala.1979):
Id. at 960. Talb has failed to prove the elements necessary to support a counterclaim for fraud in this case. Viewing the facts of this case most favorably to Talb, we fail to find any issue of material fact. The trial court did not err in granting Dot Dot's motion for summary judgment on the promissory note. A.R.Civ.P. 56.
The final issue before us is whether the attorney fee of $25,000 awarded in this case is reasonable. Dot Dot contends that the award was unreasonable and constitutes an abuse of discretion by the trial court. Dot Dot argues that the $25,000 fee constitutes only 5.8% of the total principal and interest awarded and is, therefore, insufficient.
This court set forth the relevant factors to be considered in awarding attorney fees, in the case of Peebles v. Miley, 439 So. 2d 137 (Ala.1983). The first six factors were set forth by Justice Somerville 78 years ago:
"`The general principle is everywhere established that an attorney is in such a case entitled to reasonable compensation for his services, appropriate to his employment, rendered by him to his client. Humes v. Decatur, etc., Co., 98 Ala.
Id. at 140, quoting Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450 (1912). Forty years after Faulk & Co. was written, Justice Simpson added 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." See Peebles v. Miley, at 140.
Peebles adopted an additional five factors from DR 2-106(B) of the American Bar Association's Model Code of Professional Responsibility (1982):
Peebles v. Miley was followed by Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala.1985), in which this court again spoke to the issue of attorney fees. We noted that Alabama follows the "American rule":
"`In Alabama, attorney's fees are recoverable only where authorized by statute, when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be made. Shelby County Commission v. Smith, 372 So. 2d 1092 (Ala.1979); State ex rel. Payne v. Empire Life Ins. Co., 351 So. 2d 538 (Ala.1977).'"
471 So. 2d 1238 at 1241, quoting Eagerton v. Williams, 433 So. 2d 436, 450 (Ala.1983).
The trial court held a hearing on April 13, 1989, to determine the question of reasonable attorney fees. The court heard testimony from Edward B. McDonough, Jr., of Mobile and James R. Owen of Bay Minette, both practicing attorneys. Testifying for the plaintiff, McDonough suggested a fee of one-fifth up to one-third of the outstanding principal and interest. (R. 38.) Testifying for the defendant, Owen stated that a fee that was 5% of the judgment would be reasonable in this case. (R. 54.) The plaintiff's attorney, James B. Newman, testified that his firm had spent 300 hours on the case. (R. 26-27.) The trial judge stated in his final judgment that the court had considered the relevant factors enunciated in Peebles v. Miley, supra, in determining the fee. The award of an attorney fee of $25,000 made by the trial court was clearly within the guidelines established by this Court. The trial court did not abuse its discretion in awarding this fee.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur.
[1] Representing $407,325.88 in principal and interest and $81,465.00 in attorney fees.
[2] Representing unpaid principal of $323,000, interest due and owing as of April 13, 1989, in the amount of $108,081.10, and attorney fees in the amount of $25,000, plus costs of court.
[3] Representing $17,000 principal and interest of $35,700. | March 9, 1990 |
2b889b50-0ea6-44be-8afb-a6c1c3d57247 | GREEN TREE ACCEPTANCE v. Standridge | 565 So. 2d 38 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 38 (1990)
GREEN TREE ACCEPTANCE, INC.
v.
Larry STANDRIDGE and El-Jay's, Inc., d/b/a Bonanza Mobile Homes.
88-240.
Supreme Court of Alabama.
March 30, 1990.
Rehearing Denied May 18, 1990.
*40 Alan W. Heldman, Michael L. Hall and Robert S. Vance, Jr. of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellant.
Frank H. Hawthorne, Jr. of McPhillips, DeBardelaben & Hawthorne, and Joseph P. Borg and Joe N. Poole III of Capouano, Wampold, Prestwood & Sansone, Montgomery, for appellee Larry Standridge.
J. Knox Argo of Argo, Enslen, Holloway & Sabel, Montgomery, for appellee El-Jay's, Inc.
ALMON, Justice.
This is an appeal from judgments rendered on jury verdicts in favor of Larry Standridge and against Green Tree Acceptance, Inc. ("Green Tree") for $600,000; and for El-Jay's, Inc., d/b/a Bonanza Mobile Homes ("Bonanza") and against Green Tree for $150,000. The disputes between these parties arose from the sale of a mobile home to Standridge by Bonanza, and the repossession of that mobile home by Green Tree. Standridge filed an action against Green Tree alleging violations of the Federal Truth-in-Lending Act,[1] fraud, conversion, and outrage. Bonanza filed a cross-claim against Green Tree alleging fraud, and the jury returned verdicts in favor of Standridge and Bonanza. Green Tree appeals, asserting that the trial judge improperly denied its motions for directed verdict, j.n.o.v., and new trial, and improperly awarded attorney fees to Bonanza.
The facts in this case are extremely complicated, and some issues raised by Green Tree were not properly preserved at the trial level.[2] Therefore, only those facts necessary to resolve the issues that are properly before this Court will be set out. Standridge purchased a mobile home from Bonanza on August 25, 1985. As part of that transaction, Standridge signed a sales contract that contained, inter alia, the following provisions:
The contract also authorized the assignment of the contract to Green Tree. Under the terms of that assignment Green Tree would acquire all of Bonanza's rights in the event of default, as well as a limited right of recourse against Bonanza. Soon after the sale to Standridge, Bonanza assigned the contract to Green Tree.
The relationship between the parties was uneventful until November 19, 1986. At that time Bob Franklin, a Green Tree employee, notified Standridge that his physical damage insurance coverage had expired and had been renewed by Green Tree. Franklin demanded that Standridge immediately reimburse Green Tree for the premium payment it had made, a total of $139.34. Standridge requested written verification of the payment, and Franklin agreed to provide that verification. Green Tree did not provide that verification, but, over the next two days, Franklin continued to call Standridge at his office demanding immediate payment.
On Friday, November 21, 1986, Franklin called Standridge at his office at 5:00 p.m. and demanded payment by the end of the business day. Standridge told Franklin that he was unable to leave his office, but would give Franklin a check if he could come by Standridge's office. Franklin refused that proposal and the men became involved in a heated discussion. According to Standridge, Franklin insulted him, threatened to ruin his credit and cause him to lose his job, and finally ordered Standridge to either pay the insurance premium immediately or surrender possession of the mobile home. Standridge maintained that Franklin also threatened to dispose of Standridge's possessions in the trailer if it was repossessed. Standridge asked Franklin to repeat his demand to surrender the trailer, and then told Franklin he would comply with that demand. Over the following weekend Standridge removed his belongings from the mobile home and returned the keys to the trailer and his payment book to Green Tree on the following Monday. Although Green Tree maintained that the returning of the keys and the payment book showed that Standridge voluntarily surrendered the mobile home, Standridge denied that his surrender was voluntary. Standridge contended that he left his mobile home only because he believed Franklin could order him to do so.
Although the sales contract provided for notice of default before repossession, that provision did not state a time period for the notice. Ruth Vaughn, a Bonanza employee, testified that Green Tree ordinarily mailed owners that were in default a "thirty-day letter," alerting the owner that he was in default and informing him that he had 30 days to cure the default and prevent repossession. After those 30 days had expired and the mobile home had been repossessed, Green Tree would mail out a "ten-day letter," notifying the owner that he had 10 days in which to redeem his mobile home and thereby avoid a private sale. Although Green Tree did mail a "thirty-day letter" to Standridge, it was incorrectly addressed and Standridge did not receive it until some time in December. That letter, dated November 24, 1986, informed Standridge that he had 30 days from the postmarked date of the notice to cure his default.
During the last week of November 1986, Green Tree, through Bonanza, began to take affirmative steps to sell Standridge's trailer to Melissa McQueen. Those steps were initiated well before the expiration of the notice period set out in the "thirty-day letter." Standridge testified that McQueen began moving her belongings into the trailer on December 24, 1986, before he received any written notice from Green Tree. McQueen left a deposit with Bonanza and *42 signed a sales contract on the trailer on December 31, 1986, well before the redemption period set out in Standridge's "ten day letter" had expired. At some point between Christmas 1986, and January 1, 1987, the mobile home was removed from Standridge's property and moved onto property chosen by McQueen. Although Green Tree does not dispute that these events occurred within the stated time periods, it contends that despite McQueen's possession and occupation of the mobile home, the sale was not finalized until February 10, 1987, when McQueen's final down payment was received.
On May 5, 1987, Standridge filed a complaint against Green Tree in the Circuit Court of Montgomery County, alleging fraud, conversion, and outrage. Green Tree then filed a third-party complaint against Bonanza, alleging that any liability incurred by Green Tree due to the repossession and sale was due to the actions of Bonanza. Bonanza responded with a counterclaim against Green Tree, alleging that all of the actions it took with relation to Standridge's trailer were taken at Green Tree's instruction. Bonanza maintained that Green Tree fraudulently informed its employees that the repossession and sale of Standridge's mobile home would not violate the notice provisions in the sales contract. After the close of the evidence, Green Tree moved for directed verdicts against Standridge and Bonanza. Those motions were denied. The jury then returned the following verdicts against Green Tree:
1. In favor of Standridge on the fraud claim, assessing damages of $300,000;
2. In favor of Standridge on the outrage claim, assessing damages of $275,000;
3. In favor of Standridge on the conversion claim, assessing damages of $25,000; and
4. In favor of Bonanza on the fraud claim, assessing damages of $150,000.
Bonanza also filed a claim for attorney fees under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq. The trial court determined that Green Tree's claim against Bonanza was without substantial justification and awarded attorney fees in the amount of $2,500 to Bonanza. It is from that award and the judgments on the verdicts listed above that Green Tree appeals.
Green Tree argues that the trial court erred in refusing to direct a verdict in its favor on all of the counts in both Standridge's complaint and Bonanza's complaint. It contends that neither Standridge nor Bonanza produced a scintilla of evidence to support its claims.[4] Under the "scintilla" evidence rule, a directed verdict is proper only where there is not a scintilla of evidence to support the essential elements of the plaintiff's claim, or where there is no disputed issue of fact upon which reasonable men can differ. Southern United Life Ins. Co. v. Gregory, 508 So. 2d 247, 250 (Ala.1987). To determine the propriety of the denial of Green Tree's motion for directed verdict, each claim, with the exception of Standridge's outrage claim, will be examined.
The elements of fraud are (1) a misrepresentation (2) of a material existing fact, (3) relied upon by the plaintiff, (4) who was damaged as a proximate result of the alleged misrepresentation. Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752, 754 (Ala.1981). Green Tree argues that Standridge failed to prove reliance on any alleged misrepresentation and failed to prove damages as a result of reliance. After reviewing the record, this Court finds that there was sufficient evidence to allow the jury to determine that Green Tree made misrepresentations of existing fact. That evidence includes testimony by Standridge, Franklin, and employees of Standridge, that Franklin ordered Standridge to surrender possession of the mobile home immediately. That demand was inconsistent with *43 Green Tree's usual practice of giving owners 30 days to cure defaults and was in contradiction to the "thirty-day letter" mailed to Standridge the following Monday. Standridge testified that he believed that Franklin possessed the authority to order him to immediately surrender the mobile home, and, therefore, that in reliance on that demand he vacated the mobile home. There was evidence that Franklin threatened to ruin his credit rating if he did not deliver the trailer. Because the contract did not specify a notice period, the contract did not contradict Standridge's belief as to Franklin's authority. In addition, there was evidence that indicated that Green Tree began taking steps to sell the mobile home to McQueen before the 30-day notice period had expired. Also, Green Tree allowed McQueen to take possession of the mobile home before January 1, 1987, despite giving Standridge notice that he had until January 8, 1987, to redeem his mobile home. Standridge was aware of McQueen's possession of the mobile home and testified that Green Tree's actions led him to believe that he would not be allowed to cure his default or redeem his mobile home. Also, there was evidence indicating that Green Tree altered the dates on McQueen's sale contract to make it appear that the sale occurred after the redemption period.
Standridge also testified that he suffered damage as a result of Green Tree's misrepresentations. He testified that he had to pay storage fees for his possessions and was forced to pay increased rent and that improvements he made to the mobile home were lost or rendered valueless after the repossession. A motion for a directed verdict tests the sufficiency of the evidence presented and should be denied if there is any conflict in the evidence for the jury to decide. McLarty v. Wright, 56 Ala.App. 346, 321 So. 2d 687, 689 (Ala.Civ.App.1975). Green Tree's motion for a directed verdict on the fraud count was properly denied.
This Court has defined conversion as "[t]he wrongful exercise of dominion over property in exclusion or defiance of a plaintiff's rights, where said plaintiff has a general or special title to the property or the immediate right to possession." Allstate Enterprises, Inc. v. Alexander, 484 So. 2d 375, 377-78 (Ala.1985). In the instant case more than a scintilla of evidence was presented to show that Green Tree wrongfully deprived Standridge of possession of his mobile home and put McQueen into possession of it before Standridge's rights to cure or redeem had expired, in defiance of his immediate right to possession. Therefore, Green Tree's motion for directed verdict on the conversion claim was properly denied.
Green Tree also argues that the trial court erred by denying its motion for a directed verdict on Bonanza's fraud claim. In its complaint against Green Tree, Bonanza alleged that Green Tree fraudulently represented to Bonanza that it had the right to sell Standridge's mobile home and instructed Bonanza to have McQueen sign the sales contract prepared by Green Tree before Standridge's redemption period had expired. In its brief to this Court, Green Tree does not deny making those misrepresentations to Bonanza, but contends that Bonanza has failed to prove any damage as a result of those misrepresentations.
At trial, there was evidence that indicated that Green Tree promised to pay Bonanza all the expenses it incurred in the repossession and sale of Standridge's mobile home. Bonanza apparently relied on these representations when it repossessed and sold Standridge's mobile home at Green Tree's direction. Despite Green Tree's representations, Bonanza was never reimbursed for these expenses. This Court finds sufficient evidence concerning all of the elements of Bonanza's fraud claim and concludes that that claim was properly submitted to the jury. Although the actual damages sustained by Bonanza may have been modest, even nominal damages will support an award of punitive damages under the proper circumstances. Coastal Concrete Co. v. Patterson, 503 So. 2d 824, 830 (Ala.1987). In addition, it is not necessary that an award of punitive damages bear any particular mathematical relationship *44 to actual damages. U-Haul Co. of Alabama v. Long, 382 So. 2d 545, 548 (Ala. 1980).
Green Tree also filed a motion for j.n.o.v. following the return of the jury's verdicts. This motion was denied. Motions for directed verdict and j.n.o.v. both test the sufficiency of the evidence and are reviewed under the same standard. Morgan v. South Central Bell Tel. Co., 466 So. 2d 107, 113 (Ala.1985). Granting a motion for j.n.o.v. says, without weighing the credibility of the evidence, that there can be but one reasonable conclusion as to the proper judgment. Hanson v. Couch, 360 So. 2d 942 (Ala.1978). In the instant case, the evidence concerning Standridge's fraud and conversion claims and Bonanza's fraud claim would not support such a conclusion. Therefore, the trial court's denial of Green Tree's motion for directed verdict and its decision to leave the jury's verdicts undisturbed were proper.
Green Tree maintains that the trial court committed reversible error by denying its motions for directed verdict and j.n.o.v. on Standridge's claim for intentional infliction of emotional distress, or outrage. In his complaint, Standridge alleged that Green Tree's actions in ordering him to leave his mobile home; threatening to destroy his credit; threatening to cause him to lose his job; and filing a report on the repossession with a credit bureau, thereby damaging his credit rating, were extreme, unconscionable, and outrageous, and caused him to suffer severe emotional distress. The jury heard testimony by Standridge and other witnesses concerning the embarrassment and other distress suffered by Standridge and returned a verdict on the outrage claim of $275,000.
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 so decided 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). However, the burden on a plaintiff in a case such as this is a heavy one, Surrency v. Harbison, 489 So. 2d 1097, 1105 (Ala.1986), and this Court cannot affirm a verdict if the plaintiff has failed to prove all of the elements of his claim. This Court set out the elements of the tort of outrage in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1981). For a plaintiff to recover under that tort, he must demonstrate that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it. Inmon, supra, at 365. In order to support a cause of action for the tort of outrage, the conduct complained of must be so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized society. McIsaac v. WZEW-FM Corp., 495 So. 2d 649, 651 (Ala. 1986).
The cases in which this Court has held that the evidence presented a jury question on the tort of outrage have involved conduct of a more egregious nature than that present in the instant case. This Court, in a recently released opinion, Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala. 1989), remarked, obiter dictum, that evidence of a plant supervisor's repeated sexual advances, lewd remarks, and patently offensive behavior towards his female employees would be sufficient to present a question for the jury.[5] 551 So. 2d at 324. In Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1987), the reckless desecration of a family cemetery by an adjacent landowner was held to be sufficiently outrageous to present a jury question and to support an award of punitive damages. 519 So. 2d at 906. In Levite Undertakers Co. v. Griggs, 495 So. 2d 63 (Ala.1986), an undertaker's *45 misrepresentation of the condition of the remains of the plaintiff's husband, coupled with the wrongful retention of those remains in an attempt to force payment of funeral expenses, justified an award of punitive damages. 495 So. 2d at 64-65. In National Security Fire & Casualty Co. v. Bowen, 447 So. 2d 133 (Ala.1983), the use of threats and assaultive behavior by agents of the defendant, in an attempt to force the plaintiff to drop a claim against the defendant, was held to constitute outrageous conduct. 447 So. 2d at 141. Finally, in Cates v. Taylor, 428 So. 2d 637 (Ala.1983), the defendants, 30 minutes before a planned burial, withdrew permission for the plaintiffs to use a cemetery plot to bury their father. That conduct supported a cause of action for the tort of outrage. 428 So. 2d at 640.
The conduct complained of by Standridge can be divided into three categories: (1) the threatening, abusive, and insulting language used by Robert Franklin, Green Tree's employee, during his final conversation with Standridge, (2) the wrongful threat of repossession and subsequent sale of his mobile home, and (3) Green Tree's filing of an adverse report with a credit bureau and the resulting embarrassment and credit problems suffered by Standridge, including the payment of increased interest rates to secure a later loan. Although this Court can not condone oppressive collection practices like those used by Green Tree, they do not rise to the level of extreme behavior contemplated by this Court when it recognized the tort of outrage. In addition, Standridge failed to demonstrate that Green Tree's actions caused him to suffer emotional distress of a degree more severe than a reasonable person could be expected to endure. Inmon, supra, at 365. Because Standridge failed to meet his burden of proof, the trial court's denial of Green Tree's motion for j.n.o.v. on the outrage claim was not proper. Therefore, that portion of the judgment is reversed, and the trial court is instructed to enter a judgment in Green Tree's favor on that claim.
Green Tree contends that the trial court erred in denying its motion for a new trial. Green Tree maintains that a new trial was warranted due to the large amount of the verdicts and the purportedly evident passion and prejudice of the jury, and because the verdicts were against the great weight of the evidence.
This Court has required that trial courts set out in the record their reasons for interfering with a jury verdict, or for refusing to do so, on grounds of excessiveness of damages. Hammond v. City of Gadsden, 493 So. 2d 1374, 1379 (Ala.1986). In its order denying Green Tree's motion for a new trial, the trial court fully complied with that requirement. The court stated that it observed the demeanor of the witnesses, parties, and lawyers and saw no evidence of misconduct that would have biased the jury against Green Tree. The trial court also stated that it was convinced that the jury reasonably considered all of the evidence presented and applied the law as given in the jury charges in reaching its verdicts. The trial court was convinced that those verdicts were not tainted by bias, prejudice, or emotion. Finally, the trial court stated that the size of the verdicts was not shocking to the conscience or excessive as a matter of law and were not so large as to unduly burden Green Tree.
The trial court also examined the totality of the evidence produced by the parties. The court found that sufficient evidence was produced to support the verdicts of the jury and the court therefore refused to interfere with those verdicts. The decision to grant or to deny a motion for new trial rests within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error. Hill v. Cherry, 379 So. 2d 590 (Ala.1980). After reviewing the record, this Court finds no indication of such abuse or error. Green Tree's motion for a new trial was properly denied.
*46 Green Tree also argues that a new trial was required because the verdict forms did not distinguish between compensatory damages and punitive damages. Ala.Code 1975, § 6-11-1 (Supp.1988), does require that verdict forms in tort actions and breach of warranty actions be itemized, distinguishing between past, future, and punitive damages. Although there is no dispute that the jury did not utilize itemized verdict forms, there is no evidence that this error was brought to the attention of the trial court. Green Tree was given permission, after the jury had retired, to read objections into the record concerning its motion for directed verdict, apparently for the sake of recording its assertions of grounds for directed verdict that had already been made off the record. At that time, Green Tree's lawyer made an objection to the verdict forms. That objection exceeded the scope of the permission granted by the trial court and was made outside the presence of the trial judge and the opposing lawyers. The trial court had no notice of this objection and therefore had no opportunity to rule on it. This Court will not put a trial court in error for failure to rule on a matter that, according to the record, was neither presented to nor decided by it. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846, 847 (1958).
Green Tree's final contention is that the trial court erred in granting Bonanza's motion for attorney fees, filed pursuant to the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq. (Supp. 1988). The trial court granted that motion because it found Green Tree's complaint against Bonanza to be groundless, in fact and in law, and unsubstantiated by any evidence.
Green Tree argues that its claim against Bonanza was meritorious, but that through honest error it failed to introduce evidence to support its claim. Green Tree argues that the trial court, after the close of the evidence, refused to reopen Green Tree's case to allow it to put on testimony to support its complaint against Bonanza, and that this refusal was an abuse of discretion. The testimony Green Tree wished to offer was that of an employee, Wayne Tidwell. Green Tree failed to offer any explanation, other than honest error, for its failure to offer this evidence during its case-in-chief. The decision of whether to reopen a case for additional evidence lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. State v. Alabama Public Service Comm'n, 293 Ala. 553, 307 So. 2d 521 (1975). After reviewing the record, this Court has found no such abuse. Therefore, the trial court's award of attorney fees will not be disturbed.
After a careful examination of the record, this Court finds that the trial court committed only one reversible error: the failure to grant Green Tree's motion for j.n.o.v. on Standridge's outrage claim. Therefore, the trial court's judgment on that claim is reversed, and that court is instructed on remand to enter a judgment in Green Tree's favor on that claim. The rest of the trial court's judgment is affirmed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Standridge's Truth-in-Lending Act claim was later withdrawn.
[2] This Court notes that Green Tree's trial counsel and appellate counsel are not the same.
[3] Standridge's down payment included a $300 payment for physical damage insurance coverage for one year. There was no provision in the sales contract for renewal of that coverage.
[4] This action was commenced on May 5, 1987, prior to the abolition of the "scintilla" evidence rule. Ala.Code 1975, § 12-21-12 (Supp.1988).
[5] Due to the death of the plant supervisor in Busby, and this Court's unwillingness to hold his employer liable for actions clearly outside the scope of his employment, the question of whether the plant supervisor's conduct constituted outrage was not considered. Busby, supra, at 327-28. | March 30, 1990 |
aa2e9758-4204-4e98-8bb9-ff7847295d0e | Martin v. FIRST FEDERAL SAV. & LOAN | 559 So. 2d 1075 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 1075 (1990)
Don M. MARTIN and C & C Land Corporation
v.
FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF ANDALUSIA.
88-1531.
Supreme Court of Alabama.
March 16, 1990.
*1076 Joseph P. Borg of Capouano, Wampold, Prestwood & Sansone, Montgomery, for appellants.
Richard F. Ogle and Douglas J. Centeno of Schoel, Ogle, Benton, Gentle and Centeno, Birmingham, for appellee.
HOUSTON, Justice.
Don Martin, individually, and C & C Land Corporation ("C & C") appeal the trial court's order granting a preliminary injunction in favor of First Federal Savings and Loan Association of Andalusia ("First Federal"). We affirm.
First Federal, a nationally chartered savings and loan association, has its principal place of business in Covington County, Alabama. Don Martin is a resident of Montgomery County and is the president of C & C, which has its principal place of business in Montgomery County. The business of C & C is to lend money to third parties to purchase the homes constructed by Martin Realty and Construction Company[1] and to take back purchase money mortgages, which are later sold by C & C to various financial institutions.
In the instant case, First Federal agreed to purchase from C & C first mortgage loans on real estate. As part of the same transaction, C & C agreed to service these mortgage loans by collecting the mortgage payments, taking a small commission, and remitting the balance to First Federal on a monthly basis. Also, as part of the same transaction, C & C and Don Martin individually agreed to repurchase any mortgage sold to First Federal if the mortgage became 60 days delinquent. Under the servicing agreement, C & C agreed to hold all mortgage payments in a trust account and to remit the mortgage payments, less the *1077 servicing fee, to First Federal on the 15th of each month. C & C also agreed to notify First Federal of any default by the mortgagor within 30 days of the default.
After First Federal learned that C & C was having financial difficulty and learned of discrepancies in First Federal's legal position as first mortgage holder, of the existence of mortgage defaults, and of C & C's failure to hold the mortgage payments in trust for First Federal, it wrote C & C, terminating the servicing agreement. Upon termination of the servicing agreement, First Federal notified the mortgagors to make all future mortgage payments directly to First Federal. When the mortgagors contacted C & C to determine whether to make payments to C & C or to First Federal, they were told to disregard First Federal's letter and to continue making payments directly to C & C. Thereafter, First Federal filed suit in Covington County, seeking injunctive relief to protect its interests, and alleging, among other claims, fraud and breach of contract.
Martin filed a motion to dismiss for improper venue. Subsequently, First Federal filed an application for a temporary restraining order, accompanied by a verified complaint and affidavit, alleging that First Federal did not have an adequate remedy at law and that the failure to grant the temporary restraining order would result in irreparable harm to First Federal. The trial court granted the temporary restraining order, but pretermitted a finding of whether venue was properly laid in Covington County, specifically holding that "the issue of venue may be addressed subsequently, and an appropriate order may be subsequently entered transferring this matter to some other court if ... venue is not properly laid in ... Covington County, Alabama."
Thereafter, Martin filed a motion to dissolve the temporary restraining order and to dismiss the complaint for improper venue. On the same day, First Federal filed a motion for a preliminary injunction. After an ore tenus hearing on First Federal's motion for a preliminary injunction, the trial court entered an order that reads, in pertinent part, as follows:
Under the ore tenus rule, the trial court's decision based upon ore tenus evidence, where supported by the evidence, is presumed correct and should be reversed only if the judgment is found to be plainly and palpably wrong, after a consideration of all of the evidence and after making all inferences that can logically be drawn from the evidence. See City of Birmingham v. Sansing Sales of Birmingham, Inc., 547 So. 2d 464 (Ala.1989); King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala. 1987); and Robinson v. Hamilton, 496 So. 2d 8 (Ala. 1986); see, also, Meeks v. Hill, 557 So. 2d 1238 (Ala.1990). The trial court's judgment will be affirmed if there is credible evidence to support it. City of Birmingham v. Sansing Sales of Birmingham, Inc., supra; see, also, American Casualty Co. v. Wright, 554 So. 2d 1015 (Ala.1989).
The issue before us is whether the trial court's finding that irreparable harm would result if the preliminary injunction was not issued was plainly and palpably erroneous. We hold that the trial court's finding was not plainly and palpably erroneous.
Upon review on an appeal from an order granting a motion for a preliminary injunction, wide discretion is accorded the trial judge hearing the motion and deciding whether to grant the injunction, and his action will not be disturbed on appeal unless he abuses his discretion. Chunchula Energy Corp. v. Ciba-Geigy Corp., 503 So. 2d 1211 (Ala.1987); Alabama Education Ass'n v. Board of Trustees of the University of Alabama, 374 So. 2d 258 (Ala.1979), citing Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So. 2d 872 (1975). The trial judge's discretion is a legal or judicial one, subject to review for abuse or improper exercise, as where there has been a violation of some established rule of law or principle of equity, or a clear misapprehension of the controlling law. Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., supra; see, also, Chunchula Energy Corp. v. Ciba-Geigy Corp., supra; Alabama Education Ass'n v. Board of Trustees of the University of Alabama, supra. To establish an abuse of that discretion, Martin must show that the trial judge committed a clear and palpable error which, unless corrected, will constitute manifest injustice. Alabama Education Ass'n v. Board of Trustees of the University of Alabama, supra. See Adams v. Farlow, 516 So. 2d 528 (Ala.1987).
A preliminary injunction will not issue unless without it the plaintiff would suffer immediate and irreparable injury and unless the plaintiff has no adequate remedy at law. Chunchula Energy Corp. v. Ciba-Geigy Corp., supra; Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So. 2d 17 (Ala.1983). The burden is on the complainant to satisfy the trial court that there is at least a reasonable probability of ultimate success on the merits of the case. See Alabama Education Ass'n v. Board of *1079 Trustees of the University of Alabama, supra.
In Howell Pipeline Co. v. Terra Resources, Inc., 454 So. 2d 1353, 1356 (Ala. 1984), we noted the development of a three-pronged test by which the trial court can review a motion for a preliminary injunction:
Quoting from Double C. Productions, Inc. v. Exposition Enterprises, 404 So. 2d 52, 54 (Ala.1981). See, also, Adams v. Farlow, supra, at 536-37. In applying these standards, the trial court, in its discretion and given the facts and circumstances of each case, may consider and weigh the relative hardships that each party may suffer against the benefits that may flow from the grant of the preliminary injunction. See Adams v. Farlow, supra; John Lloyd & Co. v. Stringer, 456 So. 2d 1076 (Ala. 1984); Howell Pipeline, supra.
At the evidentiary hearing on the motion for the preliminary injunction, First Federal presented evidence that Martin's continued conversion of First Federal's funds, Martin's intentional interference with First Federal's efforts to directly collect the mortgage payments, and the poor financial condition of C & C, as indicated by C & C's financial statement, would result in immediate and irreparable injury to First Federal if the injunction did not issue and established that there was no adequate remedy at law. See Chunchula Energy Corp. v. Ciba-Geigy Corp., supra; and Teleprompter of Mobile, Inc. v. Bayou Cable TV, supra.
In addition, Martin's testimony that he had fraudulently suppressed information from First Federal that would have given rise to his personal liability under repurchase agreements, that in collecting monthly mortgage payments from mortgagors he was converting trust funds owned by First Federal, that he was failing to remit those payments to First Federal, and that, although he had received First Federal's notice terminating the servicing agreement, he failed to have C & C perform an accounting and turn over to First Federal all monies that were supposed to be in the trust accounts, presented a fair question as to the existence of a right to be protected and established that there was a substantial likelihood that First Federal would succeed on the merits of the case. See Alabama Education Ass'n v. Board of Trustees of the University of Alabama, supra. Martin offered little evidence to prove the harm that, he says, would occur by the trial court's issuing the preliminary injunction, especially in light of the trial court's order requiring First Federal to post a $15,000 bond to indemnify C & C for any loss that it might incur by the entry of the preliminary injunction.
We must remember that this is an appeal from the grant of a preliminary injunction, not an appeal from a final decision on the merits. Therefore, based on the foregoing, we cannot say that the trial court abused its discretion in granting First Federal's request for preliminary injunction.
We note Martin's allegations that the trial court's order failed to satisfy Rule 65(d)(1), (2), A.R.Civ.P.,[3] in that the trial court failed to set forth its reasons for issuing the preliminary injunction.
*1080 The provisions of Rule 65(d)(1), (2) are mandatory requirements. Chunchula Energy Corp. v. Ciba-Geigy Corp., supra. After a thorough review of the trial court's order granting the preliminary injunction, as quoted hereinabove, we find that the trial court did comply with Rule 65(d)(1), (2).
Based on the foregoing, we conclude that the trial court's finding that irreparable harm would result if it refused to grant the preliminary injunction was not plainly and palpably erroneous; therefore, the trial court's order granting First Federal's motion for a preliminary injunction is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] Don Martin owns Martin Realty and Construction Company, whose business is to acquire and develop real estate by constructing residences for low and moderate income individuals.
[2] The clerk approved the injunction bond required by order of the trial court.
[3] "(1) Every order granting a restraining order shall describe in reasonable detail ... the act or acts sought to be restrained...."
"(2) Every order granting an injunction shall set forth the reason for its issuance; shall be specific in terms; shall describe in reasonable detail ... the act or acts sought to be restrained...." | March 16, 1990 |
3241afda-f41f-4b4c-81cf-928c8920eee8 | Jones v. General Motors Corp. | 557 So. 2d 1259 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1259 (1990)
Raymond Benjamin JONES
v.
GENERAL MOTORS CORPORATION, et al.
88-1362.
Supreme Court of Alabama.
February 2, 1990.
*1260 Thomas B. Hanes of Barnett, Noble, Hanes, O'Neal & Cotton, Birmingham, and Joseph M. Allen, Jr., Tuscaloosa, for appellant.
De Martenson, D. Alan Thomas and Christopher S. Rodgers of Huie, Fernambucq & Stewart, Birmingham, for appellee General Motors Corp.
Joe C. Carroll, Birmingham, for appellee Shelby County, Ala.
James H. Starnes of Starnes & Atchison, Birmingham, for appellee G.W. Norrell Contracting Co.
PER CURIAM.
This appeal is from a judgment made final pursuant to Rule 54(b), A.R.Civ.P., in favor of defendant General Motors Corporation. We affirm.
Because the trial court's judgment states the facts and issues, and because it addresses those issues in keeping with the respective contentions of the parties, we set forth the pertinent parts of that judgment:
"The plaintiff, Raymond B. Jones, filed this lawsuit against the defendants for personal injuries arising out of a motor vehicle accident.
"This cause came on for hearing on the motions for summary judgment by the defendants, General Motors Corporation (`GMC'), G.W. Norrell Construction Co., Inc. (`Norrell'), and Shelby County, Alabama (`County'), with supporting affidavits and citations of legal authority. The plaintiff has countered with affidavits and citations of legal authority.
"The remaining defendants are not concerned with the motions under consideration at this time.
"The plaintiff was injured on October 11, 1986, in a one-vehicle accident which took place on County Road No. 61 near Wilsonville, Alabama. The motor vehicle being operated by the plaintiff left the paved portion of the roadway and came in contact with the guardrail on the `Four Mile Bridge,' sometimes referred to as the `Batson Bridge.'
"The plaintiff's vehicle impacted the terminus of the guardrail adjoining the bridge. The guardrail penetrated the passenger compartment of the vehicle, resulting in severe and permanent personal injuries to the plaintiff.
"A knowledge of the history and origin of the bridge are necessary for a full understanding of the legal problems involved, and the following is a summary of the same.
"The County formulated plans and specifications for the bridge in question. These plans and specifications were submitted to all of the interested governmental entities involved for their approval. After approval, the plans and specifications were submitted to Norrell to build the bridge. After completion of the bridge by Norrell, the County, the State of Alabama, and the United States Government approved the bridge as having been constructed according to the plans and specifications previously approved by them prior to construction.
"The governmental entities involved paid their respective shares of the construction *1261 expenses to Norrell, and the bridge was accepted by the County and put into use by the travelling public. The bridge was completed and put into service in the year 1959.
"In 1986, 27 years after the construction of the bridge and its being accepted by the County, the plaintiff collided with the guardrail of the bridge and this event is now the subject of the motions under consideration.
"The paved portion of the roadway approaching and crossing the bridge is 22 feet in width. Each side of the paved portion is marked by a white line approximately 4 inches in width. The approximate center of the paved portion is marked by a yellow line approximately 4 inches in width. The guardrail involved in this accident is located approximately 14 inches outside of the paved surface of the roadway. The roadway approaching the bridge in the direction of the plaintiff's travel is straight and fairly level for a distance of approximately 1,300 feet before reaching the bridge.
"The plaintiff was driving a 1986 model Chevrolet Blazer vehicle at the time of the accident, which had been manufactured by the defendant GMC.
"It is felt by the Court that this rather detailed history of the bridge and its dimensions is necessary to an understanding and resolution of the contentions of the defendants.
"The plaintiff was unfortunate, additionally, in that the ambulance transporting him to the hospital was involved in an accident and this second accident is the subject of controversy with the remaining defendants.
"Thus, the discussion of the motions for summary judgment will be limited to the first accident, wherein the plaintiff impacted the terminus of the guardrail.
"The plaintiff contends that Norell negligently constructed a guardrail that was a hazard to vehicular traffic upon or near the roadway; and that, additionally, Norrell did not follow the plans and specifications furnished to it for the construction of the bridge and guardrail.
"The plaintiff contends that the County was negligent in the design, plans, and specifications for construction of the bridge and guardrail; and, further, that the County was negligent in the maintenance of said bridge and guardrail from the time of construction to the time of the accident in question.
"The plaintiff contends that GMC was negligent in the design, manufacture, and assembly of the 1986 Chevrolet Blazer based upon the Alabama Extended Manufacturer's [Liability] Doctrine (`AEMLD'). His contention is that the design and manufacture of the Blazer channeled or directed the guardrail toward the plaintiff rather than deflecting the guardrail away from the plaintiff and his position in the vehicle.
"The plaintiff was alone in the vehicle in the early morning hours on the day of the accident and there were no other witnesses. Thus, the plaintiff is the only occurrence witness.
"The plaintiff has not offered in opposition to the motions of the defendants any explanation for his Blazer's leaving the paved portion of the roadway and impacting the terminus of the guardrail. It is the contention of the plaintiff that the negligence of these defendants increased the severity of his injuries and damages. He does not make the charge that their negligence in any wise caused his Blazer to leave the paved portion of the roadway.
"The County contends that the bridge and guardrail were properly designed, constructed, and maintained from the date of construction to the time of the accident 27 years later, and that the bridge and guardrail met all design criteria and all construction and state-of-the-art knowledge with respect to bridges and guardrails that existed in 1959.
"The County further contends that there is no law that requires it to change or modify the bridge and guardrail with respect *1262 to the original construction or with respect to the maintenance of same since the date of construction.
"The County denies being negligent in any regard whatsoever. However, assuming for the sake of argument that it was negligent as claimed by the plaintiff, the County contends that such negligence could not be the proximate cause of the plaintiff's injuries and damages.
"Norrell contends that it constructed the bridge and guardrail according to the plans and specifications furnished to it. Further, following its completion of the bridge and guardrail, says Norrell, all of the governmental entities involved accepted and approved the bridge and guardrail as having been completed in accordance with the plans and specifications. Norrell was paid for services rendered and the County accepted the services as completed.
"Norrell denies being negligent in any regard whatsoever. However, assuming for the sake of argument that it was negligent as claimed by the plaintiff, Norrell contends that its negligence could not be the proximate cause of the plaintiff's injuries and damages.
"GMC contends that the Blazer was designed, manufactured, and assembled in accordance with and in compliance with all known federal motor vehicle safety standards applicable at the time the Blazer was placed in the stream of commerce. In short, GMC denies that it breached any standard of care as required by the AEMLD.
"GMC denies being negligent in any regard whatsoever. However, assuming for the sake of argument that it was negligent as claimed by the plaintiff, [GMC says] its negligence could not be the proximate cause of the plaintiff's injuries and damages.
"The motions of the defendants, separately and severally [in their ultimate effect], come to the inescapable conclusion that no matter how negligent each of them may have been, either singularly or in combination, their negligence could not have been the proximate cause of the plaintiff's injuries and damages.
"The plaintiff's burden is to present at least a scintilla of evidence as to four material averments:
"Even if the plaintiff has met his burden with respect to averments (1), (2), and (4), it is contended by the defendants that he has failed completely with respect to proving the averment (3) of proximate cause.
"The County and Norrell contend that their negligence, if any, resulted in a `static condition' and that this condition had existed some 27 years prior to the accident in question. In short, their negligence did not cause the plaintiff's vehicle to leave the roadway and impact the guardrail. Thus, argue the County and Norrell, for their negligence to be actionable, it must have occurred in combination with the negligent act of another person, which should have been anticipated or foreseen by them. Further, the County and Norrell contend that the bridge had remained for all these many years in basically the same position and design as originally constructed.
"GMC contends that its negligence, if any, resulted in a `static condition' and this condition had existed since the date of manufacture and sale to the date of the plaintiff's accident. Thus, for its negligence to be actionable, says GMC, it must have occurred in combination with the negligent act of another person, which should have been anticipated or foreseen by it; in short, that any negligence of GMC did not cause *1263 the plaintiff's vehicle to leave the roadway and impact the guardrail.
"It can be seen that each of the defendants contends that any negligence on their part could not be the proximate cause of the plaintiff's injuries and damages, but could only be actionable if another person was negligent and that person's negligence combined and concurred to produce the plaintiff's injuries and damages. Additionally, the defendants say that [each of them should be liable only if] the negligence of the other person could have been or should have been anticipated or foreseen by them.
"Alabama Pattern Jury Instructions Civil on proximate cause reads as follows:
"`The proximate cause of an injury is that cause which in the natural and probable sequence of events, and without the intervention of any new or independent cause, produces the injury and without which such injury would not have occurred.'
"A.P.J.I.Civil 33.00.
"`If one is guilty of negligence which concurs or combines with negligence of another, and the two combine to produce (injury) or (damage), each negligent person is liable for the resulting (injury) or (damage) and the negligence of each will be deemed the proximate cause of the injury.'
"A.P.J.I.Civil 33.01.
"In arriving at a decision on whether the plaintiff has produced a scintilla of evidence as to proximate cause, we must consider both ... definitions contained in A.P. J.I. 33.00 and A.P.J.I. 33.01. This is true because the negligence of the defendants merely produced a static condition and the static condition was not the proximate cause of the plaintiff's vehicle leaving the paved portion of the roadway. Then, we must consider the question of what other person's negligence, other than that of the plaintiff himself, caused the vehicle to leave the road. The plaintiff has the burden of proof to present a scintilla of evidence that his vehicle was caused to leave the roadway by the negligence of some person, other than himself, and [that] that person's negligence combined with the negligence of the defendants to proximately cause his injuries and damages.
"Any misconduct of the plaintiff amounting to contributory negligence would be the burden of the defendants. We are not now concerned with this issue [because it was not raised as a ground for the defendants' motions]. We are only concerned with the issue of negligence of persons other than the plaintiff himself.
"The Supreme Court of Alabama, in the case of Clendenon v. Yarbrough, 233 Ala. 269, 271, 171 So. 277, 278 (1936), adopted the proposition of the issue as found at 22 R.C.L. 132 et seq., and stated that original negligence is the proximate cause of injury where it `produces a dangerous condition of things, which does not become active for mischief until another person has operated upon it by the commission of another negligent act, which might not unreasonably be anticipated to occur. The original act of negligence is then regarded as the proximate cause of the injury which finally results.' This ruling was followed later in the case of Lawson v. General Telephone Co. of Alabama, 289 Ala. 283, 267 So. 2d 132 (1972).
"This proposition was again followed and restated in Marshall County v. Uptain, 409 So. 2d 423, 426 (Ala.1982):
"`"The proximate cause of an injury is the primary moving cause without which it would not have occurred, but which, in the natural and probable sequence of events, produces the injury." City of Mobile v. Havard, 289 Ala. 532, 268 So. 2d 805 (1972), appeal after remand, Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974). Negligence need not be the sole cause of injury in order to hold the negligent person liable. It is sufficient that his or her negligence, "concurring with one or more efficient causes ... is the proximate cause of the injury." Lawson *1264 v. General Telephone Co. of Alabama, 289 Ala. 283, 267 So. 2d 132 (1972) (quoting Shepard v. Gardner Wholesale, Inc., 288 Ala. 43, 256 So. 2d 877 (1972), and Chambers v. Cox, 222 Ala. 1, 130 So. 416 (1930). When the concurring cause is another person's negligence which might reasonably be anticipated or foreseen, the original act of negligence may be regarded as the proximate cause of the injury which results. [Citations omitted.]'
"In Saunders v. Register, 496 So. 2d 752 (Ala.1986), it was the plaintiff's contention that potholes and a generally poor road surface caused the defendant to swerve into the opposing lane and injure the plaintiff. In Saunders, the plaintiff argued that the defendant's swerving into the southbound lane could be inferred from the existence of potholes in the northbound lanes and from the defendant's statement that she did not hit the potholes. The Saunders Court held that the plaintiff could not rest upon the allegations of the pleadings to defeat the defendant's motion for summary judgment, but must respond by setting forth specific facts to show that there was a genuine issue for trial.
"The Saunders opinion adopted the following quote from Folmar v. Montgomery Fair Co., 293 Ala. 686, 690, 309 So. 2d 818, 821 (1975): `There is nothing wrong with a case built around sufficient circumstantial evidence, provided the circumstances are proved and not merely presumed.' In Vines v. Plantation Motor Lodge, 336 So. 2d 1338 (Ala.1976), the Court held that the defendant truck owner's negligence per se, in leaving his truck unlocked with the keys in the ignition in violation of a municipal ordinance, was not the proximate cause of the alleged injuries and death in that the consequences of the theft of the truck were too remote to have been reasonably foreseen by the truck's owner.
"The key here is foreseeability. Then the question here under consideration should be as follows: Should the defendants have anticipated or foreseen that the plaintiff's vehicle would leave the roadway without any explanation whatsoever as to the cause?
"In Vines, supra, the Court concluded its decision with this statement: `In this case, we hold the negligent driving of the thief was the proximate cause of the injuries; defendant's negligence, if any, was too remote to be a proximate cause of those injuries. Therefore, violation of the ordinance, under the facts in this case, cannot be considered a proximate cause of the accident as a matter of law.' 336 So. 2d at 1340.
"In Smoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d 585 (Ala.1987), the plaintiff claimed damages against a hotel for negligent design and maintenance of a driveway in failing to install a `stop sign.' The Smoyer Court held that there was no liability absent evidence of proximate cause:
"`This Court has held that no matter how negligent a party may have been in a particular instance, he is accountable only to those persons injured as a proximate result of such negligence. [Citations omitted.] In discussing the concept of proximate cause, this Court, in General Motors Corp. v. Edwards, 482 So. 2d 1176, 1193 (Ala.1985), stated:
"`"It is axiomatic that regardless of a tort-feasor's culpability, regardless of whether he failed to exercise reasonable care in carrying out a duty imposed upon him by law, he may not be held liable unless there is a causal connection between his action and the injury for which the aggrieved party seeks compensation."'
"`... Thus, even if we assume that the driveway was negligently designed, constructed, or maintained, there is no evidence that this negligence proximately caused Smoyer's injuries.'
"Smoyer, 517 So. 2d at 587-88.
"Due to the plaintiff's failure to present evidence as to the cause of his Blazer vehicle's leaving the road and impacting the guardrail, any claim that the defendants' negligence is the proximate cause of the *1265 plaintiff's injuries and damages would be a product of pure supposition, speculation, conjecture, or guesswork.
"The court finds that the defendants' negligence, if any, is too remote to be a proximate cause of the plaintiff's injuries and damages.
"The court finds that the motions for summary judgment by the defendants are well taken and hereby are granted. There being no just reason for delay, final [judgment is] hereby entered in favor of the defendants General Motors Corporation, G.W. Norrell Construction Co., Inc., and Shelby County, Alabama, as per Rule 54(b), A.R.Civ.P.
"Costs, if any, relative to these defendants, are taxed to the plaintiff.
"Done and ordered this the 26th day of June, 1989.
While we do not necessarily agree with the trial judge's "proximate cause" rationale, as opposed to a "breach of duty" analysis, we find no basis for reversal.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and KENNEDY, JJ., concur. | February 2, 1990 |
a1d7940d-00b8-40a5-860b-f22527ef3a6b | Humber v. BF Goodrich Co. | 561 So. 2d 511 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 511 (1990)
James G. HUMBER
v.
The B.F. GOODRICH COMPANY, a corporation, et al.
88-642.
Supreme Court of Alabama.
March 30, 1990.
*512 E. Ray Large, Birmingham, for appellant.
Thad G. Long and Michael D. McKibben of Bradley, Arant, Rose & White, Birmingham, for appellee B. F. Goodrich Co.
William E. Hereford of Hereford, Blair, Holladay & Parsons, Pell City, for appellee James Shields.
Walter W. Bates of Starnes & Atchison, Birmingham, for appellee William J. Misko.
ALMON, Justice.
James G. Humber brought an action against the B. F. Goodrich Company, William J. Misko, and James Shields, alleging breach of contract, misrepresentation, and other causes of action not pertinent here. The trial court entered summary judgment for the defendants, and Humber appeals.
The dispute concerns money paid by Humber to Shields in connection with Humber's hauling of scrap tires from Goodrich's Birmingham Product Service Department warehouse center. Humber contends that the money he paid Shields, 20% of the amount paid to him by Goodrich for hauling away tires, was represented to him as creating a cash bond to pay any expenses caused by Humber's improper dumping of tires, to be reimbursed if no claims were made on the bond. When he quit hauling tires, he wrote Shields, demanding reimbursement of his "Job Security Bond Money" in the amount of $26,276.10, but Shields denied any such liability. Shields, Goodrich, and Misko (Goodrich's area manager) assert that the money paid to Shields was a commission due by virtue of the fact that Shields had originally contracted with Goodrich to haul the tires.
The evidence is undisputed that in 1973, Shields entered into an oral contract with Curly Durham, Misko's predecessor as manager with responsibility over the disposing of scrap tires from the facility in *513 question. Shields agreed to haul away tires for specified payments depending on the number and kind of tires. Shields stated in deposition that he hired James Taylor to haul the tires. Under the initial arrangement, Goodrich made payments directly to Taylor, who paid Shields 10% of his receipts.
Misko took Durham's place around 1975 or 1976. Shortly thereafter, Taylor made arrangements with John O'Brien for O'Brien to take over the haulage. O'Brien stated in deposition that he paid Taylor $3000, which, according to O'Brien, represented reimbursement to Taylor for his bond money. O'Brien did not talk to Shields, however; the information about bond money came from Taylor. Taylor also gave O'Brien the truck he had been using; according to O'Brien, the truck was not worth $100 and he did not use it long. O'Brien's deposition indicates that Misko confirmed Taylor's representations that O'Brien would have to continue paying the "bond money." O'Brien also stated that Taylor and Misko told him that the money was supposed to cover any expenses caused by improper dumping.
O'Brien performed the hauling contract along with Benny Smith. At one time O'Brien complained to Misko about the 10% payment to Shields. O'Brien stated that Shields telephoned him the next day and said, "[W]e are going to jump this thing up to twenty percent and going to give you a raise"; O'Brien continued, "[D]umb as I was I fell for it, but I was actually losing money." Apparently, this was virtually the only time O'Brien and Shields talked, and there is no evidence that O'Brien asked Shields about the nature of, or the reason for, the payments.
In 1977, Humber started working with O'Brien and Smith. He stated in deposition that Smith left after about six weeks, that he paid Smith $3000, and that Smith told him that the $3000 represented Smith's share of the bond money. Humber and O'Brien performed the hauling contract for a few more months, after which Humber apparently paid O'Brien $3000 and O'Brien left the business. O'Brien told Humber that the $3000 represented O'Brien's share of the bond money and that he should continue making 20% payments to Shields, whom O'Brien described as being affiliated with Goodrich. Neither of them talked to Shields about the transfer to Humber of the hauling rights.
Both Humber and O'Brien stated in their depositions that Misko was aware, prior to Humber's payment to O'Brien of the $3000, that Humber was under the impression that the 20% payment was "bond money." Humber stated that O'Brien introduced him to Misko; his deposition continued:
Humber took over the hauling operation in September 1977 and continued it until 1986. On several occasions he complained about the bond money. He testified that on such occasions Misko told him that he had to pay the money if he wanted to keep the job. Humber said that on one such occasion Misko offered to raise the price per tire for the hauling; that he replied that he would rather have the bond money reduced or stopped; and that Misko said he could not do that. Humber said that he talked to Shields only once, and that that was to tell him the payment would be late. Shields stated in deposition that he did not recall talking to Humber at all.
In 1981, the payment was dropped to 10%; Humber stated in deposition the following:
*514 In 1982, Humber stopped making payments to Shields altogether. According to Humber's calculations, his initial payment of $6,000 plus his periodic payments then totalled $26,276.10. He said he told Misko that he felt like that was enough to cover any claims against the bond and that, if Goodrich insisted on the bond, he would rather obtain a bond from a bonding company. Shields stated in his deposition that someone at Goodrich (someone other than Misko) called him at that time to tell him that Humber was complaining about the payments and that he said just to cut them off.
In 1984 and 1985, there were some complaints about Humber's dumping of the tires, and Goodrich was dissatisfied with his lack of promptness in removing tires from the warehouse dock. There was no attempt to inform Shields about the problems, however, and Goodrich sustained no expenses due to the problems. Apparently because of the problems, Goodrich drafted a one-page "1985 Scrap Disposition Agreement," which was dated January 22, 1985, and was signed by Humber and Misko. The agreement covered Humber's responsibilities for removing tires, the compensation per tire, and the requirement that Humber remove the tires "on a daily or bi-daily basis, never allowing more than 600 units to accumulate." The agreement concluded: "Should any additional expenses occur after scrap units have been removed by [Humber] from our premises, the costs will be the responsibility of [Humber]. The agreement made no mention of either a bond or a commission; of course, the commission to Shields had been discontinued three years earlier.
Shortly thereafter, Goodrich merged with another tire company to become the Uniroyal Goodrich Company, and began sending most of the scrap tires to Tuscaloosa for incineration. Due to the decreased volume of business, Humber quit hauling tires in 1986.
When he resigned, Humber wrote a letter to Shields, with a copy sent to Misko, requesting a refund of the bond money. Misko wrote a letter to Humber that included the following:
After receiving that letter, Humber spoke to Shields by telephone, and Shields said that it had been his business all along and that he did not know what Humber was talking about in asking for a refund.
The evidence recited above would support a finding that Misko represented to Humber that the payments constituted some sort of "bond money," or at least failed to correct Humber when he referred to the payments that way, and that they were imposed to assure that money would be available to clean up any improper dump sites. Humber himself testified, however, that no one ever told him that the money would be refunded if it was not used for such a cleanup, but that that was simply his understanding or his belief. Furthermore, all of Humber's records referred to the payments to Shields as a 20% commission, and Humber had no documentary evidence of any bond toward which the payments were being made.
On appeal, Humber argues that he should have been allowed to proceed past the summary judgment stage on his theories of contract, fraud, and quasi-contract. Misko correctly points out that Humber's complaint does not seek relief under a quasi-contract theory. Issues not raised before a trial court may not be raised on appeal. Green v. Taylor, 437 So. 2d 1259 (Ala.1983); Hutchins v. Shepard, 370 So. 2d 275 (Ala.1979). Therefore, only the fraud and contract theories are before us.
None of the evidence in the record tends in the least to show a contract between Shields and Humber that would require Shields to refund to Humber any of the payments or to show any representations *515 by Shields to Humber at all, and certainly not one that would support an action for fraud. Nor can we find evidence of a contract between Humber and either Goodrich or Misko individually that would have required Goodrich or Misko to refund the payments made to Shields. Humber himself stated that no one ever told him that the "bond payments" would be refunded, but that he simply assumed that to be the case. A contract requires a meeting of the minds, Christian v. Rabren, 290 Ala. 45, 273 So. 2d 459 (1973), and there is no evidence in this record of any such agreement to refund to Humber any portion of the payments made to Shields.
The only aspect of Humber's contentions that even arguably supports a cause of action is the claim that Misko represented that the payments to Shields were "bond money," that they were intended to cover expenses of cleaning up any improper dumping, and that Humber must make those payments in order to keep the job. However, Humber's testimony about his conversations with Misko tends to show only that Misko at most made only vague and passing references to the payments as "bond money" or failed to correct Humber when he made such references. Such references could not support a fraud claim in light of the evidence, from Humber's own checks and records, that he contemporaneously referred to the money paid to Shields as a "commission." Even if we accept as true Humber's evidence that Misko said the payments were for cleanups, such representations were essentially true, because Shields, as the holder of the contract, would have been liable for any such expenses. While Misko might have been more forthcoming and explained the relationship with Shields more fully, there is no indication of a confidential relationship between Humber and either Misko or Goodrich. Given the undisputed evidence that Shields actually held the contract with Goodrich, we conclude that Misko had no duty to disclose to Humber that Humber was in fact working for Shields. Any misrepresentation about the nature of the relationship appears to have originated with Taylor and to have passed through O'Brien to Humber.
An action for fraud requires proof of a false representation of a material existing fact, reliance by the plaintiff, and damage. Smith v. J. H. Berry Realty Co., 528 So. 2d 314 (Ala.1988); Ala.Code 1975, § 6-5-101. The evidence in the record before us would not sustain a finding that Misko misrepresented any material facts to Humber.
For the foregoing reasons, the judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | March 30, 1990 |
18b66eef-9d70-4b4f-b385-3edf087b0a0f | Ramsay Health Care, Inc. v. Follmer | 560 So. 2d 746 | N/A | Alabama | Alabama Supreme Court | 560 So. 2d 746 (1990)
RAMSAY HEALTH CARE, INC.
v.
Fred C. FOLLMER.
88-1114.
Supreme Court of Alabama.
March 2, 1990.
C. Lee Reeves of Sirote, Permutt, McDermott, Slepian, Friend, Friedman, Held & Apolinsky and Walter J. Sears III and Jay D. St. Clair of Bradley, Arant, Rose & White, Birmingham, for appellant.
James L. Shores, Birmingham, for appellee.
JONES, Justice.
Ramsay Health Care, Inc., formerly known as Healthcare Services of America, Inc. (hereinafter referred to as "HSA"), appeals from an $800,000 judgment entered on a jury verdict in favor of Fred C. Follmer on his fraud claim. Because there was sufficient evidence to support the jury's verdict, and because we find no basis for reversal on any issues here presented, we affirm.
Follmer, a licensed certified public accountant, has worked as an executive officer in the hospital financial field for several years. For seven years, he was employed by Charter Medical Corporation, a hospital holding company, as vice president of financial operations. In 1985, Charter changed its management and Follmer resigned; however, pursuant to an employment agreement with Charter, Follmer continued to receive his salary and employment benefits until he procured another job. In his last year at Charter, Follmer made approximately $600,000 in salary, bonuses, and the sale of stock acquired through purchase options. Thereafter, Follmer was employed by a small hospital holding company, which, together with a group of investment bankers, he attempted *747 to acquire. When the acquisition did not materialize, Follmer resigned, and he was subsequently hired by HSA.
HSA was a publicly held corporation that owned 20 hospitals across the country specializing in psychiatric and chemical dependency healthcare. Its corporate headquarters were located in Birmingham.
In January 1987, Bill Miller and Associates, an employment agency specializing in recruiting executives, acting on behalf of HSA, contacted Follmer regarding the position of "Chief Financial Officer of Hospital Operations." On February 5, 1987, Follmer traveled to Birmingham and met with Charles Speir, the chairman of the board and chief executive officer of HSA, to discuss the position. On February 12, he again traveled to Birmingham, where he met with Tom Rodgers, the president and chief financial officer of HSA, to further discuss the position.
As a result of these interviews, Follmer accepted the job as HSA's "Chief Financial Officer of Hospital Operations." Follmer's compensation package consisted of an annual salary of $175,000, plus benefits. These benefits included purchase options on 100,000 shares of HSA stock; an incentive bonus amounting to 25% of his base compensation, which was to be "determined quarterly" on "mutually agreeable performance criteria"; and a "Merger/Termination Agreement," which provided for the payment of one year's salary and benefits in the event of a sale or change in control of the company, with no provision for termination benefits if he was discharged by HSA before its sale or change in control of the company. Follmer began employment at HSA on February 23, 1987. The "Merger/Termination Agreement" was not executed until May 7, 1987. No other employment agreements were executed.
Although Follmer's superiors at HSA were very pleased with his performance, his employment was terminated without advance notice on June 23, 1987. When he inquired as to why he was so suddenly discharged, HSA responded that it was due to "economic necessity." Follmer never received the bonus, nor the purchase option on the 100,000 shares of HSA stock that had been promised to him.[1] HSA offered Follmer three months' severance pay totaling approximately $47,000 in exchange for his executing a release waiving any rights or claims that he may have had against HSA. Follmer refused the severance pay offer, contending that he was entitled to one year's salary plus maintenance of benefits.
Upon HSA's refusal to honor his demands, Follmer sued HSA, alleging breach of contract and fraud in the inducement. Follmer alleged in his fraud claim that HSA had made misrepresentations regarding termination benefits, stock options, and a bonus and that as a result he had been induced to accept employment at HSA and was thereby defrauded when HSA failed to honor its representations. He further alleged that HSA, when it made the misrepresentations, intended not to honor them. Follmer argued at trial, as he does on appeal, that he was promised termination benefits, not only upon a sale or change in control of the company, but when his employment at HSA was terminated for any reason.
In summary, Follmer contended that HSA had promised him that, upon his discharge, he would be eligible to receive termination benefits of one year's salary plus maintenance of all benefits as security for accepting short-term employment. He acknowledged receipt of the "Merger/Termination Agreement," and acknowledged the fact that benefits would not be payable thereunder unless his employment at HSA was terminated due to a sale or change in control of the company. Follmer argued, however, that in accordance with the representations made to him by HSA, he was expecting to receive another agreement that provided for the benefits to which he claimed that he was entitled. HSA denied *748 Follmer's contentions and argued that he was promised a "golden parachute," which, it argued, is defined in the accounting and tax field as a merger-termination agreement. HSA argued that Follmer got what he was promised, and that there were no misrepresentations made to him; rather, it argues, there was no "meeting of the minds" in regard to what was encompassed within a "golden parachute."
The case was tried before a jury, which returned a verdict in the amount of $800,000 in favor of Follmer on his fraud claim. The trial court overruled HSA's motion for JNOV pursuant to Rule 50, A.R.Civ.P., and its motion for a new trial pursuant to Rule 59, A.R.Civ.P. HSA appeals.
HSA contends that the trial court erred in allowing Follmer to present parol evidence regarding termination benefits, because, says HSA, any such representations were superseded by a written offer of employment that did not provide for the termination benefits that Follmer claims he was entitled to receive. See Appendix. We disagree. As a general proposition, the parol evidence rule applies to contract actions, not actions in tort. Parol evidence is ordinarily admissible to show that a written agreement was procured by fraud. Hall v. Integon Life Insurance Co., 454 So. 2d 1338 (Ala.1984), Curry Motor Co. v. Hasty, 505 So. 2d 347 (Ala.1987). This is exactly what Follmer alleged in his complaint, which, in pertinent part, states:
Follmer's complaint did contain multiple claims, including a claim for breach of contract; however, the jury returned a verdict in Follmer's favor solely on his fraud claim. Therefore, we hold that the trial court did not err in admitting parol evidence of pre-employment negotiations.
HSA calls our attention to the case of Tyler v. Equitable Life Assurance Society of the United States, 512 So. 2d 55, 57 (Ala.1987), where it was held:
That holding, however, should not be interpreted to prohibit the introduction of parol evidence where the gravamen of the claim is that the defendant fraudulently induced the plaintiff to enter into the contract, i.e., that the contract was procured by fraud.
The context in which Tyler was written distinguishes that case from the instant case. In Tyler, as in Taylor v. Moorman Manufacturing Co., 475 So. 2d 1187 (Ala. 1985), the plaintiff sought relief based upon alleged oral misrepresentations that were clearly contradictory to the provisions of a subsequently executed agreement. The first sentence of the quoted language from Tyler addresses the "admissibility of parol evidence" issue in the context of a claim based on breach of contract. The remaining language from the Tyler quotation addresses the issue of reasonable reliance as a requisite element of legal fraud, where the plaintiff has reason to doubt the truth of the oral representation or is informed of the truth before he acts.
*749 It has been generally held that, when a person signs a writing containing language that is clearly contrary to a pre-execution parol representation, reliance is unjustified. See, e.g., Kilpatrick v. Citibanc of Alabama/Andalusia, 494 So. 2d 39 (Ala.1986); Tyler v. Equitable Life Assurance Society of the United States, supra; Taylor v. Moorman Mfg. Co., supra; and Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983). For a statement of the standard by which "reasonable reliance" should be assessed, see Hickox v. Stover, 551 So. 2d 259 (Ala.1989) (quoting from Chief Justice Hornsby's special concurrence in Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081 (Ala.1989)); see, also, A T & T Information Systems, Inc. v. Cobb Pontiac-Cadillac, Inc., 553 So. 2d 529 (Ala.1989); Leisure American Resorts, Inc. v. Knutilla, 547 So. 2d 424 (Ala.1989); and Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala.1988).
We now turn to the issue whether there is sufficient evidence from which the jury could reasonably infer that Follmer was induced, through fraud and to his detriment, into accepting employment at HSA. The essential elements of a fraud claim are: (1) misrepresentation of a material fact; (2) made willfully to deceive, or recklessly without knowledge; (3) which was justifiably relied upon by the plaintiff under the circumstances; and (4) which caused damage as a proximate consequence. Bowman v. McElrath Poultry Co., 468 So. 2d 879 (Ala.1985).
Although there was conflicting testimony presented at trial, it is well settled that it is within the province of the jury to resolve conflicting evidence. After a thorough review of the record in this case, we conclude that there was substantial evidence upon which the jury could draw a well-founded inference that Follmer was induced by material misrepresentations into accepting employment at HSA.
The evidence indicates that HSA was in financial trouble. In 1986, its debt had risen from approximately $8,000,000 to over $150,000,000. HSA had a deficit cash flow, and it was in default on its loans. In January 1987, to deal with the problems that HSA was experiencing, a "90-day plan of action" was adopted by the board of directors, at the insistence of the lending institutions to which it was indebted. The plan's agenda included the stabilization of the company; the reduction of the executive staff of the Birmingham central office; and the creation of a new position of "Chief Financial Officer of Hospital Operations" ("CFOHO").
This new position was created to allow Rodgers (the Chief Financial Officer of HSA) to be relieved of the day-to-day financial duties at HSA, so that he could spend the necessary time required to locate a purchaser of the company. Consistent with this short-term plan of action, a "Senior Management Organization," composed of the new CFOHO, Speir, Rodgers, and Ray Luccasen and Ron Norris (two other HSA executives), was established to meet frequently to address HSA's problems. While Follmer was not told specifically of this short-term plan of action, he was informed of the role he was to play in updating the company's financial records and readying the company for sale.
Follmer was initially contacted regarding the position by Bill Miller and Associates, an executive search firm hired by HSA to recruit a qualified person to fill the position. Follmer testified that he knew about HSA's problems, and, that, in response to his expressing reservations about accepting employment with such an unstable company, a representative of Bill Miller and Associates and Rodgers told him:
"`[A]s long as you don't have any objection against short term, possibly short term employment, you've got a great base salary plus protection of a one-year termination if anything happens. You've got ... one-year's salary to find another job.' Tom Rodgers said the same thing on many occasions."
Follmer was interviewed twice, once by Rodgers and once by Speir. In response to a question regarding the Speir interview, Follmer testified:
Furthermore, in regard to the representations made at the interviews, the following colloquies took place on direct and cross-examination:
In addition to the "Merger/Termination Agreement," which most, if not all, of the HSA executives had, several of the top executives had an additional agreement entitled "Employment Agreement," which provided for substantially the same benefits as did the merger agreement, but whose termination effect was not limited to the sale or change in control of the company. Coincidentally, those who had the "Employment Agreement," which provided for such termination benefits, were the persons *751 who made up the "Senior Management Organization."
Follmer testified that he was expecting to receive another agreement consistent with the pre-employment representations that he had testified about. The jury could reasonably infer that this expectation was justified in light of the fact that Follmer's merger agreement was not executed until May 7, 1987 (over two months after he was employed), allegedly due to the fact that almost everyone at HSA was working long hours during this time. To further corroborate Follmer's testimony regarding his expectation of such an agreement, the jury had for its consideration a memo that Rodgers admitted to writing, which listed Follmer, together with the other "Senior Management Organization" members, as having such an employment contract. Additionally, another memo, also bearing Follmer's name, was introduced, which set out "Termination Benefits" of those officers, all of which were considered with Follmer's testimony that he was to receive another agreement in keeping with the pre-employment negotiations with HSA.
HSA rebutted Follmer's testimony by presenting expert testimony that the term "golden parachute," in the accounting and tax field, refers to a merger/termination agreement. Other HSA executives testified that Follmer had not told them that he had an additional agreement and that they were not aware of such an additional agreement. Speir testified that he did not make any agreement with Follmer different from the "Merger/Termination Agreement." Rodgers testified that he did not promise Follmer an "Employment Agreement" and that the "Merger/Termination Agreement" was the golden parachute that was promised to Follmer. Furthermore, Joanne Boyd, HSA's in-house counsel, whose duties included gathering information regarding employee compensation for government-required disclosure statements, testified that she asked Follmer if he had another agreement with HSA besides the "Merger/Termination Agreement" and that his reply was "no." However, Boyd also testified as to the context in which her question to Follmer was asked:
It does not appear that Boyd's question, in the context in which it was asked, would have elicited information regarding termination benefits other than those provided in the event of a sale or change in control of the company. Indeed, the jury could have reasonably concluded that Boyd's testimony was entirely consistent with Follmer's, to the effect that he expected the same termination benefits whether or not the company was sold.
As stated above, where there is conflicting testimony, it is within the province of the jury to resolve the evidence. Here, there was substantial evidence to create a reasonable inference from which the jury could find that in hiring Follmer, HSA, to induce him to accept the offer of employment, misrepresented to him that at the end of his employment, whenever that might occur, he would be entitled to termination benefits. Moreover, it is undisputed that Follmer was promised an incentive bonus, amounting to 25% of his base compensation, and purchase options on 100,000 shares of stock, none of which he received. From the totality of the circumstances, the jury could have reasonably inferred that these benefits were offered to Follmer as a further inducement for him to accept employment at HSA, which needed Follmer's expertise and experience to make the company more attractive to potential purchasers. The jury could further conclude that, once HSA had so benefited from Follmer's services, it terminated his employment and refused payment of the termination benefits, contrary to its representations.
*752 HSA contends that the stock option issue was made moot by the Securities and Exchange Commission's insider trading regulations, which prohibit an officer of a publicly held corporation from making a profit on a sale of stock of that corporation within six months after the purchase of such stock. HSA argues that the stock was below the option price during the period that Follmer could have, within the SEC regulations, retained any profits from the sale of the stock.
This argument misses the point of Follmer's claim on which the jury returned his verdict. HSA is appealing a judgment entered on Follmer's "fraud in the inducement" claim, not on his claim for breach of contract. The promise to grant Follmer the stock options, which were, for whatever reason, never granted to him, was a material part of his inducement to accept the job at HSA. Thus HSA's argument is not well taken.
Also, there is substantial evidence from which the jury could reasonably infer that the representations made to Follmer were made with the intent to deceive. Furthermore, the jury could have found that Follmer's reliance on the representations was justified. The written offer of employment did not contain any language contrary to HSA's parol representations regarding termination benefits. Although the written offer did not provide for termination benefits other than in the event of a sale or change in control of the company, there was evidence that oral promises were made guaranteeing Follmer termination benefits upon his discharge for other reasons as well.
HSA next contends that the trial court committed reversible error by permitting Follmer's lawyer to argue, over its objection, that Follmer was entitled to $116,000, which represents the amount of salary that Follmer would have received had he remained employed at HSA through February 23, 1987, and that Follmer was entitled to receive $87,500 for profits he would have made had he been granted the stock options. HSA further contends that the error was compounded by the trial court's giving the jury an instruction consistent with Follmer's argument regarding the remainder of his year's salary. We do not agree that the argument and charge objected to substantially prejudiced HSA so as to require reversal, especially in light of the fact that the jury's verdict is amply supported by the record. Furthermore, HSA has not argued, either at trial or here, that the verdict is excessive. Thus, no injury resulted to HSA from the argument and the charge and, therefore, they cannot be a basis for reversal. See Hoffman-La-Roche, Inc. v. Campbell, 512 So. 2d 725 (Ala.1987).
Therefore, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and KENNEDY, JJ., concur.
HOUSTON and STEAGALL, JJ., concur in the result.
SHORES, J., recuses.
HOUSTON, Justice (concurring in the result).
I am confused as to why the following sentences appear in the majority opinion:
In the case at issue, with regard to the fraud claim, HSA does not argue that the parol evidence rule should have been applied to exclude evidence of the pre-employment negotiations. The parol evidence rule may apply in an action where a plaintiff is seeking monetary damages for oral misrepresentations that are followed by an executed, written document that contradicts those misrepresentations. (This is a subject that I will more thoroughly address in a case in which it is properly presented by the parties.)
For this and other reasons, among them the use of Hoffman-LaRoche, Inc. v. *753 Campbell, 512 So. 2d 725 (Ala.1987), as authority to use the harmless error doctrine under the facts in this case, I concur in the result.
*754
*755
[1] Within the month following Follmer's discharge, negotiations began with The Paul Ramsay Group, an Australian-based holding company, for the purchase of HSA. As a result of these negotiations, The Paul Ramsay Group purchased the stock of HSA. | March 2, 1990 |
9445f529-0b75-4631-9a93-337fe30311a0 | Alfa Mut. Ins. Co. v. Northington | 561 So. 2d 1041 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1041 (1990)
ALFA MUTUAL INSURANCE COMPANY
v.
Steven Lee NORTHINGTON.
88-1154.
Supreme Court of Alabama.
March 16, 1990.
Rehearing Denied April 27, 1990.
*1042 Harry Cole and Terry A. Sides of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.
Jere L. Beasley and Thomas J. Methvin of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellee.
HOUSTON, Justice.
Alfa Mutual Insurance Company ("Alfa") appeals from a judgment entered on a $303,057.60 jury verdict in favor of Steve Northington, in this action for damages for breach of contract and fraud. After carefully reviewing the record and the excellent briefs of the parties, we affirm.
The evidence, viewed in a light most favorable to Northington, reveals the following material facts: Northington purchased from Alfa a homeowner's insurance policy covering a mobile home. The insurance application that Northington signed specifically stated that he was applying for $30,000 coverage on his mobile home, for a premium of $309. The application did not reflect that Northington had applied for a policy that would cover a loss due to theft of personal property from his mobile home. However, Nancy Bush, an agent for Alfa, assured Northington that the policy that he was applying for would "automatically" provide coverage for such a loss in an amount not exceeding one-half of the coverage on the mobile home, or $15,000. The policy that Northington later received stated that insurance was provided only with respect to the coverages that were indicated on the declarations page by a specific premium or policy limit applicable thereto. The declarations page of Northington's policy did reflect that a premium of $309 had been paid for, and that a policy limit of $30,000 was applicable to, coverage for damage done to the mobile home. The declarations page did not reflect that a specific premium had been paid for, or that a policy limit was applicable to, coverage for a loss due to theft of personal property from the mobile home. Northington telephoned Ms. Bush to confirm that he did have coverage on his personal property, and she reassured him that he did. Thereafter, someone burglarized Northington's mobile home, causing damage to a door. Certain items of personal property were also stolen during the burglary. Shortly after discovering the break-in, Northington spoke with Ms. Bush and advised her of the structural damage to the mobile home and of the theft of his personal property. Ms. Bush informed Northington that the structural damage was covered under his policy. However, Ms. Bush told Northington that, contrary to what he believed, the policy that he had purchased did not cover the loss of his personal property. Northington filed suit against Alfa eight days after the burglary. As of the date that the suit was filed, Northington had received no payment from Alfa.
With regard to his contract claim, Northington alleged that Alfa had breached its contract with him by failing to pay him for the structural damage that was done to his mobile home. He also alleged that Ms. Bush, in her capacity as an agent for Alfa, had orally bound Alfa in contract to cover the loss of his personal property and, therefore, that Alfa had breached its contract by refusing to pay him for the loss of his personal property. With regard to his fraud claim, Northington alleged that Ms. Bush had misrepresented to him at the time he purchased the policy that his personal property was covered and that he had *1043 relied on that misrepresentation to his detriment. Northington sought to recover compensatory damages for breach of contract, including damages for mental anguish. He sought to recover both compensatory and punitive damages for fraud. Prior to the submission of the case to the jury, Alfa had moved for a directed verdict as to each of Northington's claims. The motion was denied. After hearing much conflicting evidence, largely concerning the oral negotiations that took place between Ms. Bush and Northington prior to Northington's purchasing the policy, the jury returned a general verdict for compensatory damages in the amount of $3,057.60 and a special verdict for punitive damages in the amount of $300,000. Alfa's motion for a judgment notwithstanding the verdict or, in the alternative, new trial, as to each claim was later denied.
The following issues are presented for our review:
Alfa contends that it was entitled to a judgment as a matter of law on Northington's claim for breach of contract because, it says, the undisputed evidence showed that it did not breach its contract. Alfa argues that Northington never submitted to it a sworn proof of loss, as required under the policy, and, therefore, that it was never under any obligation to make a payment under the policy for the structural damage to the mobile home. Alfa also argues that any oral negotiations that may have occurred between Ms. Bush and Northington concerning coverage for personal property were merged into the written policy and, consequently, that there was "no legal evidence of any oral contract upon which [Northington could] base a claim for the breach thereof."
Our review of the record reveals that Alfa did not move for a directed verdict on the ground that Northington had failed to comply with a condition precedent under the policy (i.e., that Northington had failed to provide Alfa with a sworn proof of loss). Accordingly, Alfa waived its right to have this issue considered on appeal. Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877 (Ala.1979).
The record does show that Alfa moved for a directed verdict and for a judgment notwithstanding the verdict on the ground that any oral negotiations that might have occurred between Ms. Bush and Northington concerning coverage for loss of personal property were merged into the written policy and, therefore, that there was "no legal evidence" to support Northington's claim that Alfa was contractually bound to cover the loss of his personal property. The record also shows, however, that Northington sought to introduce the testimony concerning the oral negotiations for the purpose of proving the terms of his contract with Alfa and that the testimony *1044 was admitted into evidence without any objection.
In Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So. 2d 431, 434 (Ala.1979), this Court, quoting 3A Corbin, Contracts, § 573 at 357 (1960), stated as follows:
"`When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.' 3A Corbin, Contracts, § 573, at 357 (1960), cited in Richard Kelley Chevrolet Co., Inc. v. Seibold, 363 So. 2d 989, 993 (Ala.Civ.App.1978)."
The parol evidence rule is based upon the idea that a completely integrated writing, executed by the parties, contains all of the stipulations, engagements, and promises that the parties intended to make, and that all of the previous negotiations, conversations, and parol agreements are merged into the terms of the instrument. Hibbett Sporting Goods, Inc. v. Biernbaum, supra. In Alabama, however, it has been generally recognized that parties to a lawsuit may try their case on evidence that would otherwise be inadmissible upon proper objection and that where evidence violative of the parol evidence rule is admitted without objection, it may be considered and allowed such force and effect as its weight entitles it in construing the agreement of the parties. See State ex rel. Elmore v. Leveson, 207 Ala. 638, 93 So. 608 (1922); Vinyard v. Duck, 278 Ala. 687, 180 So. 2d 522 (1965); Mersereau v. Whitesburg Center, Inc., 47 Ala.App. 146, 251 So. 2d 765 (Ala.Civ.App.1971). But see Annot., 81 A.L.R.3d, Modern Status of Rules Governing Legal Effect of Failure to Object to Admission of Extrinsic Evidence Violative of Parol Evidence Rule, 249 (1977), for a collection of cases from other jurisdictions holding differently. Because the testimony concerning the oral negotiations between Ms. Bush and Northington was admitted into evidence without objection, the trial court did not err in denying Alfa's motion for a directed verdict and its motion for a judgment notwithstanding the verdict.
Alfa contends that it was entitled to a judgment as a matter of law on Northington's fraud claim because, it says, the undisputed evidence showed that Northington could not have reasonably or justifiably relied on any statements that may have been made by Ms. Bush concerning coverage for loss of personal property. Alfa argues that the insurance application clearly indicated that Northington was applying only for coverage for damage to his mobile home, not for coverage for loss of personal property. Alfa also asserts that the written policy that Northington later received clearly revealed that loss of personal property was not covered under the policy. Alfa also contends that the evidence was insufficient to sustain an award of punitive damages for fraud. Northington concedes that he read both the application and the declarations page of the policy. He argues, however, that those documents were not sufficient to apprise him of the falsity of Ms. Bush's representation that coverage for loss of personal property would "automatically" be provided under the policy in an amount not exceeding one-half of the coverage on the mobile home. Northington takes the position, therefore, that a fact question was presented as to whether his reliance on Ms. Bush's representations was reasonable or justifiable under the circumstances. Northington also argues that the evidence was sufficient to sustain an award of punitive damages. We agree.
This lawsuit was pending on June 11, 1987; therefore, the "scintilla of evidence rule" is applicable. Ala.Code 1975, § 12-21-12. The standard for reviewing a motion for directed verdict, applying that rule, is as follows:
Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 856 (Ala.1981).
Although Alfa has framed the issue in terms of whether Northington could have reasonably or justifiably relied on any of Ms. Bush's representations concerning personal property coverage and whether there was support in the evidence for the award of punitive damages, because of the interrelationship between the elements of a cause of action for fraud we discuss all of the elements of Northington's fraud claim.
Ms. Bush owed a duty to Northington to speak the truth. Colonial Bank of Alabama v. Ridley & Schweigert, 551 So. 2d 390, 396 (Ala.1989) ("[d]uty is an essential element of fraud"). See, also, George v. Federal Land Bank of Jackson, 501 So. 2d 432 (Ala.1986). A person owes a duty not to make a misrepresentation to those to whom he intends, for his own purposes, to reach and influence by the representation, or to those to whom he has a public duty created by statute or pursuant to a statute. Colonial Bank of Alabama v. Ridley & Schweigert, supra, at 396 ("No `agent ... shall knowingly make a false or fraudulent statement or representation in, or relative to, an application for insurance,'" quoting Ala.Code 1975, § 27-12-23). The record shows that there was at least a scintilla of evidence tending to show that Ms. Bush orally misrepresented to Northington that his personal property would be covered under the policy.[1] Likewise, there was at least a scintilla of evidence tending to show that that misrepresentation involved a material existing fact, which is the "`foundation stone' of a cause of action for misrepresentation/fraud." Lawson v. Cagle, 504 So. 2d 226, 228 (Ala.1987). A material fact is one that would induce someone to act. Lawson v. Cagle, supra; Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985). The evidence tended to show that Ms. Bush misrepresented the extent of coverage under the policy in order to induce Northington to act (i.e., to purchase the policy), that the misrepresentation was "acted on" by Northington, Ala.Code 1975, § 6-5-101, and that Northington did "act to his injury," Ala.Code 1975, § 6-5-103. The phrases "acted on" and "act to his injury" have been judicially interpreted as "relied upon"; and this Court has held that a person has not acted on a representation unless he has "reasonably" (see Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081 (Ala.1989)) or, as stated more recently, "justifiably" (see Hickox v. Stover, 551 So. 2d 259 (Ala. 1989)), relied upon the representation.
We are not persuaded by Alfa's argument that, as a matter of law, Northington could not have relied on any of Ms. Bush's oral representations because those representations were followed by the execution of an insurance application and the issuance of a written policy. It is true, as Alfa contends, that a person has a duty to read what he signs. It is also true that a cause of action for "fraud or misrepresentation cannot be predicated upon a verbal statement made before the execution of a written contract where a provision in that contract contradicts the verbal statement." See Tyler v. Equitable Life Assurance Society of the United States, 512 So. 2d 55, 57 (Ala.1987), where this Court held that it was not reasonable for the plaintiffs to rely on an alleged representation that had been made prior to the execution of, and that *1046 was contradicted by, a note and mortgage. Therefore, as a matter of law, a person with the ability to read and to understand the nature of the transaction cannot act on an oral representation when that representation is followed by an executed document that contradicts it. In the present case, however, there was at least a scintilla of evidence tending to show that the misrepresentation that was made by Ms. Bush to Northington was not discoverable by Northington upon his reviewing the documents in question. The jury could have found from the evidence that Ms. Bush represented to Northington that personal property would "automatically" be covered under the policy in an amount not exceeding one-half of the coverage on the mobile home, and that Northington could have reasonably inferred from that representation that it was not necessary for the application or the policy to reflect that a specific premium had been paid for, or that a policy limit was applicable to, coverage for loss of personal property. The evidence showed that even after Northington received his policy, and he concedes that he read the declarations page of the policy, he contacted Ms. Bush to confirm that he did have coverage on his personal property and that she reassured him that he did. Thus, this case is distinguishable from Tyler v. Equitable Life Assurance Society of the United States, supra, and is more like Liberty National Life Ins. Co. v. Sherrill, 551 So. 2d 272 (Ala.1989), where this Court held that it was not unreasonable as a matter of law for Ms. Sherrill to rely on the oral representations of the agent when the application that was signed by Mr. Sherrill, with Ms. Sherrill's help, did not clearly contradict the oral representations.
Likewise, we are not persuaded that the evidence was insufficient to support an award of punitive damages. It is well settled that if there is evidence from which the jury can reasonably infer an intent to deceive or defraud, then punitive damages are recoverable. American Honda Motor Co. v. Boyd, 475 So. 2d 835 (Ala.1985). In the present case, the jury could have found from the evidence that Ms. Bush intentionally misrepresented the extent of the coverage under the policy in order to induce Northington to purchase the insurance.
The trial court did not err in denying Alfa's motion for a directed verdict and its motion for a judgment notwithstanding the verdict, because, as the foregoing discussion illustrates, there was at least a scintilla of evidence tending to show that Northington was damaged as a result of his acting upon an intentional misrepresentation of a material fact made by Alfa through its agent, who owed a duty to him to speak the truth. We cannot hold that, as a matter of law, Northington was prevented by the existence of any writing from acting upon the representation. It was within the province of the jury to determine whether the documents that were presented to Northington were sufficient to cause him to doubt the truth of the oral representation that had been made by Ms. Bush.
Alfa contends that the trial court erred in instructing the jury that it could award Northington damages for mental anguish on his breach of contract claim and, accordingly, that the trial court erred in denying its motion for a new trial. We disagree.
The trial court instructed the jury that it could award Northington damages for mental anguish if it found that Alfa had breached its contract. Alfa objected to that instruction. It is important to note that Alfa does not contend on appeal that damages for mental anguish were an improper measure of recovery because they were sought for breach of a contract. The essence of Alfa's argument is that the trial court's instruction was erroneous because the evidence was insufficient to support an inference by the jury that Northington suffered any mental anguish. Drawing on our previous discussion of Northington's fraud claim, we believe that the jury could *1047 have reasonably inferred that Ms. Bush intentionally misrepresented the extent of coverage under the policy in order to induce Northington to purchase the insurance and that, subsequent to the break-in, Northington found himself in the position of having to hire an attorney to file suit to recover his loss. It would not have been difficult for the jury to find that Northington had suffered mental anguish.
Alfa contends that the verdict is inconsistent as a matter of law and, consequently, that the trial court erred in denying its motion for a new trial. Again, we disagree.
Alfa argues that the jury found in favor of Northington on his fraud claim and on his breach of contract claim to recover damages arising out of the loss of his personal property. Alfa asserts that it was inconsistent for the jury to award Northington damages under his contract claim and at the same time award him damages for fraud on the basis that he had been misled into believing that he had personal property coverage. Alfa's argument is predicated, however, on an erroneous assumptionthat this Court will presume that the jury found for Northington on both of his claims. The trial court instructed the jury that it could award punitive damages only if it found in Northington's favor on his fraud claim. It is apparent to us, by the award of punitive damages, that the jury found for Northington on his fraud claim. Although we cannot discern from the record the basis upon which the jury made its award of compensatory damages, and, thus, whether the jury awarded any damages to Northington on his contract claim, we believe that the trial court's instructions were sufficient to apprise the jury that Northington was pursuing alternative, inconsistent theories of recovery, and we will presume that the jury, exercising common sense, returned a verdict consistent with those instructions. See Empiregas, Inc. of Ardmore v. Hardy, 487 So. 2d 244 (Ala.1985), cert. denied, 476 U.S. 1116, 106 S. Ct. 1973, 90 L. Ed. 2d 657 (1986).
Alfa contends that the award of punitive damages in this case violated its right to due process of law under the Fourteenth Amendment to the United States Constitution and Article I, § 13, of the Alabama Constitution and, therefore, that the trial court should have granted its motion for a new trial. The thrust of Alfa's argument is that the trial court failed to provide the jury in its oral charge with any meaningful standards by which a proper award of punitive damages could be made. The record shows that Alfa raised the issue of the constitutionality of an award of punitive damages early in the litigation in its motion to dismiss and in its answer. The issue is also reflected in the pre-trial order. However, Alfa neither objected to the trial court's oral charge on this ground nor submitted any requested written instructions to the trial court purporting to set out any particular standards that would aid a jury in assessing an award of punitive damages. This Court cannot undertake to review the propriety of a trial court's oral charge unless that charge has been timely objected to and the objection has been overruled by the trial court, or a requested written jury instruction has been refused by the trial court. There is no ruling by the trial court for us to review on the issue of the constitutionality vel non of punitive damages, and the trial court's oral charge became the law of the case. Rule 51, A.R.Civ.P. The trial court did not err in denying Alfa's motion for a new trial on this ground.
Finally, Alfa contends that it was entitled to a new trial on the ground that the award of punitive damages was excessive. It argues now, as it did to the trial *1048 court, that the award of $300,000 under the facts of this case was clearly the result of bias, passion, prejudice, corruption, or some other improper motive on the part of the jury. In its order denying Alfa's motion for a new trial, the trial court stated as follows:
It has long been the rule in Alabama that jury verdicts carry with them a presumption of correctness, and that this presumption is strengthened when the trial court denies a motion for new trial. American Honda Motor Co. v. Boyd, supra. We have carefully reviewed the jury's award of punitive damages in this case, pursuant to the guidelines discussed in Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), and we are not convinced that the jury's award of $300,000 was excessive.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
PER CURIAM.
Application overruled.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
After the opinion in this case was released on March 16, 1990, I became aware of a law review article entitled Judicial Misuses of the Word Fraud to Defeat the Parol Evidence Rule and the Statute of Frauds (With Some Cheers and Jeers for the Ohio Supreme Court), 23 Akron L.Rev. 1 (1989), that was written by Professor Morris G. Shanker and was received at the Alabama Supreme Court and State Law Library on March 15, 1990. Professor Shanker, in this article, expressed the views held by this individual Justice (see note 1 in the opinion) when he wrote the following:
"`it [is] the duty of every contracting party to learn and know its contents before he signs [a writing] ... But the contract cannot be avoided by proof that one of the parties, if he was sound in mind and able to read, did not know the terms of the agreement. One must observe what he has reasonable opportunity for knowing; the law requires men, in their dealings with each other, to exercise proper vigilance and give their attention to those particulars which may be supposed to be within reach of their observation and judgment and not to close their eyes to the means of information which are accessible to them. A person is presumed to know those things which reasonable diligence on his part would bring to his attention.'
23 Akron L.Rev. at 7-10 (emphasis original).
[1] The testimony concerning the oral representations was not objected to by Alfa on the ground that it violated the parol evidence rule or that the oral representations were merged into the written application and policy. When a party seeks to recover damages, in lieu of trying to set aside or void a subsequent document allegedly induced by oral misrepresentations, testimony concerning the oral representations that is clearly contradicted by the written document may be subject to objection and exclusion under the parol evidence rule. | March 16, 1990 |
5903f2ae-44a0-4132-a5a9-b4c68c574a59 | Watson, Watson, Rutland/Architects, Inc. v. BD. OF EDUC. | 559 So. 2d 168 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 168 (1990)
WATSON, WATSON, RUTLAND/ARCHITECTS, INC.
v.
MONTGOMERY COUNTY BOARD OF EDUCATION, et al.
MONTGOMERY COUNTY BOARD OF EDUCATION
v.
WATSON, WATSON, RUTLAND ARCHITECTS, INC.[1]
88-220, 88-273.
Supreme Court of Alabama.
February 23, 1990.
*169 Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant/ cross-appellee.
Vaughn H. Robinson and Philip H. Butler, Montgomery, for appellees Montgomery County Board of Education.
W. Joseph McCorkle, Jr. of Balch and Bingham, Montgomery, for appellee U.S. Mineral Products Co.
Harry Cole and Alex L. Holtsford, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee Dixie Roof Decks, Inc.
Calvin M. Whitesell of Whitesell & Lewis, Montgomery, for amici curiae Alabama Council of the American Institute of Architects and the Montgomery Chapter of the American Institute of Architects.
MADDOX, Justice.[*]
This case arises out of property damage incurred when the roof of Brewbaker Junior High School in Montgomery leaked. The Montgomery County Board of Education *170 (hereinafter "the School Board") filed this action against Bear Brothers, Inc., the general contractor; United States Mineral Products Company (hereinafter "U.S. Mineral"), the manufacturer of the roofing membrane; and W. Murray Watson, W. Michael Watson, and J. Michael Rutland, the architects for the school project. Bear Brothers joined Dixie Roof Decks, Inc. (hereinafter "Dixie"), the roofing subcontractor, as a third-party defendant. The trial court substituted the corporate entity Watson, Watson, Rutland/Architects, Inc. (hereinafter "the Architect"), for the individually named architects.
The School Board alleged negligence and breach of contract against the Architect and breach of contract and breach of guaranty against the Bear Brothers and U.S. Mineral. The Architect filed a cross-claim against U.S. Mineral and Dixie for indemnity in case the Architect were held liable to the Board. The trial court entered summary judgment for U.S. Mineral and Dixie on that cross-claim, holding that a one-year statute of limitations applied to that cross-claim and that the statute barred the claim.
The School Board settled with Bear Brothers and U.S. Mineral for a total of $100,000. At trial against the Architect, the court granted the Architect's motion for a directed verdict as to the School Board's negligence claim, on the ground that the statute of limitations had expired. The breach of contract claim was submitted to the jury, and the jury returned a verdict of $24,813.08 against the Architect. The court entered a judgment based on that verdict.
The Architect appealed from that portion of the judgment based on the verdict in favor of the School Board and from the dismissal of its cross-claim against U.S. Mineral and Dixie. The School Board then cross-appealed from that portion of the trial court's judgment based on the Architect's directed verdict on the negligence claim.
At the center of this dispute is the architectural agreement between the Architect and the School Board; it included the following language:
"* * * *
The following issues respectively have been argued orally and in the parties' briefs:
On the Architect's appeal:
*171 (2) If the answer to Issue 1 is no, then is the Architect entitled to cross-claim for indemnity against the roofing subcontractor and the manufacturer of the roofing membrane?
On the School Board's cross-appeal:
The Architect argues that the exculpatory language in Article 8 of the architectural agreement absolves the Architect from liability to the School Board because all roof leaks involved were attributable to the faulty workmanship of the contractor. The Architect points out that Article 8 provides for two types of inspection services by the Architect; that is, the owner could elect to receive only general site inspections by the Architect, or the owner could elect to pay an additional fee for continuous on-site inspections (known as the "clerk of the works" alternative); the School Board elected not to pay for the second option.[2]
This Court has construed language virtually identical to that at issue here, in Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So. 2d 99 (Ala.1987). In that case, the contract in question contained the following language:
The Court, in Sheetz, stated: "The contract expressly states that Spann is not responsible in any fashion for the acts or omission of the contractor, subcontractors, agents, or employees performing the work." 512 So. 2d at 102.
A case analogous to this one is Moundsview Indep. School Dist. No. 621 v. Buetow & Associates, Inc., 253 N.W.2d 836 (Minn.1977), where the contract language regarding inspection duties was virtually identical to that used here; the trial court entered a summary judgment for the architect, and the Minnesota Supreme Court affirmed. The supreme court found it significant that the school district had elected not to obtain continuous supervisory services from the architect through the "clerk of the works" clause. The court held that the contractual provisions "absolved [the architect] from any liability, as a matter of law, for a contractor's failure to fasten the roof to the building with washers and nuts." 253 N.W.2d at 839.
Other courts have also held that similar language absolved the architect from liability as a matter of law. See Mayor & City Council of the City of Columbus v. Clark-Dietz & Associates-Engineers, Inc., 550 F. Supp. 610 (N.D.Miss.1982); Shepard v. City of Palatka, 414 So. 2d 1077 (Fla. Dist.Ct.App.1981); Vonasek v. Hirsch & Stevens, Inc., 65 Wis.2d 1, 221 N.W.2d 815 (1974); J & J Electric, Inc. v. Gilbert H. Moen Co., 9 Wash. App. 954, 516 P.2d 217 (1973); contra, Hunt v. Ellisor & Tanner, Inc., 739 S.W.2d 933 (Tex.Dist.Ct.App. 1987), in which the Texas court refused to follow the decision of the Minnesota Supreme Court in Moundsview.
The Architect contends that imposition of liability upon it here would be nothing short of a holding that the Architect was the guarantor of the contractor's work.
The School Board responds to the Architect's argument by saying that it has never contended that the Architect should be a guarantor of the contractor's work, but the School Board strongly contends that where a contract is for work and services, there is an implied duty to perform with an ordinary and reasonable degree of skill and care, citing C.P. Robbins & Associates v. Stevens, 53 Ala.App. 432, 301 So. 2d 196 (1974). The School Board also argues that its claim was covered under the terms of the agreement because its claim was limited to those deviations from the plans and specifications that should have been obvious *172 to one skilled in the construction industry. According to the School Board, if the Architect's construction of the contract language is accepted, the Architect would not be accountable to anyone for its failure to make a reasonably adequate inspection so long as it made an "inspection," no matter how cursory, on a weekly basis.
The School Board points out that the contract also included the following language:
It is apparent that our focus must be drawn to the exculpatory language contained in Article 8 of the agreement. Most courts in other jurisdictions that have considered similar exculpatory clauses have recognized that while such clauses do not absolve an architect from all liability, an architect is under no duty to perform continuous inspections that could be obtained by the employment of a "clerk of the works."
The critical question in most of the cases we have reviewed from other jurisdictions seems to focus on the extent of the obligation owed when an architect agrees to perform the type of inspection that the architect agreed to perform in this case. Some of the courts hold, as a matter of law, that the agreement does not cover particular factual situations, and at least one court makes a distinction based on whether a failure of a contractor to follow plans and specifications is known to the architect during the course of the construction.
A fair reading of Article 8 obviously operates to impose certain inspection responsibilities upon the architect to view the ongoing construction progress. The frequency and number of such inspections is made somewhat specific by the contractual requirement that these visits to the site be conducted at least once each week. The difficulty arises in construing the particular terminology used, such as "endeavor to require," "familiarize himself generally with the progress and quality of the work," and "endeavor to guard the owner against defect and deficiencies." When coupled with the contract language stating that "[t]he administration of the contract by the Architect is not normally to be construed as meaning the furnishing of continuous inspection which may be obtained by the employment of a Clerk of the Works," these phrases make it obvious that the Architect's duty to inspect is somewhat limited, but we cannot agree with the argument on appeal that there could never be an imposition of liability under an agreement similar to Article 8 no matter how serious the deviation of the contractor from the plans and specifications.
We begin our interpretation of Article 8 by stating the general rule that one must look at the contract as a whole in order to determine the intent of the parties. Charles H. McCauley Associates, Inc. v. Snook, 339 So. 2d 1011 (Ala.1976). In this case, the School Board presented some evidence by persons knowledgeable of construction practices, and they testified concerning the cause of the leaks and gave general testimony concerning the conditions at the construction site, which, they allege, should have put the Architect on notice that the plans and specifications were not being followed. However, the only testimony in the record we find concerning the obligation of the Architect to conduct an inspection pursuant to the *173 agreement was to the effect that, according to one architect/witness who had read the agreement, it did not call for an inspection to discover the defect alleged in this case.
Some courts have determined, as a matter of law, that certain factual situations are not covered under an agreement to inspect like that agreement involved here, and some courts have emphasized that the contract is one with a professional and have appeared to apply a rule requiring the presentation of expert testimony in order to prove the contract meaning. For example, the Moundsview court said, "An architect, as a professional, is required to perform his services with reasonable care and competence and will be liable in damages for any failure to do so." 253 N.W.2d at 839. In Clark-Dietz, supra, the court held that the architect's liability was limited by the contract language, but also held that the architect still had a duty to supervise construction by observing the general progress of the work. The court did not impose liability on the architect, because it explicitly found that the architect had not been negligent in its limited duties.
The same AIA contract language was involved in First Nat'l Bank of Akron v. Cann, 503 F. Supp. 419 (N.D.Ohio 1980), aff'd, 669 F.2d 415 (6th Cir.1982), where the court wrote:
503 F. Supp. at 436.
Although the contract here clearly made the Architect's inspection duty a limited one, we cannot hold that it absolved the Architect from all possible liability or relieved it of the duty to perform reasonably the limited contractual duties that it agreed to undertake. Otherwise, as the School Board argues, the owner would have bought nothing from the Architect. While the agreement may have absolved the Architect of liability for any negligent acts or omissions of the contractor and subcontractors, it did not absolve the Architect of liability arising out of its own failure to inspect reasonably. Nor could the Architect close its eyes on the construction site and not engage in any inspection procedure, and then disclaim liability for construction defects that even the most perfunctory monitoring would have prevented, or fail to advise the owner of a known failure of the contractor to follow the plans and specifications.
The issue here is whether the Architect can be held liable for its failure to inspect and to discover the acts or omissions of the contractor or subcontractors in failing to follow the plans and specifications. Under the terms of the contract, the Architect had at least a duty to perform reasonable inspections, and the School Board had a right to a remedy for any failure to perform that duty. There is no question that the Architect performed inspections; the thrust of the School Board's argument is that these inspections were not as thorough as the Architect agreed they would be.
As we have already stated, the only evidence concerning the Architect's duty under the agreement was from an architect who stated that under his interpretation of the contract the Architect was not under a duty to inspect for the specific defect that was alleged in this case.
As was pointed out in Moundsview, an architect is a "professional," and we are of the opinion that expert testimony was needed in order to show whether the defects here should have been obvious to the Architect during the weekly inspections. Just as in cases dealing with an alleged breach of a duty by an attorney, a doctor, or any other professional, unless the breach is so obvious that any reasonable person would see it, then expert testimony is necessary in order to establish the alleged breach. The nature and extent of the duty of an architect who agrees to conduct the inspection called for by the subject agreement are not matters of common knowledge. The rule *174 of law in Alabama concerning the use of expert testimony is as follows: "`[E]xpert opinion testimony should not be admitted unless it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, to draw correct conclusions from the facts. The opinion of the expert is inadmissible upon matters of common knowledge.'" Wal-Mart Stores, Inc. v. White, 476 So. 2d 614, 617 (Ala. 1985) (quoting C. Gamble, McElroy's Alabama Evidence § 127.01(5) (3d ed.1977)).
The breach alleged in this case involved architectural matters that would not be within the common knowledge of the jurors, yet the School Board presented no expert testimony regarding the Architect's inspections and any deficiencies in those inspections. The School Board presented no expert testimony regarding the standard of care imposed within the architectural profession by the weekly inspection provision contained in this contract, and there was no expert evidence that that standard was breached by the Architect. In fact, the only expert that testified concerning the "weep holes" (which were the source of the leaks) was an architect who stated that it was not within the standard of care under the weekly inspection provision to keep track of each and every weep hole.
In a case startlingly similar to this one, a New York court, while holding that an architect could be found liable under the AIA contract for a failure to notify the board of education about leaks in a school's roof, did so only after finding that there was evidence that the architect had knowledge during the course of the construction that the contractor was not following the plans and specifications. In Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 146 A.D.2d 190, 539 N.Y.S.2d 814, 817-18 (1989), the court stated:
The key distinction between that case and this one is that in Sargent, Webster there was evidence that the architect knew of the defects during construction and failed to notify the owner. Clearly, the architect there would have breached his contractual duty if he failed to notify the owner of a known defect. It is undisputed in this case that during construction the Architect did not know of the defects with the weep holes. In fact, the School Board does not suggest that the Architect did know, only that under the provisions of the contract the trier of fact could have found that the Architect should have conducted an inspection that would have discovered the defect.
We conclude that, although the Architect had a duty under the contract to inspect, exhaustive, continuous on-site inspections were not required. We also hold, however, that an architect has a legal duty, under such an agreement, to notify the owner of a known defect. Furthermore, an architect cannot close his eyes on the construction site and refuse to engage in any inspection procedure whatsoever and then disclaim liability for construction defects that even the most perfunctory monitoring would have been prevented. In this case, we hold, as a matter of law, that the *175 School Board failed to prove that the Architect breached the agreement.
In making this judgment, we would point out the value, and in some cases, the necessity, for expert testimony to aid the court and the trier of fact in resolving conflicts that might arise.
We now address the School Board's argument on its cross-appeal that the negligence claim should have been submitted to the jury. The School Board stated at oral argument that its negligence claim was asserted as an alternate theory of recovery in case its contract claim was not allowed. The trial court ruled that this negligence claim was barred by the statute of limitations.
This Court has stated that a negligence cause of action accrues as soon as the plaintiff is entitled to maintain the action, i.e., at the time of the first legal injury, regardless of whether the full amount of damages is apparent. Armstrong v. Life Ins. Co. of Virginia, 454 So. 2d 1377 (Ala.1984). The alleged negligent acts of the Architectimproper inspection of the workoccurred during the course of the construction project and could not have occurred after the completion of the project in August 1982. The claimed damage manifested itself during the latter stages of construction and continued from 1982 through the date of trial. By April 1985, the School Board knew that litigation over the leaks was likely; yet, the School Board did not file suit until July 1987. Regardless of whether the statutory limitations period commenced to run upon the commission of the allegedly negligent acts (1981-1982), on the date when the damage first manifested itself (June 1982), or on the date when the School Board reasonably knew that it would file suit (April 1985), the filing of this action in July 1987 was clearly tardy, coming, under any view, more than two years after the accrual of the cause of action. Thus, it is not necessary to determine whether the two-year statute of limitations (Ala.Code 1975, § 6-2-38) applies, or whether its predecessor applies (the one-year statute, § 6-2-39, repealed effective January 9, 1985).
The trial court was correct, therefore, in directing a verdict for the Architect on the School Board's negligence claim.
Because we hold for the Architect on the School Board's contract and negligence claims, we determine that the issue of whether the Architect should be allowed to assert its cross-claim against the roofing subcontractor and the manufacturer of the roofing membrane is moot.
For the above-stated reasons, that portion of the judgment based on the jury's verdict against the Architect on the School Board's contract claim is reversed, and a judgment is rendered for the Architect on that claim. That portion of the judgment based on the directed verdict in the Architect's favor on the School Board's negligence claim is affirmed.
88-220 REVERSED AND JUDGMENT RENDERED.
88-273 AFFIRMED.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and STEAGALL, JJ., concur.
[1] We recognize that these two cases carry slightly different spellings for this party's name. These case styles reflect the spellings in the records.
[*] Justice Maddox did not attend oral arguments, but he has listened to the tape of the arguments and has carefully examined the record and the briefs.
[2] Article 8 is modeled after language found in American Institute of Architects (AIA) contracts used throughout the country. | February 23, 1990 |
3d8966f7-7de5-4670-bde5-ddc9f32a9efd | Meeks v. Hill | 557 So. 2d 1238 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1238 (1990)
Horace MEEKS and Sharon Meeks
v.
Richard O. HILL, Sr., and Phyllis F. Hill.
88-1149.
Supreme Court of Alabama.
January 26, 1990.
*1239 J. Robert Faulk and Theron O. McDowell, Jr., Prattville, for appellants.
George H. Howell of Howell, Sarto & Howell, Prattville, for appellees.
HOUSTON, Justice.
The issue presented in this case is whether the trial court erred in ordering the removal of an obstruction on a road located in Autauga County. We affirm.
The basic facts are as follows: In 1961, the developer recorded a plat of the Forest Hills Subdivision in the Probate Court of Autauga County. The road in question, "David Street," is clearly depicted on that plat. The plat shows that one end of David Street intersects Indian Hill Road, a primary road running through the subdivision, and that the other end is a dead end. Horace and Sharon Meeks own lots abutting both sides of David Street (lots 9 and 10). David Street runs the length of these lots. The Meekses' deed to lot 9 describes the property conveyed as follows:
The Meekses' deed to lot 10 contains similar language with respect to that lot. Richard and Phyllis Hill own lots 1 and 2 in the subdivision. They also own unimproved property at the end of David Street. The Hills, who want to use David Street as a means of access to their unimproved property, which they intend to develop, sued the Meekses to have them enjoined from obstructing David Street. After an ore tenus hearing, the trial court found that David Street had been irrevocably dedicated to the public's use and entered a judgment enjoining the Meekses from obstructing it. The Meekses appealed.
The Meekses contend that the trial court erred in finding that David Street had been properly dedicated to the public's use. Alternatively, they argue that even if David Street had been properly dedicated, they have acquired title to it through adverse possession. They also argue that the public abandoned David Street and that they acquired title to it by virtue of their ownership of the abutting lots.
Because this was an ore tenus case, there is a presumption of correctness afforded the trial court's findings, and the judgment based on those findings will not be disturbed unless it is plainly and palpably wrong. Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986).
After carefully reviewing the record and the briefs, we conclude that the trial court could have found from the evidence presented that David Street had been properly dedicated to the public's use and that the injunction should issue. For a recent case very similar to this one, see Templeman v. Resmondo, 507 So. 2d 494 (Ala. 1987), in which this Court held that the *1240 plaintiffs were estopped to deny the public dedication of a road abutting their property because they had purchased their property in full recognition of the road, which had been shown on a previously recorded plat.
The Meekses' contention that they acquired title to the road through adverse possession or by virtue of an abandonment must fail. The doctrine of adverse possession cannot be invoked to divest title from the public. Webb v. City of Demopolis, 95 Ala. 116, 13 So. 289 (1891). The trial court made no finding as to whether David Street had been abandoned. When a trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Robinson v. Hamilton, supra. The evidence in this case supports a finding that David Street had not been abandoned.
In closing, we note that some of the cases cited in the briefs, and others that our independent research has revealed, dealing with the issue of how a road can be dedicated to the public's use, indicate that this Court, over the years, may have blurred the distinction between common law and statutory dedication with respect to when an acceptance by the public is necessary to effectuate the dedication. Although this concerns us, we do not think that it is necessary for us to address that issue in order to resolve this case.[1]
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] See, e.g., CRW, Inc. v. Twin Lakes Property Owners, 521 So. 2d 939 (Ala.1988); Templeman v. Resmondo, 507 So. 2d 494 (Ala.1987); Cottage Hill Land Corp. v. City of Mobile, 443 So. 2d 1201 (Ala.1983); Hall v. Polk, 363 So. 2d 300 (Ala. 1978); Herbert v. Trinity Presbyterian Church of Montgomery, 289 Ala. 455, 268 So. 2d 736 (1972); Manning v. House, 211 Ala. 570, 100 So. 772 (1924); Ivey v. City of Birmingham, 190 Ala. 196, 67 So. 506 (1914); Smith v. City of Opelika, 165 Ala. 630, 51 So. 821 (1910); and Western Ry. v. Alabama Grand Trunk R.R., 96 Ala. 272, 11 So. 483 (1891). | January 26, 1990 |
2cbb9972-b399-4736-9037-6e8f372cc35a | Swedenberg v. Phillips | 562 So. 2d 170 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 170 (1990)
Joe Dean SWEDENBERG and Marie R. Swedenberg
v.
David PHILLIPS.
88-367.
Supreme Court of Alabama.
February 2, 1990.
Rehearing Denied March 30, 1990.
Ira B. Colvin, Reform, for appellants.
Wilbur J. Hust, Jr., and G. Scott Frazier of Zeanah, Hust, Summerford, Davis & Frazier, Tuscaloosa, for appellee.
KENNEDY, Justice.
This is a nuisance case involving a commercial chicken farming operation and a neighboring landowner.
The plaintiffs, Joe Dean Swedenberg and his wife Marie R. Swedenberg, appeal from a judgment based upon a jury verdict in favor of the defendant, David Phillips. We reverse and remand.
The issues are (I) whether the trial court erred in not charging the jury on the plaintiffs' *171 right to recover for an injury to land; (II) whether the evidence supported the charge to the jury that the defendant's chicken farm could not become a nuisance "by any change in conditions in and about the locality thereof"; (III) whether the trial court erred in charging the jury that the defendant "cannot be liable to the plaintiffs for nuisance unless [the defendant] was guilty of negligence"; and (IV) whether the trial court erred by admitting the defendant's photographs of the plaintiffs' property into evidence.
The Swedenbergs owned 2.9 acres of land in Pickens County abutting Phillips's 20 acres. They established their residence in a mobile home on the property in December 1976. The Swedenbergs cleared the land; planted vegetable gardens, fruit trees, and pine trees; dug a grease pit and built a shed; and dug two wells themselves and had a third well drilled. The Swedenbergs' son also resided on the property in a second mobile home. Both mobile homes were located close to the boundary of Phillips's property.
Phillips moved onto his 20 acres in May 1976 and, in 1978, built his first chicken house, which was 528 feet long and 40 feet wide and housed 23,000 to 32,000 chickens. A second chicken house was built in 1984; three more chicken houses were built in 1985. Phillips disposed of dead chickens in a pit (2 feet wide by 18 feet long and 15 feet deep), which was dug in his pasture between his chicken houses and the Swedenberg property. The pit was covered with wood and a layer of dirt, and was accessible through three lid-covered openings. Phillips cleaned his chicken houses approximately every 18 months and spread the chicken litter on his pasture with a motorized spreader that throws the litter from the rear of his tractor. Spreading dry chicken litter creates a lot of dust, and wet chicken litter produces a strong odor, similar to ammonia.
In September 1985, the pit collapsed while Phillips was out of town. As a result of the collapse, an offensive odor emanated from the pit, and the Swedenbergs complained to Phillips and the county health department. Mr. Swedenberg tried to cover the pit with some pieces of tin to stop the odor. Phillips had the pit filled in late December 1985. The Swedenbergs also complained about the dust caused by Phillips's spreading of the chicken litter and complained of the odor of the litter when it became wet.
Phillips complained to the Swedenbergs that their children were harming his chickens by driving on his property and slinging gravel onto the roofs of his chicken houses. The county health department had also received complaints about the Swedenbergs concerning alleged violations of sewage disposal regulations on their property.
The Swedenbergs sued Phillips[1] on February 28, 1986, and alleged that Phillips's chicken houses were located in close proximity to their home and the home of their son and that the "stench and odor" from the "chicken waste," including but not limited to dead chickens, were injurious to their health. The Swedenbergs claimed that their property was damaged as a result of Phillips's actions, specifically that it had been made unmarketable or less valuable. They claimed damages for mental pain and anguish and later amended their complaint to include a claim for punitive damages.
Allegedly because of the activities of Phillips, the Swedenbergs moved away from their land in the spring of 1986 and sold their mobile home for $1000. Their son moved his mobile home off the property in 1987, and the land remained unoccupied thereafter. They now use the property to store used refrigerators and scrap metal.
At trial, Mrs. Swedenberg testified that they had paid $9,394, including interest, for their mobile home and had sold it for $1000; that they had paid $4,000 for *172 the 2.9 acres of land; and that they had paid $1,650 to have the third well drilled. She testified concerning other improvements that they had made to the property, and stated that "it was worth a lot to me because I loved that place down there." She said that they could live on their property if the chicken houses were not there. Mrs. Swedenberg did not specifically testify as to the value of their property before the alleged nuisance, or as to its value afterwards. However, Phillips testified that he had considered the Swedenbergs' property to be worth $2,500 six months before trial, at a time when he had been interested in buying it; that was several months after the Swedenbergs had abandoned their land because of the alleged nuisance.
In its charge to the jury, the trial court instructed the jury, "[Y]ou should not consider any evidence relating to the value of the property and ... you should confine your consideration of damages to the other elements of damages that have been pointed out to you by the court." The Swedenbergs objected to this instruction, arguing that they had "proved damages to the home and to real property and the court refused to charge the jury that [they] could recover for damages to real estate or damages to [their] property." On appeal, the Swedenbergs argue that the trial court erred by not charging the jury on their right to recover for an injury to their land. We agree.
In a continuing nuisance case involving injury to real property caused by noxious odors, the measure of damages for injury to the real property is the difference in the value of the real property with and without such odors. Baldwin v. McClendon, 292 Ala. 43, 51, 288 So. 2d 761 (1974). "The jury's assessment of damages cannot be based on speculation or conjecture." McLendon Pools, Inc. v. Bush, 414 So. 2d 92, 94 (Ala.Civ.App.1982). Reviewing the testimony in this case, we find that there was sufficient evidence for the trial court to charge the jury concerning damages to the Swedenbergs' property.
The trial court charged the jury, in part, on the law of nuisance as follows:
(Emphasis added.)
It appears that the trial judge was attempting to apply Code 1975, § 6-5-127(a). The instruction on nuisance quoted above paraphrases that section. However, we cannot ascertain from the record how the facts of this case would have called for the application of that statute. It seems clear that any change in the surrounding locality that may have made this agricultural operation a nuisancei.e., the plaintiffs' coming to the land next doordid not occur after the operation began; it is clear that *173 the plaintiffs were residing on their property before the operation began. Thus, the statutory exception relating to nuisances caused by negligence has no application in this case, and therefore, the trial court erred by applying § 6-5-127(a). Further more, there was no evidence that there had been a "change in conditions in and about the locality." Therefore, the trial court also erred by instructing the jury to that effect.
"[L]iability for nuisance does not depend upon the question of negligence, and may exist although there is no negligence.... However, a nuisance may be and frequently is the consequence of negligence, or the same acts or omissions which constitute negligence may give rise to a nuisance." Terrell v. Alabama Water Service Co., 245 Ala. 68, 70, 15 So. 2d 727, 729 (1943). Applying this rule, we conclude that the trial court's instructions to the jury, as to negligence, supra, were erroneous.
At trial, the Swedenbergs moved to strike defendant's exhibits 8 through 21, which were admitted into evidence over their objection. These exhibits consisted of several photographs of the Swedenbergs' property and were offered by Phillips to show the market value of the Swedenbergs' property as it existed after the creation of the alleged nuisance. The photographs depicted the property in a serious state of dilapidation. Phillips testified that the photographs were taken as the Swedenbergs "were taking things down and leaving" and that "part of it is still like it is"; that the property was "growed up a lot worse and they've got a lot of refrigerators and old stuff piled down next to my fence, and ... [o]ther than that, all this garbage is still here;" that he did not know when the trailer was there; and that he had "no idea" when the photographs were taken. The Swedenbergs argued to the trial court that the photographs had no probative value as to the value of their land because Phillips did not testify as to when the photographs were taken or as to whether he recognized them and whether the photographs reasonably and accurately depicted the condition of the property. Mrs. Swedenberg testified that the photographs depicted their property at a time "right after" they moved out of the trailer. She also testified that at the time of trial the property did not look like it looked in the photographs because, she said, they had "sold the trailer" and the place had been "cleaned up." The trial court denied the Swedenbergs' motion to strike the photographs, and the jury was allowed to consider them.
We note that "[a] picture is not admissible unless a witness testified that the picture as exhibited accurately reproduces the objects or actions which he observed" and, furthermore, that
Osborn v. Brown, 361 So. 2d 82, 86 (Ala. 1978). (Citations omitted.)
Applying these principles, we conclude that there was not sufficient testimony to authenticate the photographs as reasonably and accurately depicting the Swedenbergs' property as it existed after the occurrence of the alleged nuisance and that without such testimony the trial court abused its discretion in admitting the photographs into evidence.
Therefore, the judgment is due to be, and it is hereby, reversed, and the cause is remanded for a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
[1] Hickman Hatchery, Inc. ("Hickman"), was also named as a defendant. Hickman supplied Phillips with young chickens, feed, etc., and regulated Phillips's chicken farming operation. The Swedenbergs settled their claim against Hickman. | February 2, 1990 |
744ea0b0-4bf2-4c24-ac5e-7cd02583af48 | Atkins Ford Sales, Inc. v. Royster | 560 So. 2d 197 | N/A | Alabama | Alabama Supreme Court | 560 So. 2d 197 (1990)
ATKINS FORD SALES, INC., and Charles Atkins
v.
Paul D. ROYSTER.
88-1292.
Supreme Court of Alabama.
March 16, 1990.
*198 Charles R. Stephens and G. Warren Laird, Jr., Jasper, for appellants.
James C. King and Garve Ivey, Jr. of Wilson & King, Jasper, for appellee.
SHORES, Justice.
Paul Royster sued Charles Atkins and Atkins Ford Sales, Inc., based upon alleged defamatory statements. The jury awarded Royster $100,000 in compensatory damages and $50,000 in punitive damages. The court entered a judgment on that verdict. The defendants moved for a judgment notwithstanding the verdict (JNOV) or a new trial, or, in the alternative, for a remittitur. The circuit court denied the motion, and the defendants appealed.
Although the testimony in this case conflicted at times, the evidence tended to show the following: Paul Royster was employed in the tractor parts department at Atkins Ford Sales, Inc. ("Atkins Ford"), beginning in the summer of 1985, following his graduation from high school. In late November 1985, the owner of Atkins Ford, Charles Atkins, wrote a $1,500 check on the Atkins Ford account, payable to "Lizzie Mullinax or Paul Royster." Royster was asked to cash the check and return to Atkins *199 Ford with the money, which he did. The cash was given to Charlie Gunter, the manager of Atkins Ford's tractor shop, so that he could purchase a tractor from Lizzie Mullinax. Gunter did not purchase the tractor, and after Gunter informed Atkins of this, either he or Atkins gave the $1,500 in cash to Royster and told him to take it to the Atkins Ford office. Royster testified that he took the money to the office as he had been instructed to do.
In the early part of 1986, Judy Hood, Atkins Ford's bookkeeper, informed Atkins that she could not account for $1,500 in the business's books. After searching unsuccessfully for the money, Atkins questioned Royster about whether he had taken the cash to the office. Royster told Atkins that he gave the money to one of the employees in the office, but that he could no longer remember whom he had given the money to. He stated once that he might have laid the money on a desk in the office. Atkins loudly accused Royster of stealing the money, in the presence of Judy Hood and other Atkins Ford employees. Royster steadfastly maintained that he had taken the money to the office, but each of the office employees denied receiving the money from him or seeing him deliver the money to anyone else in the office. Royster went home and told his mother and stepfather, Mr. and Mrs. Harry Stallter, about the situation. Atkins also telephoned Mrs. Stallter and told her that her son had taken $1,500 and that he needed to return it. Atkins testified that he had placed the telephone call because he had wanted Mrs. Stallter's help in recovering the money.
Atkins contacted the Walker County district attorney's office about the missing money. Investigator Frank Cole spoke with a few of the people at Atkins Ford and asked Hood and Royster to submit to a polygraph test. Neither of them was given a polygraph test, although they both had agreed to submit to testing. The evidence and information Cole obtained was turned over to a grand jury, but Royster was not charged.
Royster's employment with Atkins Ford was terminated approximately two weeks after the investigation of the missing money was completed. Charlie Gunter wrote a letter on an Atkins Ford letterhead stating that Royster had been laid off because business was slow. Although he filed applications for several jobs, Royster was not hired by another employer for approximately four months. Royster testified that he believed he was not hired because of the accusations of theft made at Atkins Ford, but he did not know whether any of the prospective employers had contacted anyone at Atkins Ford for a reference.
Not long after Royster was fired, Thomas Harris was hired to replace him. Harris testified that Atkins told him that Royster had been fired for stealing $1,500. Harris also testified about an incident that took place while he was employed at Atkins Ford when Royster rode a motorcycle to the business. According to Harris, Atkins stated, upon seeing Royster, "I probably bought that motorcycle for Paul Royster with the money he stole from me."
While there was testimony that two postings in Atkins Ford's books totalling $1,500 were later found to have been posted to incorrect accounts, there was also testimony that the $1,500 given to Royster was never accounted for.
Royster filed suit on May 19, 1987, claiming that Atkins had made defamatory statements about him, both orally and in writing. During the jury trial in this matter, the defendants' motion for a directed verdict on the libel count was granted. The jury later returned a verdict in favor of Mr. Royster on the slander count.
At trial, the defendants argued that each of the various statements allegedly made was subject to a qualified or conditional privilege. They now argue that the trial court erred in failing to make a legal determination of whether the communications were protected by such a qualified privilege and, instead, submitting the issue to the jury.
*200 To establish a prima facie case of defamation, the plaintiff must show that the defendant published a false and defamatory statement concerning the plaintiff to a third person. Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085 (Ala.1988). Statements made subject to a qualified privilege are not actionable unless the plaintiff can prove that the defendant acted with malice. Mead Corp. v. Hicks, 448 So. 2d 308, 313 (Ala.1983). The determination of whether a statement is privileged is a question of law for the trial judge. Webster v. Byrd, 494 So. 2d 31 (Ala.1986). The test for determining whether a conditional or qualified privilege exists is as follows:
"`Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is social or moral in its nature and defendant in good faith believes he is acting in pursuance thereof, although in fact he is mistaken.'"
Willis v. Demopolis Nursing Home, Inc., 336 So. 2d 1117 (Ala.1976), quoting Berry v. City of New York Ins. Co., 210 Ala. 369, 98 So. 290 (1923).
The communications complained of were made by Mr. Atkins to members of the Jasper Police Department, an investigator for the Walker County district attorney's office, various employees of Atkins Ford, and Mr. and Mrs. Stallter. The trial court gave the jury the following charges on the issue of privileged communications:
The second and third charges quoted above were given at the defendants' request; the defendants cannot complain that the court instructed the jury as they requested. Liberty Nat'l Life Ins. Co. v. Beasley, 466 So. 2d 935 (Ala.1985). Furthermore, the trial court's instructions indicate that it determined from the evidence presented that some of the statements were subject to a conditional or qualified privilege, and that the jury was then adequately apprised of the law regarding the existence and abuse of privilege. Accordingly, we find that the trial court made the necessary legal determinations in this case.
The defendants also argue that the trial court erred in denying their motion for a JNOV or a new trial because, they argue, all of the statements made were subject to a conditional privilege and none was made with the actual malice necessary to defeat a conditional privilege. We disagree.
As noted earlier in this opinion, a communication may be conditionally privileged if it is one in which the party has an interest, and is made to another having a corresponding interest. More specifically, *201 this Court has held that communications among employees in the course of transacting the company's business and in the proper scope of the employees' duties do not constitute a publication. Nelson v. Lapeyrouse Grain Corp., supra. Under these principles, Atkins's communications to employees that were necessary in determining the reason for the $1,500 shortage did not constitute publication. However, communications made to individuals outside this limited group of employees do not fall within this "no publication" rule. It cannot reasonably be argued that Atkins's statements to Royster's parents and to Harris, an employee hired to replace Royster, were necessary in determining the location of the missing funds or were within the line of Atkins's duties. Furthermore, those communications were not conditionally privileged. The statements to Harris and Royster's parents were not prompted by any duty, and they were not made to individuals having a corresponding interest in recovering the funds. Accordingly, we hold that the trial court did not err in denying the defendants' motion for JNOV or for a new trial on these grounds.
The defendants next argue that the trial court erred to reversal when it restricted their questioning of Frank Cole, an investigator for the district attorney's office. Cole testified that the evidence he had obtained during his investigation was presented to a grand jury, and that the grand jury had determined that there was not enough evidence upon which to prosecute Royster. The defendants' attorney attempted to elicit from Cole testimony to establish that, in a criminal proceeding, a defendant's guilt must be proved beyond a reasonable doubt. The trial court sustained the plaintiff's objection to questions regarding legal burdens of proof. The defendants argue on appeal that the trial court's ruling somehow deprived them of a defense to this action and that the jury should have been informed of the higher standard of proof in criminal cases. We disagree.
First, the burden of proof in a criminal case was not relevant to the slander case before the jury. Second, even if the jury should have been informed of the burden of proof in a criminal case, the trial judge, and not a witness, would have been the proper person to convey the information to the jury. Raines v. Williams, 397 So. 2d 86 (Ala.1981).
The next allegation of error relates to the trial court's jury charges. The trial court instructed the jury that theft of $1,500 is a Class B felony with a maximum possible sentence of 20 years. The defendants claim that this charge was obscure and confusing to the jury. The record shows that the trial court charged the jury that defamation is a communication to a third person of a false imputation of crime or moral delinquency concerning the plaintiff. Since this instruction was given, it was also appropriate for the trial court to charge the jury that theft of $1,500 was a crime. Furthermore, error, if any, in giving this charge to the jury is not reversible, because it has not been shown that it probably resulted in any prejudice to the plaintiff. Rule 45, A.R.App.P.
The defendants also objected to the trial court's charges on actual malice, but we find no error in those charges. One of the instructions on "actual malice," that it is defined as knowledge of the falsity of a statement or the reckless disregard of whether the statement is true or false, was given at the defendants' request. The other instruction said that actual malice may be shown by evidence of ill will, hostility, threats, rivalry, former slanders, or the violence of a defendant's language, and this is a correct statement of the law. See Kirby v. Williamson Oil Co., 510 So. 2d 176 (Ala.1987).
Finally, the defendants contend that the damages award is excessive and they argue that the court erred in denying their motion for a JNOV, a new trial, or a remittitur. In support of their motion, the defendants *202 argued that Royster failed to prove that he suffered damages so extensive as to justify a $100,000 award and that there was no evidence to support an award for punitive damages. The court conducted a thorough analysis pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and then issued an extensive order denying the defendants' motion. In its order, the trial court specifically found that the jury had been fair and impartial, that the verdict was supported by the evidence, that the compensatory damages award was not unreasonable, and that the punitive damages award was not excessive.
The trial court noted that the facts were hotly contested, but stated that the evidence supported a finding that the defendants maliciously slandered Royster by accusing him of the theft of $1,500. Where a verdict is supported by the evidence, the trial court should exercise its discretion in favor of the validity of the jury verdict. Hammond, supra. Furthermore, a trial court's refusal to grant a new trial on the ground that the verdict is against the great weight of the evidence will not be reversed unless the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it is wrong and unjust. Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989). The defendants have not met this burden. Accordingly, the trial court's ruling on this issue is due to be affirmed.
With regard to the issue of remittitur, we note initially that the trial court applied the principles of law adopted in Hammond and carefully set out the reasons explaining its decision to deny a remittitur. Further, jury verdicts are presumed correct, and that presumption is strengthened when the trial judge refuses to grant a new trial. Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987). Finally, it is well established that, in considering the excessiveness of a verdict, each case must be determined on its own facts, and a court of review may not substitute its judgment for that of the jury. Green Oil Co., supra. With these principles in mind, we have reviewed the record and the trial court's thorough Hammond order. The record presents us with no reason to disagree with the trial court's findings and ruling on the issue of damages.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | March 16, 1990 |
f3d004f5-5aa1-4736-9cd6-92b322de7f22 | King v. Breen | 560 So. 2d 186 | N/A | Alabama | Alabama Supreme Court | 560 So. 2d 186 (1990)
Nina KING, individually and as mother and next friend of Kevin David King, a minor
v.
John BREEN and Holly Breen.
No. 88-1288.
Supreme Court of Alabama.
March 9, 1990.
*187 James G. Curenton, Jr. and Thack H. Dyson of Foster, Dyson & Curenton, Foley, for appellant.
Deborah Davidson of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellees.
SHORES, Justice.
This is an appeal by Kevin David King and Nina King from a judgment made final pursuant to A.R.Civ.P. 54(b).
Kevin King, at age two and one-half, was bitten on the face by a dog belonging to neighbors, defendants John and Holly Breen. Kevin and his mother sued the Breens on June 9, 1987. The complaint contained a count alleging that the Breens had negligently kept a dog with known vicious propensities and had negligently allowed the dog to come into contact with Kevin, and a second count alleging that the Breens had mistreated and negligently cared for the dog, and had thereby caused it to have vicious and dangerous propensities. They filed an amended complaint on April 20, 1988, adding a claim based on strict liability under Alabama Code 1975, § 3-6-1.
On February 22, 1989, the parties stipulated that the pleadings were complete, that discovery was not yet completed, and that certain motions were pending. On March 1, 1989, a summary judgment was entered for the defendants as to counts 1 and 2, but it was denied as to count 3, the strict liability claim of the amended complaint. On March 24, 1989, the Kings filed a second amended complaint, adding count 4, a dangerous instrumentality claim, and count 5, an attractive nuisance claim. The trial court struck this second amended complaint, denied the Kings' motion to alter or amend its ruling, and entered judgment against the Kings on counts 1, 2, 4, and 5. The court made the summary judgment on counts 1 and 2 final and also made final the striking of the second amended complaint.
The defendants had chained their dog to an old automobile in their yard and allowed neighborhood children to come over and play with the dog. There was evidence that the area was overgrown with weeds and that the defendants did not feed the dog properly. Veterinarian records revealed that the chain collar had become embedded in the dog's neck, that there was pus under the collar, and that the neck emitted a foul odor. On the day of the attack, Kevin was playing in his yard and wandered over to the defendants' yard before his mother could stop him. Mrs. King testified that Kevin hugged the dog's neck because he had mistaken it for a dog he had once had. When Kevin hugged the dog, it bit him on the face and shoulder; the injuries left permanent scars on his face.
The issues on appeal are whether there was a factual dispute with respect to the claim of negligently keeping a dog with known vicious propensities; whether there is a cause of action for negligently caring for and mistreating a dog, so as to cause it to have dangerous propensities that led to someone's injury; and whether the trial court erred in striking the second amended complaint.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Fountain v. Phillips, 404 So. 2d 614 (Ala.1981). Because this action was filed on June 9, 1987, the "scintilla rule" applies (see Ala.Code 1975, *188 § 12-21-12), and, thus, the summary judgment would have been proper only if there was not a scintilla of evidence to support the plaintiffs' allegations. To determine whether a scintilla of evidence exists, all reasonable inferences from the facts presented are to be construed most favorably to the nonmoving party. Chiniche v. Smith, 374 So. 2d 872 (Ala.1979).
Under the traditional common law concerning injuries inflicted by domestic animals, the plaintiff had to allege and prove that the animal's owner had prior knowledge of the animal's vicious propensities. Rucker v. Goldstein, 497 So. 2d 491 (Ala.1986). The Kings argue that a prior incident between the dog and another neighborhood child, Chad Peed, furnishes a scintilla of evidence of a factual dispute with respect to the defendants' knowledge. On this prior occasion, the dog had escaped from a fenced area and jumped on Chad, who was three years old at the time, leaving a red mark on his face. The Breens submitted the affidavit of Chad's mother, who claimed that the dog was merely trying to get a sandwich that the child was holding. The boy's father, however, had considered the incident serious enough to report it to the police. Chad's parents informed the Breens of the incident and of the fact that the police had been contacted.
Further, the evidence submitted by the Breens in support of their summary judgment motion presents credibility issues requiring a jury determination. The Breens did not produce all their veterinarian records or mention a second veterinarian in their answers to interrogatories. The second veterinarian was the one who had discovered that the chain collar was embedded in the dog's neck. The affidavit of Vickie Marsh, a neighbor of the Breens, is also suspect. She testified that she was very familiar with the dog and that her four young children had played very aggressively with it, without the dog's ever reacting in a dangerous manner. However, she also testified that she talked to Mrs. King immediately after the incident and that Mrs. King stated that the dog was a nice dog, that Kevin would be fine, and that the incident was just an accident. This testimony conflicts with that of John and Dianne Freeman, who drove the Kings to the hospital. They testified that Mrs. King was emotionally upset and that she almost fainted. Due to the credibility issues and the factual dispute concerning the Peed incident, summary judgment was therefore incorrectly entered with respect to count 1.
With respect to count 2, the plaintiffs argue that the defendants' negligent mistreatment of the dog caused the dog pain and caused it to be abnormally sensitive. The plaintiffs claim that the dog's neck was painful and sensitive due to the defendants' neglect and that this had caused the dog to bite Kevin when he hugged the dog's neck.
The plaintiffs argue that there is a cause of action for injuries resulting from negligent care or mistreatment of animals, separate from and independent of the cause of action for injuries caused by negligently keeping an animal with known vicious propensities. They base this claim on Durden v. Barnett & Harris, 7 Ala. 169 (1844), Rucker v. Goldstein, 497 So. 2d 491 (Ala.1986), Orr v. Turney, 535 So. 2d 150 (Ala.1988), and on § 518, Restatement (Second) of Torts (1977). They claim that this tort of negligent care or mistreatment would not require a showing of the scienter required by the tort of negligently keeping an animal with known vicious propensities or even require that the animal have dangerous propensities.
This Court in Rucker cited Durden for the applicable common law rule. The plaintiff in Durden had alleged that "the animals causing [the] injury, were accustomed to bite mankind; that this propensity was known to the defendants; and that, notwithstanding, they so negligently kept them that the injury resulted." Durden, 7 Ala. at 170. This Court held:
"`It is said the owner of domestic animals, not necessarily inclined to commit mischief, such as dogs, horses, etc., is not liable for an injury committed by them, unless it can be shown that he previously had notice of the animal's mischievous propensity; or, that the injury was attributable to some neglect on his *189 part. [Smith v. Pelah, 3 Strange 1265; Beck v. Dyson, 4 Camp. 198.] From this it would seem to follow that it was necessary to allege and prove a scienter.'" 497 So. 2d at 493 (quoting Durden v. Barnett & Harris, 7 Ala. 169, 170 (1844)).
The plaintiffs claim that the language "or, that the injury was attributable to some neglect on his part" provides a separate cause of action that does not require proof of the owner's knowledge of the dog's dangerous propensities or that the animal have such propensities. This language, however, was clarified in Scott v. Dunn, 419 So. 2d 1340, 1343 (Ala.1982), in which this Court noted that the above phrase concerned "neglect in allowing animals with known dangerous propensities to run at large." Moreover, the English cases referred to in Durden provide that the owner must have knowledge that the dog was accustomed to bite. Smith v. Pelah and Beck v. Dyson, both cited supra in Durden. Citing these cases and Durden, this Court has held:
Smith v. Causey, 22 Ala. 568, 571 (1853) (citing Beck v. Dyson, supra; Smith v. Pelah, supra; Durden v. Barnett & Harris, supra).
Thus, traditionally in Alabama, a person injured by a domestic animal has had to allege and prove that the animal's owner had knowledge of the animal's dangerous propensities that caused the harm. The language in Durden relied on by the plaintiffs does not provide a cause of action for injuries inflicted by animals negligently cared for by their owners if the owners do not have knowledge of any dangerous propensity of the animal.
The question remaining under count 2 is whether the plaintiffs have stated a cause of action under Orr v. Turney, supra, or § 518, Restatement (Second) of Torts. Section 518 reads as follows:
The Restatement further states in comment (h):
Dog owners should recognize the normal tendency of dogs to react aggressively to, or to attack, a person touching it in a painful area. In this case, the defendants knew they had placed the chain on the dog's neck. They left the chain on for such a length of time that it became embedded in the dog's neck. There is evidence that they had further mistreated the dog by not feeding it properly. The record also reveals that they allowed neighborhood children to play with the dog. Thus, a jury question is presented as to whether a reasonable person in the exercise of ordinary care would have realized the condition of the dog and kept it from coming into contact with children. Summary judgment *190 was therefore incorrectly entered on count 2.
This holding is not inconsistent with present Alabama law, which requires a showing that the owner has "knowledge of facts from which he can infer that the animal is likely to commit an act of the kind complained of." White v. Law, 454 So. 2d 515 (Ala.1984). Other courts have construed § 518 in this manner. In Westberry v. Blackwell, 282 Or. 129, 577 P.2d 75 (1978), the plaintiff charged the defendant with negligence under § 518. The plaintiff had been bitten by the defendant's dog as she walked toward the defendant's house. She visited with the defendant in her home, and as she left the dog bit her again. The court noted that the defendant knew the dog had bitten the plaintiff as she entered her home and held that a jury question was presented as to whether a reasonable person exercising ordinary care would have restrained the dog. Westberry, 282 Or. at 133, 577 P.2d at 76-77. In Kathren v. Olenik, 46 Or.App. 713, 613 P.2d 69 (1980), the court observed:
The plaintiffs also argue that they have a cause of action under Orr v. Turney, supra. In Orr, this Court held that a landowner who "undertakes any affirmative conduct creating a danger to an unwitting licensee, independent and distinct from the condition of the premises, must give reasonable notice or warning of the danger or exercise reasonable or ordinary care to safeguard against that danger." Orr, 535 So. 2d at 153. In Orr the defendant attempted to dispose of a pan of grease that had caught fire in her home. She tried to carry the pan down a flight of stairs, knowing that visiting children were playing at the bottom of the stairs. She dropped the pan, and the grease seriously burned one of the children. This Court reaffirmed W.S. Fowler Rental Equip. v. Skipper, 276 Ala. 593, 165 So. 2d 375 (1963), in holding that because of the defendant's "positive act creating a new danger" to a licensee, the defendant was required "to give ... reasonable notice or warning of the new danger or to exercise reasonable care to provide safeguards against such new danger." Orr, 535 So. 2d at 153 (quoting Fowler, 276 Ala. at 600, 165 So.2d at 382). In Fowler, the defendant placed a dangerous obstacle across a highway it was constructing, and the plaintiff's vehicle struck the obstacle the next day. In Perry v. St. Jean, 100 R.I. 622, 218 A.2d 484 (1966), cited by this Court in Orr, the plaintiff was injured when she fell from the defendant's horse. The plaintiff claimed that the defendant had negligently saddled and managed the horse. The court treated the defendant's negligence in inviting the guest to ride the horse as an activity rather than as the maintenance of a dangerous condition. Likewise, in Bradshaw v. Minter, 206 Va. 450, 143 S.E.2d 827 (1965), the Court held that it was a jury question as to whether the defendant was guilty of negligent conduct in inviting or allowing the plaintiff to ride his horse without warning of the incident dangers.
Here the defendants engaged in affirmative conduct by chaining the dog to the car and allowing children to play with it. The defendants' conduct, however, is more in the nature of the maintenance of a dangerous condition on their land than the undertaking of an affirmative act. The alleged cause of the injury was leaving the dog chained to the car for such a length of time that the collar became embedded in the dog's neck and also the failure to adequately feed the dog during this time. This cause of action is governed by our decision in Tolbert v. Gulsby, 333 So. 2d 129 (Ala. 1976), and is founded upon premises liability *191 rather than upon liability for personal injuries inflicted by domestic animals. In Tolbert, we adopted § 339, Restatement (Second) of Torts, which concerns liability for physical harm to trespassing children caused by an artificial condition on the land, and held that this section would apply to licensee children as well as to trespassing children. Section 339 has been applied to situations involving animals. In Hofer v. Meyer, 295 N.W.2d 333 (S.D.1980), it was held that "whether a horse is an `artificial condition' [on the land] within the meaning of ... § 339 is ... to be determined by the special facts in each case." The court further noted that the condition is said to be artificial when the condition is created by the action of man. Hofer, 295 N.W.2d at 336 (citing Clarke v. Edging, 20 Ariz.App. 267, 512 P.2d 30 (1973)). See also DeRobertis v. Randazzo, 94 N.J. 144, 462 A.2d 1260, 1267 (1983) ("[a]n abnormally dangerous domestic animal is like an artificial condition on the property" (citing Restatement (Second) of Torts § 512 (1977)); but see Gonzales v. Wilkinson, 68 Wis.2d 154, 227 N.W.2d 907, 909-10 (1975) (a dog does not qualify as an "artificial condition ... inherently dangerous to children" because it is not "artificially constructed") quoting other sources and citing Restatement (Second) of Torts § 339, comment d, which notes that the question of a landowner's liability for natural conditions is unresolved. Comment p to § 339 states that the burden of improving a natural condition to make it safe for children in most cases would be disproportionally heavy compared to the risk involved. It is for a jury to determine whether, under the facts of this case, the defendants' treatment of the dog created an dangerous condition, exposing them to liability under Tolbert v. Gulsby, supra.
Last, the plaintiffs claim the trial court erred in granting the defendants' motion to strike their second amended complaint. The amendment, which was filed on March 24, 1989, sought to add a fourth count based on a dangerous instrumentality theory and a fifth count based on an attractive nuisance claim. The dangerous instrumentality theory is governed by Tolbert v. Gulsby, supra, discussed above. The parties filed a pretrial stipulation on February 22, 1989, agreeing that the pleadings were complete, that discovery was not yet completed but was to be by May 1, 1989, and that the case could be set for trial in June 1989. Amendments to pleadings are to be freely allowed under A.R. Civ.P. 15 when justice so requires. Although under Rule 16 pretrial orders are to control the subsequent course of litigation, the liberal allowance of amendments under Rule 15 takes precedence over strict adherence to Rule 16. Huskey v. W.B. Goodwyn Co., 295 Ala. 1, 321 So. 2d 645, 648 (1975). Allowing the amendment in this case would not unduly delay trial or prejudice the defendants. The facts upon which counts 4 and 5 were based were identical to the facts upon which count 2 was based. Therefore, no additional discovery would be required by these counts. Thus, the trial court incorrectly granted the defendants' motion to strike the plaintiffs' second amended complaint.
For the reasons stated above, we conclude that the trial court erred in entering summary judgment as to counts one and two of the complaint and in striking the amended complaint. The judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES and KENNEDY, JJ., concur.
HOUSTON, J., concurs in part and concurs in the result in part.
HOUSTON, Justice (concurring in part and concurring in the result in part).
I concur as to Count I.
I concur in the result as to Count II. The facts present a jury question under the law of premises liability enunciated in Tolbert v. Gulsky, 333 So. 2d 129 (Ala. 1976), and its progeny, Motes v. Matthews, 497 So. 2d 1121 (Ala.1986), and Fletcher v. Hale, 548 So. 2d 135 (Ala.1989).
I do not believe that the trial court abused its discretion in granting the Breens' motion to strike Ms. King's second *192 amended complaint, which was filed after summary judgment had been granted on Counts I and II. A summary judgment goes to the merits of the case. Papastefan v. B & L Construction Co., 356 So. 2d 158 (Ala.1978), appeal after remand, 385 So. 2d 966 (Ala.1980). Notwithstanding the provisions of Rule 15(a), Ala.R.Civ.P., I do not find that the trial court abused its discretion in striking the complaint filed after the entry of a summary judgment. Green v. Bradley Construction, Inc., 431 So. 2d 1226 (Ala.1983); Domimex, Inc. v. Key, 456 So. 2d 1047 (Ala.1984); C. Lyons, Alabama Rules of Civil Procedure Annotated 251 (2d ed. 1986). However, because we are reversing the summary judgment as to Counts I and II, I will not dissent on this issue, but concur in the result, since the amendment should be permitted in keeping with the spirit of Rule 15(a), if the motion is refiled. | March 9, 1990 |
dceb8794-8dd2-4532-9ece-434317cec25e | Ex Parte Twintech Industries, Inc. | 558 So. 2d 923 | N/A | Alabama | Alabama Supreme Court | 558 So. 2d 923 (1990)
Ex parte TWINTECH INDUSTRIES, INC., Reasor Machine Company, and Bob Bolling.
(Re BOEING MILITARY AIRPLANE COMPANY v. TWINTECH INDUSTRIES, INC., Reasor Machine Company, and Bob Bolling).
89-84.
Supreme Court of Alabama.
February 23, 1990.
*924 Howell Roger Riggs, Jr., Huntsville, for petitioners.
James E. Davis, Jr. and H. Harold Stephens of Lanier, Ford, Shaver & Payne, Huntsville, for respondent Boeing Military Airplane Co.
ALMON, Justice.
Twintech Industries, Inc., Reasor Machine Co., and Bob Bolling (herein collectively referred to as "Twintech") have petitioned this Court for a writ of mandamus directed to the Honorable C. Lynwood Smith, Jr., of the Circuit Court of Madison County, Alabama. Twintech seeks relief from orders granting the motion of Boeing Military Airplane Company ("Boeing") to strike Twintech's jury demand and denying Twintech's request that Judge Smith recuse himself from this case.
This case arises from a contract dispute between Twintech and Boeing. Boeing's original complaint was filed on August 7, 1985, and was amended on September 16, 1985. Boeing sought a declaration of its rights under the contract between the parties and requested damages for Twintech's alleged breach of that contract. Twintech filed an answer to Boeing's complaint on October 15, 1985, raising eight affirmative defenses, including fraud. Twintech then *925 filed a counterclaim on October 23, 1985, alleging breach of contract, wrongful appropriation of property, and intentional interference with a contractual relationship. No allegations of fraud were asserted in Twintech's counterclaim, and there was no demand for a trial by jury.
On January 6, 1989, more than three years after filing its counterclaim, Twintech filed an amendment adding claims of fraudulent inducement and fraudulent suppression. Twintech demanded a jury trial for those claims.
Boeing moved to have Twintech's jury demand stricken, contending that the demand was untimely and therefore barred by A.R.Civ.P., Rule 38(b), which states that a jury demand on a particular issue must be made "not later than 30 days after the service of the last pleading directed to such issue." The trial judge granted Boeing's motion, holding that the amendment to Twintech's counterclaim concerned the same issue of fraud that was presented in Twintech's answer to Boeing's complaint, merely recasting the issue with greater specificity.
This Court has held that the filing of an amendment that raises new legal issues invokes the 30-day period set out in Rule 38(b). Ex parte Reynolds, 447 So. 2d 701, 703 (Ala.1984). Therefore, upon the filing of such an amendment, a party has the right to demand a jury trial, and such a demand is timely if made within 30 days after service of the last pleading directed to those new issues. Id.
However, in Washington v. Walton, 423 So. 2d 176 (Ala. 1982), this Court quoted the following comment with approval:
"`An amended or supplemental pleading sets in motion the thirty-day time period for demanding a jury trial for new issues raised in that pleading. However, the service of an amendment does not breathe new life into a previously waived right to jury trial if the amendment deals with the same issues framed in the original pleadings as to which a waiver has occurred.'" (Citations omitted, emphasis in Washington.)
Washington, supra, at 179 (quoting 2 C. Lyons, Alabama PracticeRules of Civil Procedure Annotated, Author's Comments § 38.5 (1973)). The question presented, therefore, is whether Twintech's amendment stated new legal issues, thus allowing Twintech to demand a jury trial.
A review of the cases wherein this Court has found that an amendment or later pleading raised a "new issue" indicates that a new issue is one of an entirely different character from those already raised, or one based on a set of facts different from those that support the original claims. In Ex parte Reynolds, supra, this Court held that the petitioner had raised new legal issues in his amendment and, therefore, that his right to a jury trial on those issues had not been waived. 447 So. 2d at 703. In that case, Reynolds's original complaint requested only equitable relief, whereas his amendment added a claim for fraud. Reynolds, at 702-03. Similarly, in Ex parte Town of Citronelle, 428 So. 2d 600 (Ala. 1983), this Court held that where the earlier pleadings had contemplated only equitable relief, a cross-claim for money damages raised a "new issue." 428 So. 2d at 603. In Ole South Bldg. Supply Corp. v. Pilgrim, 425 So. 2d 1086 (Ala. 1983), the plaintiff substituted a claim for fraud for his original equitable claim and thus became entitled to a jury trial. 425 So. 2d at 1087. Finally, in Mobley v. Moore, 350 So. 2d 414 (Ala.1977), this Court held that the trial judge had not abused his discretion in granting a request for a jury trial when the tenor of the action was changed from one seeking equitable relief to one seeking damages. 350 So. 2d 416-17.
In the instant case, the record does not indicate that the fraud claims set forth in Twintech's amendment created a new issue. To the contrary, Twintech had already raised fraud as an affirmative defense in its answer, and, within 30 days of filing that answer, could have demanded a jury. Its failure to timely file a jury demand *926 when the issue was first raised operated as a waiver of the right; the right was not revived by the later amendment relating to the same issue. Therefore, the trial judge's order granting Boeing's motion to strike Twintech's jury demand was proper and will not be disturbed by this Court. Hamon Leasing, Inc. v. Continental Cars, Inc., 358 So. 2d 442 (Ala. 1978).
Twintech also asks this Court to order the trial judge to recuse himself from the trial of this case, or alternatively, to order that all of the issues be tried by a jury. That request arises out of Twintech's concern that at least the appearance of impropriety has been created by Boeing's filing of an offer of judgment with the trial court before it had been accepted by Twintech.[1] However, Judge Smith informs this Court that, although he did receive the offer of judgment, he did not read it and is not aware of its terms. In fact, Judge Smith ordered that his staff seal the offer of judgment in an envelope.
The presumption in Alabama is that a judge is not prejudiced or biased. Ex parte Balogun, 516 So. 2d 606, 609 (Ala. 1987). Recusal is not required when there has been a mere accusation of bias that is unsupported by substantial fact. Balogun, at 609. In the instant case, there has been no showing that the mere receipt of the offer of judgment by Judge Smith has caused him to be less than impartial. Therefore, recusal is not required.
A writ of mandamus cannot be granted unless the petitioner can show a clear legal right to the relief sought. Ex parte Large, 501 So. 2d 1208, 1210 (Ala. 1986). No such showing has been made here. Accordingly, the petition for writ of mandamus is denied.
WRIT DENIED.
HORNSBY, C.J., and MADDOX and STEAGALL, JJ., concur.
ADAMS, J., concurs in the result.
[1] This Court recognizes that this problem was caused, at least in part, by the apparent conflict between A.R.Civ.P., Rule 5(d), which requires that all "papers served upon a party shall be filed with the court either before service or within a reasonable time thereafter," and Rule 68, which indicates that an offer of judgment must be served on the opposing party, but should not be filed with the court until it has been accepted. However, because Judge Smith did not read the offer, the resolution of this issue does not require this Court to reconcile that apparent conflict. | February 23, 1990 |
d65cd159-2230-4dd4-8fe0-c3090de7dd30 | Ex Parte Radford | 557 So. 2d 1288 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1288 (1990)
Ex parte Richard Scott RADFORD.
(Re State of Alabama
v.
Richard Scott Radford).
88-664.
Supreme Court of Alabama.
February 2, 1990.
*1289 James M. Byrd, Mobile, for petitioner.
Don Siegelman, Atty. Gen., for respondent.
HORNSBY, Chief Justice.
This petition for the writ of certiorari follows an appeal by the State from a ruling by the Circuit Court of Mobile County granting Radford's motion to suppress the results of a urine drug screen test performed by Springhill Memorial Hospital.
On March 25, 1986, Richard Scott Radford allegedly drove into a crowd, striking two pedestrians and causing their deaths. He was indicted and charged with driving his automobile into a group of pedestrians while under the influence of benzoylecgonine, a metabolite of cocaine.
Radford was taken after the accident to Springhill Memorial Hospital, where he was treated in the emergency room by a Dr. Goodloe. Dr. Goodloe observed Radford acting as if his mental state had been altered by the influence of a chemical. Mobile police officer Hendrix arrived at the hospital some time after Radford was admitted. Dr. Goodloe testified at the suppression hearing that while Officer Hendrix had made it clear that she thought Radford was under the influence of drugs, Goodloe did not perform any tests at the direction of Officer Hendrix.
Dr. Goodloe testified that he ordered a drug screen for Radford in order to rule out other possible causes for his behavior. The doctor testified that a urine sample was also ordered to make sure that there was no kidney injury. The hospital's test revealed that Radford was under the influence of a metabolite of cocaine at the time of the accident.
The defendant filed a motion to suppress the use as evidence of any urine drug screen tests. In addition to the hospital test, a separate urine drug screen test had also been performed by the Department of Forensic Sciences. The record shows, however, that the State indicated to the trial court at the suppression hearing that it did not intend to use the Department of Forensics test as evidence at trial. The Department of Forensics test also revealed that Radford was under the influence of a metabolite of cocaine. There is insufficient testimony in the record to show how or exactly when this urine sample was taken for the Department of Forensic Sciences test. The evidence does indicate that possibly both the hospital test and the Department of Forensic Sciences test were performed using portions of the same sample.
*1290 Radford's motion to suppress raised objections to the use of both tests as evidence on the grounds that Officer Hendrix had obtained a sample of Radford's urine without any authorization or warrant and in violation of Alabama's "implied consent statute", and had submitted this sample to the Alabama Department of Forensic Sciences. The results of the drug screen performed by the Department of Forensic Sciences were used as evidence before the grand jury. The results of the test performed through the hospital were not used as evidence before the grand jury, but were later subpoenaed by the district attorney.
A hearing was held on this motion along with a motion in limine on the same matter. The circuit court granted Radford's motion to suppress with respect to both tests. Although the basis of the trial court's ruling is not clear from the record, it is clear that Radford argued that both tests were taken at the behest of the police and that the operation of Alabama's implied consent statute, Code of Alabama 1975, § 32-5-192, as well as general Fourth Amendment protections, barred the use of the tests as evidence. However, we again note that the statements made on behalf of the State at the suppression hearing clearly indicate that the Department of Forensic Sciences test was not going to be used as evidence at Radford's trial. Thus, the motion to suppress granted by the trial court applied only to the test performed by the hospital. The State appealed. The Court of Criminal Appeals reversed, holding that the implied consent statute pertained only to alcohol and nothing else, and was therefore inapplicable to a drug screen performed for different substances. The Court of Criminal Appeals also held that because the hospital test was performed in the normal course of the treatment process, and not under the direction of the police, the results of the test should not have been suppressed by the trial court.
I. Whether Alabama's implied consent statute applies to controlled substances, as well as to alcohol.
II. Whether the trial court erred in finding that the urinalysis test that was performed by the hospital in this case was not conducted in the normal course of medical treatment and is, therefore, inadmissible.
Due to the relationship of these issues to each other and their treatment by the Court of Criminal Appeals, these issues will be considered in reverse order.
The record in this case reveals that on March 25, 1986, Dr. Goodloe was working as the staff physician in the emergency department of Springhill Memorial Hospital in Mobile. Around 9:10 a.m., Radford was admitted to the hospital. Dr. Goodloe observed that Radford had multiple abrasions, that he had lacerations on his leg, and that he was covered with blood and was in a great deal of pain. Dr. Goodloe also testified at the suppression hearing that Radford was acting as if he was in an altered mental state and did not know what was happening. Dr. Goodloe's notes reveal that Radford was oriented in the emergency room only as to time, place, and person, but not as to the situation. In other words, according to Dr. Goodloe, Radford "didn't really have a good grasp of what's going on."
The doctor said he remembered seeing police officer Hendrix, but that he did not remember having a specific conversation with the officer. He said he remembered a general discussion regarding the scene of the accident and remembered that Radford was "probably on something." Officer Hendrix made it clear that she thought Radford was under the influence of some chemical and that she would like very much for Dr. Goodloe to examine Radford further in that regard. However, Dr. Goodloe stated very specifically at the hearing, "I didn't do anything to assist Officer Hendrix."
Dr. Goodloe discussed Radford's condition with Dr. Zarzour, the orthopedist on call for unassigned patients. After this discussion, at which time one of the doctors suggested a drug screen, a drug screen was ordered at approximately 2:00 p.m. *1291 Dr. Goodloe testified that "[a]t that point, we were far more interested in making sure that there was no kidney injury, and I expect that that urine was sent to the lab to look for blood."
The initial question before us is whether the evidence supported the trial court's determination that the urine drug screen was ordered by Dr. Goodloe as a result of police action, i.e., at Officer Hendrix's request. From a review of the record, as set forth above, we agree with the Court of Criminal Appeals that the evidence indicates that the urine drug screen was ordered purely for routine medical treatment, and not at the instance of the police or of any other state actor.
The Court of Criminal Appeals has previously applied the rule we today adopt:
Allen v. State, 539 So. 2d 1124, 1125 (Ala. Crim.App.1988), quoting Veasey v. State, 531 So. 2d 320 (Ala.Crim.App.1988). The basis of these decisions is simply that in such a situation there has been no search or seizure by the state, and, thus, the state has not violated the defendant's rights.
Because we find that the urine drug screen performed by the hospital was ordered in the normal course of the treatment process, we affirm the decision by the Court of Criminal Appeals in this regard. The trial court should not have suppressed the evidence obtained as a result of the hospital's routine medical treatment.
In light of our holding that there is no state action involved in this case, and the fact that Alabama's implied consent statute governs only situations involving state action, we need not address the applicability of that statute to situations involving persons under the influence of controlled substances. We do not address the statement made by the Court of Criminal Appeals in its opinion that "the plain language of this statute refers to alcohol only."
Although our discussion to this point is dispositive of the issues before us, it is appropriate that we address the defendant's argument on the validity of the indictment, because that indictment may serve as the basis for trial. It is not clear from the record, however, whether the defendant has preserved this issue for appeal. Assuming arguendo that the issue was properly preserved, it is discussed below.
The defendant claims that the Department of Forensic Sciences test was performed illegally, and, therefore, that its use by the grand jury to support the indictment is in error. We disagree. In regard to federal constitutional questions, Alabama follows the decisions of the United States Supreme Court. In Aaron v. State, 271 Ala. 70, 77, 122 So. 2d 360 (1960), we followed Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956), which held that the Fifth Amendment does not require that the evidence put before the grand jury be completely without taint. As we had stated earlier, "If legal evidence is given [sufficient to support an indictment],... an indictment is not subject to be quashed because there was illegal evidence also given." Fikes v. State, 263 Ala. 89, 81 So. 2d 303, 310 (1955). See also Holt v. United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021 (1910).
On the basis of the foregoing, we affirm the Court of Criminal Appeals' judgment, which was based on its holding that the trial court erred in granting the defendant's motion to suppress the hospital drug screen.
AFFIRMED.
MADDOX, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
JONES and KENNEDY, JJ., dissent, with opinion by KENNEDY, J.
*1292 KENNEDY, Justice (dissenting).
I cannot agree that the urine test that was the subject of the motion to suppress was taken pursuant to a routine medical examination.
Radford was admitted to the emergency room at 9:00 a.m. on the morning of March 25, 1986. Upon his admission, there were police officers present at the emergency room, and Dr. Goodloe, the treating physician, testified that they made it clear that they wanted to determine whether Radford was driving under the influence of some chemical.
As the majority opinion states, Officer Hendrix made it clear that she specifically thought that Radford was under the influence of some chemical and that she wanted Dr. Goodloe to examine him to determine if her suspicions were correct. Dr. Goodloe stated that he did not do anything to assist Officer Hendrix.
However, that conversation between Goodloe and Hendrix took place at 11:20 a.m., and the urine test was not ordered until 2:00 p.m., some five hours after Radford's admission to the emergency room and almost three hours after Goodloe's discussion with Hendrix.
The urine test was not conducted until 12:00 midnight and the analysis was not conducted until the following day. No medical treatment was provided Radford by the treating physician after the drug screen was ordered.
It would appear that the urine test was taken by the hospital for some purpose other than a routine medical examination by Dr. Goodloe.
This case would bear a closer look on other issues to determine the propriety of the admission of the results of the urine screen, but, regarding the manner in which the majority resolves the issue, I dissent.
JONES, J., concurs. | February 2, 1990 |
2170464a-1f09-40f2-811b-b8634d5e513a | Reece v. Finch | 562 So. 2d 195 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 195 (1990)
John W. REECE
v.
Richard A. FINCH, et al.
88-1400.
Supreme Court of Alabama.
February 23, 1990.
Rehearing Denied May 4, 1990.
*196 Dieter Schrader, Huntsville, for appellant.
Gary C. Huckaby and Stuart M. Maples, of Bradley, Arant, Rose & White, and Patrick M. Lamar of Lanier, Ford, Shaver & Payne, Huntsville, for appellees.
Wendell R. Morgan, Gen. Counsel, for amicus curiae The Medical Ass'n of the State of Alabama.
JONES, Justice.
This is an appeal by the plaintiff, John W. Reece, M.D., from a summary judgment for the defendants, Drs. Finch, Warren, Smith, Wheeler, and Cameron. Dr. Reece's complaint alleged negligence, defamation, intentional infliction of emotional distress, intentional interference with a business or contractual relationship, and deceptive trade practices, arising from statements made to Mutual Assurance Society of Alabama ("MASA") in connection with three separate applications for medical liability insurance made by Dr. Reece.
Because we hold that the alleged defamatory statements, which were made only to MASA's employee, as Dr. Reece's duly constituted agent for the limited purpose of searching for information, were not published, within the legal definition of "publication," we affirm the judgment as it relates to the claim for defamation. Because we hold that the release violates established public policy with respect to prospective intentional torts, we reverse the judgment as it relates to those claims.
Dr. Reece practiced obstetrics and gynecology in Huntsville from 1964 to 1983. In 1983, he moved to Florida, where he practiced medicine until the middle of 1984. In 1984, Dr. Reece relocated in Huntsville and again established his practice of medicine, specializing in gynecology. To maintain privileges in any or all of Huntsville's three hospitals, Dr. Reece, as a gynecological surgeon, was required by the hospitals to retain $1,000,000 in medical malpractice liability insurance coverage. Dr. Reece applied for such liability coverage with MASA on three separate occasions soon after his return to Huntsville. It was MASA's routine procedure to investigate all applications through several methods, including a peer-review evaluation process. MASA, in the course of its investigation, randomly contacted area physicians for the purpose of obtaining information relating to the insurable risk of Dr. Reece. The information received from the defendants with regard to Dr. Reece's applications for insurance forms the basis of this controversy. During MASA's investigation of Dr. Reece's three applications for insurance, MASA solicited evaluations and received, in response, the following statements from the defendants, as evidenced by these internal memoranda summarizing those statements:
The defendants based their joint motion for summary judgment on the ground that three documents entitled "Authorization to Release Information," one signed by Dr. Reece at the time of each of his three applications with MASA, absolved them of any and all liability related to their supplying information to MASA. The release reads, in part, as follows:
The ultimate issue on appeal is whether the general release and hold-harmless agreement contained in the "Authorization to Release Information," which is prospective in nature, absolves the defendants from any and all liability relating to the information disclosed, as a matter of law.[1] With respect to Dr. Reece's claim based on defamation, however, the propriety of the summary judgment against him depends for its resolution upon the underlying issue whether Dr. Reece has met the threshold burden of proving the requisite element of publication.
Dr. Reece contends that the release is void and of no effect insofar as intentional torts are concerned. He avers that the defendants sought to disparage his professionalism as retribution for his 1979 testimony against a Huntsville physician in a medical malpractice case. Dr. Reece construes the release as being specifically limited to "errors, omissions, or mistakes"; thus, he argues, the release can be valid only to the extent that it waived liability resulting from "negligent" acts of the defendants.
Conversely, the defendants argue that Dr. Reece's authorization to release information unequivocally released them from any liability connected with their evaluation of Dr. Reece.
The legal effect of Dr. Reece's execution of the general release, coupled with his applications for insurance coverage, was to appoint MASA's employee as his agent for the limited purpose of seeking information from other physicians concerning such coverage. Not only did Dr. Reece contemplate contact between MASA's employee and other members of the medical profession, but he expressly authorized the solicitation of information from his fellow doctors pertinent to his application for malpractice insurance.
Our cases have held that statements made to one's agent, which are both authorized and invited by the principal, are not deemed to have been "published"; and without "publication" there can be no defamation. McDaniel v. Crescent Motors, Inc., 249 Ala. 330, 31 So. 2d 343 (1947); see also Dixon v. Economy Co., 477 So. 2d 353 (Ala.1985); and Mims v. Metropolitan Life Ins. Co., 200 F.2d 800 (5th Cir.1952).
The rationale for this rule is this: Because the requisite element of publication is not met if the allegedly defamatory words (whether written or oral) are made only to the complaining party, such words are not published when made to one who stands in an agency relationship with the complaining party, if the agent represents the principal in the matter discussed and invited by the principal. Stated otherwise, statements made to an agent, under these circumstances, are the legal equivalent of statements made directly to the principal; thus, there is no publication, and without publication there can be no actionable claim for defamation.
The summary judgment is affirmed as to the claim alleging defamation.
This Court in Barnes v. Birmingham International Raceway, Inc., 551 So. 2d 929 (Ala.1989), has recently held a general *199 release that purported to discharge Birmingham International Raceway ("BIR") from any and all liability to be valid only as to claims based on negligence. In that case, the plaintiff (Barnes), before entering a stock car race, signed a document purporting to release BIR from any and all liability for injuries he might receive during the race. The plaintiff was injured in an accident during the race and subsequently sued BIR and others on claims alleging negligence and wantonness. The trial court, relying on the release, granted the defendants' motions for summary judgment. This Court affirmed the summary judgment as to the negligence claim but reversed as to the wantonness claim.
Justice Houston, writing for the Court, stated:
551 So. 2d at 932-33.
Applying the BIR analysis to the facts of this case, we are clear to the conclusion that, if public policy prohibits releases as to future wanton conduct in the context of an automobile race, releases as to future intentional tortious conduct in the instant context would likewise be prohibited.
Because the trial court, in entering summary judgment with respect to the claims alleging intentional torts, based its decision solely on the existence of the document that purported to release the defendants from any and all liability, the summary judgment must be reversed insofar as it favored the defendants on those claims alleging intentional non-defamation torts.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, HOUSTON and KENNEDY, JJ., concur.
MADDOX and STEAGALL, JJ., concur in the result as to the defamation claim and dissent as to the other claims.
MADDOX, Justice (concurring in the result as to the defamation claim; dissenting as to the other claims).
A doctor, in order to get medical malpractice insurance, authorized MASA to contact the defendants and inquire about his reputation, for purposes of determining his insurability. When the defendants furnished information to an agent of MASA that the doctor considered to be tortious, he sued. The majority permits him to do so. Why?
If ever there was a case in which a signed release should be enforced, it is this case. The world of jobs, credit, security clearances, and even federal judgeships[2] and lawyer competence[3] depend, to some degree, upon information obtained from references. To allow a lawsuit under these circumstances, where the information obtained forms the basis for the tort action, can only have a chilling effect upon the obtaining of information in a variety of settings. Why would anyone give information concerning another, whether favorable or unfavorable, if he or she might be faced later with a lawsuit based on a claim of intentional misconduct. Because of these policy considerations, I must dissent from the reversal of the summary judgment on the intentional non-defamation torts.
The legal basis for my dissent is essentially the same as the one I set out in Barnes v. Birmingham Int'l Raceway, 551 So. 2d 929 (Ala.1989), that a person should be bound by his written release.
Because I am of the opinion that the information obtained was obtained as the result of an authorization given by the plaintiff himself, I would not permit his tort suit.
STEAGALL, Justice (concurring in the result as to the defamation claim; dissenting as to the other claims).
Here, these defendants were not engaged in any business relationship with this plaintiff. They did not seek to make statements regarding him and were not volunteers in doing so. To the contrary, they were sought out by the plaintiff's agent for the purpose of securing statements regarding the plaintiff. They gave these statements upon the plaintiff's own assurance that they were free to speak without fear of having to defend a lawsuit for having spoken openly and freely. To allow this plaintiff, under these facts, to sue these defendants goes too far, in my opinion. I consider this to be an unwarranted extension of the holding in Barnes v. Birmingham Int'l Raceway, 551 So. 2d 929 (Ala.1989). Therefore, I concur in the result as to the majority's ruling in the *201 defamation claim, and I dissent as to its ruling regarding the other claims.
[1] The validity of the release is the only issue affirmatively raised by the defendants' motion, and the plaintiff concedes its validity with respect to his claims for unintentional torts.
[2] I received a telephone inquiry recently about an attorney who is being considered for a federal judgeship.
[3] The Martindale-Hubbell Directory is dependent almost entirely on information furnished in writing by references. | February 23, 1990 |
64d2ce68-3e29-47d3-836a-71d5c80fb826 | AG Edwards & Sons, Inc. v. Clark | 558 So. 2d 358 | N/A | Alabama | Alabama Supreme Court | 558 So. 2d 358 (1990)
A.G. EDWARDS & SONS, INC.
v.
M. Brooks CLARK.
Richard THOMPSON
v.
M. Brooks CLARK.
Ex parte A.G. EDWARDS & SONS, INC., a corporation.
(Re M. Brooks CLARK v. Richard THOMPSON, individually and A.G. Edwards & Sons, Inc., a corporation).
Ex parte Richard THOMPSON.
(Re M. Brooks CLARK v. Richard THOMPSON, individually and A.G. Edwards & Sons, Inc., a corporation).
88-1119, 88-1124, 88-1031 and 88-1135.
Supreme Court of Alabama.
January 26, 1990.
N. Lee Cooper and A. Inge Selden III of Maynard, Cooper, Frierson & Gale, Birmingham, for appellant/petitioner A.G. Edwards & Sons, Inc.
J. Victor Bowman and Richard H. Cater of Burnham, Klinefelter, Halsey, Jones & Cater, Anniston, for appellant/petitioner Richard Thompson.
Vernon L. Wells II and James E. Ferguson III of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee/respondent M. Brooks Clark.
MADDOX, Justice.
These cases present two issues:
1. Whether the defendants' appeals from orders denying arbitration of the plaintiff's defamation claim were required to be filed within 14 days or within 42 days under the provisions of Rule 4, A.R.App.P., and
2. Whether a tort claim for defamation was included within the scope of the parties' agreement to arbitrate.
M. Brooks Clark, a stockbroker, sued Richard Thompson, a fellow stockbroker, and A.G. Edwards & Sons, Inc., Thompson's employer, alleging defamation based upon comments made by Thompson and then repeated by A.G. Edwards in a newspaper advertisement. As a stockbroker, Clark had signed an agreement to arbitrate any dispute between him and another broker or firm. The defendants moved the *359 trial court for a stay and for an order compelling Clark to submit to arbitration; the trial court denied the motion. Both defendants sought review.[1]
The allegedly defamatory remarks made by Thompson were to the effect that Clark had pleaded "nolo contendere" to criminal charges of securities fraud in Kentucky, that Clark had pleaded "no contest" to criminal charges involving bad tax-free investments in Kentucky, that as a result of such behavior, Clark had been "run out of the State of Kentucky," and that Clark was "a crook" and was "dishonest." These statements were allegedly made by Thompson to acquaintances of Clark and to some of Clark's clients during a breakfast at the Grace Episcopal Church in Anniston, Alabama; none of the people who heard these statements had solicited them from Thompson. Clark has never been employed by A.G. Edwards, and there have never been business dealings between Clark and Thompson. Clark demanded that Thompson retract these statements; Thompson never did. Clark sued Thompson on August 11, 1988. A.G. Edwards offered to issue a public retraction, and Clark agreed that a public retraction would be appropriate but warned A.G. Edwards not to do further damage to his reputation when making the retraction. A.G. Edwards then published a "retraction" in the Anniston Star on August 14, 15, and 19, 1988, which repeated the allegedly defamatory remarks, and which publication, Clark claimed, further damaged his reputation. On September 20, 1988, after the publication of its "retraction," Clark amended his complaint to include A.G. Edwards as a defendant.
When Clark associated with his employer, he signed a document, a "Form U-4," that included the following language:
Clark's response to Question 8 on that document was that he would be registered with the National Association of Securities Dealers ("NASD"). Section 8 of the NASD "Code of Arbitration Procedure" provides as follows:
Under Part I of the NASD Code, the section entitled "Matters Eligible for Submission" reads, in part, as follows:
Thompson admitted, in deposition, that he and Clark had never had any business transactions between them and that there had never been any dispute between the two men about any securities transaction or any investment banking transaction.
Before we can address the merits, we must address a procedural issue, that is, whether the appeals were timely filed. All parties agree, as do we, that the defendants do indeed have a right to appeal the trial court's denial under 9 U.S.C. § 15, the recent amendment to the Federal Arbitration Act ("FAA"); but the parties stoutly dispute whether the appeals were timely filed. In fact, Clark has made a motion to dismiss the appeals on the ground that they were untimely, and to deny the writs of mandamus because the petitioners had a right to appeal (which, Clark argues, they forfeited) and mandamus, therefore, cannot be substituted therefor.
Under Rule 4, A.R.App.P., most appeals must be filed within 42 days, but appeals from interlocutory orders involving injunctions must be filed within 14 days. As a matter of policy, how should this Court treat appeals from a denial of a motion to compel arbitration? The question is one of first impression. An order refusing to stay a lawsuit pending arbitration is not a final judgment such as to trigger the 42-day time limit, yet it is also not an interlocutory injunction-related order, although it is in the nature of an interlocutory injunction-related order because it involves a request to compel a party to arbitrate. Both appeals clearly were filed within the 42-day period, but both clearly were filed beyond the 14-day period.
At one time, the federal courts treated orders denying arbitration as injunctions in order to allow a party to appeal under 28 U.S.C. § 1292(a)(1); this was known as the "Enelow-Ettelson doctrine," after the cases that set forth this rule, Enelow v. New Life Ins. Co., 293 U.S. 379, 55 S. Ct. 310, 79 L. Ed. 440 (1935), and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S. Ct. 163, 87 L. Ed. 176 (1942). In 1988, however, in Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S. Ct. 1133, 99 L. Ed. 2d 296 (1988), the Supreme Court of the United States held that this legal fiction was no longer valid. Federal courts then ruled that neither a denial nor a grant of such a motion could be appealed. Congress then amended the FAA to add § 15 to allow an appeal, but only from a denial of a motion to compel arbitration; a grant of a motion to compel arbitration cannot be appealed, as Congress favors arbitration.
A.G. Edwards and Thompson have a right to appeal the denial of arbitration. 9 U.S.C. § 15 provides:
"(a) An appeal may be taken from
After Ex parte Alabama Oxygen Co., 452 So. 2d 860 (Ala.1984), this Court reviewed orders denying or granting motions to compel arbitration by way of petition for a writ of mandamus. See Ex parte Thompson McKinnon Sec., Inc., 517 So. 2d 614 (Ala. 1987), and Ex parte Warrior Basin Gas Co., 512 So. 2d 1364 (Ala.1987). In cases where the FAA is applicable, § 15 now gives the right to appeal an order denying arbitration, and an appeal is now the proper procedure by which to challenge a denial of a motion to compel arbitration.
Because the appellants have an appeal as a matter of right, the question is whether this order denying arbitration is *361 similar to an interlocutory order refusing an injunction for the purposes of determining the time within which an appeal must be filed. An order denying arbitration has always been considered an interlocutory order, and § 15 (the amendment to the FAA) does nothing to alter the nature of the order as non-final. Rule 4, A.R.App.P. allows 42 days for appeal to this Court "in all cases"except as otherwise provided herein [i.e., in Rule 4]." There is no exception in Rule 4 for appeals from orders denying motions to compel arbitration. Because a denial of arbitration is not an interlocutory order regarding an injunction, and in light of the strong federal policy favoring arbitration, we hold that the 42-day time limit for an appeal is applicable to appeals from an order denying a motion to compel arbitration under 9 U.S.C. § 15. Thus, both defendants' appeals were timely. Since we hold that the appeals were timely, the petitions for writs of mandamus are moot.
In the trial court, Clark did not challenge the making of the agreement to arbitrate, rather he challenged the scope of that agreement. The FAA, "reversing centuries of judicial hostility to arbitration agreements, was designed to allow parties to avoid `the costliness and delays of litigation,' and to place arbitration agreements `upon the same footing as other contracts....'" Scherk v. Alberto-Culver Co., 417 U.S. 506, 510-11, 94 S. Ct. 2449, 2452-53, 41 L. Ed. 2d 270 (1974) (quoting H.R.Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924)).
The NASD is a self-regulated organization under § 28(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78bb(b), and federal courts have held that the rules of such organizations constitute a contract between all the members of the organizations and associated persons. See Creative Sec. Corp. v. Bear Stearns & Co., 671 F. Supp. 961, 966 n. 7 (S.D.N.Y.1987). This Court has recently upheld the enforceability of arbitration agreements between brokerage firms and registered representatives. Ex parte McKinney, 515 So. 2d 693 (Ala. 1987). McKinney had signed, among other forms, the same Form U-4 that Clark signed in this case. This Court stated:
"`The constitution and rules of a stock exchange constitute a contract between all members of the exchange with each other and with the exchange itself
....
"`Since the rules of the Exchange "constitute a contract between the members, the arbitration provisions which they embody have contractual validity...." The Exchange provisions requiring arbitration constitute an agreement to arbitrate which is binding upon both [parties].'"
515 So. 2d at 698-99 (quoting Coenen v. R.W. Pressprich & Co., 453 F.2d 1209, 1211-12 (2d Cir.1972), cert. denied, 406 U.S. 949, 92 S. Ct. 2045, 32 L. Ed. 2d 337 (1972)). As an "associated person" of a member of the NASD, Clark agreed to be bound by the NASD's rules, including the rules pertaining to arbitration.
Two general principles govern the determination of arbitrability:
Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163, 1165 (8th Cir.1984) (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24-25, 103 S. Ct. 927, 941-42, 74 L. Ed. 2d 765 (1983)).
Section 8 of the NASD Code provides that disputes arising in connection *362 with the business of members or the activities of associated persons are appropriately subject to arbitration. A.G. Edwards argues that since a corporation can act only through its employees and that having employees is part of being in "business," any claim brought against A.G. Edwards by someone such as Clark is a claim arising from its "business" as a member of NASD and therefore must be arbitrated. We disagree. There is no agreement to arbitrate disputes of the type presented by Clark's complaint; the claim of defamation did not arise out of or in connection with any business between Clark and the defendants.
Arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute that he has not agreed to submit. AT & T Technologies, Inc. v. Communication Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); Montgomery Mailers' Union No. 127 v. The Advertiser Co., 827 F.2d 709, 712 (11th Cir. 1987); see also Ex parte Morgan Keegan & Co., Inc., 555 So. 2d 182 (Ala. 1989). A court must determine "whether there was a valid, enforceable arbitration agreement that applied to the dispute." Ex parte McKinney, 515 So. 2d 693, 694 (Ala. 1987). While recognizing the federal policy favoring enforcement of arbitration agreements, courts have refused to "stretch" arbitration agreements to apply to matters clearly not contemplated by the parties at the time of contracting. See Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1352 (11th Cir.1982). Even a broad arbitration clause is not limitless. Montgomery Mailers' Union, 827 F.2d at 714. A case that illustrates that even broad arbitration clauses do not cover intentional tort claims is Armada Coal Export, Inc. v. Interbulk, Ltd., 726 F.2d 1566 (11th Cir.1984). There, the court said:
726 F.2d at 1568.
Section 8 of the NASD Code is included in Part II of that Code, labeled "INDUSTRY AND CLEARING CONTROVERSIES." Section 8 is intended to apply only to disputes related to the securities business. The fact that Thompson was employed by a securities firm does not mean that every tort he commits creates an arbitrable "Industry" or "Clearing" controversy.
The defendants cite First Investors Corp. v. American Capital Financial Serv., Inc., 823 F.2d 307 (9th Cir.1987), as a case requiring that tort claims be arbitrated; however, that case dealt with claims arising out of the defendant's alleged solicitation of First Investors' clients and employees. Obviously, that dispute arose out of the business of the two parties.
In Morgan, supra, cited by appellants, the plaintiff's complaint had several counts, but the court held that his defamation count did not fall within the arbitration agreement. The Eighth Circuit said:
729 F.2d at 1168. The analysis of Morgan was followed in Dean Witter Reynolds, Inc. v. Ness, 677 F. Supp. 866 (D.S.C.1988), *363 wherein various tort claims, including a claim for defamation, of a former broker were held not to fall within the arbitration agreement.
Pearce v. E.F. Hutton Group, Inc., 828 F.2d 826 (D.C.Cir.1987), is of no help to the defendants; they cite dicta in that case indicating that a defamation claim must be arbitrated, but the D.C. Circuit ordered arbitration in that case because the plaintiff's defamation claim raised a significant issue of his job performance while he was employed by E.F. Hutton. While the court did require arbitration of the defamation claim in Pearce, it stated:
828 F.2d at 832 (emphasis original). Thus, the court in Pearce recognized that the argument raised by the defendants here that "any claim" means every claimis not a proper interpretation of the contract language.
Surely, the parties could have never intended that they would arbitrate disputes regarding "wholly unexpected tortious behavior." See Fuller v. Guthrie, 565 F.2d 259, 261 (2d Cir. 1977). The NASD Code does not mandate arbitration for "any claim against a member," as the defendants would have us interpret it; it mandates arbitration of any claim "arising in connection with the business" of a member or "in connection with the activities" of an associated person. The NASD Code does not define "business," but it does define "Investment banking or securities business" as "the business, carried on by a broker or dealer, of underwriting or distributing issues of securities, or of purchasing securities and offering the same for sale as a dealer therein, or of purchasing and selling securities upon the order and for the account of others...." "Member" is defined as "either any broker or dealer admitted to membership in the [National Securities Clearing] Corporation or any officer or partner of such a member...." "Person associated with a member," which includes both Clark and Thompson, is defined as
Although the arbitration clauses in the NASD Code talk of "business," it is clear that all the persons that must abide by the arbitration clauses are defined in terms of participants in the "securities business." The defendants point out that the NASD Code sections dealing with arbitration once contained the phrase "securities business" but that the word "securities" had been dropped by an amendment, leaving those sections as they read today. However, the argument that the deletion of the word "securities" from the phrase "securities business" in the arbitration sections vastly broadens the scope of the arbitration clauses ignores the entire context of the NASD Code. By its very nature, the "business" of the members of the NASD is the trading of securities, and while arbitration clauses are to be interpreted broadly, they are not limitless and cannot be interpreted to include matters that clearly fall outside the scope of the contract agreement.
Despite the facts that the allegedly defamatory remarks had some connection *364 with Clark's business as a stockbroker and that the remarks had an adverse effect on Clark's business, the fact remains that this alleged defamation did not arise in connection with any business between Clark and the defendants. This is not a case like those cited by the defendants wherein the plaintiff was either an employee or a former employee of the defendant or was involved in business transactions with the defendant. Perhaps if these remarks had occurred in the context of business dealings involving the defendants and Clark, the matter might have to be arbitrated under the language of the NASD Code, but that scenario is not the case before us. It is undisputed that Clark and the defendants had had no business dealings with each other.
For the above reasons, the trial court was correct in denying the defendants' motions to compel arbitration of Clark's defamation claims. Therefore, the judgment of the trial court is affirmed.
88-1119 AFFIRMED.
88-1124 AFFIRMED.
88-1031 PETITION DISMISSED.
88-1135 PETITION DISMISSED.
HORNSBY, C.J., and JONES, ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Pursuant to a recent amendment to the Federal Arbitration Act (codified at 9 U.S.C. § 15) that allows an appeal from a denial of a motion to compel arbitration, the defendants both filed notices of appeal. After Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S. Ct. 1133, 99 L. Ed. 2d 296 (1988), and prior to this amendment, a party did not have a right to appeal such an interlocutory decision by the trial court, and this Court had recognized a petition for a writ of mandamus as the proper route for obtaining review of such a denial. Thus, out of an abundance of caution, both defendants also filed petitions for writ of mandamus in the event this Court declined to recognize the newly granted right of appeal in this kind of case. | January 26, 1990 |
a9b99187-6139-4dd6-9e7b-b5e2cd8d25d6 | State Farm Mut. Auto. Ins. Co. v. Faught | 558 So. 2d 921 | N/A | Alabama | Alabama Supreme Court | 558 So. 2d 921 (1990)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
Ferrel C. FAUGHT, Sr., and Allstate Insurance Company.
88-1638.
Supreme Court of Alabama.
February 16, 1990.
Thomas A. Woodall, Birmingham, for appellant.
Barbara F. Olschner, Birmingham, for appellees.
*922 STEAGALL, Justice.
The question in this case is whether Ala. Code 1975, § 32-7-23(c), which allows stacking of up to three coverages under one multi-vehicle insurance contract, applies to an attempt by a passenger in another person's insured vehicle to stack uninsured motorist coverages under separate single-vehicle insurance policies on vehicles not owned by him or occupied by him at the time of his injury.
On October 5, 1988, Ferrel C. Faught, Sr., was injured when the 1982 Subaru automobile in which he was a passenger, which was owned and operated at the time by Christopher Waits, was hit by a car being driven by Gus Prescott. Waits's Subaru was insured by State Farm Mutual Automobile Insurance Company (hereinafter "State Farm") under a policy with a $20,000 per person uninsured motorist limit. Prescott's car was insured by Hartford Insurance Company (hereinafter "Hartford") under a policy with a liability limit of $10,000. Both State Farm & Hartford have offered Faught the amount of the coverage limits under those two policies.
Waits had a second policy with State Farm covering a 1978 Toyota truck that had an uninsured motorist coverage limit of $20,000. Brett McMurray, a relative of Waits who resided in Waits's household, owned a 1982 Buick, which was also insured by State Farm and had a $20,000 uninsured motorist coverage limit. Because Faught's medical expenses exceeded the limits of the policies covering Waits's Subaru and Prescott's vehicle, he sought to recover on the policies covering Waits's Toyota and McMurray's Buick, but State Farm denied benefits under both of those policies.
State Farm filed a declaratory judgment action to determine whether it owed Faught uninsured motorist coverage under those two policies. Both Faught and State Farm filed motions for summary judgment. Relying on Ala.Code 1973, § 32-7-23(c), and White v. Georgia Cas. & Sur. Ins. Co., 520 So. 2d 140 (Ala.1988); Travelers Ins. Co. v. Jones, 529 So. 2d 234 (Ala.1988); and State Farm Mut. Auto. Ins. Co. v. Fox, 541 So. 2d 1070 (Ala.1989), the trial court concluded that Faught was insured under the three separate State Farm policies and, thus, was entitled to stack all three coverages, and entered summary judgment for him. State Farm appeals, arguing that § 32-7-23(c) is inapplicable to this situation after State Farm Mut. Auto. Ins. Co. v. Fox, supra, and that Faught was not an "insured" under the Toyota and Buick policies.
Section 32-7-23(c) provides as follows:
In State Farm Mut. Auto. Ins. Co. v. Fox, supra, the father of a deceased daughter/passenger sought the underinsured benefits on his five separate, single-vehicle policies. State Farm argued that there was no difference between five single-vehicle policies and one insurance contract covering five vehicles. A majority of this Court disagreed and allowed the plaintiff to stack all five policies, holding that "the phrases `any one contract' and `within such contract' [refer] to one contract or policy of insurance." 541 So. 2d at 1072.
As in Fox, we are not dealing here with one policy covering several vehicles, and, as in Fox, § 32-7-23(c) is inapplicable to this case; however, stacking, which was allowed in Fox, cannot be allowed here. Unlike the daughter in State Farm Mut. Auto. Ins. Co. v. Fox, supra, who was an insured under each of the five policies by virtue of her status as a relative of the named insured, Faught was not an insured under either of the two State Farm policies at issue here. Both policies provide that an "insured" is:
*923 "This is:
(Emphasis original.) "Your car" is defined in the policy as the vehicle described on the declarations page. Faught falls into none of these four categories: he was not named in the declaration, he is not the spouse of or related to any person named in the declarations, and he was not occupying either the Toyota or the Buick at the time of the wreck.
Travelers Ins. Co. v. Jones, supra, although decided shortly before State Farm Mut. Auto. Ins. Co. v. Fox, supra, presented a situation that is pertinent, as well as instructional, to this case. In Travelers Ins. Co. v. Jones, supra, the plaintiffs were passengers in a car driven by Randolph Bellamy, who had one policy with Travelers covering two cars, and they were allowed to stack the uninsured motorist coverages under that one policy. Although that case was controlled by § 32-7-23(c), the opinion made it clear that any "injured person" seeking to stack must first be an insured under a vehicle covered by the one policy. "[T]he plaintiffs, in this case, can stack because they are within the definition of an `insured' under the terms of the uninsured motorist coverage portion of the policy, and in this case there is an additional `coverage' for another automobile `within such contract.'" 529 So. 2d at 236 (emphasis original).
Because the cars owned by Waits and McMurray were not covered under one multi-vehicle policy and because Faught was not an "insured" under the policies on either Waits's Toyota or McMurray's Buick, and under the foregoing authorities, we conclude that the trial court erred in entering summary judgment for Faught. The trial court, on remand, is directed to enter a judgment in favor of State Farm.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur. | February 16, 1990 |
ffde30ce-1c09-43c3-88e9-1a567af00861 | Pinson v. Alabama Power Co. | 557 So. 2d 1236 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1236 (1990)
Thomas H. PINSON
v.
ALABAMA POWER COMPANY.
88-1477.
Supreme Court of Alabama.
January 26, 1990.
Robert D. Word III of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
S. Allen Baker, Jr. and Jonathan S. Harbuck of Balch & Bingham, Birmingham, for appellee.
HOUSTON, Justice.
Thomas H. Pinson appeals from a summary judgment in favor of Alabama Power Company ("APCo") in this action seeking damages for personal injuries. We affirm.
The following material facts are undisputed: APCo entered into a contract with Ellard Contracting Company, Inc. ("Ellard"), wherein Ellard agreed to provide APCo with workers and to supervise them in connection with APCo's Mitchell Dam redevelopment project. Pinson, an ironworker, was hired pursuant to that contract and was designated therein as an employee of Ellard. Under the contract, APCo retained the right to participate with Ellard in the hiring of the workers; to require the dismissal of workers under certain circumstances; and to supervise and *1237 control the manner or methods of work performed by the workers. APCo prepared and maintained the payroll time records, calculated the amount of wages that became due and the deductions that had to be made therefrom, and deposited the necessary funds into a special Ellard bank account from which Ellard made withdrawals to meet its payroll. The bank at which Ellard's payroll account was opened had to be approved by APCo. APCo also provided the workers with tools and equipment and directly procured, and paid the premiums for, their workmen's compensation insurance. Pinson understood that APCo was "the boss" of the project and he submitted to APCo's control and supervision. Pinson suffered personal injuries while on the job and, thereafter, sued APCo, alleging that it had failed to provide him with a safe workplace. APCo moved for a summary judgment on the ground that it was immune from suit under the exclusive remedy provision of Ala.Code 1975, § 25-5-53. The trial court ruled that there was no genuine issue of material fact as to any element of the statutory immunity defense raised by APCo and that APCo was entitled to a judgment as a matter of law.
The standard of review that this Court must apply in this case is well settled. If there was no genuine issue of material fact as to any element of the statutory immunity defense, and it was shown that APCo was entitled to a judgment as a matter of law, summary judgment was proper. If there was a genuine issue of material fact as to any element of the immunity defense, summary judgment was inappropriate. In determining whether there was a genuine issue of material fact as to each element of the immunity defense, this Court must review the record in a light most favorable to Pinson and must resolve all reasonable doubts against APCo. Bechtel v. Crown Cent. Petroleum Corp., 495 So. 2d 1052 (Ala.1986). Because this action was pending on June 11, 1987, the judgment must be reviewed in light of the "scintilla of evidence" rule. Ala.Code 1975, § 12-21-12.
Section 25-5-53, supra, makes workmen's compensation benefits the exclusive remedy for employees injured in the line and scope of their employment. In pertinent part, it provides:
Ala.Code 1975, § 25-5-1(6), defines "employee" as follows:
In Marlow v. Mid-South Tool Co., 535 So. 2d 120, 123 (Ala.1988), this Court stated:
"`When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if
"`(a) the employee has made a contract of hire, express or implied, with the special employer;
"`(b) the work being done is essentially that of the special employer; and
"`(c) the special employer has the right to control the details of the work.
"`When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen's compensation.'"
See, also, Means v. International Systems, Inc., 555 So. 2d 142 (Ala.1989); Bechtel v. Crown Cent. Petroleum Corp., supra, and Pettaway v. Mobile Paint Manufacturing Co., 467 So. 2d 228 (Ala.1985).
*1238 In the present case, Pinson concedes that the work he was doing at the time he was injured was that of APCo and that APCo had the right to control the details of his work. He argues, however, that he did not have an employment contract with APCo, either express or implied. APCo, acknowledging that it had no express contract of employment with Pinson, argues, instead, that Pinson was its employee within the meaning of § 25-5-53 by virtue of an employment contract implied in fact. We agree.
The dispositive facts in this case are materially indistinguishable from those presented in Bechtel v. Crown Cent. Petroleum Corp., supra. In Bechtel, Crown Central Petroleum Corporation entered into a contract with Pep Services, Inc., an employment agency, whereby Pep agreed to supply Crown with service station personnel. Bechtel was hired pursuant to this supply contract and was designated a Pep employee. Pursuant to its contract, Pep billed Crown for the cost of paying wages, workmen's compensation insurance premiums, unemployment taxes, and Social Security taxes. Bechtel submitted to the control and supervision of a Crown employee; Bechtel wore uniforms supplied by Crown; Crown participated in the hiring process; and the service station manager (a Crown employee) signed the weekly timesheets and had the authority to transfer Bechtel to another station or to terminate her employment. While working for Crown, Bechtel was injured. She obtained workmen's compensation benefits from Pep and then sued Crown directly. Crown moved for a summary judgment, arguing that it was Bechtel's employer within the meaning of § 25-5-53, supra, and, therefore, that it was immune from suit. The trial court entered a summary judgment for Crown, and this Court, applying the scintilla of evidence rule, affirmed that judgment.
Pinson's argument that the contract between APCo and Ellard, which designated him as an employee of Ellard, evidences that he was Ellard's employee and not APCo's is not persuasive. In Bechtel, this Court carefully considered Bechtel's contention that because she was contractually designated as Pep's employee she could not be Crown's employee. We concluded:
495 So. 2d at 1054 (emphasis in original).
In a similar vein, we find unpersuasive Pinson's contention that Ellard's on-site supervision of its workers evidenced that APCo was not his employer. It is undisputed that APCo retained control of the manner or methods of work performed by the workers hired by Ellard and that Pinson submitted to APCo's control and supervision of his work.
The undisputed material facts in this case show, as a matter of law, an implied contract of employment between Pinson and APCo. We hold, therefore, that APCo, was immune from suit under § 25-5-53, supra, and thus was entitled to a judgment as a matter of law.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | January 26, 1990 |
96598abf-80c7-4a6c-af02-d29e9dec096a | Ex Parte Washington | 562 So. 2d 1304 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 1304 (1990)
Ex parte Tommy WASHINGTON.
(Re Tommy Washington v. State of Alabama.)
88-1387.
Supreme Court of Alabama.
February 16, 1990.
David Schoen, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and Kenneth S. Nunnelley, Asst. Atty. Gen., for respondent.
HORNSBY, Chief Justice.
A grocery store owned by Grace and Mamie Strom located on Old Selma Road in Montgomery was robbed on or about August 19, 1987. An investigator from the Montgomery County Sheriff's Department was told by a Gerald White, a suspect in an unrelated crime, that John White (a relative of his) and Tommy Washington had robbed the store. The investigator went with other deputies to John White's house with a warrant for his arrest for an escape charge from 1986. In approaching John White's house, the investigator saw Tommy Washington and arrested him. Washington was indicted for two counts of robbery in the first degree.
The trial court found the above arrest to be unsupported by probable cause and thus illegal. The defendant filed a motion in limine requesting the suppression of the fruits of the arrest. The trial court did not rule on this motion. During further pre-trial proceedings, the defendant and the state entered into plea negotiations. They reached an agreement that provided that the state would orally amend the indictment to charge the defendant with robbery in the second degree and, upon the defendant's entering a plea of guilty to such a charge, would recommend a sentence of 15 years.
The hearing held for the entry of the guilty plea went smoothly until the defendant was requested by the court to give a factual basis for the plea. At that point, the defendant "equivocated," and the trial court became concerned that there might not be a sufficient factual basis for the plea. Counsel for the defendant requested an opportunity to talk with the defendant, and the court allowed it. When the defendant was ready to state his factual basis for the plea, the trial court was involved with another trial and could not take the plea. The state secured a continuance, purported to withdraw the plea offer, and then advised the court that it would proceed to trial against the defendant on the charge of robbery in the first degree. The trial court denied the defendant's motion to enforce the plea agreement.
Defendant's counsel then moved to withdraw as counsel. This motion was denied by the trial court. The state then moved for consolidation of the trials of John White *1305 and Washington. The trial court granted this motion, over objections by both defense counsel. The court was apprised that each defendant would "point the finger" at the other, accusing each other of committing the crime. Counsel for Washington then filed a motion to sever, which was denied.
The cases proceeded to trial as consolidated. When a portion of the trial had been completed, the trial court severed the cases and granted White a mistrial. The trial court stated the following to the jury as his reasons for the severance:
Washington was left to continue as the sole defendant in the trial that was already underway. The jury found Washington guilty on both counts, and he was sentenced to 35 years in the penitentiary. The Court of Criminal Appeals affirmed, without an opinion, 550 So. 2d 1095, and later denied rehearing, 553 So. 2d 146.
The issue we must consider is whether the defendant was irreparably prejudiced by the failure of the trial court to sever the cases at an earlier point in the prosecution. Because we reverse and remand as to this issue, we do not address the remaining issues raised by the defendant.
Rule 15.4(d), Alabama Temporary Rules of Criminal Procedure, provides for a severance of defendants in a joint trial when "a defendant ... may be prejudiced to the extent that a fair trial cannot be afforded." A review of the law in Alabama and the record in this case reveals that the consolidation and the subsequent severance of this case by the trial court amounted to reversible error.
In Hill v. State, 481 So. 2d 419 (Ala.Crim. App.1985), the Court of Criminal Appeals stated the rule to be as follows:
Hill, 481 So. 2d at 424-25. That court has followed that same rule in Holsemback v. State, 443 So. 2d 1371 (Ala.Crim.App.1983); Herron v. State, 481 So. 2d 425 (Ala.Crim. App.1985); and Chapman v. State, 487 So. 2d 269 (Ala.Crim.App.1986).
Even though the trial court was informed by counsel for both defendants that each defendant would be "pointing the finger" at the other and arguing the other defendant's guilt as his own defense, he allowed the trial to proceed with the cases consolidated. Prior to the severance, both victims and the arresting officer had testified before the jury. At the point at which the other defendant's statement was to be introduced into evidence, the trial judge excused the jury, allowed all trial counsel to hear the original taped statement by defendant White, and then severed the cases. The severance occurred before White gave any testimony or statement against Washington. The record reveals that the opening statement of White's attorney included the following assertions:
The above opening statement shows clearly that the jury was immediately informed that the defendants' positions would be antagonistic to each other. In light of the discussion in Hill, supra, the need for severance was established by this opening statement, and the trial court erred in allowing the cases to continue further as consolidated. For this reason, we reverse the judgment and remand the case for a new trial.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | February 16, 1990 |
7ce7cc7b-5a25-47ed-864e-e6ad6bcf0f66 | Ryals v. US Steel Corp. | 562 So. 2d 192 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 192 (1990)
Wilson RYALS, Jr., as administrator of the estate of David Ryals, deceased
v.
UNITED STATES STEEL CORPORATION.
88-1352.
Supreme Court of Alabama.
February 23, 1990.
Rehearing Denied May 4, 1990.
*193 Leila Hirayama and David L. Smith III, Birmingham, for appellant.
Robert D. Hunter and J. Franklin Ozment of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
JONES, Justice.
Wilson Ryals, Jr., as administrator of the estate of his brother, David Ryals, appeals from a summary judgment in favor of the defendant, United States Steel Corporation ("U.S. Steel"). The plaintiff alleged that the defendant caused the decedent's death by negligently or wantonly failing to maintain and secure a "switch rack."[1] Ryals later voluntarily dismissed the negligence claim, and the trial court entered summary judgment in favor of U.S. Steel on the wantonness claim.
Because this Court, by this opinion, recognizes two distinct classes of trespassers to land(1) mere trespassers, to whom the landowner owes the duty not to wantonly injure them; and (2) trespassers who enter upon the land of another with the manifest intent to commit a criminal act and to whom the landowner owes only the duty not to intentionally injure themwe affirm the judgment.
On March 31, 1984, Wilson and David Ryals, as trespassers, went to U.S. Steel's Muscoda Mines switch rack for the purpose of "stripping out" copper, brass, and other salvageable metals. Wilson Ryals testified at his deposition that, when they arrived at the site, they found the base of the structure to be partially stripped; that they found one rusty warning sign, detached metals lying on the ground, dangling wires, garbage in and around the fenced area and wild vegetation growing around the fence; and that they found the gate leading into the switch rack to be "wide open." David Ryals contacted a 44,000-volt copper line; he suffered third degree burns over 95% of his body and died several days later as a result.
The only issue presented here is whether U.S. Steel was entitled to a summary judgment under the appropriate standard of care owed by U.S. Steel to David Ryals, as a trespasser, who, at the time of his injury, was engaged in the crime of theft of U.S. Steel's property. Rule 56, A.R.Civ.P., sets forth a two-tiered standard for granting summary judgment. That rule requires the trial court to 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.
Necessarily antecedent to any evaluation of the facts, however, is a determination of the legal duty owed by a landowner to a trespasser. David Ryals was, without question, a trespasser. The standard of care that a landowner owes to a trespasser is generally recognized as the lowest standard of care owed to one who enters upon *194 another's land.[2] The landowner is bound only to refrain from reckless, willful, or wanton conduct toward the trespasser. Copeland v. Pike Liberal Arts School, 553 So. 2d 100 (Ala.1989).
It is noteworthy that the highest degree of care imposed upon a landowner by this traditional common law rule toward a mere trespasser, i.e., one who wrongfully comes upon the land of another but without any motive, design, or intent to engage in further wrongful conduct, is not to recklessly or wantonly injure that person. Ryals does not contend otherwise; rather, he argues that the facts, when construed most favorably to him, support a finding of wantonness on the part of U.S. Steel, and, thus, that summary judgment was inappropriate. Admittedly, if all trespassers are to be treated equally, and if we agree that the conduct of U.S. Steel amounted to wantonness, then the summary judgment is due to be reversed.
"Wantonness" has been defined by this Court as follows:
Kilcrease v. Harris, 288 Ala. 245, 251-52, 259 So. 2d 797, 801-02 (1972). See, also, Copeland v. Pike Liberal Arts School, supra.
Ryals contends that a genuine issue of material fact was presented on the question whether U.S. Steel wantonly caused the death of David Ryals. Ryals bases his wantonness argument primarily on his claim that when he and his brother arrived at the site they found it in the condition hereinabove set out. He also points out that agents of U.S. Steel acknowledged in deposition and in answers to interrogatories that there had been two prior deaths at the same switch rack under similar circumstances. He maintains, in light of those alleged and admitted facts, that the factfinder could reasonably infer that U.S. Steel had actual or constructive notice that persons might come into contact with the electrical lines at the switch rack.
We agree; if reckless or wanton conduct is the appropriate standard of care applicable to these facts, then a jury question has been presented as to U.S. Steel's conduct. We believe, however, that these facts strongly demonstrate a public policy justification for lowering the requisite degree of care due from a landowner to one who, as here, wrongfully enters upon the land of another to commit a crime. For public policy reasons, therefore, we hold that the duty owed by a landowner to an adult trespasser who comes upon the land and is injured while committing a crime is the duty not to intentionally injure such trespasser.[3]
*195 Applying this standard to the full context of the instant case, we conclude that a fact question was not presented on the issue whether U.S. Steel intentionally caused the death of David Ryals. The switch rack was surrounded by a chain link fence topped with barbed wire. On the fence surrounding the switch rack there was at least one sign warning of the electrical danger within. Given these conspicuous indications of danger, an unlocked gate would not imperil a person unless that person elected to disregard the obvious danger presented by the electricity. In summary, the evidence, as a matter of law, fails to suggest that U.S. Steel breached its duty not to intentionally injure David Ryals, who undisputedly, at the time of his injury, was an adult illegally upon U.S. Steel's property for the purpose of stealing copper wire. (Compare, however, Fletcher v. Hale, 548 So. 2d 135 (Ala.1989), holding summary judgment improper where a 10-year-old trespasser was drowned in a swimming pool.)
Accordingly, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, ALMON, SHORES and ADAMS, JJ., concur in the result.
MADDOX, Justice (concurring in the result).
I agree that a landowner should not be liable to "trespassers who enter upon the land of another with the manifest intent to commit a criminal act and to whom the landowner owes only the duty not to intentionally injure," but I would also emphasize that this case deals with a landowner's liability to a trespassing adult.
The duty owed a trespasser depends on several factors, including the nature of the use of the land, the condition of the land, and in the some instances, the age of the trespasser.
I think the rule adopted is a good rule, but I am afraid it could cause confusion. What if, for example, the plaintiff had entered on the land to hunt, and the land was posted, and he was injured in the same manner? Would the same result obtain? Because I am unsure of the ultimate ramifications of the rule, I concur only in the result.
[1] A "switch rack" is somewhat similar in function and appearance to an electrical substation.
[2] Broadly speaking, the three classes of entrants onto land are trespassers, licensees, and invitees.
[3] We hasten to add a word of caution: the Court's imposition of a duty upon a land owner not to intentionally injure a trespasser, as set forth in the body of the opinion, is not to be understood as changing or modifying the rule that imposes no duty upon a landowner (or other lawful occupier) to a trespasser who enters or attempts to enter an occupied dwelling for the purpose of committing a crime or who inflicts or attempts to inflict bodily harm to another person who is lawfully upon the property. See, e.g. Bennett v. Dunn, 507 So. 2d 451 (Ala.1987). | February 23, 1990 |
77350b98-43b5-41bd-8923-5b841abcf425 | Donegal Mut. Ins. Co. v. McConnell | 562 So. 2d 201 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 201 (1990)
DONEGAL MUTUAL INSURANCE COMPANY
v.
Stephen J. McCONNELL and Brenda A. McConnell.
88-383.
Supreme Court of Alabama.
February 23, 1990.
Rehearing Denied April 6, 1990.
H. Nelson Camp, Huntsville, and Scott A. Millhouse of Meyer, Darragh, Buckler, Bebenek, Eck & Hall, Pittsburgh, Pa., for appellant.
Henry H. Self, Jr., Florence, and Danny D. Henderson of Clark, Scott, Spurrier, Rice & Henderson, Huntsville, for appellees.
MADDOX, Justice.
The issue in this case is whether under an application of Pennsylvania law, the trial court erred in concluding, under the facts of this case, that a serviceman stationed in Alabama was a "resident" of his parents' household in Pennsylvania within the meaning of his parents' automobile insurance policy.
In this declaratory judgment action, the issue before the trial court was whether Donegal Mutual Insurance Company of Marietta, Pennsylvania ("Donegal"), under its automobile insurance policy with Stephen McConnell's parents, Walter and Octavia McConnell, was obligated to provide Stephen with basic first-party medical expense coverage and underinsured motorist coverage for injuries that he sustained in an automobile accident in Tennessee.[1]
On January 1, 1986, Stephen McConnell, who was stationed for military service at Redstone Arsenal in Huntsville, Alabama, and his parents, Walter and Octavia McConnell, entered a Buick dealership in Evansburg, Pennsylvania, and Walter purchased a car for his son, Stephen. After purchasing the car, Walter called his insurance agent, and told him to add Stephen and the new car to the automobile insurance policy he and his wife held as named insureds. The addition to the policy took effect the next day.
On July 13, 1986, Stephen McConnell and David King, a military friend who was also stationed at Redstone Arsenal, were involved in an automobile accident with another car in Tennessee. At the time of the accident, Stephen was not a passenger in his own car, but was riding with King in his car. After the accident, Stephen was transferred to Huntsville Hospital, where he stayed for treatment until August 15, 1986, and he was later transferred to a military hospital located at Maxwell Air Force Base in Montgomery, Alabama. After two or three weeks of treatment there, Stephen was released and he returned to Redstone Arsenal.
On March 3, 1987, several months after the accident, Stephen notified his father's insurance agent that he had been involved in the automobile accident. After Donegal concluded its investigation of the automobile accident, it denied Stephen's claims for basic first-party medical expense coverage and for underinsured motorist coverage, basing its denial on its assertion that Stephen did not qualify as a "covered person" under his parents' policy at the time of the accident.[2]
On July 6, 1987, Stephen and his wife, Brenda, filed a complaint for themselves and for the United States of America against King and Donegal in the Circuit Court of Madison County.[3]
In their complaint, the McConnells sought damages totaling $500,000. Apart from their negligence claim against King, the McConnells alleged that Donegal was obligated under its automobile insurance policy with Stephen's parents to provide Stephen with basic first-party medical expense coverage and underinsured motorist coverage for Stephen's automobile accident.
On August 5, 1987, Donegal filed its answer and a counterclaim in the nature of a complaint for a declaratory judgment, in which Donegal denied that it was obligated to provide Stephen with the requested coverages. In its counterclaim, Donegal requested a judgment declaring that it was not obligated to provide Stephen with the requested coverages because, it claimed, Stephen did not qualify as a "covered person" under its policy at the time of his automobile accident. Essentially, Donegal's argument for denying the claims was that Stephen was not a resident of the household of the named insureds (his parents) at the time of his accident; therefore, Donegal did not consider Stephen to be a *203 family member under its policy so as to qualify as a "covered person."
On August 12, 1987, the McConnells filed an amended complaint against Donegal that added a count claiming damages for an alleged bad faith refusal to pay. Donegal answered that amended complaint on September 18, 1987, denying the McConnells' allegations that it was obligated under its policy with Stephen's parents to provide Stephen with the requested coverages, and denying that its refusal to satisfy the claims constituted a bad faith refusal on its part.
The trial court declared that, under the terms of the policy, Stephen did reside in his parents' household at the time of his automobile accident; therefore, the court held that Stephen was deemed to be a family member under Donegal's policy, which further meant that he met the stated qualification for being a "covered person." Consequently, the trial court declared in its judgment that Stephen was entitled to the coverages sought in their complaint. In support of its order, the trial court listed the following facts as reasons why it considered Stephen to be a resident of his parents' household at the time of his automobile accident:
On August 8, 1988, Donegal filed a motion to amend or vacate the judgment, which the trial court denied on November 8, 1988. On December 19, 1988, Donegal filed its notice of appeal to this Court.[4]
The standard of review applicable to this case is set forth in Thompson v. Hartford Acc. & Indem. Co., 460 So. 2d 1264 (Ala. 1984). In that case, which also involved this Court's review of a trial court's declaratory judgment, this Court stated that when a case is "tried ore tenus there is a strong presumption that the trial court's findings of fact are correct. Those findings will not be disturbed on appeal unless they are clearly erroneous or palpably wrong." Id. at 1267. However, as stated in Gaston v. Ames, 514 So. 2d 877 (Ala. 1987), "when the trial court improperly applies the law to the facts, no presumption of correctness exists." Id. at 878.
The case before the trial court involved an interpretation of an automobile insurance policy that was executed in the State of Pennsylvania. Under Alabama's choice of law rule, the trial court was obligated to apply the substantive law of Pennsylvania in its interpretation of that policy. See Ex parte Owen, 437 So. 2d 476, 481 (Ala.1983); Harrison v. Insurance Co. of North America, 294 Ala. 387, 391, 318 So. 2d 253, 257 (1975); Furst & Thomas v. Sandlin, 208 Ala. 490, 492, 94 So. 740, 742 (1922). Nowhere in the trial court's order declaring that Stephen McConnell was a resident of his parents' household at the time of his automobile accident did that court cite Pennsylvania law to support its finding. Instead, the trial court exclusively relied upon Alabama case law to support its interpretation of that policy.
The outcome of this appeal turns on the proper construction of the term "covered *204 person," as that term is defined in Donegal's automobile insurance policy. As noted in footnote 2 to this opinion, the policy defines a "covered person" to mean: (1) the named insured as shown on the policy's declaration page,[5] (2) the spouse of a named insured if he or she resides in the same household, or (3) a family member.
The term resident is nowhere defined in Donegal's automobile insurance policy;[6] therefore, as required under Alabama's choice of law rule, this Court is obligated to look to the substantive law of Pennsylvania to construe that term. In addressing the difference between residence and domicile as those terms are defined under Pennsylvania's common law, a Pennsylvania court stated the following:
Krager v. Foremost Ins. Co., 304 Pa.Super. 390, 393-94, 450 A.2d 736, 737-38 (1982). In Krager, the court was construing a homeowner's policy. The court held that the plaintiff was a resident relative of the insured in that case, and was within the coverage of the homeowner's liability policy issued to his mother, where the plaintiff lived with his mother at her summer home from April to November of each year and lived at his New York mobile home for the rest of each year. The court applied the general rule that because the insurance company wrote the policy any ambiguity in the terms of the policy would be construed against it. 450 A.2d at 738. For other Pennsylvania cases discussing the distinction between "residence" and "domicile," see, Amica Mut. Ins. Co. v. Donegal Mut. Ins. Co., 376 Pa.Super. 109, 545 A.2d 343 (1988); Boswell v. South Carolina Ins. Co., 353 Pa.Super. 108, 509 A.2d 358 (1986); Laird v. Laird, 279 Pa.Super. 517, 421 A.2d 319 (1980). None of these cases involved a serviceman.
Although we have been unable to find a Pennsylvania case that discusses the interpretation to be placed on the word "resident" under the facts of this case, we have found a Fifth Circuit Court of Appeals case that does interpret Pennsylvania law under similar facts. In Beck v. National Mutual Cas. Ins. Co., 429 F.2d 813 (5th Cir.1970), the Court of Appeals had to decide whether the phrase "resident of the same household," as used in an insurance policy, included a serviceman who had been stationed away from his parents' home while in the armed services, a factual situation similar to this one. Acknowledging that at that time the State of Pennsylvania had never decided such an issue, the court stated that it was making an "educated guess" when it declared that when a serviceman "leaves his personal belongings at his former address and does not clearly manifest an intention to change his residence he is still a resident of his former home." Id. at 817. The Beck case is consistent with cases from other jurisdictions, which generally hold that a child who is living apart from the named insured while serving in the armed forces is nevertheless a "resident" of the insured's household within the meaning of an insurance policy. See Annot., "Who is `Resident' or `Member' of same `Household' or `Family' as Named Insured, Within Liability Insurance Provision Defining Additional Insureds," 93 A.L. R.3d 420, 443 (1979). Even though the Beck case was decided prior to the date on *205 which Krager v. Foremost Ins. Co., supra, was decided, we do not believe that Krager compels us to reach a different result. In the first place, the Pennsylvania court found coverage for the additional insured in Krager, and we have found no Pennsylvania case which has criticized the Beck case and which involved a serviceman, as this case does. Although the decision of the Fifth Circuit Court of Appeals in Beck was based upon that court's "guess" of what the law was, we believe the Fifth Circuit correctly applied the law of Pennsylvania.
After carefully reviewing the record, we conclude that the trial court properly applied the law to the facts before it in its interpretation of Donegal's automobile insurance policy. In so doing, the trial court correctly declared that Stephen McConnell qualified as a "covered person" under Donegal's policy. The judgment of the trial court, therefore, is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] On February 12, 1984, the Pennsylvania Legislature enacted the Motor Vehicle Financial Responsibility Law, 75 Pa.Cons.Stat.Ann. §§ 1701-1798 (Purdon Cum.Supp.1989-1990), which required, among other things, that every automobile insurance policy delivered or issued in Pennsylvania contain a basic $10,000 medical benefits coverage and an uninsured/underinsured motorist coverage. See specifically § 1711 and § 1731(a) of the statute.
The basic $10,000 medical benefits coverage, which Donegal refers to as basic first-party medical expense coverage in its automobile insurance policies, covers medical expenses incurred for the care, recovery, or rehabilitation of a "covered person" arising from injuries incurred from the maintenance or use of a motor vehicle. See § 1711 and § 1712(1) of the statute. Underinsured motorist coverage provides "protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles." § 1731(c).
[2] Under the policy, one of the stated preconditions for receiving basic first-party medical expense coverage and underinsured motorist coverage is that the claimant must qualify as a "covered person" as defined in its policy. The pertinent definitions of the term "covered person" that formed the basis of Donegal's dispute with Stephen read as follows:
"`Covered person' means: You or any family member.
"Throughout this policy, `you' and `your' refer to:
"1. The `named insured' shown in the Declarations; and
"2. The spouse if a resident of the same household.
"`Family member' means a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child." (Emphasis added.)
[3] Section 2651(a) of the Federal Medical Care Recovery Act, 42 U.S.C. §§ 2651 through 2653, creates a "right" in the United States to recover from a tort-feasor the value of medical care it has furnished an injured person and provides that the government shall be subrogated to any claim of the injured person against the tort-feasor to the extent of the value of the care and treatment it has already provided and will provide in the future. In this case, the United States of America joined the McConnells in their lawsuit against King and Donegal pursuant to § 2651(b)(1).
[4] Because the trial court's declaratory judgment order was not made a final judgment pursuant to Rule 54(b), A.R.Civ.P., the case was remanded to the trial court on June 23, 1989, in accordance to our policy stated in Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala.1984), overruled on other grounds by Ex parte Andrews, 520 So. 2d 507 (Ala.1987). On June 27, 1989, the trial court amended its declaratory judgment order in order to certify it as a final judgment pursuant to Rule 54(b), A.R.Civ.P.; the record has been supplemented to include that Rule 54(b) certificate.
[5] A declaration page is a sheet prepared by Donegal that sets forth the following items of information for its policyholders: (1) the name and address of the named insured, (2) the items covered under the policy, (3) any endorsement made to the policy by Donegal, (4) the policy's coverage period, (5) the kinds of coverage given, and (6) the amounts of liability offered for each kind of coverage given.
[6] An interesting law review article highlighting the judicial difficulty of defining the term "residence" is Reese & Green, That Elusive Word, "Residence", 6 Vand.L.Rev. 561 (1953). | February 23, 1990 |
4bdea796-c3bb-42d6-bf5f-4efeb43f704b | Livingston v. Dobbs | 559 So. 2d 569 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 569 (1990)
Marie LIVINGSTON
v.
Euell L. DOBBS, Jr., and Dobbs Famous Barbeque,[1] Inc.
89-165.
Supreme Court of Alabama.
March 2, 1990.
*570 Alan C. Livingston of Lee & McInish, Dothan, for appellant.
Stephen T. Etheredge of Johnson, Etheredge & Dowling, Dothan, for appellees.
MADDOX, Justice.
This case involves the enforcement of a non-competition clause contained in a contract for the sale of a barbecue business. The appellant, Marie Livingston, who worked as a waitress in her former husband's barbecue business without compensation, appeals from the trial court's temporary injunction restraining her from working at another barbecue restaurant in the same city. The trial court's injunction apparently was based upon the terms of a non-competition clause in a contract of sale of her former husband's business, which contract she signed. Appellant's basic argument is that the non-competition clause is void as to her, because she was neither the seller of the business nor an employee within the meaning of Ala.Code 1975, § 8-1-1, which authorizes the enforcement of non-competition clauses in certain instances.
The facts are undisputed. Euell Dobbs and William Livingston opened a business known as Dobbs Famous Barbeque in 1958. Shortly thereafter, William Livingston married the appellant, Marie Livingston. Mrs. Livingston and Mrs. Dobbs worked in their husbands' business, as unpaid waitresses, until 1980, at which time they both stopped working.
In 1985, Dobbs purchased William Livingston's partnership interest, pursuant to the terms of a written contract, which contained the non-competition clause which is the subject of this controversy and which forms the basis for the trial court's injunction.
Shortly after the sale of Dobbs Barbeque in 1985, Marie and William Livingston were divorced. In the divorce settlement, Marie was awarded the unpaid balance of the purchase price of the business. Payments from Dobbs on this debt are scheduled to continue until 1991.
In 1989, Marie Livingston became involved in the start of another barbecue restaurant in Dothan, known as Old South Barbeque. She loaned money to Old South's founder and she agreed to work in the fledgling restaurant as the manager. In her efforts to get the new business started and progressing, Livingston hired some of the workers from Dobbs Barbeque. Dobbs brought this action specifically to enjoin Marie Livingston's participation in the operation of Old South Barbeque.
The non-competition clause in question states:
Livingston contends that the above-quoted clause should not be enforced because, she says, it does not come within one of the exceptions in Ala.Code 1975, § 8-1-1, and is therefore void. That section makes non-competition agreements generally void, but provides exceptions by which some non-competition agreements are enforceable. Section 8-1-1 provides:
Livingston claims that she does not fall within one of the exceptions provided in § 8-1-1, and therefore that the contract provision restraining her employment is void.
Livingston argues that she was not the seller of the partnership interest because her husband was the sole owner at the time of the sale. She also argues that she was not employed in the business within the meaning of the exceptions contained in § 8-1-1, because she received no compensation for her work as a waitress and her work as a waitress had terminated five years before the sale. We find her argument persuasive.
Contracts restraining employment have been traditionally disfavored. Calhoun v. Brendle, Inc., 502 So. 2d 689 (Ala. 1986); Robinson v. Computer Servicenters, Inc., 346 So. 2d 940 (Ala. 1977); and Hill v. Rice, 259 Ala. 587, 67 So. 2d 789 (1953). With that in mind, we turn to the language of the contract itself and compare it with the exceptions to the general bar as outlined in § 8-1-1. The contract provides that "the seller and his wife" covenant not to compete; the contract also identifies William Livingston solely as the "seller." Marie Livingston is mentioned nowhere in the contract other than in the non-competition clause. The non-competition clause itself confirms that she was not the seller, because it contains the phrase "the seller and his wife, who is a signatory to this agreement for the sole purpose of this provision" (emphasis added). It is clear from this language that the non-competition clause purported to forbid Marie Livingston from engaging in a competing business, but unless she falls within one of the exceptions set out in § 8-1-1, the clause is void and of no effect. Clearly, Marie Livingston does not fall into the § 8-1-1 exception of "one who sells the goodwill of a business." Dobbs seems to argue that Marie Livingston should be considered the seller because she is receiving the balance of the purchase price owed by him to the seller, but that cannot make her the seller. This argument fails because the ownership interest is determined at the time of the sale, and the record is clear that Mrs. Livingston received the balance due on the purchase price after the sale as part of a divorce settlement.
Marie Livingston also does not fit within the exception provided for one "employed as an agent, servant or employee." Livingston was not "employed," as that term is commonly used, and she received no compensation from Dobbs Barbeque as an agent, servant, or employee, and her non-compensated service as a waitress at *572 Dobbs Barbeque had ended five years before the contract was executed.
We find that Livingston does not fit within any of the exceptions provided in § 8-1-1; therefore, we hold that the non-competition clause is void as to her.
By this opinion, we do not hold that in all cases non-owner spouses are free to disregard covenants that are binding on their marital partners. A person may be enjoined from operating a competing business if he or she receives assistance in operating the business from the one bound by the covenant. Daughtry v. Capital Gas Co., 285 Ala. 89, 229 So. 2d 480 (1970); and Yost v. Patrick, 245 Ala. 275, 17 So. 2d 240 (1944). There was no evidence of such assistance presented in this case.
We pretermit a discussion of the reasonableness of the terms of the covenant, based upon our determination that the clause is void as to Mrs. Livingston.
Based on the foregoing, the judgment of the trial court is due to be, and it is hereby, reversed, and a judgment is rendered for the appellant.
REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Various documents in the record use three spellings of this word in the name of the company and in the name of the restaurant: "Barbeque," "Barbecue," and "Bar-b-que." We will use the spelling used in the notice of appeal: "Barbeque." | March 2, 1990 |
46a3164b-4eb5-4a9a-b2ff-8ee25f75551d | Ex Parte Brooks | 562 So. 2d 604 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 604 (1990)
Ex parte Samuel Robert BROOKS.
(Re Samuel Robert Brooks v. State of Alabama.)
88-1258.
Supreme Court of Alabama.
February 16, 1990.
*605 Paul D. Brown, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for respondent.
HORNSBY, Chief Justice.
Samuel Robert Brooks was indicted in a two-count indictment for theft of property in the first degree and possession of a forged instrument in the second degree. A jury found him guilty of theft and acquitted him of possession of a forged instrument. He was sentenced to ten years' imprisonment on the theft conviction.
Brooks was a practicing attorney. He undertook to assist Hazel and William Day in collecting their claim against an insurance company for damage to their property. He eventually received full satisfaction ($16,810.77) of the claim by check, which was made payable to the Days. Brooks endorsed the check by signing the Days' names and deposited the check into his attorney's trust account. He subsequently withdrew the same amount from the trust account to pay personal obligations. The Days never recovered any of the funds.
1) Whether the trial court erred in failing to recognize the due process violation that occurred when the prosecutor argued in closing that Brooks had (in a previous unconnected matter) exercised his right to remain silent and had requested counsel before answering questions.
2) Whether there was a fatal variance between the indictment charging theft of lawful currency and the evidence at trial that a "check," not "currency," was taken.
Because our analysis with respect to the two issues above effectively resolves this appeal, other issues raised by the petitioner are not discussed in this opinion.
Brooks argues that the mention of his silence by the prosecutor in his closing argument was error.
The prosecutor's remarks during closing argument were:
Improper argument of counsel is not grounds for a new trial when the defendant's objections are sustained and no curative instruction is sought. See Alabama Power Co. v. Henderson, 342 So. 2d 323, 327 (Ala.1977). An exception would be where counsel's remarks were so grossly improper and highly prejudicial as to be beyond corrective action by the trial court. Id. The remarks in this case fall within this category.
Regardless, the Court of Criminal Appeals stated in its opinion that "the prosecutor, *606 by cross-examination, attempted to bring out the silence of Appellant during the disciplinary proceedings in an effort to show that his present defense [was] that he took the money as payment for legal fees [and that this] was not advanced in the prior proceedings." 562 So. 2d 601. This effort by the prosecutor was improper to show a tacit admission on behalf of Brooks, under this Court's decision in Ex parte Marek, [1989] 556 So. 2d 375 (Ala.1989).[1] In Marek, we abolished the tacit admission rule, "which previously allowed the introduction of evidence of an accused's silence when confronted with an accusation." Id. at 382. We specifically held that this abolition applied to pre-arrest situations as well as to post-arrest situations.
A review of the record of this trial reveals the following colloquy when the defendant was being cross-examined by the prosecutor:
The State, on cross-examination, attempted to introduce evidence that Brooks had expressed a desire to consult an attorney before answering any further questions at a prior disciplinary proceeding before the Alabama State Bar. The State proceeded to cross-examine Brooks on this point, even after he had asserted his Fifth Amendment privilege. Finally, the State proceeded to argue his silence to the jury as an indication of guilt. This was an improper use of the now-abolished tacit admission rule, as well as a violation of Brooks's due process rights. The cumulative effect of the prosecutor's questions, coupled with his improper closing argument, was so prejudicial to Brooks that a new trial is required, particularly in light of the prosecutor's continued questions to Brooks even after objections to these questions were sustained by the trial judge. Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 228, 128 So. 389 (1930); see, e.g., Trent v. State, 380 So. 2d 960, 963 (Ala.Crim.App.1979).
We stated the following in Birmingham Baptist Hospital, supra, 221 Ala. at 229, 128 So. at 392:
Quoting Louisville & N.R.R. v. Payne, 133 Ky. 539, 118 S.W. 352, 353 (1909). For this reason, we reverse.
Because our reversal will likely cause the defendant to be tried again on the original indictment, we consider it appropriate to address the defendant's argument that the indictment is defective.
Ex parte Airhart, 477 So. 2d 979 (Ala.1985), clearly states the rule that when the charge involves "currency" and the proof shows that a "check" was involved, there is a fatal variance between the indictment and the proof. The Court of Criminal Appeals distinguishes this case from Ex parte Airhart, supra, acknowledging that a check was deposited into Brooks's account, but holding that it had been converted into "currency" when Brooks later withdrew it from his trust account. According to the facts as stated in the Court of Criminal Appeals' opinion, it was not until this point, when the amount represented by the check had become currency in his account, that Brooks formed the requisite intent to commit the theft, thus exerting unauthorized control over the Days' property. If Brooks had cashed the Days' settlement check and used it for his personal obligations, he would have converted a check, and there would have been a variance between the indictment and the proof. In this instance, however, because Brooks deposited the check, so that it was converted into currency, and then converted the currency, there was no variance.
Based on the foregoing, we reverse the judgment and remand the cause to the Court of Criminal Appeals for proceedings consistent with this opinion.
REVERSED AND REMANDED.
JONES, ALMON, SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
I am persuaded that the opinion authored by Judge Patterson and concurred in by all Judges on the Court of Criminal Appeals is correct. I would quash the writ, or affirm; therefore, I must dissent. I would point out, however, that I agree with the majority's holding on the fatal variance issue.
MADDOX and STEAGALL, JJ., concur.
[1] We note that Marek had not been decided at the time of the trial court's ruling in this case. | February 16, 1990 |
327ddf77-0c7b-4d70-a50f-33a9777beeeb | Norman v. Amoco Oil Co. | 558 So. 2d 903 | N/A | Alabama | Alabama Supreme Court | 558 So. 2d 903 (1990)
Jim T. NORMAN, Jr., individually and d/b/a Norman Oil Company
v.
AMOCO OIL COMPANY, et al.
88-953.
Supreme Court of Alabama.
January 5, 1990.
Rehearing Denied March 2, 1990.
Ira DeMent and Donald E. Fazekas, Montgomery, for appellant.
Sterling G. Culpepper, Montgomery, for appellees.
*904 KENNEDY, Justice.
Jim T. Norman, Jr., individually and d/b/a Norman Oil Company, appeals from a summary judgment in favor of defendants Amoco Oil Company, Larry B. Otto, and Terry R. Weaver. A fourth defendant is not involved in this appeal. We affirm.
Norman was a jobber operating in an area that included Pike County, Alabama, under contract with Amoco Oil, acting as a wholesaler of Amoco products to individual dealers who were under contract with him. Norman entered into a certain contract with Amoco, the term of which was from October 1, 1984, to September 30, 1987; he made that contract with Weaver, an Amoco district manager. Weaver had been the district manager when Norman had entered into similar contracts with Amoco on prior occasions.
At some point during the term of this particular contract, Norman was informed by Otto, an Amoco territory manager, that Amoco intended to invite Russell Oil Company ("Russell") into Pike County to do business as an Amoco jobber.[1] Norman says that after he was informed of Russell's and Amoco's intentions, he asked Otto if he could expand his operations into Montgomery County and that Otto replied that he could expand only if Amoco "invited" him to do so. According to Norman, Amoco refused repeated requests to allow him to expand his operation into Montgomery County and informed him that the reason for its refusal was that his "profitability index" (referred to in the record as "P.I.") was too low. Norman states that Amoco refused his request for a credit card machine to use in his planned expansion and that at the end of his contract term Amoco replaced him with Russell.
The evidence clearly shows that Norman was informed by his attorneys that his contract with Amoco permitted him to expand his operation outside of his service area without Amoco's invitation and that after being so informed, Norman made a decision not to expand his operations into Montgomery County. Just as the contract did not provide Norman with exclusivity in his territory, it did not prohibit him from selling Amoco products outside of that area without the express permission of Amoco.[2]
The defendants contend that although Norman stated that he did not understand the import of the profitability index, he was actually well aware of its import and that as early as July 1985, he had been informed that his contract would not be renewed if his sales performance did not improve.
Norman sued Amoco, Otto, Weaver, and Russell, alleging breach of contract, fraudulent misrepresentation, fraudulent suppression of material facts, and intentional interference with a business relationship. Summary judgment was denied on the breach of contract claim but was granted as to all other counts. Summary judgment was made final pursuant to Rule 54(b), A.R.Civ.P. Norman appeals from that summary judgment, but only as it relates to the fraudulent misrepresentation and fraudulent suppression counts and only as to defendants Amoco, Weaver, and Otto.
The trial court found that Norman "could not have reasonably relied on defendant Otto's statement that he could not expand into Montgomery County without permission" and that, therefore, Norman had no cause of action based on fraudulent misrepresentation. We agree.
Otto admitted in his deposition that when Norman told him he was going to expand his operation into Montgomery County, he told Norman that he would not be given a credit card machine or a sign. However, *905 when Norman presented his attorneys with the contract and told them of Otto's statement, his attorneys advised him that he was within his rights to do business in Montgomery County.[3]
In May of 1986, Amoco notified the plaintiff by letter and advised him that he was free to expand into Montgomery if he chose to do so. Shortly after receiving this letter, the plaintiff was informed by Otto that "anybody could go anywhere." Moreover, in deposition testimony, the plaintiff stated that even though he knew he could expand into the Montgomery area, he chose not to do so of his own accord.
These facts indicate that the plaintiff did not, in fact, rely on the alleged express misrepresentations by Amoco. Without such reliance, the plaintiff may not recover for fraudulent misrepresentation.
In its order entering summary judgment, the trial court stated the following:
Norman, in his first deposition, admitted that Otto informed him that he needed to increase his profitability index by increasing the sales volume. He also stated that Otto told him that the areas he specifically needed to increase were premium fuel, diesel fuel, and heavy oils. Thus, it appears that even though Norman was not given the formula used in arriving at the profitability index, he was made aware of its components and of the areas that he needed to emphasize.
In order to recover for fraudulent suppression, a plaintiff must establish the following elements: "(1) a duty to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act, and (4) action by the plaintiff to his injury." Wilson v. Brown, 496 So. 2d 756, 759 (Ala.1986). The plaintiff has presented no evidence that Amoco had a duty to inform him completely of the makeup of the profitability index.
Under Code 1975, § 6-5-102, "a duty to speak depends upon the fiduciary or other relation of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances of the case." Hall Motor Co. v. Furman, 285 Ala. 499, 234 So. 2d 37 (1970). "When the parties to a transaction are knowledgeable and capable of handling their affairs," the obligation to disclose does not arise. Trio Broadcasters, Inc. v. Ward, 495 So. 2d 621, 624 (Ala.1986). Prior to the contract at issue here, the plaintiff had been an Amoco jobber for approximately 12 years. The plaintiff was not a newcomer in the service station industry, but, instead, had had significant experience in that industry. His primary distribution area was large geographically and his work involved executing contracts with individual station owners. Based on our reasoning in Trio Broadcasters, supra, the trial court properly concluded that Amoco was under no duty to disclose to Norman all of the details of the profitability index.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
[1] The counts of the complaint stating claims against defendant Russell Oil Company are not included in the record on appeal.
[2] Section 18 of the contract reads, in part, as follows:
"Seller reserves the right to make other provisions for the marketing of its product within such area. Nothing contained in this contract shall preclude Buyer from selling or soliciting the sale of the products covered by this contract outside such area or confer upon Buyer exclusive marketing rights for any such product within such area."
[3] The contract clearly states that the buyer, Norman, is not precluded from selling Amoco's products outside his principal area of responsibility. Therefore, the interpretation given to Norman by his attorneys was correct. | January 5, 1990 |
23b2a71a-a02f-4916-983d-80150e4c0605 | Harris v. FOOD EQUIPMENT SPECIALIST | 559 So. 2d 1066 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 1066 (1990)
Charles Ray HARRIS and Linda Harris
v.
FOOD EQUIPMENT SPECIALIST, INC.
88-1601.
Supreme Court of Alabama.
March 9, 1990.
Robert J. Hayes of Roden & Hayes, Birmingham, for appellants.
William L. Lee III of Lee & McInish, Dothan, for appellee.
MADDOX, Justice.
This appeal presents one question: Did the trial court err in entering summary judgment in this negligence action on the ground that the plaintiff/workman assumed the risk of injury when he slipped on ice he admittedly knew was on the floor of a walk-in cooler-freezer he was repairing at the time?
The evidence presented on the summary judgment motion tended to show the following: Plaintiff Charles Ray Harris, while employed by Vollrath Refrigeration, Inc. (hereinafter "Vollrath"), went to Selma Street Elementary School, located in Dothan, to inspect a walk-in cooler-freezer unit situated in the school's lunchroom. Vollrath was the manufacturer of that particular walk-in cooler-freezer unit, which the defendant, Food Equipment Specialist *1067 (hereinafter "Food Equipment") had purchased and installed for the school.
Because Food Equipment allegedly did not install the unit properly, neither the cooler door nor the freezer door closed securely; consequently, water vapor in the air outside of the cooler door would enter the unit and condense, and that condensation would freeze and form ice on the floor and walls of the cooler.
The Dothan City School officials contacted Vollrath and Food Equipment about the problem, and Charles Harris and two Food Equipment employees were sent to the school in response to the complaint. Harris suggested to the school's lunchroom manager that all the contents contained in the cooler and freezer compartments be removed, but the lunchroom manager refused to accept Harris's suggestion, and the food was not removed. Two Food Equipment employees who were present also refused his request to remove the contents.
Harris elected to attempt the realignment of the cooler and freezer doors anyway. Even though two Food Equipment employees were present to assist Harris with the repairs, Harris performed most of the work. It was during Harris's attempted realignment of the freezer door that his accident occurred.
The facts tend to show that Harris lifted the freezer door frame and began to cross the cooler compartment, and that, as he walked across the floor with the door frame in his hands, he slipped upon some ice on the cooler's floor. As he fell backwards, he landed against some stacked boxes, injuring his back. He and his wife, Linda Harris, initially filed a complaint in the Circuit Court of Jefferson County against Food Equipment, the City of Dothan, and the Dothan City School Board, in which they alleged that negligent installation of the unit by Food Equipment had caused ice to form on the cooler compartment's floor. The Harrises also alleged that because Food Equipment, by and through its two employees who had been present at the school, had refused Harris's request to remove the contents of the cooler and freezer compartments, Harris became the servant of Food Equipment. They alleged that since Harris's relationship with Food Equipment had thereby been transformed into a servant/master relationship, Food Equipment had a duty to provide Mr. Harris with a safe place to work.
Food Equipment filed a motion to have the case transferred to the Circuit Court of Houston County; the trial court granted the motion to transfer. Later, Food Equipment filed a motion for summary judgment. In support of its motion for summary judgment, Food Equipment submitted the deposition of Harris, and the trial court, after review, granted the motion. In its order, the trial court stated that because Harris had observed and was aware of the icy conditions within the cooler compartment, he had assumed the risk of injury to himself when he attempted to carry the freezer door frame across the cooler compartment's floor. The trial court also found that there was no duty of care owed by Food Equipment to Harris to provide him with a safe working place. Due to a settlement agreement, the City of Dothan and the School Board were dismissed as defendants.
Because this action was filed prior to June 11, 1987, the effective date of Ala. Code 1975, § 12-21-12, the "scintilla rule" governs this Court's review of the summary judgment. This Court has stated:
"`A motion for summary judgment may be granted only when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Fountain v. Phillips, 404 So. 2d 614, 618 (Ala.1981). Furthermore, all reasonable doubts concerning a genuine issue of material fact must be resolved against the moving party. Couch v. Dothan-Houston County Airport Authority, Inc., 435 So. 2d 14 (Ala. 1983).'"
Best v. Houtz, 541 So. 2d 8, 9 (Ala. 1989) (quoting Cabaniss v. Wilson, 501 So. 2d 1177, 1182 (Ala.1986)). See Rule 56(c), A.R. Civ.P. Under the "scintilla rule," once the moving party has made a prima facie showing *1068 that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law, the burden shifts to the non-moving party to show that there is at least a scintilla of evidence in his favor that creates a genuine issue as to some material fact.
The evidence submitted by Food Equipment on its motion for summary judgment consisted of a deposition given by Harris. In that deposition, he admitted that he knew of the presence of ice on the cooler compartment's floor prior to his attempt to carry the freezer door frame across that floor. In that deposition, he testified as follows:
Later, in that same deposition, Mr. Harris further testified to the following:
In addressing assumption of the risk as an affirmative defense to a negligence action, this Court stated the following:
"`The essential elements of contributory negligence in Alabama where the plaintiff assumed the risk or consequences by placing himself into a dangerous position are (1) knowledge by the plaintiff of the condition; (2) appreciation of the danger under the surrounding conditions and circumstances; and (3) failure of the plaintiff to exercise reasonable care in the premises, but with such knowledge and appreciation [as] to put himself into the way of danger.' (Citations omitted.)"
Cooper v. Bishop Freeman Co., 495 So. 2d 559, 563 (Ala.1986). The foregoing testimony given by Harris clearly showed that *1069 he had knowledge of the presence of ice on the cooler compartment's floor. Also, Harris's testimony revealed that he appreciated the risk associated with working in an area that had ice on the floor. Finally, in later testimony given by Harris in his deposition, the facts demonstrated that he failed to exercise reasonable care in the performance of his job, despite his knowledge and appreciation of the risk of injury facing him inside the cooler compartment. Specifically, Mr. Harris testified:
The trial court did not err when it held that Harris assumed the risk of injury as a matter of law when he carried the freezer door frame across the cooler compartment's floor; this is clear from Harris's own testimony.
Furthermore, we cannot find any evidence of the existence of any alleged master/servant relationship between Harris and Food Equipment. The plaintiffs' assertion that because the two Food Equipment employees who were present refused to comply with Harris's request to remove the contents of the cooler and freezer compartments, a request that the lunchroom manager also refused, they somehow exercised "control" over Harris's work to a degree that he became the servant of Food Equipment is novel, to say the least. Clearly, the evidence required the trial court's conclusion that Food Equipment did not retain the right to direct Harris's work. Harris was an employee of Vollrath, not Food Equipment.
Based upon the above stated reasons, the trial court's judgment is due to be affirmed.
AFFIRMED.
ALMON, ADAMS and STEAGALL, JJ., concur.
HORNSBY, C.J., concurs specially.
HORNSBY, Chief Justice (concurring specially).
Because of the particular facts of this case, I concur with the majority's affirmance of the summary judgment in favor of the defendant. Harris clearly had knowledge of the presence of ice on the cooler compartment's floor, and his testimony revealed that he appreciated the risk associated with working in the cooler where there was ice on the floor. His testimony revealed that he previously had worked on approximately a dozen freezers with similar problems and that he knew of the dangers in working on ice while in the freezer. He had been in this freezer twice before he slipped and fell.
This case is to be distinguished from Williams v. Newton, 526 So. 2d 18 (Ala. 1988), where the plaintiff fell on ice when she left her insurance agent's office. We held that Ms. Williams's testimony did "not affirmatively show that she was aware of the ice as she entered [the agent's] office," and that a question of fact remained for a jury as to her knowledge of the presence of the ice. Likewise in Bogue v. R & M Grocery, 553 So. 2d 545 (Ala. 1989), we held that the unanswered question of whether the plaintiff should have been aware of the defect (a drop in elevation in an outside doorway ramp of the grocery store) was for the jury. Similarly, in Terry v. Life Ins. Co. of Georgia, 551 So. 2d 385 (Ala. 1989), we found that there were a number of factual issues to be determined by the jury, including whether, prior to the plaintiff's fall down the stairs at her workplace, her knowledge of loose carpet in the stairway was sufficient to show an appreciation of the danger it involved. See also Cox v. Western Supermarkets, Inc., 557 So. 2d 831 (Ala.1989) (the resolution of whether *1070 there was a foreign substance on the floor, or whether the defendant was delinquent in failing to discover and remove it before the plaintiff fell, was the responsibility of the trier of fact); Breeden v. Hardy, [Ms. 88-1164, Jan. 12, 1990] (Ala.1990) (an injured employee was not aware of the open hole into which he fell, which had up to that time been barricaded).
This case is not a premises liability case, as are those cases named above. Here, the plaintiff was performing work pursuant to his employer's instructions. He has sued the distributor of the freezer for his injuries, which resulted, he claims, from the improper installation of the freezer by the distributor. Regardless, the plaintiff assumed the risk involved here by carrying the freezer door over the ice-covered floor of the freezer which was manufactured by his employer. He clearly knew of the risk associated with the work, and his testimony shows that he clearly appreciated the danger in working on ice while in the freezer. For these reasons, I agree that the summary judgment for the defendant was proper. | March 9, 1990 |
fd1d2675-7d89-42a6-8d0a-52214c04ae70 | Bean v. Craig | 557 So. 2d 1249 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1249 (1990)
Lowell BEAN and Irene Bean
v.
Claude C. CRAIG, Jr.
Claude C. CRAIG III
v.
Lowell BEAN and Irene Bean.
88-623, 88-693.
Supreme Court of Alabama.
January 26, 1990.
*1251 Richard C. Shuleva, Pelham, for appellants/ cross-appellees.
H.E. Nix, Jr. and Alex L. Holtsford, Jr., Montgomery, for appellee/cross-appellant.
ALMON, Justice.
Lowell Bean and his wife, Irene,[1] appeal from a summary judgment entered in favor of defendant C.C. Craig, Jr. ("Craig"), and made final pursuant to Rule 54(b), A.R. Civ.P. Claude C. Craig III, another defendant, also appeals.
On or about September 19, 1985, Lowell Bean was working for Craig's, Inc., doing business as Western Auto, on a truck that was owned by the company. The truck was elevated by an automobile lift that was secured with a tire iron in the slot where a safety pin would normally be placed.
Prior to the accident, C.C. Craig III ("Cebo"), Craig's son, also worked under the truck for several hours. Although there is some dispute as to the exact details, at some point after Cebo finished the repairs and while Bean was walking by the truck, the lift collapsed, injuring him.
After receiving workmen's compensation benefits, Bean filed this co-employee and third-party action against Craig, Cebo, and fictitiously named defendants, claiming damages for injuries he sustained as a result of the accident. His complaint alleged that his injuries were the proximate result of the following: (1) a failure of Craig to provide a safe work environment; (2) wanton and negligent operation of the automobile lift by Cebo; (3) Cebo's removal or failure to use the lift's safety pin mechanism, which he claimed was willful and intentional; and (4) negligent and wanton manufacturing and distribution of the lift by an unknown manufacturer.
Craig and Cebo filed motions for summary judgment, relying principally on Ala. Code 1975, §§ 25-5-11 and 25-5-14, affidavits, and deposition testimony. The motions were continued on two separate occasions to allow additional discovery, after which a hearing was held at which the trial court heard oral argument. The trial court granted the motion for summary judgment in favor of Craig, but denied the motion as to Cebo and found Cebo not to be a co-employee of Bean.
Bean argues that summary judgment in favor of Craig was in error and he cites disparities between Craig's and Cebo's deposition testimony, as well as an affidavit by a witness to the accident, in support of his claim that there are disputes as to material issues of fact. However, the small contradictions in the testimony fail to support his argument, and Bean fails to produce any credible evidence that Craig possessed a design, intent, or purpose to cause injury or to harm him, which must be shown in order to state a cause of action under § 25-5-11(c). By Bean's own admission, he cannot show any reason why Craig would have wanted to harm him; rather, he contends that Craig should have realized that an accident was likely to occur, because of the condition of the lift. He cites Craig's deposition, which states:
Despite the fact that Craig was aware of a risk in operating the lift, this evidence tends to prove only negligent, and not willful, conduct. The legislature, in recognizing the difference between negligent and willful actions, sought to ensure that cases of this type would not be submitted to a jury without some evidence showing either: (1) the reason why the co-employee would want to intentionally injure the plaintiff, or someone else, or (2) that a reasonable person in the position of the defendant would have known that a particular result was substantially certain to follow from his actions. Reed v. Brunson, 527 So. 2d 102 (Ala.1988). An employee may be liable for injuries sustained by a fellow employee only when such injury is caused by the offending employee's willful conduct. Reed, supra, at 119. Ala.Code 1975, § 25-5-11(c), states in pertinent part:
A plaintiff suing a co-employee must show facts tending to prove that the co-employee set out purposefully, intentionally, or by design to injure someone; a showing of mere negligence is not enough. Reed, supra. Evidence showing only a knowledge or an appreciation of a risk of injury will not entitle a plaintiff to a jury determination of whether the co-employee acted with a purpose, intent, or design to injure another. Turnbow v. Kustom Kreation Vans, 535 So. 2d 132, 134 (Ala.1988). A co-employee must either have actual knowledge that an injury will occur from his actions or have substantial certainty that injury will occur. Id.
In the present case, Bean did not produce substantial evidence that would entitle him to present his action against Craig to a jury. On motion for summary judgment, when the movant makes a prima facia showing that no genuine issue of material fact exists, the burden shifts to the non-movant to show "substantial evidence" in support of his position. The nonmovant's burden is now greater than in the past, because the scintilla rule has been abolished. See Rule 56(c), A.R.Civ.P.; § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). On appeal from a summary judgment, an appellate court looks at the same factors *1253 that the court below considered in ruling on the motion. Smith v. Citicorp Person-to-Person Fin. Centers, Inc., 477 So. 2d 308 (Ala.1985). Because we find insufficient evidence to support Bean's position that Craig was not his co-employee or that, if he was, he willfully caused Bean's injury, we affirm the trial court's summary judgment in favor of Craig.
In addition to Bean's appeal, Cebo also appeals, alleging that it was error for the trial court to find in its order that he was not a co-employee. He argues that this was a fact issue that should have been submitted to the jury, and he asks this Court to modify the trial court's order regarding this finding and to order the trial court to enter summary judgment in his favor.
When multiple parties are involved, a court may, by following a certain procedure, direct the entry of a final judgment as to fewer than all of the claims or parties. A.R.Civ.P., Rule 54(b). An appeal ordinarily will lie only from a final judgmenti.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved. Taylor v. Taylor, 398 So. 2d 267 (Ala.1981). A summary judgment operates as an adjudication on the merits of a claim. McMillon v. Hunter, 439 So. 2d 153, 154 (Ala.1983). In contrast, the denial of a motion for summary judgment is not a judgment, Food Service Distributors, Inc. v. Barber, 429 So. 2d 1025 (Ala.1983), and is therefore not appealable. Thus, Cebo's appeal is due to be dismissed. Nevertheless, we make the following observation about Cebo's contentions, because the judgment in favor of Craig is properly here on Bean's appeal and the order supporting that judgment contains the holding against Cebo on which the denial of his summary judgment motion was based.
Although the trial judge in this instance declared, in his order, that Cebo was not a co-employee of Bean's and, therefore, was not entitled to rely on the defenses of the workmen's compensation act, this purported finding should not be dispositive at trial. It is only where the facts are such that all reasonable people must draw the same conclusions from them that a question is considered one of law for the court; unless the evidence is free from doubt or adverse inference, the question is one for the jury. Turner v. Peoples Bank of Pell City, 378 So. 2d 706 (Ala.1979). A review of the record reveals several factors that indicate Cebo may not have been an employee of Craig's, Inc. For instance, Cebo had no set work hours and was not required to sign in; he had no specific duties and was usually paid in cash; and he was not listed as an employee for income tax reporting purposes. Nevertheless, Cebo contends that he worked at the store, was paid the minimum wage, and thought of himself as an employee. The function of the jury, which is authorized to draw all reasonable inferences from the evidence, is to resolve controverted factual inferences. George v. Nevett, 462 So. 2d 728 (Ala.1984). Because in this instance there is conflicting evidence from which more than one inference may be drawn, the issue of whether Cebo was a co-employee of Bean should be a question for the jury.
For the foregoing reasons, the judgment is affirmed.
88-623, AFFIRMED.
88-693, DISMISSED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Irene Bean filed an action for loss of consortium, which will not be addressed separately in this opinion, because it is derivative of her husband's cause of action. | January 26, 1990 |
124ddf75-bcfc-4e26-bb6b-a60ec6f34809 | Milltex Industries Corp. v. Jacquard Lace Co. | 557 So. 2d 1222 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1222 (1990)
MILLTEX INDUSTRIES CORPORATION
v.
JACQUARD LACE COMPANY, LTD.
88-1428.
Supreme Court of Alabama.
January 12, 1990.
James B. Schrimsher of Morring, Schrimsher & Riley, Huntsville, for appellant.
William W. Sanderson, Jr. and Joan-Marie Sullivan of Lanier, Ford, Shaver & Payne, Huntsville, for appellee.
JONES, Justice.
Milltex Industries Corporation ("Milltex") appeals from a summary judgment in favor of Jacquard Lace Company, Ltd. ("Jacquard"), on Jacquard's claim for monies owed on account and on Milltex's counterclaim for breach of contract. Because there were no triable issues of fact and *1223 Jacquard was entitled to a judgment as a matter of law, we affirm.
In late 1986, Jacquard, an Alabamabased textile manufacturer, initiated contact with Milltex, a New York-based converter company, via telephone, to solicit Milltex's business. After a representative of Jacquard and a representative of Milltex met in New York and in Alabama, the parties entered into an oral agreement whereby Jacquard agreed to produce for Milltex "griege goods" (an unfinished textile) with yarn supplied by Milltex.
Pursuant to this agreement, Jacquard produced and shipped to Milltex, F.O.B. Huntsville, 23,000 pounds of the goods. Although Milltex accepted the goods, it did not remit payment for them. After attempting, unsuccessfully, to collect from Milltex the $43,467.80 due for the goods shipped to and accepted by Milltex, Jacquard filed this action to collect the amount due on Milltex's account. Milltex filed a counterclaim against Jacquard alleging breach of contract, contending that, pursuant to the oral agreement, Jacquard had agreed to ship 40,000 pounds of the goods, and that, as a result of the breach of the alleged 40,000-pound contract, it had suffered $71,000 in damages. Jacquard filed a motion for summary judgment, and it was granted as to both Jacquard's claim and Milltex's counterclaim. Milltex appeals.
We first address Milltex's contention that it lacks sufficient contact with the State of Alabama for the trial court to have in personam jurisdiction over it. Milltex voluntarily contracted with Jacquard to accept and pay for conforming goods. It is reasonable to infer from the evidence of record that some of the negotiations took place in Alabama, some in New York, and some by telephone. Michael Selim, the president of Milltex, testified that he did initiate later phone conversations with Jacquard representatives that led to the parties' oral agreement.
Furthermore, the contract was performed in Alabama. Milltex purposely availed itself of the privilege of conducting business in this State and the very claims asserted in this action relate to the business transacted here. We hold, therefore, that Milltex does have sufficient contact with this state to give this state jurisdiction over it. That is to say, under the totality of these circumstances, it is fair and reasonable, and not a denial of due process, to require Milltex to come to this state to defend the action. See Rule 4.2(a)(2)(I), A.R.Civ.P.
In regard to Jacquard's claim for the $43,467.80 owed by Milltex on account, Code 1975, § 7-2-201(3), is controlling. That section, in pertinent part, provides:
"A contract which does not satisfy the requirements of subsection (1) [i.e., one that is not in writing] but which is valid in other respects is enforceable:
". . . .
In regard to this Code section, the Alabama Court of Civil Appeals, in Engel Mortgage Co. v. Triple K Lumber Co., 56 Ala.App. 337, 341, 321 So. 2d 679, 682 (1975), held:
See, also, Hilburn v. Fletcher Oil Co., 495 So. 2d 613 (Ala.1986). It is undisputed that the parties had an oral agreement and that Milltex received and accepted 23,000 pounds of "griege goods."
Milltex contests the amount charged for the goods accepted. It contends that the agreed-upon price was $4.15 per pound and that Jacquard, in violation of the oral agreement, increased the price to $4.50 per pound; thus, argues Milltex, a fact question is presented on this issue. This argument *1224 is untenable in light of the fact that the invoices clearly reflected the amount charged for each shipment that Milltex received and accepted and the fact that Milltex received and accepted them without written notice of objection to the increased price. See West Point-Pepperell, Inc. v. Bradshaw, 377 F. Supp. 154 (M.D.Ala.1974). See, also, Code 1975, § 7-2-209(4) and § 7-2-606(1). Furthermore, this holding is consistent with § 7-2-201(2), which prescribes that, as between merchants (as in this case), a confirmatory writing sent to a buyer satisfies the "writing" requirement of subsection (1), unless an objection in writing is given within 10 days,
We further hold that the judgment on Milltex's counterclaim was appropriate as a matter of law. Milltex argues that the parties entered into an agreement for 40,000 pounds of "griege goods"; however, Milltex has produced no writing evidencing such an agreement. Thus, the alleged contract violates the provisions of Code 1975, § 7-2-201(1), which, in pertinent part, provides:
Milltex contends that the 10-day notice provisions of Rule 56(c), A.R.Civ.P., were not complied with, and that the noncompliance prevented it from submitting evidence in opposition to the motion. The hearing on the merits of the case was set for February 22, 1988, and Milltex did not receive notice of the motion relating to its counterclaim until February 17, 1988. Milltex argues that, if it had received the requisite 10-day notice, it could have submitted testimony in opposition to Jacquard's motion.
Testimony regarding the alleged 40,000-pound contract would not have allowed Milltex to successfully counter the motion; only a writing evidencing the alleged agreement would have required the trial court to rule in favor of Milltex on the summary judgment motion. Milltex has not produced, nor does it allege that it can produce, such a writing.
Assuming, without deciding, that the trial court's failure to comply with the 10-day notice provision of Rule 56(c) was error, we hold that that error would have been without injury. Rule 45, A.R.App.P. This Court, in Kelly v. Harrison, 547 So. 2d 443 (Ala.1989), explained:
"... [T]o sustain the burden of demonstrating an abuse of discretion, the adverse parties [need] only to come forth with any showing that the denial of the full ten-day notice period worked to their prejudice."
547 So. 2d at 445.
Because there is no factual issue to be resolved, and because Milltex has made no showing that it has been prejudiced, we hold that the trial court's failure to strictly comply with the 10-day notice provision of Rule 56(c) is not reversible error.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | January 12, 1990 |
bdcb6ee7-563a-4bcf-96ad-66c2df00b0a2 | Ex Parte State | 566 So. 2d 758 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 758 (1990)
Ex parte STATE of Alabama.
(Re Sylvester JACKSON, Jr. v. STATE).
88-1421.
Supreme Court of Alabama.
January 19, 1990.
*759 Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for petitioner.
James E. Hart, Jr., Brewton, for respondent.
MADDOX, Justice.
Sylvester Jackson was convicted of attempted murder, promoting prison contraband, and assault (2 counts). The State gave Jackson notice that it planned to invoke the Habitual Felony Offender Act by proving three prior Choctaw County felony convictions; the trial court sentenced Jackson to life without parole on the attempted murder conviction and to life on each of the other convictions. The Court of Criminal Appeals affirmed his convictions but remanded for a new sentencing hearing because the prior convictions were not properly proved. Jackson v. State, 566 So. 2d 752 (Ala.Cr.App.1987), cert. denied, 566 So. 2d 757 (Ala. 1988). On remand, the State decided not to use the three Choctaw County convictions and instead gave Jackson notice that it planned to use five prior Washington County felony convictions.[1] On July 30, 1987, Jackson was again sentenced to life without parole on the attempted murder conviction and to life on each of the other convictions.
On return to remand, the Court of Criminal Appeals again remanded for a new sentencing hearing, because that court interpreted this Court's cases of Ex parte Glover, 508 So. 2d 218 (Ala.1987), and Ex parte Williams, 510 So. 2d 135 (Ala.1987), to mean that the State must use the same felony convictions at a second sentencing hearing as it did at the first one. We granted certiorari and now reverse the judgment of the Court of Criminal Appeals insofar as it holds that the State was limited to the same felony convictions that it had used at the first sentencing hearing, but a third sentencing hearing will be necessary because the trial court was without jurisdiction to impose a sentence at the second sentencing hearing.[2]
Because Jackson will have to be sentenced again, and because the question of what felony convictions the State may use to enhance punishment will recur at that resentencing, we address that question, because of statements in the opinion of the Court of Criminal Appeals that the State would be limited to proving the Choctaw County convictions.
*760 The State correctly points out that Glover and Williams stand for the proposition that the Habitual Felony Offender Act cannot be applied if the defendant was not given proper notice before the first sentencing hearing; but those cases have nothing to do with what convictions the State can or cannot attempt to use at a later sentencing hearing. Indeed, Hinton v. State, 473 So. 2d 1125 (Ala.1985), and Porter v. State, 505 So. 2d 1292 (Ala.Cr. App. 1986), both stand for the proposition that the State may use at a second sentencing hearing convictions other than those it used at the first hearing, provided that proper notice had been given both times, as it was here.
There is a clear conflict here between the opinion of the Court of Criminal Appeals and the prior opinions in Hinton and Porter, and we conclude that the Court of Criminal Appeals has misinterpreted Glover and Williams. Therefore, we reverse the judgment of the Court of Criminal Appeals insofar as it holds that the Washington County convictions, of which the defendant had proper notice, cannot be used in the next sentence hearing, and we remand this cause so that court may order a new sentencing hearing consistent with this opinion. Because the trial court was without jurisdiction to sentence the defendant at the second sentencing hearing, the State should again give the defendant notice of the convictions it intends to use at this third sentencing hearing, so that the defendant, the trial court, and any reviewing court may know just which convictions are going to be used under the provisions of the Habitual Felony Offender Act.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] In its application for rehearing before the Court of Criminal Appeals, the State, pursuant to the provisions of Rule 39(k), A.R.App.P., requested that court to include in its opinion additional facts:
"On page 48 of the remand transcript appears the District Attorney's written notice of his intent to use the Washington County convictions. The certificate of service indicates that the notice was served on Defendant's counsel. The notice lists the offenses and the circuit court numbers. On page seventeen of the return to remand transcript the trial court was made aware of the notice sent to counsel. Counsel did not dispute the fact that he received the notice but asserted the State was limited to proof of the Choctaw County convictions. (R. 17-19, 22-23) Based on the above, the State requests that this Court find pursuant to Rule 39(k) that counsel had notice of the Washington County convictions prior to resentencing."
[2] Both the State and Jackson concede that the trial court was without jurisdiction to enter its second sentence because Jackson's petition for certiorari was still pending at the time. Jackson was resentenced on July 30, 1987, one month after the Court of Criminal Appeals issued its opinion ordering the resentencing; however, Jackson had applied for rehearing before the Court of Criminal Appeals and then had petitioned this Court for a writ of certiorari, and that petition was pending until January 8, 1988. A judgment of the Court of Criminal Appeals is not final until that court issues its certificate of judgment, and an application for rehearing in that court and a petition in this Court for writ of certiorari stay the issuance of that certificate. Pratte v. State, 465 So. 2d 483 (Ala.Cr.App.1985); Rule 41, A.R.App.P. | January 19, 1990 |
437bebc0-d2a6-42f4-98aa-d000c9d58b1b | Ex Parte Beasley | 564 So. 2d 950 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 950 (1990)
Ex parte Karen BEASLEY.
Re In the Matter of Barrett Ryan BEASLEY.
Re Karen BEASLEY
v.
Byron E. BEASLEY.
88-1373.
Supreme Court of Alabama.
February 2, 1990.
E.L. Brobston, Bessemer, for petitioner.
Elizabeth Potter Graham of Legal Aid Soc. of Birmingham, Inc., Guardian ad litem.
PER CURIAM.
We granted certiorari in this case to determine whether the Court of Civil Appeals erred in holding that the 1984 Child Protection Act, Ala.Code 1975, §§ 26-18-1 to 26-18-10, requires a juvenile court to make a "finding of dependency" before parental rights can be terminated. The trial court determined that a finding of dependency was not required; the Court of Civil Appeals, citing Ex parte Brooks, 513 So. 2d 614 (Ala.1987), reversed. Because we hold *951 that, when one parent seeks to terminate the other parent's parental rights, a "finding of dependency," as a matter of law, is not required, we reverse the judgment of the Court of Civil Appeals,[1] and remand the cause with instructions.
In 1981, Karen Walker married Byron Beasley. Byron was initially employed in a steel plant located in Bessemer, Alabama, where Karen and Byron purchased a home. After Karen became pregnant, Byron quit his job at the steel plant and got a job transporting musical groups touring the country. When Karen gave birth to their son, Barrett Ryan Beasley, Byron was given a two-week leave of absence from his job so that he could spend time with Karen and the son. Despite the two-week leave given to him, Byron chose to return to his job transporting a musical group in California and thus left three days after his son's birth.
Upon leaving the hospital, Karen and the baby returned to their Bessemer home. Three months later, Karen and her infant were forced to vacate the house, because Byron had failed to mail Karen the required mortgage payments. The default in payments ultimately resulted in foreclosure.
Having no other place to live, Karen and her son moved in with her parents. Three months later, Karen divorced Byron. Because Byron was unemployed at the time of the divorce, Karen agreed not to seek child support payments from him. Byron was granted reasonable visitation with his son.
Next, Karen and her infant son moved to Texas, where they lived for two years. While Karen was living in Texas, Byron occasionally visited her, requesting to see his son. Occasionally, Byron made child support payments to Karen. In the meantime, Byron remarried. Following an argument between Karen and Byron, Byron did not again visit with his son for two years.
During that two-year absence by Byron, Karen and her son again moved back to Alabama in order to again live with her parents. Later, Byron and his second wife contacted Karen in order to reschedule visits with his son. During that period, Byron visited with his son during the weekends for five months.
After Karen requested that Byron permit her to change their son's last name to Walker, Karen's maiden name, she did not hear from Byron again until she was notified that he had filed a motion to modify the divorce judgment, seeking "set" visitation periods with his son. In response to Byron's motion, Karen filed a motion to terminate Byron's right of visitation granted in the divorce decree. After a hearing, at which Byron did not appear, the trial court held that Byron's sporadic visits had confused his son rather than created a meaningful parent/child relationship; therefore, the trial court terminated Byron's right of visitation.
Claiming that Byron had "abandoned" his son by withholding his presence, care, love, protection, maintenance, and display of filial affection from him, Karen filed a petition to terminate Byron's parental rights.
Following service of process by publication, the Family Court of Jefferson County held a hearing. Although Byron did not appear at that hearing, a guardian ad litem appeared to represent the child. The court heard conflicting testimony from Karen, Karen's father, and Byron's mother concerning Byron's fitness as a parent to his son. At the conclusion of that hearing, the court granted the mother's petition on the ground that there was evidence that Byron had "abandoned" his son, as that word is defined in Ala.Code 1975, § 26-18-3(1), and that his abandonment constituted sufficient grounds to terminate Byron's parental rights pursuant to Ala.Code 1975, § 26-18-7(a)(1). The court also stated that such a termination of parental rights would be in the "child's best interest." In its order, the court stated that under its interpretation of the 1984 Child Protection Act a "finding of dependency [was] not a requisite to granting a petition for termination of parental rights."
*952 The guardian ad litem, on behalf of the child, appealed to the Court of Civil Appeals, which reversed, holding that it "[could not] find that the 1984 Child Protection Act negates the necessity for the requisite finding of the child's dependency in any termination of parental rights regardless of whether the petition is brought by a parent or non-parent."
The purpose of the 1984 Child Protection Act is set out in § 26-18-2, which states:
As stated by that section, the primary focus of a court in cases involving the termination of parental rights is to protect the welfare of children and at the same time to protect the rights of their parents. Inasmuch as the termination of parental rights strikes at the very heart of the family unit, a court should terminate parental rights only in the most egregious of circumstances. Moreover, the age-old principle that, as against a challenge by a nonparent, a parent who is neither unfit nor guilty of forfeiting his or her parental rights is entitled to custody has been strengthened rather than weakened by the 1984 adoption of the Uniform Child Protection Act. See Ex parte Johnson, 474 So. 2d 715 (Ala.1985).
Mindful of the serious nature of terminating parental rights, this Court and the Court of Civil Appeals have stated that before a court can terminate an individual's parental rights it must apply a two-prong test. First, the court must make a "finding of dependency." Second, after it has determined that the child is "dependent," the court must inquire as to whether "all viable alternatives to termination have been considered." See Ex parte Brooks, 513 So. 2d 614 (Ala.1987); Muffoletto v. Department of Human Resources, 537 So. 2d 939 (Ala.Civ.App.1988); Wilson v. State Dep't of Human Resources, 527 So. 2d 1322 (Ala.Civ.App.1988); Buchanan v. Department of Human Resources, 520 So. 2d 539 (Ala.Civ.App.1988).
We begin our review by noting that nowhere in the Uniform Child Protection Act, Ala.Code 1975, §§ 26-18-1 to 26-18-10, does the Act require a "finding of dependency" by a court before it can order the termination of parental rights to a child. The grounds upon which a court can order the termination of parental rights are set forth in § 26-18-7, which reads as follows:
The Legislature, therefore, has established specifically the grounds upon which a court must base any order to terminate parental rights.
The Court of Civil Appeals, in the cases that set forth the two-prong test, drew its conclusions not from the Uniform Child Protection Act, but from § 12-15-1 et seq. ("the Juvenile Act") and Rule 25, A.R. Juv.P. The Juvenile Act and Rule 25, implicitly, though necessarily, speak in the context of the State's (or a nonparent's) petitioning for a termination of parental rights. These holdings are not incorrect in light of the context in which they were decided. The only case that may be interpreted as having enlarged the "finding of dependency" rule to permit a custodial parent to petition for such a finding is Brooks, which presented a peculiar set of facts upon which that holding was rendered. Section 12-15-65(e) and Rule 25 require a showing of dependency; however, that statute and that rule preceded the adoption of the Uniform Child Protection Act, which sets out the factors to be considered in terminating parental rights. Indeed, the statutory burden of proof will, in fact, not be met in many cases without a showing of dependency, whether the petitioner is a parent or a nonparent.
We recognize that Brooks contains language susceptible to two meanings. However, the language in Brooks stating that "the court must determine from clear and convincing evidence that the child is dependent" referred to determining the child's best interest when both parents had consented to terminate the father's parental rights. It is noteworthy that two of the three cases cited in Brooks[2] were decided in the context of a mother's contest of the State's petition to terminate the mother's parental rights, after the mother had consented to the adoption of her child. The *954 third case[3] was decided in the context of a mother's contest of the State's petition to terminate her parental rights because of her unfitness as a parent and her cruelty to the child. Certainly, in the contexts of those three cases, the requirement of a determination of the child's dependency was necessary to protect the parent against unwarranted intrusions by the State.
Except for Brooks, which was decided in a novel and peculiar factual context, we find no authority for the proposition that where one parent seeks to terminate the other's parental rights the petitioning parent must show that the child is "dependent," as that term is statutorily defined. To so hold would, under many conceivable circumstances, require proof that the child was being improperly cared for by the petitioner. Such a requirement, in a given case, may destroy a custodial parent's standing to bring an otherwise meritorious claim to terminate the noncustodial parent's parental rights. To the extent that certain language in Brooks may be interpreted to require a determination of the child's dependency in the case of one parent's seeking to terminate the parental rights of the other parent, that language is overruled; and we hold, in the context of this case, as did the trial court, that the petitioning mother need not prove that her child is a dependent as a requisite element of her proof that the father's parental rights should be terminated.
Stated otherwise, a distinction must be drawn between the State's seeking to terminate parental rights and a parent's seeking to terminate the other parent's parental rights. Where the State seeks to terminate parental rights, the "finding of dependency" necessarily applies to the State to protect against an unwarranted intrusion into parental rights and to comply with the requirements of due process. Parental rights are indeed cherished and deserve the law's utmost protection against unwarranted interference.
In viewing the "dependency" issue in the context of the State's attempt to terminate parental rights, the State would have standing only where both parents are found to be unfit or otherwise unable to discharge the responsibilities of parenthood. Therefore, a finding of "dependency" would be warranted, and the State would have a duty to act in accordance with that child's best interest.
Conversely, when one parent seeks to terminate the other parent's parental rights, a "finding of dependency" is not required. As stated above, if a "finding of dependency" were a requisite element of proof, the following illogical result could arise: The petitioning parent, who is adequately caring for the child, would have to prove that he or she is not providing adequate care for the child and, therefore, could then be estopped from bringing such an action. We hold, therefore, that, when one parent seeks to terminate the other parent's parental rights, a "finding of dependency" is not required, and the trial court should determine whether the petitioner has met the statutory burden of proof and whether that termination is in the child's best interest, in light of the surrounding circumstances.
The two-prong test that a court must apply in a parental rights termination case brought by a custodial parent consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered. (As earlier discussed, if a nonparent, including the State, is the petitioner, then such a petitioner must meet the further threshold proof of dependency.)
Once the court has complied with this two-prong testthat is, once it has determined *955 that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights is in the best interest of the childit can order the termination of parental rights. Such a construction of the Uniform 1984 Child Protection Act clearly comports with the stated purpose for the Act.
In so holding, however, we are not to be understood as expressing any opinion on the merits of the mother's proof in this case with respect to her right to have the father's parental rights terminated. The merits of the mother's petition must be tested against the public policy that requires clear and convincing evidence "that termination of [a father's] parental rights [was] the appropriate remedy." Brooks, 513 So. 2d at 617.
We note that the Court of Civil Appeals did not address in its opinion whether the second prong of the two-prong test was met. In fact, that Court specifically said that "other issues raised by the guardian ad litem are pretermitted."
Our examination of the record indicates that the child, represented by a guardian ad litem, was the appellant in the proceeding before the Court of Civil Appeals, and the record indicates that the guardian ad litem raised, among other issues, the issue of whether other alternatives, less drastic than termination of parental rights, were available to protect the best interests of the child.
Because the Court of Civil Appeals did not address this issue, we remand the cause to the Court of Civil Appeals for further proceedings consistent with this opinion and specifically for a consideration of the issues raised by the guardian ad litem.
Based on the foregoing, the judgment of the Court of Civil Appeals is reversed, and the cause is remanded to that Court for proceedings consistent with this opinion.
REVERSED AND REMANDED, WITH DIRECTIONS.
HORNSBY, C.J., and JONES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
MADDOX, ALMON, SHORES and HOUSTON, JJ., concur in the result.
MADDOX, Justice (concurring in the result).
I concur in the result reached, but I disagree with that portion of the opinion that states that there must be a "finding of dependency" when the State or a non-parent[4] is the petitioner. The Uniform Child Protection Act of 1984 makes no such requirement, and the cases of this Court and the Court of Civil Appeals that construe the Child Protection Act to make such a requirement are clearly wrong and should be overruled.[5]
Admittedly, before the adoption of the Uniform Child Protection Act, the State was required, under the provisions of the Alabama Juvenile Proceedings Statute, Ala.Code 1975, §§ 12-15-1 through XX-XX-XXX (the substantive statute that governed in child custody and termination of parental rights proceedings), to prove that a child was "dependent" before the State could obtain permanent custody and a termination of parental rights. The procedure used prior to the adoption of the Uniform Child Protection Act is set out in Miller v. Alabama Dep't of Pensions & Security, 374 So. 2d 1370 (Ala.Civ.App.1979):
Under that procedure, admittedly the State, or anyone else petitioning for permanent custody of a child, had to prove that the child was, in fact, "dependent."[6]
The Uniform Child Protection Act of 1984, in my opinion, changed that procedure. It is a comprehensive act that now provides for the procedure and the substantive grounds that must be proved in a termination of parental rights case, such as: (1) the person or entities who may file a petition (Ala.Code 1975, § 26-18-5), (2) the procedure to be used for consideration of such petitions, and (3) the grounds that must be alleged and proved.
The procedure for the termination of parental rights is set out in Ala.Code 1975, § 26-18-4, which provides that "[u]nless otherwise provided herein, proceedings to terminate parental rights shall be governed by Title 12, chapter 15, article 3 and by the Alabama Rules of Juvenile Procedure." That statute provides for the procedure to be used in such cases, and the heading of *957 that statute in the Code clearly shows that. That statute does not, however, as the majority contends, make a "finding of dependency" a requirement in cases filed by the State or a nonparent. The majority finds this requirement outside the statute and engrafts it onto the statute.
The parties in a termination of parental rights case are determined in accordance with the provisions of Ala.Code 1975, § 26-18-5, which provides for the class of persons and entities authorized to file a petition. It provides that "[a] petition may be filed by a public or private licensed child-placing agency or parent, with permission of the court, or any interested party." That section makes no distinction, as the majority does, between a parent, the State, or a non-parent. Again, the majority engrafts that distinction onto the statute.
The grounds that must be proved are set out in Ala.Code 1975, § 26-18-7, which provides:
The majority correctly states that "nowhere in the 1984 Child Protection Act, Ala.Code 1975, §§ 26-18-1 to 26-18-10, does the Act require a `finding of dependency' by a court before it can order the termination of parental rights to a child," but then says that when the State is the petitioning party, that "a finding of `dependency' would be warranted." The majority simply engrafts a requirement which is not contained in the Act.
It is obvious that in most cases, if not in all cases, involving the termination of parental rights, a child will be "dependent" in the broad definition of that term, or as that term is defined in Ala.Code 1975, § 12-15-1(10), but the Child Protection Act does not make a distinction in the measure of proof based on who the petitioning party is. Subsection (b) of Ala.Code 1975, § 26-18-7, does require additional proof "where the child is not in the physical custody of its parent or parents." While the proof of the statutory grounds would necessarily show in most, if not in all, cases, that the child was, in fact, "dependent," that is not a necessary allegation, nor must dependency be proved.
The statute does provide that the court is not limited to the grounds set out in the Uniform Child Protection Act, but to make a "finding of dependency" a necessary requirement, in my judgment, rewrites the statute to require a burden of proof that admittedly is not included within the statute. If a petitioner, authorized to file a petition under § 26-18-5, proves the grounds required to be proved under § 26-18-7, I believe that is all that is or should be required.
Because this case does not involve a factual situation in which the State or a nonparent is the petitioner, all that is stated in the majority opinion regarding the burden of proof is dictum, but because dictum sometimes has a habit of growing full-blown into precedent, I felt compelled to express my views on the matter, in the hope that the rule of law will be corrected before it becomes entrenched.[7]
*959 I concur completely in the result reached, and naturally concur that Ex parte Brooks, 513 So. 2d 614 (Ala.1987), must be modified. I write specially only for the purpose of expressing my disagreement with the dictum in the opinion of the majority that makes a "finding of dependency" necessary in cases in which the State or a nonparent is the petitioner. I believe the Uniform Child Protection Act of 1984 provides not only who can be a petitioner, but the procedures to be used and the grounds that must be alleged and proved. To require more, in my judgment, is wrong.
[1] In re Beasley, 564 So. 2d 948 (Ala.Civ.App. 1989).
[2] In the Matter of Colbert, 474 So. 2d 1143 (Ala. 1985) (cited in Brooks as Clemons v. Alabama Department of Pensions & Security); and In re Brand, 479 So. 2d 66 (Ala.Civ.App.1985).
[3] Fortenberry v. Alabama Department of Pensions & Security, 479 So. 2d 54 (Ala.Civ.App. 1985).
[4] While the majority's opinion talks of the requirement of a "finding of dependency" when the State is the petitioner, the language used implies that any other nonparent petitioner (such as a guardian ad litem or a grandparent) would have the same burden.
[5] Ex parte Brooks, 513 So. 2d 614 (Ala.1987); Muffoletto v. Department of Human Resources, 537 So. 2d 939 (Ala.Civ.App.1988); Wilson v. State Department of Human Resources, 527 So. 2d 1322 (Ala.Civ.App.1988); Buchanan v. Department of Human Resources, 520 So. 2d 539 (Ala.Civ.App.1988).
[6] "Dependent child" is defined in Ala.Code 1975, § 12-15-1(10), which reads as follows:
"(10) DEPENDENT CHILD. A child:
"a. Who, for any reason is destitute, homeless or dependent on the public for support; or
"b. Who is without a parent or guardian able to provide for his support, training or education; or
"c. Whose custody is the subject of controversy; or
"d. Whose home, by reason of neglect, cruelty or depravity on the part of his parent, parents, guardian or other person in whose care he may be, is an unfit and improper place for him; or
"e. Whose parent, parents, guardian or other custodian neglects or refuses, when able to do so or when such service is offered without charge, to provide or allow medical, surgical or other care necessary for such child's health or well-being; or
"f. Who is in such condition or surroundings or is under such improper or insufficient guardianship or control as to endanger his morals, health or general welfare; or
"g. Who has no proper parental care of guardianship; or
"h. Whose parent, parents, guardian or custodian fail, refuse or neglect to send such child to school in accordance with the terms of the compulsory school attendance laws of this state; or
"i. Who has been abandoned by his parents, guardian or other custodian; or
"j. Who is physically, mentally or emotionally abused by his parents, guardian or other custodian or who is without proper parental care and control necessary for his well-being because of the faults or habits of his parents, guardian or other custodian or their neglect or refusal, when able to do so, to provide them; or
"k. Whose parents, guardian or other custodian are unable to discharge their responsibilities to and for the child; or
"l. Who has been placed for care or adoption in violation of the law; or
"m. Who for any other cause is in need of the care and protection of the state; and
"n. In any of the foregoing, is in need of care or supervision."
[7] Mr. Justice Jones, writing for the majority in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So. 2d 631 (1975), overruled a case that was only five years old and, in doing so, chided courts for failure to examine prior cases, and said the following:
"We do not overrule old case law lightly or flippantly. But, where precedent can no longer be supported by reason and justice, we perceive it our duty to reexamine, and if need be, overrule court made law.
"The quaint poetic lines of Sam Walter Foss put in perspective the philosophy of those courts which feel compelled to sacrifice their sense of reason and justice upon the altar of the Golden Calf of precedent.
"One day through the primeval wood
"A calf walked home, as good calves should;
"But left a trail all bent askew,
"A crooked trail, as all calves do.
"Since then, three hundred years have fled,
"And, I infer, the calf is dead.
"But still he left behind this trail,
"And thereby hangs my moral tale.
"The trail was taken up the next day
"By a lone dog that passed that way;
"And then a wise bell-wether sheep
"Pursued the trail o'er vale and steep,
"And drew the flock behind him, too,
"As good bell-wethers always do.
"So from that day, o'er hill and glade,
"Through those old woods a path was made,
"And many men wound in and out,
"And bent and turned and dodged about,
"And uttered words of righteous wrath,
"Because `twas such a crooked path;
"But still they followeddo not laugh
"The first migrations of that calf,
"And through this winding woodway stalked
"Because he wabbled when he walked.
"This forest path became a lane,
"That bent and turned and turned again;
"This crooked lane became a road,
"Where many a poor horse, with his load,
"Toiled on, beneath the burning sun,
"And traveled some three miles in one.
"And thus a century and a half
"They trod the footsteps of that calf.
"The years passed on with swiftness fleet,
"The road became a village street,
"And this, before men were aware,
"A city's crowded thoroughfare.
"And soon the central street was this
"Of a renowned metropolis.
"And men two centuries and a half
"Trod the footsteps of that calf.
"Each day a hundred thousand rout
"Followed the zigzag calf about;
"And o'er his crooked journey went
"The traffic of a continent.
"A hundred thousand men were led
"By one calf near three centuries dead.
"They followed still his crooked way,
"And lost one hundred years a day;
"For thus such reverence is lent
"To well-established precedent.
"A moral lesson this might teach,
"Were I ordained and called to preach.
"For men are prone to go it blind
"Along the calf-paths of the mind,
"And toil away from sun to sun
"To do what other men have done.
"They follow in the beaten track,
"And out and in, and forth and back,
"And still their devious course pursue
"To keep the path that others do.
"But how the wise old wood-gods laugh,
"Who saw the first primeval calf!
"Ah! many things this tale might teach;
"But I am not ordained to preach." | February 2, 1990 |
822ca2ce-8438-4659-bef9-5efc92f73540 | Ex Parte Patterson | 561 So. 2d 236 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 236 (1990)
Ex parte Calvin PATTERSON.
(Re Calvin PATTERSON
v.
OPELIKA FOUNDRY COMPANY, INC.).
88-1619.
Supreme Court of Alabama.
January 12, 1990.
*237 James B. Sprayberry, Auburn, for petitioner.
N.T. Braswell III of Rushton, Stakely, Johnston and Garrett, Montgomery, for respondent.
HOUSTON, Justice.
Calvin Patterson sustained personal injuries while employed by Opelika Foundry Company, Inc. ("the Foundry"). He subsequently filed a complaint in Lee County Circuit Court, seeking compensation under the Workmen's Compensation Act, Ala. Code 1975, § 25-5-1 et seq. After hearing ore tenus evidence, the trial court found that Patterson's injuries were not caused by an accident that arose out of his employment and entered a judgment denying his claim. Patterson appealed to the Court of Civil Appeals, which affirmed the judgment. See Patterson v. Opelika Foundry Co., 561 So. 2d 234 (Ala.Civ.App.1989). We granted Patterson's petition for a writ of certiorari, pursuant to Rule 39, A.R.App.P. We reverse and remand.
The record reveals that at the time he sustained his injuries, Patterson was 47 years old and had been employed by the Foundry for approximately 11 years. He appeared to be in good physical condition and had an excellent job attendance record, having missed only one week during his term of employment at the Foundry; that was due to the "flu." Patterson's job primarily involved pushing a button that controlled an overhead conveyor belt that transported pieces of iron, each weighing between 150 and 200 pounds, to a container where they were melted. Patterson, wearing a hard hat, was standing beneath a steel grill platform doing his job when he was knocked unconscious, suffering head, hand, and back injuries. Patterson testified that he did not know what happened to him. He stated that he remembered being on the job and later waking up in the hospital. Patterson also testified that there were only two people close to him at the time he was injured and that both of them were fellow employees who were performing their respective duties. He further testified that at the time he was injured, he was not under the influence of alcohol or drugs. There were no eyewitnesses to the incident.
The trial court's judgment reads, in pertinent part, as follows:
Our review in workmen's compensation cases is limited to a determination of whether there was any legal evidence to support the trial court's findings of fact. If any reasonable view of the evidence supports the findings of the trial court, this Court may then determine whether the correct legal conclusions have been drawn therefrom. Ex parte Neal, 423 So. 2d 850 (Ala.1982).
For Patterson's injuries to be compensable, they had to be "caused by an accident arising out of and in the course of his employment." Ala.Code 1975, § 25-5-51. As the Court of Civil Appeals acknowledged in its opinion, and as reflected in the trial court's findings, it is undisputed that Patterson's injuries occurred in the course of his employment. For a good definition of the phrase "in the course of," see Massey v. United States Steel Corp., 264 Ala. 227, 86 So. 2d 375 (1955). The sole issue is whether Patterson's injuries were caused by an accident that arose out of his employment.
"Accident" is defined in Ala.Code 1975, § 25-5-1(8), as follows:
The phrase "arising out of ... employment" refers to the employment as being the source and cause of the accident. This Court has held that the rational mind must be able to causally connect the resulting injury to the employment. Massey v. United States Steel Corp., supra. The claimant bears the burden of proving that his injury arose out of his employment. Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So. 2d 159 (1957).
The Foundry contends that Patterson failed to prove that his injuries were caused by an accident that arose out of his employment and, therefore, that the trial court's judgment should be affirmed. As part of this contention, it argues that Patterson failed to show that he had not been assaulted for personal reasons either by a fellow employee or by someone not affiliated with the Foundry; therefore, it argues, compensation would be precluded under Ala.Code 1975, § 25-5-1(9).[1] The Foundry also maintains that Patterson's injuries are not compensable because they could have been the result of an accident that was caused by idiopathic factors.[2]
Conceding that he did not prove what instrumentality in the workplace actually *239 caused his injuries, Patterson maintains, nonetheless, that he proved that his injuries were the result of an accident that arose out of his employment and that the trial court's judgment denying his claim is, therefore, due to be reversed. We agree.
The trial court found, in essence, that the rational mind could not causally connect Patterson's injuries to his employment. The court stated in its judgment: "In short, the only evidence before the Court is that Plaintiff was injured. In no way is it shown to be related to his employment." The record shows, as the trial court found, that Patterson suffered a broken jaw, the loss of part of a finger, and back injuries while performing the duties of his employment, and we note that these injuries are the kind that normally occur suddenly and traumatically. However, the evidence shows more. Patterson testified that there were only two people close to him at the time he was injured and that both of them were fellow employees who were performing their respective duties. No evidence was presented by the Foundry tending to show that Patterson had been the victim of an assault. Likewise, Patterson testified that prior to suffering his injuries he was in good physical shape and that he had been absent from work only one week, due to a minor illness, during his 11 years of employment at the Foundry. This evidence was sufficient to show, at least prima facie, that there was no basis upon which to reasonably infer that idiopathic factors played a role in the accident, and, again, the Foundry presented no evidence to the contrary. It appears to us that the only reasonable view of the evidence requires a finding that Patterson's injuries were the result of an accident that was causally connected to his employment, notwithstanding the fact that the circumstances surrounding the accident itself remain largely unexplained. For a recent discussion of the element of medical causation in a workmen's compensation context, see Ex parte Price, 555 So. 2d 1060 (Ala.1989).
For the foregoing reasons, we hold that the trial court's judgment is not supported by the evidence and, therefore, cannot be upheld. Accordingly, the judgment of the Court of Civil Appeals is hereby reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
[1] Section 25-5-1(9) reads, in pertinent part, as follows:
"INJURIES BY AN ACCIDENT ARISING OUT OF AND IN THE COURSE OF HIS EMPLOYMENT. Without otherwise affecting either the meaning or interpretation of such clause, such clause ... shall not include any injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him and not directed against him as an employee or because of his employment...."
[2] We use the word "idiopathic" as it is used by Professor Larson, to mean "peculiar to the individual" and not "arising from an unknown cause." Idiopathic refers to an employee's preexisting physical weakness or disease. 1 Larson, Workmen's Compensation Law, § 12.00. | January 12, 1990 |
e8f2e739-f9bc-4030-8e58-4c0a59a0d653 | Brooks v. City of Dothan Police Dept. | 562 So. 2d 162 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 162 (1990)
Calvin Bernard BROOKS
v.
CITY OF DOTHAN POLICE DEPARTMENT.
88-1475.
Supreme Court of Alabama.
January 26, 1990.
Rehearing Denied March 23, 1990.
Calvin Bernard Brooks, pro se.
*163 Larry K. Anderson, City Atty., and F. Lenton White II, Asst. City Atty., Dothan, for appellee.
MADDOX, Justice.
Calvin Bernard Brooks brought suit against the City of Dothan and one of its police officers, Gary Coleman, alleging that he was unlawfully arrested and falsely imprisoned. The trial court granted the defendants' motion for summary judgment and this appeal ensued.[1]
Brooks was arrested on March 17, 1988, pursuant to a warrant issued by the Department of Corrections on January 25, 1988. Brooks, who at the time was enrolled in the Houston County Supervised Intensive Restitution Program, was charged with second degree escape for his failure to report to his supervisor. He contends that the warrant on which he was arrested on March 17 was invalid because, he says, he had been previously arrested and released for second degree escape based upon the same set of facts.
Summary judgment is proper only when the pleadings and affidavits submitted by the movant show 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(c), Ala.R.Civ.P., Bon Secour Fisheries, Inc. v. Barrentine, 408 So. 2d 490 (Ala.1981).[2]
In support of its motion for summary judgment, the defendant city submitted several affidavits, a copy of a teletype sent to the Dothan Police Department, and a copy of the warrant in question. James Browder, Brooks's Supervised Intensive Restitution supervisor, averred that he swore out the warrant in question and that he was notified on March 17, 1988, that the Dothan Police had apprehended Brooks. Officer Brian Brackin of the Dothan Police Department averred that he arrested Brooks on March 17 in response to a teletype from the Department of Corrections. Officer Gary Coleman averred that he was not involved in Brooks's arrest in any way. The teletype requesting the arrest of Brooks was dated March 17 and does specifically refer to the warrant in question.
In determining when an arrest is valid, a police officer's subjective intent is immaterial; the only requisite is that the police officer, at the time the arrest is made, have probable cause to believe that a felony has been committed and that the defendant committed it. Carruth v. Barker, 454 So. 2d 539 (Ala.1984).
454 So. 2d at 540.
In this case, Officer Brackin arrested Brooks based upon a teletype from the Department of Corrections, which stated that Brooks was wanted for second degree escape. The affidavit shows that Brackin had probable cause based upon this information to arrest Brooks; therefore, for the purposes of this case the arrest was valid. Because it appears that Brooks has based the City's alleged liability upon the alleged acts of Officer Brackin, summary judgment was properly entered in favor of the City.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] The trial court's summary judgment in favor of Officer Coleman is not an issue in this appeal.
[2] This suit was filed on September 8, 1988; therefore, the "substantial evidence rule" applies. See Ala.Code 1975, § 12-21-12. | January 26, 1990 |
0b3c7cac-e059-46fe-923b-0252e2cf0daa | Craig v. Borcicky | 557 So. 2d 1253 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1253 (1990)
Bernice Burnett CRAIG
v.
David J. BORCICKY.
88-475.
Supreme Court of Alabama.
January 26, 1990.
*1254 Ellsworth P. Scales III, Mobile, for appellant.
R. Alan Alexander and Thomas H. Nolan, Jr. of Brown, Hudgens, Richardson, Mobile, for appellee.
Roscoe Roberts, Jr., Huntsville, for amicus curiae.
ALMON, Justice.
Bernice Burnett Craig appeals from a summary judgment entered in favor of Dr. David Borcicky, a licensed doctor of podiatric medicine, in a malpractice action. Craig first went to Borcicky complaining of foot problems on September 13, 1985. Borcicky treated Craig for an ingrown toenail and for a callus on the bottom of her foot. This treatment continued for approximately 11 months; then Borcicky suggested surgery to remove Craig's ingrown toenail, the callus, and a bump. Borcicky performed surgery on Craig in his office on August 14, 1986. Following the surgery, Craig returned to Dr. Borcicky's office several times complaining of swelling and pain. Subsequently, she developed an infection, was hospitalized, and was treated by an orthopedic surgeon, Dr. Zarzour. Craig *1255 claims that as a result of the surgery performed by Dr. Borcicky, she has trouble walking and has had to give up her job.
On August 14, 1987, Craig filed an action against Borcicky, alleging that he negligently performed surgery on her feet and that she was not properly informed about the surgical procedures and thus did not give an informed consent to the surgery. Borcicky filed a motion for summary judgment, and the trial court entered summary judgment for Borcicky on July 1, 1988. According to the case action summary sheet, on July 6, 1988, Craig filed a motion to set aside the summary judgment or "in the alternative to extend time to produce an affidavit stating that the services of the designated orthopedic surgeon had been retained." In support of that motion, Craig filed an affidavit of Dr. Zarzour in which he stated that he was prepared to testify regarding the treatment of her feet. On August 19, 1988, the motion to set aside the summary judgment was granted. The case action summary sheet states, "[T]he court further rules that Dr. Zarzour is not an expert." Borcicky renewed his motion for summary judgment on September 19, 1988. Craig filed a deposition of Dr. Zarzour on November 4. The trial court again entered summary judgment in Borcicky's favor on November 30, 1988.
Craig presents two issues on appeal. First, she claims that the trial court erred in not accepting Dr. Zarzour's deposition as expert testimony on her claim against Borcicky. Second, Craig argues that her claim of failure to obtain informed consent presents a question of fact for the jury, thereby precluding summary judgment.
Generally, the question of whether a witness is qualified to give expert testimony is a question left to the discretion of the trial court and the court's ruling will not be disturbed unless it is found that the trial court abused its discretion. Bell v. Hart, 516 So. 2d 562 (Ala.1987). The general rule is that a physician of one school of medicine is incompetent to testify in a malpractice case against a physician of another school of medicine. Wozny v. Godsil, 474 So. 2d 1078 (Ala.1985); 61 Am. Jur.2d Physicians and Surgeons, § 353, p. 516 (1981). Craig contends that Dr. Zarzour is qualified to evaluate medical problems related to the foot and to treat foot problems because of his orthopedic training. Her argument is based on the fact that podiatrists are not subject to Alabama's Medical Liability Act. Ala.Code 1975, § 6-5-482. Sellers v. Picou, 474 So. 2d 667 (Ala.1985). She contends that a podiatrist should be judged by a negligence standard in an action for personal injury rather than by the standard of care defined in the Medical Liability Act at § 6-5-484. She asserts that, because podiatrists are under the shorter personal injury statute of limitations, they should be subject to the personal injury "reasonable person" standard of care as well.
Expert testimony is necessary to show whether Borcicky was negligent in performing the surgery on Craig. "The need for expert testimony does not necessarily depend upon the type of profession which the defendant practices." Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156, 161 (Ala.1984). Instead, it is dependent upon whether the average person is able to decide, without expert testimony, whether the procedure followed falls below the acceptable standard of care. Id.
The "reasonable person" standard takes into consideration the circumstances of the defendant's actions. Cox v. Miller, 361 So. 2d 1044 (Ala.1978); Standifer v. Pate, 291 Ala. 434, 282 So. 2d 261 (1973). It must be presumed that Craig presented herself to Borcicky with the expectation that he would exercise the ordinary skill and care of a competent podiatrist. Podiatry is a specialized skill or profession acquired only through training in schools devoted thereto. See Ala.Code 1975, § 34-24-255. The licensing and practice of podiatry is regulated by Code §§ 34-24-230 through -276, and the unlicensed practice of podiatry is a misdemeanor, § 34-24-270. Therefore, even if we apply a "reasonable person" negligence standard to the practice of podiatry, it must be a "reasonable podiatrist" standard.
*1256 While an orthopedic surgeon is presumably familiar with the care and treatment of the human skeletal structure, his training is different from that of a podiatrist. Testimony as to negligence is generally limited to witnesses who are competent practitioners of a defendant's own school, who alone can testify as to the teachings of that school and as to the defendant's conformity to the practices of that school. Whitehurst v. Boehm, 41 N.C.App. 670, 255 S.E.2d 761, 765 (1979); Annot., 85 A.L. R.2d 1022 (1962); Am.Jur.2d Physicians and Surgeons, § 205, p. 340.
This Court addressed an analogous issue in Wozny v. Godsil, 474 So. 2d 1078 (Ala. 1985). Wozny analyzed the question whether an osteopath was competent to give expert testimony with respect to the standard of care required of a medical doctor. This Court recognized, as an exception to the general rule, that a witness not of the defendant's school may be competent to testify where he is knowledgeable of the methods and standards of practice exercised by practitioners of the defendant's school, particularly in regard to principles of diagnosis or the existence of a condition that should be recognized by any physician or that are common to the defendant's and the witness's schools.
Dr. Borcicky cites several cases from other jurisdictions to support his argument against admitting the testimony. For instance, in Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (App.1984), a case similar to the present case, a podiatrist was sued for malpractice. The Court of Appeals of South Carolina held that a podiatrist's duty of care must be measured by the practices and principles of the particular healing arts in which he or she is trained and licensed. Id. The trial judge in that case had concluded that an orthopedic surgeon offered as an expert witness could not testify as to the standard of good podiatric practice because he did not have any training or instruction in podiatry, was unfamiliar with the journals, periodicals, and books written by podiatrists, and admitted that he had never attended any seminars on podiatry and was not familiar with the standards of professional care generally observed by podiatrists.
Whitehurst v. Boehm, 41 N.C.App. 670, 255 S.E.2d 761 (1979), also held that the standard of care required of a podiatrist could not be established by the testimony of an orthopedic surgeon not familiar with the practice of podiatry. The court stated that a podiatrist must exercise that degree of ordinary skill and care that is commonly exercised by other podiatrists in the same locality under similar circumstances. Id. A podiatrist is not bound to possess and exercise the degree of skill and learning required of an ordinary physician or surgeon. Id. The court held that, because the educational requirements for a podiatrist are less demanding than those of a physician or a surgeon, proof of negligence may be offered only by practitioners of the defendant's own school of medicine. Id.
In contrast to the above cases, the Court of Appeals of Georgia allowed testimony by an orthopedic surgeon regarding the standard of care owed by a licensed podiatrist in Sanford v. Howard, 161 Ga.App. 495, 288 S.E.2d 739 (1982). The court based its decision on the fact that the orthopedic surgeon had stated that he was familiar with the procedure that the defendant had used to treat the plaintiff. The court held that while the membership in a different school of medicine may affect the weight given the testimony, it does not affect its admissibility. Id. See, also, Durkee v. Oliver, 714 P.2d 1330 (Colo.App. 1986) (failure to qualify podiatric surgeon was an abuse of discretion); Marshall v. Yale Podiatry Group, 5 Conn.App. 5, 496 A.2d 529 (1985) (orthopedic surgeon qualified to testify as to podiatrist's standard of care because of familiarity with common standard of both professions); Alexander v. Mt. Carmel Medical Center, 56 Ohio St.2d 155, 383 N.E.2d 564 (1978) (in malpractice action against orthopedic surgeons it was error to exclude podiatrist's testimony because the fields of medicine overlap); Creasey v. Hogan, 48 Or.App. 683, 617 P.2d 1377 (1980) (no error in admitting testimony of orthopedic surgeon in malpractice action against podiatrist, because both used similar surgical methods).
*1257 While those cases are persuasive, they can be distinguished from the facts presented here. In this case, Dr. Zarzour freely admits that he has no knowledge of podiatry. Dr. Borcicky cites Dr. Zarzour's deposition testimony as showing a total lack of training in podiatry:
"Q. Have you ever attended any seminars or professional training programs in which you have studied podiatry or podiatric surgical techniques or procedures?
"Q. Are you personally familiar with the standards of care that govern the practice of podiatry or podiatric surgery in the Mobile podiatric medical community or the national podiatric community?
"Q. Are you personally familiar with the methods of diagnosis prescribed by the proper standard of podiatric medical care for conditions of the nature complained of by Mrs. Craig which she presented to Dr. Borcicky?
"Q. Are you personally familiar with the mechanical appliances, instruments or electrical appliances necessitated by the proper standard of podiatric medical care for conditions of the nature complained of by Mrs. Craig when she first presented to Dr. Borcicky?
"Q. Are you personally familiar with the treatises generally recognized by podiatrists or podiatric surgeons as being authoritative on the issues and methods of treatment prescribed by the proper standard of the podiatric medical care for conditions of the nature complained of by the plaintiff when she first presented to Dr. Borcicky?
In view of the evidence, it is clear that the trial court did not err in disallowing Dr. Zarzour's testimony, even under the exception recognized in Wozny, supra, and the cases just discussed, because he testified that he was unfamiliar with the practices and standards of podiatry. In an appropriate case, an orthopedic surgeon might properly offer expert testimony on the standard of care owed by a podiatrist, but in this case we cannot conclude that the trial judge abused his discretion in disallowing that testimony.
Craig also contends that she was not properly informed of the surgical procedures performed on her, and that Borcicky performed procedures that she had instructed him not to perform. She states that she agreed to the surgery for the ingrown toenail, the callus, and the bump, but that she specifically instructed Dr. Borcicky not to perform any surgery on her toes and that he disregarded her instructions. While Craig admits that she signed an authorization and consent form, she contends that the handwritten information now on the form specifying the procedures to be performed was not present when she signed it. In her affidavit, she stated:
Under the proper circumstances, a cause of action will lie against a health care practitioner for failure to obtain informed consent. Our legislature has adopted the majority view that a doctor's duty to get informed consent must be measured by an objective standard. Fain v. Smith, 479 So. 2d 1150, 1152 (Ala.1985). This standard is based on what a reasonable person in the patient's position would have done had the information been disclosed by the practitioner. Id. at 1155. A physician is not required to inform the patient of each and every risk in a particular procedure; however, the doctor should inform the patient of the "significant perils" involved in the procedure. Otwell v. Bryant, 497 So. 2d 111, 118 (Ala.1986). Therefore, the determination of whether informed consent was obtained is a question of fact for the jury. Id. While both Fain and Otwell concerned medical doctors, they are relevant where a podiatrist has been charged with failure to obtain informed consent from his patient.
Dr. Borcicky maintains that Craig's claim, alleging lack of informed consent, was properly disposed of by summary judgment. Dr. Borcicky points to the handwritten items (1) through (5) on the top of the consent form that list the procedures to be performed. He calls specific attention to item (3), the procedure Craig claims she did not authorize. Dr. Borcicky notes that the form has a clause stating that "the nature or purpose of the operation(s), possible alternative methods of treatment, the risk involved, and the possibility of complications have been explained to me."
Finally, Dr. Borcicky contends that Craig's claim fails because she failed to produce any expert testimony showing the usual standard of disclosure by a podiatrist under similar circumstances. Therefore, *1259 he argues, no podiatric standard for disclosure was established and Craig failed to prove any deviation from such a standard. We do not agree.
Rule 56, A. R. Civ. P., clearly states that summary judgment is proper if the pleadings, depositions, and affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Conversely, where there are factual issues to be determined, summary judgment is improper. McGhee v. Mid-State Homes, Inc., 504 So. 2d 279 (Ala.1987). Clearly, in this case there is a dispute between the parties as to whether Craig had consented to the procedures that allegedly caused her injury.
A party opposing a motion for summary judgment may not rest upon a mere denial or on the allegations in his pleadings. Crowder v. Correctional Medical Systems, 497 So. 2d 486 (Ala.1986); Garrigan v. Hinton Beef & Provision Co., 425 So. 2d 1091 (Ala.1983). However, in this case, Craig goes further than a general denial. Craig stated in her affidavit that she told Borcicky that she wanted only the ingrown toenail, the callus, and the bump treated. In light of the history of his suggesting the surgery on her toes and her statements that she never gave him permission to do that surgery, her affidavit, viewed in the light most favorable to her as the nonmoving party, raises a clear fact question as to whether she gave him permission to do that surgery, which was the alleged source of her injuries. Thus, this is not a case of "informed" consent, where the question is whether the patient would have consented if all known risks had been disclosed; rather, it is a question of whether she consented at all to the injury-producing procedure, which was significantly different from the three procedures to which she concededly did consent.
Nor is the summary judgment proper because of the inclusion on the form of the reference to the surgery on her toes. The form was signed on August 4, and Craig states that there was no writing on the top of the form at that time; this statement, if believed by the jury, would mean that the procedures to be performed were not listed at the time.
The form was not signed by an attesting witness, and Borcicky has not affirmatively stated that all the information now on the form was on it when Craig signed it. The handwriting on the form is difficult to read and couched in technical language, and he has not said that he explained it to her.
Even if the form did contain that information when she signed it on the 4th, Borcicky would not be entitled to a summary judgment on the record before us. His affidavit does not contradict her statement that she told him just before the operation to treat only the ingrown toenail, the callus, and the bump. Thus, even if she could be held to have consented under the terms of the written form on the 4th, a jury might find that she retracted her consent just before surgery on the 14th.
For the foregoing reasons, the judgment is reversed, and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | January 26, 1990 |
6485b88e-fb3c-4578-9721-d69a8c143ec5 | Norman Properties v. Bozeman | 557 So. 2d 1265 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1265 (1990)
NORMAN PROPERTIES
v.
Robert Dwayne BOZEMAN and Elizabeth H. Bozeman.
88-406.
Supreme Court of Alabama.
February 2, 1990.
*1266 John A. Taber of Hardin, Taber & Tucker, Birmingham, for appellant.
Mark T. Smyth, Luverne, for appellees.
HORNSBY, Chief Justice.
This case involves claims by the plaintiffs based on alleged fraud and breach of the warranty of habitability of a new house; the case arises out of the purchase of a new house in Fort Deposit, Alabama. Robert Dwayne and Elizabeth H. Bozeman sued John and Peter Norman and their wives, Genie and Delnora Norman, individually. They later amended their complaint to add as a defendant Norman Properties, a partnership composed of John and Peter Norman. The complaint requested compensatory damages as well as damages for mental and emotional anguish.
The jury returned a verdict against Norman Properties in the amount of $50,000. The jury found for the four individual defendants. Judgment was entered on this verdict. Norman Properties filed a motion for JNOV or, alternatively, for new trial or a remittitur. The trial judge denied that motion. Norman Properties appeals.
The Bozemans purchased a house from the Normans in December 1983 for $46,000. The deed conveying the lot to the Bozemans was executed by the four Normans but contained no reference to Norman Properties. However, the receipt given to Mrs. Bozeman for the down payment was signed "Norman Properties by `Pete' Norman." The sales contract also indicated that the house was "constructed by Norman Properties." The trial testimony revealed further facts regarding this point, which are detailed below.
The Normans began building houses in Ft. Deposit on speculation. They had had no prior experience in building houses, and they had another contractor, Mike Norman (apparently no relation to the Normans in this case), actually build this particular house for them. The Normans' participation in the building and sale of the house consisted of securing the lot, selecting and reviewing the plans and specifications, coordinating the interior colors, inspecting the building site from time to time during construction, and ultimately signing the deed to the Bozemans. Both John and Peter Norman represented to the Bozemans that the home was "well built" and was an "Alabama Power good sense" [sic] home.
The Bozemans took possession of the house in December 1983 and first began to see minor problems in January or February 1984. The initial problems involved the heating system and drainage in the yard. Because the house was completed in the winter, the yard had not been graded or sodded, and rainwater would drain into the yard from the street and stand in the yard. Trial testimony revealed that even after the yard was landscaped, Mr. Bozeman had to install a "french drain" to keep the water from flowing toward and under the house. The heating unit was repaired after a repairman discovered a manufacturing defect.
Further problems developed during 1984 and 1985, including mildew on the windowsills, "hairline" cracks in the bathroom tile floors, cracks in the sheetrock walls, failure of the front door to close properly, and *1267 cracks in the driveway. The siding on the house began to loosen, and the boards appeared to be warping outward. The kitchen floor appeared dirty even after being cleaned. The testimony by Mrs. Bozeman is not specific as to the date on which each problem occurred. It appears that in the latter part of 1984 or early in 1985 the Bozemans also discovered that the rear patio had been constructed partially over an open well. They attempted on several occasions to fill the well, but each time the fill settled and the hole opened again. It also appears from the record that in 1985 or 1986, Mr. Bozeman had to attempt to repair a clogged drain.
Finally, in November 1986, the Bozemans employed the professional engineering firm of Joseph and Spain to inspect their house. At trial, Mr. Joseph was offered as an expert, without objection. He testified that his inspection in November or December 1986 revealed that the turn-down of the footing of the outer support walls was insufficient. He said that the turn-down should have been from three to five feet deep due to the fact that the house had been built on prairie soil, but that it was only one foot deep. He further testified that the concrete used in the foundation of the house was inferior and that at some points he could crumble the concrete in his hands.
Mr. Joseph also testified that the front stoop and the rear patio had settled. His report indicated "the quality of the concrete in the drives, patio and entrance slab all seem to be of a low quality [and] since part of the roof on the front entrance slab and over the patio is supported by a wood post, bearing on these slabs, any movement of the slab can have adverse effects on the structure." One of the posts supporting the roof had become completely unattached from the house. He said that the main slab on which the house was built also had abnormal cracking, and that moisture seeped through the floor, causing the kitchen floor to appear "dirty," even after cleaning, and causing the living room carpet to stay damp.
Mr. Joseph further testified that the windows were incorrectly installed, and that the incorrect installation caused moisture to collect on the windows and, in turn, to cause mildew on the windows. He also testified that the structural defects were present when the house was built but would not have been discovered by normal observation.
After receiving Mr. Joseph's report, the Bozemans said, they decided the house was uninhabitable. They said they were afraid that the sinking of the concrete slabs would cause the gas line to break. They also said they could not unclog the drain that was causing a sewage backup. During the spring of 1987, the drains from the bathrooms and the dishwasher again became clogged. In attempting to remedy these clogs, Mr. Bozeman had to dig up the yard to reach the pipes. His testimony indicated that the problems occurred because the pipes that had been installed were too small. This was the second time the drains had clogged, and on this occasion, sewage backed up into the house and covered the floors, including the living room carpet.
Mr. Joseph testified that it would be costprohibitive to correct the foundation problem. In February or March 1987, the Bozemans ceased making mortgage payments, believing the house to be worthless, they said, and they subsequently abandoned the property.
The lender foreclosed and purchased the property for $47,832.02. Mary Amos, a real estate broker, testified that, following the foreclosure sale, she listed the property for sale. At the time of trial, in August 1988, there was a contract on the house for $48,000.00. Ms. Amos testified that no major repairs had been made to the house since the foreclosure. She said she had made a "walk-through" inspection of the house and from that inspection was not aware of any structural defects. She said that the prospective purchasers had not been made aware of any defects.
Ann Carmichael, a real estate appraiser who had done an appraisal of the property, also testified that she was not aware of any *1268 structural defects. She testified, however, that any structural defects, such as those testified to by Mr. Joseph, would lower her appraisal to some extent, depending on whether they were curable and, if so, the cost of curing them.
Mrs. Bozeman testified that she and her husband had paid approximately $25,000.00 in mortgage payments, for closing costs, for the down payment, for yard work, for installation of a utility shed and a privacy fence, and for relocating expenses.
Norman Properties, the partnership, raises three issues on appeal. First, it contends that the Bozemans' fraud claim was barred by the applicable statute of limitations. Second, it claims that it was entitled to a judgment notwithstanding the verdict because the jury rendered a verdict only against it and not against its individual partners. Third, it contends that the jury's verdict of $50,000 was excessive in light of the evidence.
There was evidence that the partners represented to the plaintiffs that the house was "well built" while knowing that it was not. Thus, the evidence would support a verdict based on fraud. See Deupree v. Butner, 522 So. 2d 242, 245-46 (Ala.1988); see also Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989).
Norman Properties contends, however, that the Bozemans' fraud action was barred by the statute of limitations. It raised this defense by a motion made during the trial to amend the pleadings to conform to the evidence. Norman Properties then moved for a directed verdict on this defense, which was denied, although the amendment had been allowed. Norman Properties contends that the trial judge should have found the fraud count barred as a matter of law or should have allowed the jury to determine whether the count was time-barred.
Norman Properties also contends that the judge erred in not charging the jury on the statute of limitations issue. While counsel for Norman Properties did object at trial to the omission of a statute of limitations charge, he did not state the grounds for his objection and cannot now claim this omission as error. A.R.Civ.P., Rule 51.
Under Ala.Code (1975), § 6-2-38 (Cum. Supp.1988), an action for fraud is subject to a two-year statute of limitations. However, § 6-2-3 provides:
This provision has been interpreted as follows:
Gonzales v. U-J Chevrolet Co., 451 So. 2d 244, 247 (Ala.1984); citing Papastefan v. B & L. Construction Co., 385 So. 2d 966 (Ala. 1980); Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 281 So. 2d 636 (1973); see also Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985). Stated another way, the test for determining whether the fraud action is timely filed is:
"`Whether, within [two] year[s] prior to filing suit, plaintiff had [first acquired] knowledge of such facts, or knowledge of facts which would lead a reasonable man to make diligent inquiry which would have enabled plaintiff to discover the fraud alleged....'"
McLaughlin v. Pannell Kerr Forster, 504 So. 2d 264, 265 (Ala.1987), quoting State Security Life Ins. Co. v. Henson, 288 Ala. 497, 504, 262 So. 2d 745, 751 (1972). (Emphasis original.)
McLaughlin, 504 So. 2d at 265.
The complaint in this action was filed on December 9, 1986. The record shows that certain minor problems, such as the dirty appearance of the kitchen floor, the mildewed windows, the cracked driveway and the outside drainage problems were apparent soon after the Bozemans took possession of the property. However, the settling of the main concrete slab, the front porch, and the rear patio occurred over time. The significance of that settling was determined by Mr. Joseph during his investigation in November or December 1986. There was testimony that this settling of the slabs caused the porch posts to be pulled away, the inside walls to crack, and the front door not to close properly. The record also reveals that during 1985 or 1986 the drains clogged and that in 1987, sewage backed up into the house. All of these later, obvious problems occurred well within two years of the date the complaint was filed.
The plaintiffs here did not know the cause of the problems until Mr. Joseph inspected the property in November or December 1986. The Bozemans used the information obtained from Mr. Joseph as the basis upon which to file their complaint. The initial problems experienced by the Bozemans would not have caused a reasonable person to question the grade of concrete used in the foundation of the house. Mr. Joseph's testimony showed that a lay person would not be able to discover the problems he discovered. The Bozemans sought legal advice immediately after receiving Mr. Joseph's report and filed suit within a month. We need not determine whether the limitations period allowed by § 6-2-3 began to run when the plaintiffs got Mr. Joseph's report informing them of the cause of the problems, or began to run when they learned of the problems themselves, since they sued within two years of that earlier event. The trial court did not err in overruling Norman Properties' motion for a directed verdict or its motion for JNOV.
The verdict was against Norman Properties, but not against the Normans individually. Norman Properties contends that this verdict is inconsistent and that the trial judge therefore should have granted its motion for JNOV. Because the jury did not find the individual partners liable, Norman Properties contends, it could not possibly find the partnership liable. The partnership also contends, because there was no written partnership agreement, that it was not a formal partnership and, consequently, that it was not effective as to third parties.
Alabama has adopted the Uniform Partnership Act, codified at Ala.Code (1975), § 10-8-1 et seq. Under the Alabama act, a "partnership" is defined as an "association of two or more persons to carry on as co-owners a business for profit." § 10-8-2(7); see Adderhold v. Adderhold, 426 So. 2d 457, 459 (Ala.Civ.App.1983); 59A Am.Jur.2d Partnership, § 2, p. 234 (1987). Whether a partnership exists is also determined from the "community of interest which includes the right to manage *1270 and control the business." Adderhold, supra, at 459; see 59 Am.Jur. Partnerships §§ 42-44 (1971). While we have held previously that "`a partnership arises only from an express or implied agreement among the parties and is never established by implication or operation of law,'" the surrounding circumstances can evidence the intention of the parties to establish such a relationship. Adderhold, 426 So. 2d at 459, quoting Waters v. Union Bank of Repton, 370 So. 2d 957 (Ala.1979).
Further, the Alabama Partnership Act states:
Ala.Code 1975, § 10-8-49.
The Alabama Code also contains a "common name" clause:
Ala.Code (1975), § 6-7-70. (Emphasis added.) It is established by statute and supported by common law in this state that a judgment against the partnership, and not against the partners, attaches only to the partnership assets and not to the property of the individual partners. Baldridge v. Eason, 99 Ala. 516, 13 So. 74 (1893); see also Duncan, Inc. v. Head, 519 So. 2d 1305, 1308 (Ala.1988) (Almon, J., concurring specially); Prado North Residences, Ltd. v. Prado North Condominium Association, Inc., 477 So. 2d 396, 399 (Ala.1985); Woodfin v. Curry, 228 Ala. 436, 437, 153 So. 620 (1934); Ratchford v. Covington County, 172 Ala. 461, 55 So. 806 (1911).
In the case at hand, the plaintiffs' initial complaint listed only the Normans individually. After discovery, the plaintiffs amended their complaint to include the partnership as a defendant. The individual defendants remained parties to the suit in their individual capacities, outside the realm of any partnership activities. The trial judge submitted to the attorneys a form for the verdict, to which the parties raised no objections. The form submitted to the jury allowed two possibilities: 1) that the actions complained of were committed by the Normans in their individual capacities, or 2) the wrongs committed were in the line and scope of the partnership activities, obligating the partnership.
The jury decided that the partners were liable in their partnership capacity. The jury obviously concluded that the liability was a partnership obligation rather than an obligation outside the line and scope of the partnership activities. Although we find no inconsistency, we note that, because the defendants made no objection to the choice presented to the jury in the verdict form, and made no objection to the verdict before the jury was discharged, any objection here to any possible inconsistency has been waived. See Ford v. Canton, 530 So. 2d 217, 222-23 (Ala.1988); and Empiregas, Inc. of Ardmore v. Hardy, 487 So. 2d 244, 251 (Ala.1985); see also Stancill v. McKenzie Tank Lines, Inc., 497 F.2d 529, 534 (5th Cir.1974) ("[b]y failing to object to the form of the verdict and answers at the time they were announced by the jury, both parties waived any objections to inconsistencies").
We are also mindful of the case of R. L. Turner Motors v. Hilkey, 260 Ala. 577, 72 So. 2d 75 (1954), decided prior to the adoption of the Uniform Partnership Act. That case involved three separate actions against a partnership and its partners individually. In each case, a judgment was entered against the partnership and in favor of each of the individual defendants. *1271 260 Ala. at 579, 72 So. 2d at 77. We held that the verdict was fatally inconsistent and ordered a new trial. To the extent that R. L. Turner Motors conflicts with our holding today, it is expressly overruled.
The trial court properly denied Norman Properties' JNOV motion.
Norman Properties insists that the verdict of $50,000 was excessive. It contends that the trial judge erred in not ordering a new trial or remitting a substantial portion of the verdict.
There are two methods of determining damages in a case involving the breach of the warranty of habitability. Lowe v. Morrison, 412 So. 2d 1212, 1213 (Ala.1982). The reasonable cost of the repairs is the first measure of damages available, if the correction of the defects would not constitute waste. United States Fidelity & Guaranty Co. v. Jacksonville State University, 357 So. 2d 952, 957 (Ala.1978). Here, Mr. Joseph testified that there was no way to correct the structural defects he found that would not constitute waste. In other words, the cost of necessary repairs would far exceed the value of the house.
The second method of determining damages is the "difference in the reasonable market value of the house in its condition at the time it was purchased and the reasonable market value of the house as it would have been had the house been constructed substantially according to the contract or warranty." Crocker v. Reed, 420 So. 2d 285, 286 (Ala.Civ.App.1982), citing Hubbard Brothers Construction Co. v. Brackner, 390 So. 2d 648 (Ala.Civ.App. 1980).
Mrs. Bozeman testified that the lot and the house were purchased for $46,000.00. She also testified that they had paid $25,000 in mortgage payments, and additional sums for closing costs, for the downpayment, for yard work, for installation of a utility shed and a privacy fence, and for relocating expenses. She testified that the house is now worthless because of the defects, which the evidence indicates cannot be economically corrected. Mrs. Bozeman is qualified to offer an opinion as to its market value. Mobile Home Brokers, Inc. v. Clark, 346 So. 2d 1156, 1159 (Ala.Civ.App.1977). Mrs. Bozeman also gave testimony that supported the Bozemans' claim for damages for mental and emotional anguish.
Norman Properties introduced evidence as to the current market value of the house. AmSouth Bank purchased the property at the foreclosure sale for $47,832.02. There is no evidence in the record indicating whether the bank knew of the defects in the house. A professional appraiser, on December 31, 1987, estimated the market value of the house to be $47,000. She testified, however, that when she made that appraisal she was not aware of the defects that Mr. Joseph had found. At the time of the trial, someone had entered a contract to purchase the house for $48,000. The testimony by the real estate salesperson indicated that the prospective purchasers had seen the property once, but that they were not aware of the defects that Mr. Joseph said he had found.
It was for the jury in this case to determine the credibility of the witnesses. Jury verdicts are presumed to be correct and will not be disturbed on appeal unless they are clearly wrong and unjust. Campbell v. Burns, 512 So. 2d 1341, 1343 (Ala.1987). Further, where there is some evidence to support a jury's verdict, the motion for a directed verdict, and thus also a motion JNOV, is properly denied. Id.; Turner v. Peoples Bank, 378 So. 2d 706 (Ala.1979). The evidence well supports a verdict based on breach of the warranty of habitability. Likewise, the evidence supports a verdict based on fraud; there was evidence that each of the parties represented to the plaintiffs that the house was "well built," when they had good reason to know it was not. The verdict was well within the range of damages that would have been supported by the evidence, particularly considering the evidence of emotional distress. See B & M Homes v. Hogan, 376 So. 2d 667, 671 (Ala.1979).
*1272 For the foregoing reasons, we affirm.
AFFIRMED.
JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., not sitting. | February 2, 1990 |
8da49620-5754-4fb8-875f-7942938476bf | Hilley v. Allstate Ins. Co. | 562 So. 2d 184 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 184 (1990)
James Larry HILLEY and Robbie Hilley
v.
ALLSTATE INSURANCE COMPANY.
88-1395.
Supreme Court of Alabama.
February 16, 1990.
Rehearing Denied May 4, 1990.
*185 Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellants.
Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellee.
HOUSTON, Justice.
This case involves a dispute regarding the amount of insurance proceeds payable for loss occasioned by fire.
James Larry Hilley and Robbie Hilley sued Allstate Insurance Company ("Allstate"), alleging breach of contract, outrageous conduct, bad faith refusal to pay, fraud, and violation of public policy and Ala.Code 1975, § 27-12-25.[1] The trial court granted Allstate's motion for summary judgment as to the Hilleys' claims of breach of contract, outrageous conduct, bad faith refusal to pay, and violation of public policy and § 27-12-25, but denied Allstate's motion as to the fraud claim.[2]*186 Thereafter, the trial court specifically determined that there was no just reason for delay in the entry of a judgment and, pursuant to Rule 54(b), A.R.Civ.P., the judgment was made final. Subsequently, the Hilleys appealed.[3] We affirm.
On July 24, 1985, the Hilleys purchased a deluxe homeowner's insurance policy from Allstate with coverage and limits of liability of $38,000 for dwelling protection and $19,000 for personal property protection.[4] Thereafter, on January 6, 1986, the Hilleys' home and their personal contents were destroyed by fire. Subsequently, the Hilleys contacted Allstate and Ben Frazier, senior claims representative with Allstate, to make a claim for the loss caused by the fire. On January 29, 1986, the Hilleys filed a sworn "proof of loss" form with Allstate. At that point, the Hilleys received approximately $14,000 for the loss of the contents and approximately $13,000 for the actual cash value of their house.[5] Then, if they chose, they could replace or rebuild their house, and, within 180 days, make an additional claim for the amount by which their cost of rebuilding or replacing the house exceeded the actual cash value of the house. The draft for $13,000 was made payable to the Hilleys and to the finance company holding the mortgage. After paying off the mortgage debt, the Hilleys had approximately $3,000 of the $13,000 remaining.
After the fire, the Hilleys stayed with a relative for approximately one month until they moved into a 2-bedroom apartment, where they remained for approximately four to five months. They then rented a trailer, which they parked on a lot that they owned.
During this period, Frazier paid the Hilleys $570 for additional living expenses, along with $1,000 for "humanitarian needs" and $1,050 for clean-up and debris removal costs.
After the loss, the Hilleys sought to obtain the best price to rebuild approximately *187 the same house that had been destroyed by fire. They also attempted to obtain loans from various financial institutions to finance the rebuilding of their house, but their requests were denied. On May 26, 1986, the Hilleys' attorney wrote Frazier concerning the Hilleys' inability to obtain financing for their home and seeking reimbursement for additional living expenses that the Hilleys had incurred:
A few days later, Frazier wrote the Hilleys, acknowledging receipt of their letter and stating that Allstate's agreement under the dwelling coverage provision of the policy was as follows: "[W]hen the amount already paid to the insured is spent toward the rebuilding of the house and cost of rebuilding begins to exceed this amount that I would pay a portion of the remaining amount and later pay another portion when the house was at a stage toward completion and could be verified. If this is not acceptable the only other offer I can make is according to the policy conditions in the policy."
Frazier's letter also rejected the Hilleys' request for additional living expenses:
With regard to the Hilleys' request that Allstate guarantee the additional monies due under the policy to the construction company that had agreed to rebuild their home, Frazier's response read as follows:
The Hilleys contend that their tendering a contractor to build their house satisfied all obligations they had under the insurance contract; that Allstate's refusal to work with the contractor constituted a breach of the duty of good faith and fair dealing implied in law in every contract; and that, without obtaining this guarantee, they were unable to rebuild their home.
With respect to dwelling and contents protection, the substantive portion of the Hilley's policy provided:
The policy also provided for the payment of reasonable additional living expenses in some circumstances:
The policy further provided the conditions under which additional living expenses would be paid:
This case was filed prior to June 11, 1987; therefore, the applicable standard of review is the "scintilla rule." See Ala.Code 1975, § 12-21-12, and Rule 56(c), A.R. Civ.P. Summary judgment for the defendant is proper when there is no genuine issue of material fact as to any element of a cause of action and the defendant is entitled to a judgment as a matter of law. See Wilson v. Brown, 496 So. 2d 756 (Ala. 1986). We must view the record in a light most favorable to the plaintiff and resolve all reasonable doubts against the defendant. See Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987). Once the defendant has made a prima facie showing that there is no genuine issue of material fact and that the defendant is entitled to a judgment, the burden shifts to the plaintiff to present at least a scintilla of evidence indicating that there is a genuine issue of material fact. Dunaway v. King, 510 So. 2d 543 (Ala. 1987).
The issues before us are whether the Hilleys presented a scintilla of evidence in support of their claims of breach of contract, bad faith refusal to pay, and violation of public policy and § 27-12-25, as to the replacement cost for their house and as to additional living expenses, so as to preclude the entry of summary judgment in favor of Allstate on these issues.
This Court and Alabama federal district courts applying Alabama law have explicitly held that replacement cost provisions similar or identical to those provisions at issue here are valid and enforceable. See Huggins v. Hanover Insurance Co., 423 So. 2d 147 (Ala.1982); Blevins v. State Farm Fire & Casualty Co., No. CV-86-DT-0114-M (N.D.Ala. Aug. 22, 1986) (Propst, J.); see, also, Cherokee Farms, Inc. v. Fireman's Fund Insurance Co., 526 So. 2d 871 (Ala.1988). In fact, the Allstate replacement cost/actual cash value provisions at issue here were held to be clear, unambiguous, and valid in Thompson v. Allstate Insurance Co., No. CV-87-0347-M (N.D.Ala. July 14, 1987).
In Huggins v. Hanover Insurance Co., supra, the defendant insurance company issued an insurance policy to the plaintiffs with a total replacement cost limit of $120,000. That policy, like the Allstate policy at issue here, provided that the insurer would "pay no more than the actual cash value of the damage until actual repair or replacement is completed." See 423 So. 2d at 149. The insureds claimed that, even though they did not repair their home, they were still entitled to full replacement cost rather than the actual cash value that the insurer paid them. The trial court directed a verdict in favor of the insurer and this Court affirmed. In so holding, we stated that the insurance policy "limits all replacement cost recovery ... to actual cash value until repair or replacement is complete." The Court further noted that "[p]rovisions like... those have been interpreted as providing a condition precedent to an insurer's duty to pay repair or replacement costs of an insured building. A party who has not repaired or replaced his insured building has not complied with the condition precedent to recovery under the policy and so cannot recover." 423 So. 2d at 150. (Emphasis supplied.)
Additionally, in Blevins v. State Farm Fire & Casualty Co., supra, the district court was faced with a claim by the insureds that they should be able to recover the full replacement cost policy limits for the contents of their house, which were destroyed by fire. There, as here, the policy provided that replacement cost would be paid only after the replacement had been completed.
Judge Propst, citing Huggins v. Hanover Insurance Co., supra, held that, because the plaintiffs had not actually replaced the subject property in the time required by their policy, they had failed to meet a policy condition precedent and could not recover *190 the replacement cost policy limits. In so holding, he noted:
Blevins, supra. See Cherokee Farms, Inc. v. Fireman's Fund Insurance Co., supra (noting that the policy required complete replacement of premises before actual cash value payment would be supplemented with replacement cost payment). See, also, Thompson v. Allstate Insurance Co., supra ("Allstate has no duty to advance the proceeds" to fulfill the replacement precondition); State Farm Fire & Casualty Co. v. Ponder; 469 So. 2d 1262 at 1266 (Ala. 1985) ("what is contemplated is that, ordinarily, actual cash value will be less than replacement cost [as it was here]; thus, the insurer will first pay the lesser amount; and then, upon completion within 180 days after the loss, will pay the difference between actual cash value and replacement cost"). (Emphasis supplied.)
Furthermore, a mere intention to replace does not trigger the insurer's replacement cost payment obligations. See, e.g., Blevins v. State Farm Fire & Casualty Co., supra. Consequently, even though the Hilleys allegedly intended to replace their house, but claim that they could not afford to effectuate that rebuilding, they cannot overcome the clear and unambiguous terms of their Allstate policy that precluded any replacement cost payment prior to the completion of rebuilding.
We recognize the general rule that every contract carries with it an implied-in-law duty of good faith and fair dealing. Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1 (Ala.1981); see, also, Hoffman-LaRoche, Inc. v. Campbell, 512 So. 2d 725 (Ala.1987). This duty provides that neither party will interfere with the rights of the others to receive the benefits of the agreement. See Childs v. Mississippi Valley Title Ins. Co., 359 So. 2d 1146 (Ala.1978). We find no such interference here. We cannot allow the obligation of good faith and fair dealing to supply a term that adds something new or different to the rights and obligations to which the parties have expressly agreed or to vary clear contract terms. See, e.g., Metromedia Broadcasting Corp. v. MGM/UA Entertainment Co., 611 F. Supp. 415 (C.D.Cal. 1985); Snyder v. Howard Johnson's Motor Lodges, Inc., 412 F. Supp. 724 (S.D.Ill.1976).
Because the Hilleys failed to satisfy the policy's condition precedent, Allstate had no duty to advance the proceeds. Therefore, we hold that the trial court properly entered summary judgment on the breach of contract claim.
In a normal case, such as this one, to prevail on a claim based on 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., 536 So. 2d 943 (Ala. 1988); Payne v. Nationwide Mutual Insurance Co., 456 So. 2d 34 (Ala.1984). Although this case involves a summary judgment, not a directed verdict, the standards of review for both are essentially the same. See Kizziah v. Golden Rule Insurance Co., supra.
Having affirmed Allstate's summary judgment as to the Hilleys' breach of contract claim with regard to replacement cost, we must also affirm that summary judgment as to the Hilleys' bad faith claim with regard to replacement cost. See 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 Hilleys argue that Allstate's failure to pay additional living expenses constituted a breach of contract. They argue *191 that, under the following provision[6] of the policy, they were entitled to additional living expenses for nine months:
Allstate contends that nine months is a maximum, not a minimum, amount of time for paying additional living expenses; that the minimum time for additional living expense payments to continue was that amount of time necessary to repair or replace the house through the use of due diligence and dispatch; that the Hilleys had been informed by at least one experienced contractor that three weeks would be a sufficient amount of time to rebuild, and that the affidavit of another experienced contractor indicated that 90 days would have been a reasonable period for the Hilleys to completely rebuild their house if they were using due diligence and dispatch; and that, since both the three-week period and the 90-day period had passed before the Hilleys requested further additional living expenses, Frazier could properly refuse to pay such expenses because the repair or replacement, as contemplated by the policy, had not been made with due diligence and dispatch; but that Frazier still offered to pay three months' additional living expenses in exchange for a release.
The Hilleys, on the other hand, contend that they had a right to additional living expenses for up to nine months, but that Frazier modified the nine-month provision by stating what he believed to be a reasonable period of time to permanently relocate and by stating that he was obligated only to pay additional living expenses "based on the reasonable period of time it would take to build a house back." Furthermore, the Hilleys contend that, within 150 days of the loss, they had attempted to perform under the contract by securing a contractor who would go forward and begin rebuilding but that Frazier rejected this effort; that Frazier stated that Allstate owed no more than three months' additional living expenses but would not pay that money to the Hilleys, even though he felt they were entitled to it, until such time as the Hilleys agreed to execute a release of any future additional living expenses. Based on the foregoing, we hold that the Hilleys presented a scintilla of evidence that they used due diligence and dispatch in replacing their home.
However, in addition to the "due diligence and dispatch" provision, the Hilleys' policy specifically made the submission of receipts a precondition to payment of additional living expenses:
It is undisputed that no receipts were provided for any additional living expenses other than the ones for which Allstate had already paid. According to Mr. Hilley's testimony, Frazier told Mr. Hilley to "save all receipts [,] that I [Mr. Hilley] have to turn them in to [Frazier]." Furthermore, Mr. Hilley testified that he never submitted to Frazier any receipts as to expenses that Frazier had said he could not cover or would not pay. Thus, because no further *192 receipts were submitted, under the clear and unambiguous terms of the contract Allstate was under no duty to provide any additional living expense payments to the Hilleys.
In support of its motion for summary judgment, Allstate submitted affidavits, deposition testimony, and a copy of the policy to show prima facie that it did not breach its contract with the Hilleys. In his deposition testimony, Frazier stated that, even though the Hilleys requested payment for further expenses, they did not present evidence that they were going to start reconstruction nor had they started reconstruction; that, in the absence of beginning construction in what he considered to be a reasonable time and in the absence after four months of any tangible evidence that the Hilleys were going to rebuild, the Hilleys were not entitled to any further payments for additional living expenses; and that the Hilleys never produced receipts evidencing any further reimbursable living expenditures other than those reimbursed expenses already paid to the Hilleys for which they had provided receipts.
Once Allstate made a prima facie showing that no genuine issue of material fact existed, the burden shifted to the Hilleys to come forth with specific facts to establish that a genuine issue of fact did exist. After a thorough review of the Hilleys' materials submitted in opposition to the motion for summary judgment, we find that the Hilleys presented no evidence to rebut Allstate's showing that the Hilleys had failed to satisfy the condition precedent of submitting receipts for additional living expenses. Therefore, we hold that the trial court properly entered summary judgment as to the breach of contract claim for additional living expenses.
We recognize the Hilleys' position that Allstate's conduct, through the actions of Frazier, who conditioned additional living expense payments to the Hilleys on their executing a release, constituted bad faith. However, because we have affirmed the summary judgment for Allstate as to the Hilleys' breach of contract claim with regard to additional living expenses, we must affirm the summary judgment for Allstate as to the claim of bad faith refusal to pay with regard to additional living expenses. See Strickland v. Alabama Farm Bureau Mutual Cas. Ins. Co., supra; Madison County Sheriff's Posse, Inc. v. Horseman's United Ass'n, Inc., supra.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, STEAGALL and KENNEDY, JJ., concur.
ALMON, J., concurs in the result.
[1] We are unable to find any § 27-12-25 in the Code. Therefore, we cannot hold the trial court in error for entering summary judgment in favor of Allstate on the claim based on this Code section. We do note that Ala.Code 1975, § 27-12-24, is the codification of the tort of bad faith: "No insurer shall, without just cause, refuse to pay or settle claims arising under coverages provided by its policies in this state, and with such frequency as to indicate a general business practice in this State...." However, we cannot assume for purposes of this appeal that the Hilleys intended their complaint to allege violation of Ala.Code 1975, § 27-12-24.
[2] The fraud claim reads as follows:
"1. Plaintiffs aver that the defendant represented to the plaintiffs that [it] would place a proper and appropriate value on the house, charge a proper and appropriate premium based on the value of the house and that the defendant would abide by the valuation of the house it placed or had placed upon the house.
"2. In reliance upon the representations made to the plaintiffs by the defendant or agents of the defendant, the plaintiff[s] purchased the insurance and were assessed a premium for dwelling protection in the amount of $38,000 and personal property protection in the amount of $19,000 and family liability (each occurrence) protection in the amount of $25,000 and guest medical payments (each person) in the amount of $500.00 and each accident in the amount of $25,000.
"3. Plaintiffs aver that plaintiffs relied upon the representations of the defendant that this was the appropriate and proper valuation of the property and plaintiffs paid the assessed premium based upon the representations of the defendant that this was the appropriate and proper valuation of the property as of July 25, 1985.
"4. Plaintiffs aver that in reliance upon the representations made to the plaintiffs by the defendant or agents of the defendant, the plaintiffs understood and expected the property to be completely insured and protected from loss.
"5. Plaintiffs aver that at the time they purchased the insurance on the said property all representations made to the defendant by the plaintiff[s] were truthful and correct and that the representations made to the plaintiffs by the defendant were taken to be true and correct by the plaintiffs and were relied upon by the plaintiffs in like respect.
"6. Plaintiffs aver that upon suffering the loss as heretofore identified on the 6th day of January, 1986, plaintiffs in respect and response to the representations previously made to them by defendant and agents of the defendant, anticipated receipt of reimbursement for losses in the amount of $38,000 on the dwelling and $19,000 on personal property protection. Plaintiffs aver that the defendant instead offered and paid only $11,000 on the personal property protection and further only paid $14,050 on the dwelling coverage, which according to the defendant was the actual cash value of the property plus clean up and debris removal.
"7. Plaintiffs aver that the defendant valued the home of the plaintiff in the amount of $38,000 and charged a premium accordingly. Plaintiffs aver that the value [of the house] in which the plaintiffs were residing had not decreased in value but instead had increased in value in the six-month period between the time the defendant had valued the property and the time that the property had suffered a loss by fire. Plaintiffs aver that they relied to their detriment upon the valuation given to the property by the defendant and had traveled under the understanding that should they suffer a complete loss of their house, they would receive $38,000 on the dwelling and $19,000 on the contents.
"8. Plaintiffs aver that the defendant represented to the plaintiffs that their reliance as heretofore alleged was proper and appropriate and that the defendants anticipated and expected the plaintiffs to rely upon the representations of the valuation of the house as had been made by the defendant or agents of the defendant.
"....
"10. Plaintiffs further aver that the defendant fraudulently misrepresented material facts with respect to the defendant's responsibilities under the policy of insurance made available to the plaintiffs and as a proximate result of the fraudulent misrepresentations made to the plaintiffs by the defendant, plaintiffs have been caused to suffer damages in the amount of $500,000.00 compensatory damages and plaintiffs demand judgment against the defendant in the amount of $500,000.00 punitive damages, for the reckless, willful and/or intentional misrepresentations under the policy provisions as heretofore alleged."
[3] The Hilleys appealed the trial court's summary judgment in favor of Allstate on their claims alleging breach of contract, outrageous conduct, bad faith, and violation of public policy and Ala.Code 1975, § 27-12-25. However, they failed to argue the outrageous conduct claim in their brief; therefore, that issue is not before us.
[4] It is undisputed that the policy was in full force and effect at all times material to this litigation.
[5] For purposes of this appeal, the Hilleys do not dispute Allstate's calculation of the actual cash value under the policy.
[6] The type of additional living expense provision at issue here has been upheld as clear and unambiguous. See Wallace v. Auto-Owners Insurance Co., 421 So. 2d 131 (Ala.Civ.App.1982), citing Aetna Casualty & Surety Co. v. Chapman, 240 Ala. 599, 200 So. 425 (1941). | February 16, 1990 |
5dcb95d5-b8cd-42c4-be04-d7e14e51e62e | N & C PROPERTIES v. AmSouth Bank, NA | 558 So. 2d 906 | N/A | Alabama | Alabama Supreme Court | 558 So. 2d 906 (1990)
N & C PROPERTIES
v.
AmSOUTH BANK, N.A.
88-709.
Supreme Court of Alabama.
January 12, 1990.
Rehearing Denied March 2, 1990.
Charles Cleveland of Cleveland & Cleveland, Birmingham, for appellant.
Maibeth J. Porter of Maynard, Cooper, Frierson & Gale, Birmingham, for appellee AmSouth Bank, N.A.
Norman P. Snell of Trimmier and Associates, Birmingham, for Vanguard Bank & Trust Co.
James C. Huckaby, Jr. and Lisa Huggins of Haskell, Slaughter & Young, Birmingham, for Dr. Thomas L. Windham and Linda T. Windham.
KENNEDY, Justice.
The plaintiff, N & C Properties ("N & C"), appeals from a summary judgment in favor of defendant AmSouth Bank, N.A. ("AmSouth"), that was made final pursuant to Rule 54(b), A.R.Civ.P.[1] We affirm.
The issue is whether AmSouth improperly refused to fund four letters of credit (referred to herein as "LCs") presented for payment by a court-appointed successor escrow agent.
On June 10, 1983, AmSouth issued two LCs at the request of a customer, Dr. Thomas L. Windham. LC 7139 was issued in the amount of $11,114.85 as earnest money for the purchase of unit 208 of East Pass Towers condominium, Destin, Florida, which was developed and sold by N & C. LC 7140, for $45,584, was issued as earnest money for unit 308 in the same condominium development. The expiration date on these LCs was August 15, 1985. On April 11, 1984, AmSouth issued two additional LCs for Dr. Windham, LC 8135, in the amount of $45,186, and LC 8136, for $28,965, as earnest monies for a third and a fourth condominium (units 307 and 102, respectively) at East Pass Towers. The expiration date on these LCs was April 30, 1985, but that date was later extended to July 30, 1985.
Gulf South Corridor Properties, Inc. ("Gulf South"), acted as escrow agent for the project and, as such, was named as the beneficiary of all four LCs.
LC 7139 appeared as follows:
"DATE: JUNE 10, 1983
*907 "AMOUNT: $11,114.85
"RE: PURCHASE OF CONDOMINIUM UNIT FROM EAST PASS TOWERS CONDOMINIUM, OKALOOSA COUNTY, DESTIN, FLORIDA.
(Emphasis added.) The other LCs were essentially identical in form and content, except for the dollar amounts and the condominium unit references.
In July 1985, Vanguard Bank & Trust Company ("Vanguard") was named as the successor escrow agent to Gulf South by order of the Circuit Court of Okaloosa County. The court ordered that Gulf South "turn over to the Vanguard Bank and Trust Company ... all funds contained in the escrow account, all letters of credit, and all documents pertaining to the escrow account." AmSouth was notified that Vanguard had been substituted for Gulf South as the escrow agent.
N & C allegedly completed construction of the four condominium units in March 1985. N & C notified Dr. Windham of completion and requested that he proceed to "close" on all four units. Dr. Windham refused to complete the transactions. On July 30, 1985, AmSouth received the following letter, dated July 29, 1985, with a sight draft from Vanguard to call LC 8135:
"You will find enclosed our sight draft in the amount of $45,186.00. Please pay same against the referenced letter of credit. The developer has certified to us *908 that monies are due them under Thomas L. Windham, M.D. purchase agreement on condominium Unit # 307-N and has directed us to present said letters of credit to you for payment.
(Emphasis added.) An identical letter was sent to AmSouth respecting LC 8136 on the same date. AmSouth notified Vanguard that the calls on the LCs were insufficient. In response, Vanguard also provided AmSouth with a copy of the following letter written by the president of N & C to Vanguard:
However, AmSouth refused to fund LCs 8135 and 8136, and these LCs expired July 30, 1985.
On August 13, 1985, Vanguard sent the following letter with sight drafts to AmSouth to call LCs 7139 and 7140:
"International Department "P.O. Box 11007 "Birmingham, AL 35288
"Re: Letters of Credit # IC-7139 and # 7140, Thomas L. Windham, M.D.
AmSouth also refused to fund LCs 7139 and 7140, and those LCs expired August 15, 1985. AmSouth refused to fund the LCs because "the letter of credit specifically call[ed] for a statement signed by the beneficiary containing explicit statements set forth in each letter of credit."
In March 1986, N & C Properties sued AmSouth, Vanguard, and Dr. and Mrs. Windham, alleging that the Windhams had defaulted on all four contracts and that AmSouth had wrongfully refused to honor the LCs on the basis that the call by Vanguard was defective. Alternatively, N & C alleged that if the call was actually defective, then Vanguard was liable to it based on its negligence in making the call. Vanguard *909 and AmSouth moved for summary judgments. N & C moved for a partial summary judgment against AmSouth and Vanguard and stated that the banks' motions for summary judgment, taken together, were inconsistent because, N & C contended, if AmSouth was entitled to summary judgment because the LCs were not properly called, then Vanguard was liable to N & C as a matter of law for having negligently prepared the documents in making the calls. N & C argued for summary judgment against AmSouth, or in the alternative against Vanguard, as to any issue in which the trial court determined that the other bank was entitled to summary judgment. The trial court entered summary judgment for AmSouth without making findings of fact or issuing a formal opinion, and made it final pursuant to Rule 54(b), A.R.Civ.P.; N & C appealed.
N & C argues that Vanguard was the proper party to call the LCs and that N & C was the proper party to make the certifications required by the LCs. AmSouth argues that the escrow agent, rather than N & C, should have made the certifications required in the LCs and that because the escrow agent failed to make the certifications AmSouth was not obligated to fund the LCs. Specifically, AmSouth contends that the language "your signed statement reading `we hereby certify that monies are due us'" (emphasis added) contained in the LCs referred to the escrow agent, Gulf South, and then arguably to Vanguard, and not to N & C.
Vanguard, as the successor escrow agent to Gulf South, was the proper party to call the LCs. Although the LCs were never reissued to Vanguard in place of Gulf South, the order of the Circuit Court of Okaloosa County effectively substituted Vanguard for Gulf South as the escrow agent; that substitution gave Vanguard all the rights under the LCs previously held by Gulf South.
"`The controlling rule is that the letter of credit must be strictly construed and performed precisely in accordance with its terms.'" Bebco Distributors, Inc. v. Farmers & Merchants Bank, 485 So. 2d 330, 331 (Ala.1986); Bank of the Southeast v. Jackson, 413 So. 2d 1091, 1098 (Ala. 1982); American Nat'l Bank & Trust Co. v. Banco Nacional De Nicaragua, 231 Ala. 614, 620, 166 So. 8, 13 (1936). Alabama, with the majority of the states, follows the "strict compliance" rule governing the acceptance of letters of credit.
In this case, the LCs required the escrow agent to send to AmSouth a signed statement reading "We hereby certify that monies are due us under the purchaser, Thomas L. Windham's, reservation or purchase agreement...." Vanguard's call letters stated, "The developer has certified to us" that the monies from the LCs were due to N & C under Dr. Windham's purchase agreements. The record indicates that in April 1985 the original escrow agent, Gulf South, had made this certification to AmSouth, to which AmSouth made no objection. However, that draw was later recalled. Vanguard never provided the certifications set forth in the LCs.
The LCs are unambiguous, and we must apply the rule of strict compliance. The calls made by Vanguard were defective, and the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
[1] Plaintiff also sued Vanguard Bank & Trust Company, Dr. Thomas L. Windham, and Linda T. Windham. These defendants have filed briefs as "appellees"; however, they are not directly involved in this appeal, and we consider each of these parties to be amicus curiae. | January 12, 1990 |
aa1dda01-a7bd-471e-9be5-a663f34fab7c | Ex Parte Shelby Medical Center, Inc. | 564 So. 2d 63 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 63 (1990)
Ex parte SHELBY MEDICAL CENTER, INC.
Ex parte BESSEMER CARRAWAY MEDICAL CENTER.
Ex parte ST. VINCENT'S HOSPITAL.
Ex parte AMI BROOKWOOD MEDICAL CENTER.
Re STATE HEALTH PLANNING AND DEVELOPMENT AGENCY
v.
AMI BROOKWOOD MEDICAL CENTER, et al..
88-820, 88-877, 88-878 and 88-883.
Supreme Court of Alabama.
February 16, 1990.
Rehearing Denied April 12, 1990.
*65 Michael S. Jackson of Beers, Anderson, Jackson & Smith, Montgomery, for petitioner Shelby Medical Center, Inc.
Roy J. Crawford and Helen Currie Foster of Cabaniss, Johnston, Gardner, Dumas, & O'Neal, Birmingham, for petitioner Bessemer Carraway Medical Center.
Susan Dominick Doughton and Terry McElheny of Dominick, Fletcher, Yeilding, Wood, & Lloyd, Birmingham, for petitioner St. Vincent's Hosp.
James A. Holliman and Candice J. Shockley of Holliman, Shockley, Kelly & Acker, Bessemer, for petitioner AMI Brookwood Medical Center.
Don Siegelman, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for respondent.
SHORES, Justice.
These petitions involve the issuance in May 1986 of a certificate of need ("CON") by the State Health Planning and Development Agency ("SHPDA") to the Lloyd Noland Foundation to construct a hospital in the Riverchase area of southern Jefferson and northern Shelby Counties. In 1982, SHPDA had denied the applications of six other hospitals for a CON to build a hospital in the same area. The six hospitals appealed from this denial. In May 1984, while the appeal was pending before the Montgomery County Circuit Court, Lloyd Noland filed its CON application with SHPDA. The circuit court enjoined SHPDA from hearing the application until the appeal involving the other six hospitals was decided. On November 28, 1984, the circuit court affirmed SHPDA's denial of the CON to the six hospitals, holding that SHPDA's decision was not arbitrary or capricious and that there was no community need in southern Jefferson and northern Shelby Counties for an acute care hospital.
Meanwhile, on August 1, 1984, Governor Wallace had issued Executive Order 28, placing a moratorium on the filing, acceptance, and processing of CON applications. On January 14, 1986, a fourth amendment to the moratorium was issued. Under this amendment, the moratorium no longer prohibited the relocation of a health care facility if the relocation did not result in the addition of new beds or services. Then on October 27, 1986, a fifth amendment to Executive Order 28 was issued, extending *66 the moratorium to cover new hospital construction "under the guise of `relocation.'" Under this amendment, relocations could be approved only if the relocation was necessary to replace an existing general acute care hospital in its entirety because of its physical condition.
SHPDA held a hearing on May 13, 1986, to consider Lloyd Noland's CON application. Both a motion to deny and a motion to approve the application failed for lack of a second. The nine-member Review Board then voted by written ballot, approving the CON by a vote of 4 to 2. One member of the Review Board, Dr. Leon Hamrick, had recused himself because he was also the medical director, chief of surgery, and president of the board of trustees of Lloyd Noland.
Following this decision, AMI Brookwood Medical Center, Bessemer Carraway Medical Center, Shelby Medical Center, and St. Vincent's Hospital filed appeals, which were consolidated before the Circuit Court of Jefferson County, Bessemer Division. Brookwood, St. Vincent's, and Shelby Medical Center had applied for a CON in 1981 and 1982 and their applications had been denied. The circuit court reversed and vacated SHPDA's decision to grant Lloyd Noland a CON, finding that SHPDA's order was clearly erroneous in light of the reliable, probative, and substantial evidence on the whole record. Lloyd Noland and SHPDA appealed to the Court of Civil Appeals, which reversed the circuit court's ruling and ordered the lower court to reinstate SHPDA's decision. The Court of Civil Appeals also held that the appellee hospitals (hereinafter "the hospitals"), had waived the right to challenge alleged statutory violations by SHPDA by not cross-appealing from the circuit court's final order.
On rehearing, 564 So. 2d 54, the Court of Civil Appeals held that a cross-appeal was unnecessary to preserve for review the issues of res judicata and collateral estoppel, whether the majority-vote requirement of the Alabama Administrative Procedure Act ("AAPA") had been met, and whether the Alabama Sunshine Act applied, but that a cross-appeal was necessary for the hospitals to request a remand of the case to SHPDA to make required findings of fact. The court held that res judicata and collateral estoppel were inapplicable and that SHPDA's vote met the AAPA majority-vote requirement. The court did not decide whether the secret ballot violated the Alabama Sunshine Act, nor did it make the requested corrections and additions to its statement of facts. See Rule 39(k), A.R. App.P. The court refused to undo its reversal of the circuit court's order and again ordered that it reinstate SHPDA's decision to issue Lloyd Noland a CON. Thereafter, the four hospitals petitioned this Court for a writ of certiorari.
The hospitals argue that SHPDA committed procedural and statutory errors by failing to obtain a majority vote of the entire CON Review Board, by voting by written ballot, and by failing to include written findings of fact in its final order. The hospitals also claim that collateral estoppel and res judicata apply to SHPDA's 1982 denial to the original six applicants and to the Montgomery Circuit Court's affirmance of that denial, that there was insufficient evidence to support SHPDA's grant of a CON to Lloyd Noland, and that the Governor's moratorium prohibited the issuance of the CON to Lloyd Noland.
The nine-member CON Review Board approved this CON application by a vote of 4 to 2. The hospitals argue that approval by a majority of the entire nine members was required, while SHPDA and Lloyd Noland claim that approval by a majority of a quorum was sufficient. We agree with SHPDA and Lloyd Noland, as did the Court of Civil Appeals, that a majority of a quorum is sufficient. Alabama Code 1975, § 41-22-15, provides that "in a contested case, a majority of the officials of the agency who are to render the final order must be in accord for the decision of the agency to be a final decision." Under § 41-22-3(8), a "quorum," defined as a majority of the members of an agency, is authorized to act in the name of the agency. Thus, construing these two statutes together, we conclude that only a majority *67 of a quorum is required to approve an agency decision. Further, SHPDA regulations provide that parliamentary procedure be observed within the discretion of the chairman of the CON Review Board according to Robert's Rules of Order. Rule 410-1-3-08, State Health Planning Agency (1979). According to Robert's Rules of Order, unless agency rules dictate otherwise, a majority of a quorum is sufficient to approve an agency's acts. Robert's Rules of Order, 3 (Newly Revised, 1981). The vote in this case met this requirement, in that four of the six members of the nine-member Review Board approved the CON.
The hospitals claim that SHPDA's vote by written ballot violates the Alabama Sunshine Act, § 13A-14-2, Code 1975. This Act prohibits executive or secret sessions by certain state agencies, including SHPDA, and provides for a fine of $10 to $500 for violation of the Act. The Sunshine Act does not prohibit vote by written ballot. Even if it did, the Act does not render void actions taken in violation of its provisions. Ex parte Alabama Public Service Commission, 376 So. 2d 665 (Ala. 1979).
CON statutes and SHPDA regulations do not prescribe a particular method of voting but, as noted earlier, provide that parliamentary procedure be observed within the discretion of the chairman of the CON Review Board according to Robert's Rules of Order. That authority provides that a vote can be taken by written ballot, if this manner of voting is approved by a majority vote, when it is believed that a secret vote will lead to a truer result. Robert's, 240, 348. In this case, two voice votes had been inconclusive. Thus, a vote by written ballot was appropriate. The change in voting method was not approved by a majority vote, as it should have been. However, this procedural flaw did not prejudice substantial rights of the hospitals. The chairman asked if there were any objections, and none of the members of the CON Review Board and none of the speakers objected to the manner of voting. Since there was no timely objection, any objection was waived. 73A C.J.S. Public Administrative Law and Procedure, § 191, pp. 211-12 (1983).
The hospitals claim that the fifth amendment to the Governor's moratorium prohibits the issuance of a CON to Lloyd Noland. Lloyd Noland's CON application was filed in May 1984. Executive Order 28, dated August 1, 1984, imposed a moratorium on the filing, acceptance of, consideration of, and acting upon CON applications. The fourth amendment to this order, dated January 14, 1986, provided that the moratorium "no longer relates to the relocation of a health facility ... not result[ing] in the addition of new beds or services." Lloyd Noland's application was heard and approved by the CON Review Board in May 1986. The fifth amendment, dated October 27, 1986, extended the moratorium to apply to new hospital construction "under the guise of relocation," except in the case of relocation necessary to replace an existing general acute care hospital or nursing home in its entirety because of its physical condition.
The hospitals claim that the fifth amendment merely clarifies the executive order and that the prior amendments, including the fourth amendment, must be interpreted in light of the fifth amendment. They claim that the fifth amendment makes it clear that the moratorium was never intended to allow costly new hospitals to be created from existing hospitals' licensed bed capacity. The fifth amendment, however, does not indicate that it is to have retroactive application, nor that it is to void results of hearings conducted under the fourth amendment. The amendment states that the moratorium "shall relate" to relocations and, that under certain conditions, total relocations are possible under the moratorium "as hereby amended." Thus, the moratorium had been effectively lifted by the fourth amendment at the time of the hearing on Lloyd Noland's application.
Further, the hospitals argue that even if the fourth amendment allowed the hearing on Lloyd Noland's application, the fifth *68 amendment prohibits the actual issuance of the CON and resulting construction of the hospital. This argument is now moot because the moratorium expired on June 19, 1989, pursuant to the ninth amendment to Executive Order 28.
The hospitals claim that the doctrines of res judicata and collateral estoppel precluded SHPDA from making findings contrary to its 1982 denial to the original six applicants for a CON for a hospital in Riverchase, and that the doctrines of res judicata and collateral estoppel bind Lloyd Noland and SHPDA to the Montgomery County Circuit Court's decision upholding that denial.
The applicability of the doctrine of res judicata requires:
Wheeler v. First Alabama Bank, 364 So. 2d 1190, 1199 (Ala.1978). The doctrine of collateral estoppel applies when:
Pantex Towing Corp. v. Glidewell, 763 F.2d 1241, 1245 (11th Cir.1985). The circuit court and the Court of Civil Appeals held that neither res judicata nor collateral estoppel applied in this case because they found no identity of parties and issues.
Lloyd Noland was not bound to the Montgomery Circuit Court decision by res judicata or collateral estoppel, because it was not a party to that decision, it was not privy to a party, and its interests were not adequately represented by a party in the earlier suit. Whisman v. Alabama Power Co., 512 So. 2d 78, 82 (Ala.1987). The record is insufficient to determine whether SHPDA was precluded by res judicata or collateral estoppel from arguing in the Montgomery Circuit Court that there was a need for Lloyd Noland's proposed facility. The record does not contain the prior applications nor SHPDA's denial of the applications, only the order of the Montgomery Circuit Court affirming the denial. Further, res judicata and collateral estoppel would not preclude SHPDA itself from granting Lloyd Noland's CON application, but rather the issue would be whether the doctrine of stare decisis would preclude SHPDA from making a determination inconsistent with the prior denial of a CON to other applicants for a facility in the same area. Because there is need for flexibility in administrative decisionmaking, the doctrine of stare decisis generally does not bind administrative agencies to their prior decisions. Thus, when inconsistent determinations are made by an administrative agency, the issue is whether the agency has acted in an arbitrary and capricious manner. 73A C.J.S. Public Administrative Law and Procedure § 157, pp. 144-46 (1983). Again, the record is insufficient for us to make this determination, because we do not have before us the evidence presented to the CON Review Board by the prior applicants.
The Court of Civil Appeals ruled that substantial evidence supported each of the findings required by Alabama Code 1975, § 22-21-266. Under § 22-21-266, SHPDA must make each of the following findings before granting a CON for new inpatient facilities or services:
Pursuant to Alabama Code 1975, § 41-22-20(k), SHPDA's decision granting the CON is to "be taken as prima facie just and reasonable and [a reviewing] court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." However, the court can "reverse or modify the decision ... if [it is] clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." Alabama Code 1975, § 41-22-20(k)(6). The circuit court found that the decision was clearly erroneous. The Court of Civil Appeals, however, found that SHPDA's decision was not clearly erroneous, because, it held, substantial evidence supported each of the requirements of § 22-21-266. We reverse the judgment of the Court of Civil Appeals, because we conclude that SHPDA's decision was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
First, we hold that the record does not support a finding of consistency with the State Health Plan ("SHP"). SHPDA and Lloyd Noland claim that the proposed facility is consistent with the SHP because it involves relocating beds rather than adding beds to the area. The SHP is designed to allocate health care resources in such a way that health care services are available and accessible at reasonable costs. The basis for state health planning is the projection of bed needthe number of acute general hospital beds needed five years in the future. Under the bed-need methodology approved September 1, 1983, Jefferson County was projected to have 373 excess beds in 1988, while Shelby County was projected to need 16 beds in 1988. Technically, Lloyd Noland's proposal would not violate the bed-need methodology, because it would not add newly licensed beds to the area. However, 40% of the beds it seeks to relocate are beds that are not staffed at its Fairfield facility. Constructing a new $26,270,000 hospital in an overbedded area, relocating currently unstaffed beds into the new hospital, and providing duplicative services in the new hospital do not promote the SHP goal of cost containment. In Humana Medical Corp. v. State Health Planning & Dev. Agency, 460 So. 2d 1295 (Ala.Civ.App.1984), it was determined that there was no community need to relocate 31 beds into an already existing hospital in an area with an excess of 160 beds and with occupancy rates at hospitals in the county below 80%. Here, there is even less evidence of community need. Jefferson County was projected to be overbedded by 373 beds by 1988, 157 beds were proposed to be relocated, and the average occupancy for area hospitals was below 70%.
Second, there was evidence of less costly, more efficient, or appropriate alternatives to the proposed service. As noted by the circuit court, Lloyd Noland has been innovative in providing prepaid medical plans; however, by the time of the hearing on its application, there were at least seven other prepaid plans provided by other area hospitals. The evidence showed that less costly alternatives were available through these plans.
Third, the record indicates that existing inpatient facilities with services similar to those proposed are not being used in an appropriate and efficient manner consistent with community demands. The record indicates that, while the population in the proposed service area is increasing, the occupancy rates for surrounding hospitals are falling. Lloyd Noland and SHPDA *70 provided evidence of population growth. However, Bessemer Carraway provided statistics from the Health Planning Agency and the Alabama Hospital Association showing that occupancy rates for area hospitals are falling and that the average occupancy for area hospitals is below 70%.
Fourth, according to the evidence, alternatives to new construction have not been considered or implemented to the maximum extent practicable. Lloyd Noland considered alternatives beneficial to it, but did not consider alternatives beneficial to the community. The needs of the Fairfield residents could be met by the renovation of the Fairfield facility. It was not shown that the residents of southern Jefferson County and northern Shelby County needed a relocation of beds from Lloyd Noland. Sharing arrangements with other hospitals were not considered. Lloyd Noland argues that such arrangements were not feasible because Lloyd Noland's physicians accept Medicaid and Medicare, and they contend that physicians at the other hospitals would not. This claim is irrelevant, because the average household income for the area ($42,172) and the low percentage of persons over age 65 (8%) do not indicate a need for Medicaid or Medicare in the area.
Fifth, the record reflects that patients will not experience serious problems in obtaining inpatient care of the type proposed in the absence of the proposed new service. The record indicates that the services offered would duplicate those offered by existing facilities in the area. As noted by the circuit court, Brookwood Hospital is eight miles from the proposed service area, Shelby Medical Center is 10 miles away, and Bessemer Carraway is 11 miles away. The Court of Civil Appeals stated that financial accessibility is a factor as well as geographic accessibility, and noted that there was evidence that Lloyd Noland and its doctors would accept Medicare and Medicaid patients that other facilities' doctors would not. We agree that financial accessibility is a factor, but, as noted above, the evidence does not indicate a need for Medicaid or Medicare services in the proposed service area. While Lloyd Noland showed a need for such services at its Fairfield facility, those needs could be met by the renovation of that facility. Also, the Court of Civil Appeals found that evidence presented by Lloyd Noland regarding the population growth in the area and an alleged maldistribution of beds in Jefferson County supported a finding of need for the proposed facility. The population in the proposed service area has grown in the past few years, yet this growth does not support a finding of need for a new hospital. While the population has grown, occupancy rates in area hospitals have fallen. Lloyd Noland also claims there is a maldistribution of beds in the greater Birmingham area which has resulted in southern Jefferson and northern Shelby Counties being underserved. Lloyd Noland, however, provided no evidence of maldistribution to support this claim. The requirement of § 22-21-266(5) was not met.
In its final order, SHPDA did not make any written findings of fact other than tracking the language of the CON statute, § 22-21-266. Section 41-22-16(b) of the AAPA requires that "findings of fact, if set forth in a manner which is no more than mere tracking of the statutory language, shall be accompanied by a concise and explicit statement of the underlying facts of record which support the findings." The rationale for this requirement is to facilitate judicial review of administrative decisions and to protect against careless or arbitrary decisions. See commentary to § 41-22-16.
SHPDA makes two claims in response to this failure to make factual findings. First, it argues that the findings required by § 22-21-266 are the required factual findings. Second, it argues that if the proper findings were not made, the only remedy is a remand to it to make such findings and that a reversal of its order is not an appropriate remedy.
The ultimate findings required by § 22-21-266 are not the underlying findings of fact required by § 41-22-16(b). We *71 recognized in Ex parte Nursing Home of Dothan, Inc., 542 So. 2d 940 (Ala.1989), that a mere tracking of § 22-21-266 is not strict compliance with § 41-22-16(b). In that case, however, we held that there was minimum compliance with the AAPA because the applicant was "constructively apprised of the reasons for SHPDA['s] ... decision" in view of the testimony presented at the CON hearing. Id. at 945. We noted that the testimony presented supported SHPDA's findings. In this case, however, there is insufficient evidence in the record to support the § 22-21-266 findings. Because it is not clear from the record what reasons or facts SHPDA relied on in making the § 22-21-266 findings, § 41-22-16(b) is not satisfied. Because SHPDA's decision on the merits must be reversed for insufficiency of the evidence to support it, it is unnecessary to determine whether the case should be remanded or reversed for inadequate factual findings.
We hold that SHPDA's decision granting a CON to Lloyd Noland was clearly erroneous, because the record did not contain substantial evidence to support the findings required by § 22-21-266. We reverse the Court of Civil Appeals' judgment and remand with instructions that it affirm the circuit court's judgment vacating SHPDA's decision.
REVERSED AND REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and JONES, ADAMS and HOUSTON, JJ., concur.
STEAGALL, J., concurs in the result.
MADDOX, J., concurs in part and dissents in part.
KENNEDY, J., recused.
MADDOX, Justice (concurring in part; dissenting in part).
I concur with Sections I, II, III, and IV, which address the claims that SHPDA committed certain procedural and statutory errors, such as failing to obtain a majority vote of the entire CON Review Board, voting by written ballot, and failing to include sufficient findings of fact in its final order, and the further claims that collateral estoppel and res judicata apply to an earlier denial by SHPDA of a CON, and that the Governor's moratorium prohibits the issuance of a CON to Lloyd Noland Hospital. I must respectfully disagree, however, with the holding by the Court "that SHPDA's decision granting a CON to Lloyd Noland was clearly erroneous, because the record did not contain substantial evidence to support the findings required by § 22-21-266."
The effect of this holding is that the Court has substituted its own judgment for that of the Certificate of Need Review Board, the administrative agency designated by law to make the determination. The Court first holds "that the record does not support a finding of consistency with the State Health Plan (`SHP')," even though SHPDA, the agency responsible for policing and implementing the SHP, argues that there is no inconsistency. After making this holding, the Court then engages in an independent weighing of the evidence and concludes that "[c]onstructing a new $26,270,000 hospital in an overbedded area, relocating currently unstaffed beds into the new hospital, and providing duplicative services in the new hospital do not promote the SHP goal of cost containment." The Court then finds that "there was evidence of less costly, more efficient, or appropriate alternatives to the proposed service," and then cites, with approval, a circuit court determination that there were less costly alternatives available through prepaid medical plans. Additionally, the Court found that "the record indicates that existing inpatient facilities with services similar to those proposed are not being used in an appropriate and efficient manner consistent with community demands," that "alternatives to new construction have not been considered and implemented to the maximum extent practicable," and that "the record reflects that patients will not experience serious problems in obtaining inpatient care of the type proposed in the absence of the proposed new service."
The role of courts generally in reviewing an administrative agency's determination is *72 stated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984):
467 U.S. at 842-45, 104 S. Ct. at 2781-83.
In exercising its independent assessment of the evidence and the actual need for a community hospital at the proposed location, the Court unfortunately has expanded the role of the judiciary in reviewing administrative action. The scope of judicial review is clearly set out in the Alabama Administrative Procedure Act, Ala.Code 1975, § 41-22-20(k):
The area where the proposed community hospital is proposed to be located is in the heart of one of the fastest growing areas of the State, and indeed, the nation. The fact that some of the petitioners had earlier requested a CON for the same area, and the fact that petitioners argue, albeit without success, that the prior determinations by the Board on those requests collaterally estop the Board from awarding the CON to Lloyd Noland, is evidence that would support the Board's determination of the "need" question.
The awarding of certificates of need, the setting of utility rates, the granting of motor carrier certificates, the granting of ABC licenses, the regulation of banks, zoning, and a myriad of other regulatory functions are vested in administrative boards and agencies that supposedly are in the best position to determine what is and what is not in the public good. Courts have a function in the process, but only where the decision of the administrative agency is clearly erroneous, "[u]nreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion." § 41-22-20(k)(7). I cannot find, as does the majority, that the Board's action here fits either of those categories.
I recognize the national concern with mounting health costs, and I recognize that providing health services has become a highly competitive business; this record contains substantial evidence of this competitiveness and of gubernatorial interest in the problem; nevertheless, I feel that the Court, in exercising its own independent review of the evidence, has weighed the evidence anew on the basic question and has, therefore, broadened the scope of judicial review, and has necessarily substituted its judgment for that of the administrative agency charged by law with the responsibility of protecting the public interest.
Based on these reasons, I must respectfully disagree with the Court's reversal of the judgment of the Court of Civil Appeals, which, I find, applied the proper scope of judicial review in this case. | February 16, 1990 |
b09a4ce0-a978-4b96-bbce-4b54b7602ff2 | McDowell v. Key | 557 So. 2d 1243 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1243 (1990)
Doris Collins McDOWELL and Roy McDowell
v.
Travis Lee KEY and Johnnie D. Key.
88-1208.
Supreme Court of Alabama.
January 26, 1990.
*1244 Leo E. Costello of Costello & Stott, Birmingham, for appellants.
John R. Levette, Birmingham, for appellees.
HOUSTON, Justice.
Roy McDowell and Doris Collins McDowell appeal from a judgment based on a jury verdict awarding Travis Key and Johnnie Key $200,000 on their claims against the McDowells. Those claims alleged deceit, fraudulent deceit, misrepresentation, conspiracy to defraud, and negligence and/or wantonness.
The McDowells owned a house situated on a 1.6078-acre lot (the 2623 North Road lot) in a subdivided neighborhood. Part of the backyard bordered Red Oak Circle, a cul-de-sac. In January 1986, the McDowells had the lot surveyed. The survey divided the 2623 North Road lot into two parcels: a .34-acre lot bordering Red Oak Circle and a 1.2678-acre lot bordering North Road, on which the McDowells' house was situated. The surveyor testified that at the time he surveyed this property he set stakes along the line marking the boundary between the North Road parcel and the Red Oak Circle parcel.
In early 1986, in order to refinance their mortgage on the 2623 North Road lot, the McDowells applied for a Veterans' Administration ("V.A.") approved loan through National Heritage Mortgage Corporation. The McDowells sent a legal description of the property and a 1983 survey of the entire 1.6078-acre parcel to a loan officer at National Heritage, who sent the information, along with a copy of the V.A. loan form, to a real estate appraiser. The property was appraised based on the lot's containing 1.6078 acres.
The McDowells later decided to sell the property and placed an advertisement in a newspaper, which read, in part, as follows:
Shortly thereafter, the Keys responded to the advertisement and met Mrs. McDowell, who was a licensed real estate salesperson, at her house. The parties dispute what happened in the negotiations. Viewing the evidence most favorably to the Keys, which our standard of review requires us to do, we conclude that the jury could have found the following facts: Mrs. McDowell indicated that the entire 1.6078acre lot was the property that the McDowells proposed to sell. There was nothing visible in the backyard indicating that the North Road parcel did not include the Red Oak parcel. Mr. McDowell also indicated that the entire 1.6078-acre lot was the property that the McDowells proposed to sell. The Keys never saw any stakes marking the boundary between the North Road parcel and the Red Oak Circle parcel. The surveyor testified that between the time he surveyed the property and the time the sales contract was signed he replaced all of the boundary stakes, including the stakes between the North Road parcel and the Red Oak parcel, five or six times because the stakes kept disappearing. There was evidence that, while touring the property, Key asked McDowell if he knew the exact acreage of the property, and that McDowell replied that he did not know, and that Key said it looked like "about two acres" and McDowell replied "it could be."
The Keys were not sophisticated buyers. Mr. Key, who conducted most of the negotiations, had received a general educational development (G.E.D.) certificate after having dropped out of school in the ninth grade. At the time of the negotiations, he had recently retired after 33 years of work as a machine operator. Although he had purchased real estate four times before, and had seen surveys in connection with those purchases, he said he did not know that lenders required a survey before closing a loan. Mrs. McDowell was a licensed real estate agent, bound by the "Code of Ethics and Standards of Practice of the *1245 National Association of Realtors," which requires her to adhere to that Code when she is the principal in a sale of property. Key testified that Mrs. McDowell told him that she would take care of everything but the financing. Key further testified that Mrs. McDowell suggested that Key use the McDowells' V.A. appraisal in order to save time. She arranged for National Heritage to send the V.A. appraisal to the Keys' mortgagee, First Security, without telling Key that this appraisal included the entire 1.6078-acre lot, although she was not selling the Keys that entire lot.
On September 2, 1986, Key executed a sales contract, the forms for which were provided by Mrs. McDowell, for the purchase of the McDowells' property. The contract identified the McDowells' property as being located at 2623 North Road. The space provided for a legal description of the property was left blank.
On September 6, 1986, a new survey was completed, which excluded the Red Oak Circle parcel. Mrs. McDowell delivered a copy of the survey to the loan officer at First Security.
The Keys did not examine the property after the sales contract was signed. The sale was closed on October 17. The Keys paid for the North Road property at the closing. Key testified that the documents he signed at that time did not contain a legal description (i.e., a description beyond the street address) and that no survey was then available. Key testified that he requested to see the warranty deed, but did not see it; and that he was told that the deed would be delivered to him after the McDowells, who were out of town, had signed it. Key said that he and his wife did not receive copies of the closing documents until approximately three weeks after the closing. The deed described only the 1.2678-acre lot.
The Keys moved into the North Road house in November 1986. Shortly thereafter, Key discovered a notice for rezoning posted on a tree near Red Oak Circle.
On January 1, 1987, the McDowells conveyed the Red Oak Circle parcel to Mrs. McDowell's daughter, who has constructed a house thereon.
The trial court denied the McDowells' motion for a judgment notwithstanding the verdict, or, alternatively, a new trial; and they appeal, presenting four issues for review.
The McDowells argue that the trial court erred in overruling their motion for a mistrial based on allegedly prejudicial testimony of Ritzie Moore, the plaintiffs' daughter.
During the examination of Mrs. Moore, plaintiffs' counsel elicited the following testimony:
In order for the admission of evidence to be reversible error, the appellant must show that the admission was erroneous, and that "the error complained of has probably injuriously affected [the] substantial rights of the parties." Dinmark v. Farrier, 510 So. 2d 819, 821 (Ala.1987), quoting Rule 45, A.R.App.P. See Ritter v. State, 494 So. 2d 76 (Ala.Civ.App.1986).
The McDowells contend that Mrs. Moore's testimony implies that her father's open heart surgery resulted from discovery of the alleged fraud. They argue that the statement was so prejudicial that the trial court's instructions to disregard the statement could not eradicate its effect. The Keys admit that the statement indicated that the discovery of the fraud placed stress on Key at a time when he had had open heart surgery, and they admit that the trial court properly instructed the jury to disregard it. However, they contend that the statement did not injuriously affect the substantial rights of the McDowells. The Keys argue that the trial court's immediate action in instructing the jury to disregard it cured any resulting prejudice.
In Lloyd Noland Foundation, Inc. v. Harris, 295 Ala. 63, 322 So. 2d 709 (1975), an action for damages resulting from personal injuries, the plaintiff's husband injected insurance into the case by nonresponsive testimony to a proper question. The trial court sustained the objection to the testimony and instructed the jury to disregard it. We held that the actions of the trial court eradicated any prejudicial effect of the witness's testimony.
Similarly, we conclude that the trial court's prompt admonishment to the jury to disregard Mrs. Moore's statement eradicated any prejudicial effect.
In their motion for a judgment notwithstanding the verdict or, alternatively, a new trial, the McDowells contended that the trial court erred in orally charging the jury that "a person has a duty to disclose all relevant information if someone inquires about a relevant matter." The trial court denied the motion and the McDowells seek review of the issue.
A strong presumption of correctness attaches to a trial court's ruling on a motion for new trial, and the ruling will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error. Hill v. Sherwood, 488 So. 2d 1357, 1359 (Ala.1986). But, where the record reveals that an erroneous charge is given to the jury, a new trial is required. Beneficial Management Corp. of America v. Evans, 421 So. 2d 92 (Ala.1982).
In considering the propriety of the jury instruction complained of, we must read it in conjunction with the jury instruction immediately preceding. Both instructions state the law as given in Boswell v. Coker, 519 So. 2d 493 (Ala.1987). The jury instruction immediately preceding the jury instruction complained of restates the following from Boswell:
519 So. 2d at 495. (Emphasis added.) The jury instruction complained of merely summarizes the Boswell language.
If the Keys had not inquired about the property, the McDowells would have been under no duty to speak. However, there was evidence that the Keys did inquire about the property. The McDowells contend that the only "inquir[y] about a relevant matter" occurred when Mr. Key questioned Mr. McDowell about the acreage of the North Road property. We disagree. There was evidence that the Keys inquired of both Mr. and Mrs. McDowell about the boundaries of the property. The jury instruction complained of properly states the duty of a seller of a used residence, or his real estate agent, to respond when someone inquires about a relevant matter. Boswell, supra. See Fennell Realty Co. v. Martin, 529 So. 2d 1003, 1005 (Ala.1988). Therefore, the trial court did not err in charging the jury as it did.
The McDowells contend that the trial court erred in submitting the Keys' fraud claims to the jury because, they argue, the Keys could not, as a matter of law, have relied on the statements allegedly made by the McDowells. They argue that the facts, as the Keys tell them, should have led the Keys to discover the truth. That is, the McDowells argue that the absence of a warranty deed at closing and the absence of a legal description and a survey in the documents comprising the mortgage note and the mortgage should have excited inquiry, which, they say, would have led the Keys to discover the true boundaries of the North Road parcel.
The Keys' complaint was pending on June 11, 1987; therefore, the Keys had to present only a scintilla of evidence of each element of fraud for this claim to be properly submitted to the jury. Dardess v. SouthTrust Bank of the Quad Cities, 555 So. 2d 746 (Ala.1989). This Court stated in National Sec. Fire & Cas. Co. v. Vintson, 454 So. 2d 942, 943-44 (Ala.1984):
"Reliance" by the plaintiff on the representation of the defendant is an element of fraud. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928 (Ala.1985). In Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989), this Court stated:
"`[r]eliance should be assessed by the following standard: A plaintiff, given the particular facts of his knowledge, understanding, and present ability to fully comprehend the nature of the subject transaction and its ramifications, has not justifiably relied on the defendant's representation if that representation is "one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth."'
(Emphasis added.) Thus, the issue is whether the Keys could be found to have justifiably relied on the McDowells' representations even though at closing there was no warranty deed and the mortgage note and the mortgage itself contained no legal description and no survey was available.
This Court addressed this issue in Cahaba Valley Development Corp. v. Nuding, 512 So. 2d 46 (Ala.1987), in which the facts were as follows: The plaintiffs, Mr. and Mrs. Nuding, responded to an advertisement for the sale of a house and three acres of land. Mrs. Nuding viewed the property twice, the second time with the *1248 seller's real estate agent, who showed her the boundaries and told her that the unfenced property contained three acres. The plaintiffs signed a sales contract that described the property as being three acres, more or less. The plaintiffs lived in the house until closing. A day before the closing a survey was made, which did not indicate the acreage of the property, and stakes were put down marking the boundaries. That day, Mr. Nuding and the surveyor viewed the property, and both expressed doubt about whether the property consisted of three acres. After the closing, the surveyor computed the acreage to be 1.1 acres. The plaintiffs sued and the jury found in their favor. On appeal, the sellers argued that the plaintiffs could not have relied on the defendants' misrepresentations because the plaintiffs suspected before the closing that the property did not contain three acres. Stating that the evidence was disputed as to whether the plaintiffs had actual cause to suspect that the property was less than three acres, we upheld the jury verdict, while recognizing the following law on reasonable reliance:
"`We have no quarrel with the basic legal proposition that the representee's reliance must be reasonable under the circumstances; and, where a party has reason to doubt the truth of the representation or is informed of the truth before he acts, he has no right to act thereon. We reaffirm the principle of the law of fraud that knowledge of such facts which ought to excite inquiry and which, if pursued, would lead to knowledge of other facts, operates as notice of these other facts.'"
512 So. 2d at 49, quoting from Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413, 415 (Ala.1980).
The facts in this case in favor of the Keys are stronger than those in Cahaba Valley Development, supra, were in favor of the Nudings. In Cahaba Valley Development, the plaintiffs received all the property they expected to receive; however, that property did not contain as many acres as it was represented to contain. In the case at issue, the McDowells told the Keys that the North Road property included property that it did not include. The author of this opinion and Chief Justice Torbert dissented on the issue of reliance in Cahaba Valley Development. In this case, the jury could find that there were no facts "which ought to excite inquiry and which, if pursued, would lead to knowledge of other facts" so as to operate as knowledge of those other facts. Therefore, the trial court did not err in submitting the issue of fraud to the jury.
At the close of all the evidence, the trial court instructed the jury that if it found for the Keys, it should award the Keys compensatory damages for the loss in the value of the land and the mental anguish they suffered,[1] if any, and that if it found that the McDowells had knowingly committed legal fraud, then it could award punitive damages. The trial court directed the jury to answer the following interrogatory: "If you return a verdict for the Plaintiffs what was the loss in the value of the land at the date of injury?" The jury determined that the loss in the value of the land was $10,000.[2] Therefore, $190,000 was to compensate the Keys for mental anguish and/or to punish the McDowells.
In their motion for a judgment notwithstanding the verdict or, alternatively, for a new trial, the McDowells alleged, among other things, that the verdict was excessive.
*1249 The trial court conducted a post-judgment hearing on the motion and denied it.
The McDowells did not argue in support of their post-trial motion that their financial position should be considered. Nothing was introduced at the hearing on this motion to indicate what effect this judgment would have on the McDowells. We cannot hold the trial court in error for not considering an argument that was not made. Likewise, we do not know how much of the $190,000 was to compensate the Keys for their mental anguish and how much was to punish the McDowells and to deter them from committing similar conduct again.
In Wilson v. Dukona Corp. N.V., 547 So. 2d 70, 73 (Ala.1989), this Court stated the following concerning the review of a jury's award of damages:
In the present case, we cannot discern what portion of the $190,000 might have been awarded to compensate the Keys and/or what portion was awarded to punish the McDowells. Therefore, giving primacy to the Keys' interest in being fully compensated, we would not be inclined to remit any portion of the general verdict until it is evident that, after allowing as much as could possibly be allowed for compensation, the remaining portion of the general verdict would, considering the defendant's financial condition, exceed an amount necessary to accomplish society's goal of adequately punishing and deterring the McDowells. The McDowells have the responsibility of convincing us of this and they have failed to do so.
Based on the foregoing, we affirm the trial court's judgment.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The McDowells did not object to this instruction on mental anguish; therefore, compensatory damages for mental anguish were recoverable in this case. We need not decide whether it would have been error for the trial court to instruct on mental anguish under the facts of this case if such an instruction had been objected to. See B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979).
[2] While the judge instructed, and the jury responded, in terms of "loss in the value of the land," we note that this case does not seem to be dealing with an actual "loss in value." We understand the judge and the jury to be dealing with a difference in the value the sold lot actually had and the value it would have had if it had contained the additional .34-acre Red Oak Circle parcel. No objection was made on this point. | January 26, 1990 |
961bb7ad-2f76-40ee-bfca-ac8a047ccc18 | Gore v. City of Hoover | 559 So. 2d 163 | N/A | Alabama | Alabama Supreme Court | 559 So. 2d 163 (1990)
Carrie S. GORE
v.
CITY OF HOOVER.
88-1067.
Supreme Court of Alabama.
February 23, 1990.
S. Greg Burge of Heninger, Burge & Vargo, Birmingham, for appellant.
Jack H. Harrison of Gordon, Harrison & Latham, Birmingham, for appellee.
ALMON, Justice.
This appeal involves an action for unlawful arrest brought by Carrie S. Gore *164 against the City of Hoover and Western Supermarkets, Inc. ("Western").
On March 30, 1987, Nancy Vining, in her capacity as a magistrate for the City of Hoover, received a complaint from Sharon Sellers, a representative of Western. Western requested a warrant for the arrest of Carrie J. Gore, alleging that she had presented a worthless check drawn on insufficient funds in violation of Ala.Code 1975, § 13A-9-13.1. Sellers had called the telephone number on the check but the number had been disconnected; she had sent a certified letter to the address on the check, but the letter had been returned "unclaimed."
Vining used computer information available to her and obtained an address for a "Carrie Gore" in Lanett, Alabama. According to Vining, there was no other "Carrie Gore" listed in the computer information. Printed on the check was the name "Carrie J. Gore" and the address "905 Royal Oaks Drive" in Birmingham. Handwritten on the check were the numbers "6/19/63" and "4731237." The Western cashier who took the check apparently wrote the numbers as the date of birth and the driver's license number of the person presenting the check, but the evidence indicates that Sellers did not explain to Vining what the numbers were. From the information on the computer, Vining typed onto an arrest information form the name "Carrie Gore," the date of birth "7/13/41," the address "1309 North 13th Avenue" in Lanett, and the driver's license number "3712583."[1] Vining issued a warrant for the arrest of Carrie Gore in Lanett. The plaintiff, Carrie S. Gore (hereinafter "Gore"), was arrested at that address, but the charges were dropped when it became clear that she was not the person who had presented the check.
On March 3, 1988, Gore filed suit against the City of Hoover and Western, alleging negligence, malicious prosecution, false arrest, and a cause of action under 42 U.S.C. § 1983. On July 8, 1988, the trial court granted Western's motion for summary judgment. On April 12, 1989, the trial court granted the City of Hoover's motion for summary judgment. Western is not a party to this appeal.
Gore argues that Magistrate Vining was negligent, that her negligence caused injury to Gore, and that the negligence occurred while Vining was acting within the line and scope of her authority. Gore concedes that she has no cause of action for false arrest or malicious prosecution, but argues that she can maintain a negligence action because, she says, her injuries were caused by the "neglect, carelessness, or unskillfulness" of the magistrate for the City of Hoover. Gore contends that the warrant for her arrest was wrongfully issued because, she says, the magistrate negligently failed to compare the information on the worthless check with the computer information she had obtained, and she contends that the city should be held liable under the provisions of Ala.Code 1975, § 11-47-190. That statute imposes liability for injuries suffered through "the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty."
The trial court correctly entered summary judgment for the city, however, because Vining was protected by judicial immunity while engaging in the judicial function of issuing warrants.
Bahakel v. City of Birmingham, 427 So. 2d 143 (Ala.1983), involved a very similar action for unlawful arrest against a municipality, a municipal magistrate, and the affiant who procured the plaintiff's arrest warrant (the claim against the affiant was not at issue on the appeal). The lead opinion began, "This appeal involves an action for an unlawful arrest," 427 So. 2d at 144, but then disposed of the claim against the city with the following rationale:
427 So. 2d at 145. As can be seen from the opinion of Chief Justice Torbert, concurring in part and dissenting in part, the only claim against the city was that the magistrate had negligently accepted the affiant's mistaken identification of Bahakel as the person who had brandished a weapon at her. Thus, the claim against the city was indistinguishable from the claim presented here, and could be described as "negligent misidentification of the plaintiff, leading to issuance by a magistrate of an arrest warrant."
Similarly, the claim in Boyette v. City of Mobile, 442 So. 2d 61 (Ala.1983), could be described as "negligent failure to investigate an alleged assault, leading to issuance by a magistrate of an arrest warrant." The three cases are indistinguishable, and this case, like Bahakel and Boyette, should be decided on the principle announced in Neighbors v. City of Birmingham, 384 So. 2d 113 (Ala.1980), that a municipality is immune from suit for false arrest or malicious prosecution, even after Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68 (1975), overruled the principle of governmental immunity for municipalities.
The Court in Bahakel v. City of Birmingham unanimously agreed that the complaint did not state a claim against the city, although six Justices voted to reverse what they construed to be a Rule 12(b)(6), A.R.Civ.P., dismissal of the complaint as against the magistrate. The Court decided the issue of the magistrate's liability in Bahakel v. Tate, 503 So. 2d 837 (Ala.1987). After noting that seven of the Justices had voted in the previous appeal that Tate, the magistrate, was entitled to limited judicial immunity, the Court affirmed the summary judgment in his favor:
503 So. 2d at 839 (citation omitted).
The rationale of Neighbors appears to have been that an action will not lie against a municipality for malicious prosecution because such an action requires proof of malice, and § 11-47-190 provides for an action against a municipality for the "neglect, carelessness, or unskillfulness" of its agents, not for their intentional torts: "To construe that language to include an action for malicious prosecution would be to expand the words beyond their normal meaning. This we decline to do." 384 So. 2d at 114.
That rationale does not strictly apply to an action for false arrest, at least not one premised on negligence. Thus, Bahakel v. City of Birmingham may have extended the holding of Neighbors without doing so explicitly. Nevertheless, an action for false arrest does not lie under the facts of this case (and those of Bahakel and Boyette ) for the following reasons.
If the magistrate acted merely negligently, then he or she is protected by judicial immunity. The city could be liable only by respondeat superior, and if the agent is not liable, the principal cannot be held liable, either. United Steelworkers of America v. O'Neal, 437 So. 2d 101 (Ala.1983); Larry Terry Contractors, Inc. v. Bogle, 404 So. 2d 613 (Ala.1981). Although those cases, and the ones cited therein, concerned instances in which a jury found the agent not liable, we hold that the same principle should apply here. If the judicial officer cannot be held liable as a matter of public policy for negligent acts, similar considerations of public policy dictate that the municipality *166 itself cannot be held liable.[2]
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and STEAGALL, JJ., concur.
JONES and ADAMS, JJ., dissent.
ADAMS, Justice (dissenting).
The majority opinion concludes that "[i]f the judicial officer cannot be held liable as a matter of public policy for negligent acts, similar considerations of public policy dictate that the municipality itself cannot be held liable." Because this conclusion seriously erodes the intent of Ala.Code 1975, § 11-47-190, I must respectfully dissent.
The liability of municipalities for the neglect, carelessness, or unskillfulness of its agents, officers, or employees is statutorily based on § 11-47-190. That section provides, in part:
(Emphasis added.)
In Bahakel v. City of Birmingham, 427 So. 2d 143 (Ala.1983) ("Bahakel I"), an opinion that I authored, the majority refused to recognize a cause of action for "negligent prosecution" when determining the liability of a municiaplity. However, we specifically stated that whether a plaintiff could maintain a negligence-based action for an unlawful arrest, and thereby circumvent the principle that a municipality is not liable for false arrest or malicious prosecutions, was a question that we declined to answer based on the facts of that case. The plaintiff's theory of his case was characterized as "negligent prosecution," and we held that the municipality was not liable for "negligent prosecution" and remanded the issue of the individual liability of the magistrate.
Summary judgment in favor of the magistrate was later affirmed in Bahakel v. Tate, 503 So. 2d 837 (Ala.1987) ("Bahakel II"). In Bahakel II, we held that the magistrate was entitled to limited judicial immunity.
The facts in Bahakel I and the issue of judicial immunity present in Bahakel II are clearly distinguishable from the facts and issues in the instant case.
In Bahakel I and Bahakel II, the magistrate received information from an individual requesting a warrant for Bahakel's arrest. Based on the false information given to him, the magistrate issued a warrant for Bahakel's arrest. The magistrate in no way negligently, carelessly, or unskillfully performed his duties. The wrong individual was arrested merely because false information was provided to the magistrate.
In the instant case, Ms. Vining received information from an individual requesting a warrant for "Carrie J. Gore." Gore had allegedly presented a worthless check drawn on insufficient funds. The information given to Ms. Vining was correct. Vining used the computer information available to her and obtained an address for "Carrie Gore." She failed, however, to compare the computer information with the information appearing on the check, and the wrong individual was arrested.
A clear and distinguishing factor between the instant case and the Bahakel cases is that in the Bahakel cases there were insufficient facts to show neglect, *167 carelessness, or unskillfullness on the part of the magistrate. The magistrate accurately performed his duties in the Bahakel cases. However, in the present case, there was ample evidence indicating neglect, carelessness, or unskillfulness on the part of the magistrate to allow the facts to be presented to a jury.
Moreover, under the majority's analysis, a plaintiff could never bring an action for the "neglect, carelessness, or unskillfulness" of a municipal employee arising out of an unlawful arrest. This "carte blanche" immunity was not the intent of the Bahakel cases and is clearly contrary to § 11-47-190. Therefore, under the facts of the present case, I would conclude that summary judgment was improper on Gore's claim alleging neglect, carelessness, or unskillfullness.
The majority's analysis is flawed for another, more critical, reason. In the instant case, Gore sought damages only against the municipality under § 11-47-190 for the neglect, carelessness, or unskillfulness of Ms. Vining. Vining was not sued individually; therefore, the doctrine of judicial immunity as espoused in Bahakel II should not even be an issue.
However, even if Vining had been sued individually, I have serious doubts whether the doctrine of judicial immunity would shield her from liability in this case. "Judicial immunity" has been defined as:
Black's Law Dictionary 761 (5th ed. 1979) (citing C.M. Clark Insurance Agency, Inc. v. Reed, 390 F. Supp. 1056 (S.D.Tex.1975)).
The common law doctrine of judicial immunity that shields judges from civil liability has long been acknowledged. Pickett v. Richardson, 223 Ala. 683, 138 So. 274 (1931); Broom v. Douglass, 175 Ala. 268, 57 So. 860 (1912). The leading modern case on judicial immunity is Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). In Stump, the plaintiff sued a state judge under 42 U.S.C. § 1983 for approving her sterilization based solely upon her mother's petition. The Supreme Court enunciated a two-part test to determine whether an act was sufficiently "judicial" to warrant immunity. First, a judge is required to show that the questioned act was performed within his subject matter jurisdiction.[3] Second, the questioned act must have been a judicial function. Immunity will be granted only when the tests for both jurisdiction and judicial function are satisfied. Id. at 360, 98 S. Ct. at 1106-07.
Whether an act is judicial is determined by the character of the act and not by the character of the agent. Ex Parte Virginia, 100 U.S. (10 Otto) 339, 25 L. Ed. 676 (1879). Where the law defines and prescribes the duties to be performed by an officer with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is characterized as ministerial and not judicial. However, where the act to be done involves the exercise of discretion or judgment, performance of that duty is a judicial act. Grider v. Tally, 77 Ala. 422 (1884); 46 Am.Jur.2d Judges § 83 (1969).
As early as 1884, in an action on the bond of a probate judge, this Court stated, with respect to the characterization of judicial and ministerial acts:
Grider, 77 Ala. at 424-25. See also Broom v. Douglass, 175 Ala. 268, 57 So. 860 (1912) (Mayfield, J., dissenting).[4]
For the foregoing reasons, I would conclude that Ms. Vining's act in the instant case was ministerial in nature. Therefore, if Vining were sued individually, she would not be entitled to judicial immunity.
For the foregoing reasons, I dissent.
JONES, J., concurs.
[1] A computer printout in the record, which is dated June 17, 1987, gives the name "Carrie S. Gore" along with the other information that Vining retrieved on March 30.
[2] If, on the other hand, the allegation is that the magistrate acted with malice, and so is not entitled to the good faith immunity given to judicial officers of courts of limited jurisdiction, the rationale of Neighbors would apply, precluding liability on the part of the municipality under § 11-47-190, because that section imposes liability on the city only for the neglect, carelessness, or unskillfulness of its agents, not for their intentional torts. There is no allegation here that Vining acted with malice.
[3] The Supreme Court of the United States first acknowledged the doctrine of judicial immunity in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1871). In Bradley, the Court noted that in determining the scope of immunity from civil liability for judicial acts, a distinction must be drawn between acting in excess of general jurisdiction and acting in a clear absence of all jurisdiction. The Bradley Court gave the following illustration: If a probate judge with jurisdiction over only wills and estates tried a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action. On the other hand, if a judge of a criminal court convicted a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. Id.
[4] "`The defendant having jurisdiction to issue warrants for the apprehension of persons for violating the provisions of the "act to prevent intemperance, pauperism, and crime" could not be made liable in a civil action for deciding that a warrant should issue on insufficient evidence. In determining whether there was sufficient evidence to authorize the issuing of a warrant, he acted judicially; and he is not liable while thus acting, even if he erred in judgment. But in making the warrant and delivering it to the officer he acted ministerially. "Where ministerial duty is violated the officer, although for most purposes a judge, is still civilly liable for such misconduct."'" Broom v. Douglass, 175 Ala. at 287-88, 57 So. at 867 (Mayfield, J., dissenting) (quoting Blythe v. Tompkins, 2 Abb.Prac. (N.Y.) 472) (citations omitted) (emphasis original). | February 23, 1990 |
3749fa8f-f4e2-45d9-a969-9a5955c19082 | Parker v. Miller Brewing Co. | 560 So. 2d 1030 | N/A | Alabama | Alabama Supreme Court | 560 So. 2d 1030 (1990)
Ouida S. PARKER, individually and as administratrix of the estate of Miriam Paige Small, deceased
v.
MILLER BREWING COMPANY and Supreme Beverage Company, Inc.
Ouida S. PARKER, individually and as administratrix of the estate of Miriam Paige Small, deceased
v.
BARBARA ENTERPRISES, INC.
88-1187, 88-1430.
Supreme Court of Alabama.
January 26, 1990.
Rehearing Denied March 9, 1990.
*1031 Jere L. Beasley and Kenneth J. Mendelsohn of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellant.
N. Lee Cooper and Mark Strength of Maynard, Cooper, Frierson & Gale, Birmingham, for appellee Miller Brewing Co.
J. Gusty Yearout and Deborah S. Braden of Yearout, Myers & Traylor, Birmingham, for appellee Supreme Beverage Co.
Gary L. Blume of Blume & Blume, Tuscaloosa, for appellee Barbara Enterprises, Inc.
PER CURIAM.
Ouida S. Parker's minor daughter, Miriam Paige Small, attended a party hosted by two other minors on August 5, 1988. Those two minors had purchased the beer for the party from the retailer defendant, Barbara Enterprises, Inc., doing business as Grant's University Market in Tuscaloosa, Alabama. The beer had been distributed by the wholesaler defendant, Supreme Beverage Company, and had been manufactured by the manufacturer defendant, Miller Brewing Company.
Miriam Paige Small became intoxicated at the party and then attempted to drive an automobile. She lost control of the automobile and was fatally injured. Mrs. Parker filed suit on March 2, 1989, as the mother of Miriam Paige Small, a minor, and as administratrix of her estate, alleging liability on the part of these defendants for the death of her daughter. She attempted to state a claim against the defendants *1032 based upon Code 1975, § 6-5-70 (the "Civil Damages Act"), § 6-5-71 (the "Dram Shop Act"), and/or common law negligence.
The trial court granted the motions to dismiss filed on behalf of Miller and Supreme Beverage for failure to state a claim upon which relief could be granted. Rule 12(b)(6), A.R.Civ.P. Mrs. Parker appealed. The motion to dismiss filed by Barbara Enterprises, asserting the same grounds, was granted on July 25, 1989. Mrs. Parker appeals from that dismissal also, and the two appeals have been consolidated for purposes of writing this opinion.
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Maples v. Chinese Palace, Inc., 389 So. 2d 120 (Ala. 1980). (Citations omitted.)
The question before this court is whether the plaintiff can state a claim that entitles her to relief against Barbara Enterprises, Inc., Supreme Beverage Company, Inc., and/or Miller Brewing Company under the Civil Damages Act, the Dram Shop Act, or the common law of negligence.
The Civil Damages Act, § 6-5-70, Ala.Code 1975, provides as follows:
Thus, the question becomes whether any of these defendants "furnished spirituous liquors" to the decedent, Miriam Paige Small. The plaintiff cites us to the case of Laymon v. Braddock, 544 So. 2d 900 (Ala. 1989), in which we stated as follows:
544 So. 2d 900, 904 (Ala.1989). Mrs. Parker urges us to conclude that under these facts the defendants "furnished" spirituous liquor to her minor daughter.
We set forth a duty in Laymon on the part of the seller: "If there is a purchaser of spirituous liquors, the seller has a duty to ascertain that the purchaser is not a minor." Id. at 903. Mrs. Parker argues that the seller, having sold beer to a minor, can be held to have furnished the beer to her daughter. She contends that she can prove that the two minors who purchased the beer bought two kegs. She argues that it is illogical that the two minors who purchased the kegs of beer were each going to consume one keg of beer. Therefore she argues that "in light of all of these facts one must reasonably infer that the person to whom spirituous liquor was sold or furnished would permit a minor to consume some of the spirituous liquor." We disagree. The fact that the seller sold beer to a minor, assuming that the seller knew the purchaser was a minor, does not support the conclusion that the seller furnished beer to another minor. The statute creates a right of action in a parent of a minor against any person who unlawfully sells or furnishes spirituous liquors to such minor. The sellers here cannot be said to have furnished beer to Miriam Paige Small by selling beer to two other minors.
The defendants also cite us to the concurring opinion in Laymon v. Braddock, for the proposition that beer is not a "spirituous liquor" under § 6-5-70. We need not, however, reach the question of whether beer is a "spirituous liquor," for when the facts of this case are weighed against the test enunciated in Laymon, it is clear that these defendants did not "furnish" anything to the plaintiff's decedent. There is no inference to be made from the totality of the circumstances in this case that she *1033 was "furnished spirituous liquors"or any other kindby these defendants.
Therefore, there is no claim upon which relief can be granted to this plaintiff under § 6-7-70 (the Civil Damages Act). The trial court did not err in granting the motions to dismiss the claims based upon that section.
The pertinent part of the Dram Shop Act, § 6-5-71, states:
In Ward v. Rhodes, Hammonds, & Beck, Inc., 511 So. 2d 159 (Ala.1987), we considered the question of who is provided a cause of action by § 6-5-71. We held that one class of potential plaintiffs consists of the wife, child, or parent of a party who has been injured in person by an intoxicated person:
The second class of potential plaintiffs is the "other person injured":
The plaintiff argues that individually she falls within this "other person" category as one "injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person."[1] She argues that she was injured in consequence of the intoxication of her daughter by reason of the sale made by Grant's University Market to two minors of intoxicating beverages "contrary to the provisions of law," i.e., in violation of § 28-3A-25(a)(3) and Alabama Alcoholic Beverage Control Board Rule 20-X-6-.10.
However, assuming she could be found to fit into the "other person" category, she still does not have a claim, because under § 6-5-71(c), a party injured may commence an action "against the person intoxicated or the person who furnished the liquor." When we revisit the question of whether any of these defendants "furnished" or "provided" the liquor to Miriam Paige Small, we find that they did not.
We said the following in Martin v. Watts, 513 So. 2d 958 (Ala.1987):
Id., at 963. These defendants did not provide the alcoholic beverages to the intoxicated person, nor was there a sale by these defendants to the intoxicated person. Therefore, the plaintiff has no cause of action under the Dram Shop Act. See Beeson v. Scoles Cadillac Corp., 506 So. 2d 999, 1001 (Ala.1987).
The third question presented is whether plaintiff has a direct common law cause of action under the facts of this case. We addressed this question also in Ward, supra, where we said:
"As pointed out in Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121 (Ala. 1984), and DeLoach v. Mayer Electric Supply Co., 378 So. 2d 733 (Ala.1979), this jurisdiction, like the majority of jurisdictions in our nation, does not recognize a common law cause of action for negligence in the dispensing of alcohol. See also Hatter v. Nations, 480 So. 2d 1209 (Ala.1985)."
511 So.2d at 164-65; in accord, Beeson v. Scoles Cadillac Corp., supra.
Plaintiff urges us to adopt a common law negligence cause of action that would impose liability for the distribution of alcoholic beverages to minors. We decline to do so. It has been a principle of long standing in Alabama that one cannot recover for negligence in the dispensing of alcohol. In King v. Henkie, 80 Ala. 505 (1886), this Court held that no common law action exists in favor of an intoxicated person against one who sells the alcohol. In 1979, this Court reaffirmed this position in DeLoach v. Mayer Electric Supply Co., 378 So. 2d 733 (Ala.1979). In 1987, we reaffirmed this position in Ward and Beeson. Plaintiff offers no compelling reason for us to depart from the rule expressed in King and followed by the majority of jurisdictions. See Maples v. Chinese Palace, Inc., supra.; DeLoach v. Mayer Electric Supply Co., supra; Hatter v. Nations, supra; Beeson v. Scoles Cadillac Corp., supra.
For the reasons stated herein, the judgment of the trial court is hereby affirmed.
88-1187, AFFIRMED.
88-1430, AFFIRMED.
MADDOX, JONES, ALMON, SHORES and STEAGALL, JJ., concur.
HOUSTON, J., concurs specially.
HORNSBY, C.J., and ADAMS and KENNEDY, JJ., dissent.
HOUSTON, Justice (concurring specially).
I hereby readopt my special concurrence in Laymon v. Braddock, 544 So. 2d 900, 904-06 (Ala.1989).
HORNSBY, Chief Justice (dissenting).
I must respectfully dissent. I cannot agree with the majority that no liability can be found under these statutes. As the majority correctly states, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," quoting Maples v. Chinese Palace, Inc., 389 So. 2d 120 (Ala.1980). This case should not have been dismissed without a showing that the plaintiff could prove no set of facts in support of her claim. Further, as we have previously stated, in Laymon v. Braddock, 544 So. 2d 900, 903 (Ala.1989), "the person injured by the illegal sale of alcoholic beverages is not held to the usual standards of proof of causal connection between the illegal sale of the beverages and the injury." See Phillips v. Derrick, 36 Ala.App. 244, 54 So. 2d 320 (1951). The plaintiff in this case, therefore, should not be held to the usual standards of causation. She should be allowed to prove the chain of events that caused her daughter to be "furnished" with the alcoholic beverages.
Other states, for various reasons, have recognized at least the liability of the store that sells alcoholic beverages to minors. See Thompson v. Victor's Liquor Store, Inc., 216 N.J.Super. 202, 523 A.2d 269 (1987); Floyd v. Bartley, 727 P.2d 1109 *1035 (Colo.1986); Reber v. Commonwealth, 101 Pa.Cmmw. 397, 516 A.2d 440 (1986); Morris v. Farley Enterprises, Inc., 661 P.2d 167 (Alaska 1983); Brookins v. Round Table, Inc., 624 S.W.2d 547 (Tenn.1981); Munford, Inc. v. Peterson, 368 So. 2d 213 (Miss.1979); Davis v. Billy's Con-teena, Inc., 284 Or. 351, 587 P.2d 75 (1978); Kvanli v. Village of Watson, 272 Minn. 481, 139 N.W.2d 275 (1965); Davis v. Shiappacossee, 155 So. 2d 365 (Fla.1963).
Thompson v. Victor's Liquor Store, Inc., supra, involved a minor injured when he wrecked the automobile he was driving after becoming intoxicated from alcoholic beverages purchased by another minor. The minor and his mother sued the package store where one of his friends had purchased twelve beers and a pint of whiskey. He and another friend were in the car outside the store when the alcohol was purchased. The court stated:
Thompson, at 272.
In Davis v. Billy's Con-teena, Inc., supra, defendants sold kegs of beer to minors for a fraternity party without requiring proof of age, and the beer was consumed not only by the purchasers but also by other minors, one of whom became intoxicated and then killed a person while operating an automobile. The Supreme Court of Oregon held that the tavern owners who supplied the beer to the minors were guilty of negligence per se when they sold the beverages without proof of age as required by the Oregon statute.
In Morris, supra, five minors consumed one fifth of tequila that had been purchased by one of the minors. The driver of the car occupied by the minors had entered the store, where the tequila was purchased, but did not make the purchase. Several hours later, the car was involved in an accident that resulted in the death of two of the teenagers. The Supreme Court of Alaska stated:
The Supreme Court of Alaska applied the "substantial factor" test in determining whether the accident could be found to have happened due to the defendant's actions. The issue was whether "reasonable persons could conclude that the deaths of [the two minors] would not have occurred but for the sale of alcohol to [one of the minors] and that the sale was so important in bringing about their deaths that it should be regarded as a responsible cause." Morris, at 169. The court held that reasonable persons could conclude that "the deaths would not have occurred but for the sale." Id. Further, it said, "reasonable persons could also conclude that the sale was so important in bringing about the deaths that they would regard it as a responsible cause." Id. The court concluded that the issue of a "substantial factor" was *1036 a question for the jury. The court also held that the wrongful conduct of the minors did not amount to a superseding cause as a matter of law and would not operate to relieve the liquor store of liability.
Additionally, in Brookins, supra, the Supreme Court of Tennessee stated that the public policy of that state was to prevent the sale of alcoholic beverages to minors. The court indicated that the prohibitions instituted by the state were to protect the general public as well. It noted that "courts generally recognize that the furnishing of intoxicants may be the proximate cause of an injury resulting from intoxication, the negligence consisting of the creation of a situation or condition which involves unreasonable risk because of the foreseeable action of another." Brookins, at 549 (citations omitted). The court held that the question of proximate cause was one properly left for the jury.
In Floyd, a 17-year-old passenger in a vehicle purchased two six-packs of beer and shared the beer with three friends, including the driver of the vehicle. In that case, the Supreme Court of Colorado determined that the original sale to a minor would constitute negligence per se under Colorado's statute prohibiting the sale of alcoholic beverages to minors.
We should also be guided by the language found at 48 C.J.S. Intoxicating Liquors, § 444 (1981):
Under the circumstances that may possibly be proven, the operator of Grant's University Market ("Grant's") "knew or had some good reason to believe" that the two minors would share the kegs with other minors. Similarly, the plaintiff could possibly prove that both Supreme Beverage Company and Miller Brewing Company had reason to know that Grant's was unlawfully selling beer to minors. At the very least, it was not unforeseeable to Grant's that the two kegs sold to the two minors would be shared by yet other minors.
The plaintiff claims that the kegs of beer sold by Grant's were "furnished" to her daughter by Grant's, in that the store sold the kegs to two minors who, in turn, furnished the beer to other minors. The plaintiff contends that the trial court erred in finding for the defendants as a matter of law on the basis that one could not "reasonably infer that the person to whom the spirituous liquor was sold or furnished would permit a minor to consume some of the spirituous liquor." I must agree with the plaintiff. The plaintiff should be allowed to pursue discovery against the defendants to show whether there were any past violations by Grant's involving the furnishing of alcohol to minors. The plaintiff claims that Alabama Alcoholic Beverage Control Board documents, as well as testimony, would show that the other defendants knew that Grant's was selling alcoholic beverages to minors. Further, the plaintiff contends that the sales target of Grant's was the University of Alabama campus, which had a substantial underage population. The plaintiff should also be allowed to prove her allegations that Grant's knew it was selling kegs of beer to minors and that it knew that those minors were furnishing the alcoholic beverages to other minors.
As a policy-making Court, we should institute a policy to discourage the illegal sale of alcoholic beverages to minors. Where there is a purchase of alcoholic beverages, the seller has a duty to ascertain *1037 that the purchaser is not a minor. Laymon v. Braddock, supra. The plaintiff's complaint clearly alleges that Grant's illegally sold alcoholic beverages to two minors. She should be allowed her day in court. Remote sellers should be held liable also under an appropriate set of facts. I believe that the plaintiff should be allowed to prove the facts she has alleged.
ADAMS, J., concurs.
KENNEDY, Justice (dissenting).
On appeal from a Rule 12(b)(6), A.R. Civ.P., dismissal, the Court must view the allegations of the complaint most strongly in favor of the Plaintiff, to determine whether any set of facts could be proven in support of the claim that would entitle the plaintiff to the relief requested. Jones v. Lee County Commission, 394 So. 2d 928 (Ala.1981), Phillips v. Opp & Micolas Cotton Mills, Inc., 445 So. 2d 927 (Ala.Civ.App. 1984). In this case, the trial court, prior to the completion of discovery, granted each defendant's motion to dismiss. Thus, in making its determination of the propriety of the complaint, the trial judge was bound to the four corners of the complaint. Hales v. First National Bank of Mobile, 380 So. 2d 797 (Ala.1980), Briggs v. Woodfin, 395 So. 2d 1024 (Ala.Civ.App.1981).
Can we say with confidence and correctness that in the case before us the plaintiff could prove no set of facts under the various counts of her complaint that would support her claim? I believe not, especially with reference to her claim for damages under the Civil Damages Act, Code 1975, § 6-5-70.
The Civil Damages Act, in pertinent part, reads:
From the allegations of the complaint it is obvious that the plaintiff did not aver that there was a sale under the meaning of the act. She did, however, allege that the defendants furnished beer to her minor daughter. This Court, in Laymon v. Braddock, 544 So. 2d 900 (Ala.1989), interpreted the term "furnishing" as extending "liability under § 6-5-70 to a seller or furnisher... who, from the totality of the circumstances, must reasonably infer that the person to whom the spirituous liquor is sold or furnished will permit a minor to consume some of this spirituous liquor." The plaintiff averred in her complaint that defendant Grant's was in the business of selling beer to the public, including fraternities at the University of Alabama; that, on or about August 5, 1988, two minors purchased two kegs of beer from Grant's to serve at a party to be attended by minors; and that plaintiff's daughter attended the party, consumed a portion of the beer, became intoxicated, and was later killed in an automobile accident involving the car she was driving.
I agree with the majority that the mere fact that one sells beer to one minor, does not support the conclusion that the seller furnished beer to another minor. But under the facts of this case, as averred in the complaint, the plaintiff should have been allowed, at the very least, to conduct discovery to determine whether there was any evidence of "furnishing" spirituous liquors under the interpretation given that term in Laymon, supra.
Had the minors merely purchased two six-packs rather than two kegs, perhaps the reasoning of the majority would be sounder. Had the seller been a retailer who did not sell regularly to college fraternities and, did not as the plaintiff alleges, have a reputation of supplying beer to minors, perhaps we could say at this early point in the case that the plaintiff's cause of action should be dismissed. But where you have facts like those set out above properly pleaded in a complaint; where you have a recent decision of this Court stating that liability for furnishing spirituous liquor will be extended "to a seller or furnisher... who, from the totality of the circumstances, must reasonably infer that the person to whom the spirituous liquor is sold or furnished will permit a minor to consume some of this spirituous liquor," *1038 Laymon, supra, at 904, then the granting of a Rule 12(b)(6) motion is error.
Although, the interpretation is not central to the decision of the majority, the time appears to be nearing when this Court must reexamine its interpretation of the term "spirituous liquors." In a special concurrence filed in this case, Justice Houston readopts his special concurrence filed in Laymon v. Braddock, supra, and reiterates his position that beer and wine are not spirituous liquors under the meaning of the Civil Damages Act. Support for that position is found in two decisions announced by this Court in the nineteenth century and in five authoritative dictionaries.
If this Court were to adopt that position, the net result would be that no cause of action could be maintained under the Civil Damages Act for injuries caused by a seller or furnisher of alcoholic beverages to any minor in this state, if those beverages were produced by a means other than distillation. In other words, a retailer could escape civil liability for selling intoxicants to minors by restricting those sales to wine, beer, "wine coolers", and other nondistilled beverages.
At the turn of the century, our society was not confronted with the tremendous number and variety of alcoholic beverages that exist today. Wine coolers and beer packaged in carry-out cartons were not available on every corner and in the neighborhood grocery. Hundreds of millions of dollars were not being spent to promote dozens of brands of beer and wine. "Happy hours" featuring half-price beer were not commonplace. Large, powerful automobiles, operated by minors, were not commonplace.
Beer and wine are every bit as capable of causing inebriation as hard liquor. Whether the damage is caused by a retailer who sells hard liquor to a minor or by one who sells beer to a minor, the injury and suffering that could be the proximate result would be the same.
To rely on precedent that was established over a century ago, and then to buttress that reliance on an adherence to technical definitions that are no longer commonly accepted, would visit a great injustice on the law.
With due deference to those who would interpret the statutory language otherwise, I strongly feel that our law should not permit such an artificial distinction between beer and wine on the one hand, and distilled liquor on the other, for the purpose of giving meaning to the term "spirituous liquor" as it is used in the Civil Damages Act.
[1] She does not fall into this category as administratrix of the estate inasmuch as Miriam Paige Small was the intoxicated person. | January 26, 1990 |
40b09cb2-ccd3-4440-ab9b-828966b831b2 | Ex Parte Robinson | 565 So. 2d 664 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 664 (1990)
Ex parte Sara Nell ROBINSON.
Re Sara Nell Robinson
v.
State.
88-1572.
Supreme Court of Alabama.
March 2, 1990.
*665 W. Lloyd Copeland of Clark, Deen & Copeland, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for respondent.
HORNSBY, Chief Justice.
The defendant, Sara Nell Robinson, was convicted, on April 3, 1985, in Mobile Circuit Court of the murder of her husband, Franklin Delano Copeland. She received a sentence of ten years in the state penitentiary for the crime. In 1986, Robinson appealed her conviction to the Court of Criminal Appeals, and that court affirmed, in an opinion issued on October 14, 1986. Thereafter, Robinson filed a petition for writ of certiorari with this Court, which we denied on July 1, 1988. No other appeals or petitions were asserted by Robinson.
In August 1988, Robinson petitioned for a new trial pursuant to Rule 20, Alabama Temporary Rules of Criminal Procedure. The instant petition for writ of certiorari grows out of that action. In that Rule 20 petition Robinson asserted that she had newly discovered evidence of a pistol permit issued to the deceased and that the prosecutor had withheld knowledge of that permit from her. That petition states as grounds the following:
The trial court, on September 23, 1988, granted Robinson a new trial. She was released from custody on a $50,000 bond. The State of Alabama, through the attorney general, appealed the new trial order to the Court of Criminal Appeals. That court reversed, with an opinion dated May 12, 1989. 565 So. 2d 661.
To aid the reader in grasping the factual scenario of this case, we set forth the statement of facts that is found in the order of the trial court granting Robinson a new trial:
The granting or denial of a new trial on the ground of newly discovered evidence is a matter left largely to the discretion of the trial judge, whose decision will be overturned only for an abuse of that discretion. White v. State, 294 Ala. 265, 314 So. 2d 857 (1975). An appellate court, in reviewing a grant or denial of a new trial motion, is obliged to indulge every presumption in favor of the correctness of the trial court's decision. Ward v. State, 440 So. 2d 1227 (Ala.Cr.App.1983); Woodard v. State, 401 So. 2d 300 (Ala.Cr.App.1981).
We find persuasive the following argument by defense counsel to the trial judge at the hearing on Robinson's Rule 20 motion:
We agree with the argument made by Robinson's counsel that this new evidence was exculpatory and that it should have been disclosed to Robinson by the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Brady states:
Thus, it matters not that the trial judge found that the prosecution did not intentionally fail to disclose the pistol permit to Robinson. The prosecution was bound by a duty to disclose all exculpatory *668 evidence to Robinson. The concept of due process of law demands no less.
In its order granting Robinson a new trial, the court stated:
The sheriff's representative also stated that the permits for the murder weapon issued to Robinson and her husband were kept in the same file. We can not but conclude, therefore, that the attorney general had possession of the permit in question and that this evidence was not disclosed to Robinson.
A particular piece of evidence is "material" and must be disclosed if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). See generally, Note, Specific Requests and the Prosecutorial Duty to Disclose Evidence: The Impact of United States v. Bagley, 1986 Duke L.J. 892. The pistol permit issued to the deceased tended to negate the inference that Robinson had greater access to, and greater control of, the murder weapon. Based upon our review of the evidence and the other items in the record before us, we conclude that the pistol permit would have been useful to Robinson's defense, and that it was material and should have been disclosed to Robinson. Therefore, the trial court did not err in granting Robinson a new trial.
Based upon the foregoing, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded for further proceedings consistent herewith.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur. | March 2, 1990 |
55e639b3-5ebf-44ca-92f6-9393fec4aa82 | Baker v. Eufaula Concrete Co., Inc. | 557 So. 2d 1228 | N/A | Alabama | Alabama Supreme Court | 557 So. 2d 1228 (1990)
Guy M. BAKER, Jr.
v.
EUFAULA CONCRETE COMPANY, INC., et al.
88-926.
Supreme Court of Alabama.
January 12, 1990.
James E. Davis, Jr. and William B. Alverson, Jr. of Webb, Crumpton, McGregor, Sasser, Davis & Alley, Montgomery, and Deborah Whitmore Hicks, Eufaula, for appellant.
James L. Martin, Eufaula, for appellees.
JONES, Justice.
Guy M. Baker appeals from a judgment entered on a directed verdict in favor of Eufaula Concrete Company, Inc., Hugh Stephenson, and Kenneth D. Stephenson (hereinafter collectively referred to as "Eufaula Concrete"). Baker sought a judgment declaring that Eufaula Concrete had wrongfully assigned a lease, entered into between the parties, in violation of its nonassignment provision. He also sought an accounting and money damages for breach of contract and fraud. Because there are triable issues of material fact, we reverse and remand.
In 1980, Baker and his wife, owners of a 30-acre parcel of land, entered into a 10-year written lease with Eufaula Concrete. Pursuant to the lease, Eufaula Concrete was given the right to "mine, process, and remove sand, gravel, and/or field dirt" from the subject land. Eufaula Concrete was obligated to pay Baker $.25 per cubic yard for the materials removed from the land during the first five years of the lease and $.35 per cubic yard during the remaining five years of the lease. The following nonassignment clause was also contained in the lease: "The Grantee [Eufaula Concrete] agrees not to assign or sub-let this lease, without the permission of the Grantors [the Bakers]."
Through 1986, Eufaula Concrete mined the property and the Bakers received their royalties in accordance with the provisions of the lease. In 1987, Williams Brothers, Inc., another company in the concrete business, proposed to purchase substantially all of the assets of Eufaula Concrete. Eufaula Concrete was unsuccessful in obtaining the Bakers' consent to an assignment of the lease.
On March 11, 1987, an acquisition agreement was executed between Eufaula Concrete and Williams Brothers, whereby Williams Brothers agreed to purchase the assets and to assume the liabilities of Eufaula Concrete. After the acquisition by Williams Brothers, Mr. Baker noticed that Williams Brothers equipment and employees were being used to mine the property.
*1229 Being unable to determine the status of the lease or who was mining the property, Baker[1] sued Eufaula Concrete, Hugh and Kenneth Stephenson, and Williams Brothers.[2] Baker sought a declaration that Eufaula Concrete had assigned the lease to Williams Brothers in violation of the lease provisions. The case was tried before a jury. At the close of Baker's evidence, the trial court granted Eufaula Concrete's motion for a directed verdict pursuant to Rule 50(a), A.R.Civ.P.[3] Baker appeals.
Andalusia Motor Co. v. Mullins, 28 Ala. App. 201, 205, 183 So. 456, 459 (1938) (citations omitted). See, also, Russell v. Birmingham Oxygen Service, Inc., 408 So. 2d 90 (Ala.1981).
Pursuant to the acquisition agreement between Williams Brothers and Eufaula Concrete, Williams Brothers not only purchased the assets of Eufaula Concrete, but also purchased the good will and the name of Eufaula Concrete. The Stephensons executed a noncompetition agreement whereby they agreed not to compete with Williams Brothers and Williams Brothers agreed to employ the Stephensons. In regard to the Baker lease, the acquisition agreement listed the lease as an asset to be purchased by Williams Brothers, but Article 2, § 8(b), in pertinent part, provided: "To the extent that any of the ... leases... that this Agreement contemplates are to be assigned to the Purchaser [Williams Brothers] are not assignable without the consent of another party, this Agreement shall not constitute an assignment or attempted assignment of such Agreements and Rights if such consent is not obtained." However, in an attempt to offset the effect of the this language, Eufaula Concrete and Williams Brothers provided in § 8(b) of the acquisition agreement as follows:
After the execution of the acquisition agreement, Williams Brothers began to mine the property and, at the entrance of the property, erected a "no trespassing" sign. Williams Brothers paid Baker the *1230 royalties for the month of May (which was the first month that royalties were due for mining done by Williams Brothers), but paid it late. Because Baker expected prompt payment of the royalties at the first of the month, Eufaula Concrete resumed paying Baker the monthly royalty. Hugh Stephenson, in pertinent part, testified:
"Q Will you tell me who paid Mr. Guy M. Baker, Jr., for the ... [May] 1987, royalty.
"A I believe that is the one month that Williams Brothers sent a check direct to the Bakers for the royalties on the property. The check was late getting there. The Bakers they wanted their money on the 1st and not on the 5th or the 10th, and Eufaula Concrete Company always got it to them at that time. Williams Brothers was somewhere in the neighborhood of two weeks getting their money to them. From that time on we paid them on time, and they reimbursed us for that material that was hauled off of that place."
Furthermore, in regard to payment, Kenneth Stephenson testified as follows:
"Q And who got paid when the material went through the gates?
"A We paid the Bakers for what they had that went through the gate. We paid them thirty-five cents a yard for every yard, whoever was in there removing it.
"Q Did Mr. Couch [an independent hauler] have to pay anybody anything for the privilege of removing the sand, gravel, or fill dirt from the property?
"A No, he paid Williams Brothers and Williams Brothers reimbursed us."
Also, driver reports used in accounting for the amount of materials extracted from the Baker property were made on Williams Brothers stationery. Further, Kenneth Stephenson testified:
"Q And did you give Williams Brothers all the benefit of the Lease like the agreement says you are supposed to do?
After reviewing the evidence of record, we hold that the trial court should have let the case go to the jury. Eufaula Concrete did not demonstrate that there was a lack of a genuine issue of material fact and that it was entitled to a judgment as a matter of law. See Bazzel v. Pine Plaza Joint Venture, 491 So. 2d 910 (Ala.1986). We cannot accept, as did the trial judge, Eufaula Concrete's contention that the language of the acquisition agreement (a contract to which Baker was not a party) forecloses all future inquiry on the assignment issue.
There is no requirement that magical words be used to accomplish an assignment, and an assignment may be written, parol, or otherwise. Courts look to substance rather than form. The test, as set forth in Andalusia Motor Co., supra, is whether the purported assignor intended to transfer a present interest in the subject matter of the contract. This is a question of fact to be determined under the attendant circumstances.
Although the acquisition agreement stated that it was not to be construed as an assignment of the lease, there was sufficient evidence presented upon which reasonable persons could infer that an assignment had in fact occurred. Indeed, under the totality of the circumstances, we seriously question whether the jury could have reasonably concluded to the contrary. Nonetheless, it is not within our prerogative to judge the weight of the evidence. Because there was ample evidence for the submission of the assignment issue to the jury, the motion for a directed verdict was improperly granted.
*1231 The judgment appealed from is due to be, and it hereby is, reversed, and the cause is remanded for a trial on all of the issues.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES and KENNEDY, JJ., concur.
[1] Before the commencement of this action, Mrs. Baker transferred her rights and interest in the subject land to Mr. Baker.
[2] The trial court entered summary judgment in favor of Williams Brothers; that summary judgment was not appealed from.
[3] It is apparent from the record that the trial court, in directing a verdict in favor of Eufaula Concrete, construed the acquisition agreement between Eufaula Concrete and Williams Brothers as not constituting an assignment in violation of the lease agreement between Eufaula Concrete and Baker; thus, we address only the threshold issue of assignment and not the merits of Baker's separate claims. | January 12, 1990 |
dd15a948-f966-436f-b218-1eb8913fe860 | Charter Hosp. of Mobile v. Weinberg | 558 So. 2d 909 | N/A | Alabama | Alabama Supreme Court | 558 So. 2d 909 (1990)
CHARTER HOSPITAL OF MOBILE, INC.
v.
Sheldon R. WEINBERG.
88-639.
Supreme Court of Alabama.
January 12, 1990.
Rehearing Denied February 9, 1990.
*910 Davis Carr and Forrest C. Wilson III, Mobile, for appellant.
Jim H. Fernandez of Allen & Fernandez and Russell S. Terry of Feibelman, Shulman & Terry, Mobile, for appellee.
PER CURIAM.
Dr. Sheldon R. Weinberg sued Charter Hospital of Mobile, Inc. ("Charter"), for damages based on wrongful termination of employment and on conversion of a treatment program for people suffering from drug abuse or alcoholism. He sought punitive damages on each claim. The jury returned the following verdict:
Prior to the submission of the case to the jury, Charter had filed a motion for a directed verdict as to each count. Those motions were denied. After the jury verdict, *911 Charter filed a motion for judgment notwithstanding the verdict as to each count. The trial court granted Charter's motion for judgment notwithstanding the verdict as to the wrongful termination count only. Charter now appeals from the judgment based on the verdict on the conversion count. Dr. Weinberg did not cross-appeal from the judgment notwithstanding the verdict on the wrongful termination count; therefore, for purposes of this appeal, the wrongful termination count was a "bad" count.
In Aspinwall v. Gowens, 405 So. 2d 134, 138 (Ala.1981), we addressed the effect of a general verdict when a good count and a bad count were submitted to a jury:
See, also, National Security Fire & Casualty Co. v. Vintson, 454 So. 2d 942 (Ala. 1984); Lawrence v. Lackey, 451 So. 2d 278 (Ala.1984); and Cincinnati Ins. Co. v. Little, 443 So. 2d 891 (Ala.1983).
We have not been cited to, nor can we find, a case involving special verdicts for compensatory damages and a general verdict for punitive damages when a good count and a bad count have both been submitted to the jury and the plaintiff has sought to recover punitive damages on both the good count and the bad count. We hold that the trial court cannot presume that the punitive damages verdict was returned on the good count, when the defendant properly challenged the bad count by a directed verdict motion and a motion for judgment notwithstanding the verdict, as specified in Aspinwall. Therefore, insofar as the judgment awards punitive damages, it must be reversed.
Charter also sought a new trial on the conversion count or, in the alternative, a remittitur of compensatory damages for conversion, which the trial court denied. We affirm this action of the trial court.
The strength of the jury verdict is based upon the right to trial by jury, White v. Fridge, 461 So. 2d 793 (Ala.1984), and a jury verdict is presumed to be correct. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala. 1988). This presumption is strengthened by the trial court's denial of a motion for a new trial.
G.M. Mosley Contractors, Inc. v. Phillips, 487 So. 2d 876, 879 (Ala.1986). See, also, Hollis v. Wyrosdick, 508 So. 2d 704 (Ala. 1987).
Campbell v. Burns, 512 So. 2d 1341, 1343 (Ala.1987). (Citation omitted.) See, also, Ashbee v. Brock, 510 So. 2d 214 (Ala.1987); Jawad v. Granade, 497 So. 2d 471 (Ala. 1986); and White v. Fridge, supra.
In its brief, Charter concedes that there was evidence from which the jury *912 could have determined that Dr. Weinberg had a copyright covering the treatment program. Charter, however, contends that the amount of the jury award$142,000 compensatory damagesfor the conversion of the treatment program is not supported by the evidence.
The trial court charged the jury as follows:
See Alabama Pattern Jury Instructions, No. 39.01.[1]
After a thorough review of the record, we find that no evidence of the kind ordinarily used to prove the value of property was introduced. It appears that such evidence of value, even of an intangible item such as a treatment program, should have been available from the sales proposals offered by Recovery from Chemical Dependency, Inc.,[2] to other facilities, but such evidence was not presented. However, viewing the evidence most favorably to Charter and indulging such reasonable inferences as the jury was free to draw from the evidence, we hold that there was some evidence in the record, uncontradicted and not objected to, that would have allowed the jury to award $100,000 plus six percent (6%) interest per year from the date of the conversion to the date of trial, thereby sufficiently supporting the jury's award of $142,000 in compensatory damages.[3] See National Surety Corp. v. Applied Systems, Inc., 418 So. 2d 847 (Ala.1982). Therefore, we affirm the trial court's judgment insofar as it awarded compensatory damages for conversion.
Charter contends that there was no evidence to support the imposition of punitive damages for conversion. In order for punitive damages to be awarded for conversion, the law requires that the conversion be done in known violation of the owner's rights. See Roberson v. Ammons, 477 So. 2d 957 (Ala.1985); Ott v. Fox, 362 So. 2d 836 (Ala.1978).
This case was filed prior to June 11, 1987; therefore, the applicable standard of review is the "scintilla rule." See Ala.Code 1975, § 12-21-12. Thus, the issue before us is whether there is a scintilla of evidence that Charter knowingly converted the treatment program that Dr. Weinberg had developed.
Dr. Weinberg presented evidence at trial that he had developed the treatment program prior to his employment by Charter and that Charter had continued to use that treatment program subsequent to his termination without his consent (after he had demanded that Charter stop using it). Furthermore, Dr. Weinberg presented evidence that, prior to his employment, he had a discussion with Charter's administrator concerning the ownership rights to the treatment program and also presented to the administrator a job description, which recited that Dr. Weinberg was retaining ownership rights to the treatment program. Dr. Weinberg contends that any continued use of the treatment program by *913 Charter after his termination would necessarily have been willful, because his ownership of the treatment program was an express term of his employment contract and was confirmed in his job description.
Charter does not deny its continued use of portions of the treatment program after Dr. Weinberg was terminated. Rather, Charter's administrator testified that it was his understanding that Dr. Weinberg had been hired to develop a treatment program for Charter and that Charter's staff thought it had every right to continue using the treatment program. Furthermore, the administrator testified that there was never any discussion with Dr. Weinberg concerning ownership rights to the treatment program and that he had never seen or approved a job description for Dr. Weinberg.
Based on the foregoing, we find that Dr. Weinberg presented at least a scintilla of evidence that Charter knew that it had no right or claim to the treatment program in question, but continued to use it in known violation of Dr. Weinberg's rights. Therefore, there existed a question of fact for the jury to determine as to whether Charter willfully converted the treatment program so as to justify the imposition of punitive damages. We recognize the conflicting statements concerning this issue; however, the credibility of the testimony presented by the witnesses is for the jury's determination. See Trans-South-Rent-A-Car, Inc. v. Wein, 378 So. 2d 725 (Ala.1979).
Having affirmed the compensatory damages award on the conversion count, we conclude that Dr. Weinberg's claim against Charter should be limited to such punitive damages, if any, as a jury on retrial may assess against Charter for the conversion, if the jury finds that Charter converted the treatment program in known violation of Dr. Weinberg's rights; and the jury should be so instructed. See Hood v. Murray, 547 So. 2d 75 (Ala.1989).
Because the punitive damages award has been reversed, we find it unnecessary to discuss Charter's final assertion that the method of imposing punitive damages in Alabama violates defendant's rights to due process of law as guaranteed by the United States and Alabama Constitutions.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
JONES and HOUSTON, JJ., concur specially.
JONES, Justice (concurring specially).
I agree with the opinion, but I write separately and adopt my concurring opinion in Ridout's-Brown Service, Inc. v. Holloway, 397 So. 2d 125, 127 (Ala.1981).
I agree in principle with Justice Houston's concurring opinion, except I do not agree that the bifurcation procedure is constitutionally mandated. I believe that, because the present unbifurcated procedure is a product of the common law, the court can prescribe a bifurcated procedure for dealing with the issue of punitive damages as a modification of the common law.
HOUSTON, Justice (concurring specially).
I concur with the per curiam opinion on all issues addressed. I write specially, however, for I would address the final issue raised by Charter, which the per curiam opinion did not address because the punitive damages award was being reversed.
Does the imposition of punitive damages in cases based on causes of action accruing prior to June 11, 1987,[4] confer upon jurors a degree of discretion so fraught with ambiguity, uncertainty, and unpredictability as to violate Charter's rights to due process of law as guaranteed by the United States and Alabama Constitutions?
This issue was properly preserved in the trial court, for the trial court gave Charter "an exception [to its instruction on punitive damages] on all grounds." After that, when Charter attempted to articulate its *914 objections, the trial court stated, "Well let the [record] reflect that I wouldn't let you say any more about [punitive damages]. You've made your exception on the issue of punitive damages."
The trial court's instruction as to punitive damages was as follows:
Article I, § 10, of the Alabama Constitution of 1901, provides:
Article I, § 13, of the Constitution provides in pertinent part:
In Alabama, a defendant in a civil action is entitled to due process of law.
Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600, 605 (Ala.1988). A procedural due process attack on a statute as being void for vagueness is permitted in a civil proceeding under the Alabama Constitution. Ross Neely Express, Inc. v. Alabama Department of Environmental Management, 437 So. 2d 82, 84 (Ala.1983); Friday v. Ethanol Corp., 539 So. 2d 208, 215-16 (Ala.1988).
I will not address the question of the constitutionality of punitive damages in Alabama under the United States Constitution. From my review of recent cases Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 828-29, 106 S. Ct. 1580, 1589, 89 L. Ed. 2d 823, 831 (1986); Justice Brennan's special concurrence in Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., ___ U.S. ___, ___, 109 S. Ct. 2909, 2923, 106 L. Ed. 2d 219, 241 (1989), which was joined by Justices Marshall, Stevens, and O'Connor; Chief Justice Rehnquist's blistering dissent in Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632, 651 (1983); and especially Justice O'Connor's opinion concurring in part and concurring in the judgment in Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 86, 108 S. Ct. 1645, 1654, 100 L. Ed. 2d 62, 77 (1988)I doubt that our method of awarding punitive damages could withstand a procedural due process attack as being void for vagueness, if that vagueness doctrine is extended to civil litigation involving punitive damages. The void for vagueness doctrine is usually applied to criminal statutes in the federal courts, but it also has been applied to civil statutes (Jordan v. DeGeorge, 341 U.S. 223, 230, 71 S. Ct. 703, 707, 95 L. Ed. 886, 892 (1951)) and is applied in the civil law in the context of first amendment free speech issues (Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222, 226-28 (1972)). If the United States Supreme Court extends the void for vagueness doctrine to the procedure for assessing punitive damages awards, it is likely that Alabama's method of awarding punitive damages will be stricken as violative of procedural due process, for a jury, as factfinder whose role as factfinder on the issue of punitive damages is part of the jury trial process to be preserved "inviolate" *915 under the Alabama Constitution, has a standardless discretion as to what penalty (i.e., what punitive damages award) will be imposed; but this is an issue to be resolved by the United States Supreme Court. However, I would have no hesitation in declaring that the standardless discretion as to what punitive damages award will be imposed in Alabama violates the guarantee of procedural due process under the Alabama Constitution, for, as previously stated, the void for vagueness doctrine under the Alabama Constitution applies to civil proceedings (Ross Neely Express, Inc. v. Alabama Department of Environmental Management, supra; Friday v. Ethanol, supra); and I believe that the Alabama Constitution (as Chief Justice Marshall believed regarding the United States Constitution[5]) is "a rule for the government of courts, as well as of the legislature." (Emphasis in original.)
In my opinion, the constitutional void-for-vagueness doctrine bridled, restrained, checked, and governed a jury's right to award punitive damages, if a jury had an unbridled, unrestrained, unchecked, and ungoverned right at common law (and I cannot find that it did); and imposed upon this Court and/or the Legislature a duty to promulgate meaningful standards for a jury to follow in setting the amount of a punitive damages award in any civil case. The absence of these meaningful standards would result in the deprivation of property rights without due process of law. "`[W]e must preserve the reliability of the fact finding process for adjudging liability and, at the same time, improve the reliability of the [punitive] damages assessment process in order to fit the punishment (the amount of punitive damages) to the offensive conduct and the offender.'" (Emphasis in original.)
In so saying, this Court in Green Oil Co. v. Hornsby, 539 So. 2d 218, 223 (Ala.1989) (quoting Justice Jones's special concurrence in Ridout's-Brown Service, Inc. v. Holloway, 397 So. 2d 125, 127-28 (Ala. 1981)), acknowledged as a problem Justice Jones's articulated deficiency in our assessment of punitive damages in Alabama.
We have attempted to deal with the issue of the reliability of punitive damages assessments by post-trial review only. See Hammond v. City of Gadsden, 493 So. 2d 1374, 1378 (Ala.1986); Green Oil Co. v. Hornsby, 539 So.2d at 223-24; and Land & Associates, Inc. v. Simmons [MS. 87-1313, December 22, 1989] (Ala.1989). That attempt does not really address the issue. At one time, I thought that the trial court could determine the amount of punitive damages after a factual determination by a jury that punitive damages should be assessed, see Aetna Life Insurance Co. v. Lavoie, 505 So. 2d 1050, 1061-62 (Ala.1987) (Houston, J., concurring specially). If this were so, then post-trial review of a jury's punitive damages assessment would pass constitutional muster.
A jury had no right at common law to determine punishment in a criminal case (see, IV Blackstone's Commentaries, pp. 354-55, 366-69, 371 (1st ed. Reprint), and Crowe v. State, 485 So. 2d 351, 363-64 (Ala. Crim.App. 1984), rev'd on other grounds, 485 So. 2d 373 (Ala. 1985), cert. denied, 477 U.S. 909, 106 S. Ct. 3284, 91 L. Ed. 2d 573 (1986)); however, a jury did have the right to award punitive damages at common law even though "[o]ver the years, the doctrine of [common law] punitive damages has been clouded in the confusion" of whether its purpose was to compensate the victim or to punish the wrongdoer. See L. Schlueter and K. Redden, Punitive Damages, § 1.3, p. 12 (2d ed. 1989).
In the American College of Trial Lawyers "Report on Punitive Damages of the Committee on Special Problems in the Administration of Justice" (March 3, 1989), the following appears on pages eight and nine:
Alabama Constitution 1901, Art. I, § 11, provides: "[T]he right of trial by jury shall remain inviolate." This provision has remained virtually unchanged since the first state constitution was adopted in 1819. The purpose of this provision is to preserve the right to trial by jury as it existed in the English common law, and it was not intended to extend the right of trial by jury beyond what existed prior to the adoption of the first Alabama Constitution. Mayor of Mobile v. Stonewall Insurance Co., 53 Ala. 570 (1875).
Therefore, I do not now believe that our post-trial review of a jury's award of punitive damages cures the constitutionally defective procedure that we now have for submitting a case to a jury where punitive damages are an issue, except in wrongful death cases.[6] The parties are entitled to procedural due process by a properly instructed jury, when a jury demand is made by either party.
Our jury instructions, prior to the changes made in order to comply with Ala. Code 1975, § 6-11-20, enacted in 1987, gave no standards whereby a jury could properly assess the amount of punitive damages. (See Alabama Pattern Jury Instructions, No. 11.03). I recently noted that, for the same conduct, one insurance company and its special agent were punished by a punitive damages award of $21,130.86 (Washington National Insurance Co. v. Strickland, 491 So. 2d 872 (Ala. 1985)), and another insurance company and its special agent were punished by a punitive damages award of $2,490,000 (Land & Associates, Inc. v. Simmons [MS. 87-1313, December 22, 1989] (Ala. 1989); see my special concurrence in Land & Associates, slip op. at 21. The instruction given to the juries in those two cases were substantially the same and were substantially the instruction on punitive damages contained in the Alabama Pattern Jury Instructions prior to the 1987 change, and were the same as the instructions given by the trial court in the case now at issue. The juries were instructed that, if they found the requisite conduct by the appropriate standard of proof, they could award no punitive damages, or could award such an amount of punitive damages as would punish the defendant or deter the defendant or others similarly situated. Juries are required to make this determination with no standards to guide them as to what would be an appropriate amount to punish and to deter. Therefore, one jury awards $21,130.86, which is 15½ times the compensatory damages, to punish and deter (Washington National); and another awards $2,490,000, which is 249 times the compensatory damages, to punish and deter (Land & Associates, Inc.)for the same conduct. Even if such a disparity were permitted by the common law, the Alabama Constitution requires that the substance of the law of punitive damages be applied to a person through fair procedures by any tribunal hearing the case. Unless the factfinder is given facts from which it can make a rational decision as to what would punish and deter a particular defendant for its particular conduct, the damages awarded have not *917 been awarded through a fair procedure by the jury hearing the case.
The provision assuring "That the right to trial by jury shall remain inviolate" (Article I, § 11) guarantees that a jury, when demanded by either party, in a cause of action to which parties had a right to trial by jury at common law before the adoption of the first Alabama Constitution, has the right to set the amount of punitive damages that a party must pay when the jury determines, in accordance with the instructions given to it by the trial court, that that party's conduct warrants the imposition of punitive damages. However, the determination of the amount of such punitive damages must be made in accordance with meaningful standards set by this Court or by the Legislature. Unless there are meaningful standards, any jury verdict relating to punitive damages, whether it be for zero dollars or for several million dollars, is flawed and violates the guarantee of procedural due process and is void for vagueness.
Setting standards for post-trial review of a jury's verdict (except in wrongful death cases and in regard to other causes of action that did not exist at common law or as to which a party had no right to a trial by jury at common law), no matter how rational or intelligible such standards may be and no matter how helpful they may be to the trial and appellate courts when a punitive damages award is challenged as being inadequate or excessive, does not comply with this constitutional provision, since the standard by which the jury is to gauge the amount of punitive damages, if any, that it is to award is incomprehensibly vague and unintelligible. The jury is given the unbridled discretion to award no punitive damages or to award an unlimited amount of punitive damages, taking into consideration only the character and the degree of the wrong as shown by the evidence in the case and the necessity of preventing similar wrongs in the future. Under such a "standard," one jury can award $21,130.86 and another $2,490,000 for the same "wrong." This does not comply with the requirement of procedural due process under the Alabama Constitution.
Therefore, I would recommend that the following procedure be applied in all jury cases involving claims for punitive damages and as to which claims a party had a right to trial by jury at common law prior to the adoption of the first Alabama Constitution, which are tried after this opinion is released, but which are based on causes of action that accrued before June 11, 1987, without regard to when the complaints were filed:
A jury will determine the issues of liability, the amount of compensatory damages, and whether the defendant's conduct warrants the imposition of punitive damages. In addition to other jury verdict forms, in common law cases involving punitive damages the following jury verdict form should be given to a jury for each party against whom punitive damages are sought:
In the event that the jury determines that punitive damages should be imposed against one or more defendants, the trial will resume; and evidence of the following, which was not admissible in the trial in chief, shall be admissible upon an offer by any party in accordance with the rules of evidence.[7]
Evidence of the harm that was likely to occur from the defendant's conduct as well as the harm that actually has occurred is relevant. The jury should be instructed that, if it finds that the actual and likely harm is slight, the punitive damages (subject to the other factors hereinafter set out) should be relatively small. If the actual harm and/or likely harm was grievous, the punitive damages (subject to the other factors hereinafter set out) should be much greater.
*918 The duration of the defendant's conduct, the degree of the defendant's awareness of any hazard that his conduct has caused or is likely to cause, any concealment or "cover-up" of that hazard, and the existence and frequency of similar conduct of the defendant are relevant. The jury should be instructed that if it finds that the defendant's offensive conduct was of long duration or was frequently repeated; that the defendant acted with awareness that his conduct was causing or was likely to cause the hazard by which the plaintiff was in fact damaged; or that the defendant concealed or covered up that hazard, then such a finding should increase the amount of punitive damages.
The profitability of the conduct to the defendant is relevant. The jury should be instructed that the punitive damages should remove all profit from the wrongful conduct and should be in excess of the profit, so that the damages would "sting."
The financial position of the defendant is relevant. The jury should be instructed that the amount of punitive damages should "sting" the defendant, considering his financial condition.
All costs of the litigation, including the attorney fees to be paid to the plaintiff's attorney, are relevant; and the jury should be instructed that its award should include all reasonable costs of litigation, so as to encourage injured parties to bring wrongdoers to trial.
If criminal sanctions have been imposed on the defendant for his conduct, this is relevant; and the jury should be instructed that such criminal sanctions should be taken into account in mitigation of the punitive damages award.
If there have been other civil actions against the defendant based on the same conduct and if punitive damages have been assessed against the defendant in those civil actions, this is relevant; and the jury should be instructed that it should consider this in mitigation of the punitive damages award.
I believe that, if these factors are considered by a jury in assessing the amount of punitive damages a defendant should pay, this will improve the reliability of the punitive damages assessment process and will fit the punishment to the offensive conduct of the offender. I believe that by doing this in a bifurcated trial the court could preserve the reliability of the factfinding process for adjudging liability, thereby accomplishing the goal we set in Green Oil Co. v. Hornsby, supra, when we adopted Justice Jones's special concurrence in Ridout's-Brown Service, Inc. v. Holloway, supra.
I believe that this approach will afford procedural due process to all parties against whom punitive damages are sought and will preserve inviolate the right to trial by jury under the Alabama Constitution. I would limit this procedure to cases in which the cause of action accrued prior to June 11, 1987. If the legislation that became effective on that date (see § 6-11-1 et seq., Code 1975), which I have not in any way considered in this special concurrence, provides procedural due process safeguards and preserves inviolate the right to trial by jury, so that it passes constitutional muster, then it should replace the procedure that I advocate herein to uphold the constitutionality of punitive damages awards in common law causes of action.
The post-trial procedures for reviewing punitive damages awards, when those awards are challenged as excessive or inadequate, as set out in Land & Associates, Inc. v. Simmons, supra; Green Oil Co. v. Hornsby, supra; and Hammond v. City of Gadsden, supra, should remain intact.
[1] The conversion occurred subsequent to Dr. Weinberg's termination, January 17, 1980. The trial commenced in October 1988.
[2] Developed by Dr. Weinberg and two other people, Recovery from Chemical Dependency, Inc., was a company that proposed sales of treatment programs to hospitals around the country, including hospitals in competition for the same patients that Charter was seeking to treat.
[3] $35,000-$40,000 one year salary for a Ph.D. to develop and implement a similar program at Charter;
$36,000 plus incidental expenses (per diem, airfare, tuition, and other incidental expenses) for a third-party to develop and implement a similar program at Charter;
$50,000-$100,000 for a third-party to develop and implement a similar treatment program at another facility where Charter's administrator had been employed previously; and
$900,000 gross profit generated per year, using the treatment program.
[4] June 11, 1987, was the effective date of Title 6, Chapter 11, Ala.Code 1975.
[5] Chief Justice John Marshall in the seminal case on judicial supremacy, Marbury v. Madison, 5 U.S. (1 Cranch) 137, at 179-80, 2 L. Ed. 60 (1803), reminded the judiciary that "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature." (Emphasis in original.)
[6] The Alabama Wrongful Death Statute (Ala. Code 1975, § 6-5-410) "`creates a single cause of action unknown to the common law.'" Tatum v. Schering Corp., 523 So. 2d 1042, 1044 (Ala.1988), quoting Bell v. Riley Bus Lines, 257 Ala. 120, 57 So. 2d 612 (1952). But, see, Lawrence T. King's, On Civil Punishment and Tort Reform in Alabama, 20 Cumb.L.Rev. 47, 59 (1989-90):
"A more intriguing [Alabama Constitution] section 13 question is raised by the continued use of the word `remedy' by the Supreme Court of Alabama in referring to wrongful death actions. If the wrongful death statute is, as called, remedial, then the court has construed it in such a manner as to deny the remedy, by permitting the recovery of strictly punitive damages, which are not remedial. In this sense, the action of the court has operated to deny the section 13 guaranty of a remedy for every wrong. No reported case instructs as to the effect of a court decision, rather than a legislative act, abrogating section 13 rights but it appears highly likely that such a decision runs directly afoul of the very purpose of the State constitution." (Emphasis in original.)
[7] A bifurcated trial is also recommended by the American College of Trial Lawyers, "Report on Punitive Damages of the Committee on Special Problems in the Administration of Justice" (March 3, 1989), pp. 18-19. | January 12, 1990 |
a95320d1-d59f-4b12-97b8-73cf2dae1e19 | Ex Parte Alexander | 558 So. 2d 364 | N/A | Alabama | Alabama Supreme Court | 558 So. 2d 364 (1990)
Ex parte Richard G. ALEXANDER.
(Re Richard G. ALEXANDER
v.
PRUDENTIAL-BACHE SECURITIES, INC., and Jeffrey L. Howard).
88-1391.
Supreme Court of Alabama.
January 26, 1990.
Sidney W. Jackson III of Jackson & Taylor, Mobile, for petitioner.
Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for respondents.
MADDOX, Justice.
The issue in this case is whether the trial court erred in staying the plaintiff's case pending arbitration of his claims.
*365 Richard Alexander allegedly lost approximately $30,000 in the stock market on "Black Monday," October 17, 1987. He sued his broker, Jeffrey L. Howard of Prudential-Bache Securities, Inc., and Prudential-Bache for not limiting his losses to $7,500 by implementing a "stock loss program," which Alexander alleges is a mechanism that would have involved a sale of his stocks before the prices dropped below a certain level. Prudential-Bache and Howard claim that they do not know what a "stock loss program" is. On August 17, 1987, Howard had sent Alexander a letter stating that "our stock investment strategy includes investing of $60,000 into stock positions allowing a maximum of $7500 in losses in these positions." The defendants assert that they were suggesting that Alexander invest in options, particularly puts,[1] in order to minimize losses, and that in the week just prior to Black Monday, Howard explicitly discussed put options with Alexander as a means for reducing any possible losses. Alexander chose not to do so and adopted a "wait and see" attitude. The defendants allege that after Black Monday Alexander told Howard that he regretted not taking the advice on the puts. Alexander claims that he never made any of the above statements and that he never discussed puts with the defendants. It is undisputed that only Alexander had the authority to make investment decisions regarding the purchase or sale of any securities in his account and that the defendants could not trade any securities for Alexander's account without his express permission; the defendants only made suggestions to Alexander regarding his security investments.
The only signed agreement between the parties is an option agreement containing an arbitration clause; this agreement was signed on July 6, 1987, and contained the following language:
Prudential-Bache moved to have the case stayed pending arbitration; the trial court granted that motion.
Now, Alexander seeks a writ of mandamus directing the trial court to vacate its order staying his lawsuit pending arbitration, and he claims that his suit involves only his "stock account," on which he says he never signed anything, including an arbitration clause. However, Alexander does not have a "stock account" with Prudential-Bache; he has only an account that includes stocks, options, bonds, and precious metals, and he has historically traded in all those investments, including options, through that one account.
As this Court has stated before, a petition for a writ of mandamus is the proper means to test a trial court's granting of a motion to arbitrate or the granting of a stay pending arbitration.[2] See Ex parte Thomson McKinnon Sec., Inc., 517 So. 2d 614 (Ala.1987), and Ex parte Warrior Basin Gas Co., 512 So. 2d 1364 (Ala. *366 1987). The standard for our review of a petition for writ of mandamus involving a stay pending arbitration is whether there is a clear showing that the trial court abused its discretion. Ex parte McKinney, 515 So. 2d 693 (Ala.1987).
The only written contract between the parties includes an arbitration clause, and it is clear that arbitration is highly favored in investment settings and that all presumptions are to be in favor of arbitration. Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987); McKinney, supra. Agreements to arbitrate must be rigorously enforced. Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221, 105 S. Ct. 1238, 1242-43, 84 L. Ed. 2d 158 (1985).
The options agreement signed by Alexander clearly calls for arbitration of "any dispute or claim ... relating to the purchase, sale, handling, execution or endorsement of puts or calls for my account...." (Emphasis added.) Alexander had only a general account with the defendants; he did not have a "stock account," an "options account," a "bond account," or any other kind of separate account for any particular kind of security that he traded. Thus, the only question that the trial court needed to resolve in order to decide if arbitration was proper was whether this dispute related to "the purchase, sale, handling, execution or endorsement of puts or calls." It is undisputed that the buying of put options is a traditional means of reducing the amount of loss when stock prices fall. While the letter from Howard to Alexander did not explicitly mention puts, it spoke of the "investing of $60,000 into stock positions allowing a maximum of $7500 in losses in these positions," and this discussion of investing in stock positions rather than in stocks supports the argument that that letter was not an agreement involving the sale of stock to minimize losses but was a recommendation involving options. The defendants claim that they discussed puts with Alexander prior to Black Monday and that afterwards he regretted not taking their advice. Alexander claims that puts were never discussed and that the "stock loss program" was the means by which the defendants agreed to minimize his losses. Yet, it is undisputed that only Alexander had the authority to order the sale of his stock and that he never did so on Black Monday.
In light of the facts that Alexander had only a general account, which included all his securities' transactions, that there was evidence that the dispute here did involve options, and that Alexander never gave the defendants the authority to sell his stocks in order to minimize losses, we conclude that the trial court did not abuse its discretion in holding that the arbitration clause in the options agreement was applicable to this controversy. Therefore, Alexander's petition for writ of mandamus is denied.
WRIT DENIED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] "Puts" are stock options whereby the option holder can require the seller of the option to buy certain stock at a specified price. Thus, if the price of the stock decreases, the holder of the put option can force the other party to buy the stock at the higher option price, or he can sell the option itself because it will have increased in value due to the fact that it can be exercised on favorable terms.
[2] Due to a recent amendment to the Federal Arbitration Act, codified at 9 U.S.C. § 15, that allows an appeal from the denial of a motion to compel arbitration or from the denial of a motion for a stay pending arbitration, this Court has held that an appeal within 42 days of such a denial is now the proper means for having such a denial reviewed. Ex parte A.G. Edwards & Sons, Inc., 558 So. 2d 358 (Ala. 1990). | January 26, 1990 |
bd434533-4f62-446b-aa80-4a04f56b33a8 | Breeden v. Hardy Corp. | 562 So. 2d 159 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 159 (1990)
Michael Shane BREEDEN
v.
HARDY CORPORATION and Dunn Construction Company.
88-1164.
Supreme Court of Alabama.
January 12, 1990.
Rehearing Denied April 6, 1990.
Charles M. Thompson, Birmingham, for appellant.
Stephanie R. White and John F. Whitaker, Birmingham, for appellees.
HORNSBY, Chief Justice.
Michael Shane Breeden, an employee of M & A Electric Company, sued Hardy Corporation and Dunn Construction Company for injuries he received in a fall on July 28, 1986, during construction of the Riverchase Galleria ("Galleria") shopping complex in Hoover, Alabama. Breeden alleges that Hardy Corporation and Dunn Construction negligently created an unsafe working condition on the Galleria jobsite. Breeden appeals from the summary judgment in favor of both Hardy Corporation and Dunn Construction. The issue before us is whether the evidence conclusively showed that Breeden knew of and appreciated a dangerous condition so as to give rise to the "open and obvious danger" defense. We believe that whether the plaintiff was aware of a dangerous condition on the premises is a question of fact for the jury to determine. Such questions of contributory negligence are generally jury questions.
Dunn Construction was the general contractor for the Galleria project, and Hardy Corporation was the subcontractor responsible for duct work. On the day of his accident, Breeden and another M & A Electric employee were installing junction boxes on the second floor of Macy's department *160 store. Breeden would mark on the floor directly below the spot on the ceiling where the junction box was to be placed and then would position the scaffold on that mark for his coworker to install the junction box.
In the area where Breeden was working, there were four holes for the sheetmetal duct work to be installed by Hardy Corporation for the heating, ventilation, and air conditioning ("HVAC") systems. These holes were normally barricaded with wooden studs and cable; however, on July 27, the day before the accident, Hardy Corporation workers removed the barricade from one of the HVAC holes in order to use a duct jack in the opening but did not replace the barricade. While moving the scaffold the next day, Breeden stepped back several feet and fell through the unguarded hole.
Summary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R. Civ.P. In a negligence case, such as this one, summary judgment is rarely proper. In negligence actions, there are almost always questions to be decided by the factfinder. Hilburn v. Shirley, 437 So. 2d 1252 (Ala.1983).
The defendants, Hardy Corporation and Dunn Construction, rely heavily on the case of Heath v. Sims Bros. Constr. Co., 529 So. 2d 994 (Ala.1988), to support their claim that summary judgment is proper in this case. In Heath, also a case in which an employee of a subcontractor sued the general contractor for injuries received as a result of the general contractor's allegedly negligent maintenance of the workplace, this Court stated:
529 So. 2d at 995.
It is clear from this passage that the general contractor has a duty of care with regard to the safety of employees of subcontractors who are present at the jobsite. However, this duty is not unlimited. A plaintiff may not recover if the injury he receives is caused by an obvious or known defect in the premises. The questions of the openness and obviousness of a defect *161 or danger and of the plaintiff's knowledge of such conditions are not properly considered matters of law for summary judgment. Bogue v. R & M Grocery, 553 So. 2d 545 (Ala.1989).
In Bogue, supra, a negligence case involving a slip and fall, we stated:
553 So. 2d at 547-48. See also, Terry v. Life Ins. Co. of Georgia, 551 So. 2d 385 (Ala.1989).
We believe that there are questions of fact to be resolved in this case. Breeden's deposition testimony shows that at all times up until the day before his fall the HVAC holes were barricaded with studs and cable except when someone was working through those holes. Breeden said he had seen no one working through those holes until the day before his fall. Moreover, Breeden stated that he had not noticed before his accident whether the barricade was up on the day of the accident. As was true in Bogue, there are "any number of factual issues for a jury in this case, as there usually are in negligence cases." Questions such as the plaintiff's awareness of the defect in a given case are normally questions for the jury. Id.
The summary judgment in favor of Hardy Corporation and Dunn Construction is due to be, and it hereby is, reversed.
REVERSED AND REMANDED.
JONES, SHORES, ADAMS and KENNEDY, JJ., concur.
ALMON, J., concurs in the result.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
STEAGALL, Justice (dissenting).
Although the majority holds that the issue of Breeden's contributory negligence is a jury question, the facts of this case clearly support the summary judgment in favor of Hardy Corporation and Dunn Construction Company. As the majority opinion acknowledges, "on July 27, the day before the accident, Hardy Corporation workers removed the barricade from one of the HVAC holes in order to use a duct jack in the opening but did not replace the barricade." (Emphasis added.)
The majority also concedes that a plaintiff may not recover if the injury is caused by an obvious or known defect in the premises. Breeden's deposition testimony indicates that this case is like Heath v. Sims Bros. Constr. Co., 529 So. 2d 994 (Ala.1988), and that the dangerous condition that the unguarded hole presented was at least as well known to Breeden as it was to Hardy Corporation:
Heath, which was also a summary judgment case, is squarely on point with the facts of this case and, notwithstanding the majority's attempt to distinguish it from the present situation, it is direct authority for entering this summary judgment. Presented with facts virtually identical to the facts in this case, this Court held in Heath that "[i]f ... the holes constituted a dangerous condition, ... it was an open and obvious danger that the plaintiff should have recognized, and that, by his own admission, he did recognize.... [T]he general contractor cannot be held liable for the injuries plaintiff sustained when he fell from the scaffold." 529 So. 2d at 996. Likewise, Hardy Corporation and Dunn Construction Company should not be held liable for a dangerous condition that Breeden has admitted he was aware of.
In my opinion, the majority's reliance on Bogue v. R & M Grocery, 553 So. 2d 545 (Ala.1989), and Terry v. Life Ins. Co. of Georgia, 551 So. 2d 385 (Ala.1989), to the exclusion of Heath, supra, is misplaced, and for these reasons, I must respectfully dissent.
MADDOX and HOUSTON, JJ., concur. | January 12, 1990 |
00b98e88-509d-432a-a398-b1975a6958e0 | MacOn County Com'n v. Sanders | 555 So. 2d 1054 | N/A | Alabama | Alabama Supreme Court | 555 So. 2d 1054 (1990)
MACON COUNTY COMMISSION, et al.
v.
Armanda SANDERS, as administrator of the estate of Michael Sanders, deceased.
88-749.
Supreme Court of Alabama.
January 5, 1990.
*1056 H.E. Nix, Jr. and Alex L. Holtsford, Jr., Montgomery, for appellants.
Steven F. Schmitt and Clay Hornsby, Tallassee and Ernestine Sapp of Gray, Langford, Sapp & McGowan, Tuskegee, for appellee.
SHORES, Justice.
Macon County and the Macon County Commission appeal from a judgment based on a jury verdict in favor of Armanda Sanders, administratrix of the estate of Michael Sanders, and from the denial of a motion for a directed verdict and a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Mr. Sanders was killed in a two-vehicle collision on County Road 2, a rural dirt road in Macon County, on March 27, 1986. His estate sued the County and the County Commission, claiming that they had been negligent and wanton in the repair, maintenance, construction, and/or design of the road. The jury awarded the estate $335,000, which the trial judge remitted to $100,000.
The defendants raise several issues on appeal. They claim that the trial court erred in denying various motions, including their motion for a directed verdict and their motion for a judgment notwithstanding the verdict or, in the alternative, a new trial; that the trial judge made improper evidentiary rulings during the trial; and that the trial judge committed improper conduct at trial. We affirm.
I. Review of denial of motions for directed verdict and judgment notwithstanding the verdict
The standard of review for the denial of motions for a directed verdict and a judgment notwithstanding the verdict is whether the party with the burden of proof has produced sufficient evidence to require a jury determination. Ex parte Oliver, 532 So. 2d 627 (Ala.1988).
The defendants claim that the case should not have been submitted to a jury because 1) there was no evidence of wantonness; 2) Michael Sanders was contributorily negligent by driving in the wrong lane; and 3) the plaintiff failed to prove that the road was not reasonably safe or that the defendants had received notice of any defects that proximately caused the accident.
A finding of wantonness requires a showing that a party, "`with reckless indifference to the consequences, ... consciously and intentionally did some wrongful act or omitted some known duty which produced injury.'" Whitmore v. Burge, 512 So. 2d 1320, 1327 (Ala.1987) (quoting Griffin Lumber Co. v. Harper, 247 Ala. 616, 618, 25 So. 2d 505, 506 (1946)). There was sufficient evidence to submit this claim to the jury and for the jury to find the defendants liable. There was evidence that the defendants had received complaints about the condition of the road at the site of the accident and that they had failed to act on the complaints.
The defendants claim that Michael Sanders was driving in the wrong lane at *1057 the time of the collision and thus was contributorily negligent. However, the plaintiff produced evidence that the driver of the other vehicle was in the wrong lane when the vehicles collided. Thus, the plaintiff produced sufficient evidence to require a jury determination of the question of contributory negligence.
A county has the duty to keep its roads in a reasonably safe condition for travel and to remedy defects in the roadway on receipt of notice of those defects. Jefferson County v. Sulzby, 468 So. 2d 112, 114 (Ala.1985); § 23-1-80, Code of Alabama 1975. The defendants argue that they never received notice of any defect that might have proximately caused the accident and that the trial court allowed the jury to use wrong standards to determine whether the road was reasonably safe. As stated earlier, there was sufficient evidence of complaints to the defendants to submit the question of notice to the jury. The defendants claim that the standards that should have been used to measure the safety of the road were those standards existing at the time the road was built, which was sometime before 1937, and not those standards existing in 1986, when the accident occurred. The defendants also claim that different standards should be used for a rural dirt road than for a metropolitan highway. The correct standard is that a county keep a road in a reasonably safe condition for travel and that it remedy defects on receipt of notice of those defects. This standard applies to a public dirt road as well as to a paved metropolitan highway. The customary absence of signs on dirt roads and the poor maintenance of dirt roads do not provide conclusive evidence of a lack of negligence in the present case. The standard to be applied is what reasonably should have been done, not what customarily is done. See Elmore County Commission v. Ragona, 540 So. 2d 720, 726 (Ala.1989).
There was testimony at the trial about the standards set out in the Uniform Manual on Traffic Control Devices and in manuals of the American Association of State Highway Officials, all of which were published after this road was built. These standards do not furnish conclusive evidence of negligence, and the plaintiff did not rely solely on these standards to prove that the road was not reasonably safe. See Sulzby, 468 So. 2d at 114. There was evidence that the road was overgrown with vegetation, that it had ruts and was washed out in places, that motorists had to drive in the middle of the road because of the narrow width, that sight distances were insufficient, and that warning signs were needed on the road. Thus, there was sufficient evidence of defects to submit to the jury the question of whether the road was reasonably safe for travel.
II. Evidentiary issues
The trial judge allowed the jury to view the scene of the accident. A trial judge has the discretion to allow a view of the scene. McElroy's Alabama Evidence, § 208.01 (3d ed. 1977) at 462. The defendants, however, argue that the trial judge abused this discretion by having the attorney for each side stand at the point in the road where his client claimed the impact occurred. The defendants claim that this amounted to allowing the attorneys to give testimony at the site.
It is improper for testimony to be given while the jury is viewing the scene of an accident. McElroy's, § 208.01, at 462-63; Kilgore v. State, 19 Ala.App. 181, 182, 95 So. 906 (1923); Manning v. Atlanta, B. & A. R.R., 206 Ala. 629, 91 So. 446 (1921). However, the error was not prejudicial, because testimony regarding the claimed impact points had already been received into evidence and no new evidence was received at the scene. See Yeary v. Holbrook, 171 Va. 266, 198 S.E. 441 (1938).
Defendants argue that the trial judge incorrectly allowed the introduction of evidence of subsequent repairs to the road. Plaintiff's attorney asked Mr. Frank Lee, a county commissioner and witness for the defendants, if the County had any future plans to erect a speed limit sign or *1058 warning signs on the road in question. Evidence of subsequent remedial measures is not admissible to show a defendant's prior negligence. Hyde v. Wages, 454 So. 2d 926 (Ala.1984). In this case, however, the plaintiff was not offering the evidence to show the defendants' prior negligence but, rather, to show that the defendants did not intend to improve the safety of the road and thus that their conduct was wanton. The evidence was admissible, because it was not offered to show negligence.
The defendants argue that the trial judge improperly allowed Jack Chambliss, a traffic engineer testifying for the plaintiff, to give his opinion about the proximate cause of the accident. Experts may testify as to the ultimate issue in a case. Harrison v. Wientjes, 466 So. 2d 125 (Ala. 1985). A determination of whether a witness qualifies as an expert rests largely in the discretion of the trial judge, and that determination will be reversed only if found to be palpably wrong. Hagler v. Gilliland, 292 Ala. 262, 292 So. 2d 647 (1974). An expert is defined as "anyone whose opportunity or means of knowledge in a specialized art or science is better than that of the average juror or witness," Smoot v. State, 520 So. 2d 182 (Ala.Crim. App.1987), such that his testimony will aid the jury. Glaze v. Tennyson, 352 So. 2d 1335 (Ala.1977). Through the extensive questioning of Chambliss, it was shown that he possessed sufficient knowledge, training, and experience to qualify as an expert and to testify as to the cause of the accident, and thus it was not an abuse of discretion to allow him to testify. See Hunter v. State, 338 So. 2d 513, 515 (Ala. Crim.App.1976).
The defendants also claim that the trial judge erred in not allowing another expert to give opinion testimony. Their attorney asked the state trooper who investigated the accident his opinion about the proximate cause of the accident. The defendants argue that, as an expert witness, the state trooper could give such an opinion (Harrison, 466 So. 2d 125, 127); thus, they argue, it was error to disallow this testimony. Even if this was error, however, its disallowance did not prejudice the defendants, because the trooper was allowed to testify as to how, in his opinion, the accident happened. This testimony, in effect, included his opinion of the cause.
The defendants argue that the trial judge incorrectly allowed the plaintiff to ask leading questions of an expert witness for the plaintiff. The testimony, however, was admissible because the plaintiff claimed surprise. McElroy's, § 121.05(7); Cloud v. Moon, 290 Ala. 33, 273 So. 2d 196 (1973).
The defendants claim that the trial judge improperly excluded certain testimony of Brad Blue, the driver of the other vehicle, on the grounds of hearsay. Blue died before trial, from causes unrelated to the accident, and certain parts of his depositions from separate proceedings against him and his employer were admitted as evidence. The trial judge disallowed the introduction of Blue's statements about the wreck to his employer. The trial judge correctly excluded this hearsay testimony. It does not qualify as admissible former testimony, because the parties in the former proceeding and those in this proceeding are not substantially the same. McElroy's, § 245.07(1) and (7), at 518.
The defendants argue as error the admission of evidence of a prior fatality on County Road 2. Even if the evidence was inadmissible, the error was not preserved for review because the defendants did not object until the question whether there had been another fatality on the road had been answered. McElroy's, § 426.01(3) at 793-94, Davis v. Southland Corp., 465 So. 2d 397 (Ala.1985).
III. Conduct of the trial judge
The defendants argue that the trial judge committed misconduct requiring *1059 reversal. The first alleged misconduct concerns comments made by the trial judge about the site inspection. It is improper for a trial judge to comment on the weight and effect of the evidence, Smith v. Clements, 45 Ala.App. 435, 231 So. 2d 759 (Ala. Civ.App.1970), or on the credibility of a witness. Clevenger v. State, 369 So. 2d 563 (Ala.Civ.App.1979). Reviewing the record, however, we find it obvious that the trial court's comments were just joking remarks and were not comments on the evidence. Therefore, no error was committed.
The defendants also claim that the trial judge improperly questioned witnesses. A trial judge has the discretion to question a witness as long as he does not create an impression of favoring one party. McElroy's, § 121.04, at 249. The defendants objected to only one of five instances of alleged error of this sort. In that one instance of alleged error preserved for review, the trial judge asked the investigating state trooper if two vehicles could safely pass on the road if they were traveling 55 m.p.h. Asking this question was not error, because the question did not favor either party and, thus, was not improper.
AFFIRMED.
JONES, ALMON, HOUSTON and KENNEDY, JJ., concur. | January 5, 1990 |
1046260f-36b3-4bce-a02d-2e86c6ad2026 | Tuscaloosa County v. Barnett | 562 So. 2d 166 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 166 (1990)
TUSCALOOSA COUNTY, et al.
v.
Jeffrey C. BARNETT, a minor, By and Through his father and next friend, Clyde BARNETT, Jr.
TUSCALOOSA COUNTY, et al.
v.
Clyde BARNETT, Jr., et al.
TUSCALOOSA COUNTY, et al.
v.
ALLSTATE INSURANCE COMPANY.
88-413, 88-1097 and 88-1098.
Supreme Court of Alabama.
January 26, 1990.
Rehearing Denied April 6, 1990.
Michael D. Smith of Lee, Barrett, Mullins, Smith & Smithart, Tuscaloosa, for appellants.
*167 C. Delaine Mountain of Mountain & Mountain, Wayne Randall of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellees Clyde Barnett, Jr., and State Farm Mut. Auto. Ins. Co.
Michael S. Burroughs of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee Allstate Ins. Co.
PER CURIAM.
Tuscaloosa County and the Tuscaloosa County Commission (herein together called the "County") appeal from a judgment rendered against them pursuant to a jury verdict in the Circuit Court of Tuscaloosa County. The trial involved three separate cases that had been consolidated because each arose out of the same automobile accident in Tuscaloosa County. These three cases are styled Jeffrey C. Barnett, et al. v. Tuscaloosa County, et al.; Clyde Barnett, Jr. and State Farm Mutual Aut. Ins Co. v. Tuscaloosa County; and Allstate Ins. Co. v. Tuscaloosa County, et al. Appeals were taken from the judgments in all three cases; the appeal in the first of these three cases was to this Court, and the appeals from the other two were taken to the Court of Civil Appeals. Those two appeals have been transferred to this Court, and the three cases have been consolidated for the purpose of writing one opinion.
The facts of these cases show that an automobile accident involving Jeffrey Barnett and Scott Capell occurred at the intersection of Tierce Patton Road and Old Fayette Road in Tuscaloosa County on February 21, 1987. Tierce Patton Road is a heavily traveled thoroughfare and provides access to Lake Tuscaloosa and to a marina. Old Fayette Road is a less heavily traveled road.
The record in this case reveals that Jeffrey Barnett had been at work with his father, Clyde Barnett, Jr. About 3:30 p.m. on the afternoon of February 21, 1987, Jeffrey and his father went to pick up Jeffrey's car, which had been undergoing repairs. Jeffrey was returning home from this errand when the accident occurred. He turned off Highway 43 onto Tierce Patton Road. He testified that at the point where Tierce Patton Road and Old Fayette Road intersect, the driver's vision was obstructed and that traffic on Old Fayette Road was not visible to drivers on Tierce Patton Road because an old field had "grown up." He stated he was traveling at 35-40 m.p.h. and that it was a clear day. When asked when he first saw the vehicle he collided with, Barnett stated, "Just a second before we hit."
Scott Capell's testimony was limited by the fact that in the accident he suffered a concussion and experienced a loss of memory. However, evidence in the record tends to indicate that Capell approached Tierce Patton Road from Old Fayette Road and traveled through the intersection, colliding with Barnett. It appears that Capell was deceived into thinking that his crossing was safe because a stop sign that was usually present on Old Fayette Road at this intersection was missing and there was no other traffic direction device present. State Trooper Wesley Cartwright investigated the accident and found the stop sign to be missing. Cartwright stated that, in his opinion, the missing stop sign was the sole contributing cause of the wreck. It is clear from the facts that neither driver involved in the accident could see traffic approaching from the other road because of land conditions at the accident scene. Although the missing traffic sign could not be found at the time of the accident, it was found a few days later in a nearby ditch by Sam Hill, the county engineer. The sign was covered by dirt, water, and grass, and it appeared to have been in the ditch for some time. There is evidence to indicate that this particular sign had been knocked down repeatedly over the years and that on each occasion the County had replaced it at the same location in the intersection.
Jeffrey Barnett sued Capell for injuries he received in the accident; Barnett later named the county as a defendant. Clyde Barnett and State Farm then sued Capell and the County for property damage under the subrogation clause of their insurance contract. Capell filed separate answers to these two suits by the Barnetts. Allstate *168 Insurance Company, pursuant to its subrogation rights under its policy of insurance with Capell, sued the County to recover the money it had paid for Capell's personal injuries and property damage to his vehicle. On April 27, 1988, Jeffrey Barnett moved to consolidate these three cases. The three cases were tried together and all plaintiffs were awarded damages against the County. The Barnetts were awarded $18,000 compensatory damages. Jeffrey Barnett was awarded $20,400 punitive damages on a finding of wantonness on the part of the County. Allstate was awarded $7,393.38 in damages. The jury found for Capell and he is not a party to this appeal.
The County presents only two issues on appeal. The County first claims that the plaintiffs failed to prove that it had negligently maintained the roadway in question and that its negligence was the proximate cause of the accident. The County next asserts that the plaintiffs failed to prove wantonness. All plaintiffs in this case oppose the County on the issue of negligence. Only Jeffrey Barnett opposes the County on the issue of wantonness. With respect to the negligence issues, the Barnetts, Allstate and State Farm raise the same arguments. Therefore, we will discuss only Barnett's case, because that discussion will sufficiently dispose of those matters.
We begin by noting that governmental entities have the exclusive right of control over and responsibility for the maintenance of highways, and, thus, that those entities are subject to a common law duty to maintain roadways in a "reasonably safe condition for their intended use." Jefferson County v. Sulzby, 468 So. 2d 112, 114 (Ala.1985). Counties are bodies corporate pursuant to Code 1975, § 11-1-2, which provides that "[e]very county is a body corporate, with power to sue or be sued in any court of record."
The standard of care required of a county in such a case as this is to remedy defects upon receiving notice of them; notice may be constructive and need not be actual. Sulzby, 468 So. 2d at 114. However, the County need use only ordinary and reasonable care to maintain the roadway, and its liability is not the same as that of an insurer. Jacks v. City of Birmingham, 268 Ala. 138, 105 So. 2d 121 (1958).
The evidence in the record supports the jury's finding of negligence. There was evidence to indicate that the stop sign at the intersection at which the accident occurred had been replaced on numerous occasions prior to this accident. Although the County had notice that the sign was likely to be removed with some regularity, there is evidence to indicate that the County always replaced the sign in the same manner at the same location. There is evidence to indicate that the County ignored reasonably available alternatives to a stop sign at this intersection. There is also evidence to show that on the date of the accident, this particular sign had been missing for some time. The county engineer further stated that the County did not follow the Alabama Manual on Uniform Traffic Control Devices. Based upon this evidence, the jury could have found that the County had at least constructive notice of a defect in the roadway and that it negligently failed to cure that defect.
The County contends that an unforeseeable event intervened to cause the accident in this case and thus insulated it from any liability for any negligence in maintaining the sign. The County relies on Vines v. Plantation Motor Lodge, 336 So. 2d 1338 (Ala.1976). That case does stand for that proposition, but that proposition has no application in this case, because the event that the County claims was the "intervening cause" was foreseeable. For the Vines proposition to apply, the intervening event must be "not reasonably foreseeable." Id. at 1339. There is evidence in the record to indicate that this stop sign had been knocked down on numerous occasions and that the County had always replaced the sign in the same manner at the same location. After having notice of these prior acts, the County can not reasonably argue that the vandalism in this particular instance *169 was unforeseeable. Moreover, our cases have held that proximate causation and whether there is an intervening cause are questions for the jury. Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 189, 100 So. 2d 696 (1957).
Was there evidence of wantonness? This Court has defined "wantonness" as: "`the conscious doing of some act or the omission of some duty [while] under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result,'" and this Court has held that "`before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the result.' "Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala.1980), quoting Lewis v. Zell, 279 Ala. 33, 36, 181 So. 2d 101 (1965) (emphasis added; citations omitted). See, also, Alabama Great So. R.R. v. Johnston, 281 Ala. 140, 199 So. 2d 840 (1967); and Brown v. Turner, 497 So. 2d 1119, 1120 (Ala.1986). Moreover, what constitutes wanton conduct depends on the facts of each case. Pate v. Sunset Funeral Home, 465 So. 2d 347 (Ala. 1984). Plaintiff Jeffrey Barnett is the only appellee in these cases to address the issue of wantonness and punitive damages. His position is that the wantonness count was properly submitted to the jury because, he says, there was a scintilla of evidence to show that the County had notice that the stop sign was missing and yet had failed to act to correct this defect.
Wantonness has often been described in our law. This Court has stated:
Whitmore v. Burge, 512 So. 2d 1320, 1326 (Ala.1987) (quoting Rosen v. Lawson, 281 Ala. 351, 356, 202 So. 2d 716, 720 (1967)). This Court has recognized that punitive damages may be recovered from a county due to its wanton failure to maintain a roadway. Elmore County Comm'n v. Ragona, 540 So. 2d 720, 727 (Ala.1989).
The facts of this case, however, simply do not support a finding of wantonness. At best, the plaintiff's evidence tended to show that the County had been made aware that this stop sign was missing on several occasions and that the County had taken prompt steps to replace the sign on those occasions. The County had placed reflectors on the sign to increase its visibility and had unsuccessfully attempted to relocate it. This evidence tends to show only that the County may have been negligent and not that the County acted wantonly. Consequently, the jury's award of punitive damages is invalid. Bradley v. Walker, 207 Ala. 701, 93 So. 634 (1922).
Based upon our review of the evidence and the facts in this case, we affirm that part of the trial court's judgment holding Tuscaloosa County liable for negligence in its maintenance of this intersection. We reverse, however, that part of the judgment holding the County liable under Jeffrey's wantonness claim, and judgment is hereby rendered for the County on that issue. The jury's award of punitive damages, therefore, is due to be set aside. The award to Allstate under its subrogation claim is affirmed. The award to Clyde Barnett and State Farm on their subrogation claim is affirmed.
88-413AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED.
88-1097AFFIRMED.
88-1098AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | January 26, 1990 |
2cb268bd-a826-4170-8e7f-cee13eec7b8d | Ex parte Kevin James Davis. | N/A | 1150072 | Alabama | Alabama Supreme Court | REL: 12/18/2015
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2015-2016
____________________
1150072
____________________
Ex parte Kevin James Davis
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: State of Alabama v. Kevin James Davis)
(Baldwin Circuit Court, CC-12-1554;
Court of Criminal Appeals, CR-13-1860)
STUART, Justice.
WRIT DENIED. NO OPINION.
Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Murdock, J., dissent.
1150072
MOORE, Chief Justice (dissenting).
"A defendant is constitutionally entitled to be informed
of the nature and the cause of the accusation against him.
U.S. Const. amend. VI; Ala. Const. art. I, § 6." Ex parte
Washington, 448 So. 2d 404, 407 (Ala. 1984). In this case, I
believe that Kevin James Davis was deprived of his
constitutional rights because his indictment "apprised [him]
of the charge against him but he could not know the
contentions of the state as to how he committed [the charged
offense of manslaughter]." Nelson v. State, 50 Ala. App. 285,
288, 278 So. 2d 734, 737 (Ala. Crim. App. 1973). I therefore
respectfully dissent from this Court's decision to deny
Davis's petition for a writ of certiorari.
In its decision below, the Court of Criminal Appeals
provided the following facts:
"On September 20, 2012, Davis was indicted for
manslaughter, § 13A-6-3(a)(1), Ala. Code 1975. The
indictment against Davis stated: 'The Grand Jury of
Baldwin County charges that ... Kevin Davis ...
did[] recklessly cause the death of another person,
to-wit: Randall McKenzie, in violation of § 13A-6-
3(a)(1), of the Code of Alabama.' On September 3,
2014,
Davis
filed
a
motion
to
dismiss
the
indictment,
arguing
that
the
indictment
was
defective because it failed to state the particulars
of the offense. That same day, the State filed a
response to Davis's motion, arguing that the
2
1150072
indictment was sufficient. On September 8, 2014, the
State filed a notice of a more definite statement in
which it provided details of the offense charged.
The following day, the circuit court struck the
State's notice of a more definite statement and
dismissed the indictment against Davis. The circuit
court reasoned that the indictment was due to be
dismissed because it failed to allege the means by
which Davis caused McKenzie's death. The State filed
a timely notice of appeal."
State v. Davis, [Ms. CR-13-1860, May 29, 2015] ___ So. 3d ___,
___ (Ala. Crim. App. 2015). The Court of Criminal Appeals
reversed the judgment of the trial court and remanded the
cause for further proceedings. The court reasoned
that Davis's
indictment was sufficient because "it tracked the language of
the statute defining the offense of manslaughter, which
'prescribes with definiteness the essential elements of
[reckless manslaughter].'" ___ So. 3d at ___
(quoting
Tompkins
v. State, 898 So. 2d 875, 877 (Ala. Crim. App. 2004). Davis
petitioned this Court for a writ of certiorari, claiming that
the Court of Criminal Appeals' decision conflicted with prior
decisions of Alabama appellate courts.
Davis claims that the Court of Criminal Appeals' decision
conflicts with Nelson v. State, 50 Ala. App. 285, 278 So. 2d
735 (1973). In Nelson, the defendant was charged with first-
3
1150072
degree murder. The indictment read as follows: "'The Grand
Jury of said County charge that, before the finding of this
indictment, DAVID LARRY NELSON unlawfully, and with malice
aforethought, killed Oliver King against the peace
and
dignity
of the State of Alabama.'" Nelson, 50 Ala. App. at 286, 278
So. 2d at 735 (emphasis added in Nelson). The Court of
Criminal Appeals found that this indictment was
not
sufficient
to support Nelson's conviction, and it reversed the trial
court's judgment.
The Nelson Court provided the following rationale for its
decision:
"'Indictments must always conform to the
mandates of our organic law. The emphasis
in our cases "that in all criminal
prosecutions, the accused has the right ...
to demand the nature and cause of the
accusation"[--]now § 6 of the Constitution
of 1901--is not meaningless tautology, but
one of the cornerstones of our Bill of
Rights.
"'We are further restrained in this case by
the
requirements
of
the
Fourteenth
Amendment to the Constitution of the United
States. The following utterances by our
Federal
courts
are
pertinent:
"No
principle
of procedural due process is more clearly
established than that notice of the
specific charge, and a chance to be heard
in a trial of the issues raised by that
charge,
if
desired,
are
among
the
4
1150072
constitutional rights of every accused in
a criminal proceeding in all courts, state
or federal." Cole v. State of Arkansas, 333
U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed.
644 [(1948)]. "The petitioner charged that
he had been denied any real notice of the
true nature of the charge against him, the
first and most universally recognized
requirement of due process ...." Smith v.
O'Grady, Warden, 312 U.S. 329, 334, 61
S.Ct. 572, 574, 85 L.Ed. 859 [(1941)]. "An
intelligent and full understanding by the
accused of the charge against him is a
first requirement of due process." Bergen
v. United States, 8 Cir., 145 F.2d 181, 187
[(1944)].
"'Regardless of some ill-considered, loose
expressions in some of the cases, the law
is and always has been that it is not
enough to charge against a defendant a mere
legal
conclusion
as
justly
inferential
from
facts not set out in the indictment. United
States v. Almeida, 24 Fed. Cas. pages 775,
776, No. 14,433.
"'In order to properly inform the accused
of
the
"nature
and
cause
of
the
accusation", within the meaning of the
constitution and of the rules of the common
law, a little thought will make it plain,
not only to the legal, but to all other
educated, minds, that not only must all the
elements of the offense be stated in the
indictment, but that also they must be
stated with clearness and certainty, and
with a sufficient degree of particularity
to identify the transaction to which the
indictment relates as to place, persons,
things, and other details. The accused must
receive sufficient information to enable
him to reasonably understand, not only the
5
1150072
nature of the offense, but the particular
act or acts touching which he must be
prepared with his proof; and when his
liberty, and perhaps his life, are at
stake, he is not to be left so scantily
informed as to cause him to rest his
defense upon the hypothesis that he is
charged with a certain act or series of
acts, with the hazard of being surprised by
proofs on the part of the prosecution of an
entirely different act or series of acts,
at least so far as such surprise can be
avoided by reasonable particularity and
fullness of description of the alleged
offense.'
(Italics
supplied.)
United
States
v. Potter, 1 Cir., 56 F. 83, 89.
"'....
"'... As example, if the indictment had
charged that the defendant "did commit
murder," he would be informed of the crime
charged against him, but no student of the
law with the slightest conception of
constitutional liberty would suggest that
he could be put to trial on such an
indictment against his will....'
"The indictment in this case charges that
appellant 'did commit murder', nothing more, nothing
less. To this extent appellant is apprised of the
charge against him but he could not know the
contentions of the state as to how he committed
murder."
Nelson, 50 Ala. App. at 287-88, 278 So. 2d at 736-37 (quoting
Gayden v. State, 262 Ala. 468, 469-71, 80 So. 2d 501, 502-04
(1955)) (first and second emphases added).
6
1150072
Thus, the Court of Criminal Appeals held that Nelson's
indictment was insufficient because it failed to aver any
facts describing how he committed the crime. Nelson's
indictment stated: "'DAVID LARRY NELSON unlawfully, and with
malice aforethought, killed Oliver King against the peace and
dignity of the State of Alabama.'" 50 Ala. App. at 286, 278
So. 2d at 735. Davis's indictment states: "Kevin Davis ...
did[] recklessly cause the death of another person, to-wit:
Randall McKenzie, in violation of § 13A-6-3(a)(1) of the Code
of Alabama." Because I believe that Nelson and the Court of
Criminal Appeals' decision in the present case are analogous,
I believe that Davis has presented a probability of merit that
the Court of Criminal Appeals' decision conflicts with Nelson.
Furthermore, the Court of Criminal Appeals relied on
Tompkins v. State, 898 So. 2d 875, 877 (Ala. Crim. App. 2004),
for the proposition that "'[a]n indictment that tracks the
language of the statute is sufficient [to inform the accused
of the offense with which he is being charged] if the statute
prescribes with definiteness the essential elements of the
offense.'" ___ So. 3d at ___ (alterations in original)
(quoting Tompkins, 898 So. 2d at 877). However, the Court of
7
1150072
Criminal Appeals failed to recognize that this is only a
general rule. As the Gayden Court explained:
"By no means do we intend to detract from the
general rule that it is sufficient to charge the
elements of a statutory offense in the words of the
statute. In passing, however, it is well to note
that the real contention before us is not that the
indictment does not charge an offense, but that the
defendant is not apprised of the thing or things
that he is alleged to have done in such a way as
that they amounted to a crime. Stated another way,
it
may
be
conceded
that
the
defendant
is
sufficiently informed of the crimes with which he is
charged, but it by no means follows that he has been
sufficiently informed of the acts which allegedly
constituted those crimes. As example, if the
indictment had charged that the defendant 'did
commit murder,' he would be informed of the crime
charged against him, but no student of the law with
the slightest conception of constitutional liberty
would suggest that he could be put to trial on such
an indictment against his will. See 1 Wharton,
Criminal Proceedings, § 270 (10th Ed., 1918), and
authorities supra. So, a parallel to the general
rule that a crime may be charged in the language of
the statute is another contemporary and equally
important principle that it is not sufficient if to
do
so
would
deprive
the
defendant
of
a
constitutional right."
Gayden, 262 Ala. at 471, 80 So. 2d at 504 (emphasis added).
See also Hamling v. United States, 418 U.S. 87, 117-18 (1974)
("'Undoubtedly the language of the statute may be used in the
general description of an offence, but it must be accompanied
with such a statement of the facts and circumstances as will
8
1150072
inform the accused of the specific offence, coming under the
general description, with which he is charged.'") (quoting
United States v. Hess, 124 U.S. 483, 487 (1888)); United
States v. Cruikshank, 92 U.S. (2 Otto) 542, 558 (1875)
("[F]acts are to be stated, not conclusions of law alone. A
crime is made up of acts and intent; and these must be set
forth in the indictment, with reasonable particularity of
time, place, and circumstances."); cf. Alabama Pattern Jury
Instructions (Criminal) § 6-11 ("To convict, the State must
prove beyond a reasonable doubt each of the following elements
of manslaughter: (1) That (name of the deceased) is dead; and
(2) That the defendant (name of the defendant) recklessly
caused the death of (name of the deceased) by (state the
alleged act, e.g., shooting) him." (emphasis omitted)).
Davis correctly observes that, before this Court granted
certiorari and affirmed the judgment in Gayden, the Court of
Criminal Appeals had held: "There is a legion of authorities
which declare that an indictment is not sufficient if it
simply follows the language of the statute." Gayden v. State,
38 Ala. App. 39, 43, 80 So. 2d 495, 499 (1954). The court then
cited 11 cases to prove its point. 38 Ala. App at 43-44, 80
9
1150072
So. 2d at 499-500. Affirming the Court of Appeals' decision,
this Court stated:
"The opinion of the Court of Appeals impresses
us as such an apodictical application of the
fundamental principle of all free governments that
the law secures to every person who is brought to
trial on a charge of crime that the acts which
constitute his alleged guilt shall be set forth with
reasonable certainty in the indictment he is called
upon to plead to, that ... further elaboration would
seem a redundancy."
Gayden, 262 Ala. at 469, 80 So. 2d at 502.
Davis observes that the Court of Criminal Appeals
provided an example of a sufficient indictment in Tompkins.
The indictment in that case read:
"'[Ray Tompkins] did, on or about 05/16/2001, with
the intent to harass, annoy or alarm another person,
to wit, [A.F.] (18 yrs.), either strike, kick, or
otherwise touch another person, to wit: [A.F.], or
subject him/her to physical contact, to wit; by
trying to get victim to move in with him, rubbed her
on back & butt and asked for "sugar" and really
liked "nipple sugar," also offered her $200.00 to
stay with him. Victim had to leave.'"
Tompkins, 898 So. 2d at 877 (footnote omitted). In contrast,
Davis's indictment said simply: "Kevin Davis ... did[]
recklessly cause the death of another person, to-wit: Randall
McKenzie, in violation of § 13A-6-3(a)(1) of the Code of
10
1150072
Alabama." Clearly, there is a difference between the two
indictments.
In addition, Davis astutely observes that the legislature
itself has provided two examples of a sufficient indictment
for manslaughter, both of which include a recitation of the
facts constituting the offense. Section 15-8-150, Ala. Code
1975, provides:
"The forms of indictment set forth in this
section in all cases in which they are applicable,
are sufficient, and analogous forms may be used in
other cases.
"....
"(68) MANSLAUGHTER IN THE FIRST DEGREE.
"A.B. unlawfully and intentionally but without
malice, killed C.D. by stabbing him with a knife (or
by striking him with a stick, etc., as the case may
be).
"(69) MANSLAUGHTER IN THE SECOND DEGREE.
"A.B. unlawfully, but without malice or the
intention to kill, killed C.D., by negligently
throwing a brick from the top of a house, (or by
negligently running over him with a horse or by
striking him with a stick, etc., as the case may
be)."
Although § 15-8-150 has not been updated since 1961 to reflect
the change in the law relating to manslaughter (there are no
longer two degrees of manslaughter –- see § 13A-6-3, Ala. Code
11
1150072
1975), both examples provided by the legislature in § 15-8-150
of a sufficient indictment include a description of the means
by which the offense was allegedly committed. See also § 15-8-
23 (providing that the forms found in § 15-8-150 are
"sufficient in all cases in which the forms there given are
applicable; in other cases, forms may be used as nearly
similar as the nature of the case and the rules prescribed in
this chapter will permit"). In my opinion, the forms found in
§ 15-8-150 are further evidence that when the legislature
mandated
that
the
indictment
must
"state
the
facts
constituting the offense," § 15-8-25, Ala. Code 1975, it meant
that the indictment must state the facts constituting the
offense.
The Court of Criminal Appeals noted that Davis could have
moved for a more definite statement under Rule 13.2(e), Ala.
R. Crim. P., ___ So. 3d at ___ n.1, but did not. Although this
is true, it does not necessarily follow that Davis could not
move to dismiss the indictment. See Rule 13.5(c)(1), Ala. R.
Crim. P. ("A motion to dismiss the indictment may be based
upon objections to ... the legal insufficiency of the
indictment ...."); see also Soriano v. State, 527 So. 2d 1367,
12
1150072
1370 (Ala. Crim. App. 1988) ("'"The constitution
requires
that
a defendant sufficiently understand the charge against him to
be able to assist in his own defense. Ensuring that the
defendant has that minimum understanding is primarily the
task
of the trial judge."'") (emphasis added) (quoting Turner v.
State, 429 So. 2d 645, 646 (Ala. Crim. App. 1992)). In my
opinion, if we reason that a motion for a more definite
statement under Rule 13.2(e) is the only way an insufficient
indictment may be remedied, then we have nullified the part of
Rule 13.5(c)(1) quoted above and have improperly shifted the
burden to the defendant to ensure that he or she has "a
minimum understanding" of the charges against him. Davis had
the right to move to dismiss the indictment; I do not believe
he should be faulted for exercising that right.
I also fear that the Court of Criminal Appeals' decision
has set a dangerous precedent. If Davis's conclusory
indictment is permitted to stand, then other defendants will
be deprived of their constitutional rights in the future in
the same way Davis has been deprived of his. Moreover, if the
indictment does not state how and when Davis killed McKenzie,
then I believe that there is an underlying assumption that the
13
1150072
notice is adequate because Davis knows what he did. In other
words, there is an assumption that the State does not need to
notify Davis of the allegations against him, because he is
guilty. If this is true, are we not presuming that the
defendant is guilty until proven innocent instead of innocent
until proven guilty?
I believe that every defendant has the right "to be
informed of the nature and the cause of the accusation against
him," a right guaranteed by Art. I, § 6, of the Constitution
of Alabama and by the Sixth Amendment of the Constitution of
the United States. Washington, 448 So. 2d at 407. I therefore
respectfully dissent.
14 | December 18, 2015 |
587af9a8-4c20-42c9-9412-2a434f82c6b8 | Alabama Corrections Institution Finance Authority v. Wilson et al. | N/A | 1131177 | Alabama | Alabama Supreme Court | REL: 09/25/2015
REL: 12/4/2015 as modified on denial of rehearing
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2015
____________________
1131177
____________________
Alabama Corrections Institution Finance Authority
and Kim Thomas, as the ex officio vice president
of Alabama Corrections Institution Finance Authority
v.
Albert Wilson et al.
Appeal from Montgomery Circuit Court
(CV-11-1233)
MURDOCK, Justice.
1131177
The Alabama Corrections Institution Finance Authority
("ACIFA") and its ex officio vice president Kim Thomas appeal
1
from a judgment entered on a jury verdict awarding $5 million
in compensatory damages to Albert Wilson, Donald Simmons,
Rufus Barnes, Bryan Gavins, Joseph Danzey, and a class of
current and former nonexempt correctional officers ("the
correctional officers") employed by the Alabama Department of
Corrections ("ADOC"). We reverse the judgment of the
Montgomery Circuit Court.
I. Facts and Procedural History
Section 14-2-2, Ala. Code 1975, states that the
legislature created ACIFA
"as a public corporation for the purposes of
acquiring
land,
constructing
and
leasing
correctional
institutions,
buildings
and
facilities,
disposing of the Kilby property by sale or lease and
to vest such corporation with all powers, authority,
rights, privileges and titles that may be necessary
to enable it to accomplish such purpose."
Rodney Blankenship, chief fiscal officer for ADOC, testified
at trial in this case that "[b]y statute the Department of
While this appeal was pending, Jefferson S. Dunn, on
1
April 1, 2015, succeeded Thomas as commissioner of the Alabama
Department of Corrections and thus as ex officio vice
president of ACIFA. He was automatically substituted as an
appellant. See Rule 43(b), Ala. R. App. P. We have not
restyled the appeal to reflect that substitution.
2
1131177
Corrections cannot incur debt. So this organization [ACIFA]
was set up as a separate public entity for financing, and
[ADOC] passed property through so [ACIFA] could pledge it, and
[ACIFA] passed the money back through and [ADOC] made payments
on the debt." Blankenship further explained that ADOC pays
ACIFA rent for the prison facilities, which ACIFA then uses to
pay the debt service on the bonds it issued to finance the
construction of the prison facilities. Blankenship stated
that he could not remember the last time ACIFA issued bonds,
but that it was probably at least 10 years ago.
Section 14-2-6, Ala. Code 1975, provides that the
governor is the president of ACIFA, the commissioner of ADOC
is the vice president, the State finance director is the
secretary, and the State treasurer is the custodian of the
ACIFA's funds but "shall not be a member of the authority."
That section also provides that "[t]he members of the
authority shall constitute all the members of the board of
directors of the authority, which shall be the governing body
of the authority."
3
1131177
This is the second time this case has come before this
Court. In Ex parte Thomas, 110 So. 3d 363 (Ala. 2012), the
Court explained:
"On August 17, 2010, Albert Wilson, Rufus
Barnes, Joseph Danzey, Bryan Gavins, and Donald
Simmons, all of whom are employed by ADOC as
correctional officers (hereinafter referred to
collectively as 'the correctional officers'), sued
ADOC and its then commissioner Richard Allen in the
Barbour Circuit Court, alleging that ADOC was
violating its own regulations and state law in the
manner in which it: (1) compensated correctional
officers for overtime; (2) restricted the way
correctional officers were allowed to use earned
leave; and (3) paid correctional officers the daily
subsistence
allowance
provided
by
law.
The
plaintiffs also sought class certification on behalf
of
all
other
similarly
situated
correctional
officers employed by ADOC and requested injunctive
relief, as well as money damages, to include backpay
with interest, punitive damages, and litigation
costs and expenses, including attorney fees.
"On September 22, 2010, ADOC and Allen moved the
trial court to dismiss the correctional officers'
claims for money damages, arguing that ADOC and
Allen were entitled to State immunity under Article
I, § 14, Ala. Const. 1901. Before the trial court
ruled on that motion, however, the correctional
officers filed an amended complaint adding ACIFA as
a defendant and asserting claims against Allen in
his capacity as vice president of ACIFA as well. On
December 21, 2010, the trial court entered an order
denying ADOC and Allen's September 22 motion to
dismiss, without stating its rationale.
"Thereafter, ADOC, ACIFA, and Allen filed an
answer
to
the
correctional
officers'
amended
complaint. On March 3, 2011, ADOC, ACIFA, and
4
1131177
Thomas, who succeeded Allen as commissioner of ADOC
and vice president of ACIFA on January 17, 2011,
moved the trial court to transfer the action to the
Montgomery Circuit Court pursuant to § 6–3–9, Ala.
Code 1975 .... On or about May 24, 2011, the
Barbour Circuit Court granted the motion, and the
case was transferred to the Montgomery Circuit
Court.
"The trial court thereafter approved class
certification for the action, and, on April 17,
2012, ADOC, ACIFA, and Thomas moved the trial court
to enter a partial summary judgment in their favor,
arguing that the correctional officers' claims
seeking money damages from ADOC were barred by the
doctrine of State immunity and that the claims
against ACIFA had no factual or legal basis. The
correctional officers filed a response, arguing that
the summary-judgment motion was without merit and
that, in any event, the Barbour Circuit Court had
already rejected the State-immunity argument before
the case was transferred to the Montgomery Circuit
Court. On May 17, 2012, the trial court conducted
a hearing on the summary-judgment motion and, later
that day, entered an order denying the motion
without stating its rationale. ADOC, ACIFA, and
Thomas now petition this Court for a writ of
mandamus directing the trial court to vacate its
order denying their summary-judgment motion and to
enter an order granting the same."
110 So. 3d at 364-65.
In Ex parte Thomas, this Court concluded that ADOC and
Thomas in his official capacity as the commissioner of ADOC
were entitled to State immunity under § 14, Ala. Const. 1901,
and thus that the claims against them seeking money damages
were due to be dismissed. The Court denied mandamus relief to
ACIFA and Thomas, in his
[substituted p. 5]
1131177
capacity as vice president of ACIFA, which they sought
following the trial court's denial of their motion for a
summary judgment. In that regard, the Court explained:
"ACIFA and Thomas have not argued that they are
entitled to State immunity on the claims asserted
against ACIFA and against Thomas in his capacity as
vice president of ACIFA; rather, they argue that
they are entitled to a summary judgment because
'they
have
no
connection
whatsoever
to
the
[correctional officers'] claims' because ACIFA has
no role in personnel or payroll matters affecting
ADOC employees. They assert that ACIFA exists
solely to facilitate the finance and acquisition of
land, institutions, and facilities for ADOC, and
they argue that the lack of any connection between
the
correctional
officers'
claims
and
ACIFA
effectively renders those claims nonjusticiable;
therefore, review of the trial court's denial of
their summary-judgment motion on a petition for the
writ of mandamus is available because, they argue,
the issue of subject-matter jurisdiction has been
raised. See University of South Alabama Med. Ctr.
v. Mobile Infirmary Ass'n, 89 So. 3d 735, 740-41
(Ala.
2011)
(stating
that
justiciability
is
jurisdictional), and Ex parte Flint Constr. Co., 775
So. 2d 805 (Ala. 2000) (holding that the question of
subject-matter jurisdiction is reviewable by a
petition for a writ of mandamus).
"We disagree, however, that a justiciability
issue has been raised. '"Concepts of justiciability
have
been
developed
to
identify
appropriate
occasions for judicial action .... The central
concepts often are elaborated into more specific
categories of justiciability -- advisory opinions,
feigned and collusive cases, standing, ripeness,
mootness, political questions, and administrative
questions."' Black's Law Dictionary 943-44 (9th ed.
2009) (quoting 13 Charles Alan Wright et al.,
6
1131177
Federal Practice & Procedure § 3529, at 278-79 (2d
ed. 1984)). ...
"In this case, however, ACIFA and Thomas are
essentially arguing that the correctional officers'
claims against ACIFA have no basis because, they
claim, ACIFA has nothing to do with the manner in
which correctional officers are compensated or the
funds with which they are compensated. This
argument goes to the merits of the correctional
officers' claims, and, regardless of whatever merit
the argument might have, it does not raise a
justiciability issue. The trial court's denial of
the motion for a summary judgment as to ACIFA and
Thomas in his capacity as vice president of ACIFA is
accordingly not subject to mandamus review. See Ex
parte Alabama State Bd. of Chiropractic Exam'rs, 11
So. 3d 221, 226–27 (Ala. Civ. App. 2007) (declining
to address petitioners' argument that they were
entitled to a writ of mandamus on the ground that
the plaintiffs' claims had no merit). Thus, we
review only ADOC and Thomas's argument that the
correctional officers' claims against them for money
damages are barred by principles of State immunity."
110 So. 3d at 366. The Court remanded the action to the trial
court for litigation of the correctional officers' claims
against ACIFA and Thomas in his capacity as vice president of
ACIFA.
The correctional officers asserted claims of conversion,
unjust enrichment, money had and received, work and labor
done, and injunctive relief against ACIFA and Thomas in his
capacity as the ex officio vice president of ACIFA. The
claims stemmed from a decision by ADOC in October 2008 to
7
1131177
change the shifts correctional officers worked at 7 ADOC
prison facilities from 8-hour shifts to 12-hour shifts. The
2
correctional officers alleged that the change resulted in
their not being paid certain overtime wages they say were due
to them.
At the conclusion of the trial of the correctional
officers' claims against ACIFA and Thomas, ACIFA and Thomas
moved for a judgment as a matter of law on the ground that
there was no evidence of a connection between ACIFA and the
payment of the correctional officers' wages. The trial court
reserved ruling on the motion until after the close of all the
evidence. Following the presentation of witnesses by ACIFA
and Thomas, ACIFA and Thomas renewed their motion for a
judgment as a matter of law. The trial court denied the
motion, explaining:
"After listening to all the evidence, I am
satisfied the controversy does not exist any more.
I think the last witness made it perfectly clear
that all of this has been done perfectly legal. If
you had gone to the Personnel Department to seek
that information, we might not have spent this
considerable amount of time. I respect that your
clients have misunderstood the process [regarding
calculation of their compensation] and now, after
Bibb County Correctional Facility was already operating
2
on 12-hours shifts at that time.
8
1131177
listening to this last witness from the Personnel
Board, the reason they misunderstood it, it is
apparently clear that these time sheets don't show
this, and it is the Personnel Board that completes
the payroll, and that's where the information lies.
So I can understand their confusion and, indeed,
your confusion.
"The very arguments that you just made for
ACIFA, yes, they are a legal suable entity. But the
very arguments that you just made tying them to the
Department of Corrections, if you were ever
ultimately to win anything, will result in the
Supreme Court throwing out any verdict because they
will
say
that
ACIFA
and
the
Department
of
Corrections are both protected by immunity. That's
going to happen.
"[Counsel for correctional officers]: Well, I
have the right to have that happen to me, Your
Honor.
"THE COURT: You certainly do, and I am going to
give you that right. I don't think you have met
your burden of proof, but we have been through three
days of testimony. We have got a jury here, and I
am going to let them render some verdict. That's
exactly right."
(Emphasis added.)
The jury returned a verdict of $5 million in compensatory
damages against ACIFA and Thomas and in favor of the
correctional officers. Following the entry of the verdict,
ACIFA and Thomas filed a Rule 50(b), Ala. R. Civ. P., motion
in which they argued extensively that they were entitled to a
judgment as a matter of law because, they said, the evidence
9
1131177
demonstrated that ACIFA had nothing to do with the personnel
and payroll policies giving rise to the
correctional
officers'
claims. ACIFA and Thomas concluded the motion by stating:
"Accordingly, ACIFA respectfully requests this Court enter a
judgment in its favor as to immunity or as to the foregoing
arguments made in this brief." The trial court denied the
motion.
ACIFA and Thomas appeal the trial court's denial of the
motions for a judgment as a matter of law and the judgment
entered on the jury's verdict.
II. Standard of Review
"'When reviewing a ruling on a motion for a JML
[judgment as a matter of law], this Court uses the
same standard the trial court used initially in
granting or denying a JML. Palm Harbor Homes, Inc.
v. Crawford, 689 So. 2d 3 (Ala. 1997). Regarding
questions of fact, the ultimate question is whether
the nonmovant has presented sufficient evidence to
allow the case or the issue to be submitted to the
jury for a factual resolution. Carter v. Henderson,
598 So. 2d 1350 (Ala. 1992). For actions filed
after June 11, 1987, the nonmovant must present
"substantial evidence" in order to withstand a
motion for a JML. See § 12-21-12, Ala. Code 1975;
West v. Founders Life Assurance Co. of Florida, 547
So. 2d 870, 871 (Ala. 1989). A reviewing court must
determine whether the party who bears the burden of
proof has produced substantial evidence creating a
factual dispute requiring resolution by the jury.
Carter, 598 So. 2d at 1353. In reviewing a ruling on
a motion for a JML, this Court views the evidence in
10
1131177
the light most favorable to the nonmovant and
entertains such reasonable inferences as the jury
would have been free to draw. Motion Industries,
Inc. v. Pate, 678 So. 2d 724 (Ala. 1996). Regarding
a question of law, however, this Court indulges no
presumption of correctness as to the trial court's
ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.
2d 1126 (Ala. 1992).'"
Lafarge N. Am., Inc. v. Nord, 86 So. 3d 326, 332 (Ala. 2011)
(quoting Delchamps, Inc. v. Bryant, 738 So. 2d 824, 830–31
(Ala. 1999)).
III. Analysis
ACIFA and Thomas first contend that ACIFA should be
entitled to sovereign immunity and thus that the correctional
officers' action against them should have been dismissed. To
make this argument, ACIFA and Thomas understand that they must
overcome this Court's decision in Rodgers v. Hopper, 768
So. 2d 963 (Ala. 2000), which they ask this Court to overrule.
Rodgers concerned a correctional officer at St. Clair
Correctional Facility who had been stabbed by an inmate at the
facility. The correctional officer sued ADOC, ADOC's
commissioner,
ACIFA,
ACIFA's
vice
present
(the
commissioner
of
ADOC), and the warden of the facility. The Rodgers Court
concluded that ADOC, ADOC's commissioner, and the warden of
the facility were entitled to sovereign immunity. After a
11
1131177
lengthy analysis, however, the Rodgers Court concluded that
ACIFA and its officers were not entitled to sovereign immunity
because ACIFA was not a governmental agency for purposes of
sovereign immunity. See Rodgers, 768 So. 2d at 966-67.
We deem it unnecessary in this case, however, to evaluate
the constitutional question whether ACIFA is entitled to
sovereign
immunity
because
the
correctional
officers
failed
to
establish any connection between ACIFA and the manner in which
correctional officers are compensated or the funds with which
they are compensated. This failure to prove any connection
between ACIFA and the harm allegedly suffered by the
correctional officers means that regardless of whether ACIFA
ultimately has or does not have sovereign immunity, ACIFA and
Thomas should have been granted a judgment as a matter of law.
To begin with, there is no dispute that ADOC, not ACIFA,
sets the personnel policies, including the duration and
structure of the shifts worked by correctional officers that
underlie the correctional officers' claims in this case.
Stephen Brown, associate commissioner for administration of
ADOC, testified that former ADOC Commissioner Richard Allen
asked him to study the issue of what could be done to help
12
1131177
ADOC cover its staffing shortage and that the most feasible
solution of those examined was the challenged shift change.
Specifically, after a six-month study, Allen
made the
decision
to require all ADOC prison facilities to be staffed through
12-hour shifts rather than 8-hour shifts. Thomas testified
that when he became ADOC commissioner he determined it was in
ADOC's best interest to retain the 12-hour shifts and that he
did not foresee that changing. There was no testimony,
evidence, or argument at trial suggesting that ACIFA had
anything to do with the shift-change decision.
The evidence introduced by the correctional officers in
support of their position that "ACIFA is intermingled within
the ADOC" fell into three categories. First, the correctional
officers noted that the officers of ACIFA are State officials.
Specifically, as noted in the rendition of the facts, by
statute ACIFA's officers and board membership consist of the
governor as president, the commissioner of ADOC as vice
president, and the State finance director as secretary.
Additionally, the State treasurer is the custodian of ACIFA's
funds.
13
1131177
The mere fact that the commissioner of ADOC is also
ex officio the vice president of ACIFA or that the State
finance director is also the secretary of ACIFA does not
establish that ACIFA has anything to do with correctional
officers' pay. It simply establishes that those State
officials have multiple responsibilities. Both Thomas and
Brown testified that former ADOC Commissioner Allen made the
decision to change correctional officers' shifts from 8 hours
to 12 hours in his capacity as ADOC commissioner. Thomas
testified that he made the decision to maintain the shift
change in his capacity as ADOC commissioner. There was no
evidence presented that the ADOC commissioners made these
decisions on behalf of ACIFA. Likewise, testimony established
that the Department of Finance is involved with how
correctional officers are paid, but there was no evidence
indicating
that
ACIFA
had
any
connection
to
this
responsibility of the Department of Finance.
Uncontradicted
testimony
from
multiple
witnesses
affirmed
that the roles of the ADOC commissioner and the State finance
director as officers and members of ACIFA did not translate to
ACIFA's having any involvement in the manner in which
14
1131177
correctional officers are paid. Sandra Collins, who is
responsible for managing and directing the payroll activities
and payroll-reconciliation processes for the State in her
capacity as State payroll administrator in the comptroller's
office, which is a part of the Department of Finance,
testified:
"Q. Does [the Department of Finance] have any
connection whatsoever with ACIFA?
"A. No.
"....
"Q. Have you ever made any payment on behalf of
[ACIFA] from the Comptroller's Office?
"A. No.
"Q. To your knowledge, has there ever been any
payments made on their behalf?
"A. Not to my knowledge."
Kelly Butler, assistant State budget officer in the
Department of Finance, testified:
"Q. Does [ACIFA] receive any funding from the State
of Alabama?
"A. No, sir, it does not.
"Q. To your knowledge, does it have any employees?
"A. No, to my knowledge, it does not.
15
1131177
"Q. Do you know if it gets any State funds, to your
knowledge?
"A. The only funds that it receives, to my
knowledge, are rental income from the Department of
Corrections in order to pay the debt service.
"Q. Do you know whether or not it has any
connection whatsoever with the payment of the wages
of correctional officers?
"A. It is not involved in the payment of wages.
"....
"Q. Have you ever received a budget request from
ACIFA?
"A. To my knowledge, we have not. ACIFA is not a
budgeted agency."
ADOC Commissioner Thomas testified:
"Q. Do you have any knowledge as to any connection,
commingling, or anything that ACIFA has to do with
the day-to-day functions, essentially the payment of
correctional officers, that ACIFA has anything to do
with that?
"A. No, sir. ACIFA does not have any dealings
whatsoever in the day-to-day operations of our
prison system, the facility, or the compensation of
any employees, including correctional officers.
"Q. Now, the Department every year goes to the
Legislature through the Governor with a submission
of a budget. Is that correct?
"A. Yes, sir.
"Q. And does that budget include compensation for
wages for the correctional staff?
16
1131177
"A. It does.
"Q. And if granted the budget, under the budget the
amount[s] granted go towards that compensation on
behalf of the Alabama Department of Corrections?
"A. Yes. A portion of that total budget dollars is
spent towards compensating employees, yes."
ADOC Associate Commissioner for Administration Brown
testified that ACIFA has nothing to do with ADOC's budget,
including correctional officers' pay.
"Q. There has been allegations that ACIFA has some
intermingling or commingling or connection with ADOC
in the payment of correctional officers' wages. Is
that true?
"A. No.
"Q. Does ACIFA have anything to do --
"A. No, our funds don't go through ACIFA.
"Q. Sir?
"A. Our funds do not go through ACIFA.
"Q. Do they come from ACIFA?
"A. No. There is no association of ACIFA on any of
our general operating funds.
"Q. Is part of your responsibility to work up
yearly budgets for [ADOC]?
"A. Yes. The accounting/finance guys report to me.
17
1131177
"Q. Is ACIFA ever considered in working up that
budget?
"A. I have been with [ADOC] seven years. I have
never done anything with ACIFA."
ADOC Chief Fiscal Officer Blankenship confirmed Brown's
testimony on the matter:
"Q. Does ACIFA, other than that, have anything to
do with the day-to-day functions of [ADOC]?
"A. No, sir. It has no employees. It has nothing
to do other than provide financing. That's it.
"Q. There has been testimony that ACIFA is
commingling with ADOC. Is that true?
"A. No, sir. We pay the payments on their behalf.
We passed land titles through. But, no, sir. There
is no money for ACIFA unless we give them the money
to make the payment for the debt.
"Q. Do they have any connection whatsoever with the
payment of wages to the correctional officers?
"A. No, sir."
State payroll auditor Sherry Grable testified that when
ADOC was implementing the shift change, there were meetings
between representatives of ADOC, the Department of Finance,
and the Personnel Department but that no representatives of
ACIFA were in those meetings.
Additionally, some of these same witnesses explained the
specific steps that are taken for ensuring that correctional
18
1131177
officers are paid for the work they perform. The accounts of
those witnesses did not indicate that ACIFA has any
involvement with how correctional officers are paid. For
example, Grable explained the pay process as follows:
"A. Well, I am not sure exactly how the
documentation -- I don't know if [a correctional
officer] use[s] a swipe badge to indicate that he
has come to work and when he leaves or if he uses a
fingerprint. I know they have some type of
electronic method. Those methods create a time
sheet based on you signing in through a time clock
of
some
sort.
This
KRONOS
system
is
the
time-keeping system that records those automated
entries of coming and going. Then the employee
signs off on those by the pay period. Any leave is
also requested through that time-keeping system. It
is approved by the employee and then it is approved
by the manager, supervisor. Then it is uploaded
into the payroll personnel system -- GHRS.
"Q. By whom is it uploaded?
"A. There is an electronic file created. It
extracts the data from the time sheets. Now, I
believe you have to have a payroll clerk to go in
and look to see whoever is signed off on that time
sheet, because you have to account -- a full-time
employee is a 40-hour workweek, so you have to
account for the time.
"Q. Then what happens?
"A. The time is submitted into GHRS electronically.
We pull a file on a certain night. Then we take the
pay rate that is stored in the personnel system, and
we associate it with the hours submitted for the
employee and create a paycheck."
19
1131177
Brown described the process as a collaboration between
ADOC and the comptroller's office:
"A. ... [T]he process of paying people for their
shift work is done by the comptroller. We track the
time, supply those hours to the comptroller, and
they pay them. Based on their system, we had to
come up with a way to make sure whatever hours they
were working translated into the proper pay."
The correctional officers offered no evidence contradicting
the manner in which their pay is determined and distributed.
When the correctional officers were asked what connection
existed between ACIFA and their pay, they could not provide a
specific answer. Instead, they noted that some of ADOC's
administrative regulations cite § 14-2-8, Ala. Code 1975, as
20
1131177
part of their statutory authority. Section 14-2-8 codifies
3
the general powers of ACIFA; it provides:
"[ACIFA] shall have the following powers among
others specified in this chapter:
ACIFA and Thomas have filed a motion to strike documents
3
attached as an appendix to the correctional officers' brief,
which include copies of ADOC regulations, and a motion to
supplement the record. ACIFA and Thomas argue that several
documents in the appendix are not reproductions of statutes,
rules, or regulations under Rule 28(h), Ala. R. App. P., and
that the copies of the regulations in the appendix are not the
ones used as trial exhibits. They argue that the documents
should be stricken. As part of their motion to supplement the
record, ACIFA and Thomas attached to their motion copies of
exhibits contained in the record that relate some of the same
information
contained
in
documents
submitted
in
the
correctional officers' appendix, and they ask that the record
copies be substituted for the correctional officers' copies.
The correctional officers did not file a response to ACIFA and
Thomas's motions.
Rule 28(h), Ala. R. App. P., states: "If determination
of the issues presented requires the study of statutes, rules,
regulations, etc., or relevant parts thereof, they shall be
reproduced in the brief or in an addendum at the end, or they
may be supplied to the court in pamphlet form." Rule 28(h)
does not require that copies of statutes, rules, or
regulations must be copies from exhibits in the record.
Therefore, we see no need to strike those documents from the
correctional officers' appendix or to grant the motion to
supplement the record on that basis. ACIFA and Thomas are
correct that some documents contained in the correctional
officers' appendix are not simply reproductions of statutes,
rules, or regulations, and some of the documents are not
contained in the record. Those documents are due to be
stricken and have not been considered in our disposition of
this case.
21
1131177
"(1) To have succession in its corporate name
until the principal of and interest on all bonds
issued by it shall have been fully paid and until it
shall have been dissolved as provided in this
chapter;
"(2) To maintain actions and have actions
maintained against it and to prosecute and defend in
any court having jurisdiction of the subject matter
and of the parties thereof;
"(3) To have and to use a corporate seal and to
alter such seal at pleasure;
"(4) To establish a fiscal year;
"(5) To acquire and hold title to real and
personal property and to sell, convey, mortgage, or
lease the same as provided in this chapter;
"(6)
To
provide
for
the
acquisition,
construction,
reconstruction,
alteration,
and
improvement of facilities and for the procurement of
sites and equipment for such facilities and for the
lease thereof;
"(7) To lease facilities to the state, the
department, and any other agency or instrumentality
of the state;
"(8) To anticipate by the issuance of its bonds
as limited in this chapter the receipt of the rent
and revenues from such facilities ...;
"(9) As security for the payment of the
principal of and interest on its bonds, to enter
into any lawful covenant, to grant mortgages upon
and security interests in its facilities and to
pledge the rents and revenues from such facilities
...;
22
1131177
"(10) To invest as provided in this chapter the
proceeds from the sale of its bonds pending need
therefor; and
"(11) To appoint and employ such attorneys,
agents, and employees as the business of the
authority may require, subject to the Merit System
where applicable."
Alabama Admin. Code (ADOC), Regulation 226, concerning
the issuance of a "Weapons Card," lists § 14-2-8 under the
subheading "Performance" at the end of the regulation.
Alabama Admin. Code (ADOC), Regulation 229, concerning
"Pre-Employment Assessment Screening for Correctional Officer
Candidates," and Regulation 217, concerning the "Dress Code"
for employees, also list § 14-2-8 under the subheading
"Performance" at the end of the regulations. Additionally,
Ala. Admin. Code (ADOC), Regulation 332, addressing the
"Security Threat Group Intelligence Program," and Regulation
340, concerning responsibilities for "Inmate Counts," list
Title 14, in which § 14-2-8 is located, under the subheading
"Performance" at the end of those regulations. Aside from the
general administrative regulations applicable to ADOC,
Easterling
Correctional
Facility's
Standard
Operating
Procedure ("SOP") 217-01, concerning "Employee Haircuts and
23
1131177
Shoeshines,"
lists
§
14-2-8
under
the
subheading
"Performance"
at the end of the SOP.
4
Both Thomas and Brown testified that the administrative
regulations that list § 14-2-8 as statutory authority are
simply mistakes that need to be corrected in those regulations
because ACIFA has nothing to do with the administration of
ADOC's facilities. The correctional officers strongly hint
that that testimony was a convenient excuse and that the
regulations
demonstrate
that
ACIFA
is
involved
with
regulating
the conduct of ADOC employees.
Even if the listing of § 14-2-8 and Title 14 in the
regulations is not a genuine mistake, a plain reading of the
regulations and § 14-2-8 reveals that the listings do not
establish
that
ACIFA
is
involved
with
supervising
correctional
officers, let alone establish a connection between ACIFA and
the
correctional
officers'
pay.
For
example,
in
Regulation 226 there is no explanation as to how ACIFA has
anything to do with issuing weapons cards for ADOC employees,
Four of the regulations discussed –- 226, 229, 332, and
4
340 –- apparently are no longer included in ADOC's
Administrative Code, although they were presented to
the trial
court and are discussed in the record.
24
1131177
and § 14-2-8 does not address the subject. Likewise, nothing
in Regulation 229 explains how ACIFA has anything to do with
ADOC's carrying
out
its
responsibility
to
pre-screen
candidates for employment as corrections officers, nor does §
14-2-8 shed light on the subject. The same can be said for
Regulation 217 concerning the dress code for employees and
SOP 217-01 concerning employee haircuts and shoeshines.
As for Regulations 332 and 340, it is unsurprising that
they would list Title 14 as statutory authority because Title
14
is
titled
"Criminal
Correctional
and
Detention
Facilities,"
and it contains all the statutes pertaining to ADOC, its
facilities, and other prison facilities, in addition to the
specific sections that create and govern ACIFA. Moreover, the
subheading in Regulation 340 for "Responsibilities" regarding
inmate counts lists the warden, staff members, shift
commanders, and correctional officers as persons who are
responsible for performing inmate counts or making sure that
such counts are performed. It makes no mention of ACIFA
having any responsibility for inmate counts.
Overall, § 14-2-8 does not say anything about any of the
matters addressed in the regulations cited, and the
25
1131177
regulations themselves do not discuss ACIFA in their text as
having any responsibility for the areas dealt with by the
respective regulations. In other words, the citations in
those regulations to § 14-2-8 or to Title 14 in general do not
explain how ACIFA is in any way responsible for supervising
correctional officers, determining how correctional officers
are paid, or ensuring that they are paid, and the correctional
officers provided no explanation at trial nor do they do so on
appeal. Instead, they simply rely upon the citations
contained in the subject regulations as sufficient to
establish a connection. As we have explained, the regulations
do no such thing.
The regulation in the Alabama Administrative Code that
addresses overtime work and pay for correctional officers,
Regulation 212, does not list § 14-2-8 or Title 14 in general
as authority for the regulation. Moreover, under the heading
5
of "Responsibilities," Regulation 212 states that "[t]he
Regulation 212 lists as authorities the Fair Labor
5
Standards Act, 29 U.S.C. § 201; Ala. Code 1975, §§ 36-21-4,
36-21-5, and 36-21-6; Ala. Admin. Code (State Pers. Bd.),
Regulation 670-X-11-.07(1),(2),(3), and (4); the State
Personnel Procedures Manual; ADOC Personnel Division Manual;
and Christensen v. Harris Cnty., 529 U.S. 576 (2000).
26
1131177
Commissioner [of ADOC] shall ensure departmental compliance
with federal and state regulations and authorize monetary
payment for overtime work." It also states: "The ADOC
Finance/Accounting Division is responsible for auditing
attendance records, shift logs, leave slips, computer
printouts, and overtime/compensatory time authorization
records for accuracy and compliance with federal and state
regulations." Thus, the very regulation the corrections
officers contend ACIFA violated makes no mention of ACIFA's
having any responsibility for how overtime is accounted for
and how it is paid to ADOC employees.
6
The only other way the correctional officers seek to
6
connect ACIFA with supervision of the
correctional
officers is
through the fact that some of the statutes addressing ACIFA
mention the term "prison labor." As we have noted, ACIFA's
primary purpose is to fund the construction of prison
facilities. See § 14-2-2, Ala. Code 1975. The definition
provided in § 14-2-1(6) for the term "Facilities" is as
follows:
"c. Any facilities necessary or useful in
connection with prisons, buildings or enclosures,
including, without limiting the generality of the
foregoing,
hospitals,
offices,
correctional
officers' quarters and residences, warehouses,
garages, storage facilities, abattoirs, cold storage
plants, canning plants, laundries and manufacturing
plants for the employment of prison labor."
§ 14-2-1(6)c., Ala. Code 1975 (emphasis added). In the
27
1131177
The foregoing arguments constitute the entirety of the
correctional officers' evidence of ACIFA's role in personnel
or payroll matters affecting ADOC employees. Suffice to say,
they failed to present substantial evidence of a connection
between
ACIFA
and the supervision of the correctional
officers
or how the correctional officers are paid. Without evidence
indicating that ACIFA had anything to do with the personnel
policies at issue or how correctional officers' pay is
determined and distributed or the funds that are used to pay
correctional officers, ACIFA cannot be held liable for the
harms the correctional officers
allege
they suffered. Because
of the lack of substantial evidence in support of the claims
made by the correctional officers against ACIFA and against
Thomas as ex officio vice president of ACIFA, the defendants
were entitled to a judgment as a matter of law on those
claims.
IV. Conclusion
Based on the foregoing, the judgment in favor of the
correctional officers is reversed, and the cause is remanded
context presented, however, the emphasized passage clearly
refers to prison-inmate labor.
28
1131177
to the trial court to enter a judgment in favor of ACIFA and
Thomas.
REVERSED AND REMANDED.
Moore, C.J., and Bolin and Main, JJ., concur.
Bryan, J., concurs in the result.
29 | December 4, 2015 |
f2075bc4-1f82-401b-a367-97369f2c7740 | Ex parte J.B., a minor, by and through J.T., guardian ad litem. | N/A | 1141310 | Alabama | Alabama Supreme Court | REL: 11/25/2015
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2015-2016
____________________
1141295
____________________
Ex parte Montgomery County Department of Human Resources
____________________
1141310
____________________
Ex parte J.B., a minor, by and through J.T.,
guardian ad litem
PETITIONS FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Montgomery County Department of Human Resources
v.
N.B.)
(Montgomery Juvenile Court, JU-10-650.04;
Court of Civil Appeals, 2140109 and 2140118)
1141295 and 1141310
MURDOCK, Justice.
The petitions for the writ of certiorari are denied.
In denying the petitions for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280
So. 2d 155 (1973).
1141295 –- WRIT DENIED.
1141310 –- WRIT DENIED.
Moore, C.J., and Parker, Shaw, and Main, JJ., concur.
Stuart, Bolin, Wise, and Bryan, JJ., dissent.
2
1141295 and 1141310
BOLIN, Justice (dissenting).
I agree with the reasons Justice Bryan provides in his
well written writing for not joining this Court in denying
these petitions; I join his dissent.
3
1141295 and 1141310
BRYAN, Justice (dissenting).
In November 2011, four years ago, the Montgomery County
Department of Human Resources ("DHR") filed a petition in the
Montgomery Juvenile Court seeking to terminate the parental
rights of N.B. ("the mother") to her then eight-year-old
daughter, J.B. ("the child"). For reasons that have not been
explained to this Court, the juvenile court did not conduct a
hearing on DHR's petition until October 30, 2013 –- nearly two
years after the petition to terminate the mother's parental
rights was filed. For reasons that, again, have not been
explained to this Court, Judge Anita Kelly did not rule on
DHR's petition, despite repeated requests to do so, until the
Court of Civil Appeals, on October 1, 2014, granted DHR's
petition for a writ of mandamus and ordered Judge Kelly to
rule –- nearly three years after DHR's petition to terminate
the mother's parental rights was filed and almost one full
year after the hearing on the petition to terminate her
parental rights.
Despite DHR's presentation of clear and convincing
evidence indicating both that the mother was unable and
unwilling to discharge her responsibilities to and for the
4
1141295 and 1141310
child, see § 12-15-319, Ala. Code 1975, and that there was no
viable
alternative
to
terminating
the
mother's
parental
rights
to the child, see B.M. v. State, 895 So. 2d 319, 331 (Ala.
Civ. App. 2004), Judge Kelly entered an order denying DHR's
petition to terminate the mother's parental rights. DHR and
the child's guardian ad litem separately appealed, and the
Court of Civil Appeals, by a vote of 3-2, affirmed the
juvenile court's judgment. See Montgomery Cnty. Dep't
of
Human
Res. v. N.B., [Ms. 2140109, June 12, 2015] ___ So. 3d ___
(Ala. Civ. App. 2015).
The facts of this case are, in many ways, similar to
dozens of termination-of-parental-rights cases that come
before the Court of Civil Appeals and this Court. The mother
has not exercised custody of the child since 2005, when the
child was only two years old. The child lived with various
relatives until October 2010; at that time, DHR learned that
the child had been sexually abused while in the care of her
relatives, and the child was placed in foster care.
Considering the trauma of her childhood, it is not surprising
that the record indicates that the child suffers from post-
5
1141295 and 1141310
traumatic stress disorder and is under the care of a
psychiatrist.
The mother has been diagnosed with schizophrenia, bipolar
disorder, and depression. Despite DHR's offer of services to
treat the mother's mental illnesses, the mother did not
cooperate and did not take the medication prescribed to treat
her mental illnesses. The mother also continued to use
illegal drugs, even at the time of trial, after DHR offered
the mother drug-treatment services. Despite a thorough
investigation of all known family members who could
potentially care for the child, DHR was unable to locate a
relative willing to take custody of the child. The facts of
this case are unusual only in that the mother, who testified
at trial, conceded that she was not willing or able to care
for the child and admitted that there was no hope for
significant improvement in her circumstances in the future.
To that effect, the mother signed, under oath, a document
consenting to the termination of her parental rights and for
the adoption of the child. The child has expressed to her
guardian ad litem that she looked forward to being adopted.
Despite the overwhelming evidence in favor of terminating the
6
1141295 and 1141310
mother's
parental
rights,
Judge
Kelly
denied
DHR's
termination
petition and, in doing so, denied the child the benefits of
stability and permanency that come with adoption.
DHR and the child's guardian ad litem filed with this
Court petitions for a writ of certiorari, seeking review of
the Court of Civil Appeals' decision affirming the juvenile
court's order. The petitions, which are nearly identical,
wholly fail to comply with the procedural and substantive
requirements of Rule 39, Ala. R. App. P. The petitions can
best be described as asserting various allegations of
juvenile- and appellate-court error, which are not cognizable
grounds for certiorari review. See Rule 39(a)(1)(A)-(E), Ala.
R. App. P. A majority of this Court has voted to deny the
petitions, albeit with the disclaimer that, in denying the
petitions, this Court "does not wish to be understood as
approving all the language, reasons, or statements of law in
the Court of Civil Appeals' opinion." ___ So. 3d at ___.
I wholeheartedly believe that the juvenile court failed
this child by denying DHR's petition to terminate the mother's
parental rights and that the Court of Civil Appeals' decision
in this case conflicts with prior decisions from that court.
7
1141295 and 1141310
See, e.g., T.N.S.R. v. N.P.W., 170 So. 3d 684 (Ala. Civ. App.
2014) (the presumption of correctness that is typically
afforded a trial court's findings of fact based on ore tenus
evidence cannot be sustained where the conclusion reached is
plainly and palpably wrong; further, a trial court's
application of the law to the undisputed facts is not entitled
to a presumption of correctness); and Rule 39(a)(1)(D). I
also believe that DHR and its legal division failed this child
by not complying with the procedural and substantive
requirements of Rule 39. In addition to denying the petitions
with the above-mentioned "disclaimer," the majority of this
Court is ordering the attorneys for DHR to submit to a
tutorial from staff attorneys in the Supreme Court clerk's
office to instruct them in how to comply with Rule 39 when
filing a petition for a writ of certiorari. This is not the
first time this Court has ordered such a tutorial for
attorneys representing DHR in petitions for a writ of
certiorari filed in this Court. Some lessons are learned the
hard way. From the perspective of this child, however, that
lesson comes too late.
8
1141295 and 1141310
I dissent in this case because I refuse to be another
adult who has totally failed this child.
Bolin and Wise, JJ., concur.
9 | November 25, 2015 |
beacfeb8-47fd-46e4-a4e6-212767091331 | Osborn v. CUSTOM TRUCK SALES & SERVICE, COAL, INC. | 562 So. 2d 243 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 243 (1990)
Johnny M. OSBORN
v.
CUSTOM TRUCK SALES & SERVICE, A DIVISION OF ALLEY-CASSETTY COAL, INC.
88-763.
Supreme Court of Alabama.
April 6, 1990.
Gerald D. Colvin, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellant.
Jack W. Torbert of Torbert and Torbert, Gadsden, for appellee.
KENNEDY, Justice.
This case was remanded for a new trial in Custom Truck Sales & Service, a division of Alley-Cassetty Coal, Inc. v. Osborn, 507 So. 2d 424 (Ala.1987). After the second trial, the plaintiff, Johnny M. Osborn, *244 appeals from a judgment, based on a jury verdict, in favor of the defendants, Custom Truck Sales & Service, a division of Alley-Cassetty Coal, Inc. ("Custom Truck"). We affirm.
The issues are (1) whether there was an implied warranty of merchantability in the sale of four used cement trucks; (2) whether the trial court erred in not charging the jury that the plaintiff could recover for willful misrepresentation, deceit, and suppression of the truth; and (3) whether the verdict of the jury was plainly and palpably wrong or manifestly unjust.
In the spring of 1982, Osborn desired to purchase four Crane Carrier model cement trucks for his ready mix concrete business in Alabama. Osborn communicated with Bill Crouch, general manager of Custom Truck, in Nashville, Tennessee. Custom Truck was a franchise dealer for Crane Carrier Corporation ("Crane Carrier"), a manufacturer of trucks in Tulsa, Oklahoma. Crouch visited Osborn's plant site, and they discussed what kind of trucks Osborn wanted. Later, Crouch contacted the Crane Carrier factory and was directed to contact Gene Henderson in Dallas, Texas, who knew where there were some used Crane Carrier trucks that Osborn might be interested in purchasing. Crouch discussed with Henderson what kind of trucks Osborn wanted, and Henderson located about 12 Crane Carrier cement trucks in Dallas, Texas. The trucks were being refurbished for Crane Carrier by a company called Mixer Southwest. Henderson told Crouch that some of the trucks had been repaired, refurbished, and repainted and that some were in the process of having such work done. Crouch notified Osborn that he had located some trucks, and Osborn sent Raymond Thompson to Dallas to inspect the trucks. Thompson, accompanied by Crouch and Henderson, inspected the steering mechanism, engine, transmission, drive lines, differential, running gear, and pinion on the trucks and selected four 1979 model trucks. At the time Thompson inspected the four trucks, one of the cabs had a coat of primer, and the other three cabs had been freshly painted. As a result, neither Thompson nor Crouch could tell whether any "new steel skins" had been put on the trucks. Thompson did not specifically inspect the trucks for rust. Upon Thompson's recommendation, Osborn placed a deposit on the four trucks. Osborn purchased the trucks through a leasing company for $40,000 each and sent some of his employees to Dallas to drive the trucks to Alabama. When the trucks arrived in Alabama, they had to have a few repairs, and for those repairs Osborn received an offset of $3,000 against the purchase price.
The trucks were put in operation by the summer of 1982, and by January 1983, the cabs of the trucks began showing extensive defects. Instead of having "new steel skins," which Osborn claims Crouch had promised would be put on the cabs, the rust-damaged areas had been repaired with "bondo," primed, and repainted. Repairing the cabs with "new steel skins" would have entailed cutting out the rust-damaged areas, welding new steel onto the area, and preparing it for painting. After the trucks were put in operation, the paint began to flake off the cabs and the bondo began to fall out; and the floorboards of the cabs began to show rust, which was so extensive in one cab that a piece of metal had to be put on the floor for the driver to rest his feet. Also, the cab doors would not open and close properly.
Osborn notified Crouch about the rust problems. Crouch said the proper repairs could be made in Nashville but would be made at Osborn's expense. Thereafter, Osborn ordered four new cabs through Custom Truck. Three cabs were delivered, but the fourth was not delivered because Osborn had refused to pay for the first three.
In December 1983, Osborn sued Custom Truck on four counts, alleging (1) misrepresentation made knowingly or recklessly or innocently; (2) breach of an implied warranty of fitness for a particular purpose; (3) breach of an implied warranty of merchantibility; and (4) breach of an express *245 warranty.[1]
The basis of this lawsuit is Osborn's allegation that Crouch promised that, to the extent that the four truck cabs had any rust, the cabs would be refurbished with "new steel skins" so as to make them practically new cabs.
Crouch testified, in part, as follows:
Crouch, who had been in the business of selling trucks for 20 years, further testified that the standards on sales of used trucks with respect to warranties given, if any, is "as is, where is," except that, in the case of an engine overhaul, the engine is warranted up to six months.
Osborn testified, in part, as follows:
The trial court directed a verdict in favor of Custom Truck on the issue of whether there was an implied warranty of merchantability.
Osborn argues that there was an implied warranty of merchantability in the sale of the four used cement trucks. We disagree.
We note that other jurisdictions have adopted an implied warranty of merchantability in the sale of a used motor vehicle. However, this Court stated in Trax, Inc. v. Tidmore, 331 So. 2d 275, 277 (Ala.1976):
See also Curry Motor Co. v. Hasty, 505 So. 2d 347, 350 (Ala.1987). Therefore, we conclude that the trial court properly directed a verdict in favor of Custom Truck on this issue.
The trial court instructed the jury, inter alia, concerning the issues of reckless misrepresentation and mistaken misrepresentation. Osborn argues that the trial court erred in not giving instructions 18.01, 18.04, and 18.05 of the Alabama Pattern Jury Instruction: Civil (1974).[2]
Instruction 18.01 concerns the issue of willful misrepresentation, and it reads:
Instruction 18.04 concerns the issue of deceit, and it reads:
Instruction 18.05 concerns the issue of suppression of truth, and it reads:
We find no evidence from which the jury could have inferred that Crouch, acting as the authorized agent for Custom Truck, (1) willfully misrepresented a material fact to Osborn; (2) acted with knowledge of the alleged falsehood so that his actions amounted to deceit; or (3) concealed or withheld material facts from Osborn. Therefore, the instructions requested on that theory of the case were properly refused. Southern Ry. v. Clarke, 203 Ala. 248, 249, 82 So. 516, 517 (1919).
Finally, Osborn argues that the verdict of the jury was "not based upon substantial evidence of record." We recognize that "an appellate court will revise a jury's verdict if it is convinced by a `preponderance of the evidence that the jury's verdict was palpably wrong and manifestly unjust.' "Tallant v. Grain Mart, Inc., 432 So. 2d 1251, 1255 (Ala.1983) (citation omitted). However, in this case, we are not so convinced.
Therefore, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
[1] Because the complaint was filed prior to the adoption of Code 1975, § 12-21-12, the "scintilla" rule of evidence applies.
[2] Custom Truck argues that Osborn did not comply with Rule 51, A.R.Civ.P.; however, we note Osborn's objections to the trial court's ruling on §§ 18.01, 18.04, and 18.05 at pages 158-61 of the record. | April 6, 1990 |
a819038e-e71c-424d-993a-d8751f3a98db | Ex parte E.S. | N/A | 1140889 | Alabama | Alabama Supreme Court | Rel: 10/30/2015
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2015-2016
_________________________
1140889
_________________________
Ex parte E.S.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: O.S. and J.A.S.
v.
E.S.)
(Walker Circuit Court, DR-10-900006;
Court of Civil Appeals, 2110621)
MAIN, Justice.
1140889
I. Facts and Procedural History
This is the second time these parties have been before
us. The underlying facts are as follows. B.O.S. ("the
husband") and E.S. ("the wife") began residing together in
2005. Their union produced a daughter, B.T.S. ("the child"),
in August 2006. The couple married in March 2007. The
husband, the wife, and the child lived in a residence next
door to the residence of the child's paternal grandfather,
O.S. ("the grandfather"), and his wife, J.A.S. ("the
stepgrandmother") (hereinafter referred to collectively as
"the grandparents"). It is undisputed that the grandparents
spent considerable time with the child and that the child
often visited overnight with the grandparents.
At some point in 2005 (during the wife's pregnancy) and
again on at least one occasion in 2007, the grandfather
proposed to the wife an action he phrased as being "like an
adoption" of the child by the grandparents but, the
grandfather claimed, was not actually a legally binding
adoption. The grandfather stated to the wife that "nothing
1
It appears that the stepgrandmother has been only
1
tangentially involved in this case. The Court of Civil
Appeals noted:
2
1140889
would ever change [and] that [the wife] would always be [the
child's] mother." O.S. v. E.S., [Ms. 2110621, April 19, 2013]
___ So. 3d ____, ____ (Ala. Civ. App. 2013). The
grandfather claimed that taking the action he was proposing
would enable the child to attend college with the aid of
additional
Social
Security
benefits
and
veteran's
benefits
the
grandfather would receive because he had "adopted" the child.
As far as the husband was concerned, it appears that the
grandfather presented him with contradictory statements; the
grandfather stated at least once that it would be a "legal
adoption" but stated to the husband on another occasion that
it would be a "paper adoption only." O.S. v. E.S., ___ So. 3d
at ____.
"The stepgrandmother testified that, during a
week when she and the grandfather had been
separated, she had written a letter to her attorney,
requesting that she be removed as a party from the
instant litigation. She acknowledged that she had
arranged for the wife to read the letter and that
she had told the wife that 'it was wrong' for the
grandfather to take the child from the husband and
the wife."
O.S. v. E.S., [Ms. 2110621, April 19, 2013] ___ So. 3d ____,
_____ (Ala. Civ. App. 2013). The grandfather stood to gain
financially from the adoption; specifically, the grandfather
would receive additional Social Security benefits in the
amount of $739 per month and additional veteran's benefits in
the amount of $100 per month after adopting the child.
3
1140889
In August 2007, the husband and the wife agreed to the
grandfather's proposal for a "paper adoption" of the child.
The grandfather took the husband and the wife to an attorney's
office, during which time the husband and the wife were
presented with and read two documents –- a "consent for
adoption" and an "affidavit of natural parent." Both the
husband and the wife signed the documents. However, the wife
said that she did not sign any other documents; that "nothing
had been explained to her" by the lawyer who drafted the two
documents she did sign, O.S. v. E.S., ___ So. 3d at ____; that
"she had not been given copies of the documents she had
signed," id.; and that "she had not been assisted by her own
attorney," id. Ultimately, on March 11, 2008, the Probate
Court of Walker County ("the probate court") entered a
judgment granting the grandparents' petition to adopt the
child.
In January 2010, the husband and the wife separated. The
wife took the child, and the wife and the child began residing
with the wife's parents. On February 3, 2010, the husband
filed a divorce complaint against the wife in the Walker
Circuit Court ("the trial court"). The husband's complaint
4
1140889
requested that the child be removed from the physical custody
of the wife and returned to "the adoptive parents, i.e., the
grandparents, immediately." O.S. v. E.S., ___ So. 3d at ____.
The grandparents moved to intervene in the divorce
action, asserting that they were the child's adoptive parents
and seeking immediate pendente lite physical custody of the
child. On February 4, 2010, the trial court entered an order
allowing the grandparents to intervene in the
action,
granting
their request for pendente lite physical custody of the child,
and directing the wife to return the child to the grandparents
immediately.
The wife answered the husband's divorce complaint and
also filed in the trial court a document styled as a
"counterclaim
and
independent
action"
against
the
grandparents
("the counterclaim"), seeking to set aside the final judgment
of adoption rendered by the probate court on March 11, 2008.
In her counterclaim, the wife alleged that the grandparents
had fraudulently induced her to consent to the grandparents'
adoption of the child. Additionally, the wife alleged that
the grandparents had falsely asserted in the
adoption
petition
that the child had resided in the grandparents' home since the
5
1140889
child's birth; by making that false assertion, the wife
claimed, the grandparents had perpetrated a fraud on the
probate court.
The grandparents filed in the trial court an answer to
the
wife's
counterclaim,
asserting
that
the
wife's
counterclaim seeking to set aside the probate
court's
judgment
of adoption "could properly be filed only in the [Walker
County] probate court and that the [Walker County] circuit
court had no subject-matter jurisdiction to consider the
matter." O.S. v. E.S., ___ So. 3d at ____ (emphasis added).
The trial court entered a judgment purporting to set aside the
judgment of adoption entered by the probate court, finding
that the grandfather had, as the wife had alleged, perpetrated
a fraud on the probate court. In an opinion authored by Judge
Pittman, a sharply divided Court of Civil Appeals affirmed the
trial court's judgment. O.S. v. E.S., supra (Thomas and
Moore, JJ., concurring, and Donaldson, J., dissenting, with
writing, which Thompson, P.J., joined).
The grandparents filed a petition for a writ of
certiorari with this Court, which we granted. This Court
reversed the Court of Civil Appeals' judgment and remanded the
6
1140889
cause, holding that the probate court, rather than the circuit
court, had subject-matter jurisdiction over the grandparents'
intervention complaint and the wife's counterclaim regarding
the allegedly fraudulent adoption. Ex parte O.S., [Ms.
1121134, June 20, 2014] ___ So. 3d ___, ___ (Ala. 2014) ("As
set forth above, the legislature has given the probate court
original
jurisdiction
over
all
adoption
proceedings,
including
a challenge to a judgment of adoption on the basis of
fraud."). In remanding the cause, this Court stated, in toto:
"Based on the foregoing, we reverse the Court of Civil
Appeals' judgment and remand the matter for further
proceedings consistent with this opinion." ___ So. 3d at
____. We overruled the wife's application for rehearing
without an opinion.
On remand from this Court, the Court of Civil Appeals
issued an opinion authored by Judge Pittman on February 27,
2015. That court's opinion stated, in toto:
"The prior judgment of this court has been
reversed, and the cause remanded by the Supreme
Court of Alabama. See Ex parte O.S., [Ms. 1121134,
June 20, 2014] ___ So. 3d ____ (Ala. 2014). On
remand to this Court, and in compliance with the
supreme court's opinion, we hereby reverse the
judgment of [the trial court] and remand the cause
for the entry of a judgment of the [trial court]
7
1140889
dismissing
[the
wife's]
action
against
[the
grandparents]
for
lack
of
subject-matter
jurisdiction."
On March 3, 2015 (within the period allowed for the wife
to file an application for rehearing), the wife filed with the
Court of Civil Appeals a motion entitled "Motion to Amend
Order to Transfer to the Probate Court Pursuant to Ala. Code
[1975,] § 12-11-11," which was treated by that court and will
be referred to as the wife's application for rehearing. In
that filing, the wife argued, in pertinent part, that this
Court's mandate in remanding the cause to the Court of Civil
Appeals did not require or allow for the dismissal of the
adoption contest; instead, the wife argued, the Court of Civil
Appeals was "required" to remand the cause to the trial court
with directions to transfer the adoption contest from the
trial court to the probate court, where, the wife argued,
there exists original subject-matter jurisdiction over the
matter. The wife's argument relied on Ala. Code 1975, §
12-11-11, which she referred to as "compulsory":
"Whenever it shall appear to the court that any
case filed therein should have been brought in
another court in the same county, the court shall
make an order transferring the case to the proper
court, and the clerk or register shall forthwith
certify the pleadings, process, costs and order to
8
1140889
the court to which the case is transferred, and the
case shall be docketed and proceed in the court to
which it is transferred, and the costs accrued in
the court in which the case was originally filed
shall abide by the result of the case in the court
to which transferred."
(Emphasis added.) The Court of Civil Appeals overruled the
wife's application for rehearing. This Court granted the
wife's petition for the writ of certiorari. We now reverse
and remand.
II. Standard of Review
"In reviewing the Court of Civil Appeals'
decision on a petition for the writ of certiorari,
'this Court "accords no presumption of correctness
to the legal conclusions of the intermediate
appellate court. Therefore, we must apply de novo
the standard of review that was applicable in the
Court of Civil Appeals."' Ex parte Exxon Mobil
Corp., 926 So. 2d 303, 308 (Ala. 2005) (quoting Ex
parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala.
1996))."
Ex parte Wade, 957 So. 2d 477, 481 (Ala. 2006).
III. Discussion
The wife's argument is brief and straightforward. The
wife argues that the Court of Civil Appeals erred in directing
the trial court to dismiss the adoption contest for lack of
subject-matter jurisdiction when, the wife says, the trial
court was instead "required" to transfer the adoption contest
9
1140889
from the trial court to the probate court pursuant to §
12-11-11. To use the wife's words: "[T]he order of [the Court
of Civil Appeals on remand] does not comply with [this
Court's] order or with § 12-11-11, Ala. Code 1975." In
support of her argument, the wife directs our attention to
Kish Land Co. v. Thomas, 42 So. 3d 1235 (Ala. Civ. App. 2010),
which states, in pertinent part:
"The plaintiffs and the defendants own various
adjoining parcels of land in Bullock County, and
they all use their parcels primarily for recreation.
The plaintiffs' parcels are landlocked, having no
access to public roads except through one or more of
the defendants' properties that surround their
parcels or through parcels belonging to entities not
made parties to this case. The plaintiffs filed a
complaint in June 2008 in the Bullock Circuit Court
('the circuit court') seeking an easement by
necessity, condemnation of a right-of-way, and a
1
preliminary injunction to prevent the defendants'
blocking the road the plaintiffs wanted to use to
access their land during the pendency of the action.
"____________________
" The parties have since agreed that, pursuant
1
to § 18–3–3, Ala. Code 1975, the proper court for
the condemnation action would be the Bullock Probate
Court. In addition to granting the injunction, the
circuit court's order transferred the case to the
probate court, which was proper pursuant to §
12–11–11, Ala. Code 1975."
42 So. 3d at 1236 (emphasis added).
10
1140889
Both Kish and the statute it cites, § 12-11-11, support
the wife's contention that the Court of Civil Appeals erred in
directing the trial court to dismiss the wife's counterclaim
for lack of subject-matter jurisdiction rather than directing
that court to transfer the wife's counterclaim to the probate
court. Furthermore, it is notable that the grandparents do
not dispute that the wife's adoption contest should be
transferred from the circuit court to the probate court. In
the grandparents' response to the wife's application for
rehearing, they stated:
"Grandparents herein do not dispute that [the
Court of Civil Appeals] has the authority to, if it
judges the same to be mete and appropriate, amend
its Order to the Circuit Court of Walker County,
Alabama, permitting it to transfer (or, perhaps more
appropriately, determine whether it is appropriate
to transfer) the claims of [the wife] concerning the
validity of the Grandparents' 2008 adoption of [the
child] to the Probate Court of Walker County,
Alabama,
for
further
proceedings.
[The
wife]
correctly cites § 12-11-11, Code of Alabama (1975),
which states that where, as here, the circuit court
is presented with an action which should have been
filed in another court within the county, it 'shall'
transfer the same."
(Emphasis added.)
The grandparents also stated:
"Specifically, Grandparents do not dispute that,
when the Circuit Court of Walker County, Alabama,
11
1140889
was originally faced with the challenge to the prior
adoption, of which it had no jurisdiction, §
12-11-11, Code of Alabama (1975), provided for the
case to be transferred to the Probate Court of
Walker County, Alabama."
(Emphasis added.)
Based on the foregoing, it is clear that the Court of
Civil Appeals erred insofar as it directed the trial court to
dismiss the wife's action against the grandparents for lack of
subject-matter jurisdiction; rather, that court should have
directed the trial court to transfer the action to the probate
court pursuant to Ala. Code 1975, § 12-11-11. Therefore, the
judgment of the Court of Civil Appeals is due to be reversed.
IV. Conclusion
We reverse the judgment of the Court of Civil Appeals
insofar as it directed the trial court to dismiss the wife's
action against the grandparents for lack of subject-matter
jurisdiction. We remand the cause to the Court of Civil
Appeals for that court to vacate its judgment insofar as it
directed the trial court to dismiss the wife's action for lack
of subject-matter jurisdiction and to enter a judgment
remanding the case to the trial court and directing the trial
12
1140889
court to transfer the wife's action to the probate court
pursuant to Ala. Code 1975, § 12-11-11.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, C.J., and Stuart, Bolin, Parker, Wise, and Bryan,
JJ., concur.
Murdock and Shaw, JJ., dissent.
13
1140889
SHAW, Justice (dissenting).
What is now Ala. Code 1975, § 12-11-11, was originally
enacted as § 4 of Act No. 725, Ala. Acts 1915. That entire
act dealt with the transfer of a case erroneously filed in the
law or equity "side" of the circuit court to the proper "side"
of that court. When codified as part of the Code of Alabama
1940, what is now § 12-11-11 stated:
"Whenever it shall appear to any court of law or
equity that any cause filed therein should have been
brought in another court of like jurisdiction in the
same county, the court shall make an order
transferring the cause to the proper court ...."
Ala. Code 1940, Tit. 13, § 156.
Although ostensibly dealing with transfers between the
law and equity "sides" of the circuit courts, the section was
also used as a mechanism to transfer cases, in counties in
which the court sat in divisions, from one division of the
circuit court to another division of that circuit court in
that county. See, e.g., Ex parte Central of Georgia Ry., 243
Ala. 508, 513, 10 So. 2d 746, 750 (1942). This prior version
of § 12-11-11 clearly applied only to the transfer of a
circuit court case to another court of equal –- "like" --
jurisdiction.
In the 1975 recodification of the Alabama Code, the Code
section was altered to remove the language referring to "law
14
1140889
or equity" and requiring a transfer to a court of "like
jurisdiction." It now states:
"Whenever it shall appear to the court that any case
filed therein should have been brought in another
court in the same county, the court shall make an
order transferring the case to the proper court
...."
§ 12-11-11.
It is not immediately clear what court is "the court"
designated in the first clause. The Code section then refers
to "another court in the same county," which would tend to
indicate that "the court" first mentioned operates in a
county. The original act, Act No. 725, expressly applied to
circuit courts. Further, § 12-11-11 is placed in Chapter 11
of Title 12, which governs circuit courts. I thus read § 12-
11-11 to apply only to circuit courts and to direct only
circuit courts to transfer cases.
As noted above, the language of § 12-11-11 no longer
directs that the transfer be made to a court of "like
jurisdiction." This omission suggests that the section is no
longer limited to a "horizontal" or "lateral" transfer to a
court of equal or "like" jurisdiction but that a "vertical"
transfer by the circuit court to a lower court is now
15
1140889
possible. However, § 12-11-11 has not, as far as my research
2
reveals, ever been held to require a "vertical" transfer from
a circuit court to a lower court. Given the history of the
3
Code section, as recounted above, there is reason to suspect
that it was never "intended" to do so.
Further, when a court lacks jurisdiction, it has no power
to
transfer
an
action.
See
Bernals,
Inc.
v.
Kessler-Greystone, LLC, 70 So. 3d 315, 319 (Ala. 2011) ("When
a circuit court lacks subject-matter jurisdiction, all orders
and judgments entered in the case, except an order of
dismissal, are void ab initio." (emphasis added)), and Cadle
Co. v. Shabani, 4 So. 3d 460, 463 (Ala. 2008). Given the
history of the Code section, nothing suggests that it was
"intended" to expand the jurisdiction of the circuit court to
allow it the ability to transfer an action over which it had
no jurisdiction.
Nevertheless, it is well settled that when "[t]he
language of [a] Code section is clear[,] there is nothing to
There is no county-level court above the circuit court.
2
In Kish Land Co. v. Thomas, 42 So. 3d 1235, 1236 n.1
3
(Ala. Civ. App. 2010), the Court of Civil Appeals noted that
the circuit court in that case transferred a claim to the
probate court, and that the transfer was "proper pursuant to
§ 12–11–11." However, this comment was gratuitous; there is
no actual holding in Kish Land to that effect.
16
1140889
construe [and] no need to attempt to divine the 'intent'•of
the legislature ...." Ex parte Ankrom, 152 So. 3d 397, 431
(Ala. 2013) (Shaw, J., concurring in part and concurring in
the result). Section 12-11-11, by its terms, could be read to
permit (and direct) the Walker Circuit Court in this case to
transfer the action challenging the adoption to the Walker
County Probate Court, which would be the "proper court" of
that "same county" where the action "should have been
brought."
4
This Court's prior decision remanded the case to the
Court of Civil Appeals "for further proceedings consistent
with this opinion." Ex parte O.S., [Ms. 1121134, June 20,
I have some concerns that the function of this Code
4
section might be redundant. Alabama Code 1975, § 12-11-9,
specifically allows misfiled cases to be transferred from the
circuit court to the district court; that Code section was
enacted in 1975. Further, several Code sections deal with the
transfer of cases between the circuit court and the probate
court. See, e.g., Ala. Code 1975, 12-11-41.1. It would
appear that, following the merger of law and equity, the
original purpose of Act No. 725, including the prior version
of § 12-11-11, no longer existed. Because transfers to lower
courts were covered by other Code sections, § 12-11-11 was
probably
retained and amended to preserve its other
historical
use as a means to transfer cases between divisions in the
circuit courts. On the other hand, perhaps § 12-11-11 is a
"catchall" provision that allows a greater flexibility to
transfer cases. Such inference, however, is limited by the
facts that only circuit courts would possess this ability and
that the only transfers that would result under this section
would be certain transfers to probate courts.
17
1140889
2014] ___ So. 3d ___, ___ (Ala. 2014). The Court of Civil
Appeals then reversed the circuit court's decision and
instructed it to enter a judgment dismissing, for lack of
subject-matter jurisdiction, E.S.'s action. O.S. v. E.S.,
[Ms. 2110621, Feb. 27, 2015] ___ So. 3d ___ (Ala. Civ. App.
2015) (opinion after remand). E.S. filed a motion to amend
that decision, which motion the Court of Civil Appeals treated
as an application for rehearing. E.S.'s argument as to § 12-
11-11 was as follows:
"[E.S.] requests this Court to amend its Order
of February 27, 2015, and enter an Order consistent
with the direction from the Supreme Court of
Alabama, and consistent with § 12-11-11, Ala. Code
(1975). At the trial level, [E.S.] sought, as an
alternative remedy, transfer of the case to the
probate court .... § 12-11-11 is compulsory:
'Whenever it shall appear to the court that any case
filed therein should have been brought in another
court in the same county, the court shall make an
order transferring the case to the proper court...'
(emphasis added). The first opportunity for the
circuit court to transfer the case is when this
Court returns to it jurisdiction. The Order of
remand should be modified to direct the circuit
court to make this statutorily required transfer."
Although a transfer by the circuit court under § 12-11-11
would be consistent with this Court's decision, given that §
12-11-11 has never been held to require a circuit court to
make the type of transfer requested, that the decisions
applying the Code section show a completely different
18
1140889
application, and that § 12-11-11 has never been interpreted to
expand the jurisdiction of the circuit court to allow it to
transfer a case when no jurisdiction exists, I do not believe
that E.S.'s application for rehearing contained sufficient
argument or authorities to explain and support the contention
that a transfer under § 12-11-11, and not a dismissal -- the
usual result when a trial court lacks jurisdiction –- was
required. See Rules 28(a)(10), 40(b), and 40(g), Ala. R.
5
6
7
App. P. Therefore, the issue whether the Court of Civil
Appeals' decision was, in light of § 12-11-11, inconsistent
with this Court's mandate was waived, and that court was
justified in refusing to tread new ground. Because the issue
forming the basis of the main opinion in the instant appeal
was waived, I believe that the Court of Civil Appeals'
"The brief of the appellant ... shall contain ... [a]n
5
argument
containing
the
contentions
of
the
appellant/petitioner
with
respect
to
the
issues
presented,
and
the reasons therefor, with citations to the cases, statutes,
other authorities, and parts of the record relied on."
"The
application
for
rehearing
must
state
with
6
particularity the points of law or the facts the applicant
believes the court overlooked or misapprehended. The brief in
support of the application must contain any arguments in
support
of
the application the petitioner desires to present."
"The
application
for
rehearing
may
be
a
separate
document
7
or may be included at the beginning of the applicant's brief.
The brief shall be in a form prescribed by Rule[] 28 ...."
19
1140889
decision is due to be affirmed. I thus respectfully dissent.
Murdock, J., concurs.
20 | October 30, 2015 |
55eb63d5-0658-4daf-a327-29a09fd9cc3b | Ex parte Harold Smith. | N/A | 1140877 | Alabama | Alabama Supreme Court | Rel:12/04/2015
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2015-2016
____________________
1140877
____________________
Ex parte Harold Smith
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Harold Smith
v.
Cynthia Smith)
(Montgomery Circuit Court, DR-05-960.01;
Court of Civil Appeals, 2130446)
BOLIN, Justice.
WRIT QUASHED. NO OPINION.
1140877
Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan,
JJ., concur.
Moore, C.J., dissents.
2
1140877
MOORE, Chief Justice (dissenting).
I disagree with the Court's decision to quash the writ in
this matter.
Harold Smith ("the father") and Cynthia Smith ("the
mother") were divorced in 2006. Their daughter, born in 1994,
turned 19 in January 2013. Eight months earlier, on May 1,
2012, the mother filed a petition in the Montgomery Circuit
Court to require the father to pay postminority educational
support for the daughter's college expenses. On September 18,
2012, the trial court held a hearing on the mother's petition
and apportioned the daughter's college expenses between the
parents. The judge then asked: "Who's going to do the order?"
The mother's attorney responded: "Your Honor, we can work on
it together and pass it back and forth." The judge responded:
"Do the order within seven days." However, the father's
attorney died shortly after the hearing, and a written order
was never submitted for the judge's signature.
A new attorney filed an appearance for the father in
March 2013. In August 2013, the mother moved the court for the
entry of a "final order" requiring the father to pay
postminority support. On October 4, 2013, this Court released
3
1140877
its opinion in Ex parte Christopher, 145 So. 3d 60 (Ala.
2013), overruling Ex parte Bayliss, 550 So. 2d 986 (Ala.
1989), and holding that Alabama law, in the absence of
legislative authorization, did not allow a judge to award
postminority educational support. The opinion states:
"Because many litigants have relied upon the holding
in Bayliss to sue for and to collect support from
noncustodial parents for college expenses, our
decision in the instant case will not disturb final
postminority-educational-support
orders
entered
before the date of this decision. ...
"Although
today's
decision
does
not
affect
final
orders of postminority educational support already
entered, our overruling of Bayliss is applicable to
all future cases. Further, this decision also
applies
to
current
cases
where
no
final
postminority-support order has been entered or where
an appeal from a postminority-support order is still
pending."
145 So. 3d at 71-72 (emphasis added).
On October 28, 2013, three weeks after the release of
Christopher, the trial court issued a "Final Order" awarding
postminority support. The court noted in its order that the
decision announced at the hearing on September 18, 2012, "was
not reduced to writing" and that "as of this date [October 28,
2013], the order has yet to be reduced to writing by this
Court." Whereupon, the court then "ORDERED, ADJUDGED, and
4
1140877
DECREED that the Order of this Court announced in open court
on September 18, 2012, is as follows" and stated the terms of
the award.
On November 13, 2013, the father timely moved the trial
court to vacate its order of postminority educational support
in light of Christopher. That motion was denied by operation
of law on February 11, 2014. See Rule 59.1, Ala. R. Civ. P. At
that point, absent the filing of an independent proceeding,
the trial court lost jurisdiction of the action. Ex parte
State Dep't of Human Res., 47 So. 3d 823, 830 (Ala. Civ. App.
2010). Nonetheless, three days later, on February 14, 2014,
the trial court purported to vacate its order of October 28,
2013, on the ground that its order for postminority
educational support "was not finalized" before this Court
released Christopher. Perhaps aware that its jurisdiction had
expired, the trial court stated that it was setting aside its
award of postminority educational support pursuant to Rule
60(b)(4), Ala. R. Civ. P. However, relief from a void judgment
under Rule 60(b)(4) may not be granted sua sponte by the trial
court. "Rule 60(b) requires that a party move for relief from
a judgment, and does not provide for sua sponte relief by the
5
1140877
trial court." Ex parte P&H Constr. Co., 723 So. 2d 45, 49
(Ala. 1998). Thus, the February 14, 2014, order attempting to
correct the trial court's error in ordering postminority
support on October 28, 2013, is void for lack of jurisdiction.
Because the trial court was three days late in reversing
its October 28, 2013, award of postminority support, the
father was compelled to appeal to the Court of Civil Appeals
to seek the reversal of the October 28, 2013, order. When the
Court of Civil Appeals affirmed the order without an opinion,
Smith v. Smith (No. 2130446, May 8, 2015), ___ So. 3d ___
(Ala. Civ. App. 2015) (table), the father sought a writ of
certiorari from this Court. We issued the writ on July 21,
2015.
Although at the end of the hearing on September 18, 2012,
the trial court orally ordered the father to pay postminority
educational support, no written order was prepared or entered
prior to the entry of the order of October 28, 2013, now the
focus of this appeal. I believe this Court has quashed the
writ because the father did not identify any authority in his
brief to this Court for the proposition that a trial court's
oral order is not a valid final order. See Rule 28(a)(10),
6
1140877
Ala. R. App. P. It is true that "an appellate court will
consider only those issues properly delineated as such." Ex
parte Riley, 464 So. 2d 92, 94 (Ala. 1985). However, the
entire thrust of the father's brief was that the trial court's
October 28, 2013, order was invalid for failing to recognize
the controlling effect of Christopher. The father states:
"Ex Parte Christopher ... provides that the decision
is applicable to current cases where no final
post-minority support order has been entered. In the
present case, a final order had not been entered
before
the
ruling
in
Ex
Parte
Christopher.
Therefore, the Father should not have been ordered
to pay post-minority support ...."
Father's brief, at 12 (emphasis added). I consider this
statement sufficient to "delineate" the issue before us. The
question whether an oral statement from the bench is a "final
order" is a matter of black-letter law. Rule 58, Ala. R. Civ.
P., the final-judgment rule, "does not allow for an oral
rendition of a judgment or order." Ex parte Chamblee, 899 So.
2d 244, 248 (Ala. 2004). See also J.K. v. State Dep't of Human
Res., 103 So. 3d 807, 810 (Ala. Civ. App. 2012) (holding that
an order not entered in the State Judicial Information System
was not a valid order or judgment).
7
1140877
I would reverse the judgment of the Court of Civil
Appeals and order that court to remand the case to the trial
court to implement its own acknowledged, but untimely,
recognition that Christopher invalidated its October 28,
2013, order. We should not forget that the Alabama Rules of
Appellate Procedure, including Rule 28(a)(10), are to "be
construed so as to assure the just ... determination of every
appellate proceeding on its merits." Rule 1, Ala. R. App. P.
(emphasis added). Additionally, "it is the policy of these
rules to disregard technicality and form in order that a just,
speedy and inexpensive determination of every appellate
proceeding on its merits may be obtained." Committee Comments
to Rule 1, Ala. R. App. P. (emphasis added). I would not allow
an incorrect ruling of the trial court, a ruling the trial
court itself belatedly realized was incorrect, to take final
effect when all that is required to reach the correct legal
result is to take notice of a Rule of Civil Procedure
promulgated by this very Court. Being overly fastidious in
1
our regard for Rule 28(a)(10), we have overlooked "the
"The supreme court shall make and promulgate rules
1
governing the administration of
all courts and rules governing
practice and procedure in all courts ...." Ala. Const. 1901,
Art. VI, § 150.
8
1140877
weightier matters of the law." Matthew 23:23. I fear we have
strained at a gnat and swallowed a camel. Matthew 23:24.
9 | December 4, 2015 |
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