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c191283a-2ef2-4971-83e5-11f10cc3b665 | Ex Parte Kamilewicz | 700 So. 2d 340 | 1960890 | Alabama | Alabama Supreme Court | 700 So. 2d 340 (1997)
Ex parte Dexter J. KAMILEWICZ, et al.
(In re Daniel A. EDELMAN, et al. v. WILDMAN, HARROLD, ALLEN & DIXON, et al.).
1960890.
Supreme Court of Alabama.
July 18, 1997.
Edward B. McDonough, Jr., Keith S. Miller, and Kevin D. Graham of Edward B. McDonough, Jr., P.C., Mobile, for petitioners.
C. Knox McLaney III and Angela L. Kimbrough of McLaney & Associates, P.C., Montgomery; and James E. Atchison and Mona Vivar of Hess & Atchison, Mobile, for respondents.
HOUSTON, Justice.
Dexter J. Kamilewicz, Gretchen L. Kamilewicz, and Martha E. Preston petition for a writ of mandamus directing the trial court to dismiss claims against them alleging malicious prosecution, breach of contract, and abuse of process. We grant the writ.
*341 Daniel Edelman and his law firm, Edelman & Combs ("Edelman"), filed an action in the Mobile Circuit Court against the law firm of Wildman, Harrold, Allen & Dixon ("Wildman"); each of the partners in Wildman, individually; the law firm of Schnader, Harrison, Segal & Lewis ("Schnader"); each of the partners in Schnader, individually; the Kamilewiczes; and Preston, seeking damages against all of the defendants for malicious prosecution and abuse of process. The complaint also stated a claim against the Kamilewiczes and Preston for breach of contract; and it stated a claim of tortious interference with a contract against every defendant except the Kamilewiczes and Preston. Edelman's office is in Chicago, Illinois. Wildman has its principal office in Chicago and another office in New York. Schnader has its principal office in Philadelphia, Pennsylvania, and other offices in New York City; Washington, D.C.; Atlanta, Georgia; Cherry Hill, New Jersey; and Harrisburg and Pittsburgh, Pennsylvania. The Kamilewiczes reside in Maine; Preston resides in Wisconsin.
This action arose out of a class action that Wildman and Schnader filed on behalf of the Kamilewiczes, Preston, and others against Edelman and others in a federal district court in Chicago ("the Kamilewicz action"). The Kamilewicz action was based on allegations that Edelman and others had engaged in wrongdoing in obtaining a substantial attorney fee award in a class action styled Hoffman, et al. v. BancBoston Mortgage Corp., et al. ("the Hoffman action"), which had been filed in the Mobile Circuit Court. The complaint in the Kamilewicz action alleged, among other things, that Edelman, who had participated as class counsel in the Hoffman action, had committed a fraud on the trial court in the Hoffman action by failing to apprise the trial court that approval of the settlement in that case would result in an out-of-pocket loss for the plaintiff class (of which the Kamilewiczes and Preston were members.)[1] The federal district court dismissed the Kamilewicz action on the ground that it lacked subject matter jurisdiction. Edelman then filed the present action, alleging 1) that the Kamilewicz action had been filed in an improper and malicious attempt to relitigate matters that had been settled in the Hoffman action (the malicious prosecution claim); 2) that improper discovery had been attempted in the Kamilewicz action, in violation of the Federal Rules of Civil Procedure (the abuse of process claim); 3) that the Kamilewiczes and Preston had, by filing the Kamilewicz action, breached an agreement not to challenge the settlement reached in the Hoffman action (the breach of contract claim); and 4) that Wildman and Schnader had improperly induced the Kamilewiczes and Preston to file the Kamilewicz action (the tortious-interference-with-a-contract claim). The Kamilewiczes and Preston moved to dismiss the claims pertaining to them, arguing that the trial court lacked personal jurisdiction over them and, in the alternative, that dismissal was appropriate under Ala.Code 1975, § 6-5-430 (which requires the trial courts of this state to apply the doctrine of forum non conveniens in deciding whether to exercise jurisdiction over a cause of action accruing outside the state). The trial court denied the motion.
The requirements for personal jurisdiction over a nonresident defendant are set out in Rule 4.2(a)(2), Ala.R.Civ.P.:
Service of process under Rule 4.2(a)(2) has been held to be as far-reaching as due process permits. However, the constitutional guaranty of due process precludes a court from asserting jurisdiction over a defendant unless the defendant has sufficient contacts with the forum state. Murray v. Alfab, Inc., 601 So. 2d 878 (Ala.1992). In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-76, 105 S. Ct. 2174, 2181-84, 85 L. Ed. 2d 528 (1985), the United States Supreme Court stated:
"*So long as it creates a `substantial connection' with the forum, even a single act can support jurisdiction. McGee v. International Life Insurance Co., 355 U.S., at 223[, 78 S.Ct., at 201]. The Court has noted, however, that `some single or occasional acts' related to the forum may not be sufficient to establish jurisdiction if `their nature and quality and the circumstances of their commission' create only an `attenuated' affiliation with the forum. International Shoe Co. v. Washington, 326 U.S. 310, 318[, 66 S. Ct. 154, 159, 90 L. Ed. 95] (1945); World-Wide Volkswagen Corp. v. Woodson, 444 U.S., at 299[, 100 S.Ct., at 568]. This distinction derives from the belief that, with respect to this category of `isolated' acts, id., at 297[, 100 S.Ct., at 567], the reasonable foreseeability of litigation in the forum is substantially diminished."
(Emphasis in original.)
These due process requirements were recently echoed by this Court in Ex parte United Brotherhood of Carpenters & Joiners of America, AFL-CIO, 688 So. 2d 246, 250-52 (Ala.1997):
After examining the record and the briefs, we conclude that the trial court lacks personal jurisdiction over the Kamilewiczes and Preston. It is significant, we think, that neither the malicious prosecution claim nor the breach of contract claim directly arises out of or relates to forum-based activities, i.e., they are not based on or related to activities that occurred in Alabama. The underlying basis for both the malicious prosecution *345 claim and the breach of contract claim was the filing of the Kamilewicz action in Chicago. Any injuries suffered by Edelman as the result of those two claims arose out of its being named as a defendant in the Chicago litigation; Edelman suffered no injury as the result of the participation by the Kamilewiczes and Preston as class members in the Hoffman action. A contrary conclusion would, of course, be absurd, given the fact that Edelman represented the class in the Hoffman action. Thus, the requirements for establishing general jurisdiction must be met with respect to those two claims. As previously noted, while a showing of certain minimum contacts may suffice to support a holding of specific jurisdiction, the plaintiff must go further and establish that the defendant's contacts with the forum have been "continuous and systematic" in order to invoke general jurisdiction. The record indicates that the only contact the Kamilewiczes and Preston have ever had with this state were the result of their inclusion as unnamed members of the plaintiff class in the Hoffman action and by virtue of their status as plaintiffs in the Kamilewicz action, in which summonses and complaints were served in Alabama on three Alabama attorneys and their respective law firms (none of whom are parties in this action) and a subpoena was served in Alabama on an expert witness (a Mobile accountant) who had been used by Edelman in the Hoffman action. These isolated brushes with Alabama's judicial system fall far below the threshold of "continuous and systematic" forum activity necessary to support the exercise of general jurisdiction. See, e.g., Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984).[2]
*346 With respect to the abuse of process claim, Edelman alleged:
We note that the abuse of process claim is also based, at least in part, on activity that took place in Chicagothe service of a subpoena on Dr. Madansky for the alleged purpose of "harassing" and "punishing" him. As was the case with respect to the malicious prosecution and breach of contract claims, the requirements for establishing general jurisdiction over this aspect of the abuse of process claim have not been met. The sole remaining question, therefore, is whether there is any basis for the trial court to exercise specific personal jurisdiction over the only aspect of the abuse of process claim that arguably does arise out of or relate to an occurrence in this statethe service of a subpoena on the Mobile accountant.[3]
As previously noted, the only contact the Kamilewiczes and Preston have ever had with Alabama was the result of their inclusion as unnamed members of the plaintiff class in the Hoffman action, and by virtue of their status as plaintiffs in the Kamilewicz action, where they, through their attorneys, served summonses and complaints in Alabama on three Alabama attorneys and their respective law firms and served the subpoena in Alabama on the Mobile accountant. As the United States Supreme Court noted in Burger King Corp. v. Rudzewicz, supra, "the constitutional touchstone remains whether *347 the defendant purposefully established `[sufficient] contacts' in the forum state," so that it is foreseeable that that defendant could reasonably anticipate being haled into court there, 471 U.S. at 474, 105 S. Ct. at 2183. "This `purposeful availment' requirement," according to the Court, "ensures that a defendant will not be [sued in] a jurisdiction solely as a result of [the defendant's] `random,' `fortuitous,' or `attenuated' contacts" with that jurisdiction, 471 U.S. at 475, 105 S. Ct. at 2183-84. The issue, then, is whether the Kamilewiczes and Preston could have reasonably foreseen that they could be sued in Alabama, by a law firm that they had sued in Illinois, for an injury that allegedly occurred in Illinois. In this regard, there is little doubt that the Kamilewiczes and Preston's contact with Alabama as class members in the Hoffman action was the result of a unilateral decision on the part of Edelman and others to file the Hoffman action in Alabama. As previously noted, unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state. It is essential that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state. From the Kamilewiczes and Preston's perspective, their involvement in an Alabama class action was entirely fortuitous. The class would have been the same no matter which of the 50 states the Hoffman action had been filed in. Likewise, the service in Alabama of the summonses and complaints on the Alabama attorneys and their respective law firms and the service of the subpoena on the Mobile accountant in the Kamilewicz action were fortuitous, in the sense that those individuals and firms just happened to be located in Alabama, and created only an attenuated affiliation with this state. We conclude, therefore, that neither the Kamilewiczes and Preston's inclusion in the class in the Hoffman action nor their serving process in Alabama in the Kamilewicz action was a sufficient contact with Alabama to put them on notice that they could be sued here for the injuries that Edelman alleged occurred in Illinois.
Having determined that the trial court lacks personal jurisdiction over the Kamilewiczes and Preston, we pretermit any discussion as to whether the claims should be dismissed under the doctrine of forum non conveniens.
WRIT GRANTED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, COOK, and SEE, JJ., concur.
[1] In the Hoffman action, the central issue was whether BancBoston had overcharged mortgagors whose mortgages it serviced, so that a surplus existed in each mortgagor's escrow account. The Kamilewiczes and Preston had mortgages serviced by BancBoston. The record indicates that the settlement in the Hoffman action resulted in BancBoston's changing its procedure for managing its escrow accounts and in de minimis interest payments (not to exceed $8.76) being made to the individual members of the plaintiff class. However, the settlement also resulted in a net loss to at least some of the members of the class. Pursuant to the settlement, the Kamilewiczes' escrow account was charged $91.33 and Preston's escrow account was charged $80.94 in order to pay the attorneys, including Edelman, who had represented the class.
[2] In Helicopteros, 466 U.S. at 415-16, n. 10, 104 S. Ct. at 1872, n. 10, the United States Supreme Court stated:
"Because the parties have not argued any relationship between the cause of action and Helicol's contacts with the State of Texas, we, contrary to the dissent's implication, post, at 419-420, assert no `view' with respect to that issue.
"The dissent suggests that we have erred in drawing no distinction between controversies that `relate to' a defendant's contacts with a forum and those that `arise out of' such contacts. Post, at 420. This criticism is somewhat puzzling, for the dissent goes on to urge that, for purposes of determining the constitutional validity of an assertion of specific jurisdiction, there really should be no distinction between the two. Post, at 427-428.
"We do not address the validity or consequences of such a distinction because the issue has not been presented in this case. Respondents have made no argument that their cause of action either arose out of or is related to Helicol's contacts with the State of Texas. Absent any briefing on the issue, we decline to reach the questions (1) whether the terms `arising out of,' and `related to' describe different connections between a cause of action and a defendant's contacts with a forum, and (2) what sort of tie between a cause of action and a defendant's contacts with a forum is necessary to a determination that either connection exists. Nor do we reach the question whether, if the two types of relationship differ, a forum's exercise of personal jurisdiction in a situation where the cause of action `relates to,' but does not `arise out of,' the defendant's contacts with the forum should be analyzed as an assertion of specific jurisdiction."
Our research has not revealed another case in which the Supreme Court or a federal circuit court of appeals has clarified whether there is a distinction to be made between the terms "arises out of" and "related to" for purposes of determining whether a sufficient connection exists between a cause of action and a defendant's contacts with a forum. We note that Justice Brennan in his dissent in Helicopteros took the view that a distinction should be made and that the Due Process Clause required "significant contacts directly related to the underlying cause of action." 466 U.S. at 427-28, 104 S. Ct. at 1879. For purposes of this opinion, we assume that the term "related to" has a meaning separate and apart from the term "arises out of." Black's Law Dictionary 108 (6th ed.1990), defines "arise" in pertinent part as follows: "To spring up, originate, to come into being or notice; to become operative, sensible, visible, or audible; to present itself." Black's, at p. 1288, defines "relate" as follows: "To stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with; with `to.' "We also assume, however, that the Due Process Clause does not permit an unduly broad interpretation of the term "related to," but, instead, that it requires a significant or direct relationship between the underlying cause of action and the defendant's contacts with the forum in order to bypass the more stringent requirements that are necessary to invoke general personal jurisdiction, i.e., a showing of continuous and systematic contacts by the defendant with the forum. Although the malicious prosecution claim and the breach of contract claim may be indirectly linked to the Hoffman action (in the sense that the Hoffman action gave rise to the Kamilewicz action, which, in turn, gave rise to the present action), we do not believe that these two claims are sufficiently "related to" the Hoffman action to obviate the need on Edelman's part to demonstrate continuous and systematic contacts by the Kamilewiczes and Preston with Alabama. In any event, we note that even if the malicious prosecution claim and the breach of contract claim were sufficiently "related to" the Hoffman action to invoke a specific personal jurisdiction analysis, the result would be the same because, as we point out later in this opinion, the Kamilewiczes and Preston's contacts with Alabama are not sufficient to give the trial court specific personal jurisdiction.
[3] Edelman contends that he and his firm were injured because, they say, the accountant was served with a subpoena "[b]efore the time for commencing discovery prescribed by the Federal Rules of Civil Procedure." Edelman argues that the "subpoena was issued in Mobile County, Alabama, to procure records and a witness pertaining to this case" and that this constituted an abuse of process because the subpoena "was not for purposes of discovery, as no discovery was permitted yet." The abuse of process claim is apparently based on allegations that the Mobile accountant was served with a subpoena before a discovery-planning conference had been held, as provided in Rule 26(f), Fed.R.Civ.P. The essential elements of abuse of process are: 1) an ulterior purpose and 2) a willful act in the use of the process not proper in the regular conduct of the proceeding. Reynolds v. McEwen, 416 So. 2d 702 (Ala.1982). Although we express no opinion with respect to the merits of this claim, we do question how the possibly premature service of a subpoena on the accountant could rise to the level of an abuse of process or how the service of the subpoena could have injured Edelman so as to establish the necessary standing to pursue an abuse of process claim against the Kamilewiczes and Preston. | July 18, 1997 |
6895d1ff-06d7-478a-84b7-c6f7d0fc5a33 | Crown Pontiac, Inc. v. McCarrell | 695 So. 2d 615 | 1951171 | Alabama | Alabama Supreme Court | 695 So. 2d 615 (1997)
CROWN PONTIAC, INC.
v.
Andrew McCARRELL.
1951171.
Supreme Court of Alabama.
April 25, 1997.
*616 John Martin Galese and Jeffrey L. Ingram of John Martin Galese, P.A., Birmingham, for Appellant.
R. Stephen Griffis of Hooper & Griffis, P.C., Birmingham, for Appellee.
ALMON, Justice.
Crown Pontiac, Inc., appeals from an order of the circuit court denying its motion to compel arbitration of the claims stated against it in an action filed by Andrew McCarrell. The issue is whether a preliminary document containing McCarrell's signature[1] became a part of the later-executed contract, which was executed on the same form but on which McCarrell did not sign on the signature line below the arbitration clause.
McCarrell went to Crown Pontiac to look for a used sports car to purchase. Charles Locke, a salesman for Crown Pontiac, showed McCarrell a used 1990 model Nissan 300ZX. Locke wrote on a "Retail Buyer's Order" form: a price of $16,990 for the car and an allowance of $4,000 for the car that McCarrell proposed to trade in; information about the car, such as the odometer reading and the serial number; five items that McCarrell requested Crown Pontiac to correct or repair about the car if he decided to buy it; and other notes. The form included two sections conspicuously set off in boxes, entitled "Disclaimer of Warranties" and "Dispute Resolution Agreement." Each of these boxes contained a line underneath the text for the purchaser's signature. Underneath the dispute resolution agreement, on the line for the purchaser's signature, is McCarrell's signature. Locke did not tell McCarrell to sign on that particular signature line; rather, according to Locke's deposition testimony, he told McCarrell that anywhere on the form was fine, so long as McCarrell gave a signature.
McCarrell testified by deposition that Locke filled out this form on the day that he first went to Crown Pontiac and that he continued to look at other vehicles elsewhere. McCarrell bought the car on June 2, 1994. Locke testified by deposition that he filled out the form on the same day that McCarrell purchased the car. Crown Pontiac says that Locke took the first "retail buyer's order" form to Tom Reid, who was the manager for the defendant, and had Reid execute the form as acceptance of the transaction. At that point, Crown Pontiac alleges, the form went to Mike Williams, who was a finance manager, and Williams prepared another, typewritten retail buyer's order forma final version of the contract on the same form as the one that Locke had written notes on.
The price of the Nissan 300ZX, the allowance for the trade-in, the balance due, and the monthly payments are all different on the two forms. For example, the price for the Nissan 300ZX on the second form is $17,999 and the trade-in value is $6,000. McCarrell signed the second retail buyer's order form in four different placesunder the trade-in section, in the disclaimer-of-warranties box, under the merger clause, and at the bottom of the page. However, McCarrell did not sign in the box entitled "Dispute Resolution Agreement." One of McCarrell's four signatures on this second form appeared below the following merger clause:
Section 8-1-41(3), Ala.Code 1975, states that agreements to submit disputes to arbitration cannot be specifically enforced. However, where the agreement "evidences a transaction ... involving [interstate] commerce," the Federal Arbitration Act preempts this state policy and makes the agreement enforceable. 9 U.S.C. § 1 et seq. The FAA does not make all arbitration clauses in whatever writing enforceable; rather, it makes arbitration agreements enforceable. According to the United States Supreme Court in First Options of Chicago v. Kaplan, 514 U.S. 938, 943-44, 115 S. Ct. 1920, 1924, 131 L. Ed. 2d 985, 993 (1995), this determination of whether the parties agreed to arbitrate their disputes should be judged by the "ordinary state-law principles that govern the formation of contracts."
In Doctor's Associates, Inc. v. Casarotto, ___ U.S. ___, ___, 116 S. Ct. 1652, 1656, 134 L. Ed. 2d 902, 908-09 (1996), the Supreme Court reiterated and explained what it meant by the rule stated in Kaplan:
(Quoting Perry v. Thomas, 482 U.S. 483, 493, 107 S. Ct. 2520, 2527, 96 L. Ed. 2d 426, 437 (1987) (citations and emphasis omitted).) Accordingly, in light of Kaplan and Casarotto, we turn to general Alabama contract law to determine whether the parties created an enforceable agreement to arbitrate.
In its order denying the motion to compel arbitration, the circuit court relied upon the following facts: 1) the second retail buyer's order form does not have McCarrell's signature on the arbitration clause, although he did sign that form in four other places; 2) the second retail buyer's order form contains a standard merger clause, which McCarrell specifically signed; and 3) the first retail buyer's order form, while seeming to contain McCarrell's signature under the arbitration clause, contains "handwritten terms and conditions which were not included in the final typewritten Retail Buyer's Order." Based on those specific facts, the circuit court concluded that the parties did not intend for the first retail buyer's order form to be binding. The circuit court further noted that "it would not seem appropriate for the Court to find a written agreement to arbitrate where it appears merely fortuitous that McCarrell placed his signature in the dispute resolution agreement `box' rather than elsewhere on the form."
Relying on Neal v. Hardee's Food Systems, Inc., 918 F.2d 34 (5th Cir.1990), Crown Pontiac argues that the first retail buyer's order form was part of the overall agreement between the parties. In Neal, the parties entered into a franchise agreement concerning six Hardee's restaurants in Corpus Christi, Texas. To consummate the transaction, the parties made two separate agreements: an "Agreement of Sale and Purchase" and a "License Agreement." The license agreement contained a broad arbitration clause, while the purchase agreement did not. The franchisee brought an action stating several claims. Hardee's filed a motion to stay the proceedings pending arbitration, which the district court denied.
The Fifth Circuit Court of Appeals reversed, holding that the arbitration clause in the license agreement was broad enough to cover the disputes of the parties. The franchisee argued that all of the claims concerned acts done pursuant to the purchase agreement, not the license agreement; that the purchase agreement did not contain an arbitration clause; and that, therefore, the arbitration clause did not apply to the claims at issue. The Fifth Circuit rejected that distinction. It reasoned that "[u]nder general principles of contract law, separate agreements executed contemporaneously by the same parties, for the same purposes, and as part of the same transaction, are to be construed together." 918 F.2d at 37. The Fifth Circuit held that the license agreement was the "heart of the deal" and that the arbitration *618 clause contained therein covered disputes arising under the separate purchase agreement. 918 F.2d at 38.
Alabama follows this general contract principle. Recently, in Pacific Enterprises Oil Co. (USA) v. Howell Petroleum Corp., 614 So. 2d 409 (Ala.1993), this Court stated: "It is well settled that `two or more instruments executed contemporaneously by the same parties in reference to the same subject matter constitute one contract and should be read together in construing the contract.'" 614 So. 2d at 414 (quoting Haddox v. First Alabama Bank of Montgomery, N.A., 449 So. 2d 1226, 1229 (Ala.1984)). The Court held that three separate agreements executed at or around the same time constituted the full agreement between the parties. Crown Pontiac argues from this general contract principle that we should hold that the arbitration clause in the first retail buyer's order form was binding on the parties, even though the parties executed a second retail buyer's order form that contained different terms. Of course, Crown Pontiac argues that only the arbitration clause in the first retail buyer's order form, not the remaining terms, became part of the contract.
On the other hand, McCarrell argues that the first retail buyer's order form did not become part of the agreement because, he says, the merger clause in the second form caused the terms in the first form to be superseded by the terms of the second one. We agree. Merger clauses are enforceable under state contract law. The Court stated in Colafrancesco v. Crown Pontiac-GMC, Inc., 485 So. 2d 1131, 1133 (Ala. 1986), "Merger clauses, like the one in the case sub judice, have been given effect in Alabama for years." While merger clauses do not bar parol evidence of fraud in the inducement of contracts, Environmental Sys., Inc. v. Rexham Corp., 624 So. 2d 1379 (Ala.1993), they are properly used to ensure that preliminary negotiations, whether oral or written are either memorialized in the final contract or are not considered part of it.
McCarrell specifically signed the merger clause in the final contract. Crown Pontiac would utilize the merger clause to bar the other terms of the first retail buyer's order, such as the different prices of the trade-in vehicle and of the Nissan, but it would ignore that same merger clause in reference to the arbitration clause. Crown Pontiac was the drafter of this retail buyer's order form, and it cannot escape from the terms that it drafted simply because it now finds those terms inconvenient. Accordingly, we hold that the merger clause in the second retail buyer's order form bars the enforcement of any previous agreements of the parties and makes the final retail buyer's order form the final contract of the parties.
We note that the merger clause references "the Retail Buyer's Order, Retail Sales Contract and Security Agreement." It is unclear how many documents are intended to be referred to here, but no documents entitled "Retail Sales Contract," "Security Agreement," or "Retail Sales Contract and Security Agreement" are included in the record. There is a document in the record entitled "Motor Vehicle Installment Sale Contract (Precomputed Interest)," which gives the terms of the financing. If the merger clause in the second retail buyer's order form is deemed to incorporate this document as part of the contract, this would illustrate the proper application of the doctrine on which Crown Pontiac seeks to rely. This "installment sale contract" does not include an arbitration clause.
The above holding resolves the question regarding the enforceability of the arbitration clause in the first retail buyer's order form; however, the second retail buyer's order form also contained an arbitration clause, although McCarrell did not sign it. Therefore, the question remains whether the arbitration clause in the second retail buyer's order form was enforceable simply by being included in the form.
The purpose of a signature is to show "mutuality and assent," which are required for a contract to be binding. Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 304 (Ala.1986). Conversely, in this case the absence of a signature under the arbitration clause shows a lack of mutuality and assent, where the contract contains a signature line specifically for the arbitration clause, but *619 where McCarrell did not sign on that line, although he signed on other lines that similarly indicated agreement to specific terms. Crown Pontiac argues that it told McCarrell of the arbitration agreement and that McCarrell did not object to it. However, his lack of objection is not the same as an acceptance of the term, and it does not override the fact that McCarrell did not sign the arbitration clause, but signed every other part of the contract. Crown Pontiac further argues that it did not have him sign that arbitration clause because he had already signed one on the first retail buyer's order form; however, Crown Pontiac should have known that any terms contained in the first retail buyer's order were nullified by the merger clause in the second retail buyer's order. For these reasons, the unsigned arbitration clause on the second retail buyer's order form did not become a part of the overall agreement of the parties.
Accordingly, the circuit court properly denied the defendant's motion to compel arbitration.
AFFIRMED.
HOOPER, C.J., and SHORES, HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur.
MADDOX, J., concurs in the result.
[1] McCarrell denies that the writing on the preliminary document is his signature, but we assume for the purposes of this opinion that it is. | April 25, 1997 |
e85b615a-1bb9-45b8-8944-1eba32f3017c | Bird v. Metropolitan Life Ins. Co. | 705 So. 2d 363 | 1950469, 1950509, 1950517 | Alabama | Alabama Supreme Court | 705 So. 2d 363 (1997)
Danny BIRD
v.
METROPOLITAN LIFE INSURANCE COMPANY, et al.
METROPOLITAN LIFE INSURANCE COMPANY
v.
Danny BIRD.
Phillip C. OLIN and Cecil Chaney, Sr.
v.
Danny BIRD.
1950469, 1950509 and 1950517.
Supreme Court of Alabama.
July 11, 1997.
Rehearing Denied October 24, 1997.
Ted Taylor and Leah O. Taylor of Taylor & Taylor, Prattville, for Danny Bird.
Robert B. Reneau of Reneau & Thornton, Wetumpka, for Phillip C. Olin and Cecil Chaney, Sr.
*364 C.C. Torbert, Jr., of Maynard, Cooper & Gale, P.C., Montgomery; and Lee E. Bains, Jr., and Tony G. Miller, of Maynard, Cooper & Gale, P.C., Birmingham, for Metropolitan Life Insurance Company.
PER CURIAM.
Danny Bird sued Metropolitan Life Insurance Company ("MetLife"), Cecil Chaney, Sr., and Phillip C. Olin, alleging: 1) that the defendants had fraudulently misrepresented to Bird that he could purchase from MetLife an insurance policy that would become self-sustaining in three years; 2) that MetLife breached its contract to provide Bird with such a policy; and 3) that the defendants were negligent and wanton in failing to procure a policy that would become self-sustaining after three years or, in the alternative, in failing to advise Bird that such a policy could not be purchased. The jury returned a verdict for the plaintiff and against all defendants on the fraud and negligence claims; against MetLife on the breach of contract claim; and for all defendants and against the plaintiff on the wantonness claim. The jury awarded Bird $150,500 in compensatory damages and $1,750,000 in punitive damages. The defendants filed motions for JNOV or, in the alternative, for a new trial or a remittitur. The trial judge denied the motions for JNOV, but granted the defendants' motions for a new trial. Bird appeals from the order granting a new trial. The defendants cross appeal from the denial of their motions for JNOV. We affirm.
In September 1990, Danny Bird owned four life insurance policies with MetLife: a 1967 policy with a face amount of $13,000; a 1974 policy with a face amount of $20,000; a 1977 policy with a face amount of $28,000; and a 1979 policy with a face amount of $30,000. Bird was planning to retire from his job as an elevator mechanic in five years. He went to MetLife's Huntsville office, because he wanted to buy a whole life insurance policy with approximately the same total value, that he could "pay up" before he retired. At the MetLife office he was introduced to MetLife agent Phillip Olin and branch manager Cecil Chaney, Sr. They told Bird that MetLife would work up a program for him.
Subsequently, Bird met again with Olin and Chaney. At that meeting, Chaney explained that they had worked up a program that would allow Bird to purchase a whole life insurance policy that would be paid up in three years. They recommended that Bird use the cash values of his four existing Met-Life policies to purchase the new policy, and Olin explained that Bird must make three payments of approximately $2,600 and one payment of approximately $3,700 on a "paid-up additions rider" (PUAR). Neither Olin nor Chaney explained to Bird that interest rates had any bearing on whether his policy would be "paid up" within three years. Bird wanted a policy that would become self-sustaining after three years, so that same day he applied for the policy, signing documents that applied the cash values from his four MetLife policies toward the cost of the new policy.
Bird then decided to take out an accidental death benefit rider. He was not told that his purchase of the accidental death benefit rider would affect whether the new policy would become self-sustaining within three years. In January 1991, Bird received his policy from MetLife; it showed a premium schedule of $2,674.83 and a PUAR of $3,719.00 for the first policy year. Bird received a bill from MetLife for the $2,674.83 premium in October 1991, 1992, and 1993. He timely paid these premiums to MetLife. Bird never received a bill for a PUAR.
In October 1993, Bird went to the Huntsville office of MetLife to confirm that his policy would be paid up after he paid his premiums that month. There he met Met-Life agent Wayne Green. Bird testified that Green told him that "the money market had not been what they had anticipated and that it didn't produce enough money to make the payments and that I would have to pay for six more years." At that time Green gave Bird an illustration, dated November 1990, that showed three required payments on the PUAR. Chaney, the MetLife Branch Manager, told Bird that his options were to pay the required premiums or to cash in the policy. Bird decided to cash in the policy. This lawsuit followed.
*365 As previously stated, the jury awarded Danny Bird $150,500 in compensatory damages and $1,750,000 in punitive damages. The defendants then filed motions for JNOV or, in the alternative, for a new trial. On November 3, 1995, the trial judge denied the motions for JNOV, but granted the motions for a new trial. Because the trial judge did not state any ground in support of his order, the plaintiff filed a "Motion to State Specific Grounds for Order Granting Defendants' Motions for New Trial"; however, the trial judge deemed the motion "not well taken" and denied it.
We first consider whether the trial judge erred in granting the defendants' motion for a new trial. "The granting or denial of a motion for new trial rests largely within the discretion of the trial court, and the exercise of that discretion carries with it a presumption of correctness that 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." Gold Kist, Inc. v. Tedder, 580 So. 2d 1321, 1322 (Ala.1991). (Citations omitted.) The right to trial by jury is a fundamental right guaranteed by the Constitution; thus, a jury verdict cannot be set aside unless it is flawed. Art. I, § 11, Ala. Const. of 1901. A trial judge may grant a new trial on the ground that an error of law occurred at the trial, if the issue was properly preserved. Rule 59, Ala. R. Civ. P., and § 12-13-13(a), Ala.Code 1975.
When the trial judge's grounds for granting the motion for a new trial are not stated, as in this case, this Court applies this rule:
State v. Blackburn, 655 So. 2d 948, 949 (Ala. 1994).
The defendants assigned 38 grounds in their motion for a new trial. Because the trial judge stated no grounds for his order, we have reviewed all of the issues that were preserved for appellate review to determine if any ground for a new trial supports the trial judge's action. However, we treat only those issues pertinent to the decision in this case.
The defendants argue first that the trial court erred in granting the plaintiff's motion to strike MetLife's revised exhibit and witness lists and that that ruling severely handicapped their ability to defend. They contend that when the trial court continued the trial of the case from May 1, 1995, because one of MetLife's attorneys was involved with a capital criminal case, the case action summary stated that a new scheduling order was to issue. The defendants argue that one of the reasons the trial judge granted the motion for a new trial was that the defendants had reasonably relied upon the trial judge's order, on oral assurances, and on past practice, all indicating that a new scheduling order would issue.
However, the record reflects that the trial judge made the deadlines for discovery very clear. His "Order Setting Case for Trial, *366 Scheduling Order and Order for Pre-Trial Conference," dated December 5, 1994, instructs counsel to exchange witness lists not later than February 6, 1995, and sets the case for trial on May 1, 1995. Paragraph 4(b) of the Order reads:
It was this discovery order upon which the trial judge based his order granting the motion to strike. Thus, any misunderstanding about scheduling guidelines would be the fault of counsel, not necessarily grounds for a new trial. However, the case action summary sheet does state that a new scheduling order is to issue.
The defendants argue also that the trial court erred in charging the jury as to negligence per se. We have carefully considered the record, and we conclude that the trial court erred in giving this jury charge, which was requested by the plaintiff. The trial judge charged the jury as follows:
The defendants preserved these objections to this charge:
The plaintiff Bird responds with the argument that the jury instruction was appropriate because his complaint alleged negligence and because he testified that Phillip Olin had failed to provide him with a copy of the illustration that was shown to him on the computer. Bird argues that the failure to provide him with a paper copy of the illustration was a violation of Alabama Insurance Regulation 64, § 5(B), which requires the agent to leave with the prospective purchaser all written or printed advertisements applicable to the policy being applied for.
The record reflects that MetLife filed a motion in limine regarding Alabama Insurance Regulation 64, § 5(B); that motion reads in part:
The trial judge granted the motion in limine. The jury found in favor of Bird and against the defendants on Bird's negligence claim.
Because two good grounds were presented by the new trial motion, we cannot say that the trial judge was plainly and palpably wrong in granting that motion.
The defendants, MetLife, Phillip Olin, and Cecil Chaney, Sr., argue that the trial judge erred in denying their motions for a JNOV. The standard of review for a JNOV motion has been stated as follows:
Floyd v. Broughton, 664 So. 2d 897, 899 (Ala. 1995), quoting Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160,162 (Ala.1988).
The defendants argue, first, that Bird failed to present clear and convincing evidence that the defendants intentionally or recklessly misrepresented a material fact to him. We disagree. Bird testified that Olin represented to him that he could make three payments of approximately $2,600 and one PUAR of $3,700 and have a "paid up" policy with MetLife of a face value of $107,000. Bird was told that the cash value of his four policies would cover this.[1] Bird testified that Chaney was present when Bird looked at an illustration on the computer and that Chaney agreed with what Olin had told Bird. Bird's policy with MetLife was admitted into evidence, and Bird testified that on page three of that policy the annual premium is shown as $2,674.83 and the additional rider is shown as $3,719.00. Nothing on the policy says anything about paying the PUAR beyond the first policy year. Annual statements of the PUAR for October 1991,1992, and 1993 were admitted into evidence. On these statements was written, "this is not a bill." Bird received premium notices for $2,674.83 in October 1991, 1992, and 1993, and he timely paid these premiums. The defendants contend that the representations made by Chaney and Olin were innocent and that the policy did not correspond to those representations because of a clerical error. Whether a fraudulent intent has been proven is a matter peculiarly within the province of the jury. Reynolds v. Mitchell, 529 So. 2d 227, 231 (Ala. 1988); Mall, Inc. v. Robbins, 412 So. 2d 1197, 1200 (Ala.1982). There was substantial evidence from which the jury could conclude that the defendants had acted with a fraudulent intent.
The defendants also contend that Bird was not injured by the representations of Olin and Chaney. However, Bird testified that when he went to the MetLife office in 1990, he had $91,000 in life insurance coverage for which he was paying $1,600 per year. The policies providing that coverage had a cash value of over $11,000. The cash value of all four policies was used to pay the cost of the *368 policy that he later surrendered. The amount he received upon surrender of the new policy was $9,809.36.
MetLife argues that it is entitled to a JNOV as to the plaintiff's contract claim, because, it says, Chaney and Olin were "soliciting agents" and as such had no authority to bind MetLife to an oral contract to procure the requested insurance policy. The question of agency is one for the trier of fact; and the existence and scope of a principal-agent relationship is normally a question of fact to be determined by the jury. Calvert v. Casualty Reciprocal Exch. Ins. Co., 523 So. 2d 361 (Ala.1988). There is sufficient evidence in the record to support a finding that Chaney and Olin were not independent brokers who sold insurance for several companies. They were both employed by MetLife; Chaney was the branch manager. This evidence, viewed in the light most favorable to the plaintiff, is sufficient to support the jury's finding of agency. Id. at 363.
A motion for JNOV is properly granted only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ and the moving party is entitled to a judgment as a matter of law. We have carefully studied the record, and we conclude that the trial court properly denied the defendants' motions for JNOV. The plaintiff presented substantial evidence in support of his claims as to all defendants.
For the reasons stated above, the order denying the defendants a JNOV but granting them a new trial is due to be affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur.
SEE, J., concurs in the result.
BUTTS, J., concurs in part and dissents in part.
BUTTS, Justice (concurring in part and dissenting in part).
I concur in the affirmance of the order denying the defendants' motions for JNOV. However, I respectfully dissent from the affirmance of the order granting the defendants a new trial.
[1] The cash value of the four policies Bird had with MetLife was $11,621.69. | July 11, 1997 |
f858c9d4-6f96-4c26-a68b-c70857407dff | Locklear Dodge City, Inc. v. Kimbrell | 703 So. 2d 303 | 1950776 | Alabama | Alabama Supreme Court | 703 So. 2d 303 (1997)
LOCKLEAR DODGE CITY, INC.
v.
Dorothy Ann KIMBRELL.
1950776.
Supreme Court of Alabama.
May 16, 1997.
Rehearing Denied August 29, 1997.
A. Courtney Crowder and W. David Ryan of Davidson, Wiggins & Crowder, P.C., Tuscaloosa, for appellant.
Christopher H. Jones of Zeanah, Hust, Summerford, Davis & Jones, L.L.C., Tuscaloosa, for appellee.
HOOPER, Chief Justice.
Locklear Dodge City, Inc. ("Locklear"), appeals the trial court's denial of its motion for a judgment as a matter of law (a judgment formerly known as a judgment notwithstanding the verdict; see Rule 50, Ala. R. Civ. P.) or, in the alternative, a new trial, following a jury verdict awarding the plaintiff, Dorothy Ann Kimbrell, $150,000 in compensatory and punitive damages. Mrs. Kimbrell had alleged in her complaint that *304 Locklear had fraudulently suppressed the fact that the used automobile she purchased from Locklear had previously been involved in two accidents.
On January 26, 1993, Mrs. Kimbrell and her husband purchased from Locklear a used 1990 Chrysler New Yorker automobile, for $14,196. During their test drive, the Kimbrells heard a "bumping" or a "popping" noise, which the salesperson promised Locklear would repair if the Kimbrells purchased the car. Also during the test drive, Mr. Kimbrell allegedly asked whether the car had been wrecked. The salesperson stated that to the best of his knowledge the car had not been wrecked. In fact, the car had been repossessed from the original owner and then purchased by Locklear at a Chrysler Credit Corporation auction. The documents Locklear received from Chrysler Credit did not indicate whether the car had previously been involved in an accident. However, Mrs. Kimbrell subsequently discovered that the car had been involved in two accidents and had had repairs costing a total of $18,000 to $20,000.
The Kimbrells signed several documents during the actual sale: the "Bill of Sale," a "Disclosure of Prior Use," an "Offer to Purchase," and an "Application for Certificate of Title." Each document was explained to Mrs. Kimbrell, and Locklear gave her the opportunity to read the documents before signing them. However, because Mr. Kimbrell was very sick and Mrs. Kimbrell wanted to get home as soon as possible, she did not read any of the documents before signing them.
One of the documents signed by Mrs. Kimbrell, the "Disclosure of Prior Use," specifically stated that the dealer had purchased the car at auction; therefore, it made no representation about the car's prior use. Moreover, immediately above the signature line was the following:
The day following the sale, the Kimbrells brought the car back for Locklear to repair the bumping noise. However, shortly after picking up their car, the Kimbrells again heard the noise. After a second unsuccessful attempt to have Locklear repair the car, Mrs. Kimbrell decided to sell it. While attempting to sell the car, she discovered that it had been wrecked.
Mrs. Kimbrell sued Locklear in July 1993, alleging revocation of acceptance, breach of express warranty, breach of implied warranty of merchantability, fraudulent misrepresentation, promissory fraud, and fraudulent suppression. The trial court entered a summary judgment in favor of Locklear on all counts except fraudulent misrepresentation and fraudulent suppression. The case proceeded to trial, and at the close of the evidence the trial court directed a verdict in favor of Locklear on the claim of fraudulent misrepresentation. The jury returned a verdict in favor of Mrs. Kimbrell on the fraudulent suppression claim and awarded her $50,000 in compensatory damages and $100,000 in punitive damages. After the court denied Locklear's motion for a judgment as a matter of law, a new trial, or a remittitur of the damages, Locklear appealed.
The standard for reviewing a denial of a motion for a judgment as a matter of law is as follows: A judgment as a matter of law is proper "`"only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ" and the moving party is entitled to [a] judgment as a matter of law.'" Floyd v. Broughton, 664 So. 2d 897 (Ala.1995) (quoting earlier cases). Moreover, in reviewing such a denial, the reviewing court must view all evidence *305 in the light most favorable to the nonmovant. Bussey v. John Deere Co., 531 So. 2d 860 (Ala.1988). In order for the plaintiff to withstand a motion for a judgment as a matter of law, the plaintiff must prove all the elements of his or her claim. The elements of a fraudulent suppression claim are:
Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909, 918 (Ala.1994); Ala.Code 1975, § 6-5-102.
Locklear contends that because Mrs. Kimbrell signed a disclosure statement informing her that the used automobile she purchased "MAY HAVE UNDISCLOSED MECHANICAL OR BODY REPAIRS OR MAY HAVE BEEN INVOLVED IN ACCIDENTS," Locklear, as a matter of law, did not wrongfully conceal or fail to disclose any material facts. Therefore, Locklear argues that the plaintiff did not prove all the elements of a claim of fraudulent suppression. We agree, and we hold that the trial court improperly denied Locklear's motion for a judgment as a matter of law.
This Court has previously held that an automobile buyer cannot recover for misrepresentation where the buyer has signed a disclosure statement revealing the possibility of the kind of damage the buyer alleges was suppressed. Young v. Serra Volkswagen, Inc., 579 So. 2d 1337 (Ala.1991); Couch v. Woody Anderson Ford, Inc., 558 So. 2d 888 (Ala.1989); Planchard v. Dobbs Mobile Bay, Inc., 529 So. 2d 942 (Ala.1988); Page v. Dobbs Mobile Bay, Inc., 599 So. 2d 38 (Ala.Civ.App. 1992). Moreover, In Hines v. Riverside Chevrolet-Olds, Inc., supra, this Court stated:
655 So. 2d at 922 (emphasis in original). Even though Hines involved the purchase of a new automobile, the principle is applicable also to the purchase of a used one. One who signs a disclosure statement, as Mrs. Kimbrell did, acknowledges the possibility of such damage. By signing the disclosure statement, Mrs. Kimbrell knowingly and intelligently acknowledged that she had been informed of a possibility that the car she was purchasing had been repaired or had been involved in an accident. Therefore, we must conclude that, as a matter of law, Locklear did not suppress this information.
In addition to the fact that the disclaimer disclosed to Mrs. Kimbrell the possibility that the car had been damaged, she presented no substantial evidence that Locklear actually knew that the car had been involved in an accident. Suppression has occurred "[w]hen the defendant had superior knowledge of the fact not disclosed and the plaintiff was induced to take action that the plaintiff might not have otherwise taken if he or she had also known this fact." Hines, 655 So. 2d at 918. Only on the basis of such facts will a reasonable person find that there was a duty to disclose. Locklear typically changes the oil and fluids before placing a used car on its lot for sale. An oil change could have alerted Locklear to the damage. However, Mike Locklear, the Locklear employee who purchased the automobile at auction and Locklear's sales manager, testified that in the case of this car, Locklear did not perform an oil change because an oil change had been *306 performed immediately before the auction, before Locklear purchased the car.[1] Locklear did install a new battery and "detail" the vehicle, but, according to the Locklear employee who performed these tasks, changing the battery took only two to three minutes and during the course of his dealings with the vehicle he did not notice anything indicating that the car had been previously damaged. Moreover, the documents from the Chrysler Credit Corporation auction did not indicate that the car had been damaged. Chrysler Credit's policy was to disclose if a car had sustained frame damage. It was only after Mrs. Kimbrell had returned the car for Locklear to fix the "popping" noise that a Locklear mechanic noticed that the car had been repaired. Because the plaintiff did not present substantial evidence that Locklear had actual knowledge of the fact that the car purchased by Mrs. Kimbrell had been involved in previous accidents, we must conclude that Locklear did not fraudulently suppress any material information from Mrs. Kimbrell.
Even though the disclaimer mentioned the fact that the car may have been wrecked, Mrs. Kimbrell claims that this information was suppressed because she did not read the documents she signed during the sales transaction. However, this Court has held that a person who signs a contract is on notice of the terms therein and is bound thereby even if he or she fails to read the document. Power Equipment Co. v. First Alabama Bank, 585 So. 2d 1291 (Ala.1991). Mrs. Kimbrell is capable of reading; she simply chose not to read this contract because her husband was ill and because she trusted Locklear. In light of these factors, it is understandable that Mrs. Kimbrell might choose not to read the contract before signing it. She took a risk. However, Mrs. Kimbrell should not be excused from her contractual responsibilities because she took that risk. To hold otherwise would turn the concept of "sanctity of contract" upside down. Allowing parties to avoid their contractual obligations by merely claiming that they did not read a contract would encourage irresponsibility. Those responsible enough to read their contracts would be bound to their terms, while those reckless enough not to read their contracts could avoid their terms; in addition to avoiding the contract terms, the party who did not read the contract could file a legal action against the other party for suppressing something that was stated clearly in the contract. This is too perverse a result to contemplate. Moreover, modern society relies on written agreements.
Parties to a contract must be allowed to rely on the terms of a signed agreement. It would impose a punitive result upon Locklear for this Court to determine that a party that chooses not to read a contract is not obligated by that contact and can ignore any provision that does not suit that party. Therefore, Mrs. Kimbrell cannot claim, based on her failure to read the contract, that she was not informed of the possibility that the car had been wrecked. That information was in bold capital letters appearing immediately above the line where she signed her name on the contract. By signing the document, Mrs. Kimbrell agreed to the terms therein and acknowledged that the terms of the agreement had been disclosed to her. This Court will not lightly release parties from contracts to which they have bound themselves.
The judgment of the trial court is reversed, and a judgment for Locklear is rendered.
REVERSED AND JUDGMENT RENDERED.
MADDOX, HOUSTON, and SEE, JJ. concur.
ALMON, J., concurs in the result.
KENNEDY, J., dissents.
[1] The president of Locklear, Steve Locklear, testified that Locklear did perform an oil change, lubrication, and filter change on the car subsequently purchased by the Kimbrells. However, he also acknowledged that whether the oil would be changed was solely within the discretion of Mike Locklear, and the documents regarding this car did not show that the oil was changed by Locklear. | May 16, 1997 |
5366a0c1-9fa5-41d8-8264-b1d633e29bee | Kent Corp. v. Hale | 699 So. 2d 954 | 1950836 | Alabama | Alabama Supreme Court | 699 So. 2d 954 (1997)
KENT CORPORATION
v.
Don HALE.
1950836.
Supreme Court of Alabama.
March 28, 1997.
As Modified on Denial of Rehearing June 20, 1997.
Sydney F. Frazier, Jr., of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant.
Ralph E. Coleman of Coleman & Friday, Birmingham, for appellee.
HOOPER, Chief Justice.
Don Hale sued Kent Corporation, asserting that Kent had dismissed him in retaliation for filing a workers' compensation claim. See Ala.Code 1975, § 25-5-11.1, part of the Alabama Workers' Compensation Act. Kent moved for a directed verdict at the conclusion of Hale's case and again at the conclusion of all of the evidence, but its motions were denied. The case was submitted to the jury on the question whether Kent had discharged Hale in retaliation for his filing a workers' compensation claim, and, if so, whether punitive damages should be awarded. The jury returned a verdict for Hale and against Kent, awarding punitive damages of $1,250,000. The court entered a judgment on that verdict. On February 8, 1995, the trial judge overruled a timely post-trial motion raising various alleged errors. Kent appealed. We reverse on the ground of insufficiency of the evidence.
The issues presented for review by this Court are: whether Hale presented substantial evidence supporting his claim of constructive discharge; whether there was clear and convincing evidence that Kent's conduct was so wrongful as to support an award of punitive damages; whether the trial court properly instructed the jury on damages; *955 whether the trial court properly excluded the findings of the Department of Industrial Relations; and whether the reference by Hale's counsel to the defendant's size and wealth was reversible error.
In 1994, Hale was employed by Kent as a "leadman" in the manufacture of metal shelving. On September 2, 1994, Hale suffered an injury to his left wrist, which was cut when he slipped and fell into a machine at the plant. Following treatment for this injury, he was released by Dr. Robert Howe, the plastic surgeon who treated Hale, to return to restricted work on September 6. Kent acknowledged that Hale's September 2 accident was covered by workers' compensation, and it paid all his expenses related to that accident.
On September 6, Hale went back to work. According to Hale, that same day he slipped in some oil and "fell back" on the floor. Hale testified that as a result of this fall he lost feeling in his legs.
James Price and Carlton Smith, fellow employees of Hale, testified that they saw Hale's alleged fall, and they testified that he did not fall to the floor. Price, a welder stationed nearby, testified at trial:
At this point in Price's testimony the court allowed Price to demonstrate what he had seen Hale do. Then the questioning resumed:
R.T. 1090-93. Carlton Smith, the other employee who had observed the incident, offered similar testimony:
R.T. 1117-18.
Ronald Webb, a former employee of Kent who had been working for Kent on the day of the incident, testified on behalf of Hale. He said that although he did not actually see Hale fall, he did see grease and oil on the floor.[1] However, Kent's safety director, Bill Hyde, testified that he was on the floor talking with Hale after the incident of September 6, and that he did not observe any grease or oil on the floor or on Hale's clothing.
Hale was treated at Carraway Medical Center by Dr. Evan Zeiger, a neurosurgeon, who took an MRI of his spine. The film revealed a left-side disc herniation and no other abnormalities. Dr. Zeiger testified that this disc herniation was compatible with a fall and a strike in the back. However, Dr. Zeiger diagnosed Hale's September 6 paralysis problem as "hysterical paralysis," which he explained "was not an injury." Hale's discharge summary reflected some of the factors that led Dr. Zeiger to this conclusion, including:
C.R. 384. Dr. Zeiger also stated that Hale's complaint of paralysis in both legs was completely inconsistent with symptoms of a ruptured disc. Moreover, he stated, Hale's paralysis would not have disappeared before he left the hospital, if the disc had been the cause of the paralysis.
Dr. Zeiger's diagnosis was confirmed by Dr. Stuart Teiszen, a psychiatrist. Dr. Teiszen further testified that a patient with low intelligence like Hale (who the evidence indicated had an IQ of 55) might respond to a stressful situation or trauma with hysterical paralysis in order to deal with an injury.
After being informed that the evaluation of Hale at that point did not show any acute injury that would cause his paralysis, and that Hale had been diagnosed with "hysterical paralysis," Sharron Harbison, the administrator of Kent's self-insured workers' compensation fund, called Carraway Medical Center and instructed its employees to switch the coverage for Hale's treatment for the September 6 problem from workers' compensation to Hale's Blue Cross-Blue Shield group health insurance policy.
Hale was released from the hospital by Dr. Zeiger on September 9. Following his release, he was seen again by Dr. Howe, who again treated his left wrist. Dr. Howe returned him to work on September 26, again with the restriction that Hale could not use his left hand in his work. Kent assigned Hale to a job that required only the use of one hand.
When Hale returned to the plant for work on September 26, 1994, he was wearing a back brace. Hale testified that he experienced problems with arm and back pain while back on the job on September 26. After working for a few hours the next day, he reported to his supervisor and said that he needed to go home and lie down because of these problems. The safety director, Bill Hyde, insisted on taking him to the company physician, Dr. Walter Wilson. Hale reported a variety of symptoms, including soreness in his shoulders, legs, arms, and back. Dr. Wilson concluded that Hale might have the flu or a viral syndrome and recommended *957 that he see his regular physician. Wilson also testified that Hale did not exhibit any symptoms consistent with disc herniation.
On September 30, 1994, Hale again returned to work at Kent, after his regular physician concluded that he did not have the flu. However, when he arrived for work, Sharron Harbison and Bill Hyde questioned him about the back brace. According to both Harbison and Hyde, Hale said that the back brace had been prescribed by a doctor, but he said he could not recall which one. Hale claims that he told them that he purchased the back brace himself and that no doctor had prescribed it. Ms. Harbison asked Hale for a statement from a doctor regarding his back condition. She testified that she had wanted to ensure, if Hale was having back problems, that any work he was assigned at Kent would not exacerbate the problems.
In response to Ms. Harbison's request, Hale went to Carraway Medical Center on October 3, 1994, and retrieved all of his medical records, and he brought them to the plant the next day. Because Dr. Zeiger had not prescribed a back brace and had released Hale without restrictions relating to his back, Ms. Harbison repeated her request for a statement from a doctor regarding his back condition.
After Hale returned to the plant on October 4, 1994, again without the requested documentation, he met with Sharron Harbison and Bill Hyde; they would not permit him to work without the medical report they had requested. At that point, Hale refused to leave the office. Hyde asked Hale to leave the office. Hyde and Al Richey, a foreman for Kent, were forced to escort Hale off the premises. As they were passing the guard shack, Hale testified, his "leg went out," causing him to sit down. Al Richey took ("snatched," according to Hale) Hale's keys from him and retrieved his car. At that point, Hale said Richey said that if he did not leave, he would be prosecuted for trespassing.[2]
Ms. Harbison testified that Hyde and Richey escorted Hale out because Hale was specifically told that the company needed the information from the doctor regarding why he was wearing a back brace. Harbison said that Kent was under the impression from Dr. Zeiger that there was no physical back injury and that Hale had been completely released to work, but, she said, the back brace was inconsistent with that impression. Therefore, Ms. Harbison said, Kent requested that Hale return to the doctor who had prescribed the back brace and obtain evidence verifying that indeed a doctor had prescribed it. Otherwise, according to Ms. Harbison, Kent would not know where to assign Hale without causing him further injury. Ms. Harbison said that because Hale did not leave, Harbison and Richey asked Hale to leave until he had complied with their request. Ms. Harbison testified that Hale refused to leave, so he was escorted off the premises. It is undisputed that Kent did not terminate Hale on that date.
Following this incident, Kent continued to pay for Hale to be covered on its group Blue Cross-Blue Shield policy, which is available only to employees, and Hale continued to make payments for his own portion of the coverage through February 1995. In addition, Hale was maintained on the employee roster. Kent subsequently inquired as to Hale's condition and offered him several one-hand jobs. In response, Hale's attorney informed Kent that Hale's decision to return to work would depend on his receiving a release from Dr. Walter Whitehurst.[3] However, before Dr. Whitehurst released Hale, Hale announced during his deposition on February 7, 1995, that he had decided that day that he would not return to work at Kent. Hale never provided Kent any evidence that a doctor had prescribed a back brace.
In reviewing a trial court's denial of a motion for a directed verdict, this Court must *958 apply the substantial evidence rule. This rule requires that, in order to withstand a motion for a directed verdict, the nonmovant must present "`substantial evidence' supporting each element of his cause of action." Hosea O. Weaver & Sons, Inc. v. Towner, 663 So. 2d 892 (Ala.1995). "Substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to he proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). Moreover, the evidence is to be viewed in the light most favorable to the nonmovant. Renfro v. Georgia Power Co., 604 So. 2d 408 (Ala.1992).
Kent asserts that the trial court erred by not granting its motion for a directed verdict, because, it argues there was no substantial evidence that Hale was terminated when he was escorted off Kent's premises. Kent claims that without substantial evidence that he was, in fact, terminated, Hale cannot successfully maintain a claim under § 25-5-11.1 for retaliatory discharge. Section 25-5-11.1 states:
In order to establish a prima facie case of retaliatory discharge, the plaintiff must present substantial evidence that he was terminated solely for seeking workers' compensation benefits. Keystone Foods Corp. v. Meeks, 662 So. 2d 235 (Ala.1995). Constructive discharge is included within the meaning of "terminated" as that term is used in § 25-5-11.1. Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala.1988). This Court has defined a "constructive discharge" as a situation in which
Irons v. Service Merchandise Co., 611 So. 2d 294, 295 (Ala.1992) (quoting federal cases). Thus, an employee who has not been terminated, either actually or constructively, has not presented a prima facie case of retaliatory discharge, and, in such a case, the defendant would be entitled to a directed verdict on that claim.
Hale asserts that he was terminated. However, viewing the facts in the light most favorable to Hale, this Court cannot agree. Hale returned to work on September 26, and he complained of problems with his arm and back the following day. Hale was taken to the company doctor, who thought he might have the flu. Hale visited his personal physician, who determined that Hale was not ill. When Hale returned again to work on September 30, his time card had been pulled and he was informed that he could not work until he obtained and presented a doctor's prescription for the back brace he was wearing. The following day, Hale brought his medical records, but those records did not indicate that he should be wearing a back brace. Ms. Harbison refused to let Hale work until he presented evidence from a doctor regarding the back brace. Ms. Harbison claims that this was to ensure that Hale was not assigned to any work that would aggravate his condition.
After the meeting with Ms. Harbison and Mr. Hyde regarding the back brace, Hale refused to leave the office and was escorted off the premises by Al Richey. At that time, Richey allegedly told Hale that if he did not leave he would be arrested for trespassing. There was testimony that it was Kent policy that when it terminated a worker, the worker was escorted off the premises, but company policy was also to give the former employee his or her final paycheck. Kent did not give Hale his final paycheck that day. In fact, Kent continued to cover Hale on its employees' group health insurance policy, to pay for his insurance, and to list him as an employee until February 7, 1995, the day he announced at his deposition that he would not return to work at Kent.
In January 1995, Kent offered Hale four one-hand positions with the company, but Hale's attorney informed Kent that any such *959 decision could not be made until Hale had been released for work by his doctor. At Hale's deposition on February 7, 1995, he stated that he had considered himself to be an employee of Kent until that day and that he had that day decided that he no longer wanted to be an employee of Kent. At trial Hale stated that his decision to leave Kent was based on the deposition testimony of Ms. Harbison and Mr. Hyde that he had heard earlier on the day of his own deposition. Hale's announcement on February 7, 1995, that he had decided to terminate his employment with Kent was evidently based on the disagreement he had with Kent over whether his claim should be covered by workers' compensation instead of by Blue Cross-Blue Shield.
We conclude that Hale did not present substantial evidence to support a finding of each element of his claim of retaliatory discharge. The evidence presented to support Hale's assertion that he was discharged when he was escorted off Kent's premises was not "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment [could] reasonably infer" that Hale had been terminated, either actually or constructively. Hale admitted that he himself made the decision that he would no longer be employed by Kent, and that he made that decision at his deposition, approximately four months after he had been escorted off Kent's premises. Moreover, we find Kent's argument that Hale had not suffered an injury that was covered by workers' compensation to be reasonable. We do not consider Kent's decision not to treat Hale's injuries as covered by workers' compensation, coupled with Kent's escorting Hale off the employment site, to be conditions so intolerable as to constitute a constructive discharge. Therefore, we conclude that the trial court erred in not directing a verdict in favor of Kent on Hale's retaliatory discharge claim.
Kent has raised other issues, but, given our holding that Hale did not present substantial evidence to support his claim of retaliatory discharge, we need not discuss those issues.
The judgment is reversed, and a judgment is rendered for the defendant Kent Corporation.
REVERSED AND JUDGMENT RENDERED.
MADDOX, SHORES, and SEE, JJ., concur.
COOK, J., concurs specially.
HOUSTON and BUTTS, JJ., concur in the result.
KENNEDY, J., dissents.
COOK, Justice (concurring specially).
I concur in Chief Justice Hooper's opinion. I write specially to acknowledge a fact not addressed by the plaintiff. The facts of this case are confusing; however, one fact exists that the plaintiff fails to refute and which is inconsistent with an actual or a constructive termination. Even after the incident when Kent Corporation employees escorted the plaintiff off Kent's premises, Kent Corporation continued to cover the plaintiff's medical expenses under its Blue Cross/Blue Shield group insurance. The plaintiff fails to address this fact, which directly contradicts his claim of constructive termination.
KENNEDY, Justice (dissenting).
This Court is not at liberty to vacate a jury's verdict merely because it does not conform to the Court's personal view of the evidence. Senn v. Alabama Gas Corp., 619 So. 2d 1320 (Ala.1993). That is what the majority has done in this case; therefore, I must dissent.
[1] Webb also testified that Al Richey, a foreman for Kent Corporation, had offered him $2,300 and his old job back if he would testify in court for Kent Corporation.
[2] Hyde was not present when this statement was allegedly made by Richey.
[3] Hale had been treated for the herniated disc by Dr. Whitehurst after being released from the hospital. Dr. Whitehurst performed surgery on Hale's back for the ruptured disc on October 21, 1994. | June 20, 1997 |
601a5d9b-f674-454b-99d3-d0a06164e228 | Ex Parte Mountain Top Indoor Flea Market | 699 So. 2d 158 | 1951624 | Alabama | Alabama Supreme Court | 699 So. 2d 158 (1997)
Ex parte MOUNTAIN TOP INDOOR FLEA MARKET, INC., and Melton Terrell.
(Re Robbie Ann LOWERY v. MOUNTAIN TOP INDOOR FLEA MARKET, INC., and Melton Terrell).
1951624.
Supreme Court of Alabama.
May 2, 1997.
*159 James C. Inzer III of Inzer, Stivender, Haney & Johnson, P.A., Gadsden, for petitioners.
No brief filed for respondent.
MADDOX, Justice.
The plaintiff, a business invitee, was injured when she slipped and fell on loose gravel on the premises of the defendant Mountain Top Indoor Flea Market, Inc. She sued that defendant and others, alleging that they had caused her to fall and be injured. The trial court entered a summary judgment in favor of the defendants on the ground that the evidence showed, as a matter of law, that the plaintiff "had knowledge of the existence of the dangerous condition[,] if in fact the condition [was] dangerous, and ... with appreciation of such danger ... failed to exercise care for her own safety by putting herself in the way of such known danger."[1]
*160 The plaintiff appealed. The Court of Civil Appeals reversed the summary judgment, holding that a genuine issue of material fact existed as to whether the plaintiff appreciated the known danger at the time of the incident. Lowery v. Mountain Top Indoor Flea Market, Inc., 699 So. 2d 155 (Ala.Civ. App.1996). The Court of Civil Appeals based its ruling in part on Marquis v. Marquis, 480 So. 2d 1213, 1215-16 (Ala.1985), where this Court held that for the plaintiff's "knowledge of the dangerous condition" to bar a recovery "the plaintiff also must have a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred," and stated "`that the plaintiff's appreciation of the danger is, almost always, a question of fact for the determination of the jury'" (quoting Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 607, 235 So. 2d 371, 377 (1970)). We granted the defendants' certiorari petition to review the holding of the Court of Civil Appeals. We conclude that the trial court properly entered the summary judgment; therefore, we reverse the judgment of the Court of Civil Appeals and remand for further proceedings or an order consistent with this opinion.
The facts are not disputed. The plaintiff, Robbie Ann Lowery, while an invitee of Mountain Top Indoor Flea Market, Inc. (the "Flea Market"), was injured when she fell in an area that had previously been excavated for drainage. She sued the Flea Market; Melton Terrell, its president and one of its owners; and Janie Terrell, who was Melton Terrell's wife and who was also an owner, alleging that the Flea Market and the Terrells had negligently or wantonly constructed and/or maintained the graveled area where she fell. The defendants filed a motion for summary judgment, in which they claimed that "the fall sustained by the plaintiff, upon which this suit is based, was due to her own negligence and/or that she voluntarily assumed the risk which caused her fall and alleged injury."
In reversing the judgment of the Court of Civil Appeals, we have applied the principle that "[i]n reviewing the disposition of a motion for summary judgment, we utilize the same standard as ... the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So. 2d 872 (Ala. 1979)); see Rule 56(c) Ala.R.Civ.P. The movant has the burden of "showing material facts, which, if uncontested, entitle the movant to [a] judgment as a matter of law." Berner v. Caldwell, 543 So. 2d 686, 688 (Ala. 1989); Woodham v. Nationwide Life Ins. Co., 349 So. 2d 1110, 1111 (Ala.1977). Once the movant has made this showing, the opposing party then has the burden of presenting evidence creating a genuine issue of material fact. Danford v. Arnold, 582 So. 2d 545, 546 (Ala.1991); Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989).
This action was filed after June 11, 1987; therefore, the nonmovant must meet the burden of establishing the existence of a genuine issue of material fact by substantial evidence. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, supra. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and *161 must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986).
The summary judgment was appropriate, based on the grounds set forth in the trial court's order. This Court in Sisk v. Heil Co., 639 So. 2d 1363, 1365 (Ala.1994), addressing landowner liability, stated:
This Court has further held:
Shaw v. City of Lipscomb, 380 So. 2d 812, 814 (Ala.1980) (emphasis omitted).
Hines v. Hardy, 567 So. 2d 1283, 1284 (Ala. 1990) (emphasis omitted).
We realize, just as the Court of Civil Appeals stated, that a summary judgment is rarely appropriate in negligence and personal injury cases. Cabaniss v. Wilson, 501 So. 2d 1177 (Ala.1986). However, see Duffy v. Bel Air Corp., 481 So. 2d 872, 873 (Ala. 1985) (when material facts are not in dispute and only a question of law exists, that question to be determined by the trial court); Shaw v. Lipscomb, supra (this Court affirmed a summary judgment for the defendant where plaintiff slipped and fell on a twig or sweetgum ball); Hines v. Hardy, supra (summary judgment for defendant affirmed where plaintiff stepped on an outdoor crosstie); Bennett v. Cole, 426 So. 2d 829 (Ala.Civ. App.1981), affirmed, 426 So. 2d 832 (Ala.1982) (defendant's judgment notwithstanding plaintiff's verdict affirmed because evidence was insufficient for a finding of negligence where *162 a grocery store patron tripped on a "car stop" in the parking lot); and Sisk v. Heil Co., supra (this Court held that the plaintiff, as an adult of normal intelligence, should have been aware of the need for caution when walking on mud and stepping over a strip of gravel).
In McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957, 958 (Ala. 1992), this Court reversed a summary judgment in a slip-and-fall action where the same defendant involved in the present case argued the defense of assumption of the risk. This Court in McClendon noted that the plaintiff "Charlotte McClendon's assumption of the risk was the sole basis for the summary judgment." Id. at 958. However, McClendon is distinguishable from the present case on the basis that the summary judgment in the present case was entered on the ground that the danger posed by the gravel area was open and obvious and that the plaintiff's testimony, in her deposition, shows as a matter of law, that she appreciated the danger before she started across the graveled area. Further, the facts of McClendon appear to be distinguishable from those of this present case; the plaintiff in McClendon stated in her affidavit:
601 So. 2d at 960 (emphasis added).
Each case involving a landowner's liability must be decided upon its facts. We conclude that the facts of this case require a finding that Robbie Ann Lowery did have "a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred." Marquis, 480 So. 2d at 1215.
Consequently, we hold that the trial court properly entered the summary judgment in favor of the defendant. The judgment of the Court of Civil Appeals is reversed and the cause is remanded for further proceedings or an order consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and ALMON, SHORES, KENNEDY, BUTTS, and SEE, JJ., concur.
HOUSTON, J., concurs specially.
COOK, J., dissents.
HOUSTON, Justice (concurring specially).
I dissented in McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957, 961 (Ala.1992). The majority opinion in this case is consistent with my dissent in McClendon.
COOK, Justice (dissenting).
I respectfully dissent. In keeping with our holding in McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957 (Ala. 1992), I disagree with the majority's opinion that the summary judgment was proper in this case because the plaintiff had "a conscious appreciation of the danger posed by the visible condition at the moment the incident occurred." 699 So. 2d at 160.
In McClendon, which involved the same defendant as in the instant case, we held that a summary judgment was precluded because *163 genuine issues of material fact existed regarding whether the flea market had used reasonable care and diligence to maintain the surface of its premises and whether the plaintiff knew or should have known of risks associated with walking on a gravel and dirt surface.
The facts in McClendon are directly analogous to those in instant case. In McClendon, Charlotte McClendon visited Mountain Top Indoor Flea Market, as she and her family had on many occasions. 601 So. 2d 957. McClendon slipped and fell when her left foot slid on loose gravel after she stepped onto the gravel and dirt surface, which was found throughout the flea market. Id. at 958. McClendon argued that Mountain Top had a duty to her, as an invitee, "to provide a means of ingress to and egress from the leased premises that did not pose an unreasonable risk of danger" and "to warn invitees of the dangerous character of the surface." Id. We reversed Mountain Top's summary judgment and remanded the case for further proceedings. Id. at 961.
Like the plaintiff in McClendon, Robbie Lowery, the plaintiff in the instant case, slipped and fell at Mountain Top Indoor Flea Market while walking in a section of the common area that had been excavated for drainage. Lowery argues that Mountain Top knew of what she alleged to be an unreasonably dangerous condition that existed in the graveled common areas. I agree. As of 1988, Mountain Top, which operated only on Sundays, accommodated approximately 1,100 vendors and 30,000 patrons. Mountain Top should have become aware of the danger of its graveled premises in 1988, when the plaintiff in McClendon was injured. In addition, a firefighter, who worked part-time at Mountain Top, stated by deposition in McClendon that several people had fallen on the gravel and dirt surface while he was on duty at Mountain Top. Id. at 960.
It is undisputed that a property owner is not generally liable for injuries sustained by an invitee when the injuries resulted from a dangerous condition that either was known to the invitee or should have been observed by exercising reasonable care. Id. at 959. However, in Marquis v. Marquis, 480 So. 2d 1213, 1215-16 (Ala.1985), we held:
(Emphasis added.)
The fact that the gravel flooring of the flea market was visible to Lowery does not indicate that she appreciated the danger that she was likely to fall, especially when her incident occurred in the common area of the flea market where patrons had to walk in order to gain access to the flea market and no warning signs indicated that the common areas were inaccessible.
While a property owner is not an insurer, I do not believe that our cases stand for the proposition that a landowner can maintain a common area that presents a danger to a pedestrian customer and assert that the danger is open and obvious after the customer sustains a fall, especially when the plaintiff customer, as in this case, was using the area in a safe and cautious manner and in a way reasonably to be expected by the property owner. It is obviously apparent that after the plaintiff found herself in this graveled area, in order to get to another location she had to traverse the graveled area. The implication in this case is that the plaintiff should have sat down and waited to be extricated once she realized that she was on a surface of loose rocks, gravel, and dirt. It is not unreasonable to require a landowner to make reasonably safe an area that is open for use by the general public.
For these reasons, I believe a genuine issue of material fact exists as to whether, at the moment the incident occurred, Lowery consciously appreciated the danger posed by the gravel. This case is like McClendon. The summary judgment in this case was properly reversed and the case properly remanded by the Court of Civil Appeals for a jury to determine whether Lowery appreciated *164 the danger of Mountain Top's graveled premises.
Therefore, I would affirm the judgment of the Court of Civil Appeals. I agree with that court that a genuine issue of material fact existed as to whether, at the time of the incident, Lowery appreciated the known danger.
[1] The text of the trial court's order is as follows:
"1. Summary Judgment is granted in favor of the Defendant, Janie Terrell, by consent of all parties and said Defendant is no longer a party to this ... action.
"2. Defendant's Motion for Summary Judgment as to Mountain Top Indoor Flea Market and all other parties is granted based upon the pleadings, depositions, and other evidence presented to Court which show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
"The Court finds that the Plaintiff in deposition testified that she had observed the general area in which she was walking and specifically the rocks both small and large covering the area. Plaintiff further testified that she knew that rocks could be slippery and that she needed to be careful and thus was `taking small steps in order to try to avoid slipping on the loose rocks.'
"Plaintiff testified that the `precautions' were not enough to keep her from falling, and that she fell when the rocks shifted. The Court specifically finds that the Plaintiff (1) had knowledge of the existence of the dangerous condition if in fact the condition is considered dangerous, and (2) with appreciation of such danger, she (3) failed to exercise care for her own safety by putting herself in the way of such known danger. An invitor is not liable for injuries to an invitee resulting from a danger which was know to the invitee [and] which the invitee should have observed through the exercise of reasonable care.
"For the above reasons Summary Judgment is GRANTED ...."
(C.R.177.)
The trial court's order was probably based upon the testimony of the plaintiff, in deposition, which reads:
"Q. Describe for me the area in which the fall occurred.
"A. It was real, had lots of rocks and loose dirt and gravel.
"Q. I take it you observed this before you fell?
"A. Yes, sir.
(C.R.76.)
"Q. Before you walked through that area, did you have any judgment about what was in the area that you were going to be walking through?
"A. Just loose rocks.
"Q. You knew that it was not a paved area?
"A. Yes, sir.
"Q. You knew that it had loose rocks in there?
"A. Yes, sir."
(C.R.91.)
"Q. You've walked on other places at other times that have loose dirt or gravel, haven't you?
"A. Yes, sir.
"Q. You know that they can be slippery and rocks can move, don't you?
"A. Yes, sir.
"Q. So it wasn't a surprise to you that these rocks had moved?
"MR. HUNTER: Object to the form.
"Q. I mean, if you walk on loose dirt or gravel, that can happen?
"A. I take extra precautions when you do that. You don't walk as fast. You go slower.
"Q. Well, were you taking those precautions on this
"A. Yes, sir. [cont'd]
"Q. And what were you doing in taking those precautions?
"A. I was taking smaller steps.
"Q. And that was because why?
"A. Of the loose gravel.
"Q. So you were taking those precautions so that you wouldn't slip on the loose gravel?
"A. Yes, sir."
(C.R.94-95.)
"Q. But you recognized there was gravel... in that area and that you needed to be careful?
"A. Yes, sir.
"Q. And so you were taking small steps in order to try to avoid slipping on the loose rocks?
"A. Yes, sir."
(C.R.96.) | May 2, 1997 |
c1b68bd3-b475-4374-9333-5218d656f04f | First Commercial Bank v. Spivey | 694 So. 2d 1316 | 1951862, 1951872 | Alabama | Alabama Supreme Court | 694 So. 2d 1316 (1997)
FIRST COMMERCIAL BANK
v.
Sheryl SPIVEY.
Curtis SPIVEY III
v.
FIRST COMMERCIAL BANK.
1951862, 1951872.
Supreme Court of Alabama.
May 9, 1997.
*1318 Roderick K. Nelson, Robert S. Lamar, Jr., and Lynn B. Randall of Lamar, Nelson & Miller, P.C., Birmingham, for Appellant/Cross Appellee First Commercial Bank.
J. Gusty Yearout, William R. Myers, and John G. Watts of Yearout, Myers & Traylor, P.C., Birmingham; and Perryn G. Carroll of Carroll & Carroll, P.C., Birmingham, for Appellee Sheryl Spivey and Appellant Curtis Spivey III.
HOUSTON, Justice.
The defendant, First Commercial Bank, appeals from a judgment entered on a $1,000,000 jury verdict ($500,000 in compensatory damages and $500,000 in punitive damages) for one of the plaintiffs, Sheryl H. Spivey. Sheryl Spivey's husband, Curtis T. Spivey III, also a plaintiff, cross appeals from the denial of his motion for a new trial. The Spiveys sought damages based on allegations of breach of contract and fraud. The jury found for Sheryl Spivey, awarding $1,000,000, but found against Curtis Spivey. The trial court entered a judgment on the verdict. We affirm, both as to the appeal and as to the cross appeal.
This is the second time these parties have been before this Court. See Spivey v. First Commercial Bank, 681 So. 2d 120 (Ala.1995) (Spivey I), for a more complete understanding of the history of this litigation. In that opinion, we affirmed the judgment for First Commercial in part; however, we reversed that portion of the judgment based on a jury verdict for First Commercial, and we remanded the case for a new trial on the Spiveys' claims. Some of the facts and allegations pertinent to this appeal were summarized in that opinion as follows:
681 So. 2d at 121-22. (Emphasis in original.)
Other evidence presented at the second trial, viewed in the light most favorable to Sheryl Spivey, indicated the following: The Spiveys used the available funds from their construction line of credit after being falsely told by a representative of First Commercial, Don Garvick, that the bank would take care of the apparent shortfall in construction funds caused by the disbursement of those funds to satisfy the business debts of Curt's Cars, Inc., and Curtis Spivey. In reliance on Garvick's representations that everything would be taken care of, the Spiveys renewed the note on May 20, 1991. The disbursement of funds from the Spiveys' construction line *1320 of credit to satisfy the business debts of Curt's Cars, Inc., and Curtis Spivey ultimately had an adverse impact on Curtis Spivey's automobile business, and it eventually led to the bank's foreclosure of the mortgage securing the May 20, 1991, note. Because of the reduction in their construction line of credit, the Spiveys were forced to divert money from Curtis Spivey's business in an attempt to weatherproof their partially constructed house before it was damaged. This led to the demise of the business and the loss of the Spiveys' primary source of income. The Spiveys eventually filed for bankruptcy protection; Curtis Spivey lost his business and both he and his wife lost their real property, including their old house, the new one under construction, and approximately 21 acres of land. During this period, the Spiveys were under pressure by creditors and Sheryl Spivey was required to go back to work to help support her husband and three children.
The following issues are presented by First Commercial in its appeal:
1) Whether the trial court erred in refusing to enter a judgment for First Commercial as a matter of law on the ground that there was insufficient evidence that First Commercial's actions proximately caused the damage claimed by Sheryl Spivey;
2) Whether the trial court erred in refusing to enter a judgment for First Commercial as a matter of law on the ground that Sheryl Spivey had waived her claims for damages;
3) Whether the trial court erred in refusing to grant First Commercial a new trial on the ground that after closing arguments additional verdict forms were prepared and submitted to the jury;
4) Whether the trial court erred in refusing to order a reduction of the $500,000 compensatory damages award;
5) Whether the trial court erred in refusing to order a reduction of the $500,000 punitive damages award.
The cross appeal involves a single issue: Whether the trial court erred in denying Curtis Spivey's motion for a new trial on the ground that the court had improperly admitted evidence indicating that he had orally agreed with First Commercial to pay his business debts with the proceeds from the construction loan.
We will address these issues seriatim.
First Commercial contends, as to its first issue, that there was insufficient evidence of proximate cause to submit Sheryl Spivey's fraud claim to the jury. First Commercial argues that the Spiveys mismanaged their money and that that mismanagement, not any fraud on its part, was the proximate cause of the financial losses and emotional distress Sheryl Spivey claimed.
Proximate cause is an essential element of a fraud claim. City Realty, Inc. v. Continental Casualty Co., 623 So. 2d 1039 (Ala.1993). Therefore, it was necessary for Sheryl Spivey to present sufficient evidence to allow the jury to reasonably conclude that First Commercial's actions had proximately caused the financial losses and emotional distress she alleged. After carefully examining the record, we agree with First Commercial that there was considerable evidence suggesting that the Spiveys had mismanaged their personal finances and that the mismanagement may have contributed to their financial plight. However, the record also contains evidence, including the testimony of the Spiveys' certified public accountant, Dennis Cameron, indicating that the Spiveys were in good enough financial shape before the improper disbursement of the construction loan proceeds to meet their obligations to their creditors. Although the evidence regarding this element of Sheryl Spivey's fraud claim was in dispute, it was, when viewed in the light most favorable to Sheryl Spivey, sufficient to allow the jury to find that First Commercial's actions had set in motion the chain of events that ultimately led to the damage she claimed.
Citing various cases, First Commercial also contends, as to its second issue, that it was entitled to a judgment as a matter of law because Sheryl Spivey, after she and her husband had learned that the bank had disbursed part of those funds to pay his business debts, used the available funds from the construction line of credit and because *1321 Sheryl Spivey signed the renewal note on May 20, 1991. First Commercial's basic argument is that Sheryl Spivey waived her breach of contract and fraud claims by spending the construction funds and by acknowledging in writing her liability under the note. We note, however, that there was evidence indicating that the Spiveys used the construction loan proceeds only after informing Garvick that the bank had improperly disbursed part of those funds and only after being told by Garvick that the bank would take care of any shortfall in construction funds. There is also evidence indicating that the Spiveys signed the May 20, 1991, renewal note in reliance on Garvick's statements that the misunderstanding surrounding the use of the construction loan proceeds would be taken care of. Whether Sheryl Spivey intended to relinquish her legal rights against the bank by using the remaining construction funds after learning of the bank's disbursement of some of those funds or by signing the May 20, 1991, renewal note was a question for the jury. First Commercial apparently recognized this, because it did not move for a directed verdict on this ground; of course, moving for a directed verdict was a prerequisite to challenging the sufficiency of the evidence on appeal. Barnes v. Dale, 530 So. 2d 770 (Ala.1988). Instead, First Commercial requested, and was granted, an instruction on the defense of waiver. The jury obviously rejected this defense. We find no merit in this contention.
With respect to First Commercial's third issuewhether it was entitled to a new trial on the ground that after closing arguments additional verdict forms were prepared and submitted to the jurythe complaint indicates that both of the Spiveys claimed damages based on allegations of wrongful conduct by First Commercial. Evidence was introduced at the trial pertaining to First Commercial's dealings with both Curtis Spivey and Sheryl Spivey and, although the parties' requested jury instructions make references to "plaintiff" and "plaintiffs," nothing in those requested jury instructions reasonably suggests that Sheryl Spivey's recovering under her claims was in any way dependent upon Curtis Spivey's recovering under his claims. (In fact, this Court specifically held in Spivey I, supra, that the evidence would not support an instruction to the jury that Curtis Spivey had acted as his wife's agent in their dealings with First Commercial. See 681 So. 2d at 123.) Based upon the complaint, the evidence presented during the trial, and the verdict forms proposed by the Spiveys, the trial court prepared verdict forms for submission to the jury. Those verdict forms referred to the Spiveys collectively as the "plaintiffs" and did not specifically state that the jury could find for Sheryl Spivey without finding for Curtis Spivey, or vice versa.
After closing arguments were concluded on Friday, March 15, 1996, the trial court instructed the jury that the "plaintiffs" sought to recover damages based on allegations of breach of contract and fraud. It further instructed the jury as follows:
Immediately following the trial court's instructions, but before the case was submitted to the jury, the Spiveys requested that the trial court clarify to the jury that it could find for Sheryl Spivey without also finding for Curtis Spivey, or vice versa. The trial court declined this request and told the jury that it would not begin its deliberations until the following Monday morning. On Monday, before the case was submitted to the jury, the Spiveys requested that the trial court submit to the jury additional verdict forms that would clearly indicate that the jury could make a finding for one of them without making a corresponding finding for the other. The Spiveys requested, in the alternative, that the trial court instruct the jury that it could modify the verdict forms as needed if it found that only one of the Spiveys was entitled to recover. There was some dispute at that time as to whether the Spiveys' attorneys had agreed on Friday to the verdict forms prepared by the trial court. After reconsidering its earlier ruling, the trial court agreed to provide additional verdict forms to the jury. The following colloquy between the trial court and the attorneys then took place:
First Commercial did not object to the jury instructions that the trial court had given on Friday, and it did not request to reopen closing arguments or otherwise explain to the trial court exactly how it would have argued its case differently if it had known that the jury would be provided with the additional verdict forms. In giving the new verdict forms to the jury, the trial court explained:
First Commercial contends that it relied on the original verdict forms that were prepared by the trial court and that it focused its closing argument almost exclusively on the claims made by Curtis Spivey. Relying on Smitherman v. Beavers, 628 So. 2d 594 (Ala.1993), First Commercial argues that it was prejudiced by the submission of the additional verdict forms because, it says, until that point it had not anticipated that the jury would have the option of finding in favor of one of the Spiveys without finding for the other. We find this contention unpersuasive.
First Commercial is correct that Rule 51, Ala.R.Civ.P., requires that the parties be informed before closing arguments of the jury instructions the trial court intends to give. Jury instructions cannot be materially modified by the trial court after closing arguments so as to prejudice a party in the case. See Smitherman, supra, wherein this Court found prejudicial error when the jury was charged on the sudden emergency doctrine after a requested instruction on that doctrine had been refused and after neither party's attorney had mentioned the doctrine in his closing argument. It is equally established, however, that the trial court has the responsibility to give the jury instructions and verdict forms that will allow it to adequately respond to the evidence and the issues presented. Dardess v. SouthTrust Bank, 555 So. 2d 746 (Ala.1989). We conclude from our review of the record that the trial court acted properly in providing the jury the additional verdict forms and in giving the instructions explaining those forms.
The record indicates that in their complaint both Curtis Spivey and Sheryl Spivey stated claims for damages based on allegations of wrongful conduct directed by First Commercial toward each of them; that evidence pertaining to each plaintiff's claims was presented; that the requested jury instructions submitted by the parties did not reflect an understanding that Sheryl Spivey's claims were dependent upon Curtis Spivey's claims; and that following closing arguments the trial court instructed the jury that the "plaintiffs" were seeking damages. Under these circumstances, we conclude that there was no violation of Rule 51. First Commercial made a tactical decision, based on the wording of the initial verdict forms, to focus its closing argument on Curtis Spivey's claims. It did so with full knowledge that the pleadings and the evidence presented claims by both of the Spiveys and with full knowledge that this Court, in its opinion in Spivey I, supra, had held that it was not entitled to a jury instruction on agency (i.e., an instruction that Curtis Spivey was acting as an agent for Sheryl Spivey in his dealings with First Commercial). The trial court instructed the jury on Friday that both of the Spiveys ("the plaintiffs") were presenting claims for damages. These instructions were taken in part from the requested jury instructions submitted by the parties and they indicate that the trial court did not understand those requested instructions to suggest that Sheryl Spivey's claims were derivative of Curtis Spivey's claims. First Commercial did not object to the trial court's initial instructions; it objected only to the additional verdict forms and the accompanying explanatory instructions. It should not have come as a surprise to First Commercial, however, that the trial court corrected itself and agreed to submit the additional verdict forms along with explanatory instructions, especially after the trial court had instructed the jury that both Curtis Spivey and Sheryl Spivey sought to recover damages based on allegations of wrongful conduct directed at each of them. In any event, Rule 51 was complied with in this case. First Commercial should have been aware before its closing argument that Sheryl Spivey's claims were not derivative in nature. The trial court's instructions on Monday, which merely explained the nature of the additional verdict forms, were entirely consistent with the instructions *1325 that the trial court had given on Friday. The trial court was duty-bound to provide the jury with verdict forms that would allow it to adequately respond to the evidence and the issues presented. Dardess, supra; Whitmore v. First City National Bank of Oxford, 369 So. 2d 517 (Ala.1979).
First Commercial further contends that the trial court erred in refusing to reduce the $500,000 compensatory damages award. The evidence indicated, however, that First Commercial's fraudulent conduct cost Sheryl Spivey the primary source of income for her and her family, as well as her equity interest in the Spiveys' two houses and the land on which they were constructed. The old house and the land (approximately 21 acres), which were not encumbered by a mortgage before the transaction made the basis of this action, were valued at approximately $117,000. The evidence also indicated that Sheryl Spivey was humiliated and embarrassed as a result of the family's financial problems, which eventually led to the Spiveys' filing a personal bankruptcy petition. Sheryl Spivey testified that her life had been turned upside down by First Commercial's actions:
After examining the record, we conclude that most of the compensatory damages award, perhaps as much as $450,000, could have been composed of damages for emotional distress. It is settled, of course, that when a court assesses the question of excessiveness of compensatory damages the focus is on the plaintiff. A court reviewing a verdict for compensatory damages must determine what amount a jury, in its discretion, may award, viewing the evidence from the plaintiff's perspective. A trial court may not substitute its judgment for that of the jury when the jury has returned a compensatory verdict that is supported by the record. A trial court may not conditionally reduce a jury verdict merely because it believes the verdict overcompensates the plaintiff. See Pitt v. Century II, Inc., 631 So. 2d 235, 239 (Ala.1993). There is no fixed standard for ascertaining the amount of compensatory damages that may be awarded for emotional distress. The determination of how much to award is left to the sound discretion of the jury, subject only to review by the court for a clear abuse of that discretion. Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So. 2d 260 (1975). After carefully reviewing the evidence, we find no abuse of discretion on the jury's part in this case. Although the evidence indicated that Sheryl Spivey may have lost at least $58,500 in equity in her old house and land, the jury apparently found that Sheryl Spivey had also suffered significant emotional distress as a result of First Commercial's actions. We cannot hold that the evidence would not support such a finding. In this respect, we find this case materially indistinguishable from Duck Head Apparel Co. v. Hoots, 659 So. 2d 897 (Ala.1995) (upholding compensatory awards of $2,000,000; $1,000,000; and $500,000 for emotional distress suffered by three sales representatives defrauded out of their sales commissions); and Sperau v. Ford Motor Co., 674 So. 2d 24 (Ala.1995), judgment vacated, ___ U.S. ___, 116 S. Ct. 1843, 134 L. Ed. 2d 945 (1996) (upholding compensatory award of $500,000 for emotional distress suffered by owner of a failed Ford dealership as a result of fraud perpetrated by Ford).
As to First Commercial's contention that the trial court erred in refusing to reduce the punitive damages award, we note that we have reviewed the award based on the pertinent factors set out in Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), and BMW of North America, Inc. v. Gore, 517 U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). Given the overall reprehensibility of First Commercial's actions and the effect those actions had on Sheryl Spivey and her family, we cannot conclude that the one-to-one ratio of compensatory damages ($500,000) to punitive damages ($500,000) present in this case is unconstitutionally excessive.
On his cross appeal, Curtis Spivey contends that the trial court erred in allowing Don Garvick to testify that Curtis Spivey and Garvick had an oral agreement that First Commercial could use part of the proceeds from the construction loan to satisfy Curtis Spivey's business debts. Curtis Spivey argues that Garvick's testimony should have been excluded under the parol evidence rule. First Commercial argues that the parol evidence rule was not a bar to Garvick's testimony, which, First Commercial says, was relevant in its attempt to disprove Curtis Spivey's fraud claim.
The applicability of the parol evidence rule necessarily rests upon the existence of a valid written instrument that completely and accurately expresses the obligations assumed by or imposed upon the parties. The very purpose of the parol evidence rule is to protect the verity of such an instrument. As noted by this Court in Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So. 2d 431, 434 (Ala.1979), quoting Sellers v. Dickert, 185 Ala. 206, 213, 64 So. 40, 43 (1913), "[t]he implication, at least, is that the executed writing contains all stipulations, engagements and promises the parties intend to make or to assume, and that all previous negotiations, conversations, and parol agreements are merged in the terms of the instrument." In other words, the parol evidence rule does not apply to every contract of which there exists written evidence; *1327 it applies, instead, only when the parties to an agreement reduce it to writing, and agree or intend that the writing shall be their complete agreement. Biernbaum, supra, at 434, citing 3 Williston, Contracts, § 633. As a general proposition, therefore, the parol evidence rule applies to contract actions, not actions in tort. Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746 (Ala. 1990). Curtis Spivey alleged that he had a construction loan agreement with First Commercial and that First Commercial had breached that agreement. However, he also alleged, in the alternative, that he had been fraudulently induced into executing a document that purported to be, but was not, an agreement providing solely for construction funds. By its very nature, his fraud claim presumed, and, in fact, was dependent on, the invalidity of the construction loan agreement. Contrary to his contentions, it makes no difference here that First Commercial, not Curtis Spivey, sought to introduce the parol evidence. As far as his fraud claim was concerned, there was no written instrument requiring the protection of the parol evidence rule. The trial court did not err in admitting Garvick's testimony into evidence on the question whether First Commercial had fraudulently induced Curtis Spivey into executing the construction loan documents.
For the foregoing reasons, the judgment entered on the jury verdict is affirmed.
1951862AFFIRMED.
1951872AFFIRMED.
ALMON, SHORES, and COOK, JJ., concur.
BUTTS, J., concurs specially.
MADDOX and SEE, JJ., concur in the result.
HOOPER, C.J., concurs in part and dissents in part.
BUTTS, Justice (concurring).
I concur. However, I write to note that once again this Court has applied the United States Supreme Court's opinion in BMW of North America, Inc. v. Gore, 517 U.S.___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), without addressing the primary issue raised by the Supreme Courthow a defendant may be assured of adequate notice of the conduct that will subject him to punishment and adequate notice of the severity of the punishment he might expect for such conduct. See my dissent in Foremost Ins. Co. v. Parham, 693 So. 2d 409 (Ala.1997).
MADDOX, Justice (concurring in the result).
I concur in the result of the opinion, but I am constrained to point out that it is difficult for me to do so in view of the fact that on the first appeal of this case I strongly felt that the plaintiffs were not entitled to the new trial that ultimately resulted in the judgments the Court is now reviewing.
This is the second time this case has been here. In the first appeal, Spivey v. First Commercial Bank, 681 So. 2d 120 (Ala.1995), a jury had found for the defendant and a judgment had been rendered in favor of the defendant on that jury verdict. This Court, on June 24, 1994, initially affirmed that judgment, without writing an opinion, and on July 29, 1994, this Court also overruled the plaintiffs' request for a rehearing; however, on August 16, 1994, a majority of this Court, on its own motion, granted a rehearing, withdrew its no-opinion orders, and wrote an opinion in which it granted the Spiveys a new trial. Three Justices dissented from that portion of the opinion ordering a new trial.[1]
In view of the fact that I was so convinced that under Alabama law the plaintiffs were not entitled to a new trial, I was almost compelled to dissent in this case, in which *1328 one of those plaintiffs was awarded a total of $1 million; however, as I stated in another case with a similar procedural history, a majority of this Court, as it was then constituted, granted the plaintiffs' request for a new trial and the plaintiffs thereby became "entitled to a review of the new trial without regard to my dissenting views on the first appeal." Black Belt Wood Co. v. Sessions, 514 So. 2d 1249, 1257 (Ala.1986) (Maddox, J., concurring specially).
HOOPER, Chief Justice (concurring in part and dissenting in part).
Before closing arguments were made in this case, the trial court prepared verdict forms that collectively referred to Curtis Spivey and Sheryl Spivey as "the plaintiffs," and after closing arguments had been completed, the jury was instructed in accordance with those forms. The Spiveys then requested that the trial court clarify its instructions. The Spiveys requested that the trial court inform the jury that it could rule in favor of either of the plaintiffs individually without finding for them together. The trial court refused the request. The following day of trial, before jury deliberations began, the Spiveys requested that the trial court submit to the jury additional verdict forms indicating that the jury could find for the Spiveys collectively or individually. The trial court agreed to this request. The attorneys for First Commercial objected, arguing:
The majority concludes that there was no violation of Rule 51, Ala. R. Civ. P., because the additional verdict forms were not inconsistent with the instructions previously given to the jury and because the trial court was obligated to provide verdict forms that allowed the jury to perform its duties. Rule 51 states:
First Commercial argues that Rule 51 was violated by the trial court's decision, after closing arguments had been made, to give the jury additional verdict forms, where the previous jury instructions had merely referred to the plaintiffs collectively. I agree. This Court stated in Smitherman v. Beavers, 628 So. 2d 594, 595 (Ala.1993):
(Citations omitted.) The Smitherman Court concluded that the plaintiffs in that case were prejudiced as a result of the trial court's decision, after closing arguments had concluded, to instruct the jury on the "sudden emergency doctrine." In today's case, before closing arguments, the trial court, without objection, provided each party with the general verdict forms it intended to give the jury. After closing arguments and after the original instructions were given to the jury, the trial court, at the request of the Spiveys, altered its instructions so that the jury could find for the Spiveys individually.
I believe this change substantially prejudiced First Commercial. Because of the proposed instructions and forms, First Commercial focused its closing arguments on the actions of Curtis Spivey; the evidence presented at trial had focused on his actions. First Commercial argues that its closing argument would have differed materially if it *1329 had known that individual verdict forms would be submitted to the jury. The majority calls First Commercial's decision to focus on Curtis Spivey's actions a tactical decision. That it was, but it was a tactical decision based on what it believed the trial court was going to submit to the jury. This change, after the conclusion of closing arguments, violated Rule 51 and constituted reversible error.
Therefore, I respectfully dissent from this Court's holding with regard to Sheryl Spivey. However, I concur with this Court's holding as to Curtis Spivey, in spite of the violation of Rule 51. The jury found for First Commercial on the claims brought by Curtis Spivey; therefore, as to his claims, the violation of Rule 51 was harmless error.
[1] See, Spivey v. First Commercial Bank, 681 So. 2d 120, 124 (Ala.1995) (Butts, J., concurring, in part and dissenting in part, joined by Maddox and Houston, JJ.). The initial trial was videotaped, and the videotape record did not indicate that the plaintiffs had objected to the failure of the trial court to instruct the jury on the Statute of Frauds, which formed the basis for the reversal of the judgment and the award of a new trial. The three dissenting Justices were of the view that the issue upon which the Court granted a new trial "[was] not properly before this Court for review." 681 So. 2d at 124. | May 9, 1997 |
2924cc23-be24-4d33-b7eb-c9cd68f596a7 | Ex Parte Gaddy | 698 So. 2d 1150 | 1950925 | Alabama | Alabama Supreme Court | 698 So. 2d 1150 (1997)
Ex parte Richard Eugene GADDY.
(Re Richard Eugene Gaddy v. State).
1950925.
Supreme Court of Alabama.
April 18, 1997.
Rehearing Denied June 20, 1997.
*1151 William K. DelGrosso, Birmingham, for petitioner.
Bill Pryor, atty. gen., and P. David Bjurberg, asst. atty. gen., for respondent.
ALMON, Justice.
Richard Eugene Gaddy was convicted of capital murder, committed during the course of a robbery, and was sentenced to death. The Court of Criminal Appeals affirmed his conviction and sentence. Gaddy v. State, 698 So. 2d 1100 (1995). We have granted his petition for certiorari review. The facts of this case are adequately stated in the opinion of the Court of Criminal Appeals. After reviewing the record, the briefs of the parties, and the opinion of the Court of Criminal Appeals, we affirm.
Gaddy argues that the State failed to establish a proper predicate for the admission of an extrajudicial confession. The rule is that "`[e]xtrajudicial confessions are prima facie involuntary and inadmissible, and [that] the burden is on the State to prove that the confession was made voluntarily.'" Ex parte Matthews, 601 So. 2d 52, 53 (Ala. 1992) (quoting from Ex parte Callahan, 471 *1152 So. 2d 463, 464 (Ala.1985)). To have the confession admitted into evidence, the State had to establish that the statement was made voluntarily. Ex parte Singleton, 465 So. 2d 443, 445 (Ala.1985).
Gaddy claims that the State failed to make a prima facie showing that the confession was voluntarily made, and thus that it did not overcome the general presumption against the admissibility of confessions. Gaddy correctly notes that the State had to prove that no one present at the interrogation improperly induced or coerced him into giving a confession. Ex parte Weeks, 531 So. 2d 643, 645 (Ala.1988); Bennefield v. State, 281 Ala. 283, 287, 202 So. 2d 55, 59 (1967). In Weeks, the Court described the predicate the State must lay for the admission of a confession:
531 So. 2d at 645. However, the Court did not hold in Weeks that the only ways to lay the necessary predicate are as Gaddy suggests namely, that the State either have one of the participants in the interrogation testify that no one in the room coerced or induced the confession or have all of the persons present in the room testify in court (although these ways are clearly the better practice). Rather, the State may meet its burden of proving lack of coercion or inducement by a variety of means, depending on the facts of the case. Griffin v. State, 500 So. 2d 83, 90-91 (Ala. Crim.App.1986); see Butler v. State, 646 So. 2d 689, 690 (Ala.Crim.App.1993) (to meet the burden of proof, "it is not necessary that every person who was present when a statement was made testify that it was made voluntarily").
In this case, the State met its burden in two ways: through questions to the lead interrogating officer and through its introduction of the signed and initialed Miranda statements. Gaddy claims that the prosecutor failed to specifically ask the lead interrogator, Officer George Booth, of the Saluda Law Enforcement Division (SLED), if the other participants in the interrogation coerced or induced Gaddy into confessing. However, this argument elevates form over substance, in light of Officer Booth's testimony:
(Emphasis added.) Booth's use of the plural "we" and his use of the phrase "there was no coercion, no threats, no promises of reward, or hope for reward," were sufficient to allow the court to conclude that no one present at the interrogation had attempted to induce or intimidate Gaddy into confessing.
As further support for its position, the State introduced forms containing Gaddy's sworn written confessions and a waiver of rights form, all of which were signed and initialed by Gaddy. The waiver-of-rights form contained the following statements:
(Emphasis added.) The last paragraph of Gaddy's first written confession, which was specifically initialed by Gaddy, stated the following:
The second signed statement, made by Gaddy the day following his arrest, included the following statement, which was also specifically initialed by Gaddy:
Through these waiver forms, the State made a prima facie showing that Gaddy agreed, when making the confession, that none of the persons involved in taking the confession had induced him to make it. In fact, the statement in the first confession specifically lists all three of the persons present at the interrogation.
When the confession was offered into evidence, Gaddy did not object on the basis that the State had not laid a proper predicate; however, we must still review the circuit court's ruling admitting the confession, for plain error. Rule 39(k), Ala.R.App.P.; Ex parte Coral, 628 So. 2d 1004, 1006 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S. Ct. 1387, 128 L. Ed. 2d 61 (1994). Booth's answer to the State's question ("No sir, we didn't [promise him anything]"), buttressed by the signed waiver forms and confessions, presented the circuit court with sufficient evidence from which it could conclude that the prosecution had made a prima facie showing that no one involved in the interrogation had induced or coerced Gaddy into confessing. We therefore hold that the circuit court did not err to reversal in concluding that the State had made an adequate initial showing that the extrajudicial confession was made voluntarily.
As a further challenge to the circuit court's holding that the the State made a showing of voluntariness sufficient to support the admission of the confession into evidence, Gaddy argues that the lead interrogating officer, Officer Booth, induced him to confess. Officer Booth told Gaddy, before Gaddy confessed, that he would tell the court of Gaddy's cooperation if he confessed to the murder. Gaddy contends that this statement alone was enough to render the subsequent confession involuntary.
This Court, in Ex parte Weeks, stated the test for determining whether a confession is voluntary:
531 So. 2d 643, 644 (Ala.1988) (quoting an earlier case of this Court). To make a confession involuntary, an interrogator's statement must be stronger than one that just "convey[s] the idea to [a suspect] that it would be best or better to tell the truth if he made a statement." Wallace v. State, 290 Ala. 201, 206, 275 So. 2d 634, 638 (1973).
However, when reviewing statements made by police officers, the court does not review them in a vacuum; in each case, the court must analyze the confession by looking at the totality of the circumstances. Ex parte Matthews, 601 So. 2d 52, 54 (Ala.1992), cert. denied, 505 U.S. 1206, 112 S. Ct. 2996, 120 L. Ed. 2d 872 (1992). Taken by itself, Officer Booth's statement could be interpreted as an inducement. Officer Booth stated the following to the court, in a sworn statement given by telephone:
While a statement that taken literally appears to make a promise can make a confession involuntary, it does not necessarily do so, unless the evidence shows that the statement "operat[ed] to produce in the mind of the prisoner apprehension of harm or hope of favor." Weeks, 531 So. 2d at 644. The Court of Criminal Appeals explained this concept in Jackson v. State, 562 So. 2d 1373, 1385-86 (Ala.Crim.App.1990) (quoting from 23 C.J.S. Criminal Law § 906 (1989)):
The key to our analysis of promises or inducements is to determine whether those promises or inducements actually caused the confession, not just whether the promises or inducements were made by the officer. However, in its opinion affirming Gaddy's conviction, the Court of Criminal Appeals states too broadly that a confession should not be excluded unless the evidence shows that the interrogator "bargained with" the defendant for the confession. 698 So. 2d at 1113. While the use of the word "bargain" may be helpful in determining whether a confession was voluntary, it could also confuse some into thinking that some sort of protracted negotiation is needed to make a confession involuntary. This Court stated in Matthews:
601 So. 2d at 54 (emphasis added). One statement by an interrogator can render a confession involuntary, if that statement actually induces or causes the defendant to confess. See Weeks, 531 So. 2d at 644. Therefore, we expressly disapprove of the test used by the Court of Criminal Appeals, that an interrogator's statement renders a confession involuntary only where it is shown that the interrogator "bargained with" the defendant.[1]
Determining whether the statement induced the confession brings into play the totality-of-the-circumstances test. This test requires a court to consider a wide variety of factors when determining whether a confession was voluntary:
Jackson, 562 So. 2d at 1380-81 (citations omitted). Included in the analysis of the totality of the circumstances are such things as the defendant's education and intelligence (Arnold v. State, 348 So. 2d 1092 (Ala.Crim. App.), cert. denied, 348 So. 2d 1097 (Ala. 1977)), and whether the defendant was intoxicated or under the influence of a narcotic at the time of the confession (Boggan v. State, 455 So. 2d 228 (Ala.Crim.App.1984)).
We agree with the Court of Criminal Appeals that the circuit court had before it sufficient evidence to reasonably find that Gaddy's confession was voluntarily given. Gaddy himself initiated the conversation about the murder, through his response to Officer Booth's question about how Gaddy came into possession of the victim's automobile. Booth testified in the pre-trial interview on the telephone as to the following exchange:
The officer did not tell Gaddy that failure to confess would be damaging to his case or that his sentence would be reduced if he confessed; he merely told him that he would not have a problem telling the court that Gaddy was cooperative in the interrogation. Gaddy claims that, like statements considered in Weeks and in Womack v. State, 281 Ala. 499, 205 So. 2d 579 (1967), Officer Booth's statement carried the obvious implication that if Gaddy confessed he would get a lighter sentence or the court would be lenient. However, Officer Booth's statement is distinguishable from the statements in Weeks and Womack because, in each of those earlier cases, the Court held not only that the police officer made the statement with the intent to induce a confession, but also that the defendant was thereby induced to confess. Weeks, 531 So. 2d at 644; Womack, 281 Ala. at 506, 205 So. 2d at 589.[3] Conversely, in this case, the State presented sufficient evidence to support the circuit court's finding that the statement by Officer Booth did not cause Gaddy to confess to the murder or to think that he would receive a lighter punishment if he did confess.
Gaddy did not object to the admission of the confession on the ground of improper inducement; nevertheless, because Gaddy received the death penalty, we review the proceedings of the circuit court for "plain error." Rule 39(k), Ala.R.App.P. After reviewing the circumstances surrounding the confession, we hold that the circuit judge did not commit *1156 plain error in determining that Gaddy's confession was voluntarily given.[4]
Gaddy further argues that the circuit judge improperly instructed the jury that he had already determined that the confession was voluntary. The entirety of the circuit judge's instruction on this subject follows:
(Emphasis added.) Gaddy quotes the emphasized portion of the instruction as support for his assertion that the circuit judge's instruction was erroneous.
The law concerning how the voluntariness of a confession is determined was properly outlined by Justice Lawson in Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965). That case was this Court's first response to the mandate of the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), that trial judges make a determination, outside the presence of the jury, on the voluntariness of a defendant's confession. In Duncan, this Court adopted the "orthodox procedure" for determining whether a confession was voluntary. Justice Lawson described that procedure as follows:
Duncan, 278 Ala. at 165, 176 So. 2d at 859 (emphasis added).
Justice Shores, in Ex parte Singleton, 465 So. 2d 443 (Ala.1985), further clarified this concept of bifurcating the determination of voluntariness of a confession:
Singleton, 465 So. 2d at 446. (Emphasis omitted.) Thus, for more than 30 years Alabama has had an established procedure in effect for determining whether a confession *1157 was voluntary, a procedure that provides a significant role for both the judge and the jury.
Notwithstanding the fact that the trial court does have to make an initial determination of voluntariness, this Court has also held that "[i]t is improper for a trial judge to disclose to the jury that he made a preliminary determination that a confession was voluntary and, therefore, admissible." Singleton, 465 So. 2d at 446. This rule has been reiterated many times by the Court of Criminal Appeals. See, e.g., Aultman v. State, 621 So. 2d 353 (Ala.Crim.App.1992), cert. denied, 510 U.S. 954, 114 S. Ct. 407, 126 L. Ed. 2d 354 (1993); Clark v. State, 621 So. 2d 309 (Ala. Crim.App.1992); Bush v. State, 523 So. 2d 538, 560 (Ala.Crim.App.1988).
In light of these precedents, we agree with Gaddy that this particular instruction was erroneous, because the judge told the jury that he had determined that the confession was voluntary. This error comes from the influence that a statement by the judge, to the effect that he has already determined that a confession was voluntary, may have on the jury; such a statement could cause the jury to assume that the confession was voluntary and thereby to ignore its duty to consider whether the confession was voluntary.
However, because Gaddy did not object to this instruction, we review it only for plain error. Rule 39(k), Ala.R.App.P. As support for his argument that the error constituted plain error, Gaddy cites Bush v. State, supra. In Bush, the Court of Criminal Appeals, with an opinion by Judge Patterson, reversed a conviction in a capital case, based upon a violation of the rule stated in Singleton, supra. The circuit judge in that case instructed the jury as follows:
523 So. 2d at 558 (emphasis added). The Court of Criminal Appeals held that the error caused by the erroneous instruction rose to the level of plain error and thus required a new trial.
We agree with the State that the instruction given in Bush and the one given in this case are distinguishable. Clearly, as Judge Patterson wrote, the circuit judge in Bush committed plain error by specifically charging the jury that it was "not entitled to disregard the Court's admitting [the confession]." Id. at 558. Thus, the judge in Bush, through his instruction, took the issue of voluntariness of the confession away from the jury.[5]
*1158 This case is unlike Bush, because in this case the judge simply charged the jury that he had made an initial determination that the confession was voluntary. Although the judge erred in doing so, he also specifically told the jury that it was to determine the issue of "weight or credibility" of the confession and that it was free to "disregard the defendant's statements which you deem to be unworthy of belief or in which you entertain a reasonable doubt as to its truth." As this Court and the Court of Criminal Appeals have held, if the circuit court makes it clear in its instruction that the jury was "to ultimately determine whether the confession was voluntary," then the error in instructing the jury that the court had already made a determination of voluntariness may be found to be harmless. Singleton, supra, at 446; see Aultman, supra, at 355, and Clark, supra, at 324. The jury was informed that it could disregard Gaddy's confession entirely if it decided to give no weight to the confession or if it found the State's witnesses to be unworthy of belief.
Again, because Gaddy did not object to the giving of the instruction, we review the instruction only for plain error. We strongly reiterate that the instruction given by the judge was erroneous, because a judge should not inform the jury that the judge has already determined the confession to be voluntary. Singleton, supra. In some cases, like Bush, supra, the charge can be so misleading or the circumstances can be such that the error will not be harmless. While we agree with Gaddy that the instruction was partially erroneous, we hold that the error does not rise to the level of "plain error" that would justify a reversal of his conviction.
Gaddy asserts that the circuit court and the State committed other errors; his assertions are outlined in the Court of Criminal Appeals' opinion. However, we find no error in the opinion of that court regarding these remaining issues, and do not think that we could add anything of significance to the rationale offered by that court. As required by Ala.Code 1975, § 13A-5-53, we have reviewed the entire record, including the circuit judge's order, the psychiatric evaluations, and the opinion of the Court of Criminal Appeals upholding the death sentence. This review shows us that the sentence was not the result of any "passion, prejudice, or any other arbitrary factor." § 13A-5-53(b)(1). We conclude that the trial court and the Court of Criminal Appeals properly weighed the mitigating and aggravating circumstances. Finally, we hold that those courts did not err in determining that Gaddy's sentence of death was proper and proportional to the penalty imposed in similar cases. § 13A-5-53(b)(3). Accordingly, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, COOK,[*] BUTTS, and SEE,[*] JJ., concur.
[1] We note that the Court of Criminal Appeals subsequently used this "bargained with" test in another opinion released while Gaddy's certiorari review was pending in this Court. See McLeod v. State, [Ms. CR-95-1280, October 11, 1996] ___ So.2d ___ (Ala.Crim.App.1996).
[2] Officer Booth confronted Gaddy with the fact that he intended to find out about the car through his own investigation. This representation by Officer Booth was appropriate during the interrogation. The Court of Criminal Appeals held in Jackson v. State, 562 So. 2d at 1382, that "[c]onfronting a defendant with evidence of guilt is not coercion on the part of the police and does not render a subsequent confession involuntary." It is equally true that an officer can permissibly tell a defendant that he will find out the truth without a confession, so long as the officer does not indicate that failure to confess will prejudice the defendant in a subsequent trial. See Matthews, 601 So. 2d at 55.
[3] Indeed, in Womack evidence indicated that the sheriff told the defendant, "It will go lighter on you if you make a statement"; this statement by the sheriff necessarily gave the defendant a hope of a favor, in the form of a lighter sentence in exchange for the confession. 281 Ala. at 505, 205 So. 2d at 589.
[4] Another factor that lends credence to the circuit judge's holding that the statement by the police officer did not induce Gaddy to confess is Gaddy's criminal experience. Jackson, 562 So. 2d at 1373. He had previously been convicted of a variety of offenses, from shoplifting to burglary and armed robbery. Because of Gaddy's experience with the criminal justice system, the circuit court could have reasonably found a lower probability that Gaddy was induced into a confession by Officer Booth's comment than if this had been Gaddy's first arrest and interrogation.
[5] We note that the language of this instruction in Bush is similar to the language of C. Gamble, McElroy's Alabama Evidence § 200.02(10) (5th ed.1996), which states the following:
"If the trial judge finds that a confession was not improperly induced, the jury is not permitted to determine whether the judge's action was correct. But, of course, the jury has the right to give no weight to the confession if they think that it is entitled to no credibility."
Gamble cites Roberts v. State, 258 Ala. 534, 538, 63 So. 2d 584, 587 (1953), as support for this proposition. The exact question whether the jury is permitted to consider "whether the judge's action was correct" is not presented here, because the circuit judge did not instruct the jury that it could not disregard his determination that Gaddy's confession was voluntary. Nevertheless, we note that the rule is more correctly stated in Duncan, Singleton, and Bush than in Roberts and McElroy's Alabama Evidence.
[*] Although Justice Cook and Justice See were not present at oral argument, they have listened to the tape of oral argument. | April 18, 1997 |
0677f2a8-f08b-4efc-8c6e-8d474bc6cf2d | Ex Parte Robinson Roofing & Rem., Inc. | 709 So. 2d 444 | 1960679 | Alabama | Alabama Supreme Court | 709 So. 2d 444 (1997)
Ex parte ROBINSON ROOFING & REMODELING, INC.
(Re ROBINSON ROOFING & REMODELING, INC. v. Mike CLAYTON).
1960679.
Supreme Court of Alabama.
October 3, 1997.
Amy M. Shumate, Dothan, for petitioner.
William C. Maddox, Dothan, for respondent.
COOK, Justice.
The defendant, Robinson Roofing & Remodeling, Inc., appealed from the trial court's denial of its Rule 60(b), Ala.R.Civ.P., motion to set aside a default judgment entered against it and in favor of the plaintiff, Mike Clayton. The Court of Civil Appeals affirmed, without an opinion, Robinson Roofing & Remodeling, Inc. v. Clayton (No. 2951297), 696 So. 2d 1097 (Ala.Civ.App.1996) (table). We granted certiorari review. The dispositive issue is whether the trial court abused its discretion in denying the defendant's Rule 60(b)(6) motion. We reverse and remand.
Clayton's complaint alleged breach of contract and fraud. The summons and the complaint were served on Earl Robinson, owner of Robinson Roofing, on December 7, 1994. Upon receiving the summons and the complaint, Earl Robinson, not acting through an attorney, served an answer on the plaintiff's counsel within two weeks; however, he did not purport to file an answer with the court clerk, nor did anyone else file an answer for Robinson Roofing.[1] On January 9, 1995, the *445 plaintiff moved for a default judgment, with a supporting affidavit asserting that the defendant had failed to answer or otherwise to defend against the complaint within 30 days. A default was entered on the same day. On February 1, 1995, a default judgment was entered against Robinson Roofing in the amount of $12,521. Robinson Roofing was not notified of the entry of default or of the default judgment.
On April 14, 1995, the plaintiff served postjudgment interrogatories on the defendant and filed a motion to shorten time for the defendant to answer. The trial court granted the motion on April 21, 1995. On July 5, 1995, the plaintiff filed a motion to compel the defendant to answer the post-judgment interrogatories. On July 10, 1995, the trial court granted the motion. On July 26, 1995, the plaintiff filed a motion for a discovery hearing. The defendant received notice of the discovery hearing; this notice was the defendant's first indication that a default judgment had been entered against it. The defendant then hired an attorney. On August 11, 1995, the defendant, through counsel, filed a Rule 60(b), Ala.R.Civ.P., motion to set aside the default judgment; the motion also sought to quash the order compelling discovery and the order setting a discovery hearing. The defendant asserted that Earl Robinson had served an answer on the plaintiff's counsel, within two weeks of receiving the summons and the complaint, and that it had received no notice of the plaintiff's application for an entry of default. In his brief in opposition to the defendant's motion to set aside the default judgment, the plaintiff argued that because the defendant had not filed an answer with the court clerk, it had failed to defend the lawsuit, and, therefore, that the default judgment was valid. In its response to the plaintiff's opposition brief, the defendant argued that the default judgment should be set aside because of mistake or inadvertence in failing to file the answer with the clerk. On September 26, 1995, the trial court denied the defendant's motion to set aside the default judgment, stating that more than four months had passed since the default judgment was entered, and, therefore, that the court lacked jurisdiction to act under Rule 60(b), Ala.R.Civ.P.
On June 6, 1996, the defendant, through new counsel, filed another Rule 60(b) motion, specifically relying on subsection (b)(6), again requesting that the default judgment be set aside. The basis of the defendant's argument was that the plaintiff's counsel had fraudulently represented to the court that the defendant had failed to respond to the complaint and, therefore, that the four-month limitation applicable to motions pursuant to Rule 60(b)(1), (2), and (3) did not apply. The court denied the motion on June 10, 1996, stating that "this matter has already been argued numerous times."
The defendant asserts that the facts of this case present a situation that would entitle it to relief under Rule 60(b)(6), arguing that it defended against the lawsuit within two weeks after being served the complaint, by sending its written response to the plaintiff's counsel.
The plaintiff asserts that he did not commit fraud on the court during the August 23, 1995, hearing by stating in his affidavit that the defendant had failed to defend against the complaint. However, the plaintiff conceded that the written response sent by Earl Robinson could be deemed an answer, even though it was not filed with the court clerk.
The Court is given wide discretion in reviewing a judgment, and in exercising this discretion we must balance the desire to remedy injustice against the need for finality of judgments. Howell v. D.H. Holmes, Ltd., 420 So. 2d 26 (Ala.1982). Rule 60(b)(6) authorizes a court to set aside a final judgment, when it is necessary to do so in the interest of justice and equity, "for any reason justifying relief," if the reason is not listed elsewhere under Rule 60(b). However, a Rule 60(b)(6) motion to set aside a default judgment must "be made within a reasonable time" after the entry of the judgment. Although Rule 60(b)(6) is an extraordinary remedy and should be used only under extraordinary circumstances to prevent extreme *446 hardship and injustice, it provides a "grand reservoir of equitable power to do justice." Hall v. Hall, 587 So. 2d 1198 (Ala. 1991) (Adams, J., dissenting); see Williams v. Williams, 581 So. 2d 1116 (Ala.Civ.App. 1991). We believe this case presents an extraordinary circumstance that calls for equitable relief.
Based on a review of the record, we conclude that Rule 60(b)(6) is applicable to the facts of this case and that to allow this judgment to stand would be unjust. We have squarely held that a judgment obtained by fraud is absolutely void and that a judgment procured by fraud on the court itself may be set aside by any court, trial or appellate, on its own motion, even after three years. Ex parte Waldrop, 395 So. 2d 62 (Ala. 1981). The plaintiff in this case conceded that the defendant had timely responded to the complaint but had failed to file its response with the court. The defendant took steps to defend against the lawsuit by sending a written response to the plaintiff's counsel within two weeks of being served. Clearly, when the plaintiff's counsel filed an affidavit stating that the defendant had not defended the lawsuit, the plaintiff did not disclose to the court that the defendant had filed a defense with plaintiff's counsel. The default judgment was entered as a consequence of the plaintiff's affidavit.
A party has a duty to take the legal steps necessary to protect its own interests, and the defendant in this case attempted to do so by defending against the lawsuit in the time prescribed by law. Therefore, this case should be resolved on the merits. Furthermore, we conclude that the Rule 60(b)(6) motion was "made within a reasonable time." The default judgment was entered against the defendant on February 1, 1995, and the defendant filed its Rule 60(b)(6) motion on June 6, 1996, well within the three year limitation.
Because we find that this case presents one of the precise circumstances for which we believe equitable relief under Rule 60(b)(6) was preserved, we hold that the trial court abused its discretion in denying the motion. Therefore, we reverse the judgment of the Court of Civil Appeals and remand the case with instructions to reverse the order denying the motion to set aside the default judgment and to remand the case for trial.
REVERSED AND REMANDED.
HOOPER, C.J., and ALMON, SHORES, HOUSTON, and SEE, JJ., concur.
KENNEDY, J., concurs in the result.
MADDOX, J., dissents.
[1] We note that Robinson Roofing & Remodeling, Inc., is a corporation and that a corporation may appear in court only through an attorney. See A-OK Constr. Co. v. Castle Constr. Co., 594 So. 2d 53 (Ala.1992). However, the plaintiff did not raise this issue in the trial court. Had this issue been raised, it would have been within the trial court's discretion to strike the answer and grant the defendant an extension of time for cause, so that an attorney could file an answer on the defendant's behalf with the court clerk. See Rule 6(b), Ala.R.Civ.P. | October 3, 1997 |
dcce3bbb-edb2-4877-96c8-a6d46ddba20b | Ex Parte King | 707 So. 2d 657 | 1951664, 1951700 | Alabama | Alabama Supreme Court | 707 So. 2d 657 (1997)
Ex parte James E. KING.
(Re James E. King v. State).
Ex parte State of Alabama.
(Re James E. KING v. STATE).
1951664, 1951700.
Supreme Court of Alabama.
March 21, 1997.
Opinion by Concurring Opinion Specially on Overruling of Rehearing June 20, 1997.
*658 Spencer E. Davis, Jr., of Murchison & Sutley, L.L.C., Foley, for petitioner/cross-respondent James E. King.
Bill Pryor, atty. gen., and Robert D. Tambling, asst. atty. gen., for respondent/cross-petitioner State of Alabama.
John David Whetstone and John M. Tyson, Jr., district attys.; and Thomas W. Sorrells, executive director, Office of Prosecution Services, amici curiae in support of the State's application for rehearing.
Opinion by Justice Houston Concurring Specially on Overruling of Rehearing June 20, 1997.
PER CURIAM.
James E. King was charged in a three-count indictment related to allegations of sexual misconduct involving his minor stepdaughter. Our review involves Counts I and III.[1]
At trial, the state sought to prove that King had sexually molested his stepdaughter on several occasions. On Count I of the indictment, charging sodomy in the first degree, he was found guilty of sexual abuse in the first degree, a lesser included offense; on Count III, charging sexual abuse in the first degree, he was found guilty as charged.
We granted two petitions for certiorari review in this case to review the judgment of the Court of Criminal Appeals. That Court reversed King's conviction for sexual abuse in the first degree under Count III of the indictment, holding that the trial court erred in denying King's motion to require the state to elect which incident of sexual abuse it was seeking to prove under Count III of the indictment; it affirmed King's conviction for sexual abuse under Count I of the indictment, but without discussion of that count in relation to the election issue.[2] See King v. State, 707 So. 2d 652 (Ala.Crim.App.1996). We granted King's certiorari petition to review the affirmance of his sexual abuse conviction on Count I (1951664), and we granted the state's certiorari petition to review the reversal of King's sexual abuse conviction on Count III (1951700).
The parties argue, broadly, whether an election as to either of the counts was proper. As to Count III, the State does not dispute that unless this Court overrules settled caselaw, see Deason v. State, 363 So. 2d 1001 (Ala.1978), the Court of Criminal Appeals *659 correctly held that the trial court should have directed the state to make an election.
In Deason, this Court discussed the long-standing doctrine of election, and quoted from Watkins v. State, 36 Ala.App. 711, 63 So. 2d 293 (1953):
Deason, 363 So. 2d at 1006.
In the trial court, the state suggested that, given the possibility of lapses in the prosecuting witness's memory, the court should not order an election. Similarly, the state argues here that minor victims may be unable to recall specific incidents because of systematic abuse. However, the state does not argue that the prosecuting witness in this case could not in fact, recall and separate specific incidents.
Given the arguments of the state, and with due regard to the doctrine of stare decisis, we are not persuaded that we should depart from long-settled law. Accordingly, we affirm the judgment of the Court of Criminal Appeals as to Count III of the indictment.
As to Count I of the indictment, we hold that Deason would likewise apply to compel an election.
In this regard, the state says that one of the sexual abuse convictions can properly stand, because given that most of the evidence related to a single incident, there could be no doubt that the jury convicted King on one count on the basis of that incident. Accordingly, the state says, any error in failing to order an election related to the conviction under Count I, left intact by the Court of Criminal Appeals, was harmless error.
However, it is pure speculation to suggest that that single incident was the basis of the jury's conviction on one count of sexual abuse. There was evidence at trial of five incidents of sexual abuse. Indeed, the state itself contends that "other incidents of sexual abuse were proven by the prosecutor in this case." There is simply no way to know which incident or incidents of abuse underpinned the jury's verdict.
As to Count I, the judgment of the Court of Criminal Appeals is reversed; as to Count III, that court's judgment is affirmed. The cause is remanded with instructions to order a new trial as to Counts I and III.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
ALMON, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur.
BUTTS, J., concurs in part and dissents in part.
HOOPER, C.J., and MADDOX and SEE, JJ., dissent.
BUTTS, Justice (concurring in part and dissenting in part).
I concur with the majority opinion insofar as it affirms the reversal of James E. King's conviction for sexual abuse in the first degree under Count III of the indictment. However, I dissent from the reversal of the affirmance of King's conviction for sexual abuse under Count I of the indictment. I cannot agree that the trial court erred in failing to require the State to order an election of what incident of sexual abuse it was seeking to prove under Count I. I find it clear what incident of sexual abuse by King against his stepdaughter the State sought to prove under Count I of the indictmentthe incident alleged to have occurred one weekend night in January 1994 when the child slept with King in her mother's bed while her mother slept on a couch in an adjoining room. I would affirm King's conviction of sexual abuse in the first degree under Count I of the indictment.
MADDOX, Justice (dissenting).
I agree with the statement of the rationale behind our rule concerning prosecutorial elections as that rationale is stated in In re Deason v. State, 363 So. 2d 1001, 1005 (Ala. 1978), but I must respectfully dissent with today's holding because I believe that we *660 should expand this rule, especially in child sexual abuse cases.
Deason involved the sexual abuse by a stepfather of his nine-year-old stepdaughter. The stepdaughter testified to one particular instance of abuse and also to other instances, but without any particularity. Defense counsel objected, arguing that the prosecution must make an election as to which incident it was prosecuting the defendant upon. The trial court overruled the objection and proceeded, allowing the prosecution to present to the jury the testimony regarding the other instances. The Court of Criminal Appeals affirmed. Deason v. State, 363 So. 2d 998 (Ala.Crim.App.1978). This Court reversed and remanded.
Justice Beatty explained the purpose behind Alabama's rule regarding election: "When there is but one count charging a single offense, the law presumes, the defendant comes to trial prepared to meet the single charge, and the prosecution will not be permitted, after once having elected, to introduce evidence of another and different offense." 363 So. 2d at 1005. Likewise, Justice Beatty wrote: "In Watkins v. State, 36 Ala. App. 711, 63 So. 2d 293 (1953), Judge Harwood summed up the requirement: `The doctrine of election operates to protect a defendant from being prosecuted for more than one offense in the same count of an indictment. Where the evidence discloses two or more offenses growing out of distinct and separate transactions, a court should grant a timely motion to require the State to elect.'" 363 So. 2d at 1006. See also Sparrow v. State, 606 So. 2d 219 (Ala.Crim.App.1992); Cure v. State, 600 So. 2d 415 (Ala.Crim.App. 1992); McMahan v. State, 607 So. 2d 1288 (Ala.Crim.App.1992); J.D.S. v. State, 587 So. 2d 1249 (Ala.Crim.App.1991); Reed v. State, 512 So. 2d 804 (Ala.Crim.App.1987); Watkins v. State, 36 Ala.App. 711, 63 So. 2d 293 (1953). I also recognize that this rule is used by other states. State v. Solano, 187 Ariz. 512, 930 P.2d 1315 (Ariz.App.1996); Tidwell v. State, 922 S.W.2d 497 (Tenn.1996).
James King was charged in a three-count indictment with sodomy in the first degree (Count I); rape in the first degree (Count II); and sexual abuse in the first degree (Count III). King was acquitted of the rape charge. However, on the sodomy charge the jury found him guilty of the lesser included offense of sexual abuse in the first degree. He was also found guilty of sexual abuse in the first degree on the third count of the indictment.
The evidence established one distinct instance in January 1994 in which King abused the seven-year-old daughter of his common law wife while the child was sleeping with King in her mother's bed. However, evidence was also presented that King had sexually abused this stepdaughter five times"three times `before Christmas' and two times `after Christmas.'" King v. State, 707 So. 2d 652, 653 (Ala.Crim.App.1996). The ultimate question in this case centers around whether the prosecution should have to elect as to which incident the jury should consider in deciding the question of King's guilt. The trial court ruled that the prosecution was not required to make an election and the Court of Criminal Appeals reversed, relying on Deason, supra.
The State suggests in its brief that other states have extended this rule to better address the problems involved in child molestation cases. Based upon my research on this subject, I am of the opinion that this Court must approach child molestation cases more carefully, in order to strike a proper balance between the defendant's rights, as outlined in Deason, supra, and the victim's age and inability to recount every detail of each incident of abuse.
The problem associated with the question presented has been best described by the Washington Court of Appeals in State v. Brown, 55 Wash. App. 738, 746-47, 780 P.2d 880, 885 (1989), review denied, State v. Brown, 114 Wash. 2d 1014, 791 P.2d 897 (1990):
Numerous states that have addressed this issue have moved from a strict approach requiring an absolute election to a dual approach, as mentioned by the Washington Court of Appeals, supra. The Hawaii Supreme Court has written:
State v. Arceo, 84 Haw. 1, 928 P.2d 843, 874-75 (1996) (footnote omitted). See also, People v. Aldrich, 849 P.2d 821 (Colo.Ct.App. 1992); and People v. Jones, 51 Cal. 3d 294, 270 Cal. Rptr. 611, 792 P.2d 643 (1990).
Additionally, the Court of Criminal Appeals of Oklahoma has carved out this exception to the election rule: "[W]hen a child of tender years is under the exclusive domination of one parent for a definite period of time and submits to sexual acts at that parent's demand, the separate acts of abuse become one transaction,"[3] and "[s]ome situations which fall within the exception are when a continuous application of force is used and no reasonable doubt exists as to the occurrence of each act." Scott v. State, 668 P.2d 339 (Okla.Crim.App.1983), citing McManus v. State, 50 Okl.Cr. 354, 297 P. 830 (1931).
I believe that child molestation, especially by one who is acting as a parent, is probably the most horrible crime besides murder committed against young children, because of their age, because they are in a developmental stage, and because they rely on adults; therefore, I believe this Court should reevaluate the election rule and strike a better balance between the victim's rights and the rights of the accused.
Based on the foregoing, I must respectfully dissent.
HOOPER, C.J., and SEE, J., concur.
PER CURIAM.
APPLICATIONS OVERRULED. NO OPINION.
ALMON, SHORES, KENNEDY, and COOK, JJ., concur.
HOUSTON, J., concurs specially, with opinion.
HOOPER, C.J., and MADDOX, BUTTS, and SEE, JJ., dissent.
*662 HOUSTON, Justice (concurring specially on application for rehearing).
I cannot in this case depart from the long-settled law; to do so, in my opinion, would deprive the defendant of due process of law. However, I do not believe the ratio decidendi of the election rule set out in Deason v. State, 363 So. 2d 1001 (Ala.1978), and Watkins v. State, 36 Ala.App. 711, 63 So. 2d 293 (1953), "would hypothetically be consented to today by the conscience and the feeling of justice of the majority of all those whose obedience is required by the rule of law on which the ratio decidendi of [those] prior decision[s] was logically based," Laun, Stare Decisis, 25 Va.L.Rev. 12, 22 (1938), in child molestation cases in which a child is under the domination of a parent or a person standing in loco parentis for a definite period of time and submits to sexual acts at that parent or person's demand. I believe the separate acts of abuse become one transaction and that when they are charged in the indictment as one transaction, no election should be required.
In cases such as this, the Court is required to resolve the tension between the rights of an alleged victim and the rights of an alleged child molester. Art. I, § 35, of the Constitution of Alabama of 1901, provides: "[T]he sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property." Clearly, the legislative policy,[1] based upon Judeo-Christian teachings,[2] is to protect the vulnerable child's right to a life free from sexual exploitation. It can do so and also afford an alleged child molester with all the process he or she is due, without requiring the election judicially mandated by Deason and Watkins. I would, therefore, prospectively overrule Deason and Watkins in cases in which the child is under the domination of a parent or a person standing in loco parentis for a definite period of time and allegedly submits to sexual acts at that parent or person's demand.
[1] Count II alleged rape in the first degree. King was acquitted on this charge.
[2] The Court of Criminal Appeals suggested, in footnote one of its opinion, that it did not address the election issue as to Count I because King had not raised the issue. However, we note that it appears from our reading of King's brief to the Court of Criminal Appeals and our review of the trial court record, that the election argument was raised in the trial court and on appeal as to Count I. See, e.g., the appellant's brief to the Court of Criminal Appeals, at 18 (stating that "if the defendant's convictions were based on more than one transaction, then .... [t]his denial violated the doctrine of election" (emphasis added)); R.T. 473 (renewing a previous objection to the trial court's refusal to compel an election as to Count III, but this time as to Count I).
[3] Huddleston v. State, 695 P.2d 8, 10-11 (Okla. Crim.App.1985). See also Jones v. State, 781 P.2d 326 (Okla.Crim.App.1989); and Drake v. State, 761 P.2d 879 (Okla.Crim.App.1988).
[1] Alabama Code 1975, §§ 13A-6-61(a)(3), 13A-6-62(a)(1), 13A-6-63(a)(3), 13A-6-64(a)(1), 13A-6-65.1(a)(3), 13A-6-66(a)(3), 13A-6-67(a)(2), and 13A-6-69.
[2] Luke 17:2: "It were better for him that a millstone were hanged about his neck, and he cast into the sea, than that he should offend one of these little ones." (The Holy Bible, King James Version, located in the courtroom of the Supreme Court of Alabama since 1972, p. 1046.) | June 20, 1997 |
d514e5b0-7b15-49e2-be9c-ece724360e4c | Ex Parte McRae's of Alabama, Inc. | 703 So. 2d 351 | 1951056 | Alabama | Alabama Supreme Court | 703 So. 2d 351 (1997)
Ex parte McRAE'S OF ALABAMA, INC.
(Re Jane DOE and John Doe
v.
McRAE'S OF ALABAMA, INC.).
1951056.
Supreme Court of Alabama.
March 14, 1997.
George M. Van Tassel, Jr., and J. Clinton Pittman of Sadler, Sullivan, Sharp, Fishburne & Van Tassel, P.C., Birmingham, for petitioner.
Thomas E. Baddley, Jr., and Jeffrey P. Mauro of Baddley & Crew, P.C., Birmingham, for respondents.
PER CURIAM.
The Court granted the petition for the writ of certiorari filed by the defendant McRae's of Alabama, Inc., to review its argument that the reversal by the Court of Civil Appeals conflicts with this Court's decisions holding that "It is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third person." Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1370 (Ala.1986). See C.A. v. Wal-Mart, Inc., 683 So. 2d 413 (Ala.1996); Baptist Memorial Hospital v. Gosa, 686 So. 2d 1147 (Ala.1996); Broadus v. Chevron USA, Inc., 677 So. 2d 199 (Ala.1996); Habich v. Crown Central Petroleum Corp., 642 So. 2d 699 (Ala.1994); Dailey v. Housing Auth. for Birmingham Dist., 639 So. 2d 1343 (Ala.1994); E.H. v. Overlook Mountain Lodge, 638 So. 2d 781 (Ala.1994); W.L.O. v. Smith, 585 So. 2d 22 (Ala.1991); Webster v. Church's Fried Chicken, Inc., 575 So. 2d 1108 (Ala.1991); Douglas v. McDonald's Corp., 565 So. 2d 137 (Ala.1990); Morton v. Prescott, 564 So. 2d 913 (Ala.1990); Bailey v. Bruno's, Inc., 561 So. 2d 509 (Ala. 1990); Williams v. First Alabama Bank, 545 So. 2d 26 (Ala.1989); Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208 (Ala.1988); O.H. v. Ballard Realty Co., 516 So. 2d 519 (Ala.1987); Childers v. Winn-Dixie Stores, Inc., 514 So. 2d 879 (Ala.1987); Frazier v. Laborers Int'l Union of N. America, Local No. 559, 502 So. 2d 743 (Ala.1987); Petrella v. Peddler's Motor Inn Best Western, 488 So. 2d 497 (Ala.1986); Simpson v. Wolf Ridge Corp., 486 So. 2d 418 (Ala.1986); Law v. Omelette Shop, Inc., 481 So. 2d 370 (Ala.1985); Ortell v. Spencer Cos., 477 So. 2d 299 (Ala.1985); Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984); Stripling v. Armbrester, 451 So. 2d 789 (Ala.1984); Latham v. *352 Aronov Realty Co., 435 So. 2d 209 (Ala.1983); Berdeaux v. City National Bank of Birmingham, 424 So. 2d 594 (Ala.1982); Gaskin v. Republic Steel Corp., 420 So. 2d 37 (Ala.1982); and Parham v. Taylor, 402 So. 2d 884 (Ala. 1981).
The facts are adequately set forth in the opinion of the Court of Civil Appeals. See Doe v. McRae's of Alabama, Inc., 703 So. 2d 348 (Ala.Civ.App.1996). Suffice it to say that there had never been a similar assault on the defendant's store premises, or any violent crimes of any nature on those premises. The plaintiffs' evidence falls far short of the high standard a plaintiff must meet to hold a defendant liable for the criminal acts of a third party. The judgment of the Court of Civil Appeals is therefore reversed, and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur.
HOOPER, C.J., concurs in the result. | March 14, 1997 |
bc6c541e-d641-4634-b79f-08354b5b13ad | Coastal Ford, Inc. v. Kidder | 694 So. 2d 1285 | 1960005 | Alabama | Alabama Supreme Court | 694 So. 2d 1285 (1997)
COASTAL FORD, INC.
v.
Delmar KIDDER.
1960005.
Supreme Court of Alabama.
April 18, 1997.
M. Mallory Mantiply of Mantiply & Associates, Mobile, for Appellant.
No brief filed for Appellee.
SHORES, Justice.
The defendant, Coastal Ford, Inc. ("Coastal"), appeals from an order denying its motion to stay the proceedings in this case pending arbitration. We reverse and remand.
On March 5, 1996, Delmar Kidder filed a complaint alleging that Coastal had committed fraud by misrepresenting the mileage of a used pickup truck it sold to Kidder. On April 23, 1996, Coastal moved to dismiss or to stay proceedings in the case pending arbitration pursuant to the parties' agreement. The trial court initially granted Coastal's motion to stay pending arbitration and transferred the case to its "administrative docket." However, after Kidder filed a motion to reconsider that action, the trial court held a hearing and then denied Coastal's motion to stay proceedings pending arbitration. This appeal followed.[1]
On June 13, 1995, Kidder purchased a 1990 Ford F-150 pickup truck from Coastal. Kidder's complaint alleges that when he bought the truck Coastal represented to him that it had been driven 42,785 miles, but that it actually had traveled 142,785 miles. At the time of the purchase, Kidder signed a written purchase agreement entitled "Retail Buyer's Order" (the "contract"). On this document, directly above Kidder's signature, is an arbitration provision that reads as follows:
Coastal also supplied Kidder with an odometer disclosure statement, as required under federal law. See 49 U.S.C. § 32705. That statement, dated the day of the sale and signed by Kidder and Coastal's representative, declares that upon transfer of ownership the odometer read 42,785 miles and "to the best of [Coastal's] knowledge that it reflect[ed] the actual mileage" of the truck.
On appeal, the issue before this Court is whether the trial court properly denied Coastal's motion to stay the proceedings pending arbitration. Coastal argues that the trial court erred in denying its motion because, it argues, Kidder had entered into an enforceable agreement to arbitrate any dispute arising out of the sale of the truck.
We would initially note that the trial court's reasons for denying Coastal's motion to stay the proceedings pending arbitration are unclear. The trial court did not state its reasons for denying that motion, and the record does not contain a transcript of the hearing at which this motion was argued. In his motion to reconsider the earlier order granting a stay pending arbitration, Kidder argued only that a hearing was required before a stay could be ordered and he stated that he "contests the validity of the arbitration clause." Furthermore, Kidder has not submitted a brief to this Court.
Section 8-1-41(3), Ala.Code 1975, prohibits specific enforcement of "[a]n agreement to submit a controversy to arbitration." However, § 2 of the Federal Arbitration Act, 9 U.S.C. § 2, provides that a
This Court has recognized that, under this section, the Federal Arbitration Act preempts conflicting state law where an arbitration agreement is voluntarily entered into and is contained in a contract that involves *1287 interstate commerce. Ex parte Jones, 628 So. 2d 316 (Ala.1993); A.G. Edwards & Sons, Inc. v. Syvrud, 597 So. 2d 197 (Ala.1992). Formerly, this Court narrowly interpreted the language "a contract evidencing a transaction involving commerce," requiring a showing that at the time they entered into the agreement to arbitrate the parties "contemplated substantial interstate activity." See, e.g., Ex parte Warren, 548 So. 2d 157 (Ala.), cert. denied, 493 U.S. 998, 110 S. Ct. 554, 107 L. Ed. 2d 550 (1989); Ex parte Jones, supra; Continental Grain Co. v. Beasley, 628 So. 2d 319 (Ala.1993); Allied-Bruce Terminix Companies, Inc. v. Dobson, 628 So. 2d 354 (Ala.1993). However, this reading, which had the effect of restricting the applicability the Federal Arbitration Act, was rejected by the United States Supreme Court in Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 115 S. Ct. 834, 130 L. Ed. 2d 753 (1995). In reversing the judgment of this Court, the United States Supreme Court in Allied-Bruce Terminix held that, rather than examining the parties' contemplation of interstate activity, a court considering whether there is "a contract evidencing a transaction involving commerce" should simply look to whether the transaction involved interstate commerce "in fact." Id., 513 U.S. at 276-80, 115 S. Ct. at 841-42, 130 L.Ed.2d. at 766. The United States Supreme Court further held that the language of § 2 gives the Federal Arbitration Act very broad applicability, "reaching to the limits of Congress' Commerce Clause power." Id., 513 U.S. at 270, 115 S. Ct. at 837, 130 L. Ed. 2d at 764; U.S. Const., Article I, § 8, cl. 3. See also Allied-Bruce Terminix Companies, Inc. v. Dobson, 684 So. 2d 102 (Ala.1995) (opinion on remand). Thus, regardless of any conflicting state law, under § 2 of the Federal Arbitration Act, an arbitration provision in a contract that, in fact, involves interstate commerce is put on "`the same footing' as other terms of a contract." Ex parte Phelps, 672 So. 2d 790, 793 (Ala.1995), quoting Allied-Bruce Terminix, 513 U.S. at 275, 115 S. Ct. at 840, 130 L. Ed. 2d at 769.
We first look to whether the Federal Arbitration Act is applicable to the arbitration agreement contained in the contract for the purchase of the used truck. We note that nothing in the record suggests that the contract itself between Kidder and Coastal is invalid or unenforceable. Thus, the Federal Arbitration Act will apply to the arbitration provision if the contract is one involving interstate commerce in fact, so as to be within Congress's power to regulate under the Commerce Clause.
We recognize that by the contract Kidder acknowledged that the truck he purchased "has traveled in interstate commerce" and that "the vehicle and other aspects of the sales ... transaction are involved in, or have a direct impact upon, interstate commerce." However, similar language was present in the contracts involved in Ex parte Warren, supra, and Ex parte Williams, 555 So. 2d 146 (Ala.1989). In both of those cases, this Court held that a contract between an Alabama consumer and an automobile dealership having its sole place of business in Alabama, to purchase and take delivery of an automobile in Alabama did not involve interstate commerce, within the meaning of the Federal Arbitration Act, notwithstanding an acknowledgment that the vehicle had traveled in, and had "an impact" upon, interstate commerce. Ex parte Warren, 548 So.2d at 159-60; Ex parte Williams, 555 So. 2d at 147-48. But both of these cases were decided using the "contemplation of substantial interstate activity" test, which, as previously noted, was rejected by the United States Supreme Court in favor of the "commerce in fact" test. See Ex parte Phelps, supra.
There was undisputed evidence that the used truck purchased by Kidder had actually traveled in interstate commerce. Therefore, we hold, under the "commerce in fact" test, that the contract for the sale of the truck did involve interstate commerce and thus came within Congress's regulatory authority under the Commerce Clause. Accordingly, the Federal Arbitration Act does apply to make the arbitration provision in this case enforceable.
Finally, given that the arbitration provision is enforceable, we must decide whether it applies to Kidder's fraud claim in this case. A court faced with a motion to stay proceedings pursuant to an arbitration *1288 agreement must determine "whether the language or `scope' of the arbitration clause is broad enough to encompass the claims sought to be arbitrated." Allied-Bruce Terminix, 684 So. 2d at 103 (citation omitted). "Such a determination must begin with a recognition of the federal policy favoring arbitration...." Id., 684 So. 2d at 104.
Id., 684 So. 2d at 107 (citations omitted). The question whether an arbitration clause applies to a claim is a matter of state-law contract interpretation, which
Id., 684 So. 2d at 110 (footnote omitted). See also Ex parte Gates, 675 So. 2d 371 (Ala.1996).
Applying the foregoing principles to this case, we conclude that the arbitration clause clearly does apply to Kidder's fraud claim. The language of the arbitration clause is not ambiguous; once again, it applies to
The question whether Coastal misrepresented the mileage of the truck is a dispute "concerning" both the condition of the vehicle at the time of the sale and a "representation[]... made in connection with negotiations for the sale" of the vehicle. Further, the undisputed evidence shows that the odometer disclosure statement was given to Kidder at the time of the sale, so any claim concerning the "terms and meaning" of this document, "signed or given in connection with the sale," also would be within the scope of the arbitration clause.
For the reasons stated above, we hold that the trial court erred in denying Coastal's motion to stay the proceedings pending arbitration of Kidder's fraud claim. The order denying the stay is reversed, and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, KENNEDY, and BUTTS, JJ., concur.
[1] Orders refusing to stay proceedings pending arbitration and orders refusing to compel arbitration are appealable. See 9 U.S.C. § 16(a)(1)(A) and (B), part of the Federal Arbitration Act, and A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360-61 (Ala.1990); Continental Grain Co. v. Beasley, 628 So. 2d 319, 322 n. 3 (Ala. 1993). | April 18, 1997 |
086fb870-5ce7-4a0b-b6c9-2dedabf738b1 | Ex Parte Roper | 695 So. 2d 249 | 1960761 | Alabama | Alabama Supreme Court | 695 So. 2d 249 (1997)
Ex parte Alex ROPER.
(Re Alex Roper, a/k/a David Wade v. State).
1960761.
Supreme Court of Alabama.
April 25, 1997.
John G. Butler, Jr., Huntsville, for petitioner.
No brief filed for respondent.
Prior report: Ala.Cr.App., 695 So. 2d 244.
ALMON, Justice.
The petition for the writ of certiorari is denied.
In denying the petition 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 Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
HOOPER, C.J., and HOUSTON, COOK, and SEE, JJ., concur. | April 25, 1997 |
29e97531-5dc9-4d0a-b4f6-f2e01e826868 | Ex Parte Guthrie | 689 So. 2d 951 | 1951747 | Alabama | Alabama Supreme Court | 689 So. 2d 951 (1997)
Ex parte Colon Lavon GUTHRIE.
(Re Lavon Guthrie, alias Colon Lavon Guthrie v. State).
1951747.
Supreme Court of Alabama.
March 14, 1997.
*952 Donald R. Hamlin, Pell City, and Edwin M. Van Dall, Jr., Pell City, for Petitioner.
Bill Pryor, Atty. Gen., and Michael B. Billingsley, Asst. Atty. Gen., for Respondent.
KENNEDY, Justice.
Colon Lavon Guthrie was convicted in 1989 of capital murder for the death of Rayford Howard, and he was sentenced to death. The evidence indicated that on February 25, 1988, Colon Lavon Guthrie and an accomplice robbed Howard's Store in St. Clair County. During the robbery, Guthrie killed Rayford Howard, the store's proprietor, by shooting him in the chest with a sawed-off shotgun. The Court of Criminal Appeals reversed Guthrie's conviction and sentence, because of improper arguments made by the State's prosecutor. Guthrie v. State, 616 So. 2d 914 (Ala.Crim.App.1993) ("Guthrie I"). After a second trial, a jury again convicted Guthrie of capital murder, and he was again sentenced to death. On February 9, 1996, the Court of Criminal Appeals affirmed Guthrie's conviction, but remanded the case for a new sentencing hearing, holding that a presentence report considered by the trial court in its sentencing was insufficient. Guthrie v. State, 689 So. 2d 935 (Ala.Crim.App.1996) ("Guthrie II"). On return from remand, the Court of Criminal Appeals, on May 10, 1996, affirmed Guthrie's death sentence, with opinion ("Guthrie III"). This certiorari review follows that affirmance. A detailed review of the facts of this case may be found in Guthrie I and Guthrie II.
In his certiorari petition and brief, Guthrie argues that the trial court erred in allowing the jury to hear evidence of a collateral crime. The evidence at issue indicated that a robbery and a murder were committed in Colbert County that were similar to the robbery and murder of Howard and that that robbery and murder occurred within eight hours after Howard was murdered. Guthrie argued this issue before the Court of Criminal Appeals in both Guthrie I and Guthrie II. In Guthrie II, the Court of Criminal Appeals noted that Guthrie had previously argued this issue in Guthrie I, and, relying upon its reasoning in that case, it found no merit in Guthrie's argument.
We agree with the Court of Criminal Appeals that the trial court did not err in allowing the jury to hear this evidence. In its discussion of this issue in Guthrie I, the Court of Criminal Appeals thoroughly addressed the law of collateral evidence and its application to this case. The court noted that, in general, evidence of collateral crimes is not admissible, but that such evidence is admissible when it is relevant for any purpose other than showing the defendant's guilt "`through the medium of bad character,'" quoting C. Gamble, McElroy's Alabama Evidence § 69.0[1](1) (3d ed.1977). While finding that the State's evidence of the Colbert County crime did not "fit neatly within the identity exception to the general prohibition of collateral evidence," the court found the evidence admissible "because it was material and logically relevant to prove the identity of the person or persons who committed the instant murder-robbery." 616 So. 2d at 922. The court found a "`clear connection between the [Colbert County] offense and the one charged so that it may be logically inferred that if [the] defendant is guilty of one he must be guilty of the other.'" 616 So. 2d at 923. (Citation omitted.) The court noted:
616 So. 2d at 923-24.
The Court of Criminal Appeals noted that the testimony of several witnesses linked Guthrie, along with the codefendant Windsor and the Ford Mustang automobile, to both the Rayford Howard robbery-murder and the Colbert County robbery-murder. In the interest of brevity, that court's entire discussion of the collateral evidence issue will not be set out here. However, we hold that that court correctly found no error on this issue. The evidence of the Colbert County robbery-murder was probative as to the identity of the person who committed the robbery and murder of Rayford Howard, which was, as the Court of Criminal Appeals noted, the central issue of this case. The trial court properly allowed the jury to consider the evidence regarding the Colbert County crimes.
We also find no merit in Guthrie's contention that the imposition and affirmance of his death sentence violate Art. I, § 1, of the Alabama Constitution of 1901. That section states, in part, that "all men ... are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness." Guthrie maintains that that section guarantees an inalienable right to life and bars the imposition of the death sentence in his case. However, the right to life proclaimed in that section of the Constitution does not prohibit the State from establishing that certain criminal acts are so heinous as to warrant the forfeiture of the convicted defendant's life. We find no conflict between that section of the Constitution and the imposition of the death penalty in this case.
We have thoroughly reviewed the record before us in regard to all issues Guthrie has raised, and we have reviewed it for plain error not raised. We conclude that the Court of Criminal Appeals correctly ruled on the issues raised before that court. Furthermore, we have found no plain error. Therefore, the judgment of the Court of Criminal Appeals affirming Guthrie's conviction and sentence is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, COOK, BUTTS, and SEE, JJ., concur. | March 14, 1997 |
49693916-094b-4b91-a395-05224c3be798 | Parmater v. Amcord, Inc. | 699 So. 2d 1238 | 1940862, 1940922 | Alabama | Alabama Supreme Court | 699 So. 2d 1238 (1997)
Mary C. PARMATER, as Administratrix of the Estate of Nancy Champion, Deceased, et al.
v.
AMCORD, INC.
AMCORD, INC.
v.
Mary C. PARMATER, as Administratrix of the Estate of Nancy Champion, Deceased, et al.
1940862, 1940922.
Supreme Court of Alabama.
May 2, 1997.
Rehearing Applications Denied July 18, 1997.
*1239 James J. Thompson, Jr., and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; and Patrick W. Parmater, Minnetonka, MN, for appellants/cross appellees.
Harold A. Bowron, Jr., of Balch & Bingham, Birmingham, for appellee/cross appellant.
KENNEDY, Justice.
In September 1985, a civil aviation crash in Alabama killed William Champion, who was piloting the aircraft; his wife Nancy; and their three minor children. The decedents lived in Iowa. An Iowa court appointed Norwest Bank of Des Moines, N.A., as executor of the estate of Nancy Champion and appointed Delmar Champion as the administrator of the estates of the minor children.
In March 1987, these personal representatives of the estates ("the Iowa plaintiffs") filed a wrongful death action against Amcord, Inc.,[1] and others, in Iowa. In July 1991, without stating grounds, the Iowa court granted Amcord's motion to dismiss; in its motion Amcord had argued lack of jurisdiction and delay in service. The order dismissing Amcord contained no language indicating finality. In September 1991, the Iowa court was asked to approve a settlement among the parties. Mary C. Parmeter, an Iowa resident and Nancy Champion's mother, was given notice of the "application for approval of settlement." In October 1991, the Iowa court entered a final judgment, dismissing all parties with prejudice and approving the settlement among the parties.
In January 1992, the Iowa plaintiffs filed a document which read in full: "COME NOW the Plaintiffs and hereby dismiss the within cause of action with prejudice against all named defendants; defendants to pay the *1240 costs." Later in January 1992, Amcord and the Iowa plaintiffs executed a general release, which stated that Amcord was released from all claims arising out of or in any way connected with the deaths in the airplane crash occurring in September 1985, including, but not limited to, claims stated in the Iowa action that was dismissed with prejudice.
While the wrongful death action was proceeding in Iowa, Parmater had applied for and received appointment as a "special administrator" of the estates of her daughter Nancy and the three minor children. Specifically, in September 1987, the Iowa court appointed Parmater as "Special Administrator... for the limited purpose of pursuing claims under the laws of Alabama in Alabama at no expense to this Estate." The order further stated that such "orders constitute an election of remedies on behalf of Mary C. Parmater and effectively foreclose and/or extinguish any interest, rights or claims she may have had in the cases pending in Iowa."
Parmater then filed this lawsuit in Alabama for the alleged wrongful death of the same decedents as in the Iowa action. Amcord moved to dismiss, and Parmater voluntarily dismissed Amcord and others in 1988. However, in January 1991, the complaint was amended to bring all of them back in. Amcord filed another motion to dismiss and added a ground for dismissal, contending that the Alabama action was barred by the action pending in Iowa. All motions were denied by the Alabama trial court in August 1991. After executing the aforementioned Iowa release in January 1992 Amcord filed an answer raising the defense of res judicata, and in February 1992, Amcord filed a motion for summary judgment on the issue of res judicata. The Alabama trial court denied the motion, but allowed Amcord to petition this Court for permission to appeal on the res judicata issue. This Court denied the petition, and Amcord renewed its res judicata motion, which the Alabama trial court then granted. Parmater appealed from the summary judgment in favor of Amcord, while Amcord cross-appealed from the trial court's denial of its motion to dismiss for lack of in personam jurisdiction.
On appeal, Parmater contends that the Iowa settlement does not affect her ability to bring this wrongful death action against Amcord in Alabama.
At the outset we note that the authority of the Iowa court to appoint Parmater as a "special administrator," and the validity of the appointment, are not before this Court. Rather, assuming that the Iowa court did have authority to make such an appointment, the question before this Court is whether the settlement of the wrongful death action in Iowa precludes, under the doctrine of res judicata, another wrongful death action in Alabama based on a cause of action arising from the same nucleus of operative fact.[2]
The Iowa wrongful death statute is identical to the Alabama statute insofar as it vests the claim solely in the personal representative for the benefit of the real parties in interest. Egan v. Naylor, 208 N.W.2d 915 (Iowa 1973). The Iowa personal representatives, after having been appointed by the Iowa court, had the authority to prosecute a wrongful death action in the State of Iowa under either the Iowa Wrongful Death Act or the Alabama Wrongful Death Act. Ala.Code 1975, §§ 6-5-410, 6-5-391. Furthermore, assuming jurisdiction, the representatives could have elected to bring the wrongful death action in Alabama. Hatas v. Partin, 278 Ala. 65, 175 So. 2d 759 (1965). However, under both Alabama law and Iowa law, there ultimately can be only one recovery for the wrongful death; that fact raises the question whether the settlement of the Iowa wrongful death action by the Iowa plaintiffs is res judicata as to the wrongful death action filed in Alabama by Parmater.
The elements of res judicata are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions. Smith v. Union Bank & Trust Co., 653 So. 2d 933 (Ala.1995); Dairyland Ins. Co. v. Jackson, 566 So. 2d 723 (Ala.1990). If *1241 these four elements are present, then any claim that was adjudicated or could have been adjudicated in the prior action is barred from further litigation. Dairyland, supra. However, the doctrine of res judicata does not require complete identity of parties, but only that the party against whom the doctrine of res judicata is asserted either was a party or was in privity with a party to the prior action or that the nonparty's interests were adequately represented by a party in the prior action. Dairyland, supra. The test for applying the doctrine of res judicata under Iowa law is consistent with the test applied under Alabama law.
The Iowa courts have held that "[a]n adjudication in a former suit between the same parties on the same claim is final as to all matters which could have been presented to the court for determination." Leuchtenmacher v. Farm Bureau Mutual Ins. Co., 460 N.W.2d 858, 860 (Iowa 1990). Further, Iowa courts have held that a settlement or consent judgment and subsequent dismissal with prejudice, without an actual trial, can be the basis of a plea of res judicata. Jordan v. Stuart Creamery, Inc., 258 Iowa 1, 137 N.W.2d 259 (1965). Likewise, this Court has also held that a dismissal with prejudice is an adjudication on the merits. Union Bank, supra; Hammermill Paper Co. v. Montreal Boyette Sandlin Day, 336 So. 2d 166 (Ala. 1976).[3]
We agree with Amcord that the doctrine of res judicata applies in these circumstances. There was a prior action with a judgment on the merits in a court of competent jurisdiction. The Iowa plaintiffs elected to file a wrongful death action in Iowa, based on Iowa law. They settled with Amcord as to all claims resulting from the accident. The dismissal of the action in Iowa, with prejudice, is a final judgment on the merits that is conclusive as to the parties with regard to claims by the estates of the decedents for their alleged wrongful deaths. The dismissal with prejudice concluded the rights of the parties, terminated the right of action, and precluded subsequent litigation of the same cause of action.
Furthermore, the plaintiffs in the Iowa action, as well as the plaintiff in the Alabama action (Parmater), were the personal representatives of the estates of the decedents. As personal representatives, they all acted as trustees for the heirs at law, who were the real parties in interest. Therefore, for purposes of the doctrine of res judicata, the plaintiffs are the same in Iowa as in Alabama, and they all sought recovery for, among other things, the alleged wrongful death of each of the decedents. The final adjudication of the Iowa case alleging the wrongful death of the decedents invokes the doctrine of res judicata and bars the action in Alabama by the same estates for the recovery of damages from the same defendant for the same alleged wrongful deaths. Once a judgment was entered dismissing with prejudice the claims brought in Iowa by the duly appointed executor/administrator of each of the decedents, all other claims for the same injuries to the same real parties' interests were extinguished. Once that judgment was entered, any claim Parmater might have had was extinguished by the authorized personal representative of the estates. The plaintiffs settled the case with the defendants and thus had a recovery; Alabama law does not permit another recovery for the same wrongful deaths. The situation in this case was essentially a race between Parmater and the Iowa plaintiffs to acquire the sole recovery available, a race the Iowa plaintiffs won.
The doctrine of res judicata is intended to put an end to litigation; it bars a plaintiff from recovering twice for a wrongful act, and it applies in this case. Therefore, the trial court correctly entered the summary judgment in favor of Amcord, and its judgment is due to be affirmed. Amcord's cross-appeal is dismissed as moot.
*1242 HOOPER, C.J., and MADDOX, SHORES, HOUSTON, COOK, and SEE, JJ., concur.
BUTTS, J., dissents.
[1] The aircraft involved in this case was a Piper Aerostar, manufactured by Ted Smith Aircraft Company, Inc., which was a subsidiary of American Cement Corporation (later Amcord, Inc.) at the time of the manufacture and sale of this aircraft in 1969.
[2] It is not disputed that as to all causes of action involving these parties, the plane crash and the resulting deaths provide a common nucleus of operative fact.
[3] The Hammermill Paper Co. v. Day case is indexed in Southern Reporter (2d) as Hammermill Paper Co. v. Montreal Boyette Sandlin Day. | May 2, 1997 |
58df7132-354c-4f81-9334-f38471364fbe | Ex Parte State Ex Rel. At | 695 So. 2d 624 | 1950631 | Alabama | Alabama Supreme Court | 695 So. 2d 624 (1997)
Ex parte STATE of Alabama ex rel. A. T.
(Re STATE of Alabama ex rel. A. T. v. E. W.).
1950631.
Supreme Court of Alabama.
May 23, 1997.
*625 J. Coleman Campbell and Lois Brasfield, Asst. Attys. Gen., Department of Human Resources, for petitioner.
Emmett O'Neal Griswold, Jr., Samson, for respondent.
PER CURIAM.
The opinion of December 6, 1996, is withdrawn and the following is substituted therefor.
This case presents the question whether a defendant in a paternity proceeding, who was judicially declared to be the father of a child, can reopen the case if he can show that there is scientific evidence to show that he is not the father. In view of the fact that the issue arose in a proceeding in which the mother was seeking to modify child support payments, this case presents the further question: Does Alabama law require a man who has been determined not to be the biological father of a child to be legally responsible for that child? We hold that it does not.
This Court, on original deliverance, reversing the judgment of the Court of Civil Appeals, held that the trial court had erred in reopening the paternity issue pursuant to § 26-17A-1, Ala.Code 1975.[1]
The defendant in the original paternity proceeding filed an application for rehearing, basically arguing that the Legislature, by authorizing the reopening of a paternity proceeding, pursuant to the provisions of § 26-17A-1, intended to cover persons like him who could prove scientifically that he was not the father.
The State of Alabama, on the other hand, argues that this Court, on original deliverance, correctly interpreted the law of Alabama and did not err in reversing the judgment *626 of the Court of Civil Appeals, which had affirmed the judgment of the trial court.
We are of the opinion that a majority of this Court did err on original deliverance and that E. W.'s application for rehearing is due to be granted. Consequently, the original opinion is withdrawn and the following opinion is substituted for it.
In 1981, the child who is the subject of this proceeding was born out of wedlock. The mother filed a paternity action against E. W., and on July 13, 1983, the district court ordered a blood test, but E. W., who the trial court found was indigent at that time, did not request a blood test[2] and instead admitted paternity and was ordered to pay $75 per month in child support. E. W. did not appeal this decision, but during the next five and one half years, he paid little or no child support, until an order of income withholding was entered in January 1989. At that time, E. W. filed a motion for new trial contesting the paternity on the basis that the mother of the child had allegedly told someone that a person other than E. W. was the father of her child. The trial court denied his motion, and again E.W. took no appeal.
On April 6, 1994, the mother petitioned to modify the child support order that had been initially entered in the case. E. W. defended the petition, arguing that he was not the father, and, pursuant to § 26-17A-1, he requested the reopening of the paternity case to allow him to present scientific evidence to prove that fact.
The trial court ordered the blood tests requested by E. W., and the results indicated that E. W. was not the biological father of the child. He then moved the trial court to reopen the case and set aside the previous paternity order. The trial court set aside the paternity order and held that E. W. was not the father of the child and ordered his parental rights and obligations terminated.
The State of Alabama appealed on behalf of the mother. The Court of Civil Appeals affirmed. State ex rel. A.T. v. E. W., 695 So. 2d 619 (Ala.Civ.App.1995).
The purpose of § 26-17A-1 is to authorize a defendant in a paternity proceeding to reopen an adjudication of paternity if he has scientific proof, as specified in the statute, that he is not the biological father of the child. Obviously the trial court found that E. W. had such proof in this case. See Ex parte State Dep't of Human Resources ex rel. R.A.P.B., 680 So. 2d 874 (Ala.1996) (dissenting opinion).
The trial court and the Court of Civil Appeals held that E. W.'s admission of paternity, under the facts and circumstances of this case, should not bar him from asserting the rights granted to him under § 26-17A-1. We believe that those two courts correctly ascertained the Legislature's intent in adopting the statute that authorizes the reopening of a paternity determination except when the child has been adopted.
Based on the foregoing, we grant the application for rehearing, withdraw the original opinion, and affirm the judgment of the Court of Civil Appeals.
APPLICATION GRANTED; OPINION OF DECEMBER 6, 1996, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, and SEE, JJ., concur.
SHORES, KENNEDY, COOK, and BUTTS, JJ., dissent.
KENNEDY, Justice (dissenting).
Today, this Court allows a defendant who twice has waived his right to contest a paternity action now to disavow any obligation to the child. I believe this Court is setting a *627 dangerous precedent in bastardizing this child; therefore, I must respectfully dissent.
First, a clarification of the facts is necessary. In 1981, the child who is the subject of this petition was born out of wedlock. E. W. was having sexual relations with the mother around the time the child was conceived. (R.T. 79.) In 1983, the mother filed a paternity action against E. W., alleging that he was the biological father. The court ordered a blood test, noting that E. W. denied paternity and had requested the test. E. W. now claims that he could not afford the test. However, E. W. did not inform the court that he could not afford the blood test. (R.T. 71.) Subsequently, he chose to acknowledge paternity rather than pay for the test or tell the court he was indigent. E. W. admits that he knew that acknowledging paternity meant that he had an obligation to pay child support. (R.T. 78.) E. W. did not appeal from the adjudication of paternity.
E. W. paid little or no child support over the next five years, until an order of income withholding was entered in January 1989. At that time, E. W. moved for a new trial, alleging newly discovered evidence. At that time, E. W. had a well-paying job as an aircraft mechanic, and he hired a well-respected Selma law firm to represent him. In support of his motion, he argued that the mother had claimed someone else was the father. This motion was summarily denied on March 1, 1989. E. W. again chose not to appeal.
E. W. deliberately chose to acknowledge paternity and to support the child rather than to seek the truth when the opportunity was provided. Twice, E. W. was provided with such an opportunity.
I acknowledge that it seems unfair to force a man to pay child support when scientific proof excludes the possibility that the man is the biological father of the child. However, E. W. voluntarily chose to accept the responsibility of being the child's legal father, regardless of his doubts as to paternity. This voluntary choice resulted in the imposition of certain legal and financial obligations, which E. W. was well aware of when he signed the affidavit acknowledging paternity. The assumption of a parent's legal and financial responsibilities toward a child is not a matter to be taken lightly, nor is it something to be cast aside when one grows tired of the responsibilities assumed by a deliberate choice. Ex parte Lipscomb, 660 So. 2d 986 (Ala.1994) (man was required to pay support for his biological granddaughter because he had sought and obtained legal custody of the child and not because he had a blood kinship or former in loco parentis relationship with the child).
It has always been the law that such a deliberate choice is binding. Ex parte W. J., 622 So. 2d 358 (Ala.1993) (man elected not to have blood tests before agreeing to acknowledge paternity and was thereafter bound by the paternity agreement); Ex parte State ex rel. Edwards, 603 So. 2d 366 (Ala.1992) (man agreed in open court to legitimate child and was later barred from disputing paternity); Ex parte State ex rel. Milton, 598 So. 2d 914 (Ala.1992) (husband did not object to divorce judgment's order of support for children born during the marriage and could not later challenge paternity of those children); Ex parte State ex rel. Harrell, 588 So. 2d 868 (Ala.1991) (husband acknowledged paternity of child born during his marriage and could not later challenge paternity).
A man adjudicated to be the father of a child is more than a mere obligated volunteer, such as a stepparent, who may legally abandon the responsibility of a spouse's minor children that the stepparent has not adopted. Newman v. Newman, 667 So. 2d 1362 (Ala.Civ.App.1994).
I note that § 26-17A-1, Ala.Code 1975, was adopted in 1994 to allow a man adjudicated to be the biological father of a child to reopen the question of paternity.[3] This does not mean that such a man can do so if he has failed to timely contest the adjudication of paternity. Refusing to allow E. W. to reopen the question of paternity does not render § 26-17A-1 ineffective. Rather, in this case, *628 by signing the agreement and not having a blood test, E. W. failed to timely contest the question of paternity. An example of when § 26-17A-1 could be properly used would be if paternity was determined before scientific blood tests were available to make such a finding and in the paternity action the alleged father timely contested the claim of paternity but the court nevertheless found him to be the father.
In this case, E. W., the alleged father, deliberately chose to acknowledge paternity and to support a child that "might" be his biological child rather than seek the truth when the opportunity was provided. When the child's needs increased, E. W. did not want to continue his legal responsibility and sought to be relieved of his earlier choice. The trial court had no authority to grant E. W. relief. Ex parte State ex rel. J.Z., 668 So. 2d 566 (Ala.1995) (man was not entitled to reopen question of paternity, even though blood tests had been requested, but not performed, and lack of tests arose through no fault of alleged father).
In cases involving the welfare of the child, Alabama courts have always focused on the best interests of the child. That "best interests" principle applies to an illegitimate child as well as to a legitimate child. Allowing a man adjudicated, as a result of an earlier choice, to be the father, to set aside that adjudication, when setting it aside would be clearly contrary to the best interests of the child, would shift the focus to the adjudicated father's interests. I believe such a shift would be improper in a case such as this one, where the alleged father failed to challenge paternity when the paternity action was first brought.
I disagree with the Court of Civil Appeals' rationale that "equity justifies allowing [E.W.] to assert nonpaternity as a defense" to the mother's petition to modify the child support order. 695 So. 2d at 622. The time for E. W. to contest paternity was when the action was originally filed in 1983, or in 1989 when the income withholding order was entered. Rather than challenging paternity then, E. W. chose to accept the legal and financial responsibilities of paternity. The fact that E. W. made a deliberate choice, considered in light of our concern for the finality of judgments, the best interests of the child, and the public policy of this state against bastardizing children, requires me to conclude that the paternity adjudication should not be reopened.
I would like to note that other jurisdictions, when addressing the reopening of the paternity question when it has been shown that the man adjudicated to be the father is not the biological father, have declined to let the man reopen the question when he has made a deliberate choice otherwise. Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988) (prior determination of paternity made in child support proceeding could not be relitigated where the man had failed to challenge the paternity finding and had voluntarily entered into support agreement, even though later blood tests showed he was not the biological father); Robert J. v. Leslie M., 51 Cal. App. 4th 1642, 59 Cal. Rptr. 2d 905 (1997) (man who stipulated to paternity and was adjudicated to be the father, even though he did not believe he was the father, did not have due process right to declaration of nonpaternity five years after stipulation, even though he was not the biological father); Flemings v. Littles, 325 Ark. 367, 926 S.W.2d 445 (1996) (under statute governing modification of paternity orders, man adjudicated to be the father could not reopen the question of paternity and underlying factual issue whether he had been indigent and unable to pay for paternity testing at the time of the original proceeding).
[1] The Legislature, by Act No. 94-933, Ala. Acts 1994, authorized the reopening of a paternity case based on scientific evidence:
"§ 26-17A-1.
"(a) Upon petition of the defendant in a paternity proceeding where the defendant has been declared the legal father, the case shall be reopened if there is scientific evidence presented by the defendant that he is not the father. The court shall admit into evidence any scientific test recognized by the court that has been conducted in accordance with established scientific principles or the court may order a blood test, or a Deoxyribose Nucleic Acid test of the mother, father, and child. Whenever the court orders a test and any of the persons to be tested refuse to submit to the test, the fact shall be disclosed at the trial, unless good cause is shown.
"(b) The test shall be made by a qualified expert approved by the court. The expert may be called by the court or any party as a witness to testify to the test results and shall be subject to cross-examination by the parties. The test results may be admitted into evidence. If more than one test is performed and the results are conflicting, none of the test results shall be admissible as evidence of paternity or nonpaternity.
"(c) Compensation of the expert witness shall be paid by the petitioner.
"(d) In the event the child has been adopted the matter of paternity may not be reopened under this chapter."
[2] The Court of Civil Appeals said the following about E. W.'s waiver of the blood test:
"The trial court in the present case noted in its order that E. W. was indigent when he signed the admission and waived his right to a blood test, that he did so because he could not afford to pay for a blood test and was not informed that he was entitled to have tests conducted despite his inability to pay for the tests, and that he was not represented by counsel."
State ex rel. A. T. v. E. W., 695 So. 2d 619, 622 (Ala.Civ.App.1995).
[3] Section 26-17A-1, when read in para materia with the entire Uniform Parentage Act, could also be used by defendant/mothers, plaintiff/mothers, plaintiff/fathers, and children as well, to reopen the issue of paternity in appropriate cases. | May 23, 1997 |
a3173f7a-a427-4213-9611-b12a691ac587 | HealthTrust, Inc. v. Cantrell | 689 So. 2d 822 | 1941716, 1941776 | Alabama | Alabama Supreme Court | 689 So. 2d 822 (1997)
HEALTHTRUST, INC., d/b/a Crestwood Hospital
v.
Martha CANTRELL and William L. Cantrell, as parents and next friends of Laura Elizabeth Cantrell, a minor child.
Martha CANTRELL and William L. Cantrell, as parents and next friends of Laura Elizabeth Cantrell, a minor child
v.
ORTHOPAEDIC ASSOCIATES OF NORTH ALABAMA, P.C.
1941716, 1941776.
Supreme Court of Alabama.
March 7, 1997.
*824 Stanley A. Cash and J. Allen Sydnor, Jr., of Huie, Fernambucq & Stewart, Birmingham, for Crestwood Hospital.
Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for Martha Cantrell and William L. Cantrell.
Stanley Rodgers and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for Orthopaedic Associates of North Alabama, P.C.
KENNEDY, Justice.
Martha Cantrell and her husband William Cantrell, on behalf of their daughter, Laura Elizabeth Cantrell, sued Orthopaedic Associates of North Alabama, P.C. ("Orthopaedic Associates"), and HealthTrust, Inc. d/b/a Crestwood Hospital ("Crestwood"), after Laura was injured during a hip surgery performed by Dr. Howard Cobb Alexander. Dr. Alexander was employed by Orthopaedic Associates, and he performed the surgery at Crestwood.
The Cantrells alleged that Laura's sciatic nerve was injured during the October 28, 1990, surgery, either by being cut by the surgeon's scalpel or by the erroneous placement of retractors during the surgery. After the injury, Laura was forced to undergo several surgeries in attempts to correct the nerve damage, and she had to learn to walk again. She now walks with a permanent, severe limp due to numbness and disfigurement of her left leg and foot. The Cantrells alleged that either Dr. Alexander or Bobby Clark, a Crestwood operating room technician who assisted in the surgery, caused the injury. They further alleged that Crestwood had failed to properly train Clark.
The Cantrells' claims were submitted to a jury, which returned a verdict of $818,000 in compensatory damages in favor of the Cantrells against Crestwood, and a verdict against the Cantrells in favor of Orthopaedic Associates. Crestwood appeals from the judgment entered on the jury's verdict in favor of the Cantrells, and the Cantrells cross appeal from the judgment entered on the jury's verdict in favor of Orthopaedic Associates.
A jury's verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988). In reviewing a judgment based upon a jury verdict, this Court must review the record in a light most favorable to the appellee. Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208, 1211 (Ala.1990).
We will first address Crestwood's appeal. Crestwood maintains that the trial court erred in denying its motions for directed verdict and J.N.O.V., because, it contends, the Cantrells' claims were time-barred. It contends that the Cantrells brought this action in their names, instead of in Laura's name, and therefore that the action was subject to a two-year statute of limitations.
As noted above, the alleged negligence in this case took place during Laura's surgery on October 28, 1990. Laura was nine years old at the time of the surgery. Ala.Code 1975, § 6-5-482(a), provides that medical malpractice actions must be commenced within two years of the alleged malpractice. However, § 6-5-482(b) states that § 6-5-482 *825 is subject to § 6-2-8, which provides that the running of the statutory limitations period is tolled in situations where the plaintiff is a minor. This Court, in Abernathy v. Brookwood Health Services, 534 So. 2d 563 (Ala. 1988), held that the applicable limitations period for a minor plaintiff under § 6-5-482 is four years after the claim arose. Laura's claim was filed on July 23, 1993, approximately two years and nine months after the claim arose. Crestwood bases its argument on the fact that the Cantrells styled their complaint "Martha Cantrell and William L. Cantrell, as parents and next best friends of Laura Elizabeth Cantrell, a minor child v. Orthopaedic Associates ...", and that, as styled, the action was misleadingly commenced in the parents' own names, not the name of their child.
We agree with the Cantrells that the caption of this complaint was not misleading and did not make this case governed by § 6-5-482(a). Their action concerned only the injury sustained by Laura during her surgery, and they made no claim for damages on their own behalf. Because Laura was a minor, she could not bring the action herself. Laura's parents properly sued for her, as her "parents and next ... friends." The Cantrells filed this action within four years of Laura's surgery; therefore, it was filed within the limitations period allowed for a minor plaintiff in medical liability cases under § 6-5-482(b). Abernathy v. Brookwood Health Services, supra. The trial court correctly held that this action was filed within the period allowed by the applicable statute of limitations.[1]
Crestwood next contends that the trial court erred in allowing the Cantrells' attorney to read to the jury portions of Dr. Alexander's deposition. Crestwood contends that, because the deposition was taken two weeks before Crestwood was added as a defendant in this action, the reading of the deposition at trial violated Ala.R.Civ.P. Rule 32(a). That rule provides that a deposition "may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof."
This Court has interpreted Rule 32(a) as requiring that, in order for a deposition to be used at trial against a party, the party (1) must have been present at the deposition; or (2) must have been represented at the deposition; or (3) must have been given reasonable notice of the deposition. Chamlee v. Johnson-Rast & Hays, 579 So. 2d 580 (Ala. 1990). Crestwood was not present at, was not represented at, and was not given notice of, the deposition; this was because it was not a party to this action when the deposition was taken. However, Crestwood did not object to this evidence before it was admitted. Only after the attorney had read the deposition, which took up approximately 10 pages of the court reporter's transcript, did Crestwood complain:
In Costarides v. Miller, 374 So. 2d 1335 (Ala.1979), this Court addressed the situation where a party had failed to object before a deposition was read to the jury. This Court held that the complaining party had failed to preserve the alleged error, stating:
374 So. 2d at 1337.
Rather than objecting to the deposition before the attorney read it, Crestwood requested a limiting instruction after it had been read. Objections must be "raised at the point during trial when the offering of improper evidence is clear," see Charles W. Gamble, McElroy's Alabama Evidence § 426.01(3) (5th ed. 1996); Crestwood did not object at that point. Therefore, the alleged error was not preserved for review.
Crestwood next argues that the trial court erred in allowing the Cantrells to present testimony from their expert witness, Karen Edwards, concerning the standard of care the Cantrells allege was breached in this case. Issues at trial concerned whether Clark, the Crestwood operating room technician who assisted in the surgery, negligently used retractors and thereby caused Laura's injury, and whether Crestwood had negligently failed to train Clark in the use of retractors in surgery. Edwards, a registered nurse, testified concerning the standard of care applicable to operating room personnel and concerning the training of operating room personnel. Edwards stated that there was no evidence to show that Clark had received adequate training for him to properly function in Laura's surgery. She stated:
Crestwood maintains that Edwards was not a "similarly situated health care provider" and therefore could not properly testify regarding a medical standard of care, relying on Ala.Code 1975, § 6-5-548.
In Medlin v. Crosby, 583 So. 2d 1290 (Ala.1991), this Court established a framework under § 6-5-548 for determining whether an expert witness is qualified to testify in a medical malpractice case. Pursuant to Medlin, the trial court must answer the following questions before determining that an expert witness is "similarly situated" as to the defendant:
583 So. 2d at 1293.
As to question (1) stated in Medlin, we will consider the standard of care alleged to have been breached here as that to be met by an operating room technician assisting in surgery. As to question (2), we note that although Clark has been trained in operating room procedure and is experienced in that procedure, he is not board-certified as an operating room technician and does not hold himself out as a specialist. Therefore, as to question (3), we must determine whether Edwards qualified as a "similarly situated health care provider." Section 6-5-548(b), as it read at the time of the trial in this case, provided:
Edwards testified that she began working as an operating room nurse in 1979, eventually becoming director of medical services *827 for a Regional Medical Center, a major hospital in Memphis, Tennessee; in her work she has both worked directly in operating rooms and overseen hospital departments. Edwards worked in operating rooms from 1979 through 1994. As director in Memphis, Edwards was responsible for 14 departments, including anesthesia, the trauma operating room, the burn operating room, elective surgery operating rooms, day surgery, and recovery for those departments, until she resigned in 1994. Edwards is a certified operating room nurse and surgical assistant, and she has held offices in the Association of Operating Room Nurses (AORN). She has given continuing education lectures on operating room safety and has written for national publications in her field.
Because one need not have a license to work as an operating room technician, clause (1) of § 6-5-548(b) does not apply. Edwards meets the requirement of clause (2), because she was trained as an operating room technician and had worked directly as an operating room technician during the period 1971-74, before she graduated from nursing school in 1975. However, Crestwood disputes Edwards's qualifications under clause (3), contending that because she has not worked as an operating room technician since 1974, but since that time has worked as a nurse and surgical assistant, she was not properly qualified to testify concerning Clark's standard of care.
We hold that Edwards was qualified to testify as to Clark's standard of care and as to the training he should have received from Crestwood, because of her training, experience, and practice as the director of medical services at Regional Medical Center in Memphis during the 12 months preceding the surgery in question. Her background, which included holding several offices with AORN, allowed her to testify with authority concerning the standards and guidelines set by that organization and by the Joint Commission for Accreditation of Hospitals Organization (JCAHO) concerning operating room procedure and training. Edwards's testimony demonstrated a knowledgeable familiarity with surgical procedure and hospital practice. In Rodgers v. Adams, 657 So. 2d 838 (Ala. 1995), this Court noted that the experience and training of an expert witness and the experience and training of a defendant medical provider need not be exactly the same:
657 So. 2d at 842.
In Dowdy v. Lewis, 612 So. 2d 1149 (Ala. 1992), this Court held that a trial court did not err in admitting the testimony of two expert witnessesneither of whom had actively practiced nursing in the year preceding the alleged negligenceregarding the standard of care applicable in a nursing procedure. The experts were highly qualified nursing teachers. Edwards was similarly highly qualified. She was able to testify about "the standard of care alleged to have been breached" in this case, Rodgers, supra; therefore, the trial court did not abuse its discretion in allowing her to testify.
Crestwood next argues that the trial court erred in admitting a publication styled "Standards and Recommended Practices for Perioperative Nursing"; this was a 1986 publication of AORN. We find no error in the admission of this publication into evidence. It concerned in part the minimum requirements pertaining to the qualifications of staff working in an operating room. Edwards testified that the publication's "competency statements" require a health care provider to assign "activities to personnel based on their qualifications and patient needs"; this evidence was relevant to Crestwood's alleged failure to properly train Clark as an operating room technician. The trial court did not abuse its discretion in admitting this evidence.
Crestwood next contends that the evidence was insufficient to indicate that Clark was inadequately trained or that inadequate training caused Laura's injury.
*828 Clark testified that he had received training in the use of retractors and had used them in numerous surgeries. He testified that he simply held the retractors where Dr. Alexander placed them. However, he also testified that Laura's surgery was the first surgery in which he had held retractors in a child's hip. He was unaware of the size of a child's sciatic nerve, and he testified that while he was assisting in the surgery he did not know the distance between Laura's sciatic nerve and her hip joint. As noted above, the Cantrells produced expert testimony from Edwards indicating that Crestwood was negligent in allowing Clark to assist in the surgery. There was evidence from which the jury could find that Laura's injury was probably caused by improper movement of the retractors. The parties presented conflicting evidence, which raised questions of fact for the jury, and we find the evidence sufficient to support the jury's verdict for the plaintiffs.
Last, Crestwood maintains that the jury was influenced by extraneous facts and that its verdict was an improper quotient verdict. In its motion for J.N.O.V. or a new trial, Crestwood produced affidavits from six jurors indicating that the jury returned a quotient verdict. One of the affidavits was from Juror J; her affidavit also indicated that she had asked her husband about the requirements for becoming an operating room technician and that based on what he said she had told her fellow jurors that on-the-job training was all that was needed. In response, the Cantrells produced eight juror affidavits stating that the verdict was a unanimous agreement and that the jurors had made no prior agreement in their deliberations to be bound by a quotient verdict. Three of the Cantrells' affidavits came from jurors who were contradicting their prior affidavits that had been submitted by Crestwood, including Juror J, although Juror J's second affidavit did not contradict her prior statements regarding what she had asked her husband and what he had said. The trial court struck the affidavits offered by Crestwood and held that there was no evidence to indicate that the jury had been influenced by extraneous facts.
Generally, affidavits are inadmissible to impeach a jury's verdict. Wiberg v. Sadoughian, 514 So. 2d 940 (Ala.1987). An affidavit showing that extraneous facts influenced the jury's deliberations is admissible; however, affidavits concerning "the debates and discussions of the case by the jury while deliberating thereon" do not fall within this exception. Alabama Power Co. v. Turner, 575 So. 2d 551, 557 (Ala.1991). We conclude that the trial court did not abuse its discretion in denying Crestwood's motion on these grounds. The affidavits in question reflected the debates and deliberations of the jury, and the trial court properly struck them as violating the general rule against the use of jurors' affidavits to impeach a verdict. As noted above, the Crestwood affidavits conflicted with the affidavits submitted by the Cantrells stating that no quotient verdict was reached. Further, as the trial court noted in its order, there was no evidence to show that the jury's verdict was influenced by Juror J's knowledge of extraneous facts concerning the requirements of an operating room technician. It stated in the order:
As this Court stated in Fabianke v. Weaver, 527 So. 2d 1253 (Ala.1988), "To allow the deliberations of juries and the propriety of their discussions to be impeached by affidavits would ... invite a veritable barrage of post trial affidavits, garnered and sought by *829 nonsuccessful litigants in search of reversible error." 527 So. 2d at 1259, quoting Weekley v. Horn, 263 Ala. 364, 367, 82 So. 2d 341, 343 (1955).
For the foregoing reasons, the judgment for the Cantrells against Crestwood is affirmed. The Cantrells have stipulated that if this Court affirms their judgment against Crestwood, then they wish to dismiss their cross appeal as to Orthopaedic Associates. That cross appeal is therefore dismissed.
1941716AFFIRMED.
1941776DISMISSED.
MADDOX, SHORES, and SEE, JJ., concur.
HOUSTON and COOK, JJ., concur in the result.
HOOPER, C.J., recuses.
HOUSTON, Justice (concurring in the result).
Alabama Code 1975, § 6-5-482(b), provides:
(Emphasis added.)
This proviso countermands all of § 6-2-8, as it relates to the "commencement of actions"the "actions" it refers to are "actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort." See § 6-5-482(a). It clearly does.
Abernathy v. Brookwood Health Services, 534 So. 2d 563 (Ala.1988), in which I concurred, went in a rather circuitous way to explain that § 6-5-482(b) applied in that case. However, if Abernathy held that § 6-2-8 applied in actions against health care providers, then Abernathy is wrong; and if it did, then I make my mea culpa by quoting Jackson v. City of Florence, 294 Ala. 592, 598, 320 So. 2d 68 (1975), in which Justice Shores wrote for a majority of this Court: "As strongly as we believe in the stability of the law, we also recognize that there is merit, if not honor, in admitting prior mistakes and correcting them."
Alabama Code 1975, § 6-2-8, does not apply in medical liability actions. Section 6-5-482(b) applies to actions by minors brought under the Alabama Medical Liability Act. Because Laura was nine years old at the time of the "act, omission, or failure" complained of, she had four years after the "act, omission, or failure" to file an action. The action was filed within this time period, and, although the designation of the parties is not as clear as it could be, it is obvious from reading the complaint that Laura is seeking to recover for injuries she alleges were negligently inflicted by the defendants; as a minor, she had a right to seek such a recovery. See Barlow v. Humana, Inc., 495 So. 2d 1048 (Ala.1986). It is probable that if the complaint had sought damages that could have been recovered only by Laura's parents, the claim for those damages would have been barred by the two-year statute of limitations (§ 6-5-482(a)); however, that is not the issue before us.
[1] In regard to Justice Houston's opinion concurring in the result in this case, it should be pointed out that, according to this Court's holding in Abernathy v. Brookwood Health Services, supra (in which Justice Houston concurred), and the provisions of § 6-5-482(b), it is clear that § 6-2-8 applies in medical malpractice cases. The Abernathy Court expressly noted that § 6-5-482(b) recognizes the applicability of the § 6-2-8 exception, and correctly recognized that the four-year provision of § 6-5-482(b) limits the § 6-2-8 exception. Abernathy, supra, at 564. The result is the same; the four-year statute of limitations applies in this case. However, to state that § 6-2-8 "does not apply in medical liability actions" is to disregard both the express reference to that statute in § 6-5-482(b), and this Court's holding in Abernathy. | March 7, 1997 |
d1215bb7-8047-42d8-b2dc-9c482fcd1867 | Thompson v. Mindis Metals, Inc. | 692 So. 2d 805 | 1950837, 1951242 | Alabama | Alabama Supreme Court | 692 So. 2d 805 (1997)
S.B. THOMPSON, et al.
v.
MINDIS METALS, INC.
S.B. THOMPSON, et al.
v.
ZERO BULLET COMPANY, INC., et al.
1950837, 1951242.
Supreme Court of Alabama.
March 28, 1997.
M. Clay Ragsdale and E. Ansel Strickland of Law Offices of M. Clay Ragsdale, Birmingham, for Appellants.
*806 Robert S. Vance, Jr., of Johnston, Barton, Proctor & Powell, Birmingham, for Mindis Metals, Inc.
Jere F. White, Jr., and William S. Cox III of Lightfoot, Franklin & White, L.L.C., Birmingham, for Industrial Battery & Charger, Inc., Birmingham Battery & Golf Car, Inc., Ralph Vanderpool d/b/a Pulaski Battery Company, M. Kimerling & Sons, Inc., and Southern Battery, Inc.
SEE, Justice.
S.B. Thompson and several other individuals (all hereinafter referred to as "Thompson"), who lived near a battery-recycling facility, filed a complaint seeking recovery for personal injuries and property damage arising from alleged lead contamination. Although Thompson sued the operator of the recycling facility, which Thompson alleged had allowed lead to escape onto Thompson's property, as well as several businesses from which the recycling facility[1] had obtained batteries ("Sellers"),[2] this appeal involves only Thompson's claims against the Sellers. The trial court entered a summary judgment in favor of the Sellers on Thompson's claims of (1) strict liability, (2) negligent entrustment, and (3) negligence. We hold that Thompson failed to present substantial evidence creating a genuine issue of material fact as to any of his claims. Thomas v. Principal Financial Group, 566 So. 2d 735, 738 (Ala.1990). We therefore affirm.
On review of a summary judgment, we view the evidence in the light most favorable to the nonmovant, in this case, Thompson. Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987). So viewed, the evidence suggests the following facts: From approximately 1978 through 1991, the recycling facility operated in Birmingham. It purchased and picked up used whole batteries from various sources, including the Sellers.[3] The batteries were dismantled at the recycling facility and the recovered lead was sold.
The Sellers transferred complete ownership of the batteries to the recycling facility and had no control over the operations of the recycling facility with respect to the batteries or otherwise. Although the recycling facility had been cited by the Alabama Department of Environmental Management ("ADEM") for certain environmental violations, neither ADEM nor the federal Environmental Protection Agency ("EPA") had contacted the Sellers and informed them of any environmental problems before they sold the batteries.
Congress has enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"). 42 U.S.C. §§ 9601-9675 (1988). CERCLA greatly expanded liability beyond that provided by the common law, imposing liability for clean-up costs. See 42 U.S.C. § 9607 (1988). Thompson would have this Court expand the common law to, in effect, append private causes of action onto CERCLA. But see Exxon Corp. v. Hunt, 475 U.S. 355, 357, 106 S. Ct. 1103, 1106, 89 L. Ed. 2d 364 (1986) (stating that compensation of "third parties for damage resulting from hazardous substance discharges ... is clearly beyond the scope of CERCLA"). We decline to accept Thompson's invitation to judicially amend federal environmental laws, when both Congress and the Alabama Legislature remain free to provide private rights of action for environmental damage if they choose to do so.
Thompson argues that this Court should expand the common law doctrine of *807 strict liability to encompass the sale of batteries to the recycling facility. In Harper v. Regency Development Co., 399 So. 2d 248, 253 (Ala.1981), this Court held that "[strict] liability for an abnormally dangerous activity arises out of the intrinsic danger of the ultrahazardous activity itself and the risk of harm it creates to those in the vicinity." (Emphasis added) (citing Restatement (Second) of Torts, § 519, cmt. d (1977)). For example, the use of high explosives near a populated area is an ultrahazardous activity because reasonable care cannot eliminate the danger inherent in that activity. Harper, 399 So. 2d at 253-54. In contrast, the sale of firearms in and of itself has been held not to constitute an ultrahazardous activity. See Hammond v. Colt Indus. Oper. Corp., 565 A.2d 558, 562-63 (Del.Super.1989) (refusing to apply strict liability concept in the Restatement of Torts to sale of firearms because the sale of the products, as opposed to their use, is not abnormally dangerous). The sale of whole batteries is even less hazardous than the sale of firearms, and it certainly is not an ultrahazardous activity. The lead contamination alleged by Thompson did not result from the sale of the batteries. Instead, it came from the operations conducted by the recycling facility. Consequently, this claim is without merit.
Thompson also argues that this Court should expand the common law action of negligent entrustment to allow him to recover personal damages from the Sellers, because of their sale of whole batteries to the recycling facility. Under Alabama law, the essential elements of a cause of action for negligent entrustment are: (1) an entrustment (2) to an incompetent (3) with knowledge that he is incompetent, (4) proximate cause, and (5) damage. Dunaway v. King, 510 So. 2d 543, 545 (Ala.1987); Wilbanks v. Brazil, 425 So. 2d 1123, 1124 (Ala.1983). To "entrust" property to another, as opposed to transferring it permanently, one must retain either ownership of the property or dominion and control over it. Land v. Niehaus, 340 So. 2d 760, 762 (Ala.1976). If a party "transfer[s]... ownership [of property] to the buyer or donee and relinquish[es] ... control or dominion over the property," there is no entrustment. Oates v. Chris Meyers Pontiac-GMC, Inc., 583 So. 2d 1335, 1336 (Ala. 1991) (emphasis omitted); Land v. Niehaus, 340 So. 2d 760 (Ala.1976). It is undisputed that the Sellers in this case transferred their complete ownership interests in the batteries and retained no dominion or control over them. Thus, there was no entrustment, negligent or otherwise.
Finally, Thompson argues that we should expand the common law negligence action to impose a duty on the Sellers not to sell whole batteries to the recycling facility. "It is settled that for one to maintain a negligence action the defendant must have been subject to a legal duty." Morton v. Prescott, 564 So. 2d 913, 915 (Ala.1990). A legal duty arises either from the common law or from a statute. Graveman v. Wind Drift Owners' Ass'n, Inc., 607 So. 2d 199, 203 (Ala. 1992).
Thompson asserts that a common law duty not to sell the batteries to the recycling facility arose from the foreseeability of the alleged contamination that occurred there. See E.H. v. Overlook Mountain Lodge, 638 So. 2d 781, 783 (Ala.1994) (holding that clear foreseeability of harm is essential in determining whether a duty to prevent that harm exists). He argues that his injuries were clearly foreseeable by the Sellers because (1) the Sellers were aware of general federal environmental liability arising from the disposal of certain wastes, including batteries, (2) ADEM's public files contained certain references to environmental problems at the recycling facility, and (3) it would have been easy for the Sellers to contact ADEM and determine if the recycling facility was in compliance with state environmental laws.[4]
*808 Thompson relies for his argument on Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185 (Ala.1992). In Kelly, id. at 1187-89, the manufacturer and the seller marketed a spray air freshener composed solely of ethyl chloride. A 16-year-old girl obtained the air freshener for the purpose of inhaling it to become intoxicated. See id. at 1187. The propensity to intoxicate directly prompted the purchase for misuse. In this case, however, a commercial enterprise purchased the automobile batteries for the purpose of recovering the lead contained in them. The possibility of contaminating land adjoining the recycling facility did not prompt the purchase. Accordingly, the direct foreseeability of misuse is absent in this case. The Sellers, therefore, had no duty to protect Thompson from the potentially harmful actions allegedly occurring at the recycling facility.[5]Overlook Mountain Lodge, 638 So. 2d at 783.
The summary judgment in favor of the Sellers is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, and COOK, JJ., concur.
KENNEDY, J., concurs in the result.
[1] The term "recycling facility," as used in this opinion, refers to both the operator of the facility and the physical facility itself.
[2] Since Thompson filed his briefs in this appeal, he has settled his claims against several of the defendants, including Norfolk Southern Railway Company and Exide Corporation. Accordingly, the term "Sellers," as used in this opinion, includes only those parties still active in the litigation.
[3] None of the Sellers manufactured batteries.
[4] We decline Thompson's invitation to impose on sellers of automotive parts that may potentially pollute, a common law tort duty to search the public records to determine if the buyer is complying with CERCLA or state environmental laws. See Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548, 557 (Ala.1985) (refusing to extend scope of title insurance company's duty to search public records beyond those records specified in the contract of title insurance); Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413, 415 (Ala.1980) (refusing to impose on the purchaser of real property lots a duty to search county health department records for disapproval of lots for septic tank placement).
[5] We note that the concepts of reasonable care and foreseeability are foreign to CERCLA. See United States v. Monsanto Co., 858 F.2d 160, 168 (4th Cir.1988) ("The traditional elements of tort culpability on which the site-owners rely simply are absent from the statute."), cert. denied, 490 U.S. 1106, 109 S. Ct. 3156, 104 L. Ed. 2d 1019 (1989). This is because Congress did not design CERCLA to compensate for private damages, but to pay for clean-up costs. See Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1469 (10th Cir.1993) (stating that "both houses of Congress considered and rejected any provision for recovery of private damages unrelated to the cleanup effort, including medical expenses") (quoting Daigle v. Shell Oil Co., 972 F.2d 1527, 1535 (10th Cir.1992)). | March 28, 1997 |
61f827b3-bf0b-4324-aeb6-d0abf2a4c347 | Ex Parte Mutual Sav. Life Ins. Co. | 698 So. 2d 772 | 1951856 | Alabama | Alabama Supreme Court | 698 So. 2d 772 (1997)
Ex parte MUTUAL SAVINGS LIFE INSURANCE COMPANY.
(In re Betty Perkins RICHARDSON v. MUTUAL SAVINGS LIFE INSURANCE COMPANY).
1951856.
Supreme Court of Alabama.
April 11, 1997.
*773 I. David Cherniak and Lawrence J. Seiter of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for Petitioner.
Christopher E. Peters of Cherry, Givens, Peters, Lockett & Diaz, P.C., and Donald C. Partridge of Hess & Atchison, Mobile, for Respondent.
BUTTS, Justice.
We granted the defendant Mutual Savings Life Insurance Company's petition for a writ of certiorari to the Court of Civil Appeals to review that court's judgment reversing the trial court's summary judgment in favor of Mutual Savings on Betty Richardson's tort-of-outrage claim.
In October 1991, Mutual Savings issued insurance policies on the lives of Betty Richardson and her son, Rochester Perkins. The policies were issued to Richardson's sister, Geraldine Hall. Hall paid the premiums for the policies and was named as the beneficiary on both policies. Neither Richardson nor Perkins was present when the Mutual Savings agent completed the applications for the policies. The insurance agent left the applications with Hall in order for her to obtain the signatures of Richardson and Perkins. The agent did not witness the signature of either Richardson or Perkins on the applications, and he did not obtain the consent of either of them for Mutual Savings to issue the insurance policies on their lives. Subsequently, the agent received the signed applications from Hall, and after Mutual Savings had issued the policies the agent delivered the policies to Hall. Neither Richardson nor Perkins was aware of the existence of these policies on their lives.
In December 1991, Charles Perkins, the brother of Richardson and Hall, killed Rochester Perkins. Thereafter, the administratrix of Rochester Perkins's estate filed a wrongful death action against Mutual Savings. In January 1994, during the course of her deposition in the wrongful death action, Hall admitted that she had forged the signatures of both Richardson and Perkins on the applications for the insurance policies.
Nine months later, Mutual Savings sent Hall a letter, dated October 14, 1994, notifying her that the life insurance policy on Richardson's life had been cancelled. On the same date, Richardson sued Mutual Savings, alleging that Mutual Savings had committed the tort-of-outrage.
Mutual Savings filed a motion for a summary judgment, which the trial court granted. Richardson appealed; the Court of Civil Appeals reversed the summary judgment for Mutual Savings. Richardson v. Mutual Savings Life Ins. Co., 698 So. 2d 769 (Ala.Civ. App.1996).
In reviewing the disposition of a motion for summary judgment, we utilize the same standard the trial court used in determining whether the evidence before it "made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. South Trust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. *774 Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990).
In Thomas v. BSE Industrial Contractors, Inc., 624 So. 2d 1041, 1043-44 (Ala.1993), this Court elaborated on the burden of proof a plaintiff must carry in order to recover for the tort of outrage:
(Citations omitted.)
Viewing the evidence in a light most favorable to Richardson, we must consider whether she presented substantial evidence from which reasonable persons could find that the actions of Mutual Savings amounted to outrageous conduct and caused her severe emotional distress. Richardson alleged that Mutual Savings did the following acts, which she says amounts to outrageous conduct: (1) That it placed her life at risk by issuing a life insurance policy, in violation of its own rules, on her life, to a beneficiary who had forged her name to the application, and (2) that it allowed the policy to remain in effect while collecting premiums for nine months after Hall had admitted, in sworn testimony, to forging Richardson's signature on the policy application. Additionally, she contends that Mutual Savings performed such acts in spite of its knowledge that Hall's brother had killed her son after Hall had obtained a life insurance policy with Mutual Savings on the son by also forging his signature. In response, Mutual Savings denies these allegations and asserts that Richardson did not produce substantial evidence of any element of the tort-of-outrage cause of action.
In deposition testimony, a representative of Mutual Savings testified as follows regarding its decision to cancel the policy:
Based on these facts and on this Court's high standard with regard to the proof necessary to substantiate an outrage claim, we hold that the conduct of Mutual Savings cannot be characterized as "atrocious and utterly intolerable in a civilized society." Inmon, at 365. While it is apparent that there was some delay in Mutual Savings' decision to cancel the policy, a delay that some might view as unreasonable, we cannot conclude that Mutual Savings' conduct went beyond the bounds of decency. Moreover, we conclude that Richardson did not present substantial evidence that Mutual Savings' delay caused her to suffer extreme emotional distress. In light of this, we hold that the trial court properly concluded that Mutual Savings was entitled to a judgment as a matter of law on Richardson's tort-of-outrage claim. Accordingly, we reverse the judgment of the Court of Civil Appeals reversing the summary judgment, and we remand this cause to that court for further proceedings or an order consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, COOK, and SEE, JJ., concur. | April 11, 1997 |
c6c6b6d4-4eaf-4479-80b3-1be0bf1a3028 | Ex Parte Smith | 698 So. 2d 219 | 1951688 | Alabama | Alabama Supreme Court | 698 So. 2d 219 (1997)
Ex parte James Wyman SMITH.
(Re James Wyman Smith v. State).
1951688.
Supreme Court of Alabama.
April 18, 1997.
Rehearing Denied June 13, 1997.
*220 Thomas E. Jones, Auburn; and J. Michael Williams, Sr., Auburn, for Petitioner.
Bill Pryor, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for Respondent.
KENNEDY, Justice.
James Wyman Smith was indicted in Lee County for the murder of Linda Darlene Talbert, a murder committed during a kidnapping and thereby made capital pursuant to § 13A-5-40(a)(1), Ala.Code 1975. He has been twice tried and convicted on that charge.
In the first trial, the jury found Smith guilty of the capital offense charged and the court sentenced him to death. The Court of Criminal Appeals affirmed. Smith v. State, 581 So. 2d 497 (Ala.Crim.App.1990). We reversed, granting a new trial because the prosecutor had made improper prejudicial comments during closing arguments in the guilt phase and because the trial court had wrongly admitted evidence of a collateral crime. Ex parte Smith, 581 So. 2d 531 (Ala. 1991).
At his second trial, Smith was again convicted and he was again sentenced to death. The Court of Criminal Appeals affirmed. Smith v. State, 698 So. 2d 189 (Ala.Crim.App. 1996). We granted certiorari review as a matter of right, pursuant to Rule 39(c), Ala. R.App.P. We affirm.
The underlying facts are as follows: Linda Darlene Talbert was abducted from her place of employment, a convenience store in the Smiths Station community in Lee County in August 1984. Her nude body was discovered three days later in a field several miles from the store. She had been strangled with her brassiere and pantyhose. A dog hair, fiberglass, and carpet fibers were found on the body; they were taken to the crime laboratory. Vaginal swabs and samples of Linda Talbert's hair were also sent to the crime lab. The police discovered automobile tire prints at the scene.
In December 1984, Smith was arrested in Auburn for burglary. After the burglary, Smith had eluded police and had abandoned *221 the car he was driving. Smith pleaded guilty to burglary and was sentenced to prison. The police impounded the car, the title to which was in the name of Smith's wife, for insurance purposes. While the car was impounded, Smith's wife consented to a search of the car. The tire prints on the car matched the tire prints taken from the field were Linda Talbert's body was found. Hair, fiberglass, and carpet fiber samples were removed from the car for examination in the crime lab.
At Smith's murder trial, the State's expert witnesses on the physical evidence testified that the fiberglass and carpet fibers found on Talbert's body were similar to the fiberglass and carpet in Smith's car. The hair found in Smith's car, they said, was "very, very similar" to hair taken from Talbert's body. The dog hair found on Talbert's body was very similar to the hair of the Smiths' family pet. No DNA testing was done on the human hair found in Smith's car, because there was no root; that is where DNA cellular material would be found. Vaginal swabs taken from Talbert's body were inconclusive as to the presence of semen. According to the State's expert, Talbert's body was found nude and in a position consistent with a sexual battery.
Smith's prison cellmate, Marion Enfinger, testified at Smith's first trial. He had died of bone cancer before Smith's second trial. At the second trial, Enfinger's testimony from the first trial was read into the record. When he testified, Enfinger was in prison for obtaining prescription drugs by fraud. He testified that he did not receive any promises or deals from the district attorney in exchange for his testimony.
Enfinger stated that while he was sharing a cell with Smith, Smith told him that he had kidnapped Talbert at gunpoint from the convenience store; that he had used the same gun in the Auburn burglary; and that his dog was in the car when he kidnapped Talbert. According to Enfinger, Smith said that he drove Talbert to a vacant field and there attempted to have sexual intercourse with her, but could not perform; then, according to Enfinger, Smith said he choked Talbert with her bra and pantyhose.
Smith raises 14 issues for this Court's review, all of which were raised before the Court of Criminal Appeals and were discussed in that court's lengthy opinion. We have carefully reviewed the record for plain error, in accordance with Rule 39(k), Ala. R.App.P., and have found none. We discuss here two issues that were raised before the Court of Criminal Appeals.
The first issue is whether trial court erred in failing to allow Smith to ask certain reverse-Witherspoon questions to the prospective jurors. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), allows the prosecution in a capital case to strike for cause those potential jurors who would automatically vote against imposing capital punishment without regard to any evidence that might be developed at trial or those potential jurors whose attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), the Supreme Court held that in a capital case the prosecutor may exclude venirepersons whose views would "prevent or substantially impair" their performance of their duty as a jurors.
In Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992), the Supreme Court held that it violated the requirements of due process to allow the prosecution to strike for cause persons who are opposed to the death penalty while not allowing the defense to exclude for cause those venirepersons who are predisposed to impose capital punishment regardless of the evidence presented. Thus, a capital defendant may challenge for cause any venireperson who would automatically vote to impose death if the defendant was convicted of a capital crime. A capital defendant may ask to inquire of the prospective jurors' views on capital punishment, so as to identify jurors predisposed to impose capital punishment; jurors who are unalterably in favor of the death penalty and, therefore, unable to follow the law, should be disqualified. The defendant is entitled to a new trial if one such predisposed person remains on the jury and the defendant is convicted.
*222 Smith admits that the trial court allowed him to ask reverse-Witherspoon questions to some of the prospective jurors, but he says he was not allowed to ask the questions of all the jurors. Smith further argues that the trial court erred in interceding and asking its own reverse-Witherspoon questions.
The trial court administered the oath to the venire, had each venireperson identify himself or herself, and then began asking general voir dire questions to the entire venire. (R.T. 435-440.) The court asked "Do you have a fixed opinion against punishment which would include death or imprisonment in the penitentiary?" (R.T. 446.) Six venirepersons raised their hands; the trial court noted their names, in order to question them on this issue later. The trial court then continued to ask questions of the venire as a whole.
The potential jurors who had raised their hands in response to any of the trial court's questions remained in the room while the others left the room. The court and counsel questioned the jurors separately regarding their opinions on capital punishment, and four were struck for cause. (R.T. 460-500.) The court then divided the venire into 5 panels of 14 members each and allowed counsel to conduct further voir dire examination. The trial court told counsel to ask general questions to each panel and told them that it would allow them to examine the jurors "individually to whatever extent you wish, within reason." (R.T. 433.) The judge also instructed counsel to ask questions of the panel and said, "[T]hen if you have any questions that might relate to any individual juror, I will give you the opportunity to question them outside the presence of the others." (R.T. 531.)
The voir dire examination lasted three 8-hour days, and it makes up 1400 pages of the record. Each panel was asked general questions, and many jurors were examined individually. Most of the questions were asked by defense counsel. During voir dire, three more venirepersons indicated that they had a problem with imposing capital punishment, and they were subsequently struck from the jury. (R.T. 686-92, 709-16, 737-42.)
Smith contends that the trial court initially allowed him to ask reverse-Witherspoon questions, but stopped him before he had questioned all prospective jurors. Smith contends that this was error under Morgan. In Morgan, the trial court refused to allow defense counsel to ask specifically whether any of the potential jurors would automatically vote for the death penalty. Instead, the trial court asked general questions about the veniremembers' ability to be fair and impartial. The Supreme Court held that on voir dire a trial court must, at the defendant's request, inquire as to whether prospective jurors would automatically impose the death penalty.
After reviewing the record, we conclude that Smith was allowed to ask reverse-Witherspoon questions in accordance with Morgan. On occasions, Smith's reverse-Witherspoon questions were misleading or confusing. On those occasions, the trial court interceded and asked questions as to whether the potential juror would automatically impose the death penalty. For example, the following occurred when Smith was conducting individual voir dire of potential Juror H.:
(R.T. 908-13.)
Smith was not prohibited from asking reverse-Witherspoon questions of the venire; rather, the trial court encouraged such questions and merely clarified those that were confusing or misleading. We hold that the trial court did not abuse its discretion in regard to those questions.
Smith contends that the trial court made his counsel "look poorly" in front of the jury on voir dire by interrupting the questioning. Specifically, Smith contends that the trial court denied a proper voir dire examination by stating to Smith's attorney in front of the venire: "... [G]o ahead! Come on! Talk faster. I know what you're talking about." (R.T. 588.) We note that in fact these statements were not made before the jury, but were made outside the jury's presence. They, therefore, did not prejudice Smith.
At oral argument before this Court, Smith stressed the argument that Alabama's system for compensating attorneys appointed to represent indigent defendants is unconstitutional. Smith contends that § 15-12-21, Ala. Code 1975, violates the Due Process and Equal Protection Clauses of the federal constitution; that it violates the state law doctrine of separation of powers; that it is an unconstitutional taking of property without due process of law; and that it deprives indigent defendants of effective assistance of counsel.
First, we note that the record reflects that at trial Smith was ably represented by *224 experienced counsel. Also, Smith's counsel admitted at oral argument before this Court that Smith's rights were not infringed upon by the application of the statute, because, counsel conceded, counsel had zealously prepared and had zealously represented Smith at both trials. This fact is also apparent from the number of hours claimed as out-of-court work performed by counsel in preparing for trial. We find nothing in the record to indicate that counsel's efforts were hindered in any way by the fact that the statute limited the fees and expenses allowed. The trial court also stated that Smith's counsel had done an "excellent job" for their client. Therefore, we cannot say that Smith's rights were violated by the application of Alabama's statutory system of compensating counsel for indigent defendants.
Second, we note that counsel appointed in a capital murder case are entitled to fees not available to other appointed counsel. Section 15-12-21(d) provides in pertinent part as follows:
Thus, counsel are entitled to fees for all in-court work. The $1,000 cap Smith claims is unconstitutional applies only to fees for an attorney's out-of-court work. This does not mean that counsel may not be entitled to payment of certain other out-of-court expenses.
In May v. State, 672 So. 2d 1307 (Ala. Crim.App.1993), writ quashed, 672 So. 2d 1310 (Ala.1995), this Court refused to reexamine our holding that the statutes concerning attorney fees for those appointed to represent indigent defendants did not infringe upon the constitutional rights of the defendant. However, this Court's order quashing the writ of certiorari in May had the effect of leaving unreviewed the holding by the Court of Criminal Appeals that an appointed lawyer is entitled to expenses for office overhead reasonably incurred and reasonably calculated in representing a defendant. We agree with the Court of Criminal Appeals' holding in May that § 15-12-21 authorizes payment to a court-appointed attorney for overhead expenses reasonably incurred in defense of an indigent defendant.
The Court of Criminal Appeals, in Ex parte Barksdale, 680 So. 2d 1029, 1030-31 (Ala.Crim.App.1996), stated:
In Barksdale, the court cited an attorney general's opinion that implied, as did the statute, "that a fixed amount must be preapproved by the court before expenses may be reimbursed by the State Comptroller's office." 680 So. 2d at 1030.
Smith's counsel requested payment of extraordinary expenses associated with the trial in this case. (C.R.260, 398, 401, 407, 413, 452, 482.) Because counsel's request relates to the second trial of this case and because counsel made the request for payment of certain overhead expenses before the second trial, we will allow counsel to submit a list of expenses to the trial court, as recommended in Barksdale, for the trial court to determine whether those overhead expenses *225 were reasonably incurred in regard to Smith's second trial.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, COOK, BUTTS, and SEE, JJ., concur. | April 18, 1997 |
ffe6d40a-eceb-4372-b696-50846a44183f | Ex Parte Myers | 699 So. 2d 1285 | 1951981 | Alabama | Alabama Supreme Court | 699 So. 2d 1285 (1997)
Ex parte Robin MYERS.
(In re Robin D. Myers v. State of Alabama).
1951981.
Supreme Court of Alabama.
May 9, 1997.
Rehearing Denied July 18, 1997.
*1286 Brent A. King, Decatur; and Bernard E. Harcourt, Cambridge, MA, for petitioner.
Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for respondent.
HOUSTON, Justice.
Robin Myers was convicted of the capital offense of murder committed during the course of a burglary, Ala.Code 1975, § 13A-5-40(a)(4), and the capital offense of murder during the course of a robbery, § 13A-5-40(a)(2). These convictions were based on one killing. The jury recommended a sentence of life imprisonment without the possibility of parole; the trial court rejected this recommendation and sentenced Myers to death by electrocution. In a unanimous decision, the Court of Criminal Appeals on May 24, 1996, affirmed Myers's conviction and death sentence. Myers v. State, 699 So. 2d 1281 (Ala.Crim.App.1996), and it later overruled his application for rehearing. We granted certiorari review pursuant to Rule 39(c), Ala.R.App.P. We affirm.
Although Myers presented 31 issues for us to review, we find it necessary to address only five of those issueswhether the trial court erred in denying Myers's challenges for cause regarding jurors who were biased in favor of police officers; whether the trial court erred in failing to instruct the jury on the lesser included offense of felony murder; whether the trial court erred in failing to adequately instruct the jury on the legal principles of intoxication; whether the trial court erred in allowing a state's witness to wrongly comment on Myers's post-Miranda silence; and whether, in light of the Court of Criminal Appeals' holding in Pace v. State, [CR-93-0740, Sept. 27, 1996] ___ So.2d ___ (Ala.Crim.App.1996), the indictment against Myers should be dismissed and the case remanded to the trial court.
According to the pertinent facts as set forth in the Court of Criminal Appeals' opinion, the following occurred:
699 So. 2d at 1282.
Myers alleges that during voir dire examination Juror C. Smith admitted that he *1287 would give more weight to the testimony of a police officer than to the testimony of other witnesses. Myers challenged Juror C. Smith, based on what Myers contends were his views regarding the testimony of police officers. The trial court denied the challenge for cause.
Myers contends that the trial court erred in denying his challenge of C. Smith for cause. According to Myers, when the trial court failed to strike C. Smith for cause, it violated the principles of Uptain v. State, 534 So. 2d 686 (Ala.Crim.App.1988) (wherein the Court of Criminal Appeals held that jurors who indicate that they would believe a police officer's testimony over that of another witness lack impartiality and should be struck for cause and, quoting State v. Davenport, 445 So. 2d 1190, 1193-94 (La.1984), stated: "`[a] juror ... who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve'"); Mason v. State, 536 So. 2d 127 (Ala.Crim.App.1988) (which reinforces Uptain); and McCray v. State, 629 So. 2d 729 (Ala.Crim.App.1993) (quoting Uptain with approval). Therefore, he argues, he is entitled to a new trial.
The State argues that Myers's challenge for cause was directed at the wrong venirememberthat the veniremember Smith who responded to the questions regarding the testimony of the police officer was R. Smith (juror number 36), not C. Smith (juror number 33).[1]
In response to the State's argument about which veniremember Smith expressed views about believing the testimony of a police officer over that of one who is not a non-police officer, Myers argues that both defense counsel and the district attorney, who were present at trial and conducted the voir dire, agreed that it was C. Smith (juror number 33), not R. Smith (juror number 36), who commented about a police officer's testimony.
To justify a challenge of a juror for cause, there must be a statutory ground as set forth in Ala.Code 1975, § 12-16-150, or some other matter that discloses absolute bias or favor and leaves nothing to the trial court's discretion. See, Nettles v. State, 435 So. 2d 146, 149 (Ala.Crim.App.), aff'd, 435 So. 2d 151 (Ala. 1983). See also, Clark v. State, 621 So. 2d 309, 321 (Ala.Crim.App.1992). The trial court's ruling on a challenge for cause is accorded great weight and will not be disturbed on appeal unless it is clearly shown to be an abuse of discretion. Nobis v. State, 401 So. 2d 191 (Ala.Crim.App.), cert. denied, 401 So. 2d 204 (Ala.1981).
During the trial court's qualifications of the jury venire, the trial court asked if there was anyone who knew why, if selected as a juror in this case, he could not give both the State and the defendant a fair and impartial trial. The following colloquy occurred:
The veniremembers were questioned in panels consisting of 12 persons. R. Smith and C. Smith were both on the second panel, and neither defense counsel nor the district attorney noted on the record that there were two Smiths on the same panel. When panel two was called, in response to the question whether anyone had ever worked in law enforcement, the following occurred:
(Clearly, R. Smith was the Juror Smith in this instance.) Later during questioning, the following occurred:
Subsequently, a Juror Smith stated that he had had two chain saws stolen from his garage in Michigan. (Presumably, because R. Smith had previously stated that he had lived in Michigan, the Juror Smith whose chain saws were stolen was R. Smith.)
During later questioning, a Juror Smith stated that although he had never testified for the State, he had, "as a reserve officer," served as a "back-up witness." (Presumably, because R. Smith had been a reserve officer, the Juror Smith who had served as a back-up witness was R. Smith.)
Later, a Juror Smith responded again, as follows:
(It is unclear whether R. Smith or C. Smith is the Juror Smith who answered these questions.)
In response to questioning about elderly victims, the following occurred:
After further questioning, defense counsel specifically stated:
(Although only identified as Juror Smith, it is apparent that C. Smith is the one responding, because of the statement "we haven't heard much from you.")
Later in the proceedings, the following occurred:
(Although only identified as Juror Smith, presumably R. Smith is the one responding, because of the way the question was phrasedbecause the question refers to the testimony of a police officer and R. Smith had previously stated that he had been a police officer.)
After the trial court dismissed the second panel, defense counsel made four challenges for cause, one being directed toward C. Smith (Juror number 33):
From a thorough review of the record of the voir dire process, it is apparent that C. Smith seldom answered any questions, and it is apparent from all the circumstances that the Juror Smith who responded to the question about a police officer's testimony was R. Smith, not C. Smith. Nothing in the record shows that a challenge for cause should have *1290 been granted as to C. Smith. The trial court did not err in denying Myers's challenge for cause directed toward C. Smith.
Thus, the question becomes whether the trial court erred in not sua sponte removing R. Smith based on his response to the question about a potential juror's giving the testimony of a police officer more weight than the testimony of one who was not a police officer. Because Myers failed to object at trial to the trial court's failure to remove R. Smith for cause, this issue must be reviewed under the "plain error" rule. Under the plain error rule, this Court will "notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." Rule 39(k), Ala.R.App.P.; see Ex parte McNair, 653 So. 2d 353 (Ala.1994), cert. denied, 513 U.S. 1159, 115 S. Ct. 1121, 130 L. Ed. 2d 1084 (1995).
R. Smith's response, by itself, to the question whether anyone would believe a police officer over one not a police officer "in a situation where a police officer testified that [it] happened a certain way and a non police officer said it happened another way, with nothing else to guide you," was not a sufficient reason for granting a challenge for cause. R. Smith's response to the question based on that narrow set of circumstances, in light of the entire voir dire questioning, did not indicate an absolute bias toward believing the police officer's testimony regardless of the other evidence presented and the trial court's instructions. In response to the trial court's question of the venire whether "if selected as a juror in this case, he could not give both the State and the defendant a fair and impartial trial"whether he thought that he could "try this case, if [he was] selected to serve on the jury, on the law and the evidence as it [came] to [him] throughout the course of the trial," R. Smith responded, "I would certainly try to stay open-minded, although I have been on the other dwelling on those types of issues. I would try to do that, yes." We find no plain error in the trial court's failure to sua sponte remove R. Smith from the jury for cause.
Myers also maintains that the trial court erred in failing to instruct the jury on the felony-murder doctrine. He contends that the evidence in this case is virtually identical to the evidence in Starks v. State, 594 So. 2d 187 (Ala.Crim.App.1991) (in which the Court of Criminal Appeals held that the State presented testimony that supported the theory that the killing occurred during a planned robbery, but that the defendant was entitled to a lesser included offense instruction on felony murder, which required no intent for the killing, because there was no testimony of a planned killing, only of a planned robbery, and no evidence that the defendant had a weapon when he entered the store he intended to rob). According to Myers, the evidence, when considered in the light most favorable to the State, could have convinced the jury that although he had a motive and intended to rob the victim of her VCR in order to obtain drugs, he did not plan to kill heri.e., that he did not have the specific intent to kill her. Therefore, he says, the evidence clearly supported a charge on the lesser included offense of felony murder.
The State maintains that there was no evidence to support a charge on the lesser-included offense of felony murder. Rather, it argues, the evidence showed, among other things, that Myers was allowed into the victim's house under the pretense of wanting to use her telephone; that he stabbed her four times and that the stabbings resulted in her death; and that upon leaving the house, he took a VCR, which he traded for a rock of cocaine. According to the State, Myers's reliance on Starks v. State, supra, for his argument that he was entitled to a jury charge on felony murder is misplaced, because, it says, Starks is factually dissimilar to this case.
A defendant is entitled to a charge on a lesser-included offense if there is a reasonable theory to support such a charge, Ex parte Oliver, 518 So. 2d 705 (Ala.1987), even if the defendant denies committing the crime, Ex parte Pruitt, 457 So. 2d 456 (Ala. 1984), and even if the evidence supporting *1291 the charge is offered by the State, id.; Chavers v. State, 361 So. 2d 1106 (Ala. 1978). See Daniels v. State, 534 So. 2d 628 (Ala.Crim. App.1985), judgment aff'd, Ex parte Daniels, 534 So. 2d 656 (Ala.1986), cert. denied, Daniels v. Alabama, 479 U.S. 1040, 107 S. Ct. 898, 93 L. Ed. 2d 850 (1987). "A charge on a lesser, non-capital offense is required only when there is a basis in the evidence which provides a reasonable theory supportive of the charge. Beck v. State, 396 So. 2d 645 (Ala. 1980)." Godbolt v. State, 429 So. 2d 1131, 1134 (Ala.Crim.App.1982). See Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049, 72 L. Ed. 2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980); Chavers v. State, supra; Fulghum v. State, 291 Ala. 71, 277 So. 2d 886 (1973).
In Starks, five men were indicted for capital murder. Only two of the five were tried for capital murder; the other three testified against Starks and his uncle in exchange for being charged with an offense less than capital murder. In Starks, the evidence indicated that the killing was committed during a planned robbery, but there was no testimony of any plan to kill the victim, and one of the co-defendants testified that Starks had no weapon when he entered the store. Starks, supra. Therefore, the Court of Criminal Appeals held that, based on the evidence, Starks was entitled to a jury charge on the lesser-included offense of felony murder because "whether [he] intended to kill the victim during the commission of [the] robbery was a question for the jury." Starks, supra, 594 So. 2d at 195.
From a thorough review of the record, we conclude that, as the State contends, there was no testimony that Myers had not planned to kill his victim and no testimony that he was not armed with a knife before he entered the victim's house. Rather, although ever since he was arrested Myers has maintained his innocence of the murder and has insisted that he found the VCR and then traded it for drugs, the evidence established that Myers gained entry into the victim's house by deception, that he pretended to use the telephone, that he stabbed and killed his victim, and that he took the victim's VCR to trade for crack cocaine. That evidence could support only a conviction of the capital offense for which Myers was charged in the indictment. We find no evidence to support a theory of felony murder. The trial court did not err in failing to give an instruction on felony murder.
Myers further argues that the trial court failed to adequately instruct the jury on the legal principles of intoxication[2]that it erred by not instructing the jury that while intoxication neither excuses nor palliates a crime, it may negate the element of intent. According to Myers, had the jury been given a proper instruction on intoxication, it could have found that his use of crack negated any specific intent to kill.
The State concedes that the trial court did not expressly instruct on how a defendant's intoxication could prevent the defendant from forming or having a specific intent required as an element of a particular offense, but it maintains that the jury could infer that the instructions on manslaughter and the instructions on voluntary intoxication were related to each other because those two instructions were given together. According to the State, the trial court used the word "recklessly" only when it instructed the jury on manslaughter and voluntary intoxicationthis fact, the State says, created an inference that the instructions were to be applied togetherand, the State says, when the trial court instructed on capital murder it always emphasized that a specific intent to kill was required as an element of that offense.
Although Myers acknowledges the State's concession, he nonetheless points out that this is a death penalty case and argues that it is not the jury's role to infer from the juxtaposition of instructions what the instructions really mean. He argues that it is unreasonable to assume that the jury can infer how instructions relate to one another.
*1292 The jury charge on intoxication was as follows:
After the trial court had instructed the jury, defense counsel objected, as follows:
Following defense counsel's objection, the trial court brought the jury back into the courtroom and gave the following curative instruction:
(Emphasis added.) This curative instruction clearly apprised the jury that it could consider manslaughter if it found that Myers was so intoxicated that he acted recklessly and did not act with the specific intent to kill. Given the language of the curative instruction, we conclude that the instruction on intoxication was complete and adequate.
Myers next argues that the trial court allowed Officer Dwight Hale, a sergeant with the Decatur Police Department and a witness for the State, to comment on Myers's post-Miranda-warning silence. He argues that Officer Hale's testimony was "a direct comment on [Myers's] choice to remain silent after he was advised of his rights and after the interrogating officers explicitly told him that they would not believe anything he said."
Any comment on a defendant's silence after Miranda warnings are given is fundamentally unfair and is repugnant to the principles embodied in the 5th and 14th Amendments. Introducing evidence that the defendant elected to remain silent when confronted with accusations violates the defendant's Fifth Amendment right to remain silent and his Fifth and Fourteenth Amendment rights to due process. Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Ex parte Harris, 387 So. 2d 868 (Ala. 1980); Ex parte Johnson, 629 So. 2d 619 (Ala.1993). See also Ex parte Marek, 556 So. 2d 375, 382 (Ala.1989), in which the Court, noting that the use of tacit admissions occurring after an individual had been given the Miranda warnings had been abolished in Ex parte Harris, supra, abolished the tacit admission in pre-arrest cases "to the extent that the rule allows the introduction of evidence of an accused's silence when confronted with an accusation."
Doyle, 426 U.S. at 617-18, 96 S. Ct. at 2244-45, citing United States v. Hale, 422 U.S. 171, 177, 95 S. Ct. 2133, 2137, 45 L. Ed. 2d 99 (1975). In Ex parte Harris, supra, at 871, this Court held that it was "fundamentally unfair and in violation of due process of law to inform a person under arrest that he has a right to remain silent and then permit an inference of guilt from that silence." See, also Ex parte Brooks, 562 So. 2d 604 (Ala. 1990). "A comment is deemed to be a reference to a defendant's silence if ... the remark was of such a character that the jury would `naturally and necessarily' take it to be a comment on [the] defendant's silence.... The standard is strict; virtually any description of a defendant's silence following arrest and a Miranda warning will constitute a Doyle violation." United States v. Rosenthal, 793 F.2d 1214, 1243 (11th Cir.1986).
Officer Dwight Hale testified that he read Myers his Miranda rights and that he had given Myers a form to read along with him. (Officer Hale then read the form to the jury.) Officer Hale testified that Myers signed the waiver-of-rights form. Officer Hale further testified that Myers always denied *1294 killing the victim but admitted that he had "sold" the VCR. The pertinent portions of Officer's Hale's testimony are as follows:
Myers contends that the above-quoted testimony illustrates a direct accusation by Officer Hale to which Myers chose to remain silent and, therefore, he argues that any reference in that testimony to Myers's not talking or making a statement constituted an improper comment on Myers's exercise of his constitutional right to remain silent.
The State maintains that Officer Hale's testimony indicates that Myers always denied killing the victim and that the last of the above-quoted testimony is a rambling discourse on a theory of what may have occurred and that Myers's silence, after this and after having constantly denied his guilt, did not imply guilt.
Myers testified at trial that the interrogation lasted longer than three and one-half to four hours (as Officer Hale testified); that he became upset during the interview and "may have" cried some; that he asked to call his mother; that when the officers told him that they were accusing him of a crime that could result in his execution, he "was scared and... wanted to call [his] mother"; that after the officers told him there was no use in believing anything he said, he quit saying much of anything. He further testified that he never told the officers he killed the victim; that he did nothing but deny it. He testified that he got very tired after listening to the questions. He faced the victim's daughter and said "I did not kill your mother"; and he faced the jury and said, "I did not kill Mrs. Ludie Mae Tucker." He testified that after the police officers told him they had found some fingerprints, he admitted to them that he had touched the VCR because he had pawned it, but that even after the officers said that they had found fingerprints in the house, he still said he had never been in the house in his life.
In closing argument, the prosecutor did not comment on Myers's silence.
The trial court charged the jury as follows:
From reviewing the record, we conclude that Hale's testimony was not of such a character that the jury would "naturally and necessarily" have taken it to be a comment on Myers's silencethat is, it did not call attention to Myers's silence at the time of his arrest in such a way as to allow the jury to draw an unfavorable inference.
Myers next argues that the Court of Criminal Appeals' holding in Pace v. State, [CR-93-0740, Sept. 27, 1996] ___ So.2d ___ (Ala.Crim.App.1996), establishes, as a matter of law, that the foreperson of the grand jury that indicted him was selected in a racially discriminatory manner, and, therefore, he argues, the indictment entered against him should be dismissed.[3]
This issue was not presented to the trial court or to the Court of Criminal Appeals but was first raised in this Court. Therefore, we must review this issue under the plain error rule.
Ex parte McNair, 653 So. 2d 353, 360 (Ala. 1994), cert. denied, 513 U.S. 1159, 115 S. Ct. 1121, 130 L. Ed. 2d 1084 (1995) (emphasis added in McNair).
The record is silent with respect to the racial composition of the grand jury that returned the indictment against Myers. In effect, by relying on Pace, Myers is requesting that we dismiss the indictment against him based on an intermediate appellate court's nonfinal holding that is now pending before this Court on certiorari review. We decline this request, "for to [accept it] would unduly enlarge the scope of the plain error review as authorized by our appellate rules." Ex parte McNair, supra, at 360; see, also Ex parte Watkins, 509 So. 2d 1074 (Ala.1987). We find nothing on the record that would justify a dismissal of the indictment.[4]*1297
*1298 In addition to addressing the foregoing issues, this Court has reviewed the other issues presented to it; has examined the issues addressed and resolved by the Court of Criminal Appeals; has considered the arguments made before this Court on oral argument; and has thoroughly examined the record for plain error. We find no error, plain or otherwise, either in the guilt phase or in the sentencing phase of Myers's trial that so prejudicially affected his rights as to require a reversal of Myers's conviction and sentence. The judgment of the Court of Criminal Appeals affirming Myers's conviction and sentence is therefore affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, BUTTS,[*] and SEE, JJ., concur.
COOK, J., concurs in the result.
[1] Defense counsel used a peremptory strike to remove R. Smith from the jury; C. Smith served on the jury.
[2] "`The law concerning drug intoxication is the same as for alcohol intoxication. See Commentary, § 13A-3-2, Code of Alabama 1975.'" Fletcher v. State, 621 So. 2d 1010, 1019 n. 3 (Ala.Crim.App.1993) (quoting Hooks v. State, 534 So. 2d 329, 352 (Ala.Crim.App.1987)).
[3] Myers was indicted for capital murder by a grand jury in Morgan County seven months before Pace was indicted for capital murder in the same county.
[4] We note the United States Supreme Court cases of Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979), and Hobby v. United States, 468 U.S. 339, 104 S. Ct. 3093, 82 L. Ed. 2d 260 (1984). In Hobby, the United states Supreme Court discussed alleged discrimination in the selection of a grand jury foreperson and held as follows:
"Invoking the Due Process Clause of the Fifth Amendment, [Hobby] argues that discrimination in the selection of grand jury foremen requires the reversal of his conviction and dismissal of the indictment against him. In Peters v. Kiff, 407 U.S. 493 [92 S. Ct. 2163, 33 L. Ed. 2d 83] (1972), the opinion announcing the judgment discussed the due process concerns implicated by racial discrimination in the composition of grand and petit juries as a whole. Emphasizing the defendant's due process right to be fairly tried by a competent and impartial tribunal, see In re Murchison, 349 U.S. 133, 136 [75 S. Ct. 623, 625, 99 L. Ed. 942] (1955), the opinion reasoned that unconstitutionally discriminatory jury selection procedures create the appearance of institutional bias, because they `cast doubt on the integrity of the whole judicial process.' 407 U.S., at 502 [92 S.Ct., at 2168]. Moreover, the opinion perceived an important societal value in assuring diversity of representation on grand and petit juries:
"`When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.' Id., at 503-504 [92 S.Ct., at 2169] (footnote omitted).
"Discrimination in the selection of grand jury foremenas distinguished from discrimination in the selection of the grand jury itself does not in any sense threaten the interests of the defendant protected by the Due Process Clause. Unlike the grand jury itself, the office of grand jury foreman is not a creature of the Constitution; instead, the post of foreman was originally instituted by statute for the convenience of the court.... Today, authority for the appointment of a grand jury foreman is found in Federal Rule of Criminal Procedure 6(c), which provides [that the responsibilities of the grand jury foreman are essentially clerical in nature.]
"....
"... [T]he impact of a federal grand jury foreman upon the criminal justice system and the rights of persons charged with crime is `minimal and incidental at best.' [United States v. Hobby, 702 F.2d 466, 471 (4th Cir. 1983).] Given the ministerial nature of the position, discrimination in the selection of one person from among the members of a properly constituted grand jury can have little, if indeed any, appreciable effect upon the defendant's due process right to fundamental fairness. Simply stated, the role of the foreman of a federal grand jury is not so significant to the administration of justice that discrimination in the appointment of that office impugns the fundamental fairness of the process itself so as to undermine the integrity of the indictment.
"Nor does discrimination in the appointment of grand jury foremen impair the defendant's due process interest in assuring that the grand jury includes persons with a range of experiences and perspectives. The due process concern that no `large and identifiable segment of the community [be] excluded from jury service,' Peters v. Kiff, 407 U.S., at 503 [92 S.Ct., at 2169], does not arise when the alleged discrimination pertains only to the selection of a foreman from among the members of a properly constituted federal grand jury. That the grand jury in this case was so properly constituted is not questioned. No one person can possibly represent all the `qualities of human nature and varieties of human experience,' ibid., that may be present in a given community. So long as the composition of the federal grand jury as a whole serves the representational due process values expressed in Peters, discrimination in the appointment of one member of the grand jury to serve as its foreman does not conflict with those interests.
"The ministerial role of the office of federal grand jury foreman is not such a vital one that discrimination in the appointment of an individual to that post significantly invades the distinctive interests of the defendant protected by the Due Process Clause. Absent an infringement of the fundamental right to fairness that violates due process, there is no basis upon which to reverse [Hobby's] conviction or dismiss the indictment.
"....
"... Rose [v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979),] involved a claim brought by two Negro defendants under the Equal Protection Clause. As members of the class allegedly excluded from service as grand jury foremen, the Rose defendants had suffered the injuries of stigmatization and prejudice associated with racial discrimination. The Equal Protection Clause has long been held to provide a mechanism for the vindication of such claims in the context of challenges to grand and petit juries.... [Hobby], however, has alleged only that the exclusion of women and Negroes from the position of grand jury foreman violates his right to fundamental fairness under the Due Process Clause. As we have noted, discrimination in the selection of federal grand jury foremen cannot be said to have a significant impact upon the due process interests of criminal defendants. Thus, the nature of [Hobby's] alleged injury and the constitutional basis of his claim distinguish his circumstances from those of the defendants in Rose.
"Moreover, Rose must be read in light of the method used in Tennessee to select a grand jury and its foreman. Under that system, 12 members of the grand jury were selected at random by the jury commissioners from a list of qualified potential jurors. The foreman, however, was separately appointed by a judge from the general eligible population at large. The foreman then served as `"the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof."' Rose v. Mitchell, supra, at 548, n. 2 [99 S. Ct. at 2996, n. 2] (quoting Tenn.Code Ann. § 40-1506 (Supp.1978)). The foreman selection process in Rose therefore determined not only who would serve as presiding officer, but also who would serve as the 13th voting member of the grand jury. The result of discrimination in foreman selection under the Tennessee system was that 1 of the 13 grand jurors had been selected as a voting member in an impermissible fashion. Under the federal system, by contrast, the foreman is chosen from among the members of the grand jury after they have been empaneled, see Fed. Rule Crim. Proc. 6(c); the federal foreman, unlike the foreman in Rose, cannot be viewed as the surrogate of the judge. So long as the grand jury itself is properly constituted, there is no risk that the appointment of any one of its members as foreman will distort the overall composition of the array or otherwise taint the operation of the judicial process.
"Finally, the role of the Tennessee grand jury foreman differs substantially from that of the foreman in the federal system.... The investigative and administrative powers and responsibilities conferred upon the grand jury foreman in Tennessee, who possessed virtual veto power over the indictment process, stand in sharp contrast to the ministerial powers of the federal counterpart, who performs strictly clerical tasks and whose signature on an indictment is a mere formality. Frisbie v. United States, 157 U.S. 160 [15 S. Ct. 586, 39 L. Ed. 657] (1895); see supra, [468 U.S.] at 344-345 [104 S.Ct. at 3096-97].
"Given the nature of the constitutional injury alleged in Rose, the peculiar manner in which the Tennessee grand jury selection operated, and the authority granted to the one who served as foreman, the Court assumed in Rose that discrimination with regard to the foreman's selection would require the setting aside of a subsequent conviction, `just as if the discrimination proved had tainted the selection of the entire grand jury venire.' Rose v. Mitchell, 443 U.S., at 551-552, n. 4 [99 S.Ct., at 2997-98, n. 4]. No such assumption is appropriate here, however, in the very different context of a due process challenge by a white male to the selection of foremen of federal grand juries."
468 U.S. at 343-49, 104 S. Ct. at 3095-98.
Applying the reasoning of the United States Supreme Court in Hobby and recognizing that a review under the plain error rule, which guarantees a defendant a fundamental right to fairness, is tantamount to a due process review, we conclude that, under the facts of this case, assuming discrimination entered into the selection of the grand jury foreperson in Morgan County, that discrimination does not warrant the reversal of the conviction against Myers under the plain error rule. The role of the grand jury foreperson in Morgan County, whose powers were primarily ministerial, Rule 12.5, Ala.R.Crim.P., was "not so significant to the administration of justice that discrimination in the appointment of that office impugn[ed] the fundamental fairness of the process itself so as to undermine the integrity of the indictment" against Myers. 468 U.S. at 345, 104 S. Ct. at 3097. Furthermore, so long as the grand jury itself was properly constituted, there was no risk that the appointment of one of its members as foreman distorted "the overall composition of the array or otherwise taint[ed] the operation of the judicial process." 468 U.S. at 348, 104 S. Ct. at 3098. In this case, nothing in the record and nothing argued to this Court indicates that the grand jury was not properly constituted.
[*] Although Justice Butts was not present at oral argument in this case, he listened to the tape of oral argument, on April 1, 1997. | May 9, 1997 |
c092e2bd-adad-4829-a8b1-e6bcf2bd1f33 | Ex Parte Stripling | 694 So. 2d 1281 | 1951901 | Alabama | Alabama Supreme Court | 694 So. 2d 1281 (1997)
Ex parte G. Michael STRIPLING and Patricia S. Tobin.
(Re G. Michael STRIPLING and Patricia S. Tobin v. SOUTHTRUST BANK, N.A.; SouthTrust Securities, Inc.; and Timothy W. Bembry).
1951901.
Supreme Court of Alabama.
March 21, 1997.
Rehearing Denied May 16, 1997.
*1282 E. Britton Monroe, Birmingham, for petitioners.
Kenneth O. Simon, Denise A. Dodson, and Rusha C. Smith of Bradley, Arant, Rose & White, Birmingham, for respondents.
KENNEDY, Justice.
The plaintiffs, G. Michael Stripling and his sister, Patricia S. Tobin, petition for a writ of mandamus directing Judge Jack D. Carl, of the Circuit Court of Jefferson County, to set aside an order compelling the arbitration of their claims against the defendants South-Trust Bank, N.A. ("SouthTrust"); South-Trust Securities, Inc. ("SouthTrust Securities"); and Timothy W. Bembry.
Mandamus is an extraordinary remedy requiring the petitioner to show: "(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989). At issue here is whether Stripling and Tobin have a "clear legal right" to an order vacating the trial court's order to compel arbitration of their claims against the defendants.
On February 20, 1996, Stripling and Tobin went to an office of SouthTrust to purchase certificates of deposit, as they had in the past. On this occasion, however, they say that their banker suggested that they consider another investment. Their SouthTrust banker introduced them to Timothy W. Bembry of SouthTrust Securities, who, Stripling and Tobin say, induced them to invest through SouthTrust Securities with the understanding that the investment would not be in mutual funds. According to Stripling and Tobin, they each signed an uncompleted application for a SouthTrust Securities account. Later, they say, documents from the transaction were mailed to them, along with copies of the application forms that Bembry had by then completed for them, and they say that when they received these documents *1283 they discovered that their investment was in a mutual fund.
Stripling and Tobin sued SouthTrust, SouthTrust Securities, and Bembry on various theories related to the placement of their investment in a mutual fund. Based on an arbitration provision contained in the applications the plaintiffs had signed for the South-Trust Securities accounts, the trial court ordered arbitration of their claims.
Stripling and Tobin say that the arbitration provision found on the reverse side of their account applications should be held unenforceable because, they say, they were unaware of what they call this "inconspicuous" provision. We disagree.
First, we observe that the arbitration provision is printed in boldface type on the reverse side of the account application and that it is expressly referred to on the front side of the document, immediately above the document's signature line. The arbitration provision is of a print size as large as, or larger than, other print in the account application, and the arbitration provision is the only provision on the reverse side of the agreement that is in boldface. Although the provision certainly could have been more conspicuous, the provision clearly is not inconspicuous.
Second, it is undisputed that Stripling and Tobin, both competent and literate adults, freely signed the account applications and that they did not read them before signing. "[O]rdinarily when a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract and will be bound thereby." Power Equipment Co. v. First Alabama Bank, 585 So. 2d 1291, 1296 (Ala.1991).
As to SouthTrust and Bembry specifically, Stripling and Tobin also argue that as nonsignatories to the arbitration agreement, those defendants lack standing to invoke the arbitration provision. That provision reads, in pertinent part:
(Emphasis added.)
In their complaint, Stripling and Tobin allege, among other things, that Bembry is liable to them as an "agent" or "employee" of SouthTrust Securities.[1] Clearly then, the language of the arbitration provision, which expressly includes "agents or employees" of SouthTrust Securities, is broad enough to include Bembry, its employee. Ex parte Gray, 686 So. 2d 250 (Ala.1996).
However, as to SouthTrust, Stripling and Tobin's theory of recovery is apparently that it is liable for the actions of SouthTrust Securities as SouthTrust's agent (and Bembry, evidently, as SouthTrust's subagent through his employment with SouthTrust Securities). They allege: "SouthTrust Bank is liable under the principles of master-servant, agency, employer-employee and respondeat superior for the actions and omissions of SouthTrust Securities, Inc. and Mr. Bembry." (Emphasis added.)
In short, SouthTrust is not alleged to be the "agent or employee" of SouthTrust Securitiesto which person the agreement expressly applies, but the opposite, the principal of SouthTrust Securities. Thus, in the context of the relationship of the defendants alleged in the complaint, the agreement would appear not to apply to claims against SouthTrust. The question arises, however, whether the arbitration provision otherwise encompasses claims against SouthTrust as a nonsignatory to the account agreement.
In this regard, Stripling and Tobin argue that a recent case of this Court, Ex parte Jones, 686 So. 2d 1166 (Ala.1996), holds that a nonsignatory cannot be bound to an arbitration provision. We agree that this is the general rule. The converse of that general rule is that, generally, a nonsignatory *1284 cannot compel arbitration. Nothing in this case indicates that some exception should apply.
Stripling and Tobin have not carried their burden of proof insofar as their petition for the writ of mandamus relates to SouthTrust Securities and Bembry. We hold that they have met this burden as to SouthTrust Bank; as to that defendant, we grant the petition.
WRIT GRANTED IN PART AND DENIED IN PART.
ALMON, SHORES, HOUSTON, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX and SEE, JJ., concur in part and dissent in part.
MADDOX, Justice (concurring in part and dissenting in part).
The facts here are undisputed. G. Michael Stripling and Patricia S. Tobin sued South-Trust Bank, N.A., SouthTrust Securities, and Timothy Bembry, alleging that an agent of SouthTrust Bank had suggested to them that they consider not purchasing certificates of deposit, but investing in other securities, and had introduced them to Timothy Bembry, an employee of SouthTrust Securities, who with their money bought mutual funds, which they claim was contrary to their instructions. It is obvious that SouthTrust Bank was made a defendant because of its alleged participation in what plaintiffs allege caused them to be harmed.
Because the plaintiffs signed an agreement to arbitrate, the trial judge compelled them to do so. I think he was correct.
The Court disagrees and holds that South-Trust Bank, as a nonsignatory to the agreement, cannot be compelled to arbitrate. The issue here is whether SouthTrust Bank must be a signatory to a contract in order for the provisions of the Federal Arbitration Act to apply to it.[2]
Federal courts have addressed this issue and have held, based upon the theory of estoppel, that "[a] signatory was bound to arbitrate with a nonsignatory at the nonsignatory's insistence because of the `close relationship between the entities involved, as well as the relationship of the alleged wrongs to the nonsignatory's obligations and duties in the contract ... and [the fact that] the claims were `intimately founded in and intertwined with the underlying contract obligations.' "Thomson-CSF, S.A. v. American Arbitration Association, 64 F.3d 773, 779 (2d Cir.1995); see also Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993), cert. denied, 513 U.S. 869, 115 S. Ct. 190, 130 L. Ed. 2d 123 (1994); McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984); J.J. Ryan & Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 320-21 (4th Cir.1988) (cited in my dissent in Ex parte Jones, 686 So. 2d 1166 (Ala.1996)).
There was a close relationship between Stripling, Tobin, and SouthTrust Bank. Stripling and Tobin alleged against each defendant improper acts concerning the purchase of mutual fund securities. Clearly, any alleged improper conduct on the part of South-Trust Bank, which the Court says was a "principal" of SouthTrust securities, was "intimately founded in and intertwined with the underlying contract obligations"; otherwise, why were these defendants jointly sued?
Based on the foregoing, I must respectfully dissent from that portion of the opinion holding that the petitioners cannot be compelled to arbitrate their claims against South-Trust Bank. Otherwise, I concur.
HOOPER, C.J., and SEE, J., concur.
[1] They state: "At all relevant times, Mr. Bembry was an employee and/or agent of SouthTrust Securities and was acting within the line and scope of his employment."
[2] I do not think so. I addressed this same question in a dissenting opinion in Ex parte Jones, 686 So. 2d 1166 (Ala.1996). | March 21, 1997 |
c6357c64-86fb-4184-b773-7adc2269017f | James v. Langford | 695 So. 2d 1158, 695 So. 2d 1164 | 1960728, 1960797 | Alabama | Alabama Supreme Court | 695 So. 2d 1164 (1997)
Governor Fob JAMES, et al.
v.
Charles LANGFORD, et al.
Charles LANGFORD, et al.
v.
Governor Fob JAMES, et al.
Nos. 1960728, 1960797.
Supreme Court of Alabama.
May 30, 1997.
Champ Lyons, Jr., of Helmsing, Lyons, Sims & Leach, Mobile; and William P. Gray, Jr., Legal Advisor to the Governor, for Governor Fob James, Jr.
Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., for Phil Richardson; and David H. Marsh, Birmingham, for Albert McDonald.
Phillip E. Adams, Jr., of Walker, Hill, Adams, Umbach, Meadows & Walton, Opelika; William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin & McKnight, Birmingham; and George L. Beck, Jr., of Beck & Byrne, P.C., Montgomery, for Charles Langford, Robert Lowder, and James T. Tatum.
Joe Espy III of Melton, Espy, Williams & Hayes, P.C., Montgomery; and Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery, for Michael Figures (now *1165 deceased), W. H. Lindsey, and Hinton Mitchem, individually and in their official capacities as members of the Alabama Senate.
HOUSTON, Justice.
APPLICATION OVERRULED.
ALMON, SHORES, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and SEE, J., dissent.
MADDOX, J., recuses.
SEE, Justice (dissenting).
The Court should grant the application for rehearing to address whether Amendment No. 161 to the Constitution of Alabama vests unilateral power in the Governor or in the Senate to effectively reappoint an incumbent trustee of Auburn University by allowing indefinite holdover. Without comment on this issue, the majority overrules more than a century of precedent that requires incumbent trustees who have not been reappointed by both the Governor and the Senate to leave office within a reasonable time after their terms expire. I must respectfully dissent from the denial of the application for rehearing.
This case involves a battle between two incumbent trustees, on the one hand, and their proposed replacements, on the other. On May 9, 1997, this Court released an opinion holding that the replacement trustees did not validly hold office because, although they had been nominated by the Governor, they had not been confirmed by the Senate. The majority further held that the incumbent trustees whose terms had expired could hold over in office indefinitely. 695 So. 2d at 1158. While I concurred with the majority's holding that the two replacement trustees could not serve absent their joint appointment by the Governor and the Senate, I dissented from the majority's holding that the incumbent trustees could hold over indefinitely without joint reappointment by the Governor and the Senate. Id. at 1162-63 (See, J., dissenting in part and concurring in part).
On May 16, 1997, the author of the majority opinion released a special concurrence to complete his rationale for disregarding a century of precedent. 695 So. 2d at 1164 (Houston, J., concurring specially). Having his complete rationale available, I now respond. My response is threefold: First, a century of precedent compels the conclusion that the offices of the trustees at issue in this case are vacant. Second, the majority's attempt to distinguish this precedent fails. And third, a holding that vacancies in the offices arise from the absence of joint action by the Governor and the Senate would preserve the balance of power embodied in Amendment No. 161.
Amendment No. 161 to the Constitution of Alabama governs appointments to the Auburn University Board of Trustees. The framers of Amendment No. 161 deliberately chose to divide the power of appointment and reappointment between the Governor and the Senate. By dividing the appointment power, the framers sought to restrain the ambition of each branch to unilaterally select its favored incumbents to hold over in office indefinitely. To achieve this goal, the framers of Amendment No. 161 required both the Governor and the Senate to make all appointments that arise from the expiration of a term, and buttressed this joint appointment requirement with long-established language that limited an incumbent's holdover to a reasonable time:
Amendment No. 161, Ala. Const.1901.
In an unbroken line of cases, this Court has construed the phrase "and until their successors shall be appointed [or elected] and qualified" to allow an incumbent to hold over only for a reasonable time, after which the incumbent must vacate the office. For example, in City Council of Montgomery v. Hughes, 65 Ala. 201, 203 (1880), the Justices *1166 of this Court unanimously stated that the phrase "and until their successors are duly elected and qualified" required an incumbent officeholder to vacate the office within a reasonable time after the expiration of his term. In Prowell v. State, 142 Ala. 80, 83, 39 So. 164, 166 (1905), the Justices of this Court, again unanimously, stated: "We regard it as the settled law of this State that the words `until his successor is elected and qualified' [were] never intended to prolong the term of office beyond a reasonable time, after the election, to enable the newly elected officer to qualify." In State ex rel. Benefield v. Cottle, 254 Ala. 520, 521, 49 So. 2d 224, 225 (1950), the Justices of this Court, citing Prowell, unanimously reiterated: "It is now the settled law of this state that the words `until his successor is elected and qualified' were never intended to prolong the term of office beyond a reasonable time...." In In re Kittle, 362 So. 2d 1271, 1274 (Ala.1978), the Justices of this Court unanimously held that a vacancy was created when an appointee held over for more than a "reasonable time." And in Siegelman v. Folmar, 432 So. 2d 1246, 1250 (Ala.1983), the Justices of this Court once again unanimously stated: "It is now the settled law of this state that the words `until his successor is elected and qualified' were never intended to prolong the term of office beyond a reasonable time...."[1]
The reason this Court, time and again, has rejected allowing appointed or elected incumbents to hold over indefinitely is clear: "We are not without some experience ... of the temptations that such a construction offers defeated candidates for re-election ... to prolong their official terms" by "vexatious litigation" or other means. Hughes, 65 Ala. at 207. To prevent such efforts to hold over (absent election or appointment as required by law) this Court provided: "If for [a reasonable] time [a successor] failed to qualify, there would be a vacancy, to be filled as the charter directs." Id. Accord State ex rel. Little v. Foster, 130 Ala. 154, 30 So. 477 (1901) (stating that if the Governor and the Senate cannot agree on the proper person to replace an incumbent university trustee, the office lies vacant). In short, if an incumbent is not required to vacate his office within a reasonable time after his term expires, the law providing for election or appointment to fill that office is dead letter. The framers were aware of the commanding reason embodied in this line of precedent when they drafted Amendment No. 161.
The holding that the prior trustees hold over indefinitely rests on four premises that attempt to distinguish the century of uniform precedent limiting holdover to a reasonable time. These premises, as expressed in the majority opinion and in the later-issued special concurrence, are: (1) that the precedents are limited to cases in which a newly elected official was ready to assume office; (2) that the holding in Kittle that an appointed officer must vacate within a reasonable time after the expiration of his term of office is "unbinding dicta"; (3) that the Kittle opinion did not cite or rely on the precedent that limited holdover to a reasonable time; and (4) that Kittle involved a statute, not the Constitution. As I demonstrate below, each of these premises fails.
First, the majority attempts to distinguish more than a century of precedent requiring incumbents to vacate office after a reasonable time by stating that the precedent cited in my original special writing was limited to cases in which there had been an election that produced a successor to fill the office. 695 So. 2d at 1160 n. 3. The precedent is not so limited.
In Cottle, 254 Ala. at 521, 49 So. 2d at 224, this Court specifically rejected the argument that a prior officeholder had to vacate office only when a newly elected official was ready to assume that office. In Cottle, 254 Ala. at 521, 49 So. 2d at 225, the relevant statute provided that a person appointed to complete the unexpired term of a constable "holds *1167 office for the unexpired term, and until his successor is elected and qualified." Id. Benefield was appointed to complete such an elected term. 254 Ala. at 521, 49 So. 2d at 225. At the next election, no one, including Benefield, ran for the office. Nevertheless, Benefield held over as constable. This Court held that despite the absence of an elected official to fill the office of constable, the office became vacant after the expiration of a reasonable time. 254 Ala. at 521-22, 49 So. 2d at 225.
Similarly, in Kittle, 362 So. 2d at 1274, this Court held that the statutory language "and until their successors are appointed and qualified" required that a jury commissioner whose term had expired vacate his office within a reasonable time, even though no successor had been appointed.
The majority's first premise fails.
Second, the special concurrence attempts to distinguish as "unbinding dicta" the century of precedent embodied in Kittle's holding that an appointed official must vacate office after a reasonable time. 695 So. 2d at 1164 (Houston, J., concurring specially). It was not "unbinding dicta."
The issue in Kittle, 362 So. 2d at 1272-73, was the validity of a criminal defendant's jury venire selected under the authority of a suspect jury commission. Two purported members attended the meetings of the three-member jury commission. Id. at 1274. One of the two had held over for 18 months after his specified term of office had expired. The other was a substitute for a duly appointed member. The Court held that the jury commission lacked a quorum to conduct business because the first member had held over for more than a reasonable time, thus leaving a vacancy, and because the substitute had never been appointed by the Governor. Id. This Court did not rest its judgment solely on its holding regarding the holdover commissioner or solely on its holding regarding the substitute commissioner. The Court's ultimate judgment rested on both holdings. Id. Therefore, neither holding was "unbinding dicta." Both were binding law.
The second premise fails.
Third, the special concurrence attempts to distinguish the century of precedent embodied in Kittle by stating that Kittle did not "cite any precedent for allowing the jury commissioners to hold over for a `reasonable time.'" 695 So. 2d at 1164 (Houston, J., concurring specially). It did cite precedent.
In Kittle, 362 So. 2d at 1274, this Court cited the "Report of the Attorney General,... April-June, 1943, p. 89," for the proposition that an old jury commissioner may hold over only for a "reasonable time." The attorney general's opinion cited therein expressly relies on "City Council of Montgomery v. Hughes, 65 Ala. 201 [(1880) and] Prowell v. State, 142 Ala. 80[, 39 So. 164 (1905)]," for the rule that an appointee may hold over for only a "reasonable time." Op. Atty. Gen. p. 89, 90 (Apr.-June 1943). Therefore, this Court in Kittle based its holding on the very precedent that the majority now disregards and on which I rely.
The third premise fails.
Fourth, the special concurrence attempts to distinguish the century of precedent embodied in Kittle by stating that Kittle "involved a statute ..., not the Constitution." 695 So. 2d at 1164 (Houston, J., concurring specially). The special concurrence offers no explanation as to how this difference could support the majority's holding. That a claimant to a constitutional office, as opposed to an office created by statute, holds over without reappointment by both branches of government is of greater, not lesser, concern to the force of law and the balance of power.
The fourth premise fails.
In Foster, 130 Ala. at 158, 30 So. at 478, this Court interpreted a constitutional provision[2]*1168 regarding the appointment of trustees for the University of Alabama exactly as it interpreted the appointment statute in Kittle. In Foster, 130 Ala. at 161, 30 So. at 479, this Court held that when the specified term of a trustee expired, only the joint action of the Governor and the Senate could effect the appointment to fill the next term.[3] The Court then stated that if the Governor and the Senate could not agree on who to appoint to the new term, the office would lie vacant. 130 Ala. at 160, 30 So. at 478.[4] To hold otherwise would eviscerate the requirement of joint action for appointment of a trustee after his initial term. 130 Ala. at 163, 30 So. at 480.[5] If the office did not lie vacant because indefinite holdover was permitted, either the Governor or the Senate could keep its favored incumbent in office simply by choosing not to appoint a replacement.[6] On the other hand, requiring an incumbent trustee to vacate the office after a reasonable time preserves the constitutional balance the framers struck between the Governor and the Senate.
In this case, which involves Auburn University, as in Foster, which involved the University of Alabama, one branch attempts to usurp the power to appoint a university trustee without acting in concert with the other branch. In this case though, unlike in Foster, the majority accedes to the usurpation by severing the joint appointment power into two separate and uncheckable reappointment powers by which either branch may convert the 12-year term of its favored incumbent into a continuing appointment with no termination date. Freed of the restraint of the joint appointment requirement, future governors and senates can seize this new reappointment power for their own unilateral political advantage.
A century of precedent dictates that because the Governor and the Senate have not reappointed the incumbents in this case, we must declare the offices of trustee vacant.[7] Such vacancies are essential to preserve the balance of power mandated by the joint appointment clause of Amendment No. 161 to the Constitution of Alabama. Because this balance of power requires reappointment by two branches of government, and not one, I dissent.
HOOPER, C.J., concurs.
[1] See generally Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 26-30, 111 S. Ct. 1032, 1047-50, 113 L. Ed. 2d 1 (1991) (Scalia, J., dissenting) ("[R]epeated judicial decisions for more than a century are to be received as the best exposition of what the law is ....") (quoting Day v. Woodworth, 13 How. 363, 371, 14 L. Ed. 181 (1852)).
[2] The constitutional provision in Foster, 130 Ala. at 158, 30 So. at 477, provided: "Said trustees shall be appointed by the Governor, by and with the advice and consent of the senate, and shall hold office for a term of six years, and until their successors shall be appointed and qualified."
[3] The Foster Court stated: "The power of appointment here conferred is not upon the Governor alone. It is plainly conferred upon him and the senate jointly." Foster, 130 Ala. at 161, 30 So. at 479.
[4] The Court stated:
"[I]n case of an irreconcilable disagreement between the senate and the Governor as to who is a fit and proper person to fill the office; a contingency not likely to arise, but should it happen, there would simply be, unfortunately, a casus omissus [i.e., a contingency for which no provision is made at law]. As under the Federal constitution, should the General Assembly refuse or fail to elect a senator, the State would be short one representative in Congress, a contingency which has happened, but which has not been regarded as being within the competency of the legislative branch of the government, or of the courts, to remedy."
Foster, 130 Ala. at 160, 30 So. at 478.
[5] The Foster Court rejected the contention that one branch could fill a vacancy on the board of trustees created by the expiration of the term, in part because such a holding would render the joint appointment clause functus officio (i.e., without further use after the initial appointment). Foster, 130 Ala. at 162, 30 So. at 479.
[6] The Governor could retain his favored incumbent by refusing to nominate a replacement. The Senate could retain its favored incumbent by refusing to confirm a replacement.
[7] The doctrine of stare decisis counsels that this Court not abandon over a century of precedent for this special case. I would adhere to the precedent in this case not simply because it is composed of cases that are "old," but because those cases address interests balanced by the Legislature and the framers which are directly applicable to the constitutional balance of power at issue in this case. | May 30, 1997 |
abf2b300-3c9e-4017-877e-a5efcc8d2cbe | Roberts Health Care v. SHPDA | 698 So. 2d 106 | 1951684 | Alabama | Alabama Supreme Court | 698 So. 2d 106 (1997)
ROBERTS HEALTH CARE, INC., and Regency Oaks Health Care Facility, Inc.
v.
STATE HEALTH PLANNING AND DEVELOPMENT AGENCY.
1951684.
Supreme Court of Alabama.
March 28, 1997.
Rehearing Denied June 13, 1997.
*107 Walter R. Byars and Peck Fox of Steiner, Crum & Baker, Montgomery; Lawrence Clark of Lange, Simpson, Robinson & Somerville, Birmingham; and Gary Huckaby of Bradley, Arant, Rose & White, Huntsville, for appellants.
Richard Lawrence, Montgomery, for appellee.
BUTTS, Justice.
Roberts Health Care, Inc. ("Roberts"), and Regency Oaks Health Care Facility, Inc. ("Regency"), appeal from a circuit court judgment in favor of the State Health Planning and Development Agency ("SHPDA") that terminated the certificate of need ("CON")[1] SHPDA had awarded Roberts to construct a nursing home in Madison County. We reverse and remand.
The history of this case is a labyrinth of interaction between Roberts, Regency, and SHPDA. Accordingly, the following discussion, although lengthy, is only a summary of the events. On August 11, 1993, SHPDA issued a CON to Roberts to construct a 71-bed skilled nursing facility in Madison County. The project was to be a joint venture between Roberts and Regency. A CON generally has a 12-month duration, but SHPDA may grant the holder of a CON a 12-month extension. SHPDA Rules and Regs. § 410-1-11-.01. SHPDA granted Roberts such an extension; thus, Roberts's CON was to expire on August 10, 1995.
Early in 1995, Roberts obtained an oral promise for financing from a real estate investment trust; it later got that commitment in writing. Then, in April 1995, Roberts entered into a contract to purchase the property on which the nursing facility was to be built, and the then owner of the land sought a zoning change for the property. Roberts chose a contractor, but that contractor was later unable to proceed and Roberts was forced to find a replacement contractor. Roberts provided that contractor with drawings and specifications, and the parties entered into contract negotiations. Thereafter, in July 1995, SHPDA gave its first-stage approval for the project plan.
That same month, a controversy arose between Roberts and Regency regarding their joint venture agreement. On August 4, 1995, six days before the CON was to expire, Regency filed a complaint in the Madison Circuit Court against SHPDA and Roberts, seeking a judgment declaring the rights of all the parties in relation to the CON. The complaint contained a count for injunctive relief, seeking to delay the expiration of the CON under the tolling provision of SHPDA Rules and Regs. § 410-1-11-.01, and seeking to prevent SHPDA from taking any action adverse to the rights of Roberts and Regency during the pendency of the litigation. Regency's complaint also sought damages against Roberts for breach of contract, breach of fiduciary duty, and tortious interference with business relations.
On August 8, two days before the CON was to expire, Roberts and its contractor entered into a standard American Institute of Architects ("AIA") contract for construction of the nursing home; that contract was filed with SHPDA the next day. The contract provided that if Roberts did not give Regency notice to proceed with construction, Roberts would pay $5,000 in liquidated damages. Roberts stated to SHPDA that it believed it had entered into a "firm commitment" or "obligation" that would "toll" the "running of the duration" of the CON, under SHPDA Rules and Regs. § 410-1-11-.01.
*108 On August 9, Regency amended its complaint to add a count seeking the dissolution of the Regency and Roberts partnership. On August 28, Roberts's president met with Elbert Peters, SHPDA's executive director, and promised Peters that the nursing home project was continuing and would be completed as soon as the litigation was resolved. Peters did not inform Roberts at that time that it was SHPDA's position that the filing of Regency's complaint did not delay the expiration of the CON. Roberts answered the complaint and filed counterclaims against Regency, alleging breach of contract, breach of fiduciary duty, fraudulent misrepresentation, and fraudulent suppression and seeking a judgment declaring the rights of the various parties in relation to the CON.
In September 1995, SHPDA moved for a transfer of the action; the Madison Circuit Court transferred the case to the Montgomery Circuit Court. In October 1995, the Department of Public Health approved Roberts's chosen site for construction of a nursing home, and Roberts also obtained a zoning variance to allow construction of a nursing home. That same month, Roberts wrote its contractor and instructed the contractor to move a project trailer onto the site and to begin site preparation work. However, in the letter Roberts stated that its instruction to begin site preparation was not a notice to the contractor to proceed under the AIA construction contract they had entered into in August.
In November 1995, SHPDA answered Regency's complaint and opposed Regency's request for injunctive relief against SHPDA. SHPDA filed a counterclaim for declaratory relief against Regency, seeking a declaration that the Roberts CON was null and void. SHPDA also sought an order from the court requiring Roberts and Regency to cease any further construction of the nursing home.
On November 30, the Montgomery Circuit Court entered an order dismissing Regency's claim for injunctive relief. It also severed SHPDA's claims for declaratory and injunctive relief from the remaining claims brought by Regency and Roberts. The court maintained jurisdiction over SHPDA's claims and transferred the claims between Regency and Roberts to the Madison Circuit Court. Thereafter, SHPDA filed a cross-claim for declaratory relief against Roberts, seeking a ruling that the CON had expired.
In June 1996, the circuit court ruled that the filing of Regency's complaint did not delay the expiration of Roberts's CON. The court held that the action Regency had initiated was not the kind of legal or administrative action contemplated by SHPDA Rules and Regs. § 410-1-11-.01, and that the construction contract Roberts had entered into was not a "firm commitment" or "obligation," under § 410-1-11-.02. The court affirmed SHPDA's decision that Roberts's CON had expired, and it ruled that the CON was null and void. The court also enjoined any further construction on the project.
Roberts and Regency appealed to this Court and filed a motion with the circuit court for a stay of the judgment pending appeal. The circuit court granted the stay, but held that it did not have the power to aid the stay by enjoining SHPDA's CON review board from granting a CON to another health care provider to build the nursing home. Roberts and Regency then petitioned this Court for an injunction against SHPDA to aid the trial court's stay of the judgment. We granted the petition and ordered that SHPDA be enjoined from taking any further action relating to the awarding of nursing home space in Madison County pending this appeal.
This Court must determine whether the expiration of Roberts's CON, which would have occurred on August 10, 1995, was delayed, under SHPDA Rule 410-1-11-.01, by the complaint filed by Regency in the Madison Circuit Court against Roberts and SHPDA or, under Rule 410-1-11-.02, by the construction contract between Roberts and a construction contractor and by certain construction-related activities at the locality where the nursing home was to be built.
SHPDA Rules and Regs. § 410-1-11-.01, states, in relevant part: "The running of the *109 duration [of the CON] shall be tolled from the date of the filing of a complaint arising under § 22-21-260, et seq., Code of Alabama, 1975, or other judicial proceeding until such case is dismissed from the judicial process." We must first determine whether Regency's August 4, 1995, complaint was "a complaint arising under § 22-21-260 et seq." or an "other judicial proceeding."
The trial court ruled that the action initiated by Regency's complaint was neither. Because the trial court's ruling on this issue was not dependent on any findings of fact, the ore tenus standard of review is not applicable. See Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So. 2d 415 (Ala.1994). Thus, our review involves a pure question of law, and our review is de novo. However, this Court will generally give deference to a state agency's interpretation of one of the regulations it has promulgated unless we determine that the agency's interpretation is plainly erroneous. Brunson Constr. & Environmental Services, Inc. v. City of Prichard, 664 So. 2d 885 (Ala.1995).
Roberts's CON to build the 71-bed skilled nursing facility in Madison County was to expire on August 10, 1995. However, under SHPDA Rules and Regs. § 410-1-11.01, the expiration of Roberts's CON was delayed on August 4, 1995, if Regency's complaint was a complaint arising under "§ 22-21-260 et seq." The SHPDA rule reference to "§ 22-21-260 et seq." is a reference to Article 9, Chapter 21, Title 22 of the Alabama Code of 1975. That article is entitled "Control and Regulation of Development of Certain Health Care Facilities."
Roberts and Regency argue that, because they say the count for declaratory relief in Regency's complaint sought to determine Regency's rights in relation to Roberts's CON, with regard to § 22-21-270(e),[2] the complaint arose under § 22-21-260 et seq. They also note that SHPDA's counterclaim for declaratory relief specifically stated that it was brought pursuant to § 22-21-276(a), a part of what the SHPDA rule calls "§ 22-21-260 et seq."
In response, SHPDA argues that Regency's complaint did not delay the expiration of Roberts's CON because, it says, the complaint did not involve § 22-21-276(a), which authorizes an action for injunctive relief against anyone violating SHPDA rules and regulations. SHPDA contends that Regency's complaint had nothing to do with SHPDA's issuance of the CON to Roberts, but was simply evidence of a business dispute between Regency and Roberts involving their joint venture agreement.
After studying the text of Regency's August 4, 1995, complaint, we conclude that it sufficiently alleged counts arising under § 22-21-260 et seq. Counts IV and V of the complaint stated:
These counts asked the circuit court to declare the rights of Roberts and Regency in relation to the CON and sought an injunction *110 to prevent SHPDA from ruling that Roberts's CON had expired. Roberts and Regency correctly claim that Count IV of the complaint sufficiently relates to § 22-21-270(e) that the complaint may be taken as "a complaint arising under § 22-21-260 et seq." This is true even though neither count specifically cited § 22-21-270(e). We find it clear that Count IV raised the issue of ownership rights in the CON; that issue directly involves application of § 22-21-270(e), a part of " § 22-21-260 et seq."
In sum, we conclude that SHPDA's ruling that Regency's August 4, 1995, complaint was not "a complaint arising under § 22-21-260 et seq." was based on a plainly erroneous interpretation of SHPDA Rules and Regs. § 410-1-11-.01. Thus, we need not defer to SHPDA's interpretation. In that light, we also conclude that the circuit court erred in affirming SHPDA's ruling that Roberts's CON expired on August 10, 1995. The expiration of the CON was delayed by the filing of Regency's complaint. Although our interpretation of SHPDA Rules and Regs. § 410-1-11-.01 may not be the one SHPDA intended, our ruling is based on a reading of the clear language of the SHPDA rule and Regency's complaint in relation to § 22-21-270(e).[3]
Given our holding that Regency's August 4, 1995, complaint was "a complaint arising under § 22-21-260 et seq.," it is not necessary for us to determine whether the complaint initiated an "other judicial proceeding," the alternative tolling provision of SHPDA Rules and Regs. § 410-1-11-.01. However, we think it clear that if we had not held that Regency's complaint was "a complaint arising under § 22-21-260 et seq.," then we would hold that Regency had initiated an "other judicial proceeding." SHPDA argued that the phrase "other judicial proceeding" in SHPDA Rules and Regs. § 410-1-11-.01, refers only to judicial proceedings relating to any case under § 22-21-260 et seq., such as an administrative action under the Alabama Administrative Procedure Act, Ala.Code 1975, § 41-22-1 et seq.; a proceeding relating to SHPDA's revocation of a CON under SHPDA Rules and Regs. § 410-1-11.04; or a petition in the circuit court for a writ of certiorari to have that court review the ruling of a fair hearing officer, from which there is no direct appeal. However, we believe SHPDA's interpretation of the phrase "other judicial proceeding" adds a limitation where none exists. Black's Law Dictionary (6th ed.1990) defines "judicial proceeding" as "[a]ny proceeding wherein judicial action is invoked and taken." It is clear that the complaint Regency filed in the Madison Circuit Court initiated a judicial proceeding.
Given our holding here, we need not determine whether the running of the CON period was tolled by Roberts's actions in relation to SHPDA Rules and Regs. § 410-1-11-.02, i.e., whether Roberts had entered into a "firm commitment" or "obligation" to complete the project before August 10, 1995.
We reverse the circuit court's judgment in favor of SHPDA, and we remand this cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, SHORES, HOUSTON, COOK, and SEE, JJ., concur.
HOOPER, C.J., recuses.
[1] Ala.Code 1975, § 22-21-265, states, in part:
"(a) On or after July 30, 1979, no person to which this article applies shall acquire, construct, or operate a new institutional health service, as defined in this article, or furnish or offer, or purport to furnish a new institutional health service, as defined in this article, or make an arrangement or commitment for financing the offering of a new institutional health service, unless the person shall first obtain from the SHPDA a certificate of need therefor."
[2] Ala.Code 1975, § 22-21-270(e), states:
"A certificate of need shall not be transferable, assignable, or convertible and shall be valid solely to the person and purpose named thereon."
[3] We further note that although SHPDA's counterclaim for declaratory relief under § 22-21-276(a) is also "a complaint arising under § 22-21-260 et seq.," that counterclaim was filed on November 16, 1995. That date is more than three months after the date Roberts's CON was to expire; such a late-filed claim will not toll the running of a CON period of validity. | March 28, 1997 |
338afea3-fb56-44fb-9c57-1e4fb486e9ff | EASTERN DREDGING & CONSTR. v. Parliament House | 698 So. 2d 102 | 1951449, 1951614 | Alabama | Alabama Supreme Court | 698 So. 2d 102 (1997)
EASTERN DREDGING & CONSTRUCTION, INC.
v.
PARLIAMENT HOUSE, L.L.C., and Bagby Elevator Company, Inc.
EASTERN DREDGING & CONSTRUCTION, INC., and Berkston Insurance A.V.V.
v.
PARLIAMENT HOUSE, L.L.C.
1951449, 1951614.
Supreme Court of Alabama.
March 14, 1997.
Rehearing Denied June 13, 1997.
Kenneth Lee Cleveland of Coretti, Newsom, Cleveland, Hawkins & Cleveland, Birmingham, for appellants.
F. Timothy McAbee, Birmingham, for Parliament House, L.L.C.
HOOPER, Chief Justice.
Parliament House, L.L.C., the operator of a hotel, is the defendant in these two cases appealed from the Jefferson Circuit Court. The cases involve the renovation of the hotel by Eastern Dredging & Construction, Inc. ("Eastern Dredging"), the general contractor, and various subcontractors, including Bagby Elevator Company ("Bagby"). In Case No. 1951449, Eastern Dredging appeals from Judge Jack Carl's order holding that Eastern Dredging had waived its right to arbitrate its claims by failing to commence arbitration proceedings within the time allowed by the trial court in its "Order Compelling Arbitration." In Case No. 1951614, Eastern Dredging appeals an order entered by Judge William J. Wynn denying Eastern Dredging's motion to compel arbitration. We affirm the order in Case No. 1951449 and also affirm the order in Case No. 1951614.
This action was filed October 17, 1995, by Bagby; against Eastern Dredging, Bagby alleged money due on an account and sought recovery on theories of quantum meruit, and *103 breach of contract. Against Parliament House, Bagby sought a recovery under the theory of quantum meruit and sought enforcement of materialman's liens, both claims arising out of work Bagby had done during the hotel renovation. On December 15, 1995, Eastern Dredging filed an answer and filed a cross-claim for a mechanic's lien against Parliament House. Eastern Dredging simultaneously filed a motion to stay the action and a motion to compel arbitration of its claims against Parliament House. Eastern Dredging claimed that a resolution of its claims against Parliament House would resolve some of Eastern Dredging's disputes with Bagby. On February 1, 1996, the trial court granted the motion to stay proceedings on Bagby's claims and the motion to compel arbitration between Eastern Dredging and Parliament House stating:
Eastern Dredging entered into settlement negotiations with Parliament House. These negotiations delayed Eastern Dredging's filing of its arbitration demand until March 15, 1996, approximately 13 days after the 30 days allowed by the February 1 order had expired. On March 20, Bagby filed a motion to return the case to the trial docket because of Eastern Dredging's failure to comply with the February 1 order. On April 18, 1996, the trial court granted this motion to return the case to the "standard track" docket and specifically held that Eastern Dredging, by failing to comply with the trial court's order, had "waived its right to arbitration under the contract." Eastern Dredging appealed to this Court. Eastern Dredging made a motion to stay the case in the trial court pending the outcome of this appeal, but the trial court denied that motion.
Eastern Dredging argues that it did not waive its right to arbitrate its claims against Parliament House by delaying its demand for arbitration until March 15, 1996, 13 days after the deadline set by the trial court for beginning arbitration.
This case is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 2, 3, and 4. The Federal Arbitration Act has been interpreted to require that
Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1, 2 (Ala.1986)(quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983))(emphasis added). Thus, there is a presumption against a court's finding that a party has waived the right to compel arbitration. This Court has previously set out the test for determining whether there has been a waiver:
Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897, 899 (Ala.1995). In the Companion Life Ins. Co. case, this Court elaborated on what constituted a waiver of the right to arbitrate: when the party has participated in the judicial process to the extent that arbitration would substantially prejudice the party opposing arbitration only if a party's participation in the judicial process rises to the level of demonstrating an "intention to abandon the right [to arbitrate] in favor of the judicial process" will a waiver be found. 670 So. 2d at 899.
Whether there has been a waiver should be determined on a case-by-case basis and the answer will vary depending on the specific facts of the case. Companion Life Ins. Co., 670 So. 2d at 899. Moreover, this Court noted in Ex parte Merrill Lynch that "[m]erely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not constitute a waiver." 494 So. 2d at 3 (quoting Clar Productions, Ltd. v. Isram Motion Pictures, 529 F. Supp. 381, 383 (S.D.N.Y.1982), quoting, in turn, Demsey & Assocs. v. S.S. Sea Star, 461 F.2d 1009, 1018 (2d Cir.1972)). *104 Eastern Dredging petitioned the trial court to compel arbitration at the same time it answered Bagby's complaint. Eastern Dredging filed a cross-claim in order to preserve its right to a mechanic's lien; Ala.Code 1975, § 35-11-221, imposes a six-month statute of limitations on such a lien. The only other action taken by Eastern Dredging or by any other parties between the filing of the motion to compel arbitration on December 15, 1995, and the filing of the March 15, 1996, motion was a motion to consolidate all of the cases relating to the Parliament House renovation.
We conclude that Eastern Dredging's delay in commencing arbitration caused no prejudice to the opposing parties. This Court has noted:
Terminix Int'l Co., Ltd. v. Jackson, 669 So. 2d 893 (Ala.1995). Parliament House has not alleged that it suffered any prejudice by the delaythe length of time was relatively minor and Parliament House incurred no expenses, because nothing occurred in the 13-day interim. Thus, Parliament House suffered no prejudice from the 13-day delay.
However, that is not the end of our analysis. It is a well-understood principle of law that the trial court is vested with the authority "to manage its affairs in order to achieve the orderly and expeditious disposition of cases." Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala.1989). Eastern Dredging failed to initiate arbitration within 30 days, despite the clear language in the trial court's order indicating that it had only 30 days in which to do so. Specifically, the order of the trial court stated:
Because Eastern Dredging failed to initiate arbitration proceedings within the 30 days allowed by the court, Judge Carl, acting within his discretion to manage the affairs before his court, rescinded the stay.
A trial court must have the authority to manage its affairs when parties fail to comply with its orders. Iverson, supra. Judge Carl did not abuse his discretion in rescinding the stay, because it was clear from the order that the stay would be rescinded if Eastern Dredging did not commence arbitration expeditiously. Moreover, Eastern Dredging was not totally precluded from pursuing its claims against Parliament House; it merely no longer had the option of arbitrating its claims.
Judge Carl gave the parties specific notice that arbitration was to be initiated within 30 days. Eastern Dredging claims that the delay was insignificant and was due to its anticipation that promising settlement negotiations being conducted with Parliament House would resolve their dispute. Eastern Dredging postponed its initiation of arbitration proceedings because it wanted to wait to see if the settlement negotiations with Parliament House were successful. However, when it became apparent that the dispute with Parliament House would not be settled within the 30 days, Eastern Dredging should have asked the trial judge for an extension of time. Eastern Dredging failed to do so. We conclude that it is not unjust for Judge Carl to hold the parties to the terms of his order.
By precluding Eastern Dredging from initiating arbitration after the 30 days had expired, Judge Carl was acting in a manner consistent with his authority to manage the cases before his court. This was not an abuse of discretion. Therefore, in Case No. 1951449, we affirm Judge Carl's order, which in effect precluded Eastern Dredging from requiring arbitration of its claims against Parliament House and which lifted the stay in the proceedings between Eastern Dredging, Parliament House, and Bagby.
On March 12, 1996, Eastern Dredging sued Parliament House in the Circuit Court of Jefferson County, asserting a materialman's lien, in order to recover for labor and material provided for the hotel renovation; it *105 also alleged a breach of contract. This case was assigned to Judge William J. Wynn. When it filed the action, Eastern Dredging also filed a motion to compel arbitration and a motion to stay proceedings until Eastern Dredging and Parliament House had complied with the February 1, 1996, arbitration order by Judge Carl in the other case. On May 7, 1996, Eastern Dredging filed a second motion to compel arbitration in Judge Wynn's case. Judge Wynn denied the motion to compel arbitration, on May 22, 1996, because of Judge Carl's order holding that Eastern Dredging had waived its right to arbitrate its claims against Parliament House. Eastern Dredging appealed on June 21, 1996.
The claims presented in the case before Judge Wynn are virtually identical to the claims presented in the case before Judge Carl, and they arise from the same transaction or occurrence, the renovation of the Parliament House Hotel. However, this case was not filed until after the 30 days set by Judge Carl for the initiation of the arbitration process had expired, and, consequently, as it was later determined by Judge Carl, after Eastern Dredging had waived the right to arbitrate. We have concluded above that Judge Carl did not abuse his discretion by holding that Eastern Dredging had waived its right to arbitrate the claims against Parliament House; thus, neither did Judge Wynn abuse his discretion by enforcing Judge Carl's order. Moreover, if this Court were to hold otherwise, such a decision could potentially open the floodgates of litigation. A party who suffered an adverse ruling in one court could simply file another lawsuit involving the same claims and parties, as in this situation, and thereby perhaps have another judge rule in its favor on an issue already decided against it by the first court.
Therefore, we affirm Judge Wynn's order in Case No. 1951614, which denied the motion to compel arbitration and the motion to stay the proceedings, but we remand the case for Judge Wynn to determine whether sanctions against Eastern Dredging are appropriate because of what could be interpreted as an attempt by Eastern Dredging to avoid Judge Carl's finding of a waiver by filing a second virtually identical action.
CASE NO. 1951449AFFIRMED.
CASE NO. 1951614AFFIRMED BUT REMANDED.
SHORES, HOUSTON, and BUTTS, JJ., concur.
COOK, J., concurs in Case No. 1951449 and concurs in the result in Case No. 1951614.
SEE, J., concurs in the result.
MADDOX, J., concurs in Case No. 1951614 and dissents in Case No. 1951449.
MADDOX, Justice (concurring as to Case No. 1951614 and dissenting as to Case No. 1951449).
In its opinion, the Court holds that the trial court did not abuse its discretion in barring arbitration on the basis that Eastern Dredging & Construction, Inc., had waived its right to compel arbitration by failing to timely comply with the trial court's order.
The evidence indicates to me that settlement negotiations had been entered into by the parties and that the filing of a demand for arbitration was delayed approximately 13 days after the time allowed by the court order had expired. This case is governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 2, 3, and 4. Under that Act,
Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1, 2 (Ala.1986) (quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983)) (emphasis added). As the Court states in its opinion, there appears to be an indication that a waiver of the right to arbitrate has occurred.
It is established that there was a delay in filing a motion to compel; however, an important consideration is whether this delay in filing a motion to compel arbitration prejudiced *106 Parliament House. On this issue, this Court has held:
Terminix Int'l Co., Ltd. v. Jackson, 669 So. 2d 893 (Ala.1995). There is no indication in the record that Parliament House suffered any prejudice from the delay.
But for the rule of law that questions regarding the scope of arbitrable issues should be resolved in favor of arbitration, I would uphold the right of trial courts to control their dockets in cases such as the one appealed here from Judge Carl's court. I can find no prejudice here; consequently, I must respectfully dissent in Case No. 1951449. I concur in Case No. 1951614. | March 14, 1997 |
a88df0fd-2616-4598-8a99-2d2b27bb61f6 | Cherokee Elec. Co-Op. v. Cochran | 706 So. 2d 1188 | 1960582 | Alabama | Alabama Supreme Court | 706 So. 2d 1188 (1997)
CHEROKEE ELECTRIC COOPERATIVE
v.
Douglas M. COCHRAN, as administrator of the estate of John Ray Cochran, deceased.
1960582.
Supreme Court of Alabama.
December 12, 1997.
*1190 Jack Livingston and John F. Porter III of Livingston & Porter, Scottsboro, for appellant.
Robert G. Wilson, David C. Wear, and Nikki Parrish Scott of Wear & Wilson, P.A., Fort Payne; and James S. Hubbard, Anniston, for appellee.
J. Theodore Jackson, Jr., Ronald G. Davenport, and Rachel Sanders-Cochran of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Alabama Rural Elec. Ass'n, in support of appellant.
J. Robin Rogers of Strang, Fletcher, Carriger, Walker, Hodge & Smith, P.L.L.C., Chattanooga, TN, for amicus curiae Tennessee Valley Public Power Ass'n.
MADDOX, Justice.
Cherokee Electric Cooperative ("Cherokee") appeals from a $3 million judgment of the DeKalb County Circuit Court; that judgment was based upon a jury verdict for Douglas M. Cochran, as administrator of the estate of John Ray Cochran, on a wrongful death claim. We affirm.
On November 29, 1991, a brush fire or woods fire occurred on Gray Hollow Road in *1191 a rural section of DeKalb County. John Ray Cochran was a volunteer fireman; he, along with others, responded to the fire. The evidence presented tends to show that as he was walking through an area covered with vegetation and brush, he came in contact with a 7,200-volt electrical distribution line owned by Cherokee that had fallen from a utility pole; Cochran was electrocuted.
The line in question served a few customers on Gray Hollow Road, but it extended for approximately one-half mile beyond the residence of the last customer. It was along the last half-mile of the line that the accident occurred. The line had fallen at an unknown time, after being severed by an unknown cause. The evidence tended to show that Cherokee relied on reports from the public to make it aware of downed lines and that because no customer had reported a service disruption Cherokee was unaware that its Gray Hollow Road line had fallen.[1]
The line was protected by a fuse located at the juncture of the Gray Hollow Road line with the main distribution line running along County Road 151. The fuse was designed to de-energize the line if it should come into contact with the ground; for an unknown reason, however, the fuse failed to de-energize the line when the break occurred and the line fell.
This appeal follows the second trial in this case. At the first trial the jury returned a verdict for Cherokee, but the trial court set that verdict aside because of juror misconduct and ordered a new trial; this Court affirmed the new-trial order, without opinion. Cherokee Electric Co-op. v. Cochran, 665 So. 2d 1035 (Ala.1994)(table). The case was retried and presented to a jury on the issue whether Cherokee was negligent in the design, construction, or maintenance of the section of the line in question. At the close of the plaintiff's case and again at the close of its own case, Cherokee moved for a directed verdict. Both motions were denied. The jury returned a $3 million verdict for the plaintiff, and the court entered a judgment on that verdict. Cherokee filed a motion for a judgment notwithstanding the verdict or a new trial, or, in the alternative, to alter, amend, or vacate the judgment. The court denied the motion, and this appeal followed.
Cherokee argues that the trial court erred in denying its motion for a directed verdict and later its motion for a JNOV because, it claims, the plaintiff did not prove that Cherokee breached the requisite duty of care.
Initially, we note that a motion for a directed verdict is a procedural device by which one party tests the sufficiency of the other party's evidence. See, Rule 50(a),[2] Ala. R. Civ. P.; Alabama Power Co. v. Williams, 570 So. 2d 589 (Ala.1990); John R. Cowley & Bros., Inc. v. Brown, 569 So. 2d 375, 376 (Ala.1990); J. Hoffman & S. Guin, Alabama Civil Procedure § 8.37 (1990). Similarly, a motion for JNOV[3] simply "permits the trial court to revisit its earlier ruling denying the motion for directed verdict." Alabama Power Co. v. Williams, 570 So. 2d 589, 591 (Ala. 1990). The ultimate question, of course, as to either motion, is whether the nonmovant has presented sufficient evidence to allow submission of the case or issue to the jury for a factual resolution. Hoffman & Guin, supra, at § 8.37. For actions filed after June 11, 1987, the standard of review applicable to both motions is the "substantial evidence rule." See, § 12-21-12(a), Ala.Code 1975; Koch v. State Farm Fire & Cas. Co., 565 So. 2d 226, 228 (Ala.1990). Thus a nonmovant must present "substantial evidence"[4] supporting *1192 each element of his cause of action or defense to withstand a motion for directed verdict or JNOV. This calls for "a purely objective determination of whether the party having the burden of proof has produced [sufficient] evidence [of a factual dispute] requiring resolution by the jury." Ex parte Oliver, 532 So. 2d 627, 628 (Ala.1988); and see, John R. Cowley & Bros., Inc., supra.
Additionally, in reviewing a motion for directed verdict or JNOV, this Court must view all the evidence in a light most favorable to the nonmovant and must entertain such reasonable evidentiary inferences as the jury would have been free to draw. Williams v. Allstate Ins. Co., 591 So. 2d 38 (Ala.1991).
We must determine whether the plaintiff presented substantial evidence that Cherokee breached its duty of care. To do so, we must first consider what the duty of care requires.
While this Court has long held that companies engaged in the distribution of electricity are not subject to strict liability, it has held:
Curtis on Law of Electricity, § 510 (as quoted in Alabama Power Co. v. Mosley, 294 Ala. 394, 400, 318 So. 2d 260, 264 (1975)); see Alabama Power Co. v. Alexander, 370 So. 2d 252, 254 (Ala.1979). In Bush v. Alabama Power Co., 457 So. 2d 350 (Ala.1984), this Court further held that the duty to insulate power lines or to protect them with fuses arises only where it is foreseeable that members of the public may come into contact with a wire.
Cherokee had protected the Gray Hollow Road line with a fuse, but the plaintiff argues that Cherokee nonetheless breached the applicable standard of care by failing to remove the line, to de-energize it, or to protect it with a smaller fuse at a point beyond where the last customer was served. "The ultimate test of a duty to use care is found in the foreseeability that harm may result if care is not exercised." Bush at 353. Therefore, whether Cherokee breached its duty of care depends upon whether it was reasonably foreseeable that members of the public would come to harm resulting from contact with the line in the absence of such measures as placing a fuse on the line at a point past the residence of the last customer, de-energizing the line, or taking it down.
When viewed in the light most favorable to the plaintiff, the nonmovant, the evidence shows: John Ray Cochran was killed when he came into contact with an electrical distribution line owned by Cherokee. The portion of the line along which the accident occurred served no customers. Because Cherokee usually relies on customer reports to learn of downed lines, Cherokee did not know that this line had fallen. The line was protected by a fuse, but the fuse was located at the point where the line branched off from the main line running along County Road 151; there was no fuse on the line after the location of the last customer. The fuse failed for an unknown reason. It is a common industry problem for lines to fall and for fuses to fail to de-energize the fallen lines. Permanently de-energizing the line would have been relatively inexpensive, requiring a crew of three men less than an hour to complete the task.
The testimony of the various experts conflicted as to whether industry standards required that Cherokee take one or more of the protective measures described. The experts disagreed about the safety of lines like the Gray Hollow Road line and about the reliability and placement of fuses.
Based on the evidence presented, we conclude that the plaintiff did present substantial *1193 evidence that raised a jury question as to whether Cherokee had met its duty of care. "Where the facts, upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury." Alabama Power Co. v. Alexander, 370 So. 2d 252, 254 (Ala.1979). Given the evidence in the record, reasonable persons could disagree as to whether it was reasonably foreseeable that members of the public could come into contact with the line in question. The trial court therefore properly denied Cherokee's motions for directed verdict and JNOV.
Cherokee also argues that the trial court erred in denying its motion for a new trial. Cherokee contends that it was entitled to a new trial because the trial court, in its order denying the new trial, referred to the line as "abandoned." Cherokee argues that the use of that word to describe the part of the distribution line in question in this case amounts to the adoption of an incorrect standard of law. This Court has written:
Hosea O. Weaver & Sons, Inc. v. Towner, 663 So. 2d 892, 895 (Ala.1995) (quoting earlier cases). Applying the principle stated in Hosea O. Weaver & Sons, we reject Cherokee's argument on this point. Cherokee has failed to demonstrate that any legal right was abused or that the decision of the trial court was plainly and palpably wrong.
Cherokee next argues that the trial court erred in allowing one of the plaintiff's witnesses, Steve Sax, to testify as an expert. It argues that Sax did not testify based on his knowledge of prevailing industry practices, but only upon his knowledge of the preferences and practices of the electric distribution system of which he was the manager. Cherokee claims that it is evident from his testimony that his opinions were based solely on his experience in that system. It asserts that such limited knowledge does not qualify him as an expert. The plaintiff argues that, as the manager of the other principal electrical utility in DeKalb County, Sax was qualified to testify about industry practice in the area.
It is well settled that the determination of whether a witness will be allowed to testify as an expert is a matter within the discretion of the trial court. Griffin v. Gregory, 355 So. 2d 691, 692 (Ala.1978). The trial court's determination on that question will not be disturbed on appeal unless the court has abused its discretion. Id. at 692. Sax was questioned about his education, his professional background, and his experience, and the trial court allowed him to testify as an expert. After a review of the record, we do not find that the trial court abused its discretion.
Cherokee next argues that the $3 million punitive damages award was excessive and violated its due process rights guaranteed by the Fourteenth Amendment of the United States Constitution.
The determination of damages in wrongful death cases is governed by § 6-5-410, Ala.Code 1975, which authorizes punitive damages but does not authorize compensatory damages. Estes Health Care Centers, Inc. v. Bannerman, 411 So. 2d 109, 112 (Ala. 1982).[5]
*1194 The constitutionality of Alabama's Wrongful Death Statute was challenged in a case that was appealed to the Supreme Court of the United States. In that case, Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 47 S. Ct. 509, 71 L. Ed. 952 (1927), the Supreme Court held that Alabama could authorize the recovery of punitive damages for simple negligence if death resulted, without violating a defendant's constitutional rights, stating: "We cannot say that it is beyond the power of a legislature ... to attempt to preserve human life by making homicide expensive."[6] 274 U.S. at 116, 47 S. Ct. at 510.
Even though the Supreme Court of the United States has held that Alabama can "attempt to preserve human life by making homicide expensive," we do not believe that the Supreme Court meant to say that a jury is free to exercise unbridled discretion in determining the amount of damages to impose in death cases. Claims that a particular jury verdict awarding punitive damages is excessive and violates due process protections must be reviewed by applying the three "guideposts" set out in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). In BMW, the United States Supreme Court held that a punitive damages award that had survived the reasonableness review applied by this Court nonetheless exceeded the boundaries of awards allowed by the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. In BMW the Supreme Court set out three "guideposts" for a reviewing court to consider in determining whether a particular punitive damages award exceeds the bounds of due process: (1) the degree of reprehensibility of the defendant's conduct; (2) the ratio of the compensatory damages award to the punitive damages award; and (3) the difference between the punitive damages award and comparable awards in similar cases. 517 U.S. at 575-584, 116 S. Ct. at 1598-1603.[7]
We now review the jury verdict, using not only the three guideposts set out by the United States Supreme Court in BMW, but also the principles of review this Court set forth in Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), and Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986):
(1) Ratio of Punitive Damages to Compensatory Damages: Alabama law allows no compensatory damages in a wrongful death case. This factor, therefore, does not apply here.
(2) Reprehensibility: The jury found that it was reasonably foreseeable that members of the public could come into contact with Cherokee's 7,200-volt electric distribution line and that such contact could cause severe personal injury or death. Because a state can make homicide expensive, we hold that Cherokee's conduct was sufficiently reprehensible, in law, to support the jury's verdict awarding $3 million in punitive damages.
(3) Similar Civil and Criminal Sanctions: Alabama law does not impose specific limits on the amount that may be recovered in wrongful death actions like this one, but we have considered how the award of punitive damages in this case compares with awards affirmed in other wrongful death cases this Court has reviewed. In General Motors Corp. v. Johnston, 592 So. 2d 1054 (Ala.1992), this Court affirmed an award of $7.5 million in a wrongful death action based on a claim that General Motors had defectively designed its 1988 Chevrolet 2500 series pickup truck and had failed to inform its customers about the truck's tendency to stall. In Burlington Northern R.R. v. Whitt, 575 So. 2d 1011 (Ala. 1990), a wrongful death action based on a claim of negligence or wantonness arising from a collision between a locomotive and a tractor-trailer truck at a railroad crossing, *1195 this Court stated that "[a]s the only appellate court with the ability to assure some degree of uniformity in the area of punitive awards, we must also determine whether the award is excessive when compared to awards in similar cases," 575 So. 2d at 1024; it affirmed the judgment awarding $15 million, conditioned on the plaintiff's accepting a $10 million remittitur. In an even more similar case, Alabama Power Co. v. Turner, 575 So. 2d 551 (Ala.1991), this Court affirmed an award of $3.5 million in a wrongful death action based on a claim that Alabama Power Company had negligently caused the death of a person who was electrocuted when he came into contact with an energized guy wire.
Based on our review of awards in other wrongful death cases, we conclude that this factor does not tend to require a remittitur.
(4) Profitability of Conduct: Cherokee's only "profit" from the conduct resulting in Cochran's death was the money it saved by not sending work crews out to de-energize lines such as the portion of the one on Gray Hollow Road that served no customers or to protect them with one of the other measures described above. The evidence before this Court is not sufficient for us to determine the precise amount of those savings. However, the testimony did reveal that de-energizing such lines would require a three-person work crew less than an hour to complete. Whatever profit Cherokee realized was minimal.
(5) Financial Position of the Defendant: The evidence before this Court indicates that Cherokee's net assets in 1991 totalled $9,225,000. Thus, the jury award of $3 million represents roughly one-third of the Cherokee's net assets in that year. However, the evidence also indicates that Cherokee maintains insurance coverage for this kind of loss, and, based on the evidence before us, we cannot see that the award will affect the insurability of the Cherokee in the future.[8]
(6) Costs of Litigation: We note that this case has been tried twice and has been vigorously prosecuted and defended. This factor does not suggest that the award is excessive.
Considering the jury award in light of these six factors, we conclude that the reprehensibility of Cherokee's conduct outweighs those factors that would tend to call for a reduction of the award. We, therefore, conclude that the $3 million award was not excessive and thus did not violate the defendant's due process rights.
Cherokee also argues that portions of the plaintiff's closing argument were highly prejudicial and that the trial court erred in allowing those portions of the argument. The plaintiff's counsel stated in his argument, "There is no price that you can pay for a daddy." Cherokee argues that this was an impermissible appeal to the jury for compensatory damages, and cites in support of this argument this Court's decision in Hardin v. Sellers, 270 Ala. 156, 117 So. 2d 383 (1960). Cherokee's reliance on that case is misplaced. In that case, the plaintiff's attorney clearly asked the jury to award compensatory damages; the plaintiff's attorney in this case did not do that.
The plaintiff's counsel also told a short story in his closing argument concerning Queen Elizabeth (presumably Queen Elizabeth I). The plaintiff's counsel stated that the Queen had been the wealthiest woman in the world. He told the jury that on her deathbed she stated that she would trade all her possessions for a few more days of life. After reviewing of the record, we conclude that the arguments of the plaintiff's counsel were not so inflammatory that the judgment should be reversed for the trial court's refusal to instruct the jury to ignore them.
Upon consideration of the record, the briefs, and the oral arguments presented to this Court, we conclude that the judgment of the trial court is due to be affirmed.
AFFIRMED.
HOOPER, C.J., and SHORES and HOUSTON, JJ., concur.
*1196 KENNEDY, COOK, and SEE, JJ., concur in the result.
[1] Trial testimony indicated that one person had seen the fallen line a few days before Cochran's death, but that that person did not report the fallen line to Cherokee.
[2] We note that Rule 50(a) has renamed this motion as a "motion for judgment as a matter of law." See Committee Comments to October 1, 1995, Amendment to Rule 50.
[3] The 1995 amendment to Rule 50, Ala.R.Civ.P., renames the JNOV motion as a "renewal of the motion for a judgment as a matter of law." See note 2.
[4] "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12.
[5] In Alabama, the only damages available in wrongful death actions are punitive in nature. Even though some members of this Court have questioned the appropriateness of this Court's interpretation of Alabama's Wrongful Death Statute, see, e.g., Tatum v. Schering Corp., 523 So. 2d 1042 (Ala.1988) (Houston, J., dissenting), a majority of this Court has refused to change that interpretation, as has the Legislature. See, Lemond Constr. Co. v. Wheeler, 669 So. 2d 855, 864 (Ala.1995) (Maddox, J., concurring), for a discussion of the fact that when the Legislature considered major "tort reform" legislation in 1987, it elected not to change the law of Alabama in wrongful death actions relating to this Court's interpretation that allows only punitive damages in a wrongful death case and allows no apportionment among joint tortfeasors.
[6] The issue presented in that case was whether a state may authorize punitive damages for mere negligence; the Supreme Court held that it may. Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 47 S. Ct. 509, 71 L. Ed. 952.
[7] On remand of the BMW case, the Justices of this Court, in several separate opinions, applied the guideposts set out by the Supreme Court. See BMW of North America, Inc. v. Gore, 701 So. 2d 507 (Ala.1997).
[8] Cherokee argues in its brief that "the amount [of the award] may affect the insurability of the Cooperative in the future." (Emphasis added.) | December 12, 1997 |
c090159c-8800-4fdc-aa5a-5124848b3836 | Liberty Nat. Life Ins. Co. v. Allen | 699 So. 2d 138 | 1950679 | Alabama | Alabama Supreme Court | 699 So. 2d 138 (1997)
LIBERTY NATIONAL LIFE INSURANCE COMPANY
v.
Talmadge ALLEN.
1950679.
Supreme Court of Alabama.
March 7, 1997.
Rehearing Denied July 11, 1997.
*139 Edgar M. Elliott III, general counsel litigation, Liberty National Life Insurance Company, Birmingham; and Deborah Alley Smith, Rhonda Pitts Chambers, and Sharon Donaldson Stuart of Rives & Peterson, Birmingham, for appellant.
Jonathan H. Waller of Campbell & Waller, L.L.C., Birmingham; and C. Crawford Williams, Jr., of Williams & Ledbetter, Birmingham, for appellee.
MADDOX, Justice.
Talmadge Allen, although he was receiving the benefits payable under a cancer policy issued by Liberty National Life Insurance Company, sued Liberty National, alleging fraud, fraudulent suppression, and bad faith failure to pay an insurance claim. His claims were based on an alleged misrepresentation made by an agent of the insurer that Medicare laws limited the amount of benefits he could receive. At trial, Allen dismissed the fraudulent suppression claim. The jury awarded Allen $40,000 in compensatory damages and $5.4 million in punitive damages. Following a remittitur, the court entered a judgment for the $40,000 and $2.7 million in punitive damages
Liberty National appeals, arguing that the trial judge erred in denying its motion for a summary judgment, its motion for a directed verdict, and then its motion for a judgment notwithstanding the verdict, on both the fraud claim and the bad faith claim. We agree. Reviewing the evidence most favorably to Allen and indulging all inferences that the jury was free to draw, we conclude that Allen did not present substantial evidence in support of his fraud and bad faith claims.
Taken in the light most favorable to Allen, the evidence suggests the following facts: Allen holds a family cancer policy issued by Liberty National. He purchased the policy in 1986. In January 1992, he was diagnosed with prostate cancer. He underwent surgery in February 1992 and subsequently received chemotherapy treatments to combat the spread of the disease. Allen's policy covered his losses in the event he contracted cancer, and it allowed up to $500 per day for costs of radiation and chemotherapy treatments. After his chemotherapy treatments began, Allen submitted claims to Liberty National; these claim were promptly paid.
In August 1993, however, Liberty National instituted a new procedure governing the method by which claims on cancer policies like Allen's would be paid to Medicare recipients, and Allen was a Medicare recipient. This new procedure was called the "Medicare Allowable Claims Practice." Under this new procedure, the amount of benefits Liberty National would pay a Medicare participant covered by the cancer policy would be the maximum amount a medical provider was allowed to charge Medicare recipients for the particular treatment.[1]
In September 1993, a year and a half after his surgery, Allen submitted a claim to Liberty National for $2,000 for additional radiation treatments that he had received between July 29 and August 25, 1993. On September 14, 1993, Liberty National sent a letter to Allen explaining that pursuant to the new procedure implemented by Liberty National in August 1993, he needed to file an EOMB form with Liberty National so that it could process his claim. Allen filed the EOMB form with Liberty National on October 7, 1993. On October 12, 1993, Liberty National sent Allen a check for $723.44 and a letter explaining his benefits; this letter stated: "This service [radiation treatments] was covered by Medicare and this provider has *140 agreed that the actual charges will not exceed the amount approved by Medicare." Although Mr. Allen cashed the check, he testified that he remained concerned that he was not receiving the full benefits of his cancer policy. He telephoned Liberty National's customer service line on October 18, 1993. He said that a claims representative, who he identified as "Angie," told him the Medicare Allowable Claims Practice was based on a new law. This representative did not know "which law" this practice was based on. The next day, October 19, Allen wrote Liberty National a letter requesting a detailed breakdown of how his benefits were calculated and a citation to the new law and the date the new law was passed. On October 26, Allen met with Mike Bryant, the claims manager, to discuss his claim and Liberty National's new procedure. At this meeting, Allen told Bryant that the sole reason for his visit was to get a copy of the new law that the Medicare Allowable Claims Practice was based on. Bryant told Allen that he did not have a copy of the new law but that the new procedure was not required by this law. Bryant said the policy was implemented as an interpretation of new Medicare laws.
On November 5, 1993, Liberty National reversed the use of the Medicare Allowable Claims Practice. According to Liberty National, the decision to discontinue this new procedure was based on an increased turnaround time in the payment of claims, administrative delays in processing claims, customer complaints, and a concern for the general litigation environment in Alabama and the cost of potential litigation. Following its reversal of this procedure, Liberty National, through Mike Bryant, wrote Allen a letter informing him of the decision to reverse it and enclosing a check to Allen for $1,334. This amount represented the difference between the $2,000 claim submitted by Allen and the $723.44 he had already received, plus interest. Allen cashed this check, but on May 18, 1994, he sued Liberty National in the Jefferson Circuit Court, alleging fraud, fraudulent suppression, and bad faith, all in relation to Liberty National's processing of his claim for radiation treatments.
At trial, Liberty National moved for a summary judgment on all claims asserted by Allen; the trial court denied its motion. After Allen had completed the presentation of his case, he voluntarily dismissed his claim of fraudulent suppression. Liberty National subsequently moved for a directed verdict on the fraud and bad faith claims; the court denied its motion. After Liberty National had presented its case, it again moved for a directed verdict on the fraud and bad faith claims. The trial judge again denied Liberty National's motion. The jury returned a verdict for Allen, awarding $40,000 in compensatory damages for emotional distress and $5.4 million in punitive damages. Liberty National moved for a JNOV or a new trial; the court denied both, but conditioned its denial of a new trial on Allen's filing a remittitur of $2.7 million. Allen filed the remittitur. The court entered a judgment, and Liberty National appealed.
Liberty National first argues that, as to the fraud claim, the trial court erred by denying its motion for a directed verdict and then later its motion for a judgment notwithstanding the verdict. Allen claims that the alleged misrepresentation occurred when, he says, the claims representative, "Angie," told him that the Medicare Allowable Claims Practice was based on a new law. Liberty National contends that this statement was not actionable because, it says, the evidence clearly shows that Allen did not rely on this representation.
Initially, we note that a motion for a directed verdict is a procedural device by which one party tests the sufficiency of the other party's evidence. See, Rule 50(a), Ala. R. Civ. P.; Alabama Power Co. v. Williams, 570 So. 2d 589 (Ala.1990); John R. Cowley & Bros., Inc. v. Brown, 569 So. 2d 375, 376 (Ala.1990); J. Hoffman & S. Guin, Alabama Civil Procedure § 8.37 (1990). Similarly, a motion for a JNOV simply "permits the trial court to revisit its earlier ruling denying the motion for directed verdict." Alabama Power Co. v. Williams, supra, at 591. The ultimate question, of course, as to either motion, is whether the nonmovant has presented sufficient *141 evidence to allow submission of the case or issue to the jury for a factual resolution. Hoffman & Guin, supra, at § 8.37. For actions filed after June 11, 1987, the standard of review applicable to a motion for a directed verdict or for a JNOV is the "substantial evidence rule." See, § 12-21-12(a), Ala.Code 1975; Koch v. State Farm Fire & Cas. Co., 565 So. 2d 226, 228 (Ala. 1990). Thus, in an action filed after June 11, 1987, a party presenting a claim or a defense must present "substantial evidence"[2] supporting each element of the claim or defense in order to withstand a motion for a directed verdict or for a JNOV. This calls for "a purely objective determination of whether the party having the burden of proof has produced [sufficient] evidence [creating a factual dispute] requiring resolution by the jury." Ex parte Oliver, 532 So. 2d 627, 628 (Ala.1988); see also, John R. Cowley & Bros., Inc. v. Brown, supra.
Additionally, in reviewing a motion for a directed verdict or a motion for a JNOV, this Court must view all the evidence in a light most favorable to the nonmovant and must entertain such reasonable evidentiary inferences as the jury would be free to draw. Williams v. Allstate Ins. Co., 591 So. 2d 38 (Ala.1991).
As this Court has previously stated, "the elements of actionable fraud based on a misrepresentation are: (1) a duty to speak the truth; (2) a false representation of a material existing fact made intentionally, recklessly, or innocently; (3) action by the plaintiff in reliance upon the false representation; and (4) damage proximately resulting from the false representation." Smith v. MBL Life Assurance Corp., 589 So. 2d 691, 696 (Ala.1991). See also Salter v. Alfa Ins. Co., 561 So. 2d 1050 (Ala.1990). For Allen to sustain his fraud claim, he must show he relied on Liberty National's representation and that he acted on this reliance to his detriment.
What does the evidence show? It shows that on October 18, 1993, Allen telephoned Liberty National's claims representative requesting an explanation of his benefits payment. The representative explained that the new payment procedure was based on requirements of a new law. According to Allen, there was an actionable fraud because this statement was false and, he says, he relied on it to his detriment. Liberty National contends that Allen did not rely on this representation, pointing out that the next day he wrote a letter to Liberty National requesting a copy of the new law; that, in addition, when he met with Bryant, the claims manager, on October 26, 1993, Allen asked for a copy of the new law; and that after Allen made this request Bryant informed Allen that the payment procedure was based on an interpretation of a new law. Liberty National argues that the evidence shows that Allen never believed the alleged representation by the claims representative because, it says, the evidence shows that he constantly questioned the validity of that representation. We agree.
In Smith v. J.H. Berry Realty Co., 528 So. 2d 314 (Ala.1988), Smith, who was purchasing a house, asked the realty agent whether the house and the positioning of a fence complied with "applicable regulations." The agent told Smith that they did comply. Before the closing, Smith extensively investigated whether the house actually complied with the building code and zoning regulations. After Smith purchased the house, he learned that it did not comply with a zoning regulation. This Court stated:
528 So. 2d at 316.
Liberty National contends that the evidence shows that Allen constantly tried to determine what new law had affected his claim and that this fact requires a finding that he did not accept the agent's statement as true. Liberty National thus argues that Allen's fraud claim is without merit because, it says, the evidence shows that he did not rely on the agent's statement. Again, we agree with Liberty National. Viewing the record in the light most favorable to Allen, we find no evidence to demonstrate that Allen relied upon the agent's statement. Even if Allen had presented evidence that he relied on the representation, none of the evidence demonstrates that he acted on his reliance. In order to sustain an action alleging fraud, the plaintiff must prove not only that he or she relied on the representation, but also that he or she acted upon that reliance. Smith v. MBL Life Assurance Corp., supra. Therefore, as to the fraud claim, we hold that the trial court erred in denying Liberty National's motion for a directed verdict and, later, its motion for a judgment notwithstanding the verdict.
As to the bad faith claim, Liberty National also contends that the trial court erred in denying its motion for a directed verdict and, later, its motion for a judgment notwithstanding the verdict. Liberty National argues that Allen did not prove the elements of a bad faith claim.
In National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179 (Ala.1982), this Court stated the elements of the tort of bad faith:
417 So. 2d at 183 (emphasis omitted).
Given the elements of a bad faith claim, we are compelled to hold that the trial court erred in denying Liberty National's motion for a directed verdict and, later, its motion for a judgment notwithstanding the verdict. In a bad faith case, the plaintiff's burden is heavy, National Sav. Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982); Allen failed to carry this burden.
Allen's cancer policy with Liberty National provided:
We agree with Liberty National that it had an arguable reason not to pay above what Medicare law listed as the maximum amount a provider could charge a Medicare recipient. To defeat a bad faith claim, the defendant does not have to show that its reason for denial was correct, only that it was arguable. This Court has held that "`if any one of the reasons for denial of coverage is at least "arguable" this Court need not look any further,' and a claim for bad faith refusal to pay the claim will not lie." ALFA Mutual Ins. Co. v. Smith, 540 So. 2d 691, 695 (Ala.1988), quoting McLaughlin v. Alabama Farm Bureau Mut. Cas. Ins. Co., 437 So. 2d 86, 91 (Ala.1983). Because Liberty National had an arguable reason, Allen cannot recover on his bad faith claim. Therefore, as to the bad faith claim, the trial court erred in denying Liberty National's motion for a directed verdict and, later, its motion for a judgment notwithstanding the verdict.
We would also note that the alleged breach of contract was corrected within a two-month period. In September 1993, Allen submitted his claim to Liberty National. On November 11,1993, Liberty National paid the balance of the entire claim submitted by Allen, plus interest. In Harrington v. Guaranty Nat'l Ins. Co., 628 So. 2d 323 (Ala.1993), Harrington filed a claim with his insurance company for uninsured motorist benefits. Initially, the insurance company refused to pay. However, two months later, the insurance company did pay the total claim. This Court stated, "We are not persuaded by Harrington's arguments that the delay amounted to a breach of contract." 628 So. 2d at 327. Within a month of his claim, Liberty National paid Allen's claim in accordance with its Medicare Allowable Claims Practice. Within two months of the submission of the claim, Liberty National paid the entire balance of the claim, plus interest. Considering the short time between the submission of the claim and Allen's receipt of full payment, we do not find that this delay in time amounted to an intentional failure to pay.
The judgment of the trial court is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HOUSTON and SEE,[*] JJ., concur.
HOOPER, C.J., concurs specially.
ALMON, J., concurs in the result.
COOK, J., dissents.
SHORES, J., recuses.
HOOPER, Chief Justice (concurring specially).
I concur with Justice Maddox's opinion. Liberty National originally adopted a reasonable practice of paying only that portion of each claim that would be reimbursed by Medicare. Upon discovering that its policyholders were dissatisfied with that practice, but before Talmadge Allen sued, Liberty National reversed that practice. Therefore, Allen suffered no damage, but he still filed this action. In spite of Liberty National's efforts to keep its policyholders happy, it was forced to endure the burden and expense of litigation in this case. I think Liberty National should be commended for accommodating its policyholders like Talmadge Allen. Instead, this needless litigation has forced both the defendant and the State of Alabama to waste valuable time and money.
*144 COOK, Justice (dissenting).
I respectfully dissent. The plaintiff presented a prima facie case of fraud by misrepresentation. Justice Maddox says that the evidence showed that the plaintiff did not detrimentally rely upon the statement by Liberty National's claims representative. I disagree.
To prove a claim of fraud by misrepresentation, a plaintiff must show that the defendant made a misrepresentation of a material fact and that the plaintiff justifiably relied on that misrepresentation to his or her detriment.
Liberty National argues that the plaintiff in this case did not rely on its statement because, it says, he did not accept Liberty National's statement as true, as evidenced by the plaintiff's request for a copy of the "new law." Four Justices agree. Their opinion asserts that no evidence demonstrated that the plaintiff relied upon Liberty National's statement. Even if the plaintiff did rely on the statement, according to Justice Maddox's opinion he did not act upon his reliance. I disagree.
On October 12, 1993, Liberty National sent a check for $723.44 to the plaintiff, attaching a letter that read in pertinent part: "This service [radiation treatment] was covered by Medicare and this provider has agreed that the actual charges will not exceed the amount approved by Medicare." In substance, this letter from Liberty National informed the plaintiff that $723.44, the amount of the check, was the full and final amount Liberty National would pay him on his $2,000 radiation bill. The plaintiff accepted this letter as the truth. Therefore, acting in reliance on Liberty National's statement in the letter, the plaintiff cashed the $723.44 check. These facts reasonably support a finding of detrimental reliance by the plaintiff, thereby establishing a prima facie case of fraud.
Justice Maddox relies on Smith v. J.H. Berry Realty Co., 528 So. 2d 314 (Ala.1988), in which we held that "[t]o claim reliance upon a misrepresentation, the allegedly deceived party must have believed it to be true." Id. at 316. However, Smith is easily distinguishable from the instant case. In Smith, the plaintiff sued a realty company for fraud after being wrongly told by an agent that the house he was about to purchase was in compliance with zoning regulations. Id. at 314. Wishing to satisfy his own mind before he purchased the house, the plaintiff extensively investigated the zoning guidelines and asked to see the building code. Id. at 315. After purchasing the house, the plaintiff was told that the house did not comply with zoning regulations. Id. at 316. The plaintiff then sued, alleging fraud. We held that the evidence showed that the plaintiff had not relied on the statement regarding the zoning regulations as being the truth, because it showed that he extensively investigated the regulations before he purchased the home. Id. at 316. Obviously, the plaintiff in Smith was apprehensive before he purchased the house, even after he was told by the building inspector and the realty agent that the house was in compliance. Therefore, he investigated the regulations before purchasing; the evidence showed that he did not rely on the realtor's statement.
However, unlike the plaintiff in Smith, the plaintiff in the instant case requested a copy of the "new law" after Liberty National's agent made the statement and after he had cashed the check in reliance on this statement. The plaintiff inquired into the "new law" so that he could protest changes in the Medicare law by writing his representative in Congress. (R.T. 471-72.) The plaintiff testified, "That new law really blew my mind...." (R.T. 459.) He continued by stating, "It concerned me greatly sir, that this new law hadas it had been told to me, had been passed and it was going to affect benefits of me as an elderly person." (R.T. 518.) It was not that the plaintiff did not rely upon Liberty National's statement to his detriment; he did. The evidence indicates that the plaintiff simply sought to obtain from Liberty National information about this law so that he could express his dissatisfaction.
Because I find substantial evidence from which the jury could have properly found that the plaintiff detrimentally relied on Liberty National's representation, I do not reach *145 a judgment as to other issues raised in the defendant's briefs.
[1] Under the Medicare laws, Medicare sets the maximum amount a Medicare recipient can be charged for treatments performed by a medical provider. An "Explanation of Medicare Benefits" ("EOMB") form, which is provided to the Medicare recipient in Alabama by Blue Cross and Blue Shield, documents the maximum charges allowed. The amount Medicare sets as the maximum amount that can be charged to a Medicare recipient for the specific treatment is the maximum amount Medicare will pay for that treatment.
[2] "Substantial evidence" has been defined as "evidence of such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12.
[*] Justice See did not sit for the oral arguments in this case, but he listened to the tapes of the oral arguments. | March 7, 1997 |
8f6e88f5-22de-47d8-9ed4-8bb17b954317 | Tate v. Allstate Ins. Co. | 692 So. 2d 822 | 1951906 | Alabama | Alabama Supreme Court | 692 So. 2d 822 (1997)
Angela TATE and Enoch Tate,
v.
ALLSTATE INSURANCE COMPANY.
1951906.
Supreme Court of Alabama.
April 4, 1997.
*823 Richard D. Horne, Mobile, for Appellants.
Carl Robert Gottlieb, Jr., of Reams, Philips, Brooks, Schell, Gaston & Hudson, Mobile, for Appellee.
HOOPER, Chief Justice.
Allstate Insurance Company ("Allstate") sued for a declaratory judgment, requesting that the Baldwin County Circuit Court determine the amount of insurance coverage available to Enoch Tate on a loss-of-consortium claim. The claim arose out of a motor vehicle accident involving a vehicle driven by Enoch Tate's wife, Angela Tate, and a vehicle driven by Allstate's insured, Myrtis Franklin. The trial court entered a judgment declaring that Enoch Tate's loss-of-consortium claim arose out of Angela Tate's bodily injuries and thus was not a separate claim. This holding meant that Allstate's policy limitation of $100,000 per person applied to both Angela Tate's claims and Enoch Tate's claim taken together. The Tates appeal. We reverse. We hold that Enoch Tate's claimed loss of consortium would be a separate "injury" within the language of the Allstate policy; therefore, his consortium claim has its own $100,000 limit.
On August 22, 1994, Angela Tate; two of her children, Terry and Paula; and her godchild, Monica Collins, were involved in an automobile accident with Mrs. Franklin. Mrs. Franklin's vehicle ran a stop sign and collided with Angela Tate's vehicle, which was then struck by a truck driven by Dennis E. Middleton. Angela Tate sustained severe injuries to an arm and has since incurred approximately $72,527.55 in medical expenses.[1] On February 1, 1995, Mrs. Tate sued Mrs. Franklin, based on Mrs. Tate's injuries arising out of the August 1994 accident. Enoch Tate joined as a plaintiff, claiming damages for loss of consortium of his wife and, as father and next friend of Terry and Paula, seeking damages on their behalf for injuries they sustained as a result of the alleged negligence and wantonness of Mrs. Franklin. Rose M. Collins, as mother and next friend of Monica Collins, filed an action against Mrs. Franklin seeking damages for the injuries Monica sustained in the accident. The Tates amended their complaint on April 25, 1995, to add the third driver involved in the accident, Dennis Middleton, as a defendant.
At the time of the accident, Mrs. Franklin was covered by an insurance policy issued by Allstate. Allstate has undertaken to defend Mrs. Franklin. Mrs. Franklin's policy provided coverage of up to "$100,000 each person$300,000 each occurrence"; however, the policy explicitly limits Allstate's liability by stating:
(Emphasis added.) Moreover, the policy states under the heading "Part I, Automobile *824 Liability Insurance, Bodily InjuryCoverage AA, Property DamageCoverage BB":
(First emphasis original; all other emphasis added.)
Allstate offered the Tates $100,000the maximum available to them under Allstate's interpretation of the policy limitsto settle all their claims. The Tates refused the offer, asserting that Angela Tate was entitled to the $100,000 per person limit herself and that Enoch Tate's claims for loss of consortium should not be subject to Angela Tate's perperson limit of $100,000. On January 26, 1996, Allstate sued for a judgment declaring its obligations under the policy. The Baldwin County Circuit Court determined that Enoch Tate's claims were subject to Angela Tate's per-person liability limit because Enoch Tate's claims were derivative of Mrs. Tate's bodily injury claims.
The Tates contend that Mr. Tate's claim for loss of consortium is not included within Mrs. Tate's personal limitation. The Tates assert that by defining "bodily injury" to include loss of services, Allstate conferred upon Mr. Tate his own bodily injury arising out of the August 1994 accident, even though he was not in the automobile at the time of the accident. The Tates claim that because, according to the policy language, Mr. Tate suffered his own bodily injury, he should not be subject to Mrs. Tate's bodily injury limit. Instead, they claim that he should have his own $100,000 limitation, provided, however, that the claims of all persons claiming under the liability coverage do not exceed the $300,000 limitation. Allstate concedes that Mr. Tate's claim for loss of consortium is covered by the policy; however, it argues that his claim must be applied against the $100,000 per-person policy limit applicable to Mrs. Tate.
It is a generally accepted principle that if there is no ambiguity in an insurance policy, a court is bound to enforce the policy as written and cannot ignore express provisions of the contract. St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Center, 595 So. 2d 1375 (Ala.1992). A policy is not made ambiguous by the fact that the parties interpret the policy differently. Watkins v. United States Fidelity & Guar. Co., 656 So. 2d 337 (Ala.1994). The Allstate policy under which the Tates attempt to recover clearly and unequivocally defines "bodily injury" to include "loss of services." It defines "bodily injury" as including:
(Emphasis added.) Therefore, the Allstate policy is not ambiguous.
However, even if the policy were ambiguous, our rules of contract construction would preclude Allstate from denying coverage. "[A]mbiguities in an insurance contract are to be resolved in favor of the insured and... exceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage to the insured." Amerisure Ins. Companies v. Allstate Ins. Co., 582 So. 2d 1100, 1102 (Ala.1991). While language in an insurance policy should be construed in accordance with its ordinary meaning, Western World Ins. Co. v. City of Tuscumbia, 612 So. 2d 1159 (Ala.1992), where a policy specifically assigns to a term or phrase a meaning that goes against what is customary, the Court must not rewrite the policy so as to include or exclude coverage that was not intended. Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548 (Ala. 1985). Therefore, we must conclude that Mr. Tate's claimed loss of consortium is a "bodily injury," as that term is defined in this Allstate insurance policy.
In the absence of clear policy language answering the question, courts in other states appear to disagree on whether a loss of consortium is a bodily injury. However, in the only cases involving policy language identical to that in this policy and involving the same type of claim (a loss-of-consortium claim by a person not involved in the accident), *825 courts of other states have reached the same conclusion we reach todaythat the policy definition of "bodily injury" includes loss of consortium. Valliere v. Allstate Ins. Co., 324 Md. 139, 596 A.2d 636 (1991); Allstate Ins. Co. v. Handegard, 70 Or.App. 262, 688 P.2d 1387 (1984). The Valliere court held that under an identical Allstate insurance policy, the loss of consortium claim was a "bodily injury" subject to its own $100,000 limit. That court based its interpretation on the policy definition of "bodily injury":
324 Md. at 142, 596 A.2d at 638 (citations omitted). See also, Handegard, 70 Or.App. at 265-67, 688 P.2d at 1389.
Allstate asserts that Weekley v. State Farm Mut. Auto. Ins. Co., 537 So. 2d 477 (Ala.1989), not Valliere, should control our decision. In Weekley, this Court concluded:
537 So. 2d at 480. However, unlike Valliere and Handegard, Weekley did not set out the language of the contract at issue and did not state whether the policy specifically included "loss of services" within the definition of "bodily injury." Because of the factual similarities between this case and Valliere and Handegard, we find those cases more persuasive and instructive on this issue than Weekley. We note also that Allstate, because it was the defendant in both Valliere and Handegard, was on notice that other courts might construe this policy language contrary to the interpretation for which Allstate now argues. If Allstate, after getting that notice, had revised its policy language to make it clearly state what Allstate now says the policy means, then perhaps this Court would not have to be deciding this case.
After considering the policy language and considering the decisions in Valliere and Handegard, we hold that where, as in this case, an insurance policy specifically defines "bodily injury" to include "loss of services," a party asserting a claim for loss of consortium has suffered a "bodily injury," within the meaning of the policy language, even if that person has sustained no other bodily injuries. Therefore, Mr. Tate, is not subject to the per-person policy limitation applicable to Mrs. Tate, but is limited only by his own perperson limitation and by the per-occurrence limitation. We reverse the judgment and remand this case for proceedings or an order consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, SHORES, HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur.
[1] Angela Tate's medical expenses have been paid by Blue Cross and Blue Shield, which is now asserting its subrogation rights against Allstate or, in the alternative, is seeking reimbursement. | April 4, 1997 |
2200d9b1-9e63-43db-aa3e-9e279da39311 | Ex Parte DeArman | 694 So. 2d 1288 | 1951978 | Alabama | Alabama Supreme Court | 694 So. 2d 1288 (1997)
Ex parte Harry L. DeARMAN and Cherry F. DeArman.
In re Harry L. DeARMAN and Cherry F. DeArman
v.
LIBERTY NATIONAL LIFE INSURANCE COMPANY, Johnny Dollar, et al.
1951978.
Supreme Court of Alabama.
April 25, 1997.
*1289 Gary D. Hooper and R. Stephen Griffis of Hooper & Griffis, P.C., Birmingham, for petitioners.
Michael R. Pennington and George B. Harris of Bradley, Arant, Rose & White, Birmingham; and William J. Baxley of Baxley, Dillard, Dauphin & McKnight, Birmingham (Spain & Gillon, P.C., Birmingham, and Lightfoot, Franklin & White, L.L.C., Birmingham, of counsel), for Liberty National Life Insurance Company.
HOUSTON, Justice.
Harry L. DeArman and Cherry F. DeArman petition this Court for a writ of mandamus directing the trial court to set aside its order staying this action against Liberty National Life Insurance Company and others ("Liberty National"). The writ is granted.
On January 17, 1996, the DeArmans filed this action against Liberty National, alleging fraud, negligence, and wantonness in the sale of a life insurance policy. (The facts surrounding the transaction made the basis of this action are not pertinent to our consideration of this petition.) On February 21, 1996, Roger D. Lawson, Phyliss A. Lawson, and others filed a similar action against Liberty National Life Insurance Company in the Jefferson Circuit Court and sought to have their action certified as a class action. The Lawson action was conditionally certified as a class action on May 15, 1996. On June 17, 1996, Liberty National, relying on Ex parte First National Bank of Jasper, 675 So. 2d 348 (Ala.1995) (FNB of Jasper I), filed a motion to "abate the present action ... and [to] stay [it] pending a final order in the Lawson [class action]. On August 20, 1996, the trial court ruled as follows:
The DeArmans filed this mandamus petition in response to that ruling.
It is apparent from an examination of the petition and the briefs that the trial court ruled as it did on the basis of this Court's opinion in FNB of Jasper I, supra. Liberty National argues in its brief as follows:
(All emphasis is that of Liberty National.)
It appears that the trial court, relying on FNB of Jasper I, intended to stay proceedings in the present action pending a determination of the request for final certification in the Lawson class action and then to issue an order abating the present action if the final certification in the Lawson class action occurred. Although FNB of Jasper I, on its face, appears to support the trial court's ruling, a majority of this Court recently clarified the following statement in that opinion: "Once a certification occurs in any court, that certification abates all other pending actions and the named plaintiffs in the other actions would then become members of the certified class in the court in which the certification has occurred." 675 So. 2d at 349. In First National Bank of Jasper v. Crawford, 689 So. 2d 43 (Ala.1997) (FNB of Jasper II,) the majority explained that the abatement of the first of two actions filed by the same plaintiff is neither self-executing nor mandatory:
"675 So. 2d at 349 (emphasis added [in FNB of Jasper II]).
"This statement does not support the rule the Bank advocates, namely, that § 6-5-440 is self-executing. On the contrary, in stating that it would `reconsider' the Bank's motion to dismiss, stay, or abate the action after `certification' in one of the other actions, the Fayette Circuit Court expressly contemplated reconsidering the issue only whenand ifthe Bank renewed its motion to abate the action in Fayette County. We quoted the trial court's order as illustrating well the procedure § 6-5-440 requires.
689 So. 2d at 45-46.
Therefore, contrary to Liberty National's contention, § 6-5-440 does not "mandate" the abatement of the present action, regardless of whether the Lawson class action receives final certification. The DeArmans filed this action before the Lawson class action was filed. Section 6-5-440 was not implicated until the Lawson action was conditionally certified as a class action. When that occurred, the DeArmans became parties in the Lawson class action and, as a result, they were instantly prosecuting two separate actions against Liberty National one individually and one as members of the plaintiffs' class in the Lawson class action. Based on this Court's interpretation of § 6-5-440 in FNB of Jasper II, supra, Liberty National can raise the present action as a defense to the DeArmans' participation in *1292 the Lawson class action. However, in the absence of an election on the DeArmans' part to pursue their claims in the Lawson class action, Liberty National has no legal basis upon which to insist that the present action has abated.
By issuing the writ in this case, we do not mean to impinge upon that authority every trial court possesses to stay an action under the appropriate circumstances. We hold only that unless the trial court has a basis, other than this Court's opinion in FNB of Jasper I, for granting Liberty National's motion to stay, the DeArmans have a clear legal right to proceed with the present action.
WRIT GRANTED.
HOOPER, C.J., and MADDOX, KENNEDY, and SEE, JJ., concur.
ALMON, J., concurs specially.
COOK, J., concurs in the result.
SHORES, J., recuses.
ALMON, Justice (concurring specially).
I agree that the writ of mandamus should issue to set aside the stay of this action based on the pendency of the Lawson class action. However, I think Ex parte Holland, 692 So. 2d 811 (Ala.1997), is more pertinent to this case than First National Bank of Jasper v. Crawford, 689 So. 2d 43 (Ala.1997).[1] In Ex parte Holland, this Court issued the writ of mandamus, holding that two circuit judges had abused their discretion: one for certifying a class action (the Anderson action) as a mandatory class action under Rule 23(b)(1)(B), Ala.R.Civ.P., and the other for staying the Hollands' individual action because of the pendency of the Anderson class action. Although there is no indication here that the Lawson class action was certified as a mandatory class action without opt-out rights, such a certification is the only arguable basis that I can see on which to stay the DeArmans' action because of the pendency of the Lawson class action.
The DeArmans filed their action on January 17, 1996, and the Lawson action was filed on February 21, 1996. The DeArmans could have dismissed their individual complaint and joined the Lawson class, but their failure to do so should be deemed a decision to opt out of the Lawson class unless Lawson is certified as a mandatory class action under Rule 23(b)(1)(B). The Court held in Holland that such a mandatory class action is not proper in cases such as these, except perhaps in limited circumstances where the defendant can make a particularized showing of how the limited fund doctrine should apply.
I would hold that, under this Court's holding in Holland, the stay of the DeArmans' action pending certification in Lawson was an abuse of discretion.
[1] See also Ex parte State Mutual Ins. Co., [Ms. 1960410, April 4, 1997] ___ So.2d ___ (Ala. 1997), in which this Court held that the circuit court had correctly excluded from a mandatory class action individual plaintiffs who had filed their action before the class was certified; In re Temple, 851 F.2d 1269 (11th Cir.1988), in which the Eleventh Circuit Court of Appeals issued a writ of mandamus to set aside a district court's order certifying a mandatory class action and staying all pending actions. | April 25, 1997 |
eb01a03f-9ce9-4794-8afd-e4648412e298 | First Nat. Bank of Jasper v. Crawford | 689 So. 2d 43 | 1950773 | Alabama | Alabama Supreme Court | 689 So. 2d 43 (1997)
FIRST NATIONAL BANK OF JASPER
v.
Earl CRAWFORD and Beverly Crawford.
1950773.
Supreme Court of Alabama.
February 28, 1997.
*44 Hobart A. McWhorter, Jr., and Matthew H. Lembke of Bradley, Arant, Rose & White, Birmingham, for Appellant.
Garve Ivey, Jr., of King, Ivey & Junkin, Jasper, for Appellees.
COOK, Justice.
First National Bank of Jasper ("the Bank") appeals from a judgment granting the motions of Earl Crawford and Beverly Crawford to decertify and dismiss without prejudice their class action against the Bank. We affirm.
This case, like Ex parte First National Bank of Jasper, 675 So. 2d 348 (Ala.1995) ("FNB of Jasper I"), arises out of litigation involving the "purchase of credit life insurance incident to ... installment loans" made by the Bank. Id. at 348. More specifically, it concerns a retail installment loan made to Earl Crawford, which loan formed the basis of one of "six identical class actions filed on the same day, in [Fayette, Jefferson, and Walker Counties], brought in the name of different individual plaintiffs." Id. We noted in that case:
Id. (Emphasis added.)
In FNB of Jasper I, "[t]he Bank assert[ed] that it should not be required to defend six simultaneous and identical class actions, in three separate counties, all having been brought by the same lead attorney, and all containing the identical class allegations and claims, on behalf of the same alleged class." Id. It petitioned this Court for writs of mandamus directing the circuit courts of Fayette and Walker Counties to abate the actions, pursuant to Ala.Code 1975, § 6-5-440, which provides:
See 675 So. 2d at 348-49.
On July 28, 1995, this Court issued an opinion denying the petitions on the ground that "the Bank ha[d] failed to establish that a class ha[d] been certified in any of the pending cases," id. at 349 (emphasis added; footnote omitted), and, consequently, that the litigation was not yet ripe for abatement in any court. Id.
Meanwhile, on November 30, 1994, the named plaintiffs in this caseEarl and Beverly Crawfordfiled a motion in the Jefferson County Circuit Court "to dismiss the [Bank], without prejudice, from this action," on the ground that the Bank had "objected to the pendency of different actions by different Plaintiffs, and [that] the Plaintiffs [had] chosen to pursue all of their actions in the case of Joy Scheile v. First National Bank, CV-94-062, Circuit Court of Fayette County."
On December 1, 1994, the Bank moved the Jefferson County Circuit Court "for the appropriate order striking or otherwise disallowing the motion filed ... by [the] plaintiffs to dismiss this action without prejudice." (Emphasis added.) Subsequently, on January 27, 1995, this action was transferredon the Bank's motionfrom Jefferson County to Walker County on the ground of forum non conveniens. On February 16, 1995, the Bank moved the Walker County Circuit Court "to enter an order certifying this action as a class action." On August 21, 1995, the Walker County Circuit Court granted the Bank's motions to certify a class action and to strike the plaintiffs' motions to dismiss.
On March 10, 1995, Earl Crawford supplemented his motion to dismiss the action with an affidavit, which stated in pertinent part:
(Emphasis added.)
On September 5, 1995, the Crawfords moved the Walker County Circuit Court to "reconsider, alter, amend, or vacate" the order certifying the class and refusing to dismiss. The Bank opposed that motion; however, on January 19, 1996, the trial court entered an order stating in pertinent part:
From this judgment, the Bank appealed.
We begin our discussion by noting that the plaintiff chooses the forum for the litigation upon filing the lawsuit. At common law, "the plaintiff had a right to abandon an action ... and become nonsuit at any time before verdict." Hamlin v. Walker, 228 Mo. 611, 616, 128 S.W. 945, 946 (1910). Under our present rules, the plaintiff's right to a voluntary dismissal after the service "by the adverse party of an answer or of a motion for summary judgment" is circumscribed by "such terms and conditions as the court deems proper." Ala. R. Civ. P. 41(a)(1) and (2). "A defendant is not entitled to reversal [of an order of dismissal under Rule 41(a)(2)] unless he can show that the trial court failed to exercise or abused its discretion, or exercised an unpermitted discretion." Bevill v. Owen, 364 So. 2d 1201, 1203 (Ala.1979) (emphasis added).
The Bank contends, however, that after August 21, 1995, the plaintiffs had no right to seekand the trial court had no discretion to granta dismissal of the action. The Bank says this is so, because, it argues, § 6-5-440 is essentially self-executing, that is, it springs into operation without a motion by the defendant to invoke it, and without the trial court's considering such a motion and the grounds on which it is based. According to this argument, on August 21, 1995, when the Walker County Circuit Court certified a class action, § 6-5-440 operated immediately to abate automatically all other actions, and specifically, for our purposes here the one pending in Fayette County. Thus, it insists, the trial court, in its order of dismissal on January 19, 1996, erred in concluding that Scheile was *46 "pending" in Fayette County and, consequently, erred to reversal in dismissing the action on the basis of that conclusion, Rule 41(a)(2) notwithstanding.
In support of this proposition, the Bank states: "The Court [in FNB of Jasper I] held that `[o]nce a certification occurs in any court, that certification abates all other pending actions and the named plaintiffs in the other actions would then become members of the certified class in the court in which the certification has occurred.'" Brief of Appellant, at 9 (quoting 675 So.2d at 349) (emphasis added).
The Bank, however, misconstrues FNB of Jasper I. First, the quoted statement did notindeed, could notrepresent the holding of FNB of Jasper I as the Bank construes it. This is so because when FNB of Jasper I was decided, there had been no certification in any court on which to establish such a holding. The FNB of Jasper I holding, which was very narrow, was that until a certification occurred somewhere, it would be premature to consider the application of § 6-5-440. This holding is, in fact, contained in the excerpt we quoted with approval from the Fayette County Circuit Court's order, which denied the Bank's motion to dismiss, stay, or abate the action in that county:
675 So. 2d at 349 (emphasis added).
This statement does not support the rule the Bank advocates, namely, that § 6-5-440 is self-executing. On the contrary, in stating that it would "reconsider" the Bank's motion to dismiss, stay, or abate the action after "certification" in one of the other actions, the Fayette Circuit Court expressly contemplated reconsidering the issue only whenand ifthe Bank renewed its motion to abate the action in Fayette County.[1] We quoted the trial court's order as illustrating well the procedure § 6-5-440 requires.
The essence of the matter is that § 6-5-440 is, neither by its express terms nor by this Court's construction of it, selfexecuting. On the contrary, § 6-5-440 states: "No plaintiff is entitled to prosecute two actions ... at the same time for the same cause ... against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times." (Emphasis added.) To take advantage of § 6-5-440, the defendant must file a motion calling for the plaintiff to choose which action will be prosecuted. Thus, the defendant "may," but, by implication, need not, "require the plaintiff to elect" a forum, if the plaintiff has commenced actions simultaneously, and the burden is upon the defendant to assert as a defense the pendency of a previously commenced action. When actions are commenced simultaneously, the plaintiff has the right to choose the forum in which to proceed. The plaintiffs in this case have, of course, elected the forum in which they wish to proceed, namely, Fayette County.
Nothing in the text of the statute suggests that the legislature intended to relieve the defendant of the responsibility to take all appropriate measures to abate an action to which it has a defense. Because the Bank's construction of § 6-5-440 would divest the plaintiff of the right to elect a forum and would vest that right in the defendant, its construction would essentially stand the statute on its head.
Such a construction would, moreover, bring § 6-5-440 into direct conflict with Rule 41(a)(2). The procedural posture of this case clearly illustrates the conflict. Here, it is the plaintiff who moved to dismiss the action in Walker County, and it is the defendant that objected to the dismissal. Before any action *47 had been certified, the plaintiffs moved to dismiss the action in Walker County. The trial judgeover the objection of the plaintiffscertified a class in Walker County on the motion of the defendants. Later, the trial judge reconsidered, decertified the class, and dismissed the action.
But the reconsideration came too late, according to the Bank, because, it contends, the certification triggered § 6-5-440, which, being self-executing, the Bank insists, automatically and by operation of law abated all other actions, including the one in Fayette County. Section 6-5-440, therefore, as construed by the Bank, effectively divested the Walker County Circuit Court of the discretion to grant the plaintiffs' motion to dismiss on the ground on which it chiefly relied, Rule 41(a)(2) notwithstanding. Neither this Court nor the legislature intended to create such a conflict with the policy and procedure embodied in Rule 41(a)(2). We cannot, therefore, conclude that the trial court was divested of its discretion to dismiss this action on the ground that Scheile was pending in Fayette County.[2]
Neither can we conclude that the trial court abused its discretion. By the time the trial court granted the Crawfords' motion to dismiss, Earl Crawford had unequivocally expressed a desire not to continue to serve as a class representative, a fact to which the court referred in its order. Moreover, much of the evil the Bank now says will result from the dismissal, namely, the additional time and expense of undergoing another certification process in Fayette County, could have been avoided if in the first place the Bank had not opposed the plaintiffs' November 30, 1994, motion to dismiss the Bank from the action then pending in Jefferson County (which was transferred to Walker County on January 27, 1995). For these reasons, the judgment of the trial court is affirmed.
AFFIRMED.
ALMON, SHORES, KENNEDY, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., dissent.
HOUSTON, Justice (dissenting).
In Ex parte First National Bank of Jasper, 675 So. 2d 348, 349 (Ala.1995), an opinion written by Justice Cook and in which Justices Maddox, Shores, Kennedy, Ingram, and Butts, concurred and I concurred in specially, this Court held:
I thought this meant what it said. Therefore, I dissent.
HOOPER, C.J., and MADDOX and SEE, JJ., concur.
[1] As of the time of this writing, this Court has not been made aware of an order of abatement in the Fayette County Circuit Court.
[2] This is true, in other words, because Scheile had not been automatically abated as the Bank contends it had. | February 28, 1997 |
2afa28d6-08ff-4b95-8c0b-f0e4156691a7 | Ex Parte Gradford | 699 So. 2d 149 | 1951102 | Alabama | Alabama Supreme Court | 699 So. 2d 149 (1997)
Ex parte Perry S. GRADFORD.
(Re Perry S. GRADFORD v. NICHOLS CONCRETE EQUIPMENT COMPANY, INC.).
1951102.
Supreme Court of Alabama.
April 18, 1997.
Mark C. Wolfe and Stephen C. Moore of Sigler, Moore, Clements & Wolfe, Mobile, for petitioner.
Davis Carr, Helen Johnson Alford, and Rachel Sanders-Cochran of Carr, Alford, Clausen & McDonald, L.L.C., Mobile, for respondent.
*150 Russell Jackson Drake of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n, in support of petitioner Gradford.
ALMON, Justice.
This Court granted Perry S. Gradford's petition for the writ of certiorari to consider his argument that the affirmance by the Court of Civil Appeals (Gradford v. Nicholas Concrete Equip. Co., 699 So. 2d 145 (Ala.Civ. App.1996)) conflicts with several cases and statutes regarding a plaintiff's burden of proof. The circuit court instructed the jury that "The burden of proof is upon the plaintiff to reasonably satisfy you by substantial evidence "as to Gradford's negligence claim and that "The law requires that the plaintiff prove the material allegations of one or more of his wantonness claims by clear and convincing evidence" (emphasis added). The correctness of these two instructions is at issue.
The relevant portions of the jury instructions are quoted in the opinion of the Court of Civil Appeals, and we will not repeat them here, except for the concluding paragraph:
(Emphasis added.)
Instruction 8.00, Alabama Pattern Jury Instructions: Civil (2d ed.1993), reads:
In 1987, the Alabama Legislature enacted Act No. 87-184, 1987 Ala. Acts, now codified at § 12-21-12, to abolish the "scintilla rule" of evidence and replace it with the "substantial evidence rule." Section 12-21-12 reads:
(Emphasis added.)
Clearly, the substantial evidence rule pertains only to "rulings by the court" on the sufficiency of the evidence as presented by motions for summary judgment or motions for judgment as a matter of law (the current terminology; see Rule 50, Ala. R. Civ. P.). No one would have suggested before *151 the adoption of Act No. 87-184 that the burden of proof on a plaintiff was to "reasonably satisfy the jury by a scintilla of evidence"; the burden was simply to "reasonably satisfy you [the jury] by the evidence," Instruction 8.00, Alabama Pattern Jury Instructions: Civil (1st ed.1974). That burden was not changed by the adoption of Act No. 87-184, as the pattern jury instruction committee apparently recognized when it did not change Instruction 8.00 in the second edition.
Because the definition in § 12-21-12(d) did not adequately define "substantial evidence" (if anything, it defines "conflicting evidence"), this Court in West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989), adopted the saving construction set forth by Justice Jones in his special concurrence in Rowden v. Tomlinson, 538 So. 2d 15 (Ala.1988):
538 So. 2d at 19 (Jones, J., concurring specially).
The circuit court in this case used the following definition in instructing the jury:
Although this is a correct definition, it has no more pertinence to a jury instruction on the burden of proof than a definition of "scintilla"[1] would have had in an earlier case.
This Court has rejected an argument that a circuit court erred in not instructing a jury on the substantial evidence standard:
Phillips Colleges of Alabama, Inc. v. Lester, 622 So. 2d 308, 313-14 (Ala.1993). Phillips Colleges is one of the cases Gradford says the Court of Civil Appeals opinion conflicts with. We agree that it conflicts, and we now hold that the contrapositive[2] of the holding in Phillips Colleges is also true: just as it is not error not to charge on "substantial evidence," it is error to give a charge telling the jury that it must be "reasonably satisfied by substantial evidence."
The giving of such a charge is error, both because the substantial evidence rule has no place in the jury's deliberations and because the charge has a tendency to mislead and confuse the jury. Although the circuit court here instructed the jury on the legal definition of "substantial evidence," the repeated use of that term may have confused the jury because of the ambiguity of the word "substantial." "Substantial" may mean either "real, material, not seeming or imaginary" or *152 "considerable in amount, value, or worth."[3] The former meaning seems to be what the "substantial evidence" standard requires for an affirmative ruling on the question of sufficiency of the evidence, but the latter meaning is one that is commonly understood. Thus, the jury might well understand "substantial evidence" to mean "more than a preponderance of the evidence."
This possibility of confusion is exacerbated by the fact that the jurors will probably not know about the shift in Alabama law from the scintilla rule to the substantial evidence rule. When "substantial" is considered in relation to "scintilla," the term requires only that the evidence be material, of some substance. A circuit judge ruling on a summary judgment motion or a motion for a judgment as a matter of law will know this distinction and will look for substantial evidence with the correct threshold in mind. A jury, not knowing that "substantial" should be contrasted with "scintilla," may well think that the requirement of "substantial evidence" requires the plaintiff to prevail by some margin of evidence greater than the mere preponderance of the evidence, which is the true burden of proof.
The United States Supreme Court has noted this connotation of "substantial" in the context of a jury instruction in a criminal case. In Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), the Court held that an instruction attempting to define "reasonable doubt" violated the Due Process Clause of the Fourteenth Amendment. One of the terms used in the instruction was "an actual substantial doubt," and the Court disapproved of the use of that term to define a reasonable doubt: "It is plain to us that the words `substantial' and `grave,' as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard." 498 U.S. at 41, 111 S. Ct. at 329-30, 112 L. Ed. 2d at 342.
For the foregoing reasons, we hold that the circuit court committed reversible error in instructing the jury that the plaintiff's burden was "to reasonably satisfy you by substantial evidence." The judgment of the Court of Civil Appeals affirming the judgment for Nichols Concrete conflicts with Phillips Colleges of Alabama, Inc. v. Lester, 622 So. 2d 308 (Ala.1993), and it incorrectly applies § 12-21-12. The judgment of the Court of Civil Appeals is therefore due to be reversed on this ground.
We also hold that the jury instruction on wantonness was erroneous. The circuit court instructed the jury that, to recover under his wantonness counts, Gradford was required to present clear and convincing evidence. On motion of the defendant, and apparently without objection from Gradford, the action was bifurcated so that Gradford's claims were submitted to the jury for an initial finding of liability without an award of damages. Thus, there was no question at the time of punitive damages; the questions were simply whether Nichols Concrete was liable for negligence or not and whether it was liable for wantonness or not.
The "clear and convincing evidence" standard applies only to an award of punitive damages:
Ala.Code 1975, § 6-11-20(a) (emphasis added).
This Court has addressed the application of the "clear and convincing evidence" standard to the question whether to submit a wantonness claim to a jury:
Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909, 925 (Ala.1994) (emphasis added). Although the Court in Hines was reviewing a summary judgment, the principles stated therein show why an instruction requiring clear and convincing evidence for a recovery under a wantonness count is erroneous.
A charge requiring a jury to find by clear and convincing evidence that the defendant is guilty of wantonness is clearly prejudicial to the plaintiff. In the first place, a plaintiff is entitled, as a matter of due process of law, to have each properly supported claim submitted to the jury with a correct statement of the applicable law. Moreover, the erroneous burden could prevent a jury from giving any recovery where the defendant has raised a defense of contributory negligence, which may bar a recovery in negligence but does not bar a recovery in wantonness.
For the foregoing reasons, the judgment is reversed, and the cause is remanded.
REVERSED AND REMANDED.
SHORES, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, HOUSTON, and SEE, JJ., dissent.
HOUSTON, Justice (dissenting).
In Phillips Colleges of Alabama, Inc. v. Lester, 622 So. 2d 308 (Ala.1993), this Court held that the trial court had not erred in refusing to include the words "substantial evidence" in its oral charge to the jury. We explained that throughout its oral charge the trial court had properly instructed the jurors that the plaintiff bore the burden of reasonably satisfying them from the evidence that the school had made a promise that it intended not to keep and, therefore, that the trial court had given the jurors all the guidance they needed. This Court in Phillips Colleges had no reason to reach the issue presented in this casewhether it is per se reversible error to include the words "substantial evidence" in a jury charge on the plaintiff's burden of proof. Therefore, I do not believe the opinion of the Court of Civil Appeals in this case conflicts with Phillips Colleges.
After examining the entire jury charge, I am satisfied that even though the trial court's references to "substantial evidence" in connection with the negligence claims were erroneous, those references, when considered in the context of the entire charge, do not rise to the level of reversible error. The trial court clearly charged the jurors that before they could return a verdict for the plaintiff they had to be reasonably satisfied from the evidence that the plaintiff was entitled to prevail. Although the trial court went further in several instances and told the jurors that they had to be reasonably satisfied by "substantial evidence," the trial court defined "substantial evidence":
In my view, this merely conveyed to the jurors the obviousthat the plaintiff had to present evidence from which they could reasonably find in his favor and that before they could so find they had to be reasonably satisfied that the plaintiff was entitled to prevail.
Although I agree with the majority that the jury did not need to be told that the plaintiff had to prove his case by "substantial evidence," I nonetheless do not share the majority's concerns that the jurors could reasonably have been confused or misled by having that information. I am not willing to go outside the trial court's chargeto Webster's Third New International Dictionary, for exampleto find a basis for concluding that the jurors could have been confused or misled. So far as I know, the jurors did not have a dictionary with them during their deliberations, and I am not willing to assume that the jurors did not understand and follow the law as it was explained to them by the trial court.[4]
As to the wantonness claims, I agree with the majority that the trial court erred in instructing the jury on the "clear and convincing evidence" standard. The plaintiff was entitled to seek both compensatory and punitive damages under his wantonness claims. Damage is an essential element of a plaintiff's cause of action. If a plaintiff is able to present substantial evidence in support of his claim of, say, wantonness, he has an absolute right to have the jury consider his claim for compensatory damages, and the jury should be instructed that it can award compensatory damages if it is reasonably satisfied from the evidence that the plaintiff is entitled to recover. Likewise, if that plaintiff can present in support of his claim evidence that the jury could find "clear and convincing," as that term is defined in Ala. Code 1975, § 6-11-20(b)(4), then his claim for punitive damages should be submitted to the jury, and the jury should be instructed on the higher "clear and convincing evidence" standard. See my dissent in Ex parte Norwood Hodges Motor Co., 680 So. 2d 245 (Ala.1996). The trial in the present case was bifurcated, and the only issues before the jury at the time of the trial court's charge concerned liability, not damages. Damages, both compensatory and punitive, were to be considered in the second phase of the trial, if a second phase was needed. The trial court's charge could, therefore, have had the effect of cutting off the plaintiff's claim for compensatory damages under his wantonness count by improperly increasing his burden of proof. I note, however, that the jury found for the defendant on the plaintiff's negligence claims. As I understand it, the same action or inaction that was relied on by the plaintiff to support his wantonness claims was also relied on to support his negligence claims. Therefore, because the jury was not charged on contributory negligence or on any other affirmative defense to the negligence claims, I would hold that the error associated with the trial court's charge on wantonness was harmless and therefore would not require a reversal. See my opinion concurring *155 in part, dissenting in part, and concurring in the result in part in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala.1987).
For the foregoing reasons, I would quash the writ as improvidently granted. Therefore, I respectfully dissent.
HOOPER, C.J., and MADDOX and SEE, JJ., concur.
[1] "Pursuant to the scintilla rule, courts [were] bound to allow factual questions to go to the jury if the evidence or any reasonable inference therefrom contain[cd] the merest gleam, glimmer, spark, the least particle or the smallest trace in support of the theory of the complaint." Ex parte Bagby Elevator & Elec. Co., 383 So. 2d 173, 176 (Ala.1980).
[2] We caution that although contraposition is always true in logic, it is not always true in law: just because it is not error to refuse a charge does not mean that it is error to give it. The matter may be within the judge's discretion, for example.
[3] Webster's Third New International Dictionary (Unabridged) (1976), includes the following definitions of "substantial": "1a: consisting of, relating to, sharing the nature of, or constituting substance: existing as or in substance: MATERIAL... b. not seeming or imaginary: not illusive: REAL, TRUE ... c. being of moment: IMPORTANT, ESSENTIAL ... 2c. considerable in amount, value, or worth ."
[4] The majority states that the "substantial evidence" standard requires evidence that is "real, material, not seeming or imaginary," as opposed to evidence that is "considerable in amount, value, or worth." The majority then goes on to state:
"This possibility of confusion is exacerbated by the fact that the jurors will probably not know about the shift in Alabama law from the scintilla rule to the substantial evidence rule. When `substantial' is considered in relation to `scintilla,' the term requires only that the evidence be material, of some substance. A circuit judge ruling on a summary judgment motion or a motion for a judgment as a matter of law will know this distinction and will look for substantial evidence with the correct threshold in mind. A jury, not knowing that `substantial' should be contrasted with `scintilla,' may well think that the requirement of `substantial evidence' requires the plaintiff to prevail by some margin of evidence greater than the mere preponderance of the evidence, which is the true burden of proof."
699 So. 2d at 152.
All of this suggests to me that the majority either believes that the "substantial evidence" standard is the same as the old "scintilla of evidence" standard (something I am not certain the Legislature actually intended), or believes that the "scintilla of evidence" standard allowed claims to be submitted to the jury based on unreal, immaterial, or imaginary evidence (something which I hope was not the case). | April 18, 1997 |
cf487ea9-79e2-4fa3-9c72-1b0ead28a90e | Ex Parte Bush | 695 So. 2d 138 | 1950959 | Alabama | Alabama Supreme Court | 695 So. 2d 138 (1997)
Ex Parte William BUSH.
(Re William Bush v. State).
1950959.
Supreme Court of Alabama.
April 18, 1997.
Stephen R. Glassroth of Glassroth & Associates, P.C., Montgomery, and James R. Seale of Robison & Belser, P.A., Montgomery, for petitioner.
Bill Pryor, Atty. Gen., and Michael B. Billingsley, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
The opinion of January 24, 1997, is withdrawn and the following opinion is substituted therefor.
William Bush was originally convicted on November 18, 1981, of the capital offense of murder committed during the commission of a robbery, Ala.Code 1975, § 13A-5-40(a)(2), and was sentenced to death. Following appeals and retrials, he was convicted a third time on February 1, 1991, and a third time was sentenced to death. The facts and history of this case are sufficiently set out in the opinion of the Court of Criminal Appeals. See Bush v. State, 695 So. 2d 70 (Ala.Crim. App.1995).
The Court of Criminal Appeals affirmed Bush's conviction and death sentence and subsequently overruled his application for rehearing. We granted certiorari review pursuant to Rule 39(c), Ala.R.App.P.
Rule 39(k), Ala.R.App.P., provides that "[i]n all cases in which the death penalty has been imposed, upon review of the opinion of the Court of Criminal Appeals on certiorari, the Supreme Court may notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." See also Ex parte Waldrop, 459 So. 2d 959 (Ala. 1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2050, 85 L. Ed. 2d 323 (1985). "`Plain error' arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceeding. United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). See also Ex parte Womack, 435 So. 2d 766 (Ala.1983), cert. denied, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 *139 (1983)." Ex parte Adkins, 600 So. 2d 1067, 1068-69 (Ala.1992), quoting Ex parte Bankhead, 585 So. 2d 112, 117 (Ala.1991). Accordingly, this Court has reviewed the record for any error that would have seriously affected the fairness or integrity of the judicial proceedings. See Ex parte Lawhorn, 581 So. 2d 1179 (Ala.1991), cert. denied, 502 U.S. 970, 112 S. Ct. 445, 116 L. Ed. 2d 463 (1991).
The Court of Criminal Appeals, in its opinion, addressed each of the issues that Bush raised, and, based upon our review of that opinion and the record on appeal, and after considering the arguments made in Bush's brief and at oral arguments, we hold that the judgment of the Court of Criminal Appeals is due to be affirmed.
Bush makes several "plain error" arguments that neither the trial court nor the Court of Criminal Appeals addressed; only one of those calls for any discussion here. That argument is that Bush's incarceration for 16 years awaiting the execution of his death sentence constitutes cruel and unusual punishment prohibited by the Eighth Amendment of the United States Constitution.
Bush relies primarily upon Lackey v. Scott, 885 F. Supp. 958 (W.D.Tex.1995), a case in which an inmate claimed that his lengthy incarceration on death row constituted cruel and unusual punishment. There, the federal district court stayed the execution in order to address the issue, but the Fifth Circuit Court of Appeals vacated the stay, holding that this particular claim was barred. See Lackey v. Scott, 52 F.3d 98 (5th Cir.1995). On Lackey's petition, the Supreme Court issued a per curiam order granting a stay of execution "pending the district court's consideration of petitioner's petition for a writ of habeas corpus." Lackey v. Scott, 514 U.S. 1093, 115 S. Ct. 1818, 131 L. Ed. 2d 741 (1995). The district court, based upon Fearance v. Scott, 56 F.3d 633 (5th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 2603, 132 L. Ed. 2d 847 (1995) (which held that the legal theory underlying a Lackey claim is not novel and thus does not meet the novelty exception to the abuse-of-the-writ doctrine), dismissed Lackey's claim as an abuse of the writ. See 83 F.3d at 117. On appeal, the Fifth Circuit affirmed, holding that "Lackey's claim ... fails on the merits, because White [v. Johnson, 79 F.3d 432 (5th Cir.1996), cert. denied, ___ U.S. ___, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996)], holds that inordinate delay in carrying out an execution does not violate the prisoner's Eighth Amendment rights. Id. at 439." Lackey v. Johnson, 83 F.3d 116, 117 (5th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 276, 136 L. Ed. 2d 198 (1996).
Nevertheless, the same issue has also been addressed by the Ninth Circuit Court of Appeals in McKenzie v. Day, 57 F.3d 1461 (9th Cir.), cert. denied, 514 U.S. 1104, 115 S. Ct. 1840, 131 L. Ed. 2d 846 (1995), where McKenzie, the petitioner, argued that a 20-year delay in the execution of his death sentence amounted to cruel, unusual, and arbitrary punishment. The Ninth Circuit stated:
57 F.3d at 1466-69. In its note 16, the McKenzie court stated:
57 F.3d at 1468.
Based on the foregoing, we find no merit in Bush's argument that the same constitutional protections that have kept him from being executed for the past 16 years are simultaneously violating his constitutional rights.
OPINION OF JANUARY 24, 1997, WITHDRAWN; OPINION SUBSTITUTED; *141 APPLICATION OVERRULED; AFFIRMED.
HOOPER, C.J., and SHORES, COOK, and BUTTS, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I write only to address the penalty phase of the trial. This Court must determine "whether death was the proper sentence in the case." Ala.Code 1975, § 13A-5-53(a). The jury returned a unanimous verdict recommending life imprisonment without the possibility of parole. See Smith v. Schulte, 671 So. 2d at 1334 (Houston, J., dissenting); Ex parte Jackson, 672 So. 2d 810 (Ala.1995), cert. denied, Jackson v. Alabama, ___ U.S.___ 116 S. Ct. 2505, 135 L. Ed. 2d 195 (1996) (Houston, J., concurring in the result); Ex parte Giles, 632 So. 2d 577, 587 (Ala.1993), cert. denied, Giles v. Alabama, 512 U.S. 1213, 114 S. Ct. 2694, 129 L. Ed. 2d 825 (1994) (Houston, J., concurring in the result); and Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993) (Houston, J., dissenting, at 904-14). | April 18, 1997 |
42bd2552-b9b9-435a-b983-a632af3ee23d | Ex Parte Holland | 692 So. 2d 811 | 1951631 | Alabama | Alabama Supreme Court | 692 So. 2d 811 (1997)
Ex parte Mitchell HOLLAND and Tammy Holland.
(In re Jacqueline ANDERSON v. AUTO MART OF THE SOUTHEAST, INC., et al. Mitchell HOLLAND and Tammy Holland v. AUTO MART OF THE SOUTHEAST, INC., et al. FIDELITY FINANCIAL SERVICES, INC., etc. v. Mitchell HOLLAND and Tammy Holland).
1951631.
Supreme Court of Alabama.
March 28, 1997.
*812 George W. Finkbohner III of Finkbohner & Lawler, L.L.C., Mobile; and Robert G. Methvin, Jr., Birmingham, for Petitioners.
Steven L. Nicholas and Kenneth J. Riemer of Sirote & Permutt, P.C., Mobile; and A. Danner Frazer, Jr., and D. Brent Baker of Frazer, Greene, Upchurch & Baker, Mobile, for Fidelity Financial Services, Inc.
Michael Gillion of Gillion, Brooks & Hamby, P.C., Mobile, for Auto Mart of the Southeast, Inc.
Robert T. Cunningham, Jr., Toby D. Brown, Andrew T. Citrin, and Kelli D. Taylor of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for Jacqueline Anderson, as representative of the class (stating that" the Class does not have a position it chooses to assert before this Court").
HOUSTON, Justice.
Mitchell and Tammy Holland petition for a writ of mandamus directing Mobile Circuit Judges Braxton L. Kittrell, Jr., and Robert L. Byrd, Jr., to vacate their orders of June 12, 1996, and June 14, 1996, respectively. Those orders, together, had the effect of *813 precluding the Hollands from opting out of a class action filed in the Mobile County Circuit Court by Jacqueline Anderson against Fidelity Financial Services, Inc. ("Fidelity"), and Auto Mart of the Southeast, Inc. ("Auto Mart"), and, thereby, preventing the Hollands from individually pursuing their claims for punitive damages against those entities. We grant the writ.
This dispute arose out of the Hollands' purchase of a Mazda automobile from Auto Mart. The Hollands financed the purchase through Fidelity. After repossessing the Hollands' automobile and selling it, Fidelity initiated this litigation by filing an action to recover the balance it alleged was owed by the Hollands on the debt. The Hollands counterclaimed, alleging, among other things, fraud and conspiracy to defraud in connection with the sale and financing of the automobile. The Hollands also sued Auto Mart in a separate action, alleging fraud and conspiracy to defraud. The actions against Auto Mart and Fidelity were consolidated for trial, and both actions were assigned to Judge Byrd.
The Hollands' claims were eventually set for trial on April 29, 1996. Relying on Ex parte First National Bank of Jasper, 675 So. 2d 348 (Ala.1995), Fidelity moved to stay the Hollands' counterclaim against it pending the resolution of two class actions, each alleging misconduct on the part of Fidelity and Auto Mart, that had been conditionally certified in the Circuit Courts of Mobile and Washington Counties. The Mobile County class action (Glenn v. Fidelity Financial Services of Alabama, Inc., CV-94-003373) was pending before Judge Robert G. Kendall, and the Washington County class action (Coates v. Auto Mart of the Southeast, Inc., CV-94-4814) was pending before Judge J. Lee McPhearson. Judge Byrd granted Fidelity's motion to stay. Thereafter, Judge Kendall allowed the Hollands to opt out of the Glenn class action and Judge McPhearson ruled that the Hollands were not part of the class in the Coates class action. On motion of the Hollands, Judge Byrd rescheduled the Hollands' claims for trial on June 17, 1996.
On May 10, 1996, Judge Kittrell conditionally certified the Anderson action as a class action, without specifying which part of Rule 23(b) formed the basis for the certification. That class action, which was filed more than a year after the Hollands' counterclaim against Fidelity and their action against Auto Mart, was based on allegations of wrongful conduct on the part of Auto Mart and Fidelity similar to that alleged by the Hollands in their individual actions. Judge Kittrell's order certifying the Anderson action as a class action provided in part as follows:
Following the entry of this order, Fidelity, again relying on Ex parte First National Bank of Jasper, supra, moved to stay the Hollands' claim against it, pending resolution of the Anderson class action. The Hollands responded to this motion by moving to opt out of the class. Fidelity then moved to declare the Anderson class action a mandatory action (no right to opt out) with respect to the issue of punitive damages, arguing that there was a "limited fund" from which the class members could recover and that it was preferable to have everyone with a claim against it before the trial court. The attorney for the class stated at the hearing on Fidelity's motion: "I don't want to interfere with [the Hollands'] lawsuit, as long as I can be convinced the class is protected or the funds are protected, that's all I care about." *814 Judge Kittrell granted Fidelity's motion in an order dated June 12, 1996, stating:
Judge Kittrell made no factual findings as to the financial condition of Fidelity (or Auto Mart) or as to the extent of Fidelity's ability to pay damages for the alleged wrongful conduct. Two days later, on June 14, 1996, Judge Byrd entered an order again abating the Hollands' actions, pending resolution of the Anderson class action.
Two well-settled standards of review govern our decision in this case. First, a writ of mandamus, which is a drastic and extraordinary remedy, is appropriate only when the one seeking it has shown a clear legal right to the order sought; an imperative duty on the respondent to perform, accompanied by a refusal to do so; the lack of another adequate remedy; and properly invoked jurisdiction of the court. Ex parte Johnson, 638 So. 2d 772 (Ala.1994). Second, an order certifying an action as a class action is generally not disturbed by this Court in the absence of an abuse of discretion on the part of the trial judge. Ex parte Gold Kist, Inc., 646 So. 2d 1339 (Ala.1994). Thus, the issue presented is whether Judge Kittrell abused his discretion in certifying the Anderson action as a mandatory class action under Rule 23, Ala.R.Civ.P. If he did, then a writ of mandamus would be appropriate to require him to set aside that order.
In Adams v. Robertson, 676 So. 2d 1265, 1268-70 (Ala.1995), cert. granted, ___ U.S. ___, 117 S. Ct. 37, 135 L. Ed. 2d 1128 (1996), this Court discussed at length the nature of the various kinds of class actions available under Rule 23:
"A class action may be maintained under Rule 23(b)(2) if `the party opposing the class has acted or refused to act on *815 grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.'
"A class action under Rule 23(b)(3) is appropriate when
Whether the prerequisites of Rule 23(a) have been satisfied in the Anderson class action is not an issue. Therefore, for purposes of this petition, we assume that the claimants are so numerous that joinder is impracticable (the record indicates that there may be as many as 292 members of the class); that there are questions of law or fact *816 common to the class; that the claims of the class representative, Jacqueline Anderson, are typical of the claims of the class; and that the class representative is able to fairly and adequately protect the interests of the class. Furthermore, although Judge Kittrell did not specify which part or parts of subsection (b) of Rule 23 he relied on in certifying the Anderson action as a mandatory class action, we assume that subsection (b)(1)(B) provided the basis for his decision. This assumption is based on the fact that in a class action certified under Rule 23(b)(3), the members of the class are expressly entitled to opt out of the class action and pursue separate actions. See Rule 23(c)(2). Class members in an action certified under subsection (b)(1) or (b)(2) do not have the right to opt out of the class action. Adams v. Robertson, supra. Our assumption is also based on the fact that the grounds for certifying a class action under either subsection (b)(1)(A) or (b)(2) do not appear to be applicable here. It is apparent from our review of the record and the briefs that Judge Kittrell was motivated to certify the Anderson action as a mandatory class action in part to gain some added control over his docket (which recently has seen a significant increase in multipleclaimant tort cases) and in part out of concern that individual adjudications, such as the one the Hollands might obtain, with respect to the issue of punitive damages might, as a practical matter, be dispositive of the interests of the members of the class or that such individual adjudications would, at least, substantially impair the ability of the remaining members of the class to protect their interests. See Rule 23(b)(1)(B). There is no indication that Judge Kittrell was concerned that the prosecution of separate actions would create a risk of inconsistent adjudications. See Rule 23(b)(1)(A). Furthermore, Rule 23(b)(2) does provide for the certification of a mandatory class action upon a finding that the party or parties opposing the class had acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. However, only 1 of the 13 counts contained in Anderson's complaint requested injunctive relief. The predominant relief sought was a judgment for money damages. Certification under Rule 23(b)(2) is not proper unless the primary relief sought is injunctive or declaratory. Adams v. Robertson, supra. For these reasons, we believe the issue can be narrowed and restated as whether Judge Kittrell abused his discretion in certifying the Anderson action as a mandatory class action under Rule 23(b)(1)(B).
Rule 23(b)(1)(B) authorizes the maintenance of a mandatory class action only if the prosecution of separate actions by individual members of the class would create a risk of adjudications with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. Relying on the United States Supreme Court's recent decision in BMW of North America, Inc. v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), Fidelity contends that in tort litigation involving multiple claimants there is a limit on the amount of punitive damages that may be assessed against a defendant, under general principles of punitive damages law and constitutional due process. According to Fidelity, a trial court should have the discretion under Rule 23 to fashion a proceeding in a case where numerous individuals seek punitive damages from a defendant, so as to protect the rights of all those alleged to have been injured by the tortious conduct. Fidelity argues that in certain cases individual awards of punitive damages to members of an injured class could as a practical matter preclude the other members of the class from later recovering any compensatory or punitive damages from the defendant or that such individual awards of punitive damages could substantially impair or impede the ability of the other class members to protect their interests. Therefore, Fidelity argues, a trial judge should have the discretionary authority under Rule 23 to protect the interests of the class as a whole from the potential depletion of the constitutionally "limited fund" by those class members wishing to opt out of the class action and pursue their own individual actions.
*817 The Hollands contend 1) that Ex parte First National Bank of Jasper, supra, provides no authority for Judge Kittrell's order; 2) that Fidelity produced no specific evidence indicating that it could afford to pay only a certain amount in damages and that such a specific showing was necessary to support the certification of the action as a Rule 23(b)(1)(B) class action under a "limited fund" theory; 3) that Judge Kittrell's order, which, in essence, separated the Hollands' claims for compensatory and punitive damages (the compensatory claims before Judge Byrd and the punitive claims before Judge Kittrell), violated Ala.Code 1975, § 6-5-440, which prohibits a plaintiff from splitting a cause of action and pursuing remedies in separate courts; 4) that the certification of the Anderson action as a mandatory class action violated their right to a trial by jury under § 11 of the Alabama Constitution; and 5) that the certification of the Anderson action as a mandatory class action was in conflict with Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985). The Hollands take the position that the Anderson action could be certified as a class action only under Rule 23(b)(3), which, as already stated, expressly carries with it the right on the part of class members to opt out and to pursue their own individual actions.
The idea of using a Rule 23(b)(1)(B) mandatory class action in a possible "limited fund" situation where the interests of multiple claimants seeking punitive damages may be prejudiced by judgments awarding punitive damages in prior related cases is not a new one, especially in the federal courts. See 3 Newberg on Class Actions, §§ 17.34-17.38 (3d ed. 1992); see, also, In re Dennis Greenman Securities Litigation, 829 F.2d 1539 (11th Cir.1987); In re School Asbestos Litigation, 789 F.2d 996 (3d Cir.1986); In re Diamond Shamrock Chemicals Co., 725 F.2d 858 (2d Cir.1984), cert. denied, 465 U.S. 1067, 104 S. Ct. 1417, 79 L. Ed. 2d 743 (1984); In re Northern District of California, Dalkon Shield IUD Products Liability Litigation, 693 F.2d 847 (9th Cir.1982), cert. denied, A.H. Robins Co., Inc. v. Abed, 459 U.S. 1171, 103 S. Ct. 817, 74 L. Ed. 2d 1015 (1983); In re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir.1982), cert. denied, Stover v. Rau, 459 U.S. 988, 103 S. Ct. 342, 74 L. Ed. 2d 383 (1982); Holmes v. Trustmark National Bank, [Ms. CV 195 CV 323 GR, January 11, 1996] (S.D.Miss.1996); In re "Agent Orange" Product Liability Litigation, 100 F.R.D. 718 (E.D.N.Y.1983), aff'd, In re Agent Orange Product Liability Litigation MDL No. 381, 818 F.2d 145 (1987), cert. denied, Pinkney v. Dow Chemical Co., 484 U.S. 1004, 108 S. Ct. 695, 98 L. Ed. 2d 648 (1988). According to Newberg, some, but not all, of the federal courts that have addressed the issue have been reluctant to certify a mandatory Rule 23(b)(1)(B) class action on the ground that multiple punitive damages claims would cause the defendant to have only limited funds available to pay claims. See Newberg, § 17.37. In addition to such potential legal barriers as the Anti-Injunction Act, 28 U.S.C. § 2283, which, with certain exceptions, prohibits federal courts from enjoining pending state court actions (not applicable in the present case), one of the primary problems encountered by various federal circuit courts in the use of Rule 23(b)(1)(B) in multiple-claimant "limited fund" tort cases has centered around the failure of trial judges to conduct adequate factual inquiries into the financial condition of the defendant, so as to ascertain whether a "limited fund" actually existed. See In re Temple, 851 F.2d 1269 (11th Cir.1988); In re Dennis Greenman Securities Litigation, supra; In re Bendectin Products Liability Litigation, 749 F.2d 300 (6th Cir.1984); In re Northern District of California, Dalkon Shield IUD Products Liability Litigation, supra; see, also, Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1774, p. 443 (1986) ("the limited nature of the funds available to satisfy the individual claimants must be clear; a mere allegation that defendant has limited resources will be insufficient"). Other problems involve the discretionary nature of a punitive damages award and the speculation that inevitably accompanies any attempt on the part of a trial judge to predetermine whether the collective interests of the class in recovering punitive damages would be adversely affected if certain members of the class were allowed to opt out of the class action and pursue their own individual actions *818 for punitive damages. The following excerpt from Newberg reflects some of the concerns that have arisen among the courts and the legal commentators with respect to the use of Rule 23(b)(1)(B) in multiple-claimant tort cases:
Newberg, §§ 17.34, -.35, -.36, -.37.
The record indicates that Judge Kittrell did not conduct a hearing on the question of Fidelity's financial status; therefore, there has been no factual finding as to its ability to satisfy any judgments that may be entered against it. Federal circuit courts have consistently held that such an omission is fatal to the certification of a class action under Rule 23, F.R.Civ.P., when the existence of a "limited fund" turns on whether the defendant is financially able to pay all of the claims that have been made against it. See In re Temple, supra; In re Dennis Greenman Securities Litigation, supra; In re Bendectin Products Liability Litigation, supra; In re Northern District of California, Dalkon Shield IUD Products Liability Litigation, supra. We find the above-cited federal cases to be persuasive in interpreting the Alabama rule. Adams v. Robertson, supra. Therefore, we conclude that the certification of the Anderson action as a Rule 23(b)(1)(B) class action cannot stand, based on the record before us, unless, as Fidelity contends, the finding of a "limited fund" could be made without inquiring into its ability to satisfy the potential judgments. In this respect, Fidelity argues that the Fourteenth Amendment to the United States Constitution, not its financial statements, necessitates the finding of a "limited fund." Fidelity maintains that federal due process restrictions on awards of punitive damages create the possibility that early awards of punitive damages in individual cases against it will impair or impede the right of the class members to obtain their share of any punitive damages and that that possibility provides the basis for certification under Rule 23(b)(1)(B).[1]
It is true, as Fidelity points out, that the United States Supreme Court recently held in BMW of North America, Inc. v. Gore, supra, that the Due Process Clause of the Fourteenth Amendment prohibits a state from imposing a grossly excessive punishment on a tortfeasor. Thus, we agree with Fidelity that it is no longer subject to doubt that there is a constitutional limit on the amount of punitive damages that may be awarded against a defendant for a tortious course of conduct affecting multiple claimants. However, BMW, which provides guidance on how to determine whether a punitive damages award is unconstitutionally excessive, necessarily focuses on the post-trial review process. The Supreme Court stated in BMW that two of the most important indicators of the reasonableness of a punitive damages award were the degree of reprehensibility of the defendant's conduct and the ratio of the punitive damages award to the actual harm inflicted on the plaintiff (which often involves a comparison of the punitive damages award to the compensatory damages awarded for emotional distress) or to the harm that was likely to result. Use of these two factors, and the approach taken by the Supreme Court in BMW, are based on the presumption that there has been a full trial on the merits, a factual finding that punitive damages are warranted, and a verdict awarding punitive damages. The Supreme Court has not, to our knowledge, approved a pretrial procedure in multiple-claimant tort cases that would allow a trial judge to initially predict whether a jury's award of punitive damages in a particular individual case (assuming that the trial court could make a reasonably reliable determination that such an award would even be made) would be so great as to approach or exceed the maximum punishment allowed under the Due Process Clause for the defendant's conduct, so as to impair or impede, as a practical matter, the ability of the members of an injured class to *821 recover compensatory or punitive damages. At least two federal circuit courts and two federal district courts have indicated that such a determination could theoretically be made, although those courts did not articulate exactly how a trial judge would go about making it. See In re Diamond Shamrock Chemicals Co., supra; In re School Asbestos Litigation, supra; Holmes v. Trustmark National Bank, supra; In re "Agent Orange" Product Liability Litigation, supra. In any event, the better rule, we think, as shown by federal authorities previously cited, is that certification under Rule 23(b)(1)(B) should be made in a "limited fund" context only when the limited nature of the funds is sufficiently established. It appears to us that any pretrial certification procedure that could take such an inquiry (into the limited nature of punitive damages) beyond the realm of pure speculation would inevitably require the trial judge to conduct a rather extensive inquiry into the facts surrounding the defendants' conduct, in order to allow for even a good faith determination as to the reprehensibility of that conduct. This kind of preliminary factual inquiry to determine the risk that separate adjudications would, as a practical matter, substantially impair or impede the ability of the class to protect its interests, would be much broader than a preliminary investigation into the defendants' assets; rather, it would closely resemble the kind of pre-certification "mini-trial" on the merits that was condemned by the United States Supreme Court in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S. Ct. 2140, 2152-53, 40 L. Ed. 2d 732 (1974):
Such a pre-trial procedure would place a trial judge in the extremely difficult position of having to make a prediction as to the maximum amount of punitive damages that the individual plaintiffs would be allowed to recover, taking into consideration the due process principles enumerated by this Court and by the United States Supreme Court. The trial judge would also have to make the same kind of prediction with respect to the total amount of punitive damages recoverable by the class as a whole, so that the two predicted *822 amounts could be compared and a determination could be made as to whether the potential individual punitive damages awards would as a practical matter adversely affect the ability of the class members to have a jury give meaningful consideration to their punitive damages claims. Making these determinations would be complicated further by the fact that the maximum amount of punitive damages allowed would often depend upon the amount of compensatory damages for emotional distress that could be awarded. As noted, the United States Supreme Court in BMW cited the ratio of the punitive damages award to the compensatory damages recoverable as an important indicator of the reasonableness of a punitive damages award. A trial judge is ill-suited to make a pre-trial factual determination (prediction) as to the amount of compensatory or punitive damages that a jury or juries may award. After considerable review, we conclude that the cumbersome nature of, and the inherent speculation that would be associated with, such a pre-trial certification procedure make Rule 23(b)(1)(B) inappropriate as a basis on which to certify a mandatory class action in a case such as Anderson.
For the foregoing reasons, we are compelled to hold that Judge Kittrell abused his discretion in certifying the Anderson action as a mandatory class action under Rule 23(b)(1)(B). In so holding, however, we recognize the need for every trial judge to be able to manage his or her docket efficiently, and we are not unappreciative of Judge Kittrell's efforts to do that in this case. With this in mind, we note that we see no impediment to basing the certification of the Anderson class action on Rule 23(b)(3). We also note that post-judgment review under BMW and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), is available to protect Fidelity against a total assessment of punitive damages in excess of that permitted by the Fourteenth Amendment. In light of our resolution of this issue, we pretermit any discussion of the other arguments made by the Hollands.
WRIT GRANTED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, COOK, and SEE, JJ., concur.
BUTTS, J., concurs in the result.
[1] We note that it was necessary for Fidelity to make this rather awkward argumentthat it is concerned about the ability of each of the class members to recover his or her share of any punitive damagesin order to preserve Judge Kittrell's certification of the action as a mandatory class action under Rule 23(b)(1)(B). Of course, no plaintiff is entitled to punitive damages, much less to any particular amount of punitive damages. This Court has held, however, that a plaintiff has the right under § 11 of the Alabama Constitution to have his punitive damages claim determined by a jury, if a jury trial is requested. Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993). It is that right to which Fidelity is apparently referring. | March 28, 1997 |
dfc67da7-3b64-46c3-80fb-603bde661ab8 | Fant v. Champion Aviation, Inc. | 689 So. 2d 32 | 1951013, 1951119 | Alabama | Alabama Supreme Court | 689 So. 2d 32 (1997)
Anthony J. FANT
v.
CHAMPION AVIATION, INC.
CHAMPION AVIATION, INC.
v.
Anthony J. FANT.
1951013, 1951119.
Supreme Court of Alabama.
January 31, 1997.
*33 John M. Johnson, Wynn M. Shuford and Madeline H. Haikala of Lightfoot, Franklin *34 & White, L.L.C., Birmingham, for Appellant/Cross-Appellee.
David M. Wilson of Janecky, Newell, Potts, Wells & Wilson, Birmingham, for Appellee/Cross-Appellant.
KENNEDY, Justice.
Anthony J. Fant sued Champion Aviation, Inc. ("Champion"), and others, seeking damages based on claims of negligence, wantonness, fraud, and breach of contract. The fraud claims included claims alleging innocent misrepresentation, reckless misrepresentation, intentional misrepresentation, suppression, and deceit. All claims were submitted to the jury, which awarded Fant a general verdict of $51,011.79 in compensatory damages and $100,000 in punitive damages.
Champion filed a motion for JNOV, or in the alternative, remittitur or a new trial. The trial court granted the motion for a new trial, stating that it had "erred in charging the jury on all of the requested charges of fraud." Fant appeals from the grant of the new trial. Champion cross appeals from the denial of the JNOV.
Whether to grant a motion for a new trial is within the trial court's discretion, and the court's ruling on that question will not be reversed absent an abuse of that discretion. Colbert County-Northwest Alabama Healthcare Authority v. Nix, 678 So. 2d 719 (Ala. 1995).
Fant's claims arise out of Champion's mechanical work on Fant's airplane. Champion sought out Fant's business. Fant hired Champion to remove his airplane engine, rebuild it, and replace it. When placing the propeller back on the airplane after installing the engine, the mechanic failed to properly adjust the torque on the propeller bolts. While the airplane was in flight, all but one of the bolts were sheared off and Fant had to make an emergency landing. Fant had substantial damage to his airplane.
Fant presented evidence that Champion was having financial difficulty when it sought out Fant's business. Fant also presented evidence that Champion mechanic Kevin Smith was to perform the installation. Smith, besides being an airframe and power plant mechanic, was an authorized inspector; he was to remove and replace the engine and conduct the annual inspection of the airplane. Before the engine was replaced, Smith had a disagreement with Champion over his salary and he subsequently resigned. However, Smith offered to complete the work on Fant's airplane. Champion's vice-president recommended to Champion's other officers that they allow Smith to complete the job, but they rejected this recommendation, apparently for financial reasons.
Champion hired Dan Boman, who was an airframe and plant mechanic. Boman had never been in charge of installing an engine, nor had he ever worked on the type of airplane Fant had. Boman so informed Champion's vice-president. Because Boman was not an authorized inspector, Champion hired Harold Cordle to handle the inspection.
When he tried to reattach the propeller to the airplane, Boman could not get the propeller to "line up." Boman used the instruction manual for the airplane, but did not telephone the manufacturer for assistance. Cordle happened to be at Champion's hangar while Boman was trying to reattach the propeller. Cordle placed the parts of the propeller in the proper order for reattachment and then Boman put the propeller back on the airplane.
Fant presented evidence that Boman did not know whether the propeller had been properly attached, that he did not know whether all the slip ring used to connect the propeller was in the proper location, and that he did not have the proper tools to tighten the nuts that attached the propeller to the airplane and did not know how tight to fasten the nuts. Boman testified that he improperly reused fiber locking nuts on the plane. Fant presented expert evidence that reusing the nuts was a dangerous practice in the airplane industry.
After Boman attached the propeller, he performed a 100-hour service on the airplane. He certified that the airplane complied with all of the service bulletins from the *35 manufacturer. However, there was evidence at trial that Boman falsified several entries in the service logbook. For example, Boman certified that he had installed a new circuit board during this service, as required by the manufacturer; in fact, however, he did not touch any circuit boards or electrical equipment on the airplane when he performed the service.
On July 27, 1994, while Fant and his pilot were returning to Birmingham from Minnesota, the airplane engine began to race wildly and the propeller system malfunctioned. The airplane lost altitude, shook violently, and spewed oil onto the windshield, blocking the pilot's view. When the plane landed, Fant discovered that the propeller was loose. A Federal Aviation Agency inspector and an authorized inspector for the manufacturer examined the airplane. They found that the propeller system had been improperly installed and that the improper installation had caused the accident.
The FAA inspector interviewed Boman after the accident. Boman told the investigator that he did not have the proper tools to tighten the bolts that attached the propeller to the airplane and that he had had to guess what the proper degree of tightness should be. The FAA inspector also testified that the slip ring was not in the right place. The FAA suspended Boman for four months.
Before the trial court instructed the jury, the court had the following two conversations with the attorneys concerning the fraud charges:
(R.T. 695-696)
(R.T. 900-908.)
The trial judge's order granting the new trial did not set out which fraud charges he believed were erroneously given, and the verdict was a general one; therefore, we do not know which of the alleged types of fraud the jury found. However, from the discussions set out above, it appears that the trial judge granted the new trial because he believed that there was no suppression and, therefore, that the jury instructions on suppression were given in error.[2]
Section 6-5-102, Ala.Code 1975, states: "Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case."
A duty to disclose arises either from a confidential relationship between the parties or from the particular facts in the case. Baker v. Bennett, 603 So. 2d 928 (Ala. 1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1260, 122 L. Ed. 2d 658 (1993). Whether there was a duty to communicate is a question for the jury, which should consider the relationship of the parties, the value of the particular facts suppressed, and the relative knowledge of each party. Baker, supra.
Viewing the facts most favorable to Fant, as we are required to do, we conclude that there was evidence from which the jury could find a duty to disclose, and we conclude that the suppression charge was therefore proper. When Fant contracted with Champion, Smith was its mechanic and Fant believed that Smith was to work on his airplane. Champion hired Boman, who Champion knew had never been in charge of an engine installation on a propeller-type airplane. Champion knew that Boman had difficulty in reattaching the propeller to the plane. Champion allowed Boman to do much of his work unsupervised. The evidence indicated that, based on Champion's expertise and the knowledge of its mechanics, Fant relied on Champion to properly do the technical work on his airplane. There are obvious safety implications in allowing an airplane to be placed back in service as airworthy when Champion knew of the problems *37 Boman had in mounting the propeller of the airplane.
Accordingly, we reverse the order granting the new trial.
As to the breach of contract claim, Champion argues that there was a lack of consideration on Fant's part, because, it says, Fant had not paid for the repairs when the accident occurred. Thus, it says, it was entitled to a JNOV on the contract claim.
The basic elements of a contract are an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement. Pinyan v. Community Bank, 644 So. 2d 919 (Ala.1994). Consideration must be present when the contract is made. The requirement of consideration means that a gratuitous promise is not enforceable. Here, we have a promise to repair, given in exchange for a promise to pay, with both parties benefiting from the exchange of promises. The fact that the money had not been paid does not mean consideration was lacking. We note that it was shortly after the repairs were made that the accident occurred, and we find no merit to the argument that there was a lack of consideration. We conclude that the trial court properly denied a JNOV as to the contract claim.
As to the wantonness and fraud claims also, the trial court properly denied a JNOV. As discussed above, there was substantial evidence that Champion knew that Boman had never worked on a propeller-type airplane before and that he had difficulty in installing the propeller on Fant's airplane. There was substantial evidence that the accident was caused by a loose propeller. Also, Boman failed to disclose that he had reused fiber locking nuts to attach the propeller; reusing fiber locking nuts is a dangerous practice in the airplane industry. Further, Boman falsified records in completing the service on the plane.
Champion argues that the trial court gave an incorrect statement of the law to the jury during Champion's closing argument. Champion's attorney stated during his closing argument, in regard to punitive damages, that Fant was seeking to "punish this defendant for the benefit of the public and who benefits from that? They do. They get the money." (R.T. 973-74.) Fant objected. The trial court told the jury: "Ladies and Gentlemen, there are some changes in the law concerning damages and where that goes at this point. Currently it does not just go to the plaintiff. Part of that will go to the State of Alabama under the current law."
Champion did not object to the trial court's statement. It also failed to raise the argument in its post-judgment motion for a JNOV or, in the alternative, a new trial or remittitur. (C.R.129-32.) Therefore, this issue has not been preserved for appeal. Even if the issue had been preserved, we would conclude that the court's statement was a correct statement of the law when it was made.[3]
Accordingly, the order granting a new trial is reversed; the order denying Champion's JNOV motion is affirmed; and the case is remanded.
1951013REVERSED AND CASE REMANDED.
1951119AFFIRMED.
HOOPER, C.J., and ALMON, SHORES, and HOUSTON, JJ., concur.
COOK, J., concurs in the result.
MADDOX, J., concurs in part and dissents in part.
*38 MADDOX, Justice (concurring in part and dissenting in part).
I agree with that portion of the majority opinion affirming the denial of Champion's JNOV motion; however, I must dissent from that portion of the opinion reversing the grant of a new trial.
I do not believe the trial court abused its discretion when it granted Champion's motion for a new trial. I agree with the trial judge that the jury should not have been instructed on suppression. Like the trial court, I do not believe a fiduciary relationship existed between Fant and Champion; therefore, I think Champion was not under a duty to disclose. I would affirm the trial court's order granting Champion's motion for a new trial.
[1] Champion's attorney had discussed the substance of his directed verdict motion immediately before this discussion.
[2] Note that neither party argues that the substance of the charge was erroneous. Rather, the argument is that the charge should not have been given at all.
[3] When it told the jury that part of a punitive damages award would go to the State, the trial court was referring to this Court's November 17, 1995, opinion in Life Ins. Co. of Georgia v. Johnson, No. 1940357. That opinion was the law during this trial. That opinion was later withdrawn on application for rehearing and a new opinion was released. 684 So. 2d 685 (Ala.1996). On its review in that case, the United States Supreme Court reversed and remanded for this Court's reconsideration in light of BMW of North America, Inc. v. Gore, 517 U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). See Life Ins. Co. of Georgia v. Johnson, ___ U.S. ___, 117 S. Ct. 288, 136 L. Ed. 2d 207 (1996). | January 31, 1997 |
7640c2aa-1aba-4bc8-9935-e0140b8d490c | Ex Parte Beck | 690 So. 2d 346 | 1951732 | Alabama | Alabama Supreme Court | 690 So. 2d 346 (1997)
Ex parte Cathy BECK.
(Re Cathy Beck v. State).
1951732.
Supreme Court of Alabama.
March 14, 1997.
David J. Harrison, Geneva, for Petitioner.
Bill Pryor, Atty. Gen., and Cedric B. Colvin, Asst. Atty. Gen., for Respondent.
Prior report: Ala.Cr.App., 687 So. 2d 233 and 689 So. 2d 1012.
PER CURIAM.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HOOPER, C.J., and MADDOX, HOUSTON, BUTTS, and SEE, JJ., concur.
COOK, J., concurs specially.
COOK, Justice (concurring specially).
I concur in the quashing of this writ. However, I believe this case presents the same constitutional questions I discussed in my special concurrence in Ex parte Knowles, 689 So. 2d 832 (Ala.1997). As in Knowles, the constitutional issues were not raised at trial and were not presented on appeal. However, the core question exists: Whether a statute that permits a felony conviction based on an act of simple negligence encroaches on due process as guaranteed under the United States and Alabama Constitutions.
On January 15, 1994, Cathy Beck was traveling east on Covington County Road 42 as Travis Lawson and his wife and daughter, Cathy and Christy Lawson, were travelling in two separate vehicles in the opposite direction. Travis Lawson travelled in a vehicle in front of Cathy and Christy's vehicle. Beck states that her vehicle ran off the right side of the road and that she then lost control of it. Her vehicle came back onto the roadway, crossing the middle line of the roadway, sideswiping Travis Lawson's vehicle, and crashing head-on into Cathy Lawson's vehicle. Cathy and Christy were both killed. A criminal investigator, James E. Beamon, testified that during his investigation Beck stated that she had experienced steering problems just before the accident and that she believed that she crossed over into the oncoming lane of traffic because of those problems. There was no evidence presented to suggest that Beck had previously experienced any difficulty with the steering mechanism. Beck was convicted of two counts of homicide by vehicle, violations of Ala.Code 1975, § 32-5A-192, and was sentenced to three years' imprisonment on each count, those sentences to run concurrently.
For the reasons expressed in my special concurrence in Ex parte Knowles, I have serious questions as to whether the application of Ala.Code 1975, § 32-5A-192, to the facts of this case comports with due process. | March 14, 1997 |
cbeeae21-93ab-4585-a7c9-646d65e7e201 | Ex Parte Howell | 704 So. 2d 479 | 1950089 | Alabama | Alabama Supreme Court | 704 So. 2d 479 (1997)
Ex parte David C. HOWELL and Thelma Howell.
(In re David C. HOWELL and Thelma Howell
v.
NEW YORK LIFE INSURANCE COMPANY, et al.).
1950089.
Supreme Court of Alabama.
January 10, 1997.
Sidney W. Jackson III of Jackson, Taylor & Martino, P.C., Mobile; and Wyman O. Gilmore, Jr., of Gilmore & Gilmore, Grove Hill, for petitioners.
Broox G. Holmes, William S. Holman II, and W. Steele Holman III of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, *480 Mobile; and N. Lee Cooper, John N. Bolus, and Michael D. Mulvaney of Maynard, Cooper & Gale, P.C., Birmingham, for respondents.
Algert S. Agricola, Jr., of Wallace, Jordan, Ratliff & Brandt, L.L.C., Montgomery; and Cecil H. Macoy, Jr., of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for Amicus Curiae American Council of Life Insurance.
INGRAM, Justice.
David C. Howell and Thelma Howell petition this Court for a writ of mandamus directing the Mobile Circuit Court to vacate its protective order entered on August 11, 1995. The Howells contend that the trial court abused its discretion in limiting discovery in their action against New York Life Insurance Company ("New York Life") and its agents, Bennie Dickey and Sidney Brevard.
A writ of mandamus is an extraordinary writ by which "a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable." Rule 21(e)(4), Ala.R.App.P. Before a writ of mandamus can issue, the petitioner must show: "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991).
The underlying action here is a fraud action brought by the Howells against New York Life, Dickey, and Brevard. The Howells allege that, in 1983, Dickey and Brevard represented to them that they could purchase from New York Life fully funded life insurance policies in the amount of $100,000, either by a one-time payment of $24,701 or by paying approximately $4,000 in annual premiums for seven to eight years. The Howells purchased two New York Life policies from Dickey and Brevard, one by the one-time payment option and the other through the payment of annual premiums. In 1993, the Howells discovered that the policies they had purchased were not fully funded, and that they would have to pay an additional premium amount to secure fully funded policies. They then filed this fraud action.
In their amended complaint, the Howells argued that the allegedly fraudulent activities of New York Life and its agents demonstrated a pattern and practice of intentional wrongful conduct. During discovery, the Howells served New York Life with interrogatories and a request for production of documents. One of the requests was as follows: "Produce any and all documentation relative to past or present clients of agents Bennie Dickey and Sidney Brevard including but not limited to client lists/client registers." New York Life objected to this request, and the Howells moved to compel New York Life to produce the information. New York Life then moved for a protective order. After a hearing, the trial court granted the motion to compel as to the lists of clients serviced by Dickey and Brevard between November 1, 1985, and August 1, 1993, but also issued a protective order. In summary, the trial court's protective order restricted the Howells' discovery in their case in the following manner:
1. The Howells' attorneys were not permitted to contact any other New York Life policyholders except by means of a standard letter, first circulated to New York Life attorneys and then approved by the trial court. The trial court also had to approve a postcard the Howells' attorneys proposed to include with the letter, which was to be used by the policyholders who chose to reply and who consented to be interviewed.
2. The Howells' attorneys could send the letters and postcards to only 25 of the policyholders from Dickey's client list and 25 from Brevard's client list. The names of those policyholders selected were be submitted to New York Life's attorneys.
3. The Howells' attorneys could interview only 15 of the consenting policyholders from each list. If at least 15 policyholders did not respond, the Howells' attorneys could petition the court for permission to contact an additional 25 policyholders. However, the Howells' attorneys were permitted to interview only 15 of each agent's policyholders. *481 The Howells' attorneys were required to notify New York Life immediately as to the name of any policyholder who consented to be interviewed. The Howells' attorneys could then contact the policyholders to schedule an interview.
4. New York Life's representatives were allowed to attend each interview and could take notes and tape-record the interview if the policyholder consented.
5. The Howells' attorneys were prohibited from representing in a subsequent action against New York Life or its agents any person interviewed.
The Howells petitioned this Court for a writ of mandamus, contending that the trial court abused its discretion in restricting the number of policyholders that could be interviewed, in mandating the method of contacting those policyholders, in requiring the presence of defense counsel at the interviews, and in prohibiting the Howells' attorneys from representing those policyholders in any future action.
The Alabama Rules of Civil Procedure are to be construed broadly to allow parties to obtain information needed in the preparation of their case. See Rule 1(c) and Rule 26, Ala.R.Civ.P.; Ex parte Asher, Inc., 569 So. 2d 733 (Ala.1990); Ex parte Clarke, 582 So. 2d 1064 (Ala.1991). The discovery process may lead to information helpful in formulating strategy in a case. It may also lead the attorney to conclude that there is in fact no actionable conduct and that that case should be dismissed. In its decisions regarding discovery, the trial court is vested with considerable, although not unlimited, discretion. This Court reviewed the law pertaining to these discovery matters in Ex parte Stephens, 676 So. 2d 1307 (Ala.1996).
In Ex parte Stephens, the plaintiffs alleged, among other things, that Life Insurance Company of Georgia had engaged in a pattern and practice of fraud. The trial court issued a protective order prohibiting the plaintiffs from contacting policyholders outside the presence of the defendants' representatives and prohibiting the plaintiffs from communicating to the policyholders the allegations of their case. This Court held that the trial court abused its discretion in so restricting the plaintiffs' discovery.
Considering both the discretion permitted the trial court in discovery matters and the strong policy of open discovery, we will review the discovery provisions at issue.
We will first consider the discovery order's provision prohibiting contact with the policyholders outside the presence of New York Life representatives.
This Court reviewed this same issue in Ex parte Stephens, supra. As this Court stated:
Ex parte Stephens, 676 So. 2d at 1312.
As was the case in Ex parte Stephens, this case does not present such rare and extraordinary circumstances so as to justify allowing the defendants' representatives to appear at pretrial interviews. The mental impressions or strategies of the Howells' attorneys, "part of an attorney's so-called work product," 676 So. 2d at 1313, would clearly be disclosed if this provision were allowed to stand. We hold that the trial court abused its discretion in requiring that a New York Life representative be present at the interviews of the policyholders. Ex parte Stephens, supra.
We next review the discovery order's provisions allowing the Howells' attorneys to contact the policyholders only by a standard, court-approved letter and postcard and limiting the number of contacts to 25 policyholders of agent Dickey and 25 of agent Brevard, and limiting the number to be interviewed to 15 policyholders of each agent.
*482 In Ex parte Clarke, supra, also an insurance fraud case, this Court reviewed a trial court's discovery order that required that the plaintiff's counsel, in interviewing policyholders, ask questions from a list of questions written by the trial court. The trial court also prohibited the plaintiff's attorney from answering any questions the interviewees might ask and also from undertaking to represent them. No restriction was placed upon the number of policyholders to be contacted. This Court held that the limitations on discovery were an abuse of discretion, stating:
Ex parte Clarke, 582 So. 2d at 1068.
We hold that the trial court's attempt in this case to limit the number of policyholders to be contacted and the manner in which they could be contacted was an arbitrary restriction on the discovery process. The limit of 25 persons from each policyholder list, with a maximum of 15 policyholders from each list who could be interviewed, would no doubt prevent the Howells from obtaining useful and meaningful information. The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters that can assist a party in presenting his or her case. See Comments to Rule 26, Ala.R.Civ.P. Given that this case was a fraud action alleging that the defendants had engaged in a pattern and practice of fraud, that purpose was thwarted by the limitation the trial court placed on the number of policyholders who could be interviewed. The limitation would prevent the discovery of any information after the fifteenth policyholder from each agent's list was interviewed, regardless of whether additional relevant information could be discovered.
It is also apparent that the limitation the trial court placed on the method by which the Howells' attorneys could contact the policyholders, i.e., only by court-approved, and defense counsel reviewed, letters and postcards, created an awkward procedure that could prevent the acquisition of information. While contacts by letter may certainly be a useful option for the Howells' attorneys in their attempts to gather evidence, it should not be mandated by the trial court as the exclusive method. As this Court noted in Ex parte Stephens, supra, it will be entirely up to the policyholders whether to consent to speak to the attorneys. The Howells' attorneys have the right to use any legal method to gather evidence in this case, including, but not limited to, letters and postcards.
We next review the trial court's prohibition against the Howells' attorneys' representing any person interviewed in any action against New York Life or its agents.
As this Court noted in Ex parte Stephens, "Nothing prevents a lawyer from accepting employment from someone whom he may have interviewed as a witness in another case, so long as the lawyer does not violate Rule 7.3, Ala.R.Prof. Conduct." 676 So. 2d at 1314. That rule prohibits the solicitation of a prospective client for the attorney's pecuniary gain. It appears clear that the trial court's motive was to prevent the Howells' attorneys from soliciting employment by the policyholders. This amounts to an assumption that those attorneys would act in an unethical manner. As noted in Ex parte Stephens, it cannot and should not be presumed that an officer of the court will act in an unethical manner. Therefore, this provision is invalid as well.
For the reasons stated, we conclude that the trial court abused its discretion in limiting discovery. Therefore, the Howells are entitled to the relief they seek. Ex parte Alfab, supra. The petition for the writ of mandamus is granted, and the trial court is hereby directed to set aside its protective order.
WRIT GRANTED.[*]
*483 SHORES, KENNEDY, and COOK, JJ., concur.
HOOPER, C.J., and HOUSTON, J., dissent.
MADDOX and BUTTS, JJ., recuse.
HOOPER, Chief Justice (dissenting).
This Court, in Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So. 2d 228 (Ala.1978), set out the standard of review to be applied to a trial court's protective order limiting discovery:
Assured Investors Life Insurance Co. 362 So. 2d at 231-32.
The petitioners have not demonstrated that the trial judge abused his discretion in this case. The trial judge issued a protective order to guard against abuse of the discovery process. The trial judge has not stopped discovery and is not preventing the petitioners from gaining the information they need to pursue their cause of action. He is carefully monitoring how discovery proceeds. The trial judge in this case is in the better position to judge how discovery should be handled and what protections are needed. I would deny the petition for the writ of mandamus.
HOUSTON, Justice (dissenting).
I did not have an opportunity to vote in Ex parte Clarke, 582 So. 2d 1064 (Ala.1991), because it was a division case and I was not sitting on the division of the Court that considered it. If I had had the opportunity to vote in Clarke, however, I would have dissented for the reasons stated in my dissent in Ex parte Stephens, 676 So. 2d 1307 (Ala.1996). Let the trial court be the trial court, without microscopic manipulation of its discretion by this Court.
HOOPER, C.J., concurs.
[*] Note from the reporter of decisions: An application for rehearing was filed on January 24, 1997. While that application was pending, the Supreme Court, on June 30, 1997, entered the following order: "The [petitioners'] motion to dismiss the petition for writ of mandamus is granted, and the petition for writ of mandamus is hereby dismissed." The Court did not withdraw its opinion. | January 10, 1997 |
a10fbcae-7a90-4dad-8e20-15e8bfdd245f | Ex Parte Patronas | 693 So. 2d 473 | 1960100 | Alabama | Alabama Supreme Court | 693 So. 2d 473 (1997)
Ex parte Otha Phillip PATRONAS.
(In re Deborah K. PATRONAS v. Otha Phillip PATRONAS).
1960100.
Supreme Court of Alabama.
February 21, 1997.
W. Gregory Hughes, Mobile, for Petitioner.
Buzz Jordan and A. Jerome Dees of Huntley, Jordan & Associates, Mobile, for Respondent.
HOUSTON, Justice.
Otha Phillip Patronas ("the father") and Deborah K. Patronas ("the mother") were divorced in 1990. The trial court awarded custody of the two minor children to the mother. In 1995, the father petitioned for *474 custody, which the trial court granted. The mother appealed. The Court of Civil Appeals reversed, holding as follows:
Patronas v. Patronas, 693 So. 2d 469 (Ala. Civ.App.1996).
The father petitioned for certiorari review, which this Court granted to determine whether the trial court had properly awarded custody of the minor children to the father.
The father maintains that he carried the burden imposed under Ex parte McLendon, 455 So. 2d 863 (Ala.1984), and that the Court of Civil Appeals erred by reweighing the evidence, Ex parte Bryowsky, 676 So. 2d 1322 (Ala.1996), and by not according the trial court's custody order the proper presumption of correctness, Phillips v. Phillips, 622 So. 2d 410 (Ala.Civ.App.1993). According to the father, he presented sufficient evidence to establish that the mother's living situation was unstable and put the children at risk, both physically and psychologically; that there had been a great deal of improvement in his lifestyle and circumstances; and that he was a fit and proper person to have custody of the childrenthat is, that he presented sufficient evidence to show that there had been a material change in circumstances and that a change in custody would materially promote the best interests of the children and would more than offset the disruptive effect caused by that change.
Although the trial court did not make specific findings of fact, a review of the record indicates that the court heard extensive testimony from the mother, the father, the minor children, character witnesses, and expert witnesses, much of which was disputed, concerning the mother's alleged drug use, the lifestyles of the mother and the father, the environment each of the parties could provide, and the alleged risk the children were exposed to while in the mother's custody. This Court stated in Ex parte Bryowsky, 676 So. 2d 1322, 1324-26 (Ala.1996):
Suffice it to say, without an in-depth recitation of the facts, that after thoroughly reviewing the record, we find it apparent that the Court of Civil Appeals "reweighed" the evidence in this case and substituted its judgment for that of the trial court when, in fact, its review was limited to whether there was evidence to support the trial court's judgment. There was sufficient evidence to support the trial court's apparent finding (see Ex parte Bryowsky, supra, holding that in the absence of specific findings of fact, appellate courts will presume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous) that the change in custody would materially promote the children's best interest and that the benefits of the requested change would more than offset the inherently disruptive effect caused by uprooting the children. Ex parte McLendon, supra.
The judgment of the Court of Civil Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, and SEE, JJ., concur.
KENNEDY and COOK, JJ., dissent. | February 21, 1997 |
560db89f-2018-4fd7-a3f8-343388d6d2d1 | City of Dora v. Beavers | 692 So. 2d 808 | 1950160, 1950856 | Alabama | Alabama Supreme Court | 692 So. 2d 808 (1997)
CITY OF DORA
v.
Ralph BEAVERS, et al.
1950160, 1950856.
Supreme Court of Alabama.
March 28, 1997.
*809 Jerry K. Selman and James C. Brakefield of Selman & Selman, Jasper, for Appellant.
Mark B. Craig, Decatur, for Ralph Beavers.
Thomas Nicholson of Maddox, MacLaurin, Nicholson & Thornley, Jasper, for Walker County, Walker County Commission, Joe Kimbrell, Horace Ivey, Joe Love, Woody Henderson, Donald Tittle, and Walker County Solid Waste Disposal Authority.
J. Hunter Phillips and Mark M. Lawson of Burr & Forman, Birmingham, for Browning-Ferris Industries of Alabama, Inc., and Walker County Disposal, Inc.
SEE, Justice.
These appeals arise out of the trial court's denial of the City of Dora's motion to intervene in a protracted class action settlement proceeding. Finding no abuse of discretion, we affirm.
In 1991, Ralph Beavers and a number of other Walker County residents filed an action seeking a declaration of their rights and an injunction against Browning-Ferris Industries of Alabama, Inc. ("BFI"), to prohibit construction of a sanitary solid waste landfill in eastern Walker County, near the City of Dora. The trial court entered a summary judgment in favor of BFI. We reversed and remanded because the agreement between Walker County and BFI granted an exclusive franchise to BFI without satisfying the competitive bid requirements of Ala.Code 1975, § 41-16-51(a), and we ordered the trial court to fashion appropriate and necessary relief. Beavers v. County of Walker, 645 So. 2d 1365 (Ala.1994).
On remand, the parties agreed to enter into nonbinding mediation. After several months of mediation, they entered a settlement agreement that included numerous restrictions on such things as the time and usage of the landfill and environmental code compliance. They agreed that BFI would operate the landfill for a term of years, provided it complied with the restrictions. Both parties agreed that a class action would be the appropriate mechanism to effectuate the settlement. Accordingly, the plaintiffs amended their complaint and requested class relief on behalf of "all residents, citizens and property owners of Walker County." The City of Dora was included in this class. The trial court certified the class and scheduled a fairness hearing.
*810 After notice and publication of the settlement, Dora announced its intention to object to the settlement and filed a motion to intervene. Specifically, Dora objected to a provision stating that BFI would not ask Dora to annex the landfill site. At the fairness hearing, the trial court denied Dora's motion to intervene, but did afford it the opportunity to argue and to call, examine, and cross-examine the witnesses. At the close of the fairness hearing, the trial court approved the settlement as a fair and reasonable conclusion to years of litigation and negotiation.
After the hearing, Dora filed a motion for a new trial, asserting that the trial court had abused its discretion when it refused to allow Dora to intervene. The trial court denied that motion, and Dora filed these appeals.[1]
The decision to grant or to deny a motion to intervene is within the sound discretion of the trial court, and this Court will not disturb that ruling absent an abuse of discretion. Valley Forge Ins. Co. v. Alexander, 640 So. 2d 925, 927 (Ala.1994). In its exercise of discretion, the trial court must determine whether the potential intervenor has demonstrated: (1) that its motion is timely; (2) that it has a sufficient interest relating to the property or transaction; (3) that its ability to protect its interest may, as a practical matter, be impaired or impeded; and (4) that its interest is not adequately represented. Rule 24(a)(2), Ala. R. Civ. P.
With respect to the sufficiency of its interest, Dora argues that §§ 11-42-20 through -24, Ala.Code 1975, which allow all property owners in a given area to petition a municipality for annexation, endow Dora with the "right" of annexation. Dora contends that BFI's agreement not to seek annexation under § 11-42-21 deprives Dora of an interestthe interest in remaining a competitive municipality with the ability to attract industry, jobs, tax revenues, etc.that is sufficient to support intervention. We disagree. Our holding that Dora failed to substantiate a sufficient property interest renders unnecessary any discussion of the remaining factors; however, we do note that Dora's substantial participation in the fairness hearing establishes that it was not prejudiced by the trial court's denial of intervention. See Root v. City of Mobile, 592 So. 2d 1051 (Ala.1992) (stating that one of the purposes of intervention is to prevent the would-be intervenor from suffering prejudice from the outcome of the proceeding that it seeks to enter).
For a property interest to be sufficient to support a motion to intervene, that interest "must be direct and not remote or contingent." Universal Underwriters Ins. Co. v. East Central Alabama Ford-Mercury, Inc., 574 So. 2d 716, 721 (Ala.1990). To show a direct property interest, a "`person clearly must have more than an abstract need or desire for it. He must, instead, have a legitimate claim of entitlement to it.'" Moore v. Watson, 429 So. 2d 1036, 1038 (Ala.1983) (quoting Board of Regents v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972)).
Ala.Code 1975, § 11-42-21, provides Dora no "right" of annexation.[2] Instead, it allows property owners, including BFI, to voluntarily and unanimously seek annexation by a municipality such as Dora. At best, Dora had a unilateral expectation that, at some unknown time in the future, BFI might seek annexation under this statutory procedure. The statute does not create a mutually binding entitlement to annexation. See Urban Sanitation Corp. v. City of Pell City, 662 F. Supp. 1041, 1045 n. 8 (N.D.Ala. 1986) (stating that there must be "a mutually recognized entitlement, as opposed to a unilateral *811 expectation of a benefit, to establish a property interest" sufficient to support intervention under F.R.Civ.P. 24(a)(2), which parallels Rule 24(a)(2), Ala.R.Civ.P.).[3] This mere expectation of economic potentialities is insufficient to support intervention of right. See, e.g., Dallas County Bd. of Educ. v. Henry, 507 So. 2d 911, 912 (Ala.1987) (holding that board of education's interest in amount of property tax revenues that would result from taxpayer lawsuit against state challenging property valuations was not sufficient to justify intervention of right); State v. Colonial Refrigerated Transp., Inc., 48 Ala.App. 46, 261 So. 2d 767 (Ala.Civ.App.1971) (holding city's interest in an ad valorem tax dispute between state and taxpayer was insufficient to justify intervention of right), aff'd, 288 Ala. 433, 261 So. 2d 772 (1972). Accordingly, we hold that the trial court did not abuse its discretion in denying intervention in this case.[4]
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur.
[1] The City of Dora first appealed the trial court's denial of its motion to intervene and then appealed the trial court's denial of its motion for a new trial. The City of Dora bases both of its appeals on its right to intervene, and thus, we dispose of both appeals by addressing the intervention issue.
[2] Section 11-42-21 provides:
"Whenever all of the owners of property located and contained within an area contiguous to the corporate limits of any incorporated municipality ... shall sign and file a written petition with the city clerk of such municipality requesting that such property or territory be annexed to the said municipality, and the governing body of such municipality adopts an ordinance assenting to the annexation of said property to such municipality, the corporate limits of said municipality shall be extended and rearranged so as to embrace and include such property...."
[3] Moreover, Dora admits that it may still annex the landfill site, regardless of BFI's consent, by local legislative act. Ala. Const. of 1901, art. IV, § 104(18). The fact that the local act alternative may be more cumbersome than the procedure provided by Ala.Code 1975, § 11-42-21, does not create a legal entitlement sufficient to support intervention of right. See generally Groenings v. City of St. Charles, 215 Ill.App.3d 295, 574 N.E.2d 1316, 1324-25, 158 Ill.Dec. 923, 931-32 (holding that private property owners' loss of one annexation option did not deprive them of "property" because even that option was a mere expectation), appeal den., 141 Ill. 2d 540, 580 N.E.2d 113, 162 Ill.Dec. 487 (1991).
[4] Dora raises, in effect, three other issues on appeal: (1) deprivation of a property right without due process of law; (2) inadequacy of class representation; and (3) the failure of the trial court to exercise its equity powers to strike the challenged provision of the settlement agreement. First, as a general proposition a municipality cannot invoke the Due Process Clause because it is not a "person" for that purpose, but a division of the state. See City of East St. Louis v. Circuit Court for the Twentieth Judicial Circuit, 986 F.2d 1142, 1144 (7th Cir.1993) ("Municipalities cannot challenge state action on federal constitutional grounds because they are not `persons' within the meaning of the Due Process Clause."). In any event, Dora received ample processnotice, a hearing, a neutral decisionmaker, and cross-examinationin light of the nature of the interest at stake. See generally Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976) (providing that the amount of procedural protection required by due process is determined by balancing, inter alia, the interest at stake with the burdens of providing the additional protection). Second, because Dora did not object to the adequacy of the class representation below, we will not address that issue on appeal. Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.1992). However, we note that the fact that the class representative participated throughout the initial litigation and the mediation process militates heavily against a holding that the trial court abused its discretion in the appointment of the class representative. Ex parte Blue Cross & Blue Shield of Alabama, 582 So. 2d 469, 477 (Ala.1991). Finally, Dora's equity argument is without merit. | March 28, 1997 |
b74fc4cb-9086-4048-8915-e55fa883802d | Booker v. United American Ins. Co. | 700 So. 2d 1333 | 1951230 | Alabama | Alabama Supreme Court | 700 So. 2d 1333 (1997)
Norse BOOKER and Lydia Booker
v.
UNITED AMERICAN INSURANCE COMPANY.
1951230.
Supreme Court of Alabama.
May 2, 1997.
Rehearing Denied July 25, 1997.
*1334 Donna Ward Black and Richard F. Pate of Richard F. Pate & Associates, P.C., Mobile, for appellants.
Philip H. Butler of Robison & Belser, P.C., Montgomery, for appellee.
SEE, Justice.
This case arises out of Norse and Lydia Booker's purchase of a hospitalization insurance policy issued by United American Insurance Company ("United American"). The Bookers allege that they purchased the policy only after James Butcher made various misrepresentations to them. Butcher was not an authorized insurance agent of United American, but had been hired by Richard Stone, an agent of that company, despite United American's express directions to the contrary. The Bookers brought this action against United American; Torchmark Corporation, its corporate parent; and Richard Stone, but they did not sue Butcher. With respect to United American, the Bookers alleged fraudulent misrepresentation and suppression, and negligent or wanton supervision. The trial court entered a summary judgment for United American on each claim and made that summary judgment final pursuant to Rule 54(b), Ala. R. Civ. P.[1] The Bookers appealed from that judgment for United American. We affirm.
Once a party moving for summary judgment presents evidence that, if uncontested, would entitle it to a judgment, a nonmoving party, if it is to defeat the summary judgment motion, must present "substantial evidence" in support of its claim. McGinnis v. Continental Ins. Co., 628 So. 2d 470, 471 (Ala.1993). In determining whether the nonmovant presented substantial evidence, this Court views the evidence in the light most favorable to the nonmovant or nonmovants, in this case the Bookers. Id. So viewed, the evidence shows that before 1991 Stone was an independent insurance agent who sold policies for several insurance companies. In 1986, Stone contracted with United American to sell its insurance policies. In 1989, because Stone had focused his energies on the construction business, he stopped selling insurance himself and retained Butcher as the "district manager/field manager" for his insurance business. Butcher was to hire and train agents and to solicit insurance business. Stone retained Butcher even though United American had not authorized Butcher to sell its products, but had in fact fired him in 1989 and had placed him on its "No Rehire List." Butcher operated out *1335 of Stone's home office and was paid a finder's fee for each policy he sold.
On May 15, 1991, Butcher met with the Bookers, who were seeking to purchase a major medical insurance policy after letting their prior major medical coverage lapse. Butcher represented himself as Stone. He indicated that United American had the ideal policy, one that would cover 80% of their medical expenses, and he told them that at no point would their out-of-pocket expenses amount to over $1,500. Actually, the policy was a hospitalization policy, not a major medical policy. In fact, United American did not offer a major medical policy for sale to anyone. Butcher filled out the policy application. Relying on Butcher's representations, the Bookers signed the application, wrote a check for the first three months' premiums, and handed both to Butcher.
After Butcher delivered the completed application to Stone, Stone telephoned the Bookers to see if they indeed wanted the health insurance. Mrs. Booker replied, "Yes, we need the health insurance." Stone signed the application as if he had taken it from the Bookers and mailed it to United American. When United American received the policy at its Dallas, Texas, headquarters, it was unaware that Butcher actually had sold the policy, because Stone had signed the application. Unaware of Butcher's involvement, United American processed the application and mailed the policy.
When the Bookers received the hospitalization policy, they attempted, without success, to contact someone at Stone's office to have the policy explained. The Bookers never contacted United American in Dallas.
In April 1993, Mr. Booker was hospitalized for heart problems that resulted in approximately $49,000 in medical bills. The United American hospitalization policy covered approximately $14,000 of the expenses. The Bookers realized they had not purchased a major medical insurance policy, and four months later they filed this lawsuit.
On appeal, the Bookers first contend that they presented substantial evidence creating a genuine issue of material fact and that the summary judgment was therefore improper as to their fraudulent misrepresentation and fraudulent suppression claims. Specifically, they assert that United American is liable for fraudulent misrepresentation and suppression because of: (a) Butcher's actions; and (b) Stone's actions.
The Bookers contend that United American is liable for Butcher's misrepresentations and suppression because, they argue, Stone, United American's agent, effectively appointed Butcher as a subagent of United American. We disagree.
The law regarding the responsibility of a principal for persons allegedly appointed as subagents is well settled.
3 C.J.S. Agency § 265 (1973). See 3 Am. Jur.2d Agency §§ 157, 162, 163 (1986). That is, a principal will be bound by the acts of a purported subagent only if: (1) the agent had express authority to appoint the subagent; (2) the agent had implied authority to appoint the subagent; or (3) the principal ratified the appointment.[2] See Consolidated *1336 Underwriters Ins. Co. v. Landers, 285 Ala. 677, 681, 235 So. 2d 818, 822 (1970); Eagle Motor Lines v. Hood, 256 Ala. 395, 398, 55 So. 2d 126, 129 (1951); Butler v. Standard Life Ins. Co. of the South, 232 Ala. 238, 167 So. 307, 309-10 (1936); Schloss Bros. & Co. v. Gibson Dry Goods Co., 6 Ala.App. 155, 60 So. 436, 437 (1912).[3]
The Bookers argue first that Stone was a general agent of United American with express authority to appoint subagents, including Butcher. The contract between United American and Stone, however, clearly contradicts this proposition. It specifically provides that Stone could only recommend subagents to United American for it to appoint and that United American would not appoint any recommended subagents until they were authorized to sell by United American and were licensed by the state insurance authorities.[4] United American did not appoint Butcher or authorize him with the Alabama insurance authorities. In fact, it is undisputed that United American was unaware of Stone's relationship with Butcher. Thus, Stone did not have express authority to appoint Butcher as United American's subagent.[5]
*1337 Neither did Stone have the implied authority to appoint Butcher as United American's subagent. Of course, there can be no implied authority for Stone to appoint Butcher, given the contract's express reservation of all appointment power to United American. See Restatement (Second) of Agency § 34(e) cmt. h (1958) (stating that a formal writing authorizing an agent to act for a principal will be strictly construed in determining the scope of the agent's authority).[6] In addition, it is elementary that an agent cannot endow a subagent with more authority than the agent himself possesses. See Insurance Co. of North America v. Thornton, 130 Ala. 222, 233-34, 30 So. 614, 617 (1901) (holding that an insurance agent could not appoint a subagent to act in a manner contrary to the contract restrictions applicable to the agent). Clearly, Stone could not endow Butcher with the authority to sell for United American, without authority from United American and a license from the state insurance authorities,[7] when Stone himself was restricted to selling only with such authority and with a license in force.
That Stone had no implied authority to appoint Butcher as United American's subagent is further confirmed by the circumstances surrounding Butcher's alleged appointment. Implied authority for an agent to appoint a subagent may arise from "the nature of the agency, the work to be done, and the particular circumstances.... [W]here a delegation of power is not necessary, proper, or usual, there is no implied power in the agent to delegate his power to a subagent...." 3 C.J.S. Agency § 261. See 3 Am.Jur.2d Agency § 157. It was not "necessary, proper, or usual" for Stone to appoint Butcher as a subagent for United American, given that United American had revoked Butcher's authority to sell its products, fired him, and placed him on its "No Rehire List." Thus, Stone did not have implied authority to appoint Butcher as United American's subagent.
The Bookers next contend that the actions they say Butcher took as United American's subagent were ratified by Stone. This contention misses the point of ratification. It is the principal's ratification, not the agent's, that is controlling. See 3 C.J.S. Agency § 265 (stating that the subagent's actions bind the principal only if the principal ratifies those actions). For example, in American Pioneer Life Insurance Co. v. Sandlin, 470 So. 2d 657, 664-65 (Ala.1985), this Court refused to overturn a judgment based on a jury verdict imposing liability for a third-party agent's action when the insurance company had knowingly received the application from the third party, had approved the application, had returned it to the third party for completion, had referred to the third party as the agent in correspondence with the insured, and had subsequently made the third party its direct agent. See generally Butler, 232 Ala. at 242, 167 So. at 309-10 (requiring a knowing ratification to bind a principal to the acts of a subagent). In contrast, United American never knowingly received the application from Butcher, never referred to Butcher as its agent in its correspondence with the Bookers, and never made Butcher its agent after the sale to the Bookers. Simply put, United American was incapable of knowingly ratifying Butcher's conduct, of which it was unaware. Thus, United American is not liable for the actions *1338 of Butcher.[8]
The Bookers argue that even if United American is not liable for Butcher's misdeeds, it is liable for its agent Stone's misrepresentations and suppressions.[9] The Bookers, fail, however, to present substantial evidence of either misrepresentations or suppressions on the part of Stone.
In order to succeed on a fraud claim, the plaintiff must show: (1) that the defendant misrepresented a material fact; (2) that the defendant made the misrepresentation willfully to deceive, or recklessly without knowledge; (3) that the plaintiff relied upon the misrepresentation; and (4) that the plaintiff incurred damage as a proximate consequence of the reliance. Ala.Code 1975, § 6-5-101; Harris v. M & S Toyota, Inc., 575 So. 2d 74, 76 (Ala.1991). The plaintiff may show that the defendant's failure to disclose, or suppression of, a material fact, rather than an affirmative misrepresentation, induced the reliance and proximately caused the damage. Ala.Code 1975, § 6-5-102; Crigler v. Salac, 438 So. 2d 1375, 1381 (Ala.1983).
To succeed on their allegation of misrepresentation, the Bookers must present substantial evidence indicating that Stone's involvement with Butcher went beyond allowing Butcher to act as the manager of Stone's insurance business, to Stone's actual participation in the alleged fraudulent acts of Butcher. See generally Sandlin, 470 So. 2d 657, 664-65 (upholding a jury verdict against an insurance company where its officers and employees knew of and discussed the substantial difference in the initial $24,000 premium and the initial $12,000 cash surrender value that ultimately served as the basis of the fraud action).
The facts presented in opposition to the summary judgment motion showed that Stone hired Butcher and that Stone signed the Bookers' application as if he had taken it himself. Stone's hiring of Butcher, however, knowing (1) that United American had not authorized him to sell its product, (2) that United American had fired Butcher, and (3) that United American had placed Butcher on its "No Rehire List," indicates that Stone made misrepresentations to United American, not to the Bookers. Similarly, Stone's signing of the Bookers' application shows an intent to deceive United American, not the Bookers.
The Bookers argue that Stone's providing Butcher with an office, with the United American insurance applications, and with the Bookers' names indicates that Stone directly participated in Butcher's fraud. While these facts support the assertion that Stone hired Butcher as a district manager/field manager for Stone's insurance business, they do not support the key contention that Stone instructed Butcher to make misrepresentations to the Bookers.
The Bookers further contend that Stone signed several applications that Butcher and another unknown man had taken after making what are characterized as similar misrepresentations, and that this indicates Stone had a practice of instructing his agents to make misrepresentations. That Butcher and some other unknown man made similar misrepresentations to other customers does not constitute "substantial evidence" that Stone, not Butcher, was responsible for, or was even aware, of the misrepresentation. As the Bookers admit, Stone stopped selling insurance himself and hired Butcher as a district manager/field manager to solicit insurance and to hire and train agents. Thus, the limited evidence offered in opposition to United American's motion for summary judgment indicates that it was Butcher, not Stone, who trained the unknown agent who allegedly made a misrepresentation.
*1339 While there is evidence that Butcher committed a fraud, there is a stark absence of evidence that Stone participated in the acts of which the Bookers complain. There is no evidence that Stone's authority with United American or license with the state insurance authorities had been revoked. There was no evidence that Stone made misrepresentations to customers before 1989, when he was selling insurance himself, or at any time thereafter. Thus, the trial court properly held that the Bookers failed to present substantial evidence that Stone actively participated in Butcher's misrepresentation. See Wilma Corp. v. Fleming Foods of Alabama, 613 So. 2d 359, 361 (Ala.1993).
With respect to the suppression claim,[10] the Bookers assert that when Stone telephoned Mrs. Booker and asked if the Bookers wanted the health insurance, he suppressed material facts about the policy. Even assuming arguendo that Stone did suppress facts during the telephone conversation, such suppression did not induce the Bookers to act. The Bookers had signed the application and had written the check for the first three months' premiums before Stone telephoned. The reliance and the injury complete, Stone's post-hoc telephone call did not proximately cause the injury of which the Bookers complain. See Crigler, 438 So. 2d at 1381 (stating that to be actionable the suppression of a material fact must "induce action on the part of the complaining party") (citing Cooper v. Rowe, 208 Ala. 494, 94 So. 725 (1922)). Thus, the Bookers did not present substantial evidence indicating that Stone, as United American's agent, made misrepresentations or suppressed material facts.[11]
The Bookers assert that the trial court improperly granted United American's summary judgment motion on their claims of negligent or wanton supervision of Stone, and on the question of its liability for Stone's own negligent or wanton behavior. The trial court held that these claims were barred by the applicable statute of limitations. We agree.
Section 6-2-38, Ala.Code 1975, provides a two-year limitations period for claims alleging liability for negligence, whether the liability is direct or based upon the doctrine of respondeat superior.[12] Thus, a plaintiff must bring a negligence action within two years of the time the action accrued. Because the savings provision for fraud actions (§ 6-2-3) does not operate to postpone the running of the limitations period for nonfraud claims, whether the Bookers' negligence and wantonness claims are time-barred depends on when they accrued.
It is well settled that a negligence cause of action accrues when the plaintiff can first maintain the action, regardless of whether the full amount of damage is apparent at the time of the first injury. Henson v. Celtic Life Insurance Co., 621 So. 2d 1268, *1340 1271, 1274 (Ala.1993). In Henson, 621 So. 2d at 1271, 1274, this Court held that the plaintiff's completion of an application for a health insurance policy started the running of the two-year limitations period for a negligence action. Further, in Henson, 621 So. 2d at 1273, this Court commented that an action for inducing a plaintiff to give up an old insurance policy in favor of a new policy accrued when the plaintiff gave up the old policy. In this case, as in Henson, 621 So. 2d at 1274, the Bookers admit that any negligence or wantonness on the part of Stone or United American occurred, at the latest, in May 1991, when the Bookers signed the application and wrote the check for the policy. Thus, their claims accrued in May 1991. Because the Bookers filed their complaint in August 1993over two years after their claims accruedtheir negligence and wantonness claims are time-barred.
The summary judgment in favor of United American is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, HOUSTON, and KENNEDY, JJ., concur.
SHORES, J., recuses.
[1] The trial court also entered a summary judgment for Torchmark Corporation, but did not enter a summary judgment as to Stone. Neither Torchmark nor Stone is a party to this appeal. The claims against Stone are pending in the trial court.
[2] Of course, once a third party is validly appointed a subagent, the principal is liable for the subagent's actions. 3 C.J.S. Agency § 265; 3 Am.Jur.2d Agency § 163. The scope of the liability of a principal for its validly appointed subagent depends on whether the subagent is a soliciting subagent or an independent subagent. See generally Washington National Ins. Co. v. Strickland, 491 So. 2d 872, 874-75 (Ala.1985) (stating that principals are liable for the actions of soliciting agents under the doctrine of respondeat superior and for the actions of independent agents under the principles of actual and apparent authority).
[3] See also Buisson v. Potts, 180 La. 330, 156 So. 408 (1934) ("The agent has not the right of substitution unless specifically authorized by his principal."); Sams v. Arthur, 135 S.C. 123, 133 S.E. 205 (1926) ("Where the agent employs his own servants, and directs their movements, [as opposed to where the principal controls their actions,] without the slightest inference by the principal, it is manifest that the reason for holding the principal responsible for the delicts of the agent no longer exists, and the principal cannot be held liable for the delicts of a servant of the agent, under the circumstances."); see generally Texas Co. v. Brice, 26 F.2d 164 (6th Cir.1928) (stating that "the principal may consent to the employment of subagents on such terms as please him, and, where he has consented only upon the express or implied condition that the subagent shall not be deemed his agent, that condition, as between the parties must control").
[4] The Bookers' counsel have selected from United American's contract certain statements to quote in the Bookers' appellate brief. The quotations the Bookers' counsel have selected do not persuade us that Stone was a general agent with the express authority to appoint Butcher. The contract, with the portions the Bookers' counsel chose to excise added back in (and shown with emphasis), provides in pertinent part:
"The Agent is hereby appointed a General Agent of the Company and is authorized to solicit in person, or through sub-agents contracted by the Agent, applications for insurance in the Company, to forward same to the Company for approval or rejection, and to collect the initial premium payments due on such applications. It is expressly agreed that the relationship of the Agent or sub-agent with the Company shall be that of an Independent Contractor only, and that nothing contained herein shall be construed to create the relationship of employer and employee. The Company may from time to time prescribe rules respecting the requirements for eligibility of applicants for insurance....
"....
"The Agent is authorized to recruit and recommend to the Company soliciting agents, herein called `subagents.' All contracts with such sub-agents shall be made directly with the Agent, but the sub-agent shall not be allowed to solicit insurance for the Company unless the sub-agent is duly licensed in the State and until the sub-agent is appointed by the Company with the State Insurance Department. The Company reserves the right to refuse to license or appoint any proposed sub-agent, or once done, to thereafter terminate the same.
"....
"The Agent or sub-agent shall have no authority other than expressly granted herein, and no forbearance or neglect on the part of either the Agent or sub-agent of the Company shall be construed as a waiver of any of the terms of this Contract or imply the existence of any authority not expressly granted herein. The Agent or sub-agent is not authorized to make any contract or incur any debt in the name of the Company; nor to make, modify or amend any application for insurance or any policy of insurance; nor to extend the time for making any payment which may become due on any policy; nor to waive any of the Company's rights or privileges under its policies or applications; nor to collect or receipt for premiums other than the initial premiums with applications for insurance."
(Emphasis added.) It is clear that Stone did not have express authority to appoint Butcher as United American's subagent. United American expressly reserved that appointment authority to itself.
[5] The contract between Stone and United American, supra, note 4, indicates that Stone was a "soliciting agent." A soliciting agent is one who is authorized to act in a particular transaction or in a particular way, but has no power to bind the insurance principal in contract. Washington National Ins. Co. v. Strickland, 491 So. 2d 872 at 874-75 (Ala.1985). It is the powers conferred on Stone by the contract, not the label of "General Agent," that controls. Ragsdale v. Life Ins. Co. of North America, 632 So. 2d 465, 468 (Ala.1994). Here, the contract simply authorized Stone to solicit applications for United American, collect the initial premium payments, and "forward the same to the Company for approval or rejection." This Court has held:
"[A] mere soliciting agent, with power only to solicit insurance, deliver policies, and collect premiums may not subject the [insurance company] to liability by his appointment of a third party as subagent, without the authority from, or knowledge, acquiescence, or waiver of, the [insurance company]."
Butler v. Standard Life Ins. Co. of the South, 232 Ala. 238, 242, 167 So. 307, 309-10 (1936). Thus, Stone could appoint Butcher as a subagent of United American only if United American expressly or impliedly authorized the appointment or ratified it after the fact.
[6] See supra note 4.
[7] The Alabama insurance authorities revoked Butcher's license to sell insurance in Alabama in March 1991, approximately two months before Butcher allegedly made the misrepresentations to the Bookers.
[8] In effect, Butcher may have acted as Stone's agent, but not as United American's subagent. See 3 C.J.S. Agency § 265 (stating that an unauthorized subagent will bind only the agent, not the principal). Proceedings on the claims against Stone, which are currently pending in the trial court, should determine this issue.
[9] Because Stone was United American's soliciting agent, supra, note 5, United American would be liable for Stone's misrepresentations, if at all, under the doctrine of respondeat superior. Washington National Ins. Co. v. Strickland, 491 So. 2d 872 at 874-75 (Ala.1985).
[10] A claim for fraudulent suppression requires that the plaintiff show: (1) that the defendant had a duty to disclose material facts; (2) that the defendant concealed or failed to disclose those facts; (3) that the concealment or failure to disclose induced the plaintiff to act; and (4) that the defendant's action resulted in harm to the plaintiff. Interstate Truck Leasing, Inc. v. Bender, 608 So. 2d 716 (Ala.1992).
[11] The Bookers also cast their argument for United American's liability in the form of a conspiracy claim. The Bookers allege that United American, through Stone, participated in a conspiracy to defraud them. Because we have concluded that the Bookers failed to present substantial evidence that Stone was involved in the fraud complained of, the Bookers' conspiracy claim is without merit. See Allied Supply Co. v. Brown, 585 So. 2d 33, 36 (Ala.1991) (holding that "[i]f the underlying cause of action is not viable, the conspiracy claim must also fail").
[12] Ala.Code 1975, § 6-2-38, provides in pertinent part:
"(l) All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.
"....
"(n) All actions commenced to recover damages for injury to the person or property of another wherein a principal or master is sought to be held liable for the act or conduct of his agent, servant, or employee under the doctrine of respondeat superior must be brought within two years." | May 2, 1997 |
dba9409c-4c01-46ac-8329-fd7accee5b6c | Prudential Securities, Inc. v. Micro-Fab, Inc. | 689 So. 2d 829 | 1951265 | Alabama | Alabama Supreme Court | 689 So. 2d 829 (1997)
PRUDENTIAL SECURITIES, INC., et al.
v.
MICRO-FAB, INC.
1951265.
Supreme Court of Alabama.
March 7, 1997.
*830 Cooper C. Thurber, William E. Shreve, Jr., and Daniel S. Cushing of Lyons, Pipes & Cook, P.C., Mobile, for Appellants.
Thomas J. Methvin of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery; and George W. Finkbohner III of Finkbohner & Lawler, Mobile, for Appellee.
KENNEDY, Justice.
The defendants, Prudential Securities, Inc.; Prudential-Bache Properties, Inc.; and Ron Dezego (all hereinafter referred to as "Prudential") appeal from the trial court's denial of their motion to compel arbitration of the claims presented by the plaintiff, Micro-Fab, Inc. We affirm.
Randy Coleman is the sole shareholder of Micro-Fab, Inc., and is its president. Coleman opened his own individual investment account with Prudential in 1987 and purchased shares of the Prudential-Bache "Tax Credit Properties Limited Partnership." When he opened his account, he signed a "client's agreement," which contained the following paragraph 1 and the following arbitration clause (paragraph 14):
Later, Micro-Fab opened its own separate investment account with Prudential. Micro-Fab never signed or entered into an arbitration agreement with Prudential, and Coleman never entered into an arbitration agreement on behalf of Micro-Fab. Coleman's personal account and money and the Micro-Fab account and money were kept totally separate, Coleman and Micro-Fab holding their own respective shares of various securities.
Coleman and Micro-Fab sued Prudential, alleging fraud in connection with the sale of the limited partnership securities they both had purchased. Coleman later dismissed his individual claims.
Prudential argues that the arbitration agreement between it and Coleman, as an individual, should also encompass any controversies arising out of the relationship between it and Micro-Fab, even though Micro-Fab never signed or entered into an arbitration agreement. Prudential argues that under the Federal Arbitration Act (FAA) and Federal caselaw favoring the enforcement of arbitration clauses, Micro-Fab should be required to arbitrate. Also, Prudential argues that Coleman's direct ownership of Micro-Fab provides such a close relationship between the two as to bind Micro-Fab to Coleman's *831 arbitration agreement even though Micro-Fab was not a party to that agreement. Prudential says Coleman not only owned and controlled Micro-Fab, but had a direct interest related to the interests of Micro-Fab. See Pritzker v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 7 F.3d 1110 (3d Cir.1993).
Micro-Fab argues that under Alabama law a corporation is an entity distinct and separate from the person or persons who are its shareholders, and it argues that under Alabama law the transactions of a corporation are to be considered separate from those of its shareholders. East End Memorial Ass'n v. Egerman, 514 So. 2d 38 (Ala.1987). Basically, Micro-Fab argues that there cannot be "reverse" piercing of the corporate veil in order to bind it to the individual agreements of its shareholder Coleman.
Micro-Fab relies on Nicholas A. Califano, M.D., Inc. v. Shearson Lehman Brothers, Inc., 690 F. Supp. 1354 (S.D.N.Y.1988). In that case, Califano's personal agreement to arbitrate with a broker did not apply to the account of a corporation of which Califano was president, sole shareholder, and designated employee. Micro-Fab further argues that Coleman in no way has operated Micro-Fab as his alter ego, as Prudential would indicate.
In Backus v. Watson, 619 So. 2d 1342 (Ala. 1993), this Court discussed the factors that define a corporate alter ego situation; none of those factors exists or has been implicated in this case. The language in the client's agreement referring to other accounts reads in part, "to all of my accounts, in which I have an interest alone or with others, which I have opened or open in the future." It appears this wording refers to accounts Coleman has or opens as an individual and in which he has an interest. This conclusion is founded on the fact that Coleman entered into the "client's agreement" in his individual capacity, not on behalf of Micro-Fab. As the shareholder of Micro-Fab, Coleman has an interest in the corporation, but the Micro-Fab investment account was opened separately by the corporation, not Coleman.
This Court has applied the well-settled rule that the enforcement of arbitration agreements, while favored by Federal Law as sound public policy, must be governed by the plain terms of the agreements themselvesthat the courts are not to twist the language of a contract to achieve a result favored by federal policy but contrary to the intent of the parties. Ex parte Martin, [Ms. 1951420, November 8, 1996] ___ So.2d ___ (Ala.1996). Considering the plain meaning of the language used in the contract between Coleman and Prudential, we cannot hold that they intended for their agreement to encompass a relationship between Micro-Fab and Prudential that had not yet arisen at the time of the agreement.
We also note that the claims of Micro-Fab are not "intimately founded in and intertwined with" the contract containing the arbitration clause. It has been held that a nonsignatory to an arbitration agreement can compel arbitration if such a close connection between claims does exist. Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753 (11th Cir.1993). Even though the claims of Coleman and Micro-Fab involve the same kind of securities, the claims could exist totally independent of one another. Micro-Fab's claims do not arise out of the Coleman-Prudential agreement, nor do they relate to the same transaction.
Recently in Ex parte Jones, 686 So. 2d 1166 (Ala.1996), we concluded that where no arbitration agreement existed between two parties, arbitration could not be compelled. The Joneses borrowed money from a lender called The Money Tree to finance the purchase of an automobile. As part of the loan transaction, the Joneses signed an arbitration agreement with Money Tree. A separate contract was drafted by First Colonial Insurance Company, insurer of the loan collateral. The First Colonial contract did not have an arbitration agreement. We held that the Joneses arbitration agreement with Money Tree did not bind them to arbitrate claims relating to the separate First Colonial contract, which did not contain an arbitration agreement. In reversing the trial court's order compelling the Joneses to arbitrate their claims against First Colonial, we relied on the well-founded law that one cannot be required to arbitrate that which he or she has not agreed to arbitrate. Old Republic *832 Ins. Co. v. Lanier, 644 So. 2d 1258 (Ala.1994). The same reasoning applies in this case.
We note that in order for the FAA to govern an agreement, (1) there must be a written agreement calling for arbitration and (2) the contract in which the arbitration agreement appears must relate to a transaction involving interstate commerce. Maxus, Inc. v. Sciacca, 598 So. 2d 1376 (Ala.1992). There is no written agreement calling for arbitration between Micro-Fab and Prudential.
Micro-Fab is a corporate entity distinct and separate from Coleman, and it cannot be forced to arbitrate under an arbitration agreement entered into by Coleman in his individual capacity. One of the principal reasons for incorporating a business is to form an independent legal entity and to assume corporate obligations and to enter transactions separate from those of the corporation's shareholders. East End Memorial Ass'n, supra. We affirm the trial court's denial of Prudential's motion to compel arbitration.
AFFIRMED.
MADDOX, SHORES, HOUSTON, COOK, BUTTS, and SEE, JJ., concur.
HOOPER, C.J., dissents.
HOOPER, Chief Justice (dissenting).
I respectfully dissent. I believe that the language contained in the arbitration agreement entered into in 1987 between Randolph Coleman and Prudential regarding Coleman's individual investment account is broad enough to bind him in regard to arbitration in the dispute between his corporation, Micro-Fab, and Prudential.
Coleman is the sole shareholder and president of Micro-Fab. Coleman's Micro-Fab account with Prudential was opened with an account form listing Coleman as the "self-employed owner" of Micro-Fab. The account form stated that the account was opened "FBO Randolph S. Coleman," i.e., for the benefit of Coleman. Originally, Coleman and Micro-Fab sued Prudential for fraud in connection with the sale of the same limited partnership securities, but Coleman later dismissed his individual claims. Even though each original plaintiff could have brought these claims individually, the disputes are closely related to one another in terms of the parties and the subject matter of the dispute.
It is not necessary to review the "reverse piercing of the corporate veil" argument proposed by Micro-Fab. Based on the evidence discussed in the paragraph above, I find that the claims of Micro-Fab are "intimately founded in and intertwined with" the contract containing the arbitration clause. Coleman promised in his first agreement with Prudential to arbitrate any claims regarding accounts in which he had "an interest alone or with others, which [he had] opened or [will] open in the future." The liberal language contained in the original arbitration agreement between Coleman and Prudential is broad enough to require Coleman to arbitrate his claims regarding the corporation Micro-Fab, of which he is the sole owner. | March 7, 1997 |
3bbd215f-61e8-4c81-8ce4-d60e9d643a66 | Mountain Brook v. Green Valley Partners | 690 So. 2d 359 | 1951577 | Alabama | Alabama Supreme Court | 690 So. 2d 359 (1997)
CITY OF MOUNTAIN BROOK
v.
GREEN VALLEY PARTNERS I, et al.
1951577.
Supreme Court of Alabama.
March 21, 1997.
Frank C. Galloway, Jr., and C. Ellis Brazeal III of Walston, Stabler, Wells, Anderson & Bains, Birmingham, for appellant.
*360 Jesse P. Evans III, Laurie Boston Sharp, and Jeffrey D. Dyess of Najjar Denaburg, P.C., Birmingham, and Walter R. Byars of Steiner, Crum & Baker, Montgomery, for appellees.
Michael G. Kendrick and Victoria J. Franklin-Sisson of Gorham & Waldrep, P.C., Birmingham, for amicus curiae City of Homewood, in support of the appellant.
KENNEDY, Justice.
Green Valley Partners I; Econone, Ltd.; and Jody Saiia (collectively referred to as the "landowners"), own real property located between Valley Road and U.S. Highway 280, in the City of Mountain Brook. The property is zoned for estate residences, pursuant to the City's zoning ordinance. The estate residence classification limits the use of the property to single-family residential purposes, with each lot being at least two acres.
The landowners asked the City to rezone the property for commercial use, so that they could put a gasoline service station on the property. The City denied their request. The landowners then asked the City's Board of Zoning Adjustment for a use variance to allow a gasoline station or other commercial building to be built on the land. The Board denied the request for a variance, based on Act No. 1054, Alabama Acts 1975, Reg. Session (the "Act").
The Act provides that no board of zoning adjustment of any municipality located within a county with a population in excess of 500,000 may "grant a variance under the zoning ordinance of such municipality to allow a structure or use in a district restricted against such structure or use, except as specifically provided for by the zoning ordinance of such municipality." The City of Mountain Brook is in Jefferson County, which has in excess of 500,000 people. The City's ordinances do not provide for any of the use variances that were requested by the landowners. Therefore, the Board denied the use variance.
The landowners sued the City, arguing that the population classification of the Act violated (1) the Equal Protection Clause of the Fourteenth Amendment, (2) Article IV, § 105, of the Alabama Constitution of 1901, which prohibits the enactment of a local law that addresses a subject provided for by general law, and (3) the separation of powers doctrine stated in Article III, § 43, of the Alabama Constitution. Both the City and the landowners moved for a summary judgment.[1] The trial court held the Act unconstitutional, but did not state its reasoning.
The landowners contend that the Act violates the Equal Protection Clause by treating them differently from the way it treats other similarly situated landowners. Specifically, they contend that the county-wide population classification is wholly irrelevant to municipal zoning needs, i.e., that there is no rational relationship between the alleged purpose of the legislation and the classification drawn.
The Fourteenth Amendment to the United States Constitution provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." When a statute or act is based on population, a reasonable relationship must exist between the purpose of the statute and the population classification established; otherwise, the classification will be deemed arbitrary. Peddycoart v. City of Birmingham, 354 So. 2d 808 (Ala.1978).
In Peddycoart, this Court held that a population-based statute violated the Equal Protection Clause because there was no reasonable relationship between the statute and the population standard. The statute in Peddycoart granted governmental immunity to cities with populations of over 100,000. Granting a city governmental immunity based upon the city's population denied citizens the right to pursue against that city remedies for injuries to person and property resulting from the exercise of its governmental functions, while they were free to pursue those same remedies against all other cities.
*361 The case at bar is easily distinguishable from Peddycoart, because in this case there is a reasonable relationship between the Act and the population standard.
In Missouri v. Lewis, 101 U.S. 22, 11 Otto 22, 25 L. Ed. 989 (1879), a Missouri statute precluded parties in cases that arose either in the City of St. Louis or in one of the four named counties in the St. Louis area from exercising a direct appeal to the Missouri Supreme Court, except in certain enumerated situations. Citizens in counties other than those named were allowed a direct appeal to that court. The United States Supreme Court held that the statute did not violate the Equal Protection Clause.
101 U.S. at 31.
Salsburg v. Maryland, 346 U.S. 545, 551, 74 S. Ct. 280, 283, 98 L. Ed. 281 (1954), held that a Maryland statute excepting a particular county from a rule of evidence did not violate the Equal Protection Clause. The Court held that the distinctions based on county areas were not so unreasonable "as to deprive [the defendant] of the equal protection of the laws guaranteed by the Federal Constitution. The Equal Protection Clause relates to equality between persons as such rather than between areas." The Supreme Court based its holding on Missouri v. Lewis.
According to the City, the reason for the classification is that people residing in counties with a population of over 500,000 have needs with respect to zoning matters that are different from those of people living in less heavily populated areas. Their needs would involve traffic and safety concerns resulting from having numerous cities in such a county and from having many people in a small area. Jefferson County has 31 cities within its borders, including Birmingham, which is the largest city in the state; and the City of Mountain Brook is adjacent to Birmingham.
This Court has recognized that densely inhabited regions might need special laws not applicable to rural areas. In Masters v. Pruce, 290 Ala. 56, 274 So. 2d 33 (1973), this Court reviewed a zoning law that gave the county governing bodies in those counties with populations in excess of 400,000 the power to provide for and regulate all land use in the unincorporated areas of such counties. The Court noted that ["t]he problems of highly populous counties are unique with regard to the regulation of land use" and stated, "Therefore, it is reasonable that the governing bodies in counties with over 400,000 population have such zoning powers, whereas other county governing bodies in the state may not." 290 Ala. at 69, 274 So. 2d at 45.
In Phalen v. Birmingham Racing Commission, 481 So. 2d 1108 (Ala.1985), we recognized that as the state's most populated county, Jefferson County could be treated differently from all the other counties, specifically, that Birmingham could conduct horse racing. The Court noted that the Birmingham metropolitan area had a significantly greater population than the next largest, the Mobile metropolitan area, and further noted that "the area surrounding Birmingham is the most densely populated area in the state." 481 So. 2d at 1118. The Court explained that the legislature could have found that "a major horse racing facility" would require a substantial capital investment and the patronage of many people and, accordingly, this Court deferred to the legislature's decision.
*362 Under the facts of this case, we hold that the population classification does not violate the Equal Protection Clause, but bears a reasonable relationship to the statutory purpose of providing cities located in heavily populated counties with a greater ability to regulate land use.
The landowners' second argument is that the Act is a local law and under § 105 of the Alabama Constitution a local law cannot be enacted that addresses a subject already provided for by general law. Section 11-52-80, Ala.Code 1975, provides for municipal zoning laws. The landowners contend that the Act is a local law addressing the same subject covered in § 11-52-80.
First, we disagree with the landowners' contention that the Act is a local law. Although it currently applies to only one county, this fact alone does make the Act a local law. In Masters, we held that a law that is based on a population classification may be enacted as a general law under limited conditions, even though the law in its application applies to only one political subdivision of the state. "In order for such a law based on a population standard which applies to only one political subdivision to be upheld as a general law, the difference in population must be substantial, the classification must be made in good faith by the legislature, and the classification must be reasonably related to the purpose sought to be achieved by the act." Masters, 290 Ala. at 66, 274 So. 2d at 42.
We conclude that the population standard in the Act meets the Masters test, and, therefore, that the Act is a general law. Certainly, the population difference on which the Act is based is substantial and the population standard is reasonably related to the safety concerns covered in the Act, as discussed above. We also find nothing in the record to indicate that the legislature acted other than in good faith when passing the Act.
In Peddycoart, supra, we held that a population-based statute could not qualify as a general law of local application where the legislature had enacted a statute of statewide application on the general subject of municipal immunity for torts, and where the population-based statute was clearly intended to apply to only one city. The population-based statute was an unconstitutional local law, because the population standard was not reasonably related to the purpose of the statute. In the instant case, the population standard is reasonably related to the Act.
Last, the landowners argue that the Act violates the separation of powers doctrine stated in Article III, § 43, of the Alabama Constitution; they argue that it improperly invades the "quasi-judicial" function of a board of zoning adjustment. The landowners contend that because the board of zoning adjustment is "quasi-judicial," the legislature's enactment of the Act violates the separation of powers doctrine. They argue that variances in Jefferson County will be eliminated by the Act and that landowners will be denied their right to judicial review by direct appeal from the board of zoning adjustment to the circuit court.
The landowners correctly note that a board of adjustment is quasi-judicial in nature. The board has the power to hear appeals from the decisions of zoning officials, to hear special exceptions, and to authorize variances. § 11-52-80. However, we disagree with their argument that the Act infringes upon the board of zoning adjustment's quasi-judicial nature or the right to appeal the board's decision to the circuit court. The Act provides that a board of adjustment in a municipality in a county with a population of over 500,000 cannot grant a variance "except as specifically provided for by the zoning ordinance of such municipality." If the city has a duly enacted zoning ordinance to provide for a variance, then it can be granted. The Act allows cities in heavily populated counties (only Jefferson County at this time) to have more control over variances within their limits. A heavily populated county has special concerns regarding traffic and safety, and by the Act the cities in such a county have been given the authority to grant variances accordingly.
We disagree with the landowners' contention that allowing the cities in heavily populated counties to enact ordinances concerning variances "strips corresponding judicial power *363 from the circuit courts, who will either no longer be allowed to hear any use variance appeals or [will be allowed] to entertain only certain issues on appeal." We find nothing in the Act that either on its face or as applied prevents a citizen from challenging, under § 11-52-81, the application of the city's zoning ordinances by the board of zoning adjustment.
Based on the foregoing, the judgment of the trial court is reversed and the cause is remanded.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, and BUTTS, JJ., concur.
[1] The landowners did not raise an equal protection argument based on the Alabama Constitution. | March 21, 1997 |
accd19e8-2b52-4293-93e5-b78090a77a12 | Ex Parte Crawford & Co. | 693 So. 2d 458 | 1950085 | Alabama | Alabama Supreme Court | 693 So. 2d 458 (1997)
Ex parte CRAWFORD & COMPANY, Wayne Kruse, and Don Payne.
(Re Bruce Alan JONES v. CRAWFORD & COMPANY, et al.).
1950085.
Supreme Court of Alabama.
March 14, 1997.
Cooper C. Thurber, Joseph J. Minus, Jr., and M. Lauren Lemmon of Lyons, Pipes & Cook, P.C., Mobile, for petitioners.
Richard E. Browning of Sherling, Browning & York, P.C., Mobile, for respondent.
COOK, Justice.
The circuit court entered a summary judgment for the defendants Crawford & Company, Wayne Kruse, and Don Payne (all hereinafter referred to as "Crawford & Company"), on the plaintiff Bruce Alan Jones's complaint alleging the tort of outrage and making other tort and contract claims. The Court of Civil Appeals reversed as to the outrage claim. See Jones v. Crawford & Co., 693 So. 2d 454 (Ala.Civ.App.1995). We have granted Crawford & Company's petition for certiorari review. We reverse.
We are compelled to examine the type of conduct required for the tort of outrage and to determine whether Jones produced sufficient evidence to avoid a summary judgment on his claim of outrage.
On June 1, 1983, Jones was severely injured by an explosion while he was on his job at the Virginia Chemicals Company plant at Bucks, in Mobile County; the explosion left him permanently and totally disabled. He was blinded in his left eye; he suffered a punctured lung; all the bones in his face were broken; his right eye was injured; and his right arm was broken. He made a claim for workers' compensation under the Alabama Workers' Compensation Act. Northwestern National Insurance Company, Virginia Chemical's workers' compensation insurance carrier at the time of the accident, settled the disability portion of Jones's claim but left open his claim for future medical expenses. Crawford & Company *459 had contracted with Northwestern to act as a claims adjuster to handle ongoing medical expense claims made by injured workers.
On September 22, 1993, Jones filed a complaint alleging breach of agreement and the tort of outrage. He named as defendants Crawford & Company, Wayne Kruse, Don Payne, Virginia Chemicals, and Northwestern, alleging that they had failed to make, or had delayed, payment of several of Jones's medical bills. Jones contends that Crawford & Company was deliberately slow in paying his medical bills and delayed in an attempt to force him to settle his claims for future medical benefits; however, he says, he refused. Evidence contained in Crawford & Company's case review notes dated October 11, 1993, indicate that because Jones had refused any type of lump-sum settlement, Crawford & Company was at a "standstill." (C.R.697.) Jones later amended his complaint to include allegations of fraud and bad faith.
On December 20, 1994, Crawford & Company moved for a summary judgment. The trial court entered a summary judgment on February 10, 1995, in favor of each defendant on all claims. Jones appealed to this Court, but only as to Crawford & Company, Kruse, and Payne. We transferred the case to the Court of Civil Appeals, pursuant to Ala.Code 1975, § 12-2-7. The Court of Civil Appeals affirmed the summary judgment on all claims except that alleging the tort of outrage. We have granted the defendants' petition for certiorari review.
A summary judgment is proper only where no genuine issues of material fact exist and the movant is entitled to a judgment as a matter of law. Ala.R.Civ.P. 56; Coleman v. Bessemer Carraway Methodist Medical Center, 589 So. 2d 703 (Ala.1991). Because this case was filed after June 11, 1987, the applicable standard of review is the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12. We are presented with the issue whether Jones produced substantial evidence that Crawford & Company intentionally or recklessly engaged in conduct so extreme and outrageous as to constitute the tort of outrage; and if so, then whether Jones produced substantial evidence that because of Crawford & Company's action he suffered emotional distress so severe that no reasonable person could be expected to endure it. See American Road Serv. Co. v. Inmon, 394 So. 2d 361 (Ala.1980).
Jones's claim of outrageous conduct was based upon these allegations:
We have carefully studied the record in this case and have reviewed the law on outrageous conduct set out in American Road Serv. Co. v. Inmon, 394 So. 2d 361 (Ala.1981). We conclude that the Court of Civil Appeals improperly reversed the summary judgment as it related to Jones's outrage claim.
Jones's burden in this case is a heavy one. In order to create a jury question on the tort of outrage, there must exist "sufficient evidence from which permissible inferences could be drawn to support a finding of the extreme conduct necessary to constitute outrageous conduct." Empiregas, Inc., of Gadsden v. Geary, 431 So. 2d 1258, 1261 (Ala. 1983).
The first issue presented is whether Jones presented substantial evidence that Crawford & Company intentionally or recklessly engaged in conduct that was "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." Inmon, 394 So. 2d at 365. Traditionally, we have applied the Inmon test strictly, thereby allowing an outrage claim to go to the jury only in egregious cases. See, e.g., State Farm Automobile Insurance Co. v. Morris, 612 So. 2d 440 (Ala.1993); Gibson v. Southern *460 Guaranty Insurance Co., 623 So. 2d 1065 (Ala.1993); Gibbs v. Aetna Casualty & Surety Co., 604 So. 2d 414 (Ala.1992); Farley v. CNA Insurance Co., 576 So. 2d 158 (Ala. 1991); Empiregas, Inc., of Gadsden v. Geary, 431 So. 2d 1258 (Ala.1983).
We first recognized the tort of outrageor intentional infliction of emotional distress American Road Serv. Co. v. Inmon, 394 So. 2d 361 (Ala.1980), in which we set out the stringent standards a plaintiff must meet in order to recover for outrageous conduct. The plaintiff, Inmon, formerly employed as a field adjuster and claims supervisor, sued his former employer alleging intentional infliction of emotional distress. Inmon, 394 So. 2d at 365. We held that Inmon, who claimed to have suffered harassment and humiliation, had failed to produce adequate evidence to meet the requirements for the tort of outrage, because he had presented no evidence that the employer had intended to cause him emotional distress. Id. at 367.
In Inmon, we set out the elements of the tort of outrage: The plaintiff must prove (1) that the defendant's conduct was intentional or reckless; (2) that it was extreme and outrageous; and (3) that it caused emotional distress so severe that no reasonable person could be expected to endure it. See Thomas v. BSE Industrial Contractors, Inc., 624 So. 2d 1041, 1043 (Ala.1993), citing Inmon, supra, at 365.[1] In Inmon, we clarified the second element by stating:
394 So. 2d at 365, citing Restatement (Second) of Torts § 46, Comment d (1965); see Fitch v. Voit, 624 So. 2d 542 (Ala.1993).
In Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208 (Ala.1990), we set the minimum threshold that a defendant's conduct must cross in order for the defendant to be liable for outrageous conduct. The plaintiff, McDonald, an injured worker, sued his employer's workers' compensation carrier, alleging intentional infliction of emotional distress resulting from the carrier's alleged purposeful withholding of medical benefits with the intent to coerce McDonald to settle his claim for medical benefits. 567 So. 2d at 1210. We held that the emotional distress alleged by McDonald was of the degree that meets the Inmon standard. Id. at 1221. McDonald had presented evidence that he was in constant pain, that he had been refused further medical treatment and pharmaceuticals, and that his bills had been sent to collection agencies as a result of the defendant CNA's refusal to pay his medical bills. Id. at 1210. He also presented evidence that CNA had acted with the intent to pressure McDonald into settling for an amount far less than the amount of his medical expenses. Id.
The evidence in Jones's case is unlike that in McDonald. There is no evidence that Jones was refused medical treatment or that he was in day-to-day constant pain, as was the plaintiff in McDonald. Jones presented deposition testimony indicating that he became more and more irritated and embarrassed over the nonpayment of his bills. Although Jones presented substantial evidence that he had suffered some distress, the evidence did not suggest that level of severe emotional distress required to support a recovery for outrageous conduct. Moreover, the evidence indicated that Jones's embarrassment and irritation were not of the sort that no reasonable person could be expected to endure; therefore, we must conclude that his evidence does not suggest that the defendant crossed the McDonald threshold.
*461 In 1991, we addressed the issue whether the failure of an insurance carrier to timely pay insurance benefits constituted outrageous conduct. In Farley v. CNA Insurance Co., 576 So. 2d 158 (Ala.1991), the plaintiff, Patricia Lynn Farley, sued CNA Insurance Company, alleging negligence, wantonness, bad faith, and outrageous conduct in failing to pay her workers' compensation benefits after her hand was crushed between two steel doors while she was at work. 576 So. 2d at 159. We held that CNA's conduct did not establish the tort of outrage. Id. at 158-59. We reasoned that although Farley's evidence indicated that she had experienced a delay in payment, had been given "the runaround," and had been subjected to an unsympathetic attitude from on the part of CNA, CNA's conduct did not rise to the level of "extreme" and "outrageous" conduct that is "so severe that no reasonable person could be expected to endure it." Id. at 159-60. We stated that "there is clearly a threshold beyond which an insurance company's recalcitrance must go before it crosses into outrageous conduct.... We find that the conduct in this case did not cross this threshold." Id. at 160.
From the evidence adduced in this present case, reasonable people could conclude that Crawford & Company's conduct was intended to cause Jones emotional distress. Crawford & Company knew Jones was becoming more and more frustrated with the constant delays in payment of his medical bills. Jones presented documentary evidence indicating that Crawford & Company wanted to persuade him to settle his claims for future medical benefits. According to Crawford & Company's internal case review notes, Crawford & Company also knew that Jones's medical bills would continue indefinitely.
Although Jones may have offered sufficient evidence of the first element of the tort of outrage, it is clear that the conduct of Crawford & Company is far from being "beyond all possible bounds of decency" and "utterly intolerable in a civilized society." Jones has not alleged or presented evidence of facts that would meet the Inmon standards. Jones complains primarily of the inconvenience caused by the delay in payment of his medical bills. During his deposition testimony, Jones stated that the emotional distress he experienced consisted of irritation or "aggravation," inconvenience, disconcertment, and annoyance. Jones testified by deposition to the following:
C.R. at 183-84. Although constant delay may be inconvenient and upsetting at times, Crawford & Company's alleged conduct still does not meet the stringent test of outrageous conduct as required by our decisions and the Restatement (Second) of Torts § 46. Compare Farley v. CNA Insurance Co., supra; McDonald, supra; and Empiregas, Inc., of Gadsden, supra. Section 46, Comment d, Restatement, supra, limits liability for the tort of outrage by providing the following:
Viewing the evidence in the light most favorable to the nonmoving party, a jury could not reasonably find that Crawford & Company's conduct was "beyond all possible bounds of decency, ... atrocious ... and utterly intolerable in a civilized society." Inmon, supra. Although the evidence indicates that Jones was inconvenienced and, as he describes it, embarrassed, no evidence presented in this case suggests 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." Inmon, 394 So. 2d at 365. Liability for the tort of outrage attaches only when the defendant's conduct is extreme. Id. We find no evidence of conduct that rises to the level necessary to establish a cause of action for *462 the tort of outrage,[2] and we decline to hold that the facts of this case meet the stringent standards proclaimed in Inmon, supra.
Accordingly, we reverse the judgment of the Court of Civil Appeals and remand for that court to enter a judgment affirming the summary judgment for Crawford & Company as to the claim of outrage.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, BUTTS, and SEE, JJ., concur.
[1] In Thomas, we recognized that as of 1993 the cases in which we had found sufficient evidence to create a jury question fit into the following three categories:
"1) cases having to do with wrongful conduct in the context of family burials, see Whitt v. Hulsey, 519 So. 2d 901 (Ala.1987)"; "2) a case where insurance agents employed heavy-handed, barbaric means in attempting to coerce the insured into settling an insurance claim, National Security Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala.1983)"; and "3) a case involving egregious sexual harassment, Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala. 1989)."
624 So. 2d at 1044.
[2] For a case in which this Court found conduct that meets the stringent Inmon test, see Whitt v. Hulsey, 519 So. 2d 901, 906 (Ala.1987) (holding that "the evidence [was] sufficient to support the claim of outrageous conduct, where the alleged act was the desecration and destruction of a portion of a family burial ground"). | March 14, 1997 |
9ad233d8-f8c8-4c43-b46a-b348a3ef21d2 | Ex Parte Mitchell | 690 So. 2d 356 | 1951780 | Alabama | Alabama Supreme Court | 690 So. 2d 356 (1997)
Ex parte Billy Jack MITCHELL, et al.
(Re Claudene KINDRED and Herman Kindred v. STATE FARM INSURANCE COMPANIES, et al.).
1951780.
Supreme Court of Alabama.
March 14, 1997.
*357 William D. Scruggs, Jr., of Scruggs, Jordan & Dodd, P.A., Fort Payne, for Billy Jack Mitchell, Christy Mitchell, and Felicia Mitchell,
Bert S. Nettles, A. David Fawal, and Michael J. Velezis of London & Yancey, L.L.C., Birmingham, for State Farm Mut. Auto. Ins. Co.
Glenda G. Cochran of Cochran & Associates, Birmingham, for Respondents.
MADDOX, Justice.
State Farm Insurance Companies and Billy Jack Mitchell, Christy Thompson, and Felicia Mitchell, employees of State Farm, petition for a writ of mandamus directing Judge Drayton N. James of the Jefferson Circuit Court to transfer an action from Jefferson County to DeKalb County.
Claudene and Herman Kindred filed a wrongful death action after their son was killed in an automobile accident. They sued Dena Wooten, the driver of a motor vehicle involved in the accident. The Kindreds also filed an underinsured motorist claim against their insurer, State Farm.
The Kindreds owned three cars when they applied for automobile insurance with Billy Jack Mitchell, a State Farm agent. When the Kindreds bought their insurance, they signed a waiver that allowed them to save money on their premiums by surrendering the ability to stack the uninsured/underinsured motorist coverage on each of their vehicles.
On January 5, 1996, the Kindreds filed the underlying action against the petitioners, alleging that the petitioners had fraudulently induced them to sign the stacking waiver, which in effect reduced their uninsured/underinsured motorist coverage from $75,000 to $25,000. On March 11, 1996, the Kindreds amended their complaint to add a count alleging breach of contract.
On February 15, 1996, before the Kindreds amended their complaint, State Farm moved to transfer this case from Jefferson County *358 to DeKalb County. On February 20, 1996, the other petitioners joined State Farm's motion to transfer. Judge James granted the motion to transfer, but he later withdrew his transfer order.
The petitioners also filed a motion to transfer under the provisions of § 6-3-21.1, Ala.Code 1975 (forum non conveniens). Judge James also denied this motion.
Mandamus is a drastic and extraordinary writ, and certain criteria must be met before a writ of mandamus will be issued. A writ of mandamus will be issued only when there is (1) a clear legal right in the petitioner to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) lack of another adequate remedy; and (4) properly invoked jurisdiction of this court. Ex parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala. 1990).
For this Court to issue a writ of mandamus, the petitioners must show that they have a clear legal right to the relief sought. The petitioners contend that venue is improper in Jefferson County because, they say, this was an action against an insurance corporation for personal injuries; they argue that § 6-3-5, Ala.Code 1975, therefore, applies. That section prescribes venue for actions against insurance companies, as follows:
Section 6-3-7, Ala.Code 1975, establishes the general venue law for corporations as follows:
This Court has held that the question of proper venue is determined at the commencement of the action. See Ex parte Parker, 413 So. 2d 1105 (Ala.1982); Ex parte Wilson, 408 So. 2d 94 (Ala.1981); Ala.R.Civ.P. 82(d)(1). It is clear that the Kindreds' action was commenced as a fraud action,[1] which, for purposes of venue law, is a "personal injury" action. See Ex parte Sierra Development, Inc., 652 So. 2d 251, 253 (Ala.1994).
The undisputed facts show that the Kindreds, Billy Jack Mitchell, Christy Thompson, and Felicia Mitchell are residents of DeKalb County and that all transactions relating to the sale of the policy occurred in DeKalb County. Consequently, under § 6-3-5, which states that venue for actions against insurance corporations is proper "in the county where the holder of the policy ... resides," and under § 6-3-7, which states that a "personal injury" action against a domestic corporation is proper in the county where the injury occurred or in the county where the plaintiff resides if the defendant corporation does business by agent there, venue would be proper in DeKalb County. Ex parte Combined Insurance Co., 678 So. 2d 1055 (Ala.1996). Because the "injuries" did not occur in Jefferson County and because the plaintiffs do not reside in Jefferson County, venue is improper in Jefferson County; therefore, the trial judge should have transferred the action.
We also conclude that even had venue been proper in Jefferson County, the case should have been transferred under the doctrine of forum non conveniens. In Ex parte New England Mutual Life Insurance Co., *359 663 So. 2d 952 (Ala.1995), this Court stated that "[t]he purpose of the doctrine is to prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience." See also Ex parte Townsend, 589 So. 2d 711, 714 (Ala.1991). All of the parties to the action reside in DeKalb County or do business there. The injuries arose in DeKalb County. It appears from the circumstances that DeKalb County is a significantly more convenient forum than Jefferson County.
Because the petitioners have a clear legal right to have the action transferred to DeKalb County, the writ is due to be granted.
WRIT GRANTED.
HOOPER, C.J., and SHORES, HOUSTON, COOK, and SEE, JJ., concur.
[1] After the petitioners moved to transfer the action from Jefferson County to DeKalb County, the Kindreds added a claim alleging breach of contract. Because proper venue is determined at the time the complaint is filed, we will consider only the fraud claim for purposes of determining proper venue. | March 14, 1997 |
d1548081-4d0a-4816-83a4-35cc00f30c94 | Ex Parte Miller | 693 So. 2d 1372 | 1950927 | Alabama | Alabama Supreme Court | 693 So. 2d 1372 (1997)
Ex parte Thomas Miller.
(Re Thomas MILLER v. PETTIBONE CORPORATION, et al.)
1950927.
Supreme Court of Alabama.
March 14, 1997.
*1373 Daniel G. McDowell and Eddie Beason of Fine & McDowell, Russellville, for petitioner.
LaBella S. Alvis, Deborah Alley Smith, and Glenn E. Ireland of Rives & Peterson, P.C., Birmingham, for respondents.
ALMON, Justice.
The plaintiff, Thomas Miller, petitioned this Court for a writ of certiorari to the Alabama Court of Civil Appeals, which was granted. He appealed from the circuit court's judgment based on a directed verdict[1] in favor of the defendant, Pettibone Corporation, at the close of the plaintiff's case. The circuit court held that Miller had failed to present substantial evidence in support of his claims alleging breach of express warranty, breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, revocation of acceptance, and negligence. The Court of Civil Appeals affirmed. Miller v. Pettibone Corp., 693 So. 2d 1365 (Ala.Civ. App.1996). Miller argues that the opinion of *1374 the Court of Civil Appeals conflicts with previous cases and that he did present substantial evidence on each count in the complaint.
The facts of this case are controverted, but, viewing the evidence most favorably to Miller, they may be summarized as follows. On July 21, 1989, Miller purchased a Barko 775 feller buncher, which is a large machine used in the forestry industry to cut and stack trees. The machine is a tractor-type vehicle, with a large shear head attached to the front to cut down trees. It is designed to cut down trees, pick them up, and stack them; using it allows loggers to save considerable time over the more traditional logging approach of using chain saws and skidders. However, a feller buncher is an expensive piece of equipment, costing over $100,000.
Miller purchased his feller buncher from Kennemer Manufacturing, Inc., a local Colbert County company with which Miller had done business for over 20 years. The Barko 775 feller buncher was manufactured by Pettibone Corporation, through its Barko Hydraulics Division.[2] Many of the component parts of the machine were manufactured by other companies, including SauerSundstrand, Inc., which made the hydrostat[3] for the feller buncher. Miller called Owen Kennemer, the president of Kennemer Manufacturing, and ordered the feller buncher over the telephone. Kennemer delivered the machine to one of Miller's job sites the following week.
The Barko feller buncher was covered by two express warranties, one directly from Pettibone and another that purported to be from Barko Hydraulics and Sauer-Sundstrand. The Pettibone warranty (hereinafter "machine warranty") was a standard limited warranty that covered the entire feller buncher for defects in material and workmanship. In contrast, the Barko Service Bulletin, dated June 16, 1987, contained a warranty ("component warranty") covering the hydrostat manufactured by Sauer-Sundstrand. This warranty was given to purchasers of Pettibone machines containing Sauer-Sundstrand components. We note that there appears to have been some confusion in the circuit court as to which companyPettibone or Sauer-Sundstrandwas bound by this warranty, but Sauer-Sundstrand left the case by a summary judgment, and the parties do not argue here that Pettibone is not bound by the warranty. The record reflects that Barko, not Sauer-Sundstrand, wrote this warranty and that it did so for all of its customers buying its products containing Sauer-Sundstrand components.
On its very first day of operation, the feller buncher burst a hose, which Miller replaced himself. From then on, during the next 21 months, the feller buncher experienced a variety of problems that would put it out of service for days at a time. The Court of Civil Appeals described the problems with the feller buncher as follows:
693 So. 2d at 1367-68. The final failure of the hydrostat occurred on April 18, 1991. Miller claims to have telephoned Joe Woods, a Barko sales representative, about the final breakdown of the hydrostatic transmission. Although he was not allowed to testify as to *1375 the contents of the conversation, Miller made an offer of proof that Mr. Woods told him that Barko was not going to repair the machine again. Miller then took the hydrostat to Tupelo, Mississippi, where he had another company take the hydrostat apart and rebuild it. Miller then reattached the hydrostat to the feller buncher, and it again did not work. At that point, Miller retained an attorney, who sent Pettibone a notice of breach of warranty and, subsequently, a notice of revocation of acceptance. The feller buncher sat at Fowler's garage and welding shop in Red Bay, Alabama, for approximately four years during this litigation, and it was moved to Montgomery to a Barko dealership for inspection a week before the trial.
Miller filed an action against Pettibone, among others, alleging breach of express warranty, breach of implied warranties of merchantability and fitness for a particular purpose, revocation of acceptance of the feller buncher, negligent repair, and negligent failure to train the Kennemer personnel in repairing and maintaining the feller buncher. At the conclusion of Miller's case, Pettibone moved for a directed verdict on all of Miller's claims, which the trial court granted.
In reviewing a directed verdict, this Court must determine whether the nonmoving party presented substantial evidence in support of his position. Bailey v. Avera, 560 So. 2d 1038 (Ala.1990). Also, "this Court must view all evidence in a light most favorable to the nonmovant and must entertain such reasonable evidentiary inferences as the jury would be free to draw." Dial v. Dial, 603 So. 2d 1020 (Ala.1992) (citation omitted).
With that standard of review in mind, we initially note that we find no error in the Court of Civil Appeals' treatment of the issues concerning the implied warranty of merchantability, the implied warranty of fitness for a particular purpose, and negligence. On the revocation of acceptance issue, we agree with Judge Yates's opinion concurring in the result. Considering the facts of this case and the lack of proof that Kennemer Corporation was the agent of Pettibone, we agree that the plaintiff failed to present substantial evidence that Pettibone could be considered the "seller" of the equipment, so as to allow Miller to revoke his acceptance. Ala.Code 1975, § 7-2-608. Accordingly, we turn to the express warranty count.
It is uncontested that the machine warranty in this case had expired by the time of the April 18, 1991, breakdown; accordingly, as the Court of Civil Appeals correctly held, the feller buncher itself was not under warranty.[4] However, Barko Hydraulics, a division of Pettibone, made an express warranty to Miller, and to all of its customers, covering the hydrostat.[5] This component warranty provided *1376 coverage for the hydrostat for 24 months from the date of delivery. In this case, the final breakdown with the hydrostat occurred 21 months after delivery, which was within the period of the warranty. Therefore, we must address whether the scope of the component warranty includes the final breakdown of the hydrostat, and, if so, whether Miller is entitled to sue for breach of warranty or is limited to the repair and/or replacement of the hydrostat.
Pettibone argued, and the Court of Civil Appeals agreed, that Miller had failed to present substantial evidence of any "warrantable defect" in the hydrostat. Pettibone makes the same argument here. The component warranty says that the hydrostatic motor and pump "shall be warranted to the original owner" (emphasis added). It further states that "it shall be the option of Barko and/or Sundstrand to replace any failed units with genuine Sundstrand rebuilt units," and that "[a]ny charges for repairs to failed pumps and/or motors which are not warrantable as determined by Sundstrand will be borne by the customer" (emphasis added).
In Alabama, express warranties are governed by Ala.Code, 1975, § 7-2-313, which states:
Express warranties should be treated like any other type of contract and interpreted according to general contract principles. Williston on Sales, § 15-9 (4th ed.1974). In Alabama, the crux of all express warranty claims is that the goods did not conform to the warranty. Ala.Code 1975, § 7-2-313.
The component warranty here does not specifically state that it warrants against "defects" in the product: rather, it warrants the hydrostatic pumps and motors against "failure." The Court of Civil Appeals based its affirmance on the express warranty partly because it found that Miller did not provide substantial evidence of a "warrantable defect." In other words, the Court of Civil Appeals treated "warrantable defect" as if it was something that had to be found in every express warranty claim, without reference to the language of the warranty itself.
On the contrary, "[c]are must be taken to avoid elevating a defect in the goods to the status of an essential element that must be shown in order to recover for a breach of an express warranty." Ronald A. Anderson, Anderson on the Uniform Commercial Code, § 2-313:217 (3d ed.1995). If a company such as Pettibone wishes to warrant only defects in material and workmanship, then it may do so;[6] with such a warranty, the plaintiff would have to show that the product was defective in order to show that the goods did not conform to the warranty. Conversely, if a company wishes to warrant against all problems with its product, regardless of origin, then it may do that as well. See Anderson, supra, at § 2-313:205 ("A seller may make a warranty as broad as the seller requires and may go beyond the scope of those warranties that the law would imply").
In light of the broad language used in this particular component warranty, we can see no other interpretation than that it warrants against "failures" of the hydrostat. Miller met his prima facie burden of showing that the hydrostat failed on April 18, 1991, and other previous times, by presenting testimony of the operators of the feller buncher and of those who worked on the hydrostat after it had broken down. We agree that, if this warranty provided coverage for "defects in material and workmanship," then Pettibone would have had at least a plausible argument that Miller had not met his evidentiary burden; *1377 however, Miller did offer substantial evidence that the hydrostat failed on April 18. Accordingly, we hold that Miller met his evidentiary burden of proof concerning the warrantability of the failure of the hydrostat.
The next question is what remedy Miller may have for a breach of the component warranty. We agree with Pettibone that, when read in its entirety, the component warranty provided for a limited remedy of repair and replacement of parts. It sets out a procedure for making claims, whereby the customer must return the components to Barko, which will then give the dealer a new component and return the old one to Sauer-Sundstrand. Because we hold that the component warranty is limited to the repair and/or replacement of parts, Miller must provide substantial evidence that the limitations do not apply to him, in order to successfully maintain an action for breach of the component warranty.
To negate the limitations of the warranty, Miller argues that the component warranty has "failed of its essential purpose," under Ala.Code 1975, § 7-2-719(2), and that he therefore should be allowed to recover damages for breach of warranty. He cites Massey-Ferguson, Inc. v. Laird, 432 So. 2d 1259 (Ala.1983), for the proposition that, by presenting evidence of the repeated failures of the hydrostat, he has presented substantial evidence that the limited warranty failed of its essential purpose.
This Court stated the general rule regarding "failure of essential purpose" of a warranty in Ag-Chem Equipment Co. v. Limestone Farmers Co-op, Inc., 567 So. 2d 250, 252 (Ala.1990):
See also Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So. 2d 638 (1969). In Massey-Ferguson, 432 So. 2d 1259, the Court applied this statutory doctrine to a case involving a defective combine. The warranty in Massey-Ferguson was limited to the repair or replacement of defective parts. The combine had broken down on numerous occasions, and the warrantor attempted to repair it every time under the warranty at its expense. This Court held that the plaintiff had shown that the limited warranty failed of its essential purpose:
Massey-Ferguson, 432 So. 2d at 1264 (citations omitted).
Similarly, in this case, we must decide whether Miller presented substantial evidence that the limited warranty on the hydrostat had failed of its essential purpose. After reviewing the record, we hold that Miller has met his burden of proof. The testimony he provided traced the history of this feller buncher. Miller himself testified as to various problems with the hydrostat over the course of the 21 months. Miller presented the testimony of Harold Allison, one of the mechanics for Kennemer Manufacturing who repeatedly serviced the feller buncher, including the hydrostat. He also presented deposition testimony of the operator of the machine, John Devaney, who testified from a first-hand point of view as to every problem that had occurred with the machine and the hydrostat.
*1378 In short, the testimony presented by Miller concerning the multitude of problems with the feller buncher, and specifically with the hydrostat, established a prima facie case concerning the express warranty claim.[7] The fact that Pettibone repaired the hydrostatic system every time and "absorbed" the costs does not affect Miller's claim that the limited warranty had failed of its essential purpose. Massey-Ferguson, 432 So. 2d at 1264. As this Court stated in General Motors Corp. v. Earnest, 279 Ala. 299, 184 So. 2d 811 (1966):
279 Ala. at 302, 184 So. 2d at 814 (citations omitted).
Pettibone argues that our decisions in Ag-Chem Equipment, supra, and Belcher v. Versatile Farm Equip. Co., 443 So. 2d 912 (Ala. 1983), mandate a judgment in its favor.[8] Pettibone argues that those two cases stand for the proposition that an offer by a warrantor to fix the product under warranty, and/or the failure of the customer to bring the product in for repair, is always sufficient to defeat the "failure of essential purpose" claim. However, our reading of the cases shows us that neither case stands for this proposition urged by the defendant, but that in fact each of those cases supports Miller's contention that he should have been allowed to submit his express warranty claim to the jury.
The specific holding in Ag-Chem was that the warrantor had complied with the terms of its warranty by offering to rebuild the engine under warranty. The plaintiff in that case could not claim that the warranty had failed of its essential purpose, because he never gave the warrantor the chance to comply with the limited warranty. Similarly, our holding in Belcher focused on the language of the warranty itself, especially on the clause of the warranty that made the warranty void if the plaintiff altered or added equipment to the machine without authorization from the warrantor, and on the fact that the plaintiff had clearly violated this provision. The fact that the plaintiff in Belcher did not bring the tractor in for repair after the fifth breakdown was merely a fact to be considered in determining whether the warranty was breached.[9]
In both cases, our holdings focused on the fact that the plaintiff himself had breached the warranty in some way. In this case, *1379 Miller is claiming that Pettibone did not comply with its limited warranty because it did not properly fix the hydrostat within a reasonable time, thus causing the limited warranty to fail. Unlike the plaintiff in Ag-Chem, Miller did try to have his product fixed, on numerous occasions, and Pettibone had ample opportunities to repair the machine "within a reasonable time." Whether Pettibone did repair it "within a reasonable time," or could have done so had Miller submitted the hydrostat for repair, is a question of fact for the jury. Also, unlike the warranty in Belcher, this warranty contains no provision as to the conduct of the owner that could serve to put the owner in breach of the warranty.
To support his claim that the limited warranty failed of its essential purpose, Miller must prove that it would have been futile to again submit the hydrostat to Pettibone for repair; in other words, Miller must show that the warrantor failed to repair the machine within a reasonable time. See Ag-Chem, 567 So. 2d at 252. While Miller would be required to submit the machine for repair in order to comply with the limited warranty, and must prove that it would have been futile to do so again after the last failure,[10] he was not required, as a condition to recovering for breach of the express warranty, to submit the machine for repair after it would have been futile to do so.
Accordingly, we hold that the Court of Civil Appeals erred in affirming on the express warranty count, because Miller presented substantial evidence that Pettibone breached the warranty and that the limited warranty had failed of its essential purpose.
The circuit court sustained an objection on hearsay grounds to Miller's testifying to an out-of-court statement by Mr. Joe Woods, a regional sales manager for Pettibone. Miller made an offer of proof that he would have testified that Mr. Woods told him in a telephone conversation after the April 18 breakdown that Pettibone would no longer repair the hydrostat. The admissibility of the hearsay statement turns on whether Mr. Woods was an agent of the Pettibone Corporation, with the authority to speak for it on matters concerning the warranty. If so, then the statement would be admissible as the admission of a party opponent. See Volkswagen of America, Inc. v. Harrell, 431 So. 2d 156 (Ala. 1983). As proof of agency, Miller presented the circuit court with the following as an offer of proof:
However, after reviewing the record, we do not see that the circuit court ever ruled on the offer of proof. The parties argued about whether Mr. Woods was an agent with the authority to bind Pettibone, but then proceeded to argue other matters without obtaining any ruling on whether Mr. Woods was Pettibone's agent, or whether Mr. Miller would be allowed to testify as to the statement. Thus, there was no ruling upon which to predicate error.
In summary, we affirm the judgment of the Court of Civil Appeals as it relates to the claims based on revocation of acceptance, *1380 implied warranty of fitness for a particular purpose, implied warranty of merchantability, and negligence. However, we reverse the judgment as it relates to the express warranty count; in regard to that count, we remand the case to the circuit court.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur.
[1] This case was decided before the new "judgment as a matter of law" terminology was adopted in Rule 50, Ala.R.Civ.P.
[2] As far as we can tell from the record, Barko is simply an administrative division of Pettibone, and not a subsidiary; this is the reason Pettibone is bound by the warranty.
[3] For purposes of this opinion, and in accordance with the briefs of the parties, the term "hydrostat" includes the hydrostatic motor and the hydrostatic pump.
[4] The machine warranty stated the following:
"PETTIBONE will cause any part of a PETTIBONE product covered by this warranty which proves to be defective in material and workmanship within six (6) months or 1,000 hours, whichever occurs first from first day in service, provided first day service is not later than sixty (60) days from delivery to Distributor and/or original Buyer or other user, provided, however, that the terms of this warranty may be extended by Pettibone whenever equipment is purchased for stock or like purposes, to be replaced without charge with a new or repaired part, at Pettibone's election. PETTIBONE will also cause the labor to remove any such defective part and to install the new or repaired part to be provided without charge to the owner of said PETTIBONE product. The parts and labor to meet this warranty will be furnished by PETTIBONE distributor designated by PETTIBONE....
"PETTIBONE'S warranty does not cover:
"....
"3. Damage due to failure to maintain or use the PETTIBONE product or part according to manuals, schedules or good practice.
"....
"9. Engines, transmissions and components, including tires, batteries or other parts not manufactured by PETTIBONE. The warranty of the respective manufacturers of these components shall apply to said items unless said manufacturers make no warranty with respect to said items, in which event PETTIBONE'S warranty shall apply."
(Emphasis added.)
[5] The Barko component warranty stated:
"Sundstrand 36 series pumps and VII-160 motors shall be warranted to the original owner for a period of 24 months from in-service date of the machine. During the first 6 months or 1,000 hours, Barko/Sundstrand will determine if units are warrantable.... After the first 6 months or 1,000 hours, component warranty will be determined by Sundstrand.... It shall be the option of Barko and/or Sundstrand to replace any failed units with genuine Sundstrand rebuilt units. Such units may be replaced more than once during the warranty."
[6] The machine warranty from Pettibone provides a good example of such a warranty.
[7] See Lipham v. General Motors Corp., 665 So. 2d 190 (Ala. 1995) (holding that the plaintiffs had presented substantial evidence "from which a trier of fact could reasonably infer the existence of the problems complained of and the failure to remedy these problems despite [the plaintiffs'] affording the defendant several opportunities, over a four-month period, to do so through [the dealer]").
[8] In Ag-Chem, the warrantor told the plaintiff that it would rebuild the engine under warranty, but would not replace it. The plaintiff claimed that, because Ag-Chem refused to replace the engine, the limited warranty had failed its essential purpose and therefore he could pursue his breach of warranty claim for damages. This Court reversed the judgment based on the jury verdict in favor of the plaintiff, and held that because the warranty clearly stated that Ag-Chem could repair or replace the engine, then it had either option. 567 So. 2d at 252. Therefore, Ag-Chem's insistence on rebuilding the engine, rather than replacing it, was not a "refusal" to repair or replace that would cause the limited warranty to fail of its essential purpose.
In Belcher, we affirmed the judgment of the circuit court, sitting as the trier of fact, against the plaintiff on the breach of warranty count. The plaintiff, Belcher, had submitted the tractor he purchased to the warrantor for repairs four times, for a variety of problems. Finally, after the tractor had broken down a fifth time, Belcher refused to take the tractor in for repair, and continued to operate the tractor until he had rendered it inoperable. The court held that the circuit judge was not palpably wrong in deciding against the plaintiff on the breach of warranty count. 443 So. 2d at 916.
[9] Also, in Belcher the circuit judge, sitting as the trier of fact, determined from the facts of that case that the warranty had not failed of its essential purpose. In this present case, because we are dealing with a directed verdict, no facts have been determined; rather, we are to take all inferences in Miller's favor.
[10] Exactly when it becomes futile to submit a machine to a warrantor for repair is a fact question for the jury. The main point of this doctrine, after all, is to prevent a warrantor from limiting its customers solely to the remedy of repair after it has become obvious to reasonable persons that the warrantor cannot or will not repair the machine in compliance with the limited warranty. | March 14, 1997 |
cd038497-dcc2-4d85-b630-ac44f7555da7 | Breland v. Ford | 693 So. 2d 393 | 1931653 | Alabama | Alabama Supreme Court | 693 So. 2d 393 (1996)
James BRELAND
v.
Gene Kelvin FORD.
1931653.
Supreme Court of Alabama.
May 3, 1996.
Opinion Overruling Rehearing Application February 7, 1997.
*394 Jack M. Curtis, Department of Public Safety Legal Unit, Montgomery, for appellant.
Ronald O. Gaiser, Jr. of Gaiser and Associates, Birmingham, J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders, & Pettaway, P.C., Selma, Robert H. Turner, Marion, for appellee.
COOK, Justice.
James Breland, an Alabama State Trooper, appeals from a judgment entered on a jury verdict awarding $2,000,000 in compensatory damages to Gene Kelvin Ford in Ford's action against Breland seeking compensation for personal injuries Ford suffered during an arrest. We affirm.
Many of the facts pertinent to this case are in dispute. At the trial, however, testimony was offered during the presentation of Ford's case-in-chief suggesting that the following events occurred: On March 18, 1990, while 23-year-old Ford, a black male, was driving home from a neighborhood basketball park, he met Breland, a white male, who was on patrol in his automobile a short distance from Ford's home. When Breland's speed detection device indicated that Ford was exceeding the speed limit, he reversed directions and began following Ford. Ford saw Breland reverse directions, but did not realize that he was being pursued. Consequently, he proceeded homeward, turned into his driveway, and parked his car.
When Ford got out of his car, Breland struck him on the side of the head with his semi-automatic pistol. Ford ran into his house and retreated into one of the back rooms. Breland kicked in the door of the house and entered in pursuit, with a semiautomatic pistol in his hand.
Once inside, Breland shot Ford in the back as Ford was bending over to pick up one of his children. The force of the bullet, which passed through his body and exited from his stomach, caused Ford to fall to the floor. When Breland threatened to kill him if he moved and punctuated his threat with a racial slur, Ford arose from the floor and grappled with Breland for the pistol. Ford managed to get both hands on the pistol and grip it tightly. As Ford held the pistol in this manner, Breland fired a second time, narrowly missing Ford.[1]
Howard Brooks, one of Ford's neighbors, then entered the room. At trial, Brooks testified as follows:
Ford lost consciousness and was taken by paramedics to the Selma Medical Center. His wound ultimately resulted in the loss of one kidney and damage to his colon.
On July 6, 1990, Ford filed a complaint in the Perry County Circuit Court against six defendants, including Breland; the Alabama Department of Public Safety; Captain George Jones, district superintendent; Thomas Wells, director of the Department of Public Safety; Sergeant R.E. Calvin, Perry County supervisor; and Captain Thomas McGee, chief of the Alabama State Trooper Training Academy. Ford alleged deprivations of rights guaranteed by the Constitution of the United States, for which he sought redress pursuant to 42 U.S.C. § 1983. His complaint also contained state law claims, including negligence, wantonness, and assault and battery. He sought $1,000,000 in compensation for the loss of his kidney, "permanent nerve and tissue damage," pain and suffering, deprivation of liberty, and medical and legal expenses. Eventually, the cause was submitted to a jury on theories of negligence and wantonness.
After the jury awarded Ford $2,000,000 in compensatory damages, Breland moved for a JNOV, or, in the alternative, a new trial, on the grounds (1) that he "enjoy[ed] substantive immunity under state law and is entitled to a verdict ... as a matter of law"; (2) that the verdict was against the weight of the evidence; (3) that the damages awarded were excessive; and that (4) that "[c]ertain argument of counsel for the plaintiff was so grossly improper and ... prejudicial as to require a new trial." Breland's motion was overruled. He appealed, asserting these same grounds. In addition, he contends that Ford exercised his peremptory strikes to remove white veniremembers in a manner that violated constitutional principles of equal protection. We shall address these contentions in that order.
Breland contends that "he was engaged in the exercise of a discretionary function at the time [of] the incident [that] is the basis of this action," and, consequently, that "he enjoys ... good faith ... or substantive immunity" from suit. Brief of Appellant, at 12. Ford argues that Breland failed to preserve this issue for appellate review. More specifically, Ford insists, Breland failed to move for a directed verdict on the basis of immunity at any point in the trial. We agree with Ford's contention.
At the close of the plaintiff's case, the following colloquy occurred:
(Emphasis added.) At the close of all the evidence, the defense moved, again, for a directed verdict, stating:
(Emphasis added.) The trial court denied this motion also.
These emphasized excerpts clearly demonstrate that the only ground ever assigned for Breland's directed verdict motions was that Ford had failed to present substantial evidence, as required by Ala.Code 1975, § 12-21-12, of any misfeasance. In other words, the basis for Breland's motion "simply ... that [the] plaintiff has failed to prove [his] cause of action" (emphasis added)stands in stark contrast to the bases for the co-defendants' motions.
"`[A] general motion for a directed verdict... can only go to the case in its entirety, and not to individual subdivisions; and, to preserve individual issues, a motion must be made for a [verdict-directing] instruction on each of the individual issues.'" Cone Builders, Inc. v. Kulesus, 585 So. 2d 1284, 1290 (Ala.1991) (quoting Housing Authority of the City of Prichard v. Malloy, 341 So. 2d 708, 709 (Ala.1977)) (emphasis added). Because Breland's motion clearly failed to direct the court's attention to the issue of immunity either before or after he presented his evidencethat issue was not preserved for review. The trial court, therefore, properly denied a judgment not withstanding the verdict on that ground.
Breland contends that he is entitled to a new trial on the ground that the verdict was against the weight of the evidence. Breland's version of the events that transpired during his attempt to arrest Ford differs from the version set forth above, principally in regard to the circumstances surrounding the deployment and use of Breland's pistol. In particular, Breland contends that he verbally informed Ford that he was under arrest when Ford exited his vehicle, and that Ford physically resisted arrest before entering his house. Most significantly, he insists that Ford was accidentally shot in the stomach as Ford was attempting to wrest the pistol from Breland.
Breland concedes that "[i]f the jury ... had believed the testimony of [Ford] that ... Breland shot him in the back without cause or justification, then a finding of wantonness and an award of punitive damages would clearly have been proper." Brief of Appellant, at 19. He deems as dispositive, however, the fact that the jury awarded only compensatory damages. He presents, in effect, the following syllogism: Ford's version of events would support a finding of wantonness, and, consequently, an award of punitive damages; because the jury did not award punitive damages, it did not accept Ford's version of events, and, therefore, must have believed Breland; the conduct the jury must have found wrongful must, then, have consisted merely of his having his pistol in his hand at the time of the injury.
These contentions are based on a misunderstanding of the relationship between wantonness claims and punitive damages. "[T]here is no such thing as a `claim of punitive damages.'" Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909, 925 (Ala. 1994). "[A] claim of wantonness is ... a claim on which ... a trier of fact has the authority in its discretion to impose punitive damages. A finding of wantonness, sufficiently supported, can legally support either an award of compensatory damages or an award of both compensatory and punitive *397 damages." Id. at 925-26 (emphasis in original). Thus, the fact that the jury awarded no punitive damages does not, as Breland contends, demonstrate that the jury believed his version.
Although Breland's testimony contradicted Ford's testimony in a number of respects, the jury was free to assign more credibility to Ford's version of events. That another jury might have done otherwise is of no consequence. "If there is substantial evidence presented, [and there was in this case,] it is the function of the jury, as the finder of facts, to weigh conflicting evidence and inferences, and to determine the credibility of the witnesses." John R. Cowley & Bros., Inc. v. Brown, 569 So. 2d 375, 381 (Ala.1990). Moreover, "[j]ury verdicts are presumed to be correct." Pannell v. Reynolds, 655 So. 2d 935, 939 (Ala.1994). "This presumption is strengthened when the trial court denies a motion for a new trial." Id. "So strong is this presumption that this Court will not reverse a judgment based on a jury verdict unless, after allowing all reasonable presumptions of correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it is wrong." Delchamps, Inc. v. Larry, 613 So. 2d 1235, 1239 (Ala.1992). We cannot so conclude in this case.
Breland contends that the damages awarded were excessive. In support of this argument, he refers to the fact that in his complaint Ford sought only $1,000,000 and in his closing argument asked for $500,000. In returning a general verdict for $2,000,000 the jury must, Breland contends, have misunderstood the law or the facts of the case. We disagree with this contention.
It is well settled that a litigant seeking general damages for personal injuries, such as compensation for physical and emotional pain and suffering, may recover an amount in excess of the amount contained in the ad damnum clause of the complaint. Fuller v. Preferred Risk Life Ins. Co., 577 So. 2d 878 (Ala.1991); see also Ala.R.Civ.P. 54(c). Indeed, the full measure of such damages, the ascertainment of which is not subject to "fixed standard[s]" or formulae, Alabama Power Co. v. Mosley, 294 Ala. 394, 401, 318 So. 2d 260, 266 (1975), can be determined only by a jury after the trial of the cause. Consequently, "the amount of such award is left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise of that discretion." Id. "Our authority to disturb the verdict on the grounds of excessiveness is to be exercised with great caution. This is especially true where[, as here,] the trial court has refused a new trial or remittitur, thereby strengthening the presumption in favor of the jury's verdict." Stauffer Chemical Co. v. Buckalew, 456 So. 2d 778, 783-84 (Ala.1984). Considering the severity of the physical and emotional injuries involved in this case, we conclude that our authority does not reach so far as to disturb the verdict of this jury.
Breland claims that the trial court erred in denying his motion for new trial because, he argues, Ford's lawyer made a "grossly improper and highly prejudicial" argument to the jury. During the closing argument of Ford's counsel, the following colloquy occurred:
(Emphasis added.) Breland contends that the comment regarding state troopers "beat[ing] folks on the head," in the 1950's, and the reference to Rodney King necessitated a new trial. The trial court overruled his objection to the first comment and sustained his objection to the second. As to the second comment, Breland did not request curative jury instructions or a mistrial. However, he contends that it was so prejudicial as to be ineradicable.
It is well established that "control of the argument of counsel is largely within the discretion of the trial judge, who observes the demeanor of counsel and can determine whether a prejudicial atmosphere is created by such remarks." Yesterday's, Inc. v. Lamey, 492 So. 2d 988, 989 (Ala.1986). "Unless there is abuse of discretion by the trial court that results in substantial prejudice, this Court will not interfere with the trial court's ruling." Id. (Emphasis added.)
In addition, "[a]s a general rule, where a party's objection to improper argument is sustained, it is necessary for the party to request a corrective instruction from the trial court as a predicate for an appeal based on the prejudicial statement." Calvert & Marsh Coal Co. v. Pass, 393 So. 2d 955, 958 (Ala. 1981) (emphasis added). "An exception to the requirement of requesting a corrective instruction has been recognized where the argument is so grossly improper and highly prejudicial that it could not have been cured by the trial court." Id. "There is no hard and fast rule as to when a remark made by counsel in closing argument is deemed to be so grossly improper and highly prejudicial as to be ineradicable from the minds of the jurors, notwithstanding a timely admonition from the trial judge." Hill v. Sherwood, 488 So. 2d 1357, 1359 (Ala.1986). "Each case must be decided in light of the peculiar facts and circumstances involved and the atmosphere created in the trial of each particular case." Id. (Emphasis added.) For the following *399 reasons, we cannot conclude that either of the comments challenged by Breland warrants our interference with the trial court's rulings.
First, the most obvious import of Ford's "1950's" argument was merely that persons connected with governments or with law enforcement have, of late, been held accountable for their improper conduct. Any subtle allusion to racial conflict was blunted by the fact that the examples used, such as the removal of the Governor and the President, were indisputably race-neutral. Second, as Breland's counsel conceded in his argument to the trial court, he had allowed Ford to develop that theme for some time before objecting. Third, the most obvious import of his "Rodney King" argument was that Ford did not have the benefit of a videotape of the incident.
As we pointed out above in this opinion, the trial judge was in a better position than we are to weigh the effects of these remarks on the overall conduct of the trial. Yesterday's, supra. Considering these remarks within the entire context of the proceedings, we are unable to conclude that either, or both, of them worked "substantial prejudice," see id. 492 So. 2d at 989, so as to require a reversal of the judgment.
In selecting the jury for this case, Ford used 9 of his 10 peremptory challenges to remove white veniremembers from the jury panel; this resulted in a jury composed of 10 black jurors and 2 white jurors. Before the jury was empaneled and sworn, Breland contested the composition of the jury on the ground that the selection process violated constitutional equal protection guarantees. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). After Ford explained his strikes on the record, the trial court denied Breland's "Batson motion" and the jury was empaneled.
Breland now contends that Ford's explanations as to why he struck jurors No. 26, No. 59, and No. 66 were merely pretextual. These explanations were as follows:
(Emphasis added.)
The taking of notes by jurors is a practice having both proponents and critics. Silas, Write it Down? Jurors' Note Taking Debated, 70 A.B.A.J. 35, April 1984 (noting that as of 1979, "[f]ive states prohibited" the practice). Opposition is often predicated on the ground "that the juror who has taken the most notes may unduly influence other jurors during deliberation." Id. Another objection to the practice is that as a result, "`jurors may place too much emphasis on a point that may not be important.'" Id. Although Alabama does not prohibit jurors from taking notes, Glover v. State, 347 So. 2d 592 (Ala. Crim.App.1977), the fact that the practice is prohibited in some states, and is discretionary with the trial court in other states, is sufficient to sustain a peremptory strike on that ground. As to veniremember No. 26, therefore, we cannot conclude that Ford's explanation was a sham or a pretext for racial discrimination.
We reach a similar conclusion as to Ford's explanation for his challenge to veniremember No. 59. Burlington Northern R.R. v. Whitt, 575 So. 2d 1011 (Ala.1990), cert. denied, 499 U.S. 948, 111 S. Ct. 1415, 113 L. Ed. 2d 468 (1991), involved a contention "that the trial court erred to reversal by permitting the plaintiff to inquire on voir dire *400 whether any member of the venire was an insurance adjuster." Id. at 1017. In holding that the question was valid, this Court explained:
575 So. 2d at 1018. The "past or present occupational experiences" of veniremember No. 59 were a subject of valid inquiry, particularly as to their potential to affect his view of the proper amount of compensation or other damages for Ford's injuries. We cannot, therefore, conclude that the challenge of veniremember No. 59 on the ground that he might be influenced by his occupational expertise in evaluating claims was a sham or pretext for racial discrimination.
Finally, the sufficiency of Ford's explanation for striking veniremember No. 66, who was a client of Ford's counsel, requires no protracted discussion. The explanation was clearly race-neutral. For these reasons, the trial court did not err in overruling Breland's "Batson "motion.
There being no grounds for reversing of the trial court's judgment, it is affirmed.
AFFIRMED.
ALMON, SHORES, KENNEDY, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
MADDOX, Justice (dissenting).
The appellant, James Breland, an Alabama state trooper, appeals from a judgment entered on a jury verdict awarding $2,000,000 in compensatory damages. He claims that he was entitled to a new trial on the grounds (1) that he enjoyed substantive immunity under state law and therefore was entitled to a judgment as a matter of law; (2) that the verdict was against the weight of the evidence; (3) that the damages awarded were excessive; and (4) that "[c]ertain argument of counsel for the plaintiff was so grossly improper and ... prejudicial as to require a new trial."
I believe that grounds (1) and (4) of Breland's motion have merit; therefore, I must respectfully dissent.
Although I realize, as the majority states, that "many of the facts pertinent to this case are in dispute," and that a jury question was presented, it appears to me that many of the facts surrounding the events that gave rise to this action are not included in the majority opinion. Therefore, in support of my dissenting opinion, I include facts not contained in the majority opinion that I believe are pertinent in this case.
The plaintiff, Gene Kelvin Ford, was traveling at 82 miles an hour (Defendant's Exhibit 7) when Officer Breland began pursuit. Ford failed to stop, and the pursuit ended at Ford's residence. Much of this incident occurred during the night hours, according to testimony by the witnesses for Ford. Officer Breland testified that Ford resisted arrest and ran into his residence and that he followed Ford and a struggle ensued. There are no witnesses as to what happened between the time that Officer Breland began pursuit and the time leading up to the shooting. At approximately 8:00 p.m. Ford was shot in his residence; after being shot, he was rushed to a hospital, and around 10:00 p.m. a blood sample was taken from Ford; that sample evidenced a blood alcohol content of .132%.[3] Ford contends that he was *401 shot in the back at a distance of approximately 15 feet. However, Dr. Clyde Cox, who initially treated Ford, testified that the bullet entered Ford through the abdomen and exited the back. A forensic firearms expert testified that there were powder burns on the front of the sweater Ford was wearing during the incident; which indicates that the gun could have been no more than 24 inches away from Ford's abdomen when Ford was shot.
I first address Breland's claim that he enjoyed substantive immunity under state law and is therefore entitled to a judgment as a matter of law. The majority does not address this claim, but instead agrees with Ford's contention that Breland failed to move for a directed verdict on the basis of immunity at any point in the trial.
I have read the record as it pertains to this issue, and I interpret what was done and said differently than does the majority. The majority elects to leave out a portion of the colloquy that I believe sustains my view that Breland raised the claim of substantive immunity in his motions for a directed verdict. Although the majority sets out a portion of the colloquy between the trial judge and counsel relating to this issue, and indicates that portions of it are omitted, I am setting out the entire colloquy, to give the reader a better understanding of the reason for my disagreement:
(R. 90-92; emphasis added.)
(R. 240.)
The majority emphasizes portions of the colloquy that it says supports its view, and then it states:
I believe that a fair reading of the full colloquy shows that the issue of Breland's immunity was called to the attention of the trial court at the proper times. Furthermore, the majority's statement that the attention of the trial court was not called to the immunity issue "either before or after" Breland presented his evidence seems to be incorrect. (R. 90-91.)
The record shows: (1) that the defendants called the defense of immunity to the attention of the court in their answer (R. 26); and (2) that the plaintiff then amended his complaint in order to counter (R. 31). Quoted above are the defendant's motions for directed verdict, one made after the close of the plaintiff's evidence, and one made at the close of all the evidence as required under Rule 50(b), Ala.R.Civ.P.
In addition, at the close of the plaintiff's case, the trial judge treated the motion of counsel for the Department of Public Safety (referred to in those portions of the record quoted above as DEFENSE COUNSEL I), and the motion of counsel for Trooper Breland (referred to in those portions of the record quoted above as DEFENSE COUNSEL II), as one motion, stating: "Okay. Your motion is granted except as to the defendant Breland." (Emphasis added.) Under Alabama law, "[a] specific ground is not required and a general objection will suffice if the ground `is so manifest that the court and counsel cannot fail to understand it.'" Rule 46, Ala.R.Civ.P.; Holt v. State Farm Mut. Auto. Ins. Co., 507 So. 2d 388 (Ala.1986).
Based on the foregoing, I cannot agree with the majority that Breland did not raise the issue of substantive immunity. Taylor v. Shoemaker, 605 So. 2d 828 (Ala.1992); Barnes v. Dale, 530 So. 2d 770 (Ala.1988) (a defense of qualified immunity made by a motion for summary judgment preserved the issue for appellate review, even if a motion for directed verdict was not made at the close of all the evidence).
I now address that portion of the majority opinion that holds that the comments made by the plaintiff's counsel in closing arguments to the jury were not prejudicial. I cannot agree with that conclusion. I set out the argument again, and the specific objection that was made at the time about the argument, to show why I believe the argument was highly improper:
(R. 259-62; emphasis added.)
This case involves alleged interracial violence, and when a case involves interracial violence the risk of improper influence on the jury is great and the chance that comments will be eradicated from the minds of the jury is small. Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986). Consequently, a trial judge in this kind of case should make every effort to ensure that comments like those presented in this case are not made. The remarks of counsel in this case were intended to evoke racial prejudice and never should have been allowed.
I fully realize that the trial judge has discretion to determine whether a particular comment or remark is prejudicial; however, "the appellate courts of this state scrutinize very carefully the injection of any issue, by argument or otherwise, that is calculated to *404 create in the minds of the jury ineradicable bias or prejudice that factorially motivates a verdict." Donald v. Matheny, 276 Ala. 52, 57, 158 So. 2d 909 (1963). Additionally, "[t]his Court has frequently held [that] an appeal to race prejudice constitutes a most serious breach of the privilege of argument to the jury, and such appeals have met with frequent condemnation by this Court." Loeb v. Webster, 213 Ala. 99, 102, 104 So. 25, 27 (1925). See also, Stallworth v. Holt, 534 So. 2d 1063 (Ala.1988) (remarks by counsel commenting on the wealth of the defendants held improper); McLemore v. International Union, etc., 264 Ala. 538, 88 So. 2d 170 (1956) (counsel's remarks to the jury ruled to be grossly improper and beyond eradication by the trial court); Brotherhood of Painters, Decorators & Paperhangers of America v. Trimm, 207 Ala. 587, 93 So. 533 (1922) (statement by counsel that defendant was a nonresident ruled highly improper); Thomas v. Posey, 15 Ala.App. 419, 73 So. 747 (1916) (comments to the jury by counsel concerning the race of the parties held highly improper); Davis v. Common Council of Alexander City, 137 Ala. 206, 33 So. 863 (1903) (argument of counsel ruled not in evidence and not legally competent or admissible as evidence). In fact, the law in the area of prejudicial remarks is that while there must normally be an objection by counsel or a motion to exclude and a ruling by the trial court in order to preserve an improper argument of counsel as a ground for new trial and for a review on appeal, there is an exception where it can be shown that counsel's remarks were so grossly improper and highly prejudicial as to be beyond corrective action by the trial court. Patrick v. Femco Southeast, Inc., 590 So. 2d 259 (Ala.1991); Hill v. Sherwood, 488 So. 2d 1357 (Ala.1986); Alabama Power Co. v. Henderson, 342 So. 2d 323 (Ala.1977). Here, the trial judge's attention was sufficiently called to the improper argument; he understood the objection, and he overruled it.
Although I realize that this is a civil case rather than a criminal action, I note that it is well established by the American Bar Association Standards for Criminal Justice and by caselaw from other jurisdictions that a lawyer should not use arguments calculated to inflame the passions or prejudices of the jury. Remarks that rely on racial, religious, or ethnic prejudice wrongfully introduce elements of irrelevance and irrationality into the trial and should never be made in a court of justice. "Prosecutor's Appeal to Prejudice," 70 A.L.R. 4th 664, 670 (1989); Jackson v. Chicago Transit Authority, 133 Ill.App.2d 529, 273 N.E.2d 748 (1971); Kornegay v. State, 174 Ga.App. 279, 329 S.E.2d 601 (1985); ABA Standards for Criminal Justice, § 3-5.8(c) (1982).
I recognize, of course, that "[t]here is no hard and fast rule as to when a remark made by counsel in closing argument is deemed to be so grossly improper and highly prejudicial as to be ineradicable from the minds of the jurors, notwithstanding a timely admonition from the trial judge,"[4] and that "[e]ach case must be decided in light of the peculiar facts and circumstances involved, and the atmosphere created, in the trial of each particular case."[5] The circumstances surrounding the trial of this case were such that an appeal to racial prejudice would have been especially prejudicial to the defendant. Therefore, I must dissent on the grounds that the comments made by the plaintiff's attorney in closing arguments were so grossly improper that they were beyond eradication by the trial judge.
HOOPER, C.J., concurs.
COOK, Justice.
On May 3, 1996, when this Court issued its original opinion, Justice Maddox issued a dissent, which was joined by Chief Justice Hooper. Justice Maddox, in that dissenting opinion, specifically disagreed with the holding in Part IV. Today, Chief Justice Hooper also writes a dissent, specifically directed to Part IV. These dissents suggest that Trooper Breland should be granted a new trial because, it is asserted, plaintiff's counsel made prejudicial and racially inflammatory references in his closing argument to the *405 jury. It is readily apparent, upon an examination of counsel's argument, that the words used, fairly and reasonably construed, and the thoughts conveyed are related to, and suggest circumstances relating to, alleged abuse of authority, rather than to an appeal, veiled or otherwise, to race. Consequently, we deem it expedient to address specifically the objections common to the two dissents.
Both dissents quote, and consider objectionable, that portion of Ford's closing argument we addressed in Part IV of our opinion on original submission. Although we have already fully set forth that excerpt in Part IV, we shall repeat it here and parse it, segment by segment, to illustrate why none of this argument appeals to racial passion, as the dissenting Justices propose:
Segment One, by the force of its terms, suggests that law enforcement officials tend to side with one another against opposition, and that testimony of law enforcement officers was "[i]n the 50's" always and inherently more credible than conflicting testimony of a witness not in law enforcement. Segment One clearly makes no implication to race, but rather is grounded on a suggestion of the closeness of law enforcement personnel and the persuasive influence of the testimony of a law enforcement officer to the jury. Whether this argument was objectionable on other grounds will not be further addressed. We examined in Part IV of our original opinion the necessity of an appropriate objection.
Segment Two refers to the late President Richard Nixon, who was forced to resign his office as a result of the break-in of the Watergate building and the subsequent coverup. The resultant scandal involved no racial issues. Instead, as is commonly known, the keynote phrase of the Watergate scandal was abuse of power. Thus, the argument contained in Segment Two must be understood as a reference not to racial passion, but to abuse of power.
Similarly, Segment Eight refers to former Alabama Governor Harold Guy Hunt, who was removed from office pursuant to his conviction for violating Ala.Code 1975, § 36-25-5(a), which, at the time of his conviction, stated: "No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law." (Emphasis added.) See Ex parte Hunt, 642 So. 2d 1060 (Ala.1994). Governor Hunt's conviction and removal from office involved no racial issues. Instead, as is apparent *406 from the face of § 36-25-5(a), the essence of the offense is abuse of power. Thus, the essence of the argument contained in Segment Eight is not an appeal to racial prejudice, but to abuse of power.
Segment Three refers to the recently publicized practices of one-time FBI Director J. Edgar Hoover, who allegedly used his position to harass a broad cross-section of the population. Thus, Ford's reference to Hoover can reasonably be construed not as an appeal based on race, but as an allusion to abuse of law enforcement power.
Of a similar import was the argument contained in Segment Four, which refers to the trial and conviction of a male state trooper for the murder of a female state trooper to whom he was engaged to be married. See Duncan v. State, 575 So. 2d 1198 (Ala.Crim. App.1990), cert. denied, 575 So. 2d 1208 (Ala. 1991), on return to remand, 612 So. 2d 1304 (Ala.Crim.App.1992) (conviction reversed and cause remanded). The case was devoid of racial overtones; therefore, Ford's reference to it was, again, to remind the jury of its responsibility to recognize and rectify abuses of law enforcement power. To this end, of course, was Segment Nine offered, which exhorted the jury to say: "This day in our community, law enforcement [will] not run roughshod over our citizens."
Segments Five, Six and Seven all refer to the Rodney King incident. Though King is black, as is Mr. Ford, the fact that both are members of the same ethnic group, standing alone, does not implicate a race-based appeal in the argument. Additionally, the trial court sustained the objection to Ford's counsel's reference to the King case. Indeed, taking these segments as an integrated whole impresses the listener not with the fact of King's ethnicity, but the fact that a video recording was made of the beating King received. More specifically, in Segment Five counsel said: "Since the 50's you have seen state troopers beat folks...." (Emphasis added.) If any doubt existed as to the point of the argument in Segments Five and Six, it was dispelled in Segment Seven, in which he stated: "[Ford] just didn't have no videotape. If [Ford] had a videotape, you would have seen it for yourself." (Emphasis added.)
For these reasons, we conclude that the argument was not an appeal to racial prejudice or passion and was not improper, as the dissenting Justices propose. There being no reason to disturb the original holding in this case, the application for rehearing is overruled. This extension shall not be construed as a substantial modification of the original opinion for purposes of filing a second application for rehearing. See Ala.R.App.P. 40.
OPINION EXTENDED; APPLICATION OVERRULED.
ALMON, SHORES, KENNEDY, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent, each with opinion.
HOOPER, Chief Justice (dissenting).
The evidence does not support the jury verdict. A substantial injustice will occur if this Court allows the jury's verdict of $2,000,000 to stand. Gene Ford alleges that he was assaulted and shot in the back by State Trooper James Breland, without justification. The only evidence to support this claim is the plaintiff's own disputed and self-serving testimony.
State Trooper Breland's speed-detection device recorded Ford speeding, and Trooper Breland pursued Ford. Breland testified that he attempted to arrest Ford, but that Ford fought him; that he struck Ford during the struggle; that Ford then ran into his trailer, and that Breland pursued him there; that he and Ford fought on the couch in the front of Ford's trailer; that Ford grabbed the barrel of Breland's pistol and that the pistol then fired and Ford was shot in the stomach.
Ford claims that he got out of his car and that Breland struck him with his pistol, without provocation; that he ran into the back of his trailer; and that Breland shot him in the back as he was bending over to pick up one of his children.
Dr. Clyde Cox, the physician who treated Ford, testified that the bullet that struck Ford entered his abdomen and exited his back. Further, there was gunpowder residue *407 on the front of Ford's sweater where he was struck by a bullet and gunpowder around the crotch area of his pants where a bullet had passed between his legs.
Laura Chevlin, an employee of the Department of Forensic Sciences, testified that a blood sample taken from the plaintiff after the shooting revealed a blood alcohol level of.132%. Ford claims that he had not been drinking that evening. The physical evidence clearly supports Breland's testimony and contradicts Ford's claims. The jury could not reasonably have ruled in Ford's favor.
Further, during closing argument counsel for the plaintiff made prejudicial and racially inflammatory statements that should have resulted in a mistrial:
(R. 259-62.)
Plaintiff's counsel was clearly trying to inflame the jury by making racially charged references. Plaintiff's counsel stated: "Since the 50's, you have seen state troopers beat folks on the headthat's why it won't work anymore." This remark was a reference to police brutality toward blacks and civil rights activists during the 60's. The trial judge overruled defense counsel's objection to this remark. Plaintiff's counsel then referred to Rodney King. The trial judge sustained defense counsel's objection, but failed to instruct the jury to disregard the remark or make any attempt to prevent prejudice to the trial. The next remark of plaintiff's counsel was: "Kelvin just didn't have no videotape." The trial judge overruled defense counsel's objection to this remark. Plaintiff's counsel was clearly referring to the Rodney King case, out of Los Angeles, California, a case in which a black man was beaten by white police officers. The police beating of Rodney King was captured on videotape, and the video of the beating received great publicity. Plaintiff's counsel was implying that the same kind of police brutality took place in this case, only without a video of the event. These remarks were designed to inflame the passions of the jury by making references to police brutality toward blacks; counsel was trying to say that the actions of others in totally unrelated cases demonstrated that the defendant in this case was guilty of racially motivated police brutality.
"This Court has frequently held [that] an appeal to race prejudice constitutes a most serious breach of the privilege of argument to the jury, and such appeals have met with frequent condemnation by this court." Loeb v. Webster, 213 Ala. 99, 102, 104 So. 25, 27 (1925). An appeal to racial prejudice is often an appeal to a jury's fears. Such was the case in this trial. Plaintiff's counsel brought up other incidents of police brutality to try to inflame the emotions of the black jurors so they would render a verdict for the plaintiff. The reason given by plaintiff's counsel for a plaintiff's verdict was to guard against even greater racism happening in the future. Plaintiff's counsel presented Trooper Breland as a symbol of all the racist injustice against blacks, past and future, and suggested that it was, therefore, the jury's duty to return a verdict for the plaintiff.
In order to support a motion for a new trial, based on a claim of improper arguments, a party does not have to demonstrate that a party's inflaming remarks actually influenced the jury's verdict. "The test of vitiating influence is not that it did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered." Roan v. State, 225 Ala. 428, 435, 143 So. 454, 460 (1932). The remarks by plaintiff's counsel were designed to improperly influence the jury's decision. The jury could not properly consider racial incidents that had no relation to this case and that had occurred at different times over a period of 30 or 40 years. The inflammatory nature of these comments is self-evident.
This Court held in McLemore v. International Union, 264 Ala. 538, 88 So. 2d 170 (1956), that certain remarks by the plaintiff's counsel tending to inflame racial passions created an ineradicable prejudice and, therefore, that the trial court had properly granted a new trial:
264 Ala. at 544, 88 So. 2d at 174-75.
The trial court made no attempt to eradicate the harm caused by the racially inflammatory *409 remarks in this case. However, even if the trial judge had made such an attempt, a new trial would have been required. The jury heard the remarks of the plaintiff's counsel, and those remarks ineradicably tainted the trial as a result. The legal system must maintain the appearance of justice as well as the substance of justice. The trial judge failed to uphold the appearance of justice, by allowing a party to make racially inflammatory remarks, by not attempting to eradicate their effect, and by not granting a new trial upon the defendant's motion. For all these reasons, I would grant the application for rehearing and would reverse the order of the trial court denying the defendant's motion for a new trial.
MADDOX, Justice (dissenting).
In my dissent of May 3, 1996, on original deliverance, I said the following about the closing argument:
693 So. 2d at 404.
The majority, on rehearing, has extended the opinion, and in the words of the extended opinion, has "repeat[ed] ... and parse[ed] [counsel's argument], segment by segment, to illustrate why none of this argument appeals to racial passion, as the dissenting Justices propose."
My views on the prejudicial effect of the argument are not changed, and I question whether the majority should engage in a laboratory analysis of it, as it does in the extended opinion, especially in view of the principle of law that "we ... must consider the argument as it appears in the record devoid of counsel's intentions in connection therewith." Allison v. Acton-Etheridge Coal Co., 289 Ala. 443, 448, 268 So. 2d 725, 730 (1972).
[1] While Ford was thus gripping the sides of the pistol, the semi-automatic mechanism would not operate, Breland testified, and, consequently, the pistol would not continue to fire.
[2] This reference to Rodney King is an apparent reference to the black motorist stopped and beaten by police officers in Los Angeles, California. That beating incident was recorded on videotape and was given much coverage in the news media. It occurred in 1991.
[3] This test indicates that Ford was legally intoxicated at 10:00 p.m., which is approximately 2 hours after Officer Breland entered Ford's home. Despite this scientific evidence, Ford testified that he only consumed one beer the night of the shooting.
[4] Hill v. Sherwood, 488 So. 2d 1357, 1359 (Ala. 1986).
[5] Id. | February 7, 1997 |
b3069155-8752-4060-ba78-39608b738a8f | Evans v. Waddell | 689 So. 2d 23 | 1951356 | Alabama | Alabama Supreme Court | 689 So. 2d 23 (1997)
Charlie P. EVANS, Jr., et al.
v.
John Emory WADDELL, executor of the estate of Virginia Espy Evans, deceased, et al.
1951356.
Supreme Court of Alabama.
January 31, 1997.
*25 William L. Utsey of Utsey, Christopher & Newton, Butler, for Appellants.
Ron Storey, Dothan; James R. Shaw of Huie, Fernambucq & Stewart, Birmingham; William L. Lee III of Lee & McInish, Dothan; and Robert H. Brogden, Ozark, for Appellees.
BUTTS, Justice.
This appeal involves a will contest and numerous ancillary tort claims. Because of the numerous parties involved and the somewhat confusing nature of their relationships, we have greatly condensed our discussion of the factual background of this case.
Virginia Espy Evans ("Virginia") died of cancer on September 24, 1991. She had executed a will on September 12, 1991, and her attorney, John Emory Waddell, submitted the will to the Dale Probate Court for probate on October 1, 1991. On March 31, 1992, Charlie Evans, Jr. ("Charlie"), Virginia's husband's son by another woman; Lori Evans, Charlie's wife; and their three children filed a complaint in the Dale Circuit Court that contested the validity of the will.[1] The complaint also made several tort claims. It was filed against Virginia's estate; Waddell, as executor of the estate; Waddell, individually; Georgia Helen Smith ("Georgia"), Virginia's daughter and Charlie's adoptive mother (who was also Charlie's half-sister); and several fictitiously named defendants. Charlie and his family also filed in the probate court a claim against Virginia's estate.
Thereafter, on October 7, 1993, the complaint was amended to add as plaintiffs James Smith, Georgia's former husband, and Irene Clevenger Glover, Virginia's former employee/companion, and to allege additional claims. It also added as defendants Ann Helms, who was Waddell's secretary and a notary public, and other fictitiously named persons. As amended, the complaint made the following claims:
Counts I, X, and XVIIa will contest by Charlie, James Smith, and Glover against Virginia's estate, Waddell, Georgia, and Helms, alleging that the will was not validly executed;
Counts II, XI, and XVIIIa will contest by Charlie, James Smith, and Glover against Virginia's estate, Waddell, Georgia, and Helms, alleging the use of undue influence;
Counts III, XIII, and XXa breach of fiduciary duty claim by Charlie, James Smith, and Glover against Virginia's estate, Waddell, Georgia, and Helms;
Count IVa conversion claim by Charlie against Virginia's estate, Waddell, and Georgia, regarding a property deed;
Count Va claim by Charlie against Virginia's estate, Waddell, and Georgia, alleging a wrongful ouster and trespass to land;
*26 Count VIa conversion-of-chattel claim by Charlie against Virginia's estate, Waddell, and Georgia, regarding cattle;
Count VIIan intentional-infliction-of-emotional-distress ("tort of outrage") claim by Charlie and his wife and children against Waddell, Georgia, and several fictitiously named defendants;
Count VIIIa claim by Charlie and his wife and children alleging a tortious interference with a family relationship, against Waddell, Georgia, and several fictitiously named defendants;
Counts IX, XII, and XIXa "promissory estoppel" claim by Charlie, James Smith, and Glover against Virginia's estate, Waddell, Georgia, and Helms;
Count XIVa fraud claim by James Smith against Waddell and Georgia;
Count XVa conspiracy-to-commit-fraud claim by James Smith against Waddell, Georgia, and Helms;
Count XVIan outrage claim by James Smith against Waddell, Georgia, and Helms.
The defendants did not answer the original complaint, but instead moved to dismiss. The plaintiffs began discovery efforts, but the circuit court temporarily stayed discovery. The defendants petitioned this Court for a writ of mandamus, seeking dismissal of the action; the petition was denied on November 18, 1992. This Court also denied the defendants' motion to reconsider its denial of the writ. The parties, primarily the defendants, filed numerous motions and briefs, so entangling the circuit court in paperwork that while months and years passed, the litigation barely proceeded. On December 6, 1995, the trial court entered a summary judgment in favor of the defendants on all counts. In response, the plaintiffs, on January 3, 1996, filed a "Motion to Reconsider Order Granting Summary Judgment." The circuit court did not rule on that motion within 90 days, and the plaintiffs appealed on May 10, 1996.
There are several issues raised on appeal: (1) was the appeal timely filed; (2) did the complaint filed on March 31, 1992, sufficiently meet the requirements of Ala.Code 1975, § 43-8-199, so as to invoke the jurisdiction of the circuit court regarding the will contest claims; and (3) was the summary judgment proper on all counts?
The defendants argue that the plaintiffs' appeal was not timely and should be dismissed. They point out that the appeal was not filed within 42 days of December 6, 1995, the date of the summary judgment on all counts. It was filed on May 10, 1996, which was 155 days after the date of the judgment. The defendants further argue that the plaintiffs' motion for the trial court to "reconsider" the summary judgment was not a proper Rule 59(e), Ala.R.Civ.P., motion to "alter, amend, or vacate" the judgment. Thus, they contend that the running of the plaintiffs' 42 days for filing a notice of appeal was not tolled by the filing of the motion to reconsider, and that the appeal was, therefore, untimely.
In response, the plaintiffs contend that what they called their motion is not controlling. Citing Jenkins v. Landmark Chevrolet, Inc., 575 So. 2d 1157 (Ala.Civ.App.1991), they argue that although their January 3, 1996, "motion to reconsider" was not styled as a "motion to alter, amend, or vacate the judgment," it nevertheless should be treated as a Rule 59(e) motion. Thus, they argue that that motion suspended the running of the time for filing an appealuntil the 90th day, when it would have been denied by operation of law. See Rule 59.1, Ala.R.Civ.P. The appeal was filed within 42 days of that 90th day.
We agree that the plaintiffs' January 3, 1996, motion was properly to be treated as a Rule 59(e) motion and that its filing tolled the running of the plaintiffs' time for filing a notice of appeal from the summary judgment. The substance of a motion and not its style determines what kind of motion it is. Cannon v. State Farm Mut. Automobile Ins. Co., 590 So. 2d 191 (Ala.1991). While the Alabama Rules of Civil Procedure do not speak of a "motion to reconsider," this Court has repeatedly construed motions so styled, when they have been filed within 30 days *27 after the entry of a final judgment, to be Rule 59(e) motions. Waters v. J.I. Case Co., 548 So. 2d 454 (Ala.1989); McAlister v. Deatherage, 523 So. 2d 387 (Ala.1988); Papastefan v. B & L Constr. Co., 356 So. 2d 158 (Ala.1978). The January 3, 1996, motion filed by the plaintiffs was denied by operation of law after 90 days, see Rule 59.1 and Ex parte Alfa Mut. General Ins. Co., 684 So. 2d 1281 (Ala.1996). The plaintiffs appealed within 42 days of that denial. The appeal was timely.
The defendants argued to the circuit court, and now argue to this Court, that the circuit court did not have the statutorily conferred jurisdiction to entertain the plaintiffs' will contest claims because, they say, the plaintiffs' March 31, 1992, complaint failed to allege every pleading requirement of § 43-8-199. Specifically, they contend that the complaint failed to allege that the plaintiffs had an "interest" in Virginia's will and was, thus, insufficient to "quicken" the jurisdiction of the circuit court.
Under § 43-8-199, a will contest in a circuit court must be properly filed within six months following probate of the will. In addition to arguing that the complaint was deficient, the defendants say that the plaintiffs' amendment to the complaint attempting to cure the deficiency was not filed until more than six months after the probate of the will. Thus, the defendants argue that the amendment did not cure the deficient complaint, that the circuit court's jurisdiction under § 43-8-199 was never invoked, that the will contest counts should have been dismissed, and the trial court, therefore, correctly entered the summary judgment on those counts.
In response, the plaintiffs first argue that their complaint contained all the material averments required by § 43-8-199. Alternatively, they argue that if any deficiency existed, it was cured by a later amendment alleging that Charlie was a major beneficiary of a will executed before the will being contested. The plaintiffs argue that the amendment to the complaint was proper under Rule 15, Ala.R.Civ.P., and that it did not cause the defendants to suffer any actual prejudice or serve to delay the action. They summarize their argument on this issue by stating that the complaint "was filed within the [period allowed by the] statute of limitations, with the proper court, stated the requisites of the applicable statute and was properly served on [the adverse] parties."
Section 43-8-199 states:
Because a circuit court's jurisdiction over a will contest is statutorily conferred and limited, a proceeding initiated under § 43-8-199 must comply exactly with the requirements of that statute. Boshell v. Lay, 596 So. 2d 581 (Ala.1992); Marshall v. Vreeland, 571 So. 2d 1037 (Ala.1990); Simpson v. Jones, 460 So. 2d 1282 (Ala.1984); Ex parte Pearson, 241 Ala. 467, 3 So. 2d 5 (1941). Thus, we must determine if, as the defendants argue, the plaintiffs' complaint failed to allege that the plaintiffs had an "interest" in the will filed for probate on October 1, 1991. In Braasch v. Worthington, 191 Ala. 210, 213, 67 So. 1003, 1004 (1915), construing the predecessor of § 43-8-199, this Court explained, regarding the words "any person interested in any will," that "the `interest' intended is not literally an interest in the will itself, but in its operation." (Emphasis original.) The Court further explained: "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." 191 Ala. at 213-14, 67 So. at 1004.
We conclude that the plaintiffs' original complaint, which was filed within the six-month limitations period following the date the will was filed for probate, did not allege that any of the plaintiffs had an "interest" in the will being contested. The original March *28 31, 1992, complaint identified the familial and business relationships between the parties and set out the plaintiffs' allegations against the defendants, but it did not describe how each, or any, of the plaintiffs had a legal interest in the will, as is clearly required by § 43-8-199. Simpson, supra.
Following the defendants' filing of their motion to dismiss the complaint on that basis, the plaintiffs attempted to cure the deficiency by alleging in a June 9, 1992, amendment that Charlie was a major beneficiary of a will executed by Virginia before the will the plaintiffs now contest. However, we conclude that the amendment failed to cure the deficiency in the original complaint because the amendment was not filed within six months after the will being contested was admitted to probate. In sum, the March 31, 1992, complaint, although timely, was deficient in relation to § 43-8-199. The critical June 9, 1992, amendment attempting to cure the deficiency was untimely. Thus, the plaintiffs never filed a proper will contest complaint within six months of the date the will was admitted to probate, and the relevant statutory limitations period expired. See Bullen v. Brown, 535 So. 2d 76 (Ala.1988).
Accordingly, the jurisdiction of the circuit court was never invoked as to the will contest counts of the plaintiffs' complaint. Thus, the summary judgment was proper as to counts I, II, X, XI, XVII, and XVIII.
The plaintiffs' complaint contained several counts that do not specifically contest Virginia's will. The circuit court's jurisdiction over these counts is not at issue, and we address the merits of each, in turn.
Counts III, XIII, and XX alleged that Waddell breached his fiduciary duty as executor of Virginia's estate, which the plaintiffs claim is also owed to them, by having several rental properties razed. The plaintiffs alleged that the razing of the structures was contrary to the best interests of the estate. They argue that the summary judgment was improper as to this claim.
We first note that the plaintiffs have not specifically referred this Court to evidence in the record that supports this claim. Further, given that no plaintiff is a beneficiary of Virginia's will filed for probate on October 1, 1991,[2] we conclude that Waddell did not owe the plaintiffs a fiduciary duty in relation to the estate subject to the terms of that will. Accordingly, the summary judgment was proper as to these counts.
Count IV of the plaintiffs' complaint alleged the following: that in July 1984, Virginia issued a deed to Charlie conveying certain real property (a pecan grove of approximately 34 acres); that Charlie accepted the conveyance and kept a copy of the notarized deed in his possession; that the original deed was kept by Virginia, strictly for safekeeping purposes; that Charlie assumed possession of the real property; that after Virginia's death Charlie informed Waddell of the deed and conveyance and delivered to Waddell his copy of the deed; and that Waddell, on behalf of himself, Georgia, and Virginia's estate, wrongfully exercised dominion over the deed and informed Charlie that the deed had been voided and that the property was not Charlie's. Charlie alleged that the defendants' actions constitute wrongful conversion of the deed.
Charlie acknowledges that Virginia never physically delivered the original deed to him and that "delivery" of a deed cannot normally occur after the death of the grantor. However, he argues that the law should recognize that delivery can be made by the executor of the grantor's estate, when the deed is found by the executor in the grantor's safe deposit box. Citing Duncan v. Johnson, 338 So. 2d 1243 (Ala.1976), and other cases, Charlie also argues that the law does not require actual delivery of a deed from a grantor to the grantee, but that "delivery" is to be determined by whether the acts of the parties to the deed manifest an intent by the grantor to divest himself of title to the property. Thus, *29 he argues that Virginia's act of giving him the copy of the deed and telling him he could have the property[3] constituted a valid delivery of title to him and that the trial court erred in entering the summary judgment as to this claim.
In response, the defendants simply argue that delivery of a deed from a grantor to the grantee is an absolute necessity for a transfer of title to real property, that such delivery cannot occur after the death of the grantor, and that Virginia never delivered the deed to Charlie. They contend that the trial court correctly entered the summary judgment on this claim.
Black's Law Dictionary (6th ed. 1990) defines a "deed" as "[a] conveyance of realty; a writing signed by grantor, whereby title to realty is transferred from one to another." Generally, a deed is ineffective to transfer title if the deed is not delivered from the grantor to the grantee. West v. West, 620 So. 2d 640 (Ala.1993); Williams v. Mobil Oil Exploration & Producing Southeast, Inc., 457 So. 2d 962 (Ala.1984). Moreover, there is no delivery where a deed was not given to the grantee during the grantor's lifetime, but was given to a third party for safekeeping. Chandler v. Chandler, 409 So. 2d 780 (Ala.1981). However, Alabama law recognizes that the question of whether a deed has been "delivered" is a question of fact, to be ascertained from the surrounding circumstances and the actions of the parties. West, supra; Duncan, supra; and Chandler, supra. Physical delivery of the deed from the grantor to the grantee is not necessary where the facts clearly indicate that the intention of the grantor, by words or acts or both, was to transfer title of the property to the grantee. West, supra; Boohaker v. Brashier, 428 So. 2d 627 (Ala.1983); Chandler, supra; Duncan, supra; and Williams v. Dent, 233 Ala. 109, 170 So. 202 (1936).
Having reviewed Charlie's affidavit, along with the affidavits of his wife Lori, Irene Glover, Viola Culver, Miriam Prince, Espy Andrews, and Sam Chandler,[4] we conclude that questions of material fact exist as to whether Virginia "delivered" the July 1984 deed to Charlie by her words and/or acts and that Charlie supported his conversion claim with substantial evidence requiring determination by a jury. The trial court erred in entering the summary judgment as to this count.
Count V of the complaint alleges that on October 1, 1991, and continuing afterwards, by force and intimidation the defendants Waddell, Georgia, and Virginia's estate wrongfully exercised dominion over real property which, the plaintiffs say, was conveyed to Charlie by Virginia. Charlie claims that the defendants are trespassing on real property owned by him, that the defendants have ousted him from the property, and that he is continually suffering damage as the result of his being deprived of the possession of this land, which he says is income-producing land. He supports this claim with the same evidence offered in support of the conversion claim discussed above.
In response, the defendants argue that the summary judgment was proper on the conversion claim. They argue that Charlie has no ownership interest in the real property because, they say, there was no delivery of the deed from Virginia to Charlie.
We have already determined that a question of fact exists as to whether Virginia "delivered" the deed to Charlie in order to transfer title of the land to him. Viewing the same affidavit evidence noted above, we conclude that Charlie supported his ouster and trespass claims with substantial evidence, and that questions of fact remain as to whether the defendants committed, and continue to commit, trespass and a wrongful ouster. The trial court erred in entering the summary judgment as to these claims.
Count VI alleges that Waddell, Georgia, and Virginia's estate wrongfully converted by sale, in defiance of Charlie's vested ownership rights, approximately 150 head of cross-bred Angus cattle that Charlie says belong to him. Charlie contends that Virginia gave the cattle to him as payment for services rendered in tending and developing the herd. Charlie supports this claim with his own affidavit, the affidavit of his wife, and that of Irene Glover.
In response, the defendants do not argue that Charlie does not own the cattle, but instead contend that the complaint fails to allege how Charlie obtained an ownership interest in the cattle. They next argue that Charlie's statement that Virginia gave him the cattle shortly before her death would not be admissible because of Alabama's "Dead Man's Statute," Ala.Code 1975, § 12-21-163. Finally, they argue that a transfer of the cattle, as Charlie describes it, violates the requirements for a testamentary disposition of property under Ala.Code 1975, § 43-8-131.
First, we note that § 43-8-131, which requires that a testamentary disposition be in writing signed by the testator and at least two witnesses, does not apply in relation to this claim. Charlie does not contend that Virginia gave him the cattle as a gift or through any will. Rather, he claims that Virginia gave him the cattle in payment for services rendered to her. The payment of compensation for services rendered has no relation to the requirements of § 43-8-131.
Although we conclude that the "Dead Man's Statute," § 12-21-163, would prohibit any testimony by Charlie and his wife with regard to any statements made by Virginia about the alleged transfer of cattle to Charlie, the statute does not affect the affidavit of Irene Glover, who is not an interested party as to the conversion claim. Thus, we hold that Charlie supported this claim with substantial evidence and that questions of material fact remain. The trial court erred in entering the summary judgment as to this claim.
Count VII alleged that Waddell and/or Georgia induced one or more other unknown persons (fictitiously named defendants John Doe 1 through John Doe 11) to contact the Dale County Department of Human Resources ("DHR") and, the plaintiffs say, to falsely accuse Charlie and Lori of heinous treatment of their three children. The complaint alleged that an investigation by DHR revealed no deficiencies, but that Charlie, Lori, and the children have suffered extreme emotional distress as the result of what they say was intentional wrongful conduct by these defendants. In Alabama, the actionable intentional infliction of emotional distress is termed the "tort of outrage." See American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980).
In response, these defendants simply argue that Ala.Code 1975, § 26-14-9, provides absolute and total civil liability for one who reports child neglect or abuse. That section states:
In Brown v. Pound, 585 So. 2d 885 (Ala.1991), this Court held that § 26-14-9 provides absolute immunity from liability for reporting suspected child abuse, except as to claims alleging damage not related to the reporting of suspected child abuse. We conclude that the plaintiffs' claim of intentional infliction of emotional distress relates directly to these defendants' alleged reporting of suspected child abuse. Accordingly, the immunity provided by § 26-14-9 applies. The summary judgment was proper as to this claim.
Count VIII alleged that Waddell and/or Georgia tortiously interfered with the plaintiffs' intrafamily relationships by inducing one or more other unknown persons (the fictitiously named defendants) to contact the *31 Dale County DHR and, the plaintiffs say, to falsely accuse Charlie and Lori of heinous treatment of their three children. We conclude that this claim simply restates the allegations of the outrage claim in Count VII. For the same reason discussed above, the summary judgment was proper as to this claim.
Counts IX, XII, and XIX of the plaintiffs' complaint allege that Virginia made promises to Charlie, James Smith, and Irene Glover that, they say, Waddell, Georgia, Helms, and Virginia's estate caused to be "estopped." They characterize the counts as stating a cause of action they term "promissory estoppel." In essence, the plaintiffs allege that these defendants unduly influenced Virginia so that promises they say were made to them by Virginia were not incorporated into the will she executed on September 12, 1991.
In response, the defendants argue that the doctrine of promissory estoppel is not a cause of action. The defendants also contend that the plaintiffs' claims are barred by the Statute of Frauds (Ala.Code 1975, § 8-9-2(5)), are not admissible because of the "Dead Man's Statute," § 12-21-163; do not meet the § 43-8-131 requirements for a testamentary devise; and are defeated by the § 43-8-199 six-month statute of limitations for contesting a will.
We conclude that these counts are simply an attempt by the plaintiffs to recategorize the undue influence claims the plaintiffs made in their will contest counts. For the reasons noted in section III above, the summary judgment was proper as to these counts.
Count XIV of the complaint alleges that Georgia and Waddell fraudulently misrepresented to James Smith that the September 12, 1991, will was Virginia's true and lawful will. Count XV alleges that Georgia, Waddell, and Helms conspired with John Doe 12 through John Doe 14 to do the same. Smith alleged in both counts that the misrepresentations induced him to agree to a $113,000 divorce settlement with Georgia on October 7, 1991. Smith contends that the September 12 will is invalid and that Virginia's true will is a prior will that is now lost. He argues that in that earlier will he was named as the executor and as a beneficiary, and he contends that because, he says, he was falsely led to believe that the September 12 will was Virginia's true will, he gave up his right to receive any money from Virginia's estate and accepted a settlement in his divorce action with Georgia rather than litigate the divorce. Smith alleged that he suffered emotional distress upon learning that he would not inherit from Virginia's September 12 will and that because of that emotional distress he agreed to certain provisions in the divorce settlement that he otherwise would not have agreed to.
Smith requested several kinds of relief from the circuit court, including the following: an order withdrawing the September 12, 1991, will from probate and declaring that it was not Virginia's last true will; an order declaring that Virginia's prior will was her true last will; an order nullifying certain provisions in the divorce judgment based on the agreement between him and Georgia; and compensatory and punitive damages.
In response, the defendants argue that Smith's fraud counts are an improper attempt to collaterally attack a final judgment of divorce rendered by the Houston Circuit Court. They also argue that the counts constitute an improper will contest, that Smith has no standing to contest the September 12, 1991, will, and that this "will contest" was not filed within the six months allowed by § 43-8-199.
We agree with the defendants that Smith's fraud counts are in actuality a will contest, in that they seek invalidation of Virginia's September 12 will filed for probate on October 1, 1991. The counts were included in the plaintiffs' amended complaint filed on October 7, 1993, and, thus, were not timely filed. Moreover, inasmuch as these fraud counts, filed in the Dale Circuit Court, seek to modify provisions of the divorce judgment entered in the Houston Circuit Court, it is an improper collateral attack on that final judgment. See Greenhill v. Bear Creek. Development Authority, 519 So. 2d 938 (Ala.1988); Ex parte Edmondson, 451 So. 2d 290 (Ala. *32 1984). A Rule 60(b), Ala.R.Civ.P., motion filed in the Houston Circuit Court would be the proper means for Smith to attempt to challenge the terms of his divorce judgment. We conclude that the summary judgment was proper as to these counts.
In count XVI James Smith alleged that Georgia, Waddell, and Helms intentionally caused him to suffer severe emotional distress and that their conduct was so extreme as to be intolerable in a civilized society. In this second count alleging the tort of outrage, Smith alleges conduct different from that alleged in count VII, as to which Charlie, Lori, and their children are the plaintiffs. Smith has alleged the same conduct on the part of Georgia, Waddell, and Helms as was alleged in counts XIV and XV, discussed above, i.e., that these defendants led him to erroneously believe that the September 12 will was Virginia's true will and that he would have no interest in her estate. He alleged that, based on this erroneous belief, he agreed to a divorce settlement that he otherwise would not have agreed to. Smith requested several kinds of relief from the circuit court, including the following: an order withdrawing the September 12, 1991, will from probate and declaring that it was not Virginia's true last will; an order declaring that Virginia's prior will was her true last will; an order nullifying certain provisions in the divorce judgment based on the agreement between him and Georgia; and compensatory and punitive damages.
In response, the defendants make the same arguments they made in relation to counts XIV and XV. They argue that the count is an improper attempt to collaterally attack a final judgment of divorce, that it is an attempt to contest Virginia's will beyond the limitations period allowed by § 43-8-199, and that Smith lacks standing to contest the September 12 will.
We have concluded that the summary judgment was proper on the plaintiffs' will contest claims, and we agree with the defendants' arguments that this count is another improper attempt to contest Virginia's September 12 will. We must conclude also that Smith has not shown that the will is invalid. Accordingly, Smith has not presented substantial evidence of any conduct on the part of Georgia and Waddell that is wrongful, let alone conduct rising to the level needed to support a claim of outrage. See Anderton v. Gentry, 577 So. 2d 1261 (Ala.1991); American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980). The summary judgment was proper as to this count.
We affirm the summary judgment as to all counts of the plaintiffs' complaint except counts IV (conversion of a property deed), V (ouster and trespass to land), and VI (conversion of chattel). We reverse as to those three counts and remand this cause for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur.
[1] The plaintiffs alleged that the will submitted for probate on October 1, 1991, was invalid and, thus, not Virginia's true last will and testament. They alleged that Virginia's true last will was a prior will that had been lost. They sought to prove the content of the lost will by the testimony of James Francis, who allegedly had read it and could recall its content.
[2] Because, as explained above, the circuit court's jurisdiction was never invoked as to the plaintiffs' will contest claims, the plaintiffs' argument that they are beneficiaries of Virginia's estate under a previous "lost" will is not properly before this Court.
[3] The deed contained a covenant, purporting to run with the land, providing that any attempted conveyance of the property by Charlie would cause the property to revert to the grantee or her heirs.
[4] Taken as a whole, the affidavits represent substantial evidence that Virginia and Charlie had a loving relationship, that Virginia treated him as if he were her son, that she wished him to have a life estate in this real estate, which she called "the farm," and that she believed she had given him such an interest. | January 31, 1997 |
dfba1fa6-e7bb-462b-bcdd-6a7c451907f1 | West v. City of Mobile | 689 So. 2d 14 | 1950692, 1951158 | Alabama | Alabama Supreme Court | 689 So. 2d 14 (1997)
Bobby Earl WEST
v.
CITY OF MOBILE, et al.
1950692, 1951158.
Supreme Court of Alabama.
January 17, 1997.
*15 Lee L. Hale, Mobile, for appellant.
Cooper C. Thurber and M. Warren Butler of Lyons, Pipes & Cook, P.C., Mobile, for Port City Wrecker Service & Garage, Inc.
William H. Brigham, Mobile, for the City of Mobile.
MADDOX, Justice.
The plaintiff, Bobby Earl West, has filed two appeals from a summary judgment for the defendants, the City of Mobile and Port City Wrecker Service and Garage (Port City). We initially dismiss appeal No. 1951158 because it is a mere duplicate of appeal No. 1950692. West contends that a contract between Mobile and Port City violated the Competitive Bid Act, § 41-16-20, Ala.Code 1975. The trial judge held that West's action was barred by the doctrine of res judicata. We agree; therefore, we affirm.
In 1979, Mobile and Port City entered into a contract whereby Port City agreed to provide wrecker service and storage for certain vehicles. The contract requires Port City to provide tow-away services for any vehicles parked or abandoned in Mobile's tow-away zones, any vehicles seized or impounded by the city police department, or any vehicles the police find necessary to move. Port City does not receive payment from Mobile for these services. Instead, under the contract it receives money from the owners of the vehicles it tows. The contract was never publicly bid on.
In 1995, West sued Mobile and Port City, alleging that the wrecker service contract violated the Competitive Bid Act and § 22 of the Alabama Constitution. Port City and Mobile moved for a summary judgment. Both claimed the action was barred by the doctrine of res judicata because Port City and Mobile had defended a similar lawsuit that questioned the validity of the same contract. See Mobile Wrecker Owners Association, Inc. v. City of Mobile, 461 So. 2d 1303 (Ala.1984). In Mobile Wrecker Owners Association, the Association alleged that the contract between Port City and Mobile violated the Alabama Constitution and § 62 of the Mobile City Code. On appeal to this Court, the Association attempted to raise the issue whether the contract violated the Competitive *16 Bid Act. This Court refused to address the issue because it had not been raised at the trial level. In West's case, the trial court entered a summary judgment in favor of Port City and Mobile because it concluded that the doctrine of res judicata barred the action. West appealed.
In order to determine whether West's claims are barred by the doctrine of res judicata, we must examine the elements of res judicata. For the doctrine of res judicata to apply:
Hughes v. Martin, 533 So. 2d 188, 190 (Ala. 1988).
West contends that the doctrine of res judicata does not apply to this case because he is not the same party as Mobile Wrecker Owners Association and is not in privity with that Association. We disagree; we conclude that West is in privity with the Association. In Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So. 2d 764, 770 (Ala.1981), this Court stated:
Like the Mobile Wrecker Owners Association, West is questioning the validity of the contract between Mobile and Port City. As wrecker owners, the plaintiffs in both cases had an interest in the contract. West contends that the Association could not be a virtual representative because no evidence shows that the Association was a taxpayer. To have standing to bring an action under the Competitive Bid Act, the plaintiff must be a taxpayer. We conclude that the evidence demonstrates that the plaintiffs in Mobile Wrecker Owners Association had standing to bring an action under the Competitive Bid Act. In Mobile Wrecker Owners Association, the plaintiffs were described in their complaint as "citizens and taxpayers of the City of Mobile." 461 So. 2d at 1307. Therefore, they would have had standing to raise the issue of bid law violations. We find that the Association "is so closely aligned with [West's] interests as to be his virtual representative."
West also contends that the doctrine of res judicata does not apply because the cause of action in the two cases is not the same. He claims, because no bid law issues were raised in the first case, that the evidence is different. This Court has stated that if the elements of res judicata are met, then any issue that "could have been adjudicated in the prior action is barred from further litigation." Hughes v. Martin, 533 So. 2d 188, 190 (Ala.1988). Therefore, it is of no consequence that the bid law violation was not raised in the first case, because the Association could have raised the issue. West also contends that the contract in Mobile Wrecker Owners Association is not the same contract at issue in his case because the towing prices have increased. We find that the contract expressly allows readjustments of the prices in the contract; therefore, West's argument on this issue is also without merit. We find that the contract, in its essential parts, is the same.
We hold that West's claims are barred by the doctrine of res judicata; therefore, Port City and Mobile's summary judgment is due to be affirmed.
*17 1950692AFFIRMED.
1951158DISMISSED.
HOOPER, C.J., and SHORES, HOUSTON, INGRAM, and BUTTS, JJ., concur.
COOK, J., concurs in the result. | January 17, 1997 |
926b23b8-2245-42b3-9da7-d5b900444f3d | Halsey v. AB Chance Co. | 695 So. 2d 607 | 1950235 | Alabama | Alabama Supreme Court | 695 So. 2d 607 (1997)
Antoinette V. HALSEY, etc.
v.
A.B. CHANCE COMPANY.
1950235.
Supreme Court of Alabama.
March 14, 1997.
Rehearing Denied May 16, 1997.
Tom Dutton and Chris T. Hellums of Pittman, Hooks, Marsh, Dutton & Hollis, P.C., Birmingham, for appellant.
Samuel H. Franklin, Lee M. Hollis, and Madeline H. Haikala of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellee.
COOK, Justice.
Antoinette V. Halsey, as administratrix of the estate of her husband, Roderick M. Halsey, appeals from a summary judgment for the defendant A.B. Chance Company in this wrongful death action. Mrs. Halsey claims that Chance negligently or wantonly designed, manufactured, and sold the epoxiglas platform from which her husband, an Alabama Power Company lineman, fell. He died from injuries received in the fall. Mrs. Halsey also alleges in her complaint that Chance negligently or wantonly failed to warn her husband regarding the potential dangers of using a "keeper pin" to splice a chain. Mrs. Halsey seeks to impose on Chance liability under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). The trial court entered a summary judgment for Chance on all counts. We affirm the summary judgment as to the wantonness claims, but as to all other claims we reverse the summary judgment and remand.
*608 The evidence before the trial court when it entered the summary judgment, considered in the light most favorable to the plaintiff, the nonmoving party, indicates that the platform upon which Mr. Halsey was working gave way after Mr. Halsey, attempting to follow the instructions of his foreman, spliced the chain on the platform in order to extend the chain around a utility pole. The chain was used to secure the platform to the pole at a point over 50 feet above the ground. Mr. Halsey spliced the chain by inserting a padlock through the keeper pin, which was located at the end of the chain. The keeper pin later gave way or opened up while Mr. Halsey was working on the outer end of the platform, causing the platform and Mr. Halsey to fall.[1]
First, Mrs. Halsey claims that Chance is liable to her under the AEMLD. We have said:
Williamson v. Tyson Foods, Inc., 626 So. 2d 1261, 1263-64 (Ala.1993) (emphasis omitted). We have also said:
Sears, Roebuck and Co. v. Harris, 630 So. 2d 1018, 1027 (Ala.1993), cert. denied,511 U.S. 1128, 114 S. Ct. 2135, 128 L. Ed. 2d 865 (1994) (emphasis added). The question for the trial court, therefore, was whether a jury could find it foreseeable to Chance that someone would utilize the keeper pin as a load-bearing link when attempting to extend a chain. In entering the summary judgment, the trial court implicitly held that, as a matter of law, it was not foreseeable that someone would use the keeper pin as Mr. Halsey apparently did. We disagree.
Chance contended that Mr. Halsey misused the keeper pin and that it was not foreseeable to Chance that the keeper pin would be used in such a fashion. In opposition to the motion for summary judgment, however, the plaintiff offered the deposition testimony of an expert witness, Dr. Edward Karnes:
C.R. at 235-36. Dr. Karnes further testified:
C.R. 245-47. The plaintiff claims that this testimony constitutes substantial evidence requiring the trial court to submit to the jury her claim that Chance was liable under the AEMLD. We agree. In Sears, Roebuck, supra, we stated:
630 So. 2d 1018, 1028 (Ala.1993) (emphasis added). The expert testimony offered in opposition to the summary judgment motion constitutes substantial evidence that the misuse of the keeper pin, in this case, was foreseeable. Therefore, the plaintiff's AEMLD claim should have been submitted to the jury.
Mrs. Halsey also claims that Chance negligently or wantonly failed to warn Mr. Halsey of the dangers of using the keeper pin as a load-bearing device. Chance, in support of its motion for summary judgment, claimed that it manufactured extension *610 chains for use under the very circumstances of this case and that Mr. Halsey should have used one of those chains when he discovered that the platform chain was too short. Instead of using such a chain, however, Mr. Halsey used a padlock to extend the platform chain and hooked that padlock through the keeper pin instead of the last link of the chain. Chance contends that the deposition testimony of several Alabama Power Company linemen offered in support of the motion for summary judgment indicated that the use of a padlock was not accepted practice.
In opposition thereto, Mrs. Halsey points to the report based on Alabama Power Company's investigation of Mr. Halsey's accident, which contains the following statements:
C.R. at 262. This portion of the report seems to indicate that at least some linemen had used padlocks to splice chains. Chance claims that even if linemen were using padlocks, hooking one through the keeper pin created an open and obvious danger because, it says, anyone could see from observing the keeper pin that it was not a link in the chain and that it did not have the same strength as a link in the chain.
Dr. Karnes's deposition testimony indicates that because of the location of the keeper pin and the fact that it was of a color similar to that of the chain it was foreseeable that someone would mistake the pin for a load-bearing link. This testimony created a jury question as to whether the danger was open and obvious. Dr. Karnes testified as follows in his deposition:
C.R. at 306-08. He further testified:
C.R. at 249.
By presenting this testimony from her expert witness, Mrs. Halsey presented substantial evidence supporting her negligent-failure-to-warn claim and her negligent-design/manufacture claim; thus, those claims should have been submitted to the jury. We agree with Chance, however, that the record contains no substantial evidence of wantonness.
The summary judgment is affirmed as to the claims alleging wantonness; it is otherwise reversed and the cause is remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
ALMON, KENNEDY, and BUTTS, JJ., concur.
HOUSTON, J., concurs specially.
HOOPER, C.J., concurs in part and dissents in part.
MADDOX and SEE, JJ., dissent.
HOUSTON, Justice (concurring specially).
As the author of Purvis v. PPG Industries, Inc., 502 So. 2d 714 (Ala.1987); Entrekin v. Atlantic Richfield Co., 519 So. 2d 447 (Ala.1987); and Yarbrough v. Sears, Roebuck & Co., 628 So. 2d 478 (Ala.1993), which the defendant A.B. Chance Company relies on heavily in arguing that we should affirm the summary judgment, I conclude that those cases are distinguishable from the present case.
HOOPER, Chief Justice (concurring in part and dissenting in part).
I concur with that portion of the majority opinion that affirms as to the wantonness claims. As to the holdings on the other claims, I dissent. Mrs. Halsey did not present substantial evidence to support her claims alleging negligent design/manufacture and failure to warn.
The defendant A.B. Chance Company presented the testimony of several Alabama Power Company employees who were familiar with the proper use of this platform. David Dahlke, who was responsible for training linemen such as Mr. Halsey, stated that the proper method for extending the chain on a "hot line tool" would be to use the extension chain supplied by Chance. He stated that he deals with OSHA requirements and that a designed system such as the Chance platform must be used with the manufacturer's recommended devices. When asked if the padlock/keeper pin method Mr. Halsey used to extend the chain was a proper way to extend it, Dahlke responded: "Not only no, but hell no." (C.R.126-30.)
Chance sold extension chains for the very purpose for which Mr. Halsey used the keeper pin. Alabama Power had on hand between 50 and 100 extension chains made by various manufacturers; sixteen of them had been purchased from Chance. It was undisputed that these chains would have safely extended the chain of the platform from which Mr. Halsey fell. The keeper pin is clearly not a link in the chain. The keeper pin is not welded closed but has an open-ended eye connecting it to the chain. A chain link has no open end that a heavy weight, like the platform in this case, could pull open. On the day of Mr. Halsey's fall, Mickey Flowers, the crew leader, had offered to demonstrate for Mr. Halsey the proper use of the platform. Mr. Halsey refused, saying he had previously hung such platforms. When the chain Mr. Halsey was using could not reach around the pole, Flowers sent two lengths of chain and two Alabama *612 Power "X" padlocks up to Halsey.[2] Flowers did not give Mr. Halsey the authorized extension chains provided by Chance to Alabama Power. Chance also did not design, manufacture, or sell the padlocks given to Halsey. Instead of placing the padlocks into two links in the chains on the platform, Halsey placed the padlocks through the eyes of the keeper pins. Doyle Darby, a supervisor who was involved with Alabama Power's post-accident investigation, said that Mr. Halsey could have attached the padlocks to the last link of each chain where the keeper pins were attached, instead of to the keeper pins themselves. (C.R.278-79.)
According to one of Mrs. Halsey's experts, Dr. Paul Packman, the platform and pivot attachment fell from the pole because the padlocks pulled through the keeper pins, disconnecting the chains from the pole and allowing the platform and Mr. Halsey to fall. Dr. Packman said that the "accident probably would not have taken place if [Mr. Halsey] had not used the keeper pin as part of the connector." (C.R.181.)
Mr. Halsey's coworkers also testified. J.R. Walton testified that, based on the knowledge he had before the accident, he would not put a padlock into the keeper pin to extend a chain while on one of these platforms. He stated: "First thing, it's not a proper way to put a board up. That keeper pin, in looking at it, from my mind, would not hold the kind of weight you are looking at there.... It's not a solid link." (C.R.194.) He said a person could know that from simply looking at it.
Mickey Flowers, the crew leader, testified similarly about not putting a padlock through a keeper pin: "It's open on one end.... It could come out." (C.R.108-09) He said he knew that not because he had to be warned but because of "common sense." Hubert McBrayer stated that there was "no way" he would place a padlock in the eye of a keeper pin to extend a platform chain because he could tell from looking at the pin that it was too weak to hold. Five other coworkers agreed that it was obvious that a keeper pin could not hold the weight if it was being used to extend a platform chain, as Mr. Halsey was using the keeper pin in this case. A supervisor, Doyle Darby, testified that he could tell the keeper pin was insecure as a load-bearing device. Mr. Robert Homan, the general foreman at the project Mr. Halsey was working on, testified as to why the keeper pin was not adequate: "It had a point of separation.... [I]t had a gap in it." (C.R. 165.)
Dr. Packman explained that the only purpose of the keeper pin was its use as a safety device. Its purpose is to secure the chain in a slot on the pole; it keeps the chain from disengaging completely if the chain comes loose from the slot holding it on the pole. He also stated that Halsey misused the keeper pin.
The only evidence the majority relies upon to reverse the judgment of the trial court is the testimony of Mrs. Halsey's expert Dr. Edward Karnes. He gave his opinion of how he thought a layperson would have acted in the situation in which Mr. Halsey found himself. He stated:
(C.R.236.) He stated that "the foreseeability of a user splicing the chain is a given from A.B. Chance's perspective." The defendant presented the deposition testimony of several laypersons.
Karnes went on to address the issue of warning:
(C.R.306-08.)
The testimony of those who used these platforms and chains on a regular basis was uniform, and they were adamant in saying that the danger of using the keeper pin in the way Mr. Halsey used it was open and obvious. The trial judge was able to examine the physical evidence. Chance's appellate brief included a color photograph of the keeper pin. Mrs. Halsey's expert even admitted that Mr. Halsey misused the keeper pin. The "layperson" testimony of Mrs. Halsey's expert, Dr. Karnes, is not substantial evidence that should overcome Chance's properly supported summary judgment motion. There is no issue for the jury, because the testimony was undisputed that Mr. Halsey misused the product. The only question was whether it was reasonably foreseeable that a user would misuse the product in this way. The platform that fell was 18 years old. In all the time Chance had manufactured these platforms, there had never before been an accident in which someone had used the keeper pin as a load-bearing device. When I compare it to the evidence presented by Chance, I do not consider substantial the "layperson" testimony of a plaintiff's expert as to the similarity between the color of the keeper pin and the color of the chain.
Some might argue that the opinion of an "expert" should outweigh the opinions of several users of a product. Not necessarily so. Trial courts must carefully scrutinize the opinions of so-called experts to ensure that a jury does not hear what has in recent years come to be known as "junk science." It is that very presumptionthat "experts" know better than the average personthat makes "junk science" so dangerous. Peter W. Huber's book Galileo's Revenge: Junk Science in the Courtroom (1991), at pp. 2-3, gives an apt description of the junk science phenomenon:
The majority has based its reversal of this trial judge's summary judgment decision solely on one "expert" opinion. That opinion was applied to a question of common sense and experience as to the proper use of the platform involved in this case. It was an opinion that should hold no more weight than the testimony of the men who used that platform. The trial judge, who examined the keeper pin, apparently thought it was worthy of less weight. This Court should not substitute its judgment of the value of that opinion for that of the trial judge.
The plaintiff's expert says that Chance not only should have foreseen this obviously dangerous use, but also should have provided an on-product warning of some kind to prevent the kind of misuse Mr. Halsey made of the keeper pin. The number of misuses of any one product is perhaps infinite. A product that can perhaps be misused in the greatest variety of ways is the match. It can light a fire for grilling steaks, or it can light a bomb for demolishing a building and destroying hundreds of lives. Yet, so far as I know, no court ever has requiredand I hope never will requirea match manufacturer to place an on-product warning as to all the foreseeable misuses of a match. There is a limit as to what a manufacturer should be expected to warn users of, particularly when the warning applies to an obvious misuse of the product. In this case, the evidence is clear that using the keeper pin as a weight-bearing device was openly and obviously dangerous. The following questions come to mind: How could painting the keeper pin red have kept Mr. Halsey from misusing it? The platform was 18 years old. I do not know the age of *614 the extension chains. Would the red paint on a chain and keeper pin not wear off with several years of use? Would attaching the keeper pin by a wire not create another dangerthat of losing the keeper pin if the wire broke over time? Would on-product writing not wear out over time? Must a manufacturer warn an intended user of every conceivable dangerous misuse one might make of that manufacturer's product, no matter how obvious the danger is? I do not think so.
For these reasons, I must respectfully dissent from that portion of the opinion that reverses the summary judgment in favor of the defendant as to the claims alleging negligent design/manufacture and failure to warn.
MADDOX, Justice (dissenting).
I must respectfully dissent. I believe the summary judgment was proper because the evidence shows, as a matter of law, that Roderick Halsey's death was caused by his own negligence and that the defendants had no duty to warn or otherwise protect Mr. Halsey.
Contributory negligence as a defense to an AEMLD action may be found as a matter of law:
Hicks v. Commercial Union Ins. Co., 652 So. 2d 211, 219 (Ala.1994); see also, Uniroyal Goodrich Tire Co. v. Hall, 681 So. 2d 126 (Ala.1996); General Motors Corp. v. Saint, 646 So. 2d 564 (Ala.1994); Campbell v. Cutler Hammer, Inc., 646 So. 2d 573 (Ala.1994); and Gulledge v. Brown & Root, Inc., 598 So. 2d 1325 (Ala.1992).
I believe the defendant sufficiently established (1) that Mr. Halsey appreciated the danger associated with using the unauthorized extension;[3] and (2) that based upon that appreciation he was conscious of the danger that caused the accident at the moment the incident occurred. See Owens v. National Security of Alabama, Inc., 454 So. 2d 1387 (Ala.1984); Furgerson v. Dresser Industries, Inc., 438 So. 2d 732 (Ala.1983); Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119 (Ala.1978); Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 235 So. 2d 371 (1970). Consequently, I believe the trial court properly entered the summary judgment on the grounds that Mr. Halsey was contributorily negligent as a matter of law.
Furthermore, as I understand the evidence, it is uncontradicted that Mr. Halsey used a padlock and a "keeper pin" to extend a chain that was being used to hold on a pole a platform on which he was working.
It is uncontradicted that Alabama Power Company (Mr. Halsey's employer) and the *615 manufacturer, Chance, had policies providing that the only proper method for extending chains on platforms or pivot attachments was to use extension chains manufactured by Chance (or compatible extension chains manufactured by another company) and that Mr. Halsey used his own method of extending the chain. Even one of Mrs. Halsey's expert witnesses, Dr. Paul Packman, testified that "[t]he accident probably would not have taken place if Mr. Halsey had not used the keeper pin as part of the connector" to extend the platform. Five of Mr. Halsey's coworkers also agreed that it was obvious that the keeper pin could not hold the weight that would be placed upon it when it was used as part of a platform chain extension.
Although I recognize that a summary judgment is rarely appropriate in a negligence case, the facts and circumstances of this case convince me that the trial judge properly entered the summary judgment for the defendant based upon the defenses of contributory negligence and assumption of the risk.[4] I would affirm; therefore, I must respectfully dissent.
SEE, J., concurs.
[1] Neither party contests that Chance manufactured extension chains that were to be used when platform chains would not fit around utility poles. Nor is it contested that this accident would not have occurred had Mr. Halsey not used the keeper pin as a loadbearing device.
[2] Although the padlocks were not an acceptable device for extending the chains, the evidence was undisputed that the cause of the fall was the keeper pin and not the padlocks used by Alabama Power.
[3] My conclusion is based on the evidence presented by the defendant (a) that the only extension authorized by the manufacturer is the extension chain it produces or an equivalent extension chain produced by another manufacturer, (b) that Alabama Power Company's policy specifies that the only proper extension method was to use one of these chains, (c) that Alabama Power Company maintained 50 to 100 of the proper extensions, and (d) that before the accident Mr. Halsey's crew leader had offered to show him the correct way to extend the chains, but Halsey declined the demonstration.
[4] See Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132-33 (Ala.1976). | March 14, 1997 |
d89eaa5b-b65b-4b5e-8ae6-43355848ccb3 | American Cast Iron Pipe Co. v. Williams | 591 So. 2d 854 | 1900588 | Alabama | Alabama Supreme Court | 591 So. 2d 854 (1991)
AMERICAN CAST IRON PIPE COMPANY
v.
Joseph WILLIAMS III.
1900588.
Supreme Court of Alabama.
December 27, 1991.
*855 Robert G. Tate, F.A. Flowers III and Harri J. Haikala of Burr & Forman, Birmingham, for appellant.
Patrick K. Nakamura and Claudia H. Pearson of Longshore, Nakamura & Quinn, Birmingham, for appellee.
INGRAM, Justice.
Joseph Williams III sued American Cast Iron Pipe Company ("ACIPCO"), asserting a wrongful discharge claim[1] and, in addition, a retaliatory discharge claim under the Workmen's Compensation Act, § 25-5-11.1, Ala.Code 1975. For relief, Williams sought reinstatement to his job, back pay and fringe benefits, and punitive damages. In the alternative, Williams sought workmen's compensation benefits for his alleged permanent and total disability.
In his complaint, Williams alleged that while working within the line and scope of his employment he sustained injuries to his hands while operating a jackhammer and performing the other duties of his employment. *856 Williams further alleged that shortly after obtaining medical approval to return to work, but before actually returning to work, his employment with ACIPCO was terminated without just cause.
A jury returned a verdict for Williams and against ACIPCO on both the wrongful discharge claim and the retaliatory discharge claim. The jury awarded Williams $80,000 in compensatory damages and $100,000 in punitive damages. The trial court entered judgment on the jury's verdict and, in addition, reinstated Williams to a position with ACIPCO. ACIPCO appealed.
The first issue raised in this appeal is whether the trial court erred in charging the jury on the tort of bad faith. The second issue is whether the trial court erred in allowing an accountant, who was not offered as an expert witness, to testify as to Williams's damages.
Before reaching the issue whether the trial court improperly instructed the jury on the tort of bad faith, we must first examine Williams's argument that ACIPCO's objections to the trial court's jury instructions were not stated in a timely manner.
To be timely, an objection to the trial court's oral charge, with grounds for the objection, must be made before the jury retires to consider its verdict and must be stated with sufficient clarity or specificity to preserve the error. Rule 51, Ala.R.Civ. P.; McElmurry v. Uniroyal, Inc., 531 So. 2d 859 (Ala.1988). The purpose of stating grounds for objections is to give the trial court an adequate opportunity to correct the instructions and to avoid the waste of time and money from reversals that result from oversight, technical omissions, or remedial mistakes. Feazell v. Campbell, 358 So. 2d 1017 (Ala.1978).
The record reveals that following the trial court's instructions to the jury, but prior to the jury's retiring to consider its verdict, ACIPCO raised two exceptions to the jury instructions. One of the exceptions was predicated upon the trial court's having instructed the jury on the tort of bad faith. In overruling ACIPCO's exceptions, the trial court specifically noted that it was overruling ACIPCO's exception to the bad faith instruction.
After reviewing the colloquy that transpired between the trial court and counsel for ACIPCO following the trial court's instructing the jury, we find that ACIPCO's exception to the bad faith instruction was made in a timely manner. It is clear from the record that the exception was made prior to the jury's beginning its deliberations and was stated with sufficient clarity to present the trial court with the opportunity to correct its instructions.
In addressing the issue of whether the trial court erred in instructing the jury on the tort of bad faith, we note that it is the duty of the trial court to instruct the jurors fully and correctly on the applicable law of the case and to guide, direct, and assist them toward an intelligent understanding of the legal and factual issues involved in their search for truth. Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986). We have repeatedly held that each party is entitled to have proper instructions given the jury regarding the issues presented in the case. Id.
Furthermore, giving an incorrect or misleading instruction as to any theory of a case is reversible error. Nunn v. Whitworth, 545 So. 2d 766 (Ala.1989); Liberty Nat'l Life Ins. Co. v. Smith, 356 So. 2d 646 (Ala.1978). Where the record reveals that an erroneous charge was given to the jury, a new trial is required. McDowell v. Key, 557 So. 2d 1243 (Ala.1990); Beneficial Management Corp. v. Evans, 421 So. 2d 92 (Ala.1982).
As part of its instructions to the jury in this case, the trial court stated:
(Emphasis supplied.)
Although we agree that every contract does impose an obligation to act in good faith and to deal fairly (see, e.g., § 7-1-203, Ala.Code 1975, for the obligation imposed in the commercial context), we have consistently refused to extend to the area of general contract law the tort of bad faith that we have recognized in the context of insurance policy cases. Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala. 1986). So, while the employment contract in this case does contain an implied duty to act in good faith, it does not carry with it the duty imposed by law that we have found in the context of insurance cases. See Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983). Although the obligation to act in "good faith" arises as part of the contract in this case, its breach does not give rise to a bad-faith tort action. Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725 (Ala.1987). Therefore, we conclude that the trial court incorrectly instructed the jury by giving the bad faith charge.
Williams argues that even if this Court finds that the trial court improperly instructed the jury as to the tort of bad faith, the trial court's judgment is due to be affirmed because, he says, ACIPCO failed to demonstrate in its brief how it was harmed by the erroneous jury charge. However, we reject Williams's argument without reaching the question whether ACIPCO showed that the erroneous jury charge was injurious, because we find the trial court's instruction to be such a misstatement of the law of contracts applicable in this case as to constitute reversible error even without proof of harm. See Beneficial Management Corp. v. Evans, supra. We, therefore, conclude that the trial court erred to reversal by incorrectly charging the jury on the tort of bad faith.
Although our decision to reverse this case on the basis of the trial court's improper jury charge is dispositive of this appeal, we choose to address, in the interest of judicial economy, the second issue raised in this appeal.
The second issue concerns the trial court's allowing an accountant, who was not offered as an expert witness, to testify as to Williams's damages under the "voluminous records" exception to the best evidence rule. During the trial, Williams offered the testimony of Jack Truitt, a certified public accountant. The trial court, over ACIPCO's objection, allowed Truitt, who was offered as a lay witness, to testify as to the estimated wages Williams would have earned if he had remained at ACIPCO. Truitt was also allowed to give evidence of Williams's actual earnings during the period 1987-90. His testimony was that, according to his calculations, Williams suffered an actual monetary loss of $85,071.18.
ACIPCO argues that Truitt's testimony was improper because, it says, his opinion was based upon assumptions provided to him by Williams's counsel rather than on firsthand knowledge or on records that had been admitted into evidence. ACIPCO further asserts that Truitt's testimony was inadmissible because Williams's counsel did not pose any hypothetical questions to Truitt. Williams, however, argues that firsthand knowledge by Truitt or hypothetical questions to Truitt were not necessary, claiming that Truitt's testimony is admissible under the voluminous records exception to the best evidence rule.
The voluminous records exception to the best evidence rule applies when: (1) documents cannot be conveniently examined in court; (2) the fact to be proved is the general result of an examination of the whole collection; (3) the witness has examined the documents; and (4) the witness is skilled in such matters. Sovereign Camp, W.O.W. v. Hoomes, 219 Ala. 560, 122 So. 686 (1929). See also C. Gamble, McElroy's Alabama Evidence § 220.01 (4th ed. 1991). The reason for the exception is that any other course would cause great loss of time and would tend to confuse the jury. Sovereign Camp, W.O.W. v. Hoomes, supra.
Although Williams argues that Truitt's testimony was properly admitted *858 under the voluminous records exception, we disagree. After reviewing Truitt's testimony, we find that the requisites for the application of the voluminous records exception were not met in this case.
As support for the application of the voluminous records exception, Williams claims that Truitt's calculations were based on information produced by ACIPCO and supplied to Truitt by Williams's counsel. For example, Williams contends that Truitt, in making his calculations, relied on plaintiff's exhibit 7, which consists of numerous ACIPCO records. However, Truitt testified at trial that he had never reviewed plaintiff's exhibit 7.
Furthermore, Williams's counsel objected to ACIPCO's cross-examination of Truitt on the ground that Truitt was unfamiliar with the documents that supposedly form the basis of his alleged summary calculation. After the trial court overruled Williams's objection and ACIPCO's cross-examination of Truitt continued regarding plaintiff's exhibit 7, Truitt testified that he did not understand the documents upon which his alleged summary calculation was supposedly based.
It appears from the record that Truitt neither reviewed nor understood the documents that supposedly form the basis of his opinion. It also appears that Truitt did not summarize any documents, but based his testimony solely on assumptions given to him by Williams's counsel. Truitt admitted that he could not support his calculations by reference to the documents, and he admitted that, to his knowledge, the assumptions that Williams's counsel provided to him were based solely on counsel's speculation, not his. Truitt went on to say: "I'm not speculating. I'm saying this, I based it on these assumptions, somebody else's speculating, I'm not speculating, I based it on these assumptions." For these reasons, we hold that Truitt's testimony was not admissible under the voluminous records exception to the best evidence rule. Therefore, we conclude that the trial court erred in admitting Truitt's testimony into evidence.
The judgment of the trial court is due to be reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and STEAGALL, JJ., concur.
[1] All shares of common stock in ACIPCO are held in trust for the benefit of ACIPCO employees, according to the provisions contained in the will of John J. Eagan. This Court has previously considered the rights of ACIPCO employees and has held that in the ACIPCO community, a contractual precondition to discharge is that an employee be found to have violated one or more of the established plant rules. See Farlow v. Adams, 474 So. 2d 53 (Ala.1985); Smith v. American Cast Iron Pipe Co., 370 So. 2d 283 (Ala. 1979). | December 27, 1991 |
8a60c5f1-02b8-4bc7-8acd-a7ed25d5f839 | Ellis v. Hilburn | 688 So. 2d 236 | 1951094 | Alabama | Alabama Supreme Court | 688 So. 2d 236 (1997)
C. Neal ELLIS, M.D.
v.
Shirley Ruth HILBURN.
1951094.
Supreme Court of Alabama.
January 10, 1997.
Randal H. Sellers and M. Christopher Eagan of Starnes & Atchison, Birmingham, for Appellant.
Duncan E. Radsdale, Memphis, TN, and Doug Key, Birmingham, for Appellee.
SHORES, Justice.
This case involves the doctrines of relation back and ratification relative to a medical malpractice action based on the alleged wrongful death of Huston O. Hilburn, husband of the plaintiff, Shirley Ruth Hilburn. We affirm the trial court's interlocutory order holding that the wrongful death complaint, filed by Mrs. Hilburn before she was appointed administratrix of her husband's estate, and while she was purporting to act not as administratrix but as her husband's "next of kin," could be amended by Mrs. Hilburn, after the two-year statutory limitations period had expired, to indicate that within the two-year limitations period she had been appointed administratrix and that she was prosecuting the action as administratrix.
Mr. Hilburn died on November 11, 1992, while under the care of Dr. C. Neal Ellis; the cause of death was sepsis and peritonitis caused by fecal contamination through cecal perforation of the bowel. Almost two years after her husband's death, Mrs. Hilburn filed a complaint, on October 21, 1994; she sued individually and as "next-of-kin" of her husband, alleging that Dr. Ellis's care and treatment of her husband fell below the acceptable standards of professional practice.
On November 10, 1994, the day before the expiration of the two-year limitations period for filing a wrongful death claim, Mrs. Hilburn was appointed administratrix of her husband's estate. On December 7, 1994, Dr. Ellis filed a motion to dismiss based upon the Alabama Medical Liability Act of 1987 and for failure to state a claim upon which relief could be granted. On January 20, 1995, Dr. Ellis filed a second motion to dismiss, contending that the complaint failed to state a claim and contending that it had been filed *237 by one not entitled to file a wrongful death action. Mrs. Hilburn had sued individually and as "next-of-kin," but not as administratrix of Mr. Hilburn's estate.
On January 30, 1995, although the two-year limitations period had by then expired, Mrs. Hilburn sought to amend her complaint to indicate that, within the limitations period, she had been appointed administratrix of her husband's estate and that she was suing in that capacity. On March 15, 1995, the trial court, with consent of the parties, entered an order allowing Mrs. Hilburn to amend her complaint and proceed as administratrix.
On February 22, 1996, Dr. Ellis filed an answer, raising as a defense that the complaint failed to state a claim upon which relief could be granted because, he claimed, the face of the original pleadings showed that the action had not been properly filed within the two-year limitations period contained in the Alabama Wrongful Death Act, § 6-5-410, Ala.Code 1975. Specifically, Dr. Ellis argued, the action was barred because Mrs. Hilburn had not sued as administratrix of the estate within two years of her husband's death.
On February 29, 1996, Dr. Ellis moved for a judgment on the pleadings, stating that his answer filed on February 22, 1996, had raised the two-year limitations period contained in the Alabama Wrongful Death Act, § 6-5-410, and that "the lawsuit, as it exists, is a nullity ... because it was not [initially] filed by the personal representative of the [decedent's] estate [and that] ... the amended complaint is a nullity because it cannot relate back to the original complaint." On March 13, 1996, the trial court denied the motion for judgment on the pleadings. In response, Dr. Ellis requested an explanation for that denial. On March 22, 1996, the trial court entered an order stating these reasons for denying the motion:
Dr. Ellis petitioned this Court for permission to appeal the trial court's order denying the judgment on the pleadings. We granted the petition on May 17, 1996.
The relevant dates and events are as follows:
*238 The determinative issue in this case is whether a wrongful death complaint filed by one acting as "next-of-kin" of the deceased, but who was not at the time the personal representative of the deceased's estate, can be amended after the expiration of the two-year wrongful death limitations period to name the plaintiff as the personal representative, where the "next-of-kin" who filed the original complaint has in fact been appointed administratrix of the estate within the two-year limitations period.
Dr. Ellis argues that Mrs. Hilburn did not file the action as the administratrix within two years of her husband's death, pointing out that the Wrongful Death Statute requires, as a substantive part of the cause of action, commencement of the action within two years of the death of the decedent. He relies on Downtown Nursing Home, Inc. v. Pool, 375 So. 2d 465 (Ala.1979), cert. denied, 445 U.S. 930, 100 S. Ct. 1318, 63 L. Ed. 2d 763 (1980). Dr. Ellis argues that, because the complaint filed in October 1994 was filed by Mrs. Hilburn as "next-of-kin" and not as the administratrix, the complaint was a nullity and therefore could not be amended or corrected. Therefore, he argues, the amended complaint filed in January 1995 is also a nullity because, he contends, it has nothing to relate back to under Rule 15(c), Ala.R.Civ.P.
In Pool this Court addressed similar issues of (1) whether one who is not an administrator of the estate may initially maintain a wrongful death action and (2) whether an amendment can relate back, when filed after the expiration of the two-year period, to substitute as the plaintiff the administrator, who had been appointed administrator after the two-year period had expired. In Pool, J.P. filed a complaint based on the death of E.P., who had died on November 24, 1976. After the two-year period had expired, J.P. sought to amend his complaint to substitute as the plaintiff B.J., who had been appointed administrator of E.P.'s estate on February 5, 1979, more than two years after E.P.'s death. This Court held that because there had been no one authorized to file the action before the expiration of the two years, the doctrine of relation-back had no application.
In Pool, the administrator was not appointed until after the limitations period had expired. In contrast, Mrs. Hilburn was appointed administratrix before the limitations period expired. Dr. Ellis, looking to Holyfield v. Moates, 565 So. 2d 186 (Ala.1990), argues that Mrs. Hilburn's suing as next-of-kin was void ab initio and therefore could not be ratified by her later being appointed administratrix. This Court stated in Holyfield, 565 So.2d at 187-89:
However, Rule 17(a), Ala.R.Civ.P., suggests that so long as capacity exists before the limitations period expires, the wife, after being appointed administratrix within the limitations period, may then, as the real party in interest, ratify the commencement of the action. Thus, with respect to ratification, Rule 17(a) provides:
In Holyfield, supra, this Court distinguished between acts that are voidable and those that are void. It reversed the judgment of the trial court and remanded to allow an amendment, filed after expiration of the limitations period, to substitute the properly *239 appointed personal representative as the real party in interest. The Court held that the amendment related back to the filing of the original complaint because the acts of the prior, improperly appointed personal representative, who as a nonresident of Alabama was disqualified, were not void, but merely voidable. The Court reasoned that the "holding is mandated by Rule 17(a), Ala. R.Civ.P." 565 So. 2d at 189. In reaching this conclusion, the Court looked to the reasoning of Hess v. Eddy, 689 F.2d 977 (11th Cir. 1982), and, upon reviewing the Hess court's interpretation of Rule 17, Fed.R.Civ.P., stated the following:
Holyfield, 565 So. 2d at 189 (emphasis in original). Earlier in the Holyfield opinion, this Court reviewed its decision in Pool and, relying on the Pool rationale, stated: "[I]f the two-year period prescribed by the statute has expired before the representative is `duly appointed,' the heirs of the decedent are barred from recovery." Holyfield, 565 So. 2d at 187. Because the two-year period did not expire before Mrs. Hilburn was "duly appointed" as administratrix, she established her capacity within the limitations period and, thereby, ratified her claim. Holyfield; Rule 17(a). Her amendment, therefore, relates back to the date she filed her complaint.
The motion to amend in this case is based upon Rule 17(a), not on Rule 15(c). Pool did not discuss ratification pursuant to Rule 17(a), and the holding in that case is based solely upon application of Rule 15(c) (dealing with relation back of amendments). This Court in Holyfield, however, recognized the distinction in its application of Rule 17(a). The rationale of that case supports a finding of a ratification of the filing of Mrs. Hilburn's action by her appointment within the limitations period. Thus, we conclude that her amendment related back pursuant to Rule 15(c).
AFFIRMED.
HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur. | January 10, 1997 |
df654933-ca44-447b-bad8-032bd907e0be | Anniston Urologic Associates v. Kline | 689 So. 2d 54 | 1951874 | Alabama | Alabama Supreme Court | 689 So. 2d 54 (1997)
ANNISTON UROLOGIC ASSOCIATES, P.C.
v.
Michael B. KLINE.
1951874.
Supreme Court of Alabama.
March 7, 1997.
*55 Thomas Reuben Bell, Sylacauga; James S. Hubbard, Anniston; and William Henry Agee, Anniston, for Appellant.
Arthur F. Fite III of Merrill, Porch, Dillon & Fite, P.A., Anniston, for Appellee.
HOUSTON, Justice.
The defendant, Anniston Urologic Associates, P.C. ("Anniston Urologic"), appeals from a partial summary judgment for the plaintiff, Dr. Michael B. Kline. Dr. Kline had sought a judgment declaring that parts of an employment contract and a stock redemption agreement were unenforceable as covenants not to compete, relying on Ala. Code 1975, § 8-1-1(a),[1] and Anniston Urologic had sought by way of a counterclaim to require specific performance of the stock redemption agreement and to recover damages for an alleged breach of that agreement and, in addition, to recover damages for the alleged breach of the employment contract. We affirm in part, reverse in part, and remand.
Anniston Urologic, a professional corporation organized under the Revised Alabama Professional Corporation Act, Ala.Code 1975, § 10-4-380 et seq., hired Dr. Kline in 1985. Dr. Kline became a stockholder in Anniston Urologic in 1988 and entered into separate employment and stock redemption agreements. Both agreements provided that upon the termination of his employment Dr. Kline was to sell his stock in Anniston Urologic back to the corporation. The employment agreement also provided:
Because each of the covenants at issue has its own particular field of operation, we will discuss each covenant separately, beginning with the second covenant, as quoted above from paragraph (d)(ii) of the employment contract. As previously noted, the second covenant provided:
It is well settled in Alabama that to the extent a contract restrains the practice of a lawful profession, it is void, under § 8-1-1(a), as against public policy. See Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston, 678 So. 2d 765 (Ala.1996); Friddle v. Raymond, 575 So. 2d 1038 (Ala.1991); Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502 (Ala.1991); Salisbury v. Semple, 565 So. 2d 234 (Ala. 1990). In Associated Surgeons, P.A. v. Watwood, 295 Ala. 229, 231-32, 326 So. 2d 721, 722-23 (1976), this Court held unenforceable a contractual provision that imposed a financial penalty on a physician if he terminated his employment and engaged in the practice of medicine within a year in Tallapoosa County. This Court, in pertinent part, stated:
"The contract provides:
"There is universal agreement that the law looks with disfavor upon contracts which restrain employment. Hill v. Rice, 259 Ala. 587, 593, 67 So. 2d 789 (1953).
"We are convinced that a contract which requires the payment of damages in the event one of the contracting parties competes with the other is a contract `by which... one is restrained from exercising a lawful profession ...' within the meaning of § 22, supra. Professor Williston finds that `... Any bargain or contract which purports to limit in any way the right of either party to work or to do business ... may be called a bargain or contract in restraint of trade.' 14 Williston on Contracts, § 1633 (3d ed. 1972).
"The fact that the contract provision is couched in terms of liquidated damages rather than in negative form is not significant. `... This is clearly a restraint of a substantial character and the form in which it is cast does not make it less a restraint....' Chamberlain v. Augustine, 172 Cal. 285, 288, 156 P. 479, 480 (1916).
"In Chamberlain v. Augustine, supra, the contract provided for the payment of $5,000 as liquidated damages in the event the contracting party went into the same business as the other party to the agreement. In construing its statute on restraint of a trade or profession, which incidentally is identical to our own, the California Court said:
Based on the cases cited above, we conclude that the second covenant, purporting *58 to restrain Dr. Kline from practicing medicine within one year of the termination of his employment with Anniston Urologic and within 25 miles of his former office, was made unenforceable by § 8-1-1(a). We hold, therefore, that the partial summary judgment for Dr. Kline declaring the second covenant void as to both agreements was proper.
In so holding, we note that Anniston Urologic's reliance on Mann v. Cherry, Bekaert & Holland, 414 So. 2d 921 (Ala.1982), and Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston, supra, in support of its argument that the noncompetition covenants are enforceable is misplaced. In Mann, this Court considered a contract for the sale of an accounting practice; the contract contained mutual noncompetition covenants. The buyer stopped making payments to the seller after concluding that the covenants not to compete rendered the entire contract void. This Court held that the noncompetition covenants were void; however, because the evidence did not indicate that the seller had attempted to compete with the buyer (and, thus, did not indicate a failure of consideration and lack of mutuality between the parties), this Court went on to hold that the buyer had in fact received all that he had bargained for and, under general equitable principles, that he should not be allowed to use the unenforceability of the noncompetition covenants to otherwise avoid his contractual obligation to pay for the accounting practice. Mann is factually dissimilar to the present case. Here, the issue presented does not concern whether any of the other provisions in the employment contract or in the stock redemption agreement are enforceable. In other words, Anniston Urologic does not contend that Dr. Kline, notwithstanding the unenforceability of the second covenant, should be estopped from not performing under other provisions in the two agreements. Instead, Anniston Urologic argues only that the second covenant does not restrain Dr. Kline from practicing medicine and that it will not get the full benefit of its bargain if the value of Dr. Kline's stock is not reduced to compensate it for his failure to comply with the covenant. The rationale underlying this argument was specifically rejected in Associated Surgeons, P.A. v. Watwood, supra.
In Pierce, supra, this Court considered whether the trial court had erred in holding that an attorney was equitably estopped from asserting his claim to deferred compensation under his former firm's partnership agreement, which conditioned the payment of the deferred compensation on the attorney's not practicing in competition with his former firm. The attorney had left his former firm and was practicing in competition with it. We stated that "[t]he party asserting the doctrine of equitable estoppel may not predicate his claims on his own dereliction of duty or wrongful conduct." 678 So. 2d at 768. After concluding that senior attorneys in the firm had drafted the noncompetition covenant into the partnership agreement, we held that the firm's participation in the drafting of that covenant precluded its assertion of the doctrine of equitable estoppel. The record in the present case indicates that the other stockholder/physicians in Anniston Urologic directly participated in the drafting of the second covenant; therefore, under the holding in Pierce, Anniston Urologic cannot rely on the doctrine of equitable estoppel to defeat Dr. Kline's claim to the full value of his stock. Although the evidence, viewed in the light most favorable to Anniston Urologic, indicates that Dr. Kline also directly participated in the negotiation of the second covenant and that he understood it and wanted it, Anniston Urologic did not raise the doctrine of in pari delicto as an affirmative defense before the entry of the judgment. See Pierce, supra, at 769.
We also note, but are not persuaded by, Anniston Urologic's contention that Ala.Code 1975, § 10-4-389(j), part of the Revised Alabama Professional Corporation Act ("the Act"), repealed § 8-1-1(a) by implication insofar as agreements governing the purchase, redemption, or transfer of shares of a domestic professional corporation organized under the Act are concerned. Section 10-4-389(j) provides:
There is nothing in the Act, or in the comments to the Professional Corporation Supplement to the Model Business Corporation Act (drafted by the Committee on Corporate Law of the American Bar Association), which served as a guide for the drafting of the Act, that would suggest a specific intent on the Legislature's part to repeal § 8-1-1(a), which reflects the established public policy of this state. The Act provides for domestic professional corporations to be organized for the purpose of rendering professional services and services ancillary thereto, see § 10-4-383, and it creates a framework for the practice of a profession within the corporate context. However, the general recognition in § 10-4-389(j) that unspecified agreements regarding the purchase, redemption, or transfer of shares of stock in a professional corporation are judicially enforceable does not, standing alone, signify a movement by the Legislature away from the established general rule that contracts dealing with an illegal subject matter or contracts otherwise in violation of public policy are not enforceable, and it is an insufficient basis for this Court to hold that the Legislature intended to partially repeal § 8-1-1(a). The implied repeal of a statute by another statute is not favored by the courts and will be found only when the two statutes are so repugnant to, or in such conflict with, one another that it is obvious that the Legislature intended to repeal the first statute. Benson v. City of Birmingham, 659 So. 2d 82 (Ala.1995). It is certainly not obvious from an examination of §§ 8-1-1(a) and 10-4-389(j) that the Legislature, by enacting § 10-4-389(j), intended to carve an exception out of § 8-1-1(a), so as to allow professionals practicing in a corporation organized under the Act to enter into enforceable agreements restraining the exercise of a lawful profession. If that had been the intent of the Legislature, it could have made, and now should make, its wishes clearly known.[3] We do not agree, however, that the first covenant, as quoted above from paragraph (d)(i) of the employment contract, was, under § 8-1-1(a), unenforceable as a restraint on a lawful profession. The first covenant, as previously noted, provided:
On its face, this covenant merely required Dr. Kline to give Anniston Urologic nine *60 months' written notice of his intention to terminate his employment. The record reflects that this requirement was intended by the contracting parties to afford Anniston Urologic sufficient time in which to hire another physician and to otherwise provide for a smooth transition from one physician to another or, in the event nine months' notice was not given, to compensate the corporation for any economic hardship caused by the failure to give such notice. This covenant did not restrain Dr. Kline from practicing medicine for any period of time or restrain him from practicing medicine within a specified geographical area. Restrictions such as those contained in the second covenant tend to deny the public in the affected area access to a trained professional, see Odess v. Taylor, 282 Ala. 389, 211 So. 2d 805 (1968), and, therefore, have repeatedly been struck down by the courts as unenforceable on public policy grounds. However, this Court has not held that a notice provision, under facts similar to those presented here, constitutes a restraint on the practice of a lawful profession and is therefore voided by § 8-1-1(a). The record indicates that Dr. Kline left his employment at Anniston Urologic and thereafter opened his own office, which presently is in the same building as Anniston Urologic. We fail to see how enforcement of the first covenantby requiring Dr. Kline to continue to practice medicine as an employee of Anniston Urologic for nine months, so as to enable the corporation to retain another physician, or by requiring Dr. Kline to, in essence, pay compensation to the corporation for failing to give the required noticeviolates the public policy underlying § 8-1-1(a). At no time would the enforcement of the first covenant have adversely affected the public by preventing Dr. Kline from treating patients in the geographical area in which he practices. Section 8-1-1(a) was a departure from the general right of professionals to freely contract with respect to matters governing their professional and business relationships. In the absence of any clear public policy considerations to the contrary, we decline to construe § 8-1-1(a) as voiding a duly bargained-for notice provision, such as the one at issue in this case. See Tomlinson v. Humana, Inc., 495 So. 2d 630 (Ala.1986).
For the foregoing reasons, the judgment is affirmed, insofar as the second covenant is concerned; however, insofar as the first covenant is concerned, the judgment is reversed. The case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOOPER, C.J., and MADDOX, KENNEDY, COOK, and SEE, JJ., concur.
[1] Dr. Kline also sought a declaration as to the value of his stock in Anniston Urologic.
[2] Other issues surrounding Dr. Kline's request for a declaration as to the value of his stock remained pending. See Rule 54(b), Ala.R.Civ.P.
[3] Anniston Urologic also argues that §§ 10-2B-6.27 and 10-2B-7.32, both part of the Alabama Business Corporation Act, Ala.Code 1975, § 10-2B-1.01 et seq., which apply to professional corporations organized under the Act to the extent that they are not inconsistent with it, see § 10-4-381, are authority for the proposition that professionals practicing in a corporation organized under the Act may lawfully enter into agreements restraining the exercise of a lawful profession. In further support of this argument, Anniston Urologic cites First Alabama Bancshares, Inc. v. McGahey, 355 So. 2d 681 (Ala.1977). Neither § 10-2B-6.27 (which provides for certain restrictions on the transfer or registration of transfer of shares of stock in a business corporation) nor § 10-2B-7.32 (which provides for certain shareholder agreements), assuming their applicability to professional corporations, suggests that the Legislature ever had in mind the repeal of § 8-1-1(a). To the contrary, § 10-2B-7.32(a)(8) specifically provides for a shareholder agreement "inconsistent with one or more provisions of this chapter in that it ... [o]therwise governs the exercise of the corporate powers or the management of the business and affairs of the corporation or the relationship among the shareholders, the directors and the corporation, or among any of them, and is not contrary to public policy." (Emphasis added.) Curiously, Anniston Urologic quoted all but the emphasized part of this provision on page 28 of its initial brief to this Court in support of its contention that the Legislature has signaled a retreat from the heretofore established rule that contractual provisions in violation of this state's public policy are unenforceable. Likewise, First Alabama Bancshares, Inc. v. McGahey presented the basic question whether the exchange of stock involved in a merger constituted a "sale" of goodwill within the meaning of Title 9, § 23, Code 1940 (Ala.Code 1975, § 8-1-1(b)). That case did not address whether a noncompetition covenant restraining the exercise of a lawful profession was enforceable. | March 7, 1997 |
99592773-108a-4347-955f-56f12d05a13e | Capital Inv. Group, Inc. v. Woodson | 694 So. 2d 1268 | 1950853, 1950885 | Alabama | Alabama Supreme Court | 694 So. 2d 1268 (1997)
CAPITAL INVESTMENT GROUP, INC., et al.
v.
Willie V. WOODSON.
Randolph N. STRICKLAND
v.
Willie V. WOODSON.
1950853, 1950885.
Supreme Court of Alabama.
January 10, 1997.
Rehearing Denied April 18, 1997.
*1269 Robert A. Huffaker, Alyce S. Robertson, and N. Wayne Simms, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants Capital Investment Group, Inc., J W Charles Securities, Inc., and J W Charles Clearing Corp.
Edward E. May of Edward E. May & Associates, Birmingham, for appellant Randolph Strickland.
Hoyt W. Hill and Will O. (Trip) Walton III of Walker, Hill, Adams, Umbach, Meadows & Walton, Opelika, for Appellee.
KENNEDY, Justice.
The defendants, Capital Investment Group, Inc. ("CIG"); J.W. Charles Securities, Inc.; J.W. Charles Clearing Corporation (formerly FICS)[1]; and Randolph N. Strickland, appeal from the trial court's denial of their motion to compel arbitration. We affirm.
This action was filed by Willie V. Woodson on the theories of fraud, misrepresentation, suppression, and fraudulent inducement. Woodson originally sued Strickland and then added Capital Investment Group, Inc., J.W. Charles Securities, Inc., and J.W. Charles Clearing Corporation as defendants based on the theory that Strickland was their agent and that they are therefore vicariously liable for his fraudulent acts.
Woodson retired from the Uniroyal plant in Opelika, Alabama. Upon retiring, he had a choice of accepting a monthly retirement benefit or taking a lump sum payment. After an initial meeting with Strickland (who is a licensed stockbroker), Woodson chose a lump sum payment. Strickland represented to him that Strickland would invest the funds so as to provide Woodson a monthly income for his retirement, through an IRA.
Following the initial meeting, Strickland came to see Woodson again and had him sign a contract referred to as a "Customer's Agreement." That contract contained a predispute arbitration clause. However, none of the defendants signed it. An arbitration clause appearing in the Customer Agreement reads, in part, as follows:
Woodson sued. He claims he has been damaged because, he says, he did not receive the monthly income promised by Strickland and because the total lump sum he invested with Strickland has decreased. Woodson claims that Strickland fraudulently induced him into taking a lump sum payment from Uniroyal instead of a monthly retirement; that on three different occasions Strickland fraudulently obtained checks from Woodson, forged or had Woodson's name forged on them, and deposited the funds in his personal bank account; that he fraudulently induced Woodson to sign the Customer Agreement, without informing him of the arbitration clause; and that he fraudulently induced Woodson into signing cover-up letters to exonerate *1270 himself of these acts. The defendants filed a motion to compel arbitration. After a hearing on the motion, the trial court ruled:
An arbitration agreement must be enforced as any other contract is enforced, in accordance with its terms. Both federal and state courts have consistently held that the duty to arbitrate is a contractual obligation and that a party cannot be required to submit to arbitration any dispute that he did not agree to submit. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986); A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala.1990). The language of the contract entered into by the parties determines whether a particular dispute should be submitted to arbitration under the contract. Blount International, Ltd. v. James River-Pennington, Inc., 618 So. 2d 1344 (Ala. 1993).
Federal law favors arbitration where a reasonable interpretation of the arbitration agreement would cover the dispute. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). However, the necessary relationship between the dispute and the contract is not established simply by showing that the dispute would not have arisen absent the existence of a contract between the parties. A.G. Edwards & Sons v. Clark, 558 So. 2d at 362 (Ala.1990).
Woodson's original claim of fraudulent inducement stems from a meeting with Strickland that occurred before Woodson saw or signed the Customer Agreement. Woodson argues that Strickland persuaded him to accept a lump sum payment for his retirement before the Customer Agreement with the arbitration clause was presented to him. As stated previously, a party is not required to submit to arbitration any dispute he did not agree to submit. We cannot hold that Woodson agreed to submit anything to arbitration under the Customer Agreement before the agreement was even presented to him. Woodson's allegation of fraud in the inducement to take the lump sum, did not "arise out of" or "relate to" the provisions of the contract.
Absent an abuse of discretion on the part of the trial court, we cannot say the trial court erred in denying the motion to compel arbitration.
AFFIRMED.
ALMON, SHORES, and COOK, JJ., concur.
HOUSTON and BUTTS, JJ., concur in the result.
HOOPER, C.J., and MADDOX, J., dissent.
[1] FICS/J.W. Charles Clearing Corporation is a securities clearing house in North Carolina. | January 10, 1997 |
139d0a15-7d30-4d15-aaf4-3da5b4d120b1 | Ex Parte Knowles | 689 So. 2d 832 | 1940721 | Alabama | Alabama Supreme Court | 689 So. 2d 832 (1997)
Ex parte Willie Joe KNOWLES.
(Re Willie Joe Knowles v. State).
1940721.
Supreme Court of Alabama.
March 14, 1997.
Steve A. Baccus and Henry F. Sherrod III of Almon, McAlister & Baccus, L.L.C. Tuscumbia, for petitioner.
Bill Pryor, Atty. Gen., and Yvonne A.H. Saxon, Asst. Atty. Gen., for respondent.
Prior report: Ala.Cr.App., 668 So. 2d 931.
*833 PER CURIAM.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HOOPER, C.J., and MADDOX, SHORES, HOUSTON, BUTTS, and SEE, JJ., concur.
COOK, J., concurs specially.
COOK, Justice (concurring specially).
I concur in the quashing of this petition, but I write specially to express my concern that a statute that punishes an act of simple negligence as a felony raises serious constitutional questions. I voted to grant the certiorari petition of Willie Joe Knowles, to examine whether he had properly preserved for review a challenge to the constitutionality of his conviction under Ala.Code 1975, § 32-5A-192. Stated differently, I thought we should consider whether Knowles's conviction under § 32-5A-192, based on acts that constitute no more than simple negligence, violates the right to due process guaranteed by the United States and Alabama Constitutions. Although Knowles raised the constitutional issues on appeal, it appears that his motion for a directed verdict made at the close of the state's case did not specifically challenge the constitutionality of the act.
Knowles, who was 63 years old at the time of sentencing and who had no prior arrests or convictions, was convicted of two counts of vehicular homicide and was sentenced to five years in prison. Serious questions exist as to whether § 32-5A-192, which imposes incarceration in the penitentiary in the absence of a culpable mental state by a defendant, passes constitutional muster.
In pertinent part, § 32-5A-192 states:
(Emphasis added.)
The facts of this case are as follows: Willie Joe Knowles travelled along Triple Hill Road in Winston County, approaching County Road 41. Triple Hill Road intersects with County Road 41, thereby forming a "T"; vehicles approaching County Road 41 have a stop sign and must turn either left or right onto County Road 41. As Knowles approached County Road 41 and stopped at the stop sign, his view was obstructed by trees and bushes to the south. Knowles proceeded up to the intersection, looked both ways, and did not see any vehicles approaching. When Knowles proceeded into the intersection, his truck stalled and rolled back. He restarted the truck and again looked both ways and saw no cars approaching. Knowles then proceeded into the intersection, and was struck by a liquid propane truck travelling north. The driver of the propane truck turned the wheel to the left, thereby causing the propane truck to roll over several times and land on top of a van travelling south on County Road 41. Two people in the van were killed.
It is clear from the record that the most the evidence shows in this case is simple negligence. In actuality, the only evidence of negligence constituting the unlawful conduct that allowed this case to go to the jury was evidence regarding a demonstration conducted by a deputy sheriff and a state trooper. In that demonstration, a sheriff's patrol car was parked at the intersection of County Road 41 and Triple Hill Road and the state trooper proceeded north up County Road 41 until he was able to see the patrol car. The state trooper measured the distance of the line of vision to be approximately 500 feet, the inference being that a reasonably prudent driver should have seen the propane truck before pulling into the intersection.
Knowles testified that his vision was obstructed by trees and bushes once he approached the stop sign at County Road 41; therefore, he said he had to proceed up to the highway in order to attempt to see down the road. The testimony of the driver of the propane truck supported that of Knowles. The driver testified that by the time Knowles came into his vision, it was too late to avoid the accident. The driver stated, "From my field of vision where I did get to where I could see the truck, it was rolling ... it was a bad place there, too. You can't really see. When I came around there I was right there *834 on him when he was coming out." (Emphasis added.) (R.T. 56-7).
Although it is a close question, there were sufficient facts to submit the case to the jury on the question whether Knowles had violated Ala.Code 1975, § 32-5A-112, by failing to yield the right-of-way. Section 32-5A-112(b) provides:
Section § 32-5A-8 makes failing to yield the right-of-way a misdemeanor punishable by a fine of no more than $100 or no more than 10 days' imprisonment. Section 32-5A-8 provides:
Alabama Constitution of 1901, Art. I, § 6, provides in part that "[no person shall] be deprived of life, liberty, or property, except by due process of law." (Emphasis added.) The applicability of § 32-5A-192 to this vehicular accident raises this issue: Given the constitutional guarantee of due process, what level or degree of culpable conduct is necessary before a person can be imprisoned pursuant to this statute?
In pertinent part, Ala.Code 1975, § 13A-2-4(b), provides:
(Emphasis added.)
As stated in § 13A-2-4(b), a statute creating a criminal offense, except a strict liability statute, requires a culpable mental state. Subjecting nonculpable simple negligent conduct to criminal penalties as severe as those provided in § 32-5A192, without requiring a culpable mental state, raises serious constitutional questions. The fact that pertinent provisions of the Alabama Code regarding homicide all require some type of culpable conduct on the part of the defendant supports my position that § 32-5A-192 poses constitutional questions. See Ala.Code 1975, § 13A-6-2 (murder); § 13A-6-3 (manslaughter); § 13A-6-4 (criminally negligent homicide).
The Alabama Criminal Code defines the following four words relating to culpable mental states:
Ala.Code 1975, § 13A-2-2.
Knowles's conduct in this case, which amounts to nothing more than simple negligence, does not rise to the level of any culpable mental state defined in § 13A-2-2. There is no evidence that Knowles purposely pulled onto County Road 41 in front of the propane truck; no evidence that he was aware that an accident could occur; no evidence that he consciously disregarded a "substantial and unjustifiable" risk that an accident would occur; and no evidence that he failed to perceive an unjustifiable risk that the accident would occur given that his view was obstructed. There also exists no evidence to refute the evidence that Knowles stopped and looked twice both ways down County Road 41 before entering the road the first time as he approached County Road 41 and the second time after his car stalled. Clearly, Knowles exhibited no culpable mental state required for him to be found criminally liable under § 32-5A-192.
Felony imprisonment pursuant to § 32-5A-192, based on the facts presented by this case, poses important constitutional questions due to be addressed in a correctly postured case, in that Rule 32 review is not foreclosed. See Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) (United States Supreme Court reversed the death sentence of an accomplice in a robbery because of an absence of intent to kill).[1] Likewise, criminal felony liability for a homicide imposed in the absence of criminal intent is constitutionally suspect. "Legislative power to impose criminal sanctions to any conduct is restrained by the constitutional command that no person can be deprived of life, liberty, or property, except by due process of law. (Emphasis added.)" Smith v. People, 361 U.S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959); See Alabama Const. of 1901, Art. I, § 6. Although this case does not answer the question raised by Knowles's situation, I remain concerned that this statute, which imposes criminal felony sanctions for an act of simple negligence, encroaches on due process.
[1] The United States Supreme Court required that the defendant's culpable conduct be focused upon, by stating the following:
"American criminal law has long considered a defendant's intentionand therefore his moral guiltto be critical to `the degree of [his] criminal culpability,' and the Court has found criminal penalties to be unconstitutionally excessive in the absence of intentional wrongdoing...."
(Emphasis added.) Ex parte Murry, 455 So. 2d 72 (Ala.1984), citing Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). | March 14, 1997 |
9f29350b-37b7-4bbe-a010-f51924ac449d | Ex Parte Peppers | 703 So. 2d 299 | 1951932 | Alabama | Alabama Supreme Court | 703 So. 2d 299 (1997)
Ex parte Mavis June PEPPERS.
(In re Mavis June PEPPERS
v.
Mohamed ABDEL-GHANY).
1951932.
Supreme Court of Alabama.
March 14, 1997.
J. Robert Bentley, Oneonta, for petitioner.
Robert L. Austin, Birmingham, for respondent.
BUTTS, Justice.
We granted this petition for certiorari review to determine whether the Court of Civil Appeals properly affirmed the trial court's order changing custody of a minor child from her mother to her father. We determine that it did not; therefore, we reverse.
In 1989, Mavis June Peppers filed an action against Mohamed Abdel-Ghany, seeking an adjudication that he was the father of her minor daughter, M.K. The trial court determined that Abdel-Ghany was the child's father and established visitation rights for him. In September 1994, the mother petitioned the trial court for a modification of the visitation order, alleging that M.K. had indicated to her that Abdel-Ghany's stepson mistreated M.K. during periods of visitation with *300 Abdel-Ghany. The mother sought a temporary order restricting visitation so that M.K. would not be in the presence of Abdel-Ghany's stepson during visitation.
After a hearing on September 26, 1994, the trial court denied the mother's petition. That same day, the father filed a "Counter-Petition to Modify and Petition for Rule Nisi," in which he alleged that the mother had consistently prevented his visitation with M.K. and in which he sought custody of the child. After an evidentiary hearing, the trial court entered an order on May 15, 1994, changing custody of the child from Peppers to Abdel-Ghany. The Court of Civil Appeals affirmed, without opinion. Peppers v. Abdel-Ghany, 683 So. 2d 51 (Ala.Civ.App.1996) (table).
The mother argues that the trial court's order conflicts with Alabama law establishing the level of proof a noncustodial parent must meet to justify a change of custody. In a child custody modification case where a noncustodial parent seeks to modify a judgment granting custody to the other parent, the noncustodial parent must show that the change in custody will materially promote the child's best interest and welfare. Ex parte McLendon, 455 So. 2d 863 (Ala. 1984). The noncustodial parent must also prove that the positive good brought about by the change in custody would more than offset the inherently disruptive effect caused by uprooting the child. Foster v. Carden, 515 So. 2d 1258 (Ala.Civ.App.1987). A trial court's decision in a child custody proceeding is presumed correct; however, that decision may be reversed on appeal if it amounts to an abuse of discretion or is so unsupported by the evidence as to be plainly and palpably wrong. Foster.
The record shows that in 1989 Abdel-Ghany was adjudicated to be M.K.'s father; however, he did not begin regular visitation with her until 1993. Peppers lives in Oneonta, and Abdel-Ghany lives with his wife in Tuscaloosa; the scheduled visitations took place in Abdel-Ghany's home. After three months of biweekly visitation periods, Abdel-Ghany left the country on an eight-month sabbatical in conjunction with his occupation as a college professor. During that eight-month period, he was in America for only one week; during that week Peppers scheduled visitation for him with M.K. After he returned from the sabbatical, Abdel-Ghany began regular visitation with M.K.
The record shows that, between January 1, 1994, and March 1995, Peppers refused to allow Abdel-Ghany to exercise 8 out of 28 scheduled visitation periods with M.K. On at least six of those occasions, Peppers informed the father that M.K. was too ill for visitation with him; the record confirms that the child received medical care for minor illnesses, such as colds and sinus infections, around the time of these scheduled visitation periods. According to Peppers, after M.K. had weekend visitation with Abdel-Ghany in August 1994, M.K. expressed fear about visiting Abdel-Ghany when his stepson was also visiting. She alleges that M.K., who was normally a very cheerful child, seemed emotional and upset after that visitation. Peppers testified that she attempted to discuss the problem with Abdel-Ghany and that, when he refused to talk to her about it, she sought a modification in the visitation provisions.
The record clearly shows that Abdel-Ghany petitioned for custody of M.K. in response to Peppers's motion to modify his visitation, and that Abdel-Ghany believed Peppers was interfering with his visitation with the child by exaggerating the child's minor illnesses and casting suspicion upon his stepson. In his petition, he complained that the mother had repeatedly prevented him from exercising scheduled visitation on occasions between January 1, 1994, and March 1995, and that she was threatening not to allow visitation at all if his stepson visited him at the same time M.K. did. He stated that because of these facts, "as well as another matter," there had been a material change in circumstances and that it would be in the best interest of the child to change custody to him; however, Abdel-Ghany did not specify any "matters" against Peppers other than the disruption in visitation.
*301 There is little evidence to indicate that Abdel-Ghany's stepson has ever mistreated M.K., and the record would support a finding that the mother's fear in this regard was exaggerated. The evidence also shows that Peppers does not enjoy having M.K. visit Abdel-Ghany, that she is not particularly cooperative in ensuring that all scheduled visitations take place, and that M.K. perceives this. However, it is well established under Alabama law that a change of primary custody from one parent to another is not the answer to disputes over visitation; such disputes should be resolved by the parties, or by a finding of contempt if necessary, rather than by the drastic measure of changing custody. Foster v. Carden; Calabrisi v. Boone, 470 So. 2d 1255 (Ala.Civ.App.1985).
We find this rule of law particularly applicable in this case, where there are no allegations that Peppers is an unfit mother or that she has failed to provide the child with all the benefits necessary to her mental, physical, and emotional health. The trial court's order finds that the mother was interfering with visitation; however, beyond this, that order appears to be based primarily on a perception that Abdel-Ghany could provide the child with more material possessions and a more interesting and more varied life in Tuscaloosa. The trial court pointed out that Abdel-Ghany is married, maintains a "Christian" home, and is a college professor. The trial court also put special emphasis on the fact that Abdel-Ghany has two daughters from another marriage, who are now young adults. The trial court stressed that Abdel-Ghany provided these daughter with the benefits of travel and with ballet and karate lessons, and that M.K. could also expect to have these advantages from her father if she lived with him. The trial court did not recognize, however, that Abdel-Ghany had provided his other daughters with material advantages and a loving paternal relationship without having had primary custody of them; the daughters were reared in the custody of their mother.
The record shows that Peppers is employed, although she does not have a financial situation comparable to the situation Abdel-Ghany enjoys. She maintains a clean home in a safe neighborhood, and M.K.'s maternal grandmother lives with her. M.K. attends church with her mother and grandmother and is enrolled in the Oneonta City school system. M.K. has lived in this environment her entire life, with her mother as her primary caretaker, and she has, by all accounts, thrived. Throughout the proceedings, all the parties and witnesses, including child psychologists called as expert witnesses, and the trial court itself, unreservedly agreed that the child is unusually bright, cheerful, intelligent, and well adjusted. It is doubtful that the formation of the child's character and personality is due solely to the visitation with her father that began when she was five years old; rather, it is indicative of the stable environment and consistent care that her mother has provided her since her birth.
At the hearing, Dr. Richard Ince, a licensed clinical psychologist, testified at length regarding his examinations of M.K. and his conclusions as to the effect a change of custody could have upon her. We find the following excerpts from his testimony to be quite telling:
The courts of Alabama have emphasized that a change of custody from one parent to another is not a decision to be made lightly; on the contrary, it may be made only where the evidence discloses an obvious and overwhelming necessity for change. Glover v. Singleton, 598 So. 2d 995 (Ala.Civ.App.1992). The evidence simply shows no such necessity in this case. The record discloses only an unwillingness of the mother to allow the father full exercise of his visitation rights and, while this might well support a finding of contempt, it is not a sufficient basis to warrant a change of custody. The evidence clearly shows that M.K. lives in a secure environment and that her mother provides good care of her physical, mental, and emotional needs. M.K. also has the benefit of a loving father, who desires and exercises visitation with her and who can provide her with material and cultural advantages, as he has done for his other two daughters. Under these circumstances, M.K. has developed into a happy and welladjusted child, and it is undisputed that the drastic change of custody ordered by the trial court could well threaten her well-being. We must therefore conclude that this order was an abuse of the trial court's discretion; although the trial court could have properly determined, in its discretion, that the mother was in contempt of the visitation order, Calabrisi v. Boone, the evidence does not support a change in custody. We do emphasize, however, that if Peppers does not comply with the visitation order, the trial court has the discretion to find her in contempt. The judgment of the Court of Civil Appeals affirming that order is hereby reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, COOK, and SEE, JJ., concur.
HOUSTON, J., dissents. | March 14, 1997 |
43415f30-fd63-4565-bee5-128f69e72ff7 | Burnett v. National Stonehenge Corp. | 694 So. 2d 1276 | 1950180, 1950942, 1950952, 1951011, 1951124 | Alabama | Alabama Supreme Court | 694 So. 2d 1276 (1997)
Nelson BURNETT, Receiver of Old Southern Life Insurance Company
v.
NATIONAL STONEHENGE CORPORATION.
NATIONAL UNION LIFE INSURANCE COMPANY, in Liquidation
v.
Nelson BURNETT, as receiver and South-Trust Bank as Trustee of Employee Welfare Benefit Group Trust. (Two Cases)
NATIONAL STONEHENGE CORPORATION
v.
ALABAMA DEPARTMENT OF INSURANCE. (Two Cases)
1950180, 1950942, 1950952, 1951011 and 1951124.
Supreme Court of Alabama.
February 28, 1997.
Rehearing Denied April 18, 1997.
Thomas T. Gallion III and Constance A. Caldwell of Haskell, Slaughter, Young, Johnston *1277 & Gallion, P.A., for Mickey DeBellis and Nelson Burnett. (During these proceedings the firm name changed to Haskell, Slaughter, Young & Gallion, L.L.C.)
Frank M. Wilson and P. Leigh O'Dell of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, for National Stonehenge Corp.
KENNEDY, Justice.
Case No. 1950180 (Burnett, as receiver of Old Southern Life Insurance Company, appellant), is on appeal from Montgomery County Circuit Court, Judge Charles Price. Cases No. 1950942 and No. 1951011 (National Stonehenge Corporation, appellant; relating to Union Life Insurance Company) are on appeal from the Jefferson County Circuit Court, Judge Marvin Cherner; Cases No. 1950952 and 1951124 (National Stonehenge Corporation, appellant; relating to Employers Insurance Company of Alabama and Employers Life Insurance Company, respectively) are on appeal from the Jefferson County Circuit Court, Judge Jack Carl. Each of these cases was filed separately in either Jefferson or Montgomery County circuit court. Each insurance company involved in these cases is in receivership and is being administered by the Receivership Division of the Alabama Insurance Department. The central issue in each case is whether National Stonehenge Corporation ("Stonehenge"), a consulting company, is entitled to payment for services rendered to these receivership estates.
In 1950180 the State of Alabama ex rel. Mickey DeBellis, as State commissioner of insurance; and Nelson Burnett, as chief of the Receivership Division of the Alabama Insurance Department and as receiver of the various receivership estates (collectively referred to as "Insurance Department"), appeal the trial court's order rejecting the findings and recommendations contained in the report of the special master and awarding Stonehenge $31,000. In cases 1950942, 1950952, 1951011, and 1951124, Stonehenge appeals from each trial court order denying any further payments to Stonehenge and accepting the findings and recommendations contained in the report of the special master. We reverse the order in 1950180 and in that case render a judgment for Burnett, as receiver. We affirm the orders in 1950942, 1950952, 1951011, and 1951124.
On June 10, 1993, then Insurance Commissioner James Dill appointed Ralph Hutchinson as interim Chief of the Receivership Division of the Alabama Insurance Department. Dill obtained approval for this appointment from Michael Bownes, General Counsel for the Insurance Department. After being appointed, Hutchinson petitioned the Jefferson Circuit Court and was subsequently appointed receiver for numerous insolvent insurance companies, including Old Southern Life Insurance Company, National Union Life Insurance, Employers Insurance Company of Alabama, and Employers Life Insurance Company. At the time these events took place, Hutchinson was president and majority stockholder of Stonehenge, which was headquartered in Georgia.
During Hutchinson's tenure as chief of the Receivership Division, the Insurance Department retained Stonehenge to perform consulting and accounting services on behalf of the Insurance Department's various receivership estates. Stonehenge began work on the receivership estates without any formal contractual agreement. After it began its work, Insurance Department officials drafted agreements outlining the terms under which the work would be performed. Stonehenge and the Insurance Department subsequently entered into these formal agreements. Hutchinson served as chief of the Receivership Division until August 23, 1993.
In October 1993, Thomas T. Gallion, counsel for the Insurance Department, petitioned the trial court for an immediate hearing concerning waste of receivership funds by Stonehenge and for an accounting of these funds. The petition put into dispute $78,000 paid to Stonehenge by the various receivership estates starting in June 1993 when Stonehenge began work.
On November 30, 1993 the Montgomery Circuit Court appointed Laura L. Crum as special master, pursuant to Rule 53 A.R.Civ. P., to make a reference report concerning the accounts and records of the receiver and to determine what amount, if any, should be *1278 paid to Stonehenge in regards to the work performed on the various receivership estates. The special master conducted extensive discovery, taking depositions and obtaining affidavits of Insurance Department employees. The special master also reviewed invoices and time sheets submitted by Stonehenge employees. On March 16, 1995, the special master issued a report recommending that no more payments be made to Stonehenge for the work performed on these various receivership estates.
The special master based her recommendation on the fact that Stonehenge was a foreign corporation and had not qualified to do business in Alabama. The special master reasoned that because Stonehenge had not qualified to do business in Alabama, the agreements entered into by the Insurance Department and Stonehenge for services to be performed in Alabama should be held void and unenforceable. The special master went on to state in her report that Stonehenge appeared to able to qualify to do business after the fact, pursuant to Ala.Code 1975, § 10-2B-15.01(a), and suggested the trial court consider this section if Stonehenge presented proof of subsequent qualification. The record indicates that Stonehenge did not attempt to qualify to do business after the fact.
The special master also reported that Stonehenge had failed to provide documentation to substantiate any of the expenses for which it billed the receivership estates. The special master further stated that Stonehenge's statements concerning charges for services were vague and that time sheets for several Stonehenge employees were either not filled out or were filled out with nondescriptive blocks of time. The special master determined that there was a total of $80,740 invoiced by Stonehenge to the receivership estates for which no substantiating time sheets or other documentation existed. She also addressed concerns regarding possible investigations by the attorney general's office of Stonehenge's actions regarding these matters.
The special master also reported that several of Stonehenge's charges to the receivership estates were for items and services that were of little or no benefit to the estates. She reported that the amount billed by Stonehenge for preparation of tax reports greatly exceeded what had been paid for similar services in the past.
In her reference report to the trial court, the special master suggested that no further payments be made to Stonehenge unless it was able to qualify to do business in Alabama. She recommended that no further payments be made in connection with the preparation of tax reports and also recommended a 30% reduction of any other remaining charges to adjust for Stonehenge's inability to substantiate the charges. We note that under A.R.Civ.P. Rule 53, in a nonjury case the court shall accept the findings of a special master unless the findings are clearly erroneous.
On October 11, 1995, the Montgomery Circuit Court in the Old Southern case (1950180), entered an order directing Nelson Burnett, then chief of the Receivership Division, to pay Stonehenge $31,000. Later, the trial court, ruling on a "motion for reconsideration" of that order, held that Stonehenge's failure to qualify to do business in Alabama did not prevent payment under the agreement between the Insurance Department and Stonehenge, because Stonehenge had voluntarily subjected itself to the jurisdiction of the trial court. The trial court also stated that "it would be highly inequitable to refuse to make payments due [to Stonehenge], simply because there might be some technical failure to qualify to do business." The trial court went on to say that the possibility of any pending investigations concerning Stonehenge did not warrant delaying payment where there was no evidence that active investigations were in process.
In the Old Southern case, the Montgomery Circuit Court held that the findings of the special master were not binding on the court. The court held that it had the ultimate authority in this matter and stated that in order to assure that equity is done, it must reject the recommendations of the special master. The court stated that it was not disputed that Stonehenge had provided valuable services to the receivership estates and, therefore, that it is not the role of the trial *1279 court to look for a reason not to pay Stonehenge for its services already rendered.
In the National Union cases (1950942 and 1951011), the Jefferson Circuit Court held that none of the services for which Stonehenge made a claim had been rendered specifically for National Union and, on that basis, denied Stonehenge's claim for $8,916.87. Alternatively, the trial court based its decision on the opinion of the special master that Stonehenge's failure to qualify to do business precluded it from receiving payment.
In the Employers Insurance Company of Alabama case (1950952), the Jefferson Circuit Court adopted the report of the special master. Further, the trial court found that payments made to Stonehenge from the receivership exceeding $10,000 without court approval violated a previous order of the court prohibiting such payments. The trial court denied the Stonehenge claim of $40,369.51 and ordered Stonehenge to return $21,353.65 to Employers Insurance.
In the Employers Life Insurance Company case (1951124), the Jefferson Circuit Court also adopted the report of the special master. The trial court found that payments to Stonehenge from this receivership exceeding $10,000 without court approval violated the court's previous order. The trial court denied Stonehenge's claim for $42,600.52 and ordered Stonehenge to return $31,418.20 to Employers Life.
The dispositive issue is whether, under these circumstances, Stonehenge has a right to receive payment for services rendered to the Alabama Insurance Department. To answer this question, we must consider Ala. Code 1975, § 10-2A-247, which provides:
This statute was repealed effective January 1, 1995, but it governs the acts involved in these cases because those acts occurred before that repeal. This Court has held that, because of this statute, a foreign corporation cannot enforce a contract that is to be performed in Alabama if the foreign corporation has failed to qualify to do business in Alabama. Sanjay, Inc. v. Duncan Construction Co., Inc., 445 So. 2d 876 (Ala.1983); Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366 (Ala.1988). Because of the penal nature of the statute, its application has been limited to those cases in which the action is ex contractu as opposed to ex delicto. Boles v. Midland Guardian Co., 410 So. 2d 82 (Ala. Civ.App.1982). It is undisputed that Stonehenge never qualified to do business in Alabama.
Stonehenge argues that it is trying to enforce its right to payment for services it has already rendered to the Insurance Department. Because of this, Stonehenge argues that it comes within the "equity exception" of § 10-2A-247, which states, "but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity." Justice Shores has written for this Court:
First Bank of Russell County v. Wells, 358 So. 2d 435 (Ala.1978). To allow Stonehenge to recover under the theory that equity requires the Insurance Department to pay Stonehenge for its services, even though Stonehenge never qualified to do business in Alabama, would circumvent § 10-2A-247. This Court's prior decisions on this matter have made it clear that foreign corporations cannot circumvent the penal effect of the statute by labeling their claim as something other than contract claim. See, Green Tree Acceptance, 525 So. 2d at 1372.
Stonehenge's claims presented in these actions are essentially claims for enforcement *1280 for the rights Stonehenge derived from the contractual relationship it had with the Insurance Department. We conclude that Stonehenge's claims are ex contractu; therefore, because Stonehenge was doing business in Alabama without having qualified to do so, its agreements are voided by § 10-2A-247. See C.C. Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275 So. 2d 124 (Ala.1972). Also, we conclude that the findings of fact of the special master are not "clearly erroneous." See Rule 53, A.R.Civ.P.
1950180REVERSED AND JUDGMENT RENDERED.
1950942AFFIRMED.
1950952AFFIRMED.
1951011AFFIRMED.
1951124AFFIRMED.
HOOPER, C.J., and ALMON, SHORES, and HOUSTON, JJ., concur.
COOK, J., dissents.
COOK, Justice (dissenting).
I respectfully dissent. Nelson Burnett was serving as chief receiver in May 1993, when Governor Jim Folsom appointed James Dill to the office of Alabama insurance commissioner. Almost immediately after taking office, Dill fired Burnett and replaced him with Ralph Hutchinson, president and majority shareholder of National Stonehenge Corporation ("Stonehenge"), a foreign corporation not licensed to do business in Alabama. Hutchinson was to serve on a temporary basis until Dill could find a permanent replacement for Burnett.
At that time, a number of Alabama insurance companies were insolvent and in receivership, including Old Southern Life Insurance Company, National Union Life Insurance Company, Employers Insurance Company of Alabama, Inc., and Employers Life Insurance Company ("the companies"). While Hutchinson was serving as chief of the Receivership Division, he was also appointed by the trial court as receiver for these companies. Concurrently, as the majority correctly points out, "the Insurance Department retained Stonehenge to perform consulting and accounting services on behalf of the companies' estates. 694 So. 2d at 1277. On August 23, 1993, Hutchinson resigned his position as chief receiver.
On October 1, 1993, Thomas Gallion, counsel for the Insurance Department, "filed a Petition for Instructions advising the court that [Stonehenge] ... had received approximately $78,000 of receivership funds without court approval." Brief of Appellants (case 1950180), at 2. Stonehenge subsequently repaid this amount.
On November 30, 1993, an agreement was reached for the appointment of Laura Crum as a "special master" to "make a determination as to the amounts, if any, due to be paid to [Stonehenge]." This agreement was approved by the court on December 3, 1993.
Nelson Burnett was reappointed as chief receiver on January 23, 1995. On March 16, 1995, the special master filed a report in which she recommended that "no more payments be made to Stonehenge." She "based her recommendation on the fact that Stonehenge was a foreign corporation [that] had not qualified to do business in Alabama." 694 So. 2d at 1278.
Her recommendation received disparate treatment by the trial courts in Montgomery and Jefferson Counties, from which these appeals come. Montgomery Circuit Judge Charles Price rejected the report and ordered payment to Stonehenge in the amount of $31,000. Jefferson Circuit Judges Marvin Cherner and Jack Carl accepted the special master's report and disallowed payments sought by Stonehenge. The majority reverses the judgment of the Montgomery Circuit Court and affirms the judgments of the Jefferson Circuit Court.
The majority relies solely on the authority of Ala.Code 1975, § 10-2A-247, which was repealed by Act No. 94-245, 1994 Ala. Acts 457. Section 10-2A-247(a) provided:
(Emphasis added.)
In discussing the policy and purpose of this statute, this Court has said: "The purpose of this section is to provide some power for the State to protect Alabama residents from possible abuse by uncontrolled foreign corporations.... Failure to secure ... a certificate means that the foreign corporation cannot enforce a contract entered into in this State." Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1370 (Ala.1988) (emphasis added). In Sea Scaping Constr. Co. v. McAtee, 402 So. 2d 919, 921 (Ala.1981), we stated that the statute embodied "`public policy, which was] clearly written into our law in order that foreign corporations may be subject to the process of our courts, thus affording mutuality of remedy"" (emphasis added). As a factor in its conclusion that Stonehenge should receive payment, the Montgomery Circuit Court determined that Stonehenge had voluntarily subjected itself to the jurisdiction of the court and, thus, that mutuality of remedy was afforded, satisfying the public policy of the statute.
Stonehenge relies on the "equity" proviso, which is emphasized in the quotation above. Specifically, it contends that this is an equitable proceeding and that it is seeking only payment of "those fees approved by the circuit court in the insolvency proceeding." Brief of Appellee (in case 1950180), at 8. This Court has stated that "A receiver is a representative or arm of the court." Sullivan Timber Co. v. Black, 159 Ala. 570, 48 So. 870 (1909). "A receiver acts on behalf of the court and is under its supervision, direction, and control." American Benefit Life Ins. Co. v. Ussery, 373 So. 2d 824, 828 (Ala.1979) (emphasis added).
It is not a point of minor significance that the State of Alabama, through its Insurance Department, secured the services of Stonehenge and has received the benefit of its services directed toward the insolvent companies. To allow the State of Alabama to refuse to pay a corporation, which it hired to act as a receiverunder the direction of, and as a representative of, its courtsseems not only peculiarly inequitable, but also inconsistent with, and outside of, the purposes of this statute as we have declared them.
In my opinion, the majority reads § 10-2A-247(a) too broadly. Consequently, I respectfully dissent. | February 28, 1997 |
4b59a64d-3516-4450-8f3c-f40bbe6f18b3 | PHENIX CITY-COBB HOSP. AUTH. INC. v. Sun Pointe Property, Inc. | 689 So. 2d 797 | 1950245 | Alabama | Alabama Supreme Court | 689 So. 2d 797 (1997)
PHENIX CITY-COBB HOSPITAL AUTHORITY, INC.
v.
SUN POINTE PROPERTY, INC.
1950245.
Supreme Court of Alabama.
January 3, 1997.
Rehearing Denied February 14, 1997.
W. Donald Morgan, Jr., and Neil H. Callahan of Layfield, Rothschild & Morgan, Columbus, GA, and Homer W. Cornett, Jr., of Cornett & Ivins, Phenix City, for Appellant (on original submission).
C.C. Torbert, Jr., of Maynard, Cooper & Gale, P.C., Montgomery; and W. Donald Morgan, Jr., of Rothschild & Morgan, P.C., Columbus, GA, for Appellant (on rehearing).
Kenneth L. Funderburk of Funderburk, Day & Lane, Phenix City, for Appellee.
PER CURIAM.
The August 30, 1996, no-opinion order of affirmance is withdrawn and the following opinion is substituted therefor:
Sun Pointe Property, Inc. ("Sun Pointe"), sued Phenix CityCobb Health Care Authority, Inc. ("Phenix City"), alleging breach of contract with regard to the lease of a magnetic resonance imaging ("MRI") machine, a machine used in hospitals for diagnostic purposes. As a defense, Phenix City argued, among other things, that Sun Pointe, a foreign corporation, had failed to qualify to do business in Alabama, as is required by Article XII, § 232, Constitution of Alabama, 1901. Phenix City further argued that because Sun Pointe was not qualified to do business in Alabama, then it could not enforce its lease contract in this state, invoking § 10-2A-247(a), Ala.Code 1975.
Section 10-2A-247 was repealed in 1994, but remained in effect until January 1, 1995. However, Sun Pointe entered into the contract at issue before the repeal of § 10-2A-247; thus, Sun Pointe is subject to the statute. See Vines v. Romar Beach, Inc., 670 So. 2d 901 (Ala.1995).
Section 10-2A-247(a) provided:
Sun Pointe argued that it did not have to qualify to do business in Alabama, because it claimed to come under one of the exceptions to the statute. Specifically, Sun Pointe argued that its activities within the state were incidental to inter state commerce and that a nonqualified foreign corporation is not barred from enforcing its contracts in Alabama when its activities arise out of interstate business. See, Wallace Constr. Co. v. Industrial Boiler Co., 470 So. 2d 1151 (Ala. 1985).
We disagree with Sun Pointe; we conclude that its activities in Alabama were intra state in nature. Sun Pointe moved one of its employees to Alabama for the sole purpose of servicing the MRI machine. Sun Pointe also had an employee move to Alabama so that he could train Phenix City's employees to operate the MRI machine. Sun Pointe retained the right to assist in the collection of unpaid bills generated by use of the machine. Sun Pointe also had the right to set the rates for use of the MRI machine. It had control as to which patients received services on the MRI machine and it retained the right to remove Phenix City's employees who operated the MRI machine if it found their work to be unsatisfactory.
This case is easily distinguishable from Johnson v. MPL Leasing Corp., 441 So. 2d 904 (Ala.1983), wherein a nonqualified foreign corporation's activities were found to be interstate. That foreign corporation merely solicited orders for the lease of a particular piece of machinery and subsequently delivered that machine. Sun Pointe's activities exceeded the mere solicitation of a lease and the delivery of a machine.
We note that this case is also distinguishable from Wallace, 470 So. 2d 1151, wherein the Court held that the labor portion of the contract, which provided the labor to assemble, install, adjust, and start up a boiler, was incidental to the interstate sale of the boiler itself. The Court found that the boiler could not be assembled without persons familiar with the particular type of boiler and that the work could be done only in the state.
The Sun Pointe employees who were to service the machine and to train Phenix City's employees could have been supplied by Phenix City. In other words, the Sun Pointe employees were not supplying a service that was specific to Sun Pointe's MRI machine alone. Another maintenance worker or technician familiar with MRI machines could have done the work as well. Cf. Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366 (Ala.1988)(repairs to correct construction defects could have been supplied by any competent contractor). "[T]he providing of the services of the workers furnished [by Sun Pointe] under the contract was not a `necessary,' *799 `essential,' or `integral' part of the `interstate' contract for [the lease of the MRI machine], but were incidental to the [lease]." Building Maintenance Personnel, Inc. v. International Shipbuilding, Inc., 621 So. 2d 1303, 1305 (Ala.1993).
Because Sun Pointe's activities pursuant to the contract constituted "transacting business in this state," within the meaning of § 10-2A-247, its failure to qualify on or before the date of the contract in question prevents Sun Pointe from enforcing the contract. Vines. Accordingly, the judgment of the trial court is reversed.
APPLICATION GRANTED; NO-OPINION ORDER OF AFFIRMANCE WITHDRAWN; REVERSED AND REMANDED.
ALMON, SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent. | January 3, 1997 |
5b0940d0-624c-4cc2-890d-dd3464d0770e | Ayres v. Lakeshore Community Hosp. | 689 So. 2d 39 | 1950685 | Alabama | Alabama Supreme Court | 689 So. 2d 39 (1997)
Karen AYRES, as administratrix of the Estate of Nora Mann Burdette, deceased
v.
LAKESHORE COMMUNITY HOSPITAL and Dr. Gerhard Jan Hinnen.
1950685.
Supreme Court of Alabama.
February 14, 1997.
*40 Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for Appellant.
John V. Denson and Amy J. Himmelwright of Samford, Denson, Horsley, Pettey & Martin, Opelika; and John Percy Oliver of Oliver & Sims, Dadeville, for Lakeshore Community Hospital.
Richard B. Garrett and N. Wayne Simms, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for Gerhard Jan Hinnen.
KENNEDY, Justice.
Nora Mann Burdette entered the emergency room of Lakeshore Community Hospital ("Lakeshore") on the evening of July 15, 1993, complaining of chest pain, nausea, and pain in her arm. Her heart rate was normal, and her blood pressure was only slightly elevated. Burdette was treated by Dr. Gerhard Jan Hinnen, a doctor on call in the Lakeshore emergency room, who performed a physical examination and ordered an EKG and cardiac enzyme tests. Dr. Hinnen evaluated the test results; he found no sign of a heart attack on the EKG and found normal results on the enzyme tests. Burdette was given a "GI cocktail," a medicine mixture to relieve stomach upset, and she left the emergency room about 1 1/2 hours after her arrival. The next afternoon, Burdette died after having a heart attack.
Burdette's daughter, Karen Ayres, as administratrix of Burdette's estate, sued Dr. Hinnen and Lakeshore, alleging that Dr. Hinnen had committed medical malpractice in failing to diagnose Burdette's symptoms as a heart attack when Burdette was in the Lakeshore emergency room the night before her death. There was conflicting evidence regarding Ayres's claims, including differing interpretations of Burdette's EKG results, and those claims were submitted to a jury. The jury returned a verdict for Dr. Hinnen and Lakeshore. The trial court denied Ayres's motion for a new trial. Ayres appealed.
A jury's verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988). In addition, a judgment based upon a jury verdict and sustained by the denial of a motion for a new trial will not be reversed unless it is plainly and palpably wrong. Ashbee v. Brock, 510 So. 2d 214 (Ala. 1987). In reviewing a judgment based upon a jury verdict, this Court must review the record in a light most favorable to the appellee. Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208, 1211 (Ala.1990).
*41 Ayres first argues that the trial court erred in forbidding the cross-examination of Dr. Hinnen regarding the loss of his medical license. She maintains that, because Dr. Hinnen provided expert testimony on his own behalf concerning the standard of care he gave Burdette, his qualifications were at issue and thus warranted cross-examination pertaining to his medical license.
The record indicates that Dr. Hinnen was licensed to practice medicine in Alabama at the time he treated Burdette. His medical license was revoked approximately two years after Burdette's death, and the revocation, as Ayres acknowledges, occurred for reasons entirely unrelated to Burdette's death. As Ayres correctly argues, an expert witness may generally be cross-examined as to his or her credentials. See C. Gamble, McElroy's Alabama Evidence § 142.01(5) (5th ed. 1996). However, the trial judge has substantial discretion as to the questions a party is allowed to ask of an expert witness. The scope and extent of cross-examination is vested in the trial court's sound discretion, and this Court will not reverse on the basis of the trial court's rulings regarding cross-examination unless an abuse of discretion has occurred. See General Electric Co. v. Mack, 375 So. 2d 452 (Ala.1979).
The trial court determined that the evidence regarding Dr. Hinnen's medical license, which was revoked partly because of Dr. Hinnen's improper sexual activity with patients, would be unduly prejudicial to the jury and had no probative value because of its lack of relationship to the alleged malpractice against Burdette. A trial court may exclude evidence, even when it is relevant, if it would serve little or no purpose other than to arouse prejudice in the jury. See C. Gamble, McElroy's Alabama Evidence § 21.01(4) (5th ed. 1996). Because this evidence did not tend to prove any fact of consequence in this action and because of its obvious potential for prejudice, we conclude that the trial court did not err in excluding it.
Ayres next contends that the trial court erred in its charge to the jury concerning her wrongful death claim, because, she contends, the charge ignored deterrence as a purpose for the punitive damages awarded for wrongful death. She claims that the charge instructed the jury to calculate damages solely on the basis of punishment, rather than to deter such acts in the future.
This Court has held that a jury charge on wrongful death is "faulty" if it tells the jury of the punitive purpose of wrongful death damages without acknowledging the deterrent purpose of those damages; see Sawyer v. Stabler, 279 Ala. 496, 187 So. 2d 251 (1966). Nevertheless, we find no error in the trial court's charge in this case. The trial court's charge correctly noted the punitive nature of damages available for wrongful death. In that regard, it informed the jury that the damages allowable under the Alabama Wrongful Death Act are "designed to punish a wrongdoer" and informed the jury that, if the jury was not convinced that Dr. Hinnen committed a "wrong worthy of punishment," then it must return a verdict for him. However, the trial court also noted the deterrent purpose of punitive damages, stating:
(Emphasis added.) The trial court's instruction properly explained the dual purposes of punitive damagespunishment and deterrenceand therefore was not erroneous.
Ayres also argues that she was prejudiced by a juror's failure to respond to a question during voir dire examination. When voir dire began, Ayres's attorney asked the veniremember to respond to questions that applied to them personally or to "a spouse, husband or wife, children, brother or *42 sister, parents, members of the immediate family." He later asked, "Does anybody else have anybody that's worked for, past or present, or has any relationship, business relationship, with Lakeshore Community Hospital?" At this point, Juror L. responded by stating that he had worked for the hospital "15 years ago"; when questioned whether that fact would affect his ability to sit in this case, he responded in the negative. Juror L. was selected for the jury. Ayres's counsel later discovered that this juror's brother had worked full-time at Lakeshore Community Hospital in the past and, according to the brother's testimony at a hearing on the motion for a new trial, was at the time of the trial working "a couple of days every two months or sometimes four days a month" at Lakeshore. The juror's sister-in-law also had worked part-time for Lakeshore. Juror L. did not mention these facts during voir dire.
At the hearing on Ayres's motion for a new trial, Juror L. testified that at the time of the voir dire he did not know that his brother was working at Lakeshore part-time. On cross-examination at that hearing, the juror stated:
Juror L. also testified at the hearing on the new trial motion that his sister-in-law had worked at Lakeshore; no further questions concerning her employment at Lakeshore were raised at the hearing. The juror further testified that his brother's working at Lakeshore did not influence his decision on this case, and the trial court stated that the juror's statement that he was not anxious to serve on the jury "certainly has the ring of truth to it."
In determining the merits of a motion for a new trial that is grounded on allegedly improper responses, or a lack of responses, by veniremembers during voir dire, the trial court must inquire as to whether the movant was probably prejudiced. If probable prejudice resulted from the veniremember's actions during voir dire, then the motion for new trial must be granted. Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970). In Freeman, the Court noted some of the factors that may be considered pertinent to the question of prejudice. Among those factors are "temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror's inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about." 286 Ala. at 167, 238 So. 2d at 336. The question of prejudice is a matter within the trial court's discretion. Eaton v. Horton, 565 So. 2d 183 (Ala.1990).
We conclude that the trial court did not err in denying Ayres's motion for a new trial based on Juror L.'s responses during voir dire. Although Ayres contends that Juror L. "intentionally withheld [the fact of] his brother and sister-in-law's employment with [Lakeshore]," we see no reason that the juror would withhold that information and yet state that he had previously worked for that same hospitala statement that easily could have led to his exclusion from the jury. The trial judge apparently saw no reason either. Juror L. testified that he was not prejudiced in favor of Lakeshore in his deliberations, and the trial court was convinced that his testimony was truthful. As the Freeman Court noted, the trial court hears the questions and answers during voir dire and is in the best position to decide the question of prejudice. Like the trial court in Colbert County-Northwest Alabama Healthcare Authority *43 v. Nix, 678 So. 2d 719 (Ala.1995), the trial court here was
We believe the trial court was certainly in the best position to determine whether Ayres was prejudiced by Juror L.'s failure to respond, and we find no abuse of discretion in its finding that no prejudice occurred.
The judgment is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, SHORES, and BUTTS, JJ., concur. | February 14, 1997 |
d9720c0e-7c0f-4a88-99d4-508b5c5bda02 | Yu v. Stephens | 591 So. 2d 858 | 1900998 | Alabama | Alabama Supreme Court | 591 So. 2d 858 (1991)
Hwa Young YU
v.
Jerriel B. STEPHENS, et al.
1900998.
Supreme Court of Alabama.
December 27, 1991.
*859 Susan A. McMillan of Berry, Ables, Tatum, Little & Baxter, P.C., Huntsville, for appellant.
Stuart M. Maples of Bradley, Arant, Rose & White, Huntsville, for appellees.
INGRAM, Justice.
This case concerns the interpretation of a lease agreement containing an option-to-purchase provision. The trial court found that § 6.03 of the agreement "unambiguously states a formula for the calculation of the Option Purchase Price, namely a formula based upon $460,000 amortized over twenty years at 12.5% interest." Based on this formula, the trial court found that all rental payments made during the term of the lease should be credited against this amortization formula, with all payments being first applied against accrued interest and the balance applied to principal each month. Yu, the lessee-purchaser, appeals.
The dispositive issue is whether the trial court erred in determining as a matter of law that the provision in question was unambiguous.
The record, in pertinent part, reveals the following: In 1985, Linda Colon executed a five-year lease agreement with Jerriel and Shirley Stephens. The lease gave Colon an option to purchase the property prior to the end of the lease term. In April 1986, Colon assigned her interest in the lease to Yu. The parties are in agreement that there was no intent to change, in any way, the provision of the lease.
In February 1989, Yu gave notice to the Stephenses that she was exercising the option. Yu contended to the Stephenses that the option purchase price would be approximately $236,271.25. The Stephenses disagreed, stating that the option purchase price pursuant to the lease agreement was approximately $436,577.24. The difference in the calculations of the option purchase price resulted from conflicting interpretations of § 6.03 of the lease.
Section 6.03 reads as follows:
(Emphasis added.) Yu then filed the present suit in the Circuit Court of Madison County, where the interpretation of the agreement was contested.
Whether an agreement is ambiguous is a question of law for the trial court. Terry Cove North v. Baldwin County Sewer Authority, Inc., 480 So. 2d 1171 (Ala. 1985). The agreement must be construed in its entirety, and a single provision or sentence is not to be disassociated from others having reference to the same subject matter. Englund's Flying Service, Inc. v. Mobile Airport Authority, 536 So. 2d 1371 (Ala.1988). Further, we point out that just because the parties allege different constructions of an agreement, it *860 does not necessarily mean that the agreement is ambiguous. Englund's.
Yu asserts that § 6.03 provides that the monthly rental payments are to be directly applied to the outstanding principal ($460,000) only and not any amortized principal. She argues that this interpretation is in keeping with the following sentence from the provision in question: "All monthly rental payments made by Lessee under the terms of this lease shall also be credited towards the amount due Lessor upon the exercise of Lessee's option to purchase."
Upon review of the agreement, we find Yu's interpretation of the provision to be unreasonable. Clearly, such a strained construction is not in keeping with the rest of § 6.03, specifically the sentence concerning the terms of amortization. To give effect to Yu's interpretation, the court would have to ignore the clear and plain meaning of the term "amortization."[1] The provision makes it clear that the balance of the purchase price shall be calculated based upon amortization of the purchase price over a 20-year period. Therefore, we find the only reasonable interpretation of the provision to be that the monthly payments made by the lessee are to be credited against the amortization schedule, with all payments being first applied against accrued interest and the balance applied to principal each month.
The judgment in this case is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and ADAMS, JJ., concur.
[1] An amortization plan for the payment of an indebtedness is one where there are partial payments of the principal, and accrued interest, at stated periods for a definite time. See Black's Law Dictionary 83 (6th ed. 1990). | December 27, 1991 |
0d5b03a8-ecf6-4ecd-9d32-5f434a3ea356 | Foremost Ins. Co. v. Parham | 693 So. 2d 409 | 1950507, 1951238 | Alabama | Alabama Supreme Court | 693 So. 2d 409 (1997)
FOREMOST INSURANCE COMPANY, GRAND RAPIDS, MICHIGAN; and Foremost Signature Insurance Company
v.
Reginald Eugene PARHAM, et al.
FOREMOST INSURANCE COMPANY, GRAND RAPIDS, MICHIGAN; Foremost Signature Insurance Company
v.
Mary MASSEY.
1950507, 1951238.
Supreme Court of Alabama.
March 14, 1997.
Rehearing Denied May 9, 1997.
*413 Robert W. Bradford, Jr. of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; and E. Elliott Barker of Pilcher & Pilcher, P.C., Selma, for appellants.
Jere L. Beasley, Frank M. Wilson, and P. Leigh O'Dell of Beasley, Wilson, Allen, Main & Crow, Montgomery; and Lynn W. Jinks III of Jinks, Smithart, Jackson & Daniels, Union Springs, for appellees.
HOUSTON, Justice.
The defendants, Foremost Insurance Company, Grand Rapids, Michigan, and Foremost Signature Insurance Company ("together hereinafter referred to as `Foremost'"), appeal from a judgment entered in this fraud case on separate jury verdicts for the plaintiffs, Reginald and Patricia Parham ($3,500 in compensatory damages and $3,000,000 in punitive damages on their misrepresentation claim and $3,000 in compensatory damages and $4,500,000 in punitive damages on their suppression claim) and Mary Massey ($3,000 in compensatory damages and $3,000,000 in punitive damages on her misrepresentation claim and $3,000 in compensatory damages and $4,500,000 in punitive damages on her suppression claim). We affirm conditionally.
This fraud action arose from separate purchases of mobile homes by the Parhams and Massey. The evidence, viewed in the light most favorable to the plaintiffs, shows the following: The plaintiffs purchased their mobile homes from C & C Manufactured Homes, Inc. ("C & C"). The Parhams purchased their mobile home on July 24, 1989, and Massey purchased her mobile home on February 5, 1990. In addition to selling them their mobile homes, C & C, through its sales representative, Robert Banks, sold the Parhams a Foremost mobile home homeowner's insurance policy, and sold Massey a similar policy. The plaintiffs financed their mobile homes, and insurance was required under the terms of their financing agreements. Foremost offered this insurance through C & C at the time of the sale of the mobile homes, even though C & C and its employees were not licensed by the Alabama Department of Insurance to sell such insurance. Foremost had provided C & C with applications, rate charts, worksheets, and written instructions describing how to fill out the forms. Although Foremost also did business through a licensed insurance agency in Guntersville, the Manning Agency, Inc., that agency, which was shown on one of the plaintiffs' sales documents as the agency servicing the policies, generally had no contact with *414 potential insureds. Instead, it performed the limited function of reviewing applications prepared by C & C and then forwarding them on to Foremost. C & C and Banks split a sales commission on the plaintiffs' policies with the Manning Agency. John Manning, the owner of the Manning Agency, testified that it was illegal for a licensed agent to split a sales commission with an unlicensed agent. Foremost's district manager, Douglas Carmichael, testified that he had recruited C & C to solicit applications for Foremost insurance policies. Carmichael also testified that no representative of C & C was licensed to sell insurance at the time the plaintiffs purchased their policies and that he was aware of that fact; that he suspected that sales commissions were being split with an unlicensed agent; and that C & C had sold Foremost insurance policies for at least six years before it finally obtained a license from the State.
Banks orally represented to the plaintiffs when they purchased their policies that their first year of coverage would not require the payment of a premium. However, the plaintiffs signed and were provided with various sales documents (e.g., a purchase agreement; a credit installment contract; an invoice and bill of sale; and a Foremost mobile home homeowner's worksheet), all of which indicated that premiums were charged for the first year's coverage$499 with respect to the Parhams and $397 with respect to Massey[1] and that the amount of those premiums had been included in the total amount financed by the plaintiffs in connection with the purchase of their mobile homes.[2] The plaintiffs relied on Banks's representation and signed these documents without reading them. Patricia Parham had completed high school. At the time of the trial, she was a corrections officer with the Bullock County Correctional System and a student at Troy State University in Montgomery, studying to be a registered nurse. Mary Massey had completed the 10th grade and part of the 11th grade and had later earned her GED or high school equivalency certification. At the time of the trial, she had been employed for 15 years as a materials handler at Cooper Lighting Company. Reading is one of her hobbies.
The evidence also indicates that of the several coverages provided by the plaintiffs' policies (e.g., mobile home, personal effects, personal liability, etc.) one was for damage to "adjacent structures." The policy states:
Banks quoted a single premium to the Parhams and a single premium to Massey, and sold each of the policies as a mobile home homeowner's "package policy," i.e., a policy containing multiple coverages (mobile home, adjacent structures, personal effects, personal liability, and medical payments) sold for a single premium. However, Foremost allocated a separate premium amount for each of the coverages, including the adjacent structures coverage. Banks did not ask the plaintiffs whether they had a need for any of the multiple coverages, including adjacent structures coverage, and he did not tell them that the coverage for adjacent structures could be dropped with permission from Foremost's underwriting department, with a corresponding reduction in the premiums (about $40 with respect to each policy), if they did not want or need that coverage.[3] When the Parhams *415 later received their policy, the declarations page showed that "INCL" had been typed on the line under "Adjacent Structures $3,000," indicating that coverage for damage to adjacent structures up to $3,000 was included. The declarations page of Massey's policy showed that "INCL" had been typed on the line under "Comprehensive Adjacent Structures $2,700," indicating that coverage for damage to adjacent structures up to $2,700 was included. The plaintiffs did not read their policies. When they purchased their mobile homes, the plaintiffs did not want adjacent structures coverage; however, while Massey's policy was in force, she did acquire a satellite dish that was protected by this coverage. A marketing survey that Foremost had prepared indicated that a significant percentage of mobile home purchasers in Alabama in 1987 and 1990, possibly in excess of 50%,[4] did not have certain adjacent structures and that many mobile home purchasers might not want or really need such coverage.
The plaintiffs filed this action on May 13, 1994, alleging misrepresentation (no premium for the first year's coverage) and suppression (failure to disclose that coverage for "adjacent structures, personal liability, medical payments, or damage to property of others" was included in the policy and that a specific portion of the total premium was allocated for each of those coverages) and seeking both compensatory and punitive damages. The thrust of the suppression *416 claim that was actually submitted to the jury, as we understand it, was that the plaintiffs were not given sufficient information to enable them to make a decision as to whether they wanted to purchase adjacent structures coverage. The plaintiffs' allegations concerning the nondisclosure of coverages for personal liability, medical payments, and damage to property of others were withdrawn and were not submitted to the jury as a basis for finding liability on the suppression claims. The defendants filed motions for a directed verdict as to the misrepresentation claims and the suppression claims, which the trial court denied. The jury returned its verdict on June 8, 1995, awarding the Parhams $3,500 in compensatory damages and $3,000,000 in punitive damages on their misrepresentation claim and $3,000 in compensatory damages and $4,500,000 in punitive damages on their suppression claim. The jury awarded Massey $3,000 in compensatory damages and $3,000,000 in punitive damages on her misrepresentation claim and $3,000 in compensatory damages and $4,500,000 in punitive damages on her suppression claim. On July 7, 1995, Foremost moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial or a remittitur. On August 22, 1995, the trial court scheduled a hearing on the remittitur issue for October 19, 1995. On September 26, 1995, the parties agreed to extend the time for ruling on the post-judgment motions until November 1, 1995. The trial court conducted a hearing on the remittitur issue on October 19, 1995. On October 26, 1995, the parties agreed to extend the time for ruling on the post-judgment motions until November 14, 1995. On November 14, 1995, the trial court denied Foremost's motion for a judgment notwithstanding the verdict and its motion for a new trial. However, the trial court did not rule on the remittitur motion. Foremost filed its notice of appeal to this Court on December 14, 1995. The trial court purported to enter a remittitur order on March 18, 1996, five months after the October 19, 1995, remittitur hearing and more than four months after it had lost jurisdiction over that post-judgment motion by not ruling on it by November 14, 1995. See Rule 59.1, Ala.R.Civ.P.; Ex parte Johnson Land Co., 561 So. 2d 506, 508 (Ala. 1990) ("[i]f the trial court allows a post-trial motion to remain pending, and not ruled upon, for 90 days, then the motion is denied by operation of law and the trial court loses its jurisdiction to further entertain that motion"). The remittitur order purported to reduce the amount awarded to the Parhams to $1,633.50 in compensatory damages and $750,000 in punitive damages on their misrepresentation claim and to $234.80 in compensatory damages and $2,500,000 in punitive damages on their suppression claim. The remittitur order purported to reduce the amount awarded to Massey to $1,200.93 in compensatory damages and $750,000 in punitive damages on her misrepresentation claim and to $228.50 in compensatory damages and $2,500,000 in punitive damages on her suppression claim.[5]
Foremost contends that the trial court erred in not entering a judgment in its favor as a matter of law or, in the alternative, that the trial court erred in not ordering a new trial or at least a further reduction in the verdicts. The following specific issues are presented:
With respect to the first issue, Foremost contends that the plaintiffs' claims were time-barred. Foremost argues that the Parhams' receipt of their sales documents on July 24, 1989, and Massey's receipt of her sales documents on February 5, 1990, and their receipt shortly thereafter of their insurance policies, all of which indicated that a premium was charged for the first year's coverage under both policies, put the plaintiffs on notice of any misrepresentation on Banks's part and, thus, commenced the running of the statutory limitations period with respect to the misrepresentation claims. Likewise, Foremost argues that the plaintiffs' receipt of their insurance policies shortly after purchasing their mobile homes, which indicated that adjacent structures coverage had been included in the policies, put the plaintiffs on notice that Banks had suppressed material information and, thus, that the running of the limitations period commenced at that time with respect to the suppression claims. According to Foremost, the limitations period on the plaintiffs' claims had expired long before they filed their action on May 13, 1994. The plaintiffs contend that they relied on Banks to accurately convey to them all of the pertinent information concerning their insurance policies. Therefore, according to the plaintiffs, they did not read any of the sales documents or their policies and, consequently, had no actual knowledge of facts that could have put them on notice of any fraud. The plaintiffs claim that they did not learn until early in 1994, after speaking with their attorney, that they might have been defrauded.
Claims of fraudulent misrepresentation and suppression are subject to a two-year statute of limitations. Ala.Code 1975, § 6-2-38(l). Prior to Hickox v. Stover, 551 So. 2d 259 (Ala.1989), and Hicks v. Globe Life & Accident Ins. Co., 584 So. 2d 458 (Ala.1991), this Court had held that a fraud claim accrued, thus commencing the running of the statutory limitations period, when the plaintiff discovered the fraud or when the plaintiff should have discovered the fraud in the exercise of reasonable care. Parsons Steel, Inc. v. Beasley, 522 So. 2d 253 (Ala.1988); Moulder v. Chambers, 390 So. 2d 1044 (Ala.1980); Jefferson County Truck Growers Ass'n v. Tanner, 341 So. 2d 485 (Ala.1977). The policy considerations underlying that objective standard, which this Court used in determining the statute of limitations issue in fraud cases, was aptly set forth in 51 Am.Jur.2d Limitations of Actions § 17 (1970), as follows:
However, in Hicks, a plurality of this Court rejected the long-standing rule that our objective standard of reviewing the statute of limitations issue in fraud cases incorporated the duty to read a document upon its receipt or presentation; and it held that "[t]he question of when a plaintiff should have discovered fraud should be taken away from the jury and decided as a matter of law only in cases where the plaintiff actually knew of facts that would have put a reasonable person on notice of fraud." 584 So. 2d at 463. (Emphasis in Hicks.) Hicks was a natural and predictable extension of Hickox, which had been decided less than two years before. In Hickox, this Court, by a vote of five to three, adopted what has become known as the "justifiable reliance standard." The history behind this Court's adoption of this standard, which basically eliminated a person's duty to read and to attempt to understand the contents of a document or documents received in connection with a particular transaction (consumer or commercial), was discussed at length in Johnson v. State Farm Ins. Co., 587 So. 2d 974, 977-79 (Ala. 1991):
There has been a tension among the Justices on this Court ever since the 140-year-old standard for determining the reliance issue in fraud cases was changed in Hickox. See, e.g., Hickox (Maddox, Houston, and Kennedy, JJ., concurring in part and dissenting in part, 551 So.2d at 266-68); Hicks (Shores, J., concurring in the result, 584 So.2d at 465) (Maddox, Houston, and Steagall, JJ., concurring in part and dissenting in part, 584 So.2d at 465-69) (Almon, J., dissenting, 584 So.2d at 469-70); Johnson (Shores, J., concurring specially, McKelvy v. Darnell, 587 So.2d 980). In fact, the present senior Justices on this Court have both called for a return to the law of fraud as it existed before Hickox, See Burroughs v. Jackson National Life Ins. Co., 618 So. 2d 1329, 1333 (Ala.1993) (Maddox, J., concurring specially); *421 Cleveland Auto Sales, Inc. v. Kelly, 620 So. 2d 622, 623 (Ala.1993) (Maddox, J., concurring specially); McCullough v. McCnalley, 590 So. 2d 229, 235 (Ala.1991) (Almon, J., joined by Maddox, J., concurring in part and dissenting in part). The concerns that have been expressed by at least four present members of this Court as to the impact the Hickox standard has had on the law of fraud were best expressed by Justice Almon in his dissent in Hicks:
584 So. 2d at 469-70.
After careful consideration, we conclude that the "justifiable reliance" standard adopted in Hickox, which eliminated the general duty on the part of a person to read the documents received in connection with a particular transaction (consumer or commercial), should be replaced with the "reasonable reliance" standard most closely associated with Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983). The "reasonable reliance" standard is, in our view, a more practicable standard that will allow the factfinder greater flexibility in determining the issue of reliance based on all of the circumstances surrounding a transaction, including the mental capacity, educational background, relative sophistication, and bargaining power of the parties. In addition, a return to the "reasonable reliance" standard will once again provide a mechanism, which was available before Hickox, whereby the trial court can enter a judgment as a matter of law in a fraud case where the undisputed evidence indicates that the party or parties claiming fraud in a particular transaction were fully capable of reading and understanding their documents, but nonetheless made a deliberate decision to ignore written contract terms. This Court in Hickox deviated from this State's public policy that had been expressed in our caselaw as early as 1849, see Munroe v. Pritchett, 16 Ala. 785 (1849), and that had been codified by the legislature in 1907. See Ala.Code 1975, § 6-5-101; Harton v. Belcher, 195 Ala. 186, 70 So. 141 (1915). We now conclude that that deviation was a mistake. Although this Court strongly believes in the doctrine of stare decisis and makes every reasonable attempt to maintain the stability of the law, this Court has had to recognize on occasion that it is necessary and prudent to admit prior mistakes and to take the steps necessary to ensure that we foster a system of justice that is manageable and that is fair to all concerned. See, e.g., Jackson v. City of Florence, 294 Ala. 592, 598, 320 So. 2d 68, 73 (1975), in which Justice Shores, writing for this Court, stated: "As strongly as we believe in the stability of the law, we also recognize that there is merit, if not honor, in admitting prior mistakes and correcting them."
For the foregoing reasons, we overrule Hickox, to the extent that it changed the law of fraud as it had existed prior thereto. Furthermore, we overrule Hicks, to the extent that it changed the standard that had previously existed for determining the statute of limitations issue in fraud cases. Because this return to the reasonable reliance standard represents a fundamental change in the law of fraud, we think it appropriate to make the new standard applicable in all fraud cases filed after the date of this decision, i.e., all cases filed after March 14, 1997.
The Parhams purchased their mobile home while the "reasonable reliance" standard, to which we return today, was the law in Alabama. Both the Parhams and Massey purchased their mobile homes while the statute of limitations standard in fraud cases to which we return today, was the law in Alabama. The record shows that the present action was filed almost 4 years and 10 months after the Parhams had purchased their mobile home and over 4 years and 3 months after Massey had purchased her mobile home. As Foremost correctly points out, the plaintiffs received documents when they purchased their mobile homes (most of which they signed) or shortly thereafter that *422 if read or even briefly skimmed would have put reasonable persons on notice that, contrary to Banks's representation, they had paid for their first year's coverage and that they had also purchased adjacent structures coverage. As previously noted, Patricia Parham had completed high school. At the time of the trial, she was a corrections officer with the Bullock County Correctional System and a student at Troy State University in Montgomery, studying to be a registered nurse. Mary Massey had completed the 10th grade and part of the 11th grade and later had earned her GED or high school equivalency certificate. At the time of the trial, she had been employed for 15 years as a materials handler at Cooper Lighting Company. Reading is one of her hobbies. Both Ms. Parham and Ms. Massey testified that had they read their sales documents and their insurance policies they would have learned that they had paid for their first year's coverage and that their policies included adjacent structures coverage. If we were to apply the objective standard for determining the statute of limitations issue in fraud cases that existed before Hicks, and that has been readopted today, we would hold that the plaintiffs should have discovered Banks's misrepresentation concerning the first year's premiums when they signed and received their sales documents. Because they each received their sales documents more than two years before filing this action, their misrepresentation claims would be barred by the two-year statute of limitations. Likewise, we would hold that the plaintiffs should have discovered when they received their insurance policies that Banks had not told them about the adjacent structures coverage. Because they each received their insurance policies more than two years before filing this action, their suppression claims would be barred by the two-year statute of limitations. However, under the majority's holding in Hicks, which is applicable in this case, the plaintiffs' receipt of the documents and their failure to read them did not entitle Foremost to a judgment as a matter of law on the ground that the statutory limitations period had expired. A jury question was presented as to whether the plaintiffs were justified in relying on what Banks had or had not told them. The trial court submitted this issue to the jury, and the jury obviously found that the plaintiffs had not acted unreasonably in relying on Banks's representations as to the cost of the first year's coverage and on his silence as to the inclusion of adjacent structures coverage. Because the evidence indicates that it was not until the early part of 1994 that the plaintiffs actually learned from their attorney that they had paid for their first year's coverage and that they had purchased adjacent structures coverage, the trial court properly declined to hold that as a matter of law the claims were barred by the statute of limitations, based upon the majority's holding in Hicks.
With respect to the second issue, Foremost contends that it was entitled to a judgment as a matter of law on the ground that the plaintiffs failed to present sufficient evidence to submit their misrepresentation and suppression claims to the jury. The plaintiffs counter with the argument that the evidence was more than sufficient to allow the jury to decide whether they were the victims of misrepresentation and suppression.
The elements of a misrepresentation claim are 1) a misrepresentation of material fact, 2) made willfully to deceive, recklessly, without knowledge, or mistakenly, 3) which was justifiably relied on by the plaintiff under the circumstances, and 4) which caused damage as a proximate consequence. Ala.Code 1975, § 6-5-101; Harrington v. Johnson-Rast & Hays Co., 577 So. 2d 437 (Ala.1991). In Chapter 7 of the Alabama Insurance Code ("Property, Casualty and Surety Insurance Representatives"), "agent" is defined in pertinent part in § 27-7-1 as "[a] natural person, partnership or corporation appointed by an insurer to solicit and negotiate insurance contracts on its behalf." The trial court instructed the jury as follows:
The jury could have reasonably found from the evidence in the present case that Foremost, through its district manager, Carmichael, was aware that C & C, through its sales representative, Banks, was acting as an unlicensed agent on Foremost's behalf when it solicited applications from the plaintiffs for Foremost insurance policies. The evidence also indicates, and the jury could have reasonably found, that Foremost was aware that Banks had not been properly trained and licensed; that Banks told the plaintiffs that they would not have to pay a premium for their first year's coverage; that that representation was false; and that the representation was motivated by the desire to sell policies and earn commissions. Furthermore, although Foremost argues strenuously that the plaintiffs could not have justifiably relied on Banks's misrepresentation to their detriment, there was evidence to the contrary. The plaintiffs testified that they relied on Banks's statement that they would incur no premium for their first year's coverage and, therefore, that they did not read the documents that they received in connection with their purchase of the mobile homes. Although Foremost ably argues that as a matter of law the plaintiffs could not have justifiably relied on Banks's statement, given the fact that the plaintiffs had in their hands certain documents (many of which they had signed) clearly showing that a premium had been charged, a jury question was nonetheless presented under the majority's holding in Hickox, supra, as to whether the plaintiffs, under the circumstances, justifiably relied on Banks's explanation concerning the first year's premium. Finally, the evidence shows that the plaintiffs incurred premium charges for their first year's coverage and that the premiums were included in the total amount financed. The plaintiffs testified that if they had known that a premium was going to be charged for their first year's coverage, they would have elected to pay cash for the coverage instead of incurring interest charges by having the premium included in the total amount financed. The evidence was sufficient for the jury to find that an intentional fraud was committed on the plaintiffs by a Foremost agent on Foremost's behalf. Based on the foregoing, we conclude that the plaintiffs' misrepresentation claims, seeking both compensatory and punitive damages, see Ala.Code 1975, § 6-11-27(a), were properly submitted to the jury.
The elements of a suppression claim are 1) a duty to disclose the facts, 2) concealment or nondisclosure of material facts by the defendant, 3) inducement of the plaintiff to act, and 4) action by the plaintiff to his injury. Wilson v. Brown, 496 So. 2d 756 (Ala.1986). Silence is not fraud unless an obligation to communicate a material fact exists. Such an obligation may arise where a confidential relation or "particular circumstances" exist. Ala.Code 1975, § 6-5-102; Trio Broadcasters v. Ward, 495 So. 2d 621 (Ala.1986). Under § 6-5-102, the particular circumstances that impose upon a party a duty to speak may arise from the relationship of the parties; the relative knowledge of the parties; the value of the particular fact; and other factors. Lowder Realty, Inc. v. Odom, 495 So. 2d 23 (Ala.1986).
As previously noted, the plaintiffs presented evidence indicating that Foremost allocated a specific premium to the adjacent structures coverage provided under its mobile home homeowner's policies and that that coverage, upon request, could have been dropped, with a corresponding reduction in the premium. Although the record contains no evidence that the plaintiffs and Banks had a confidential or fiduciary relationship that would have created a duty on Banks's part to disclose this information, or that the plaintiffs informed Banks that they had no adjacent structures and asked if this coverage could be deleted, the evidence does indicate that none of the plaintiffs, either personally or through the operation of a business, had any meaningful experience in buying property insurance or that they otherwise had any knowledge of the insurance industry that could have put them on notice that they did not have to purchase adjacent structures coverage *424 if they did not want or have any need for it. The plaintiffs, as ordinary consumers, had no way of knowing at the time they purchased their mobile homes and their mobile home homeowner's insurance that they could request that adjacent structures coverage not be included in their Foremost policies. Furthermore, as previously noted, a fact question was presented as to whether the plaintiffs acted reasonably in not reading their policies upon receiving them, even though those policies would have disclosed that adjacent structures coverage was included. In this respect, we note that the acts of suppression occurred at the time the plaintiffs purchased their mobile homes and submitted their applications for mobile home homeowner's insurance, not at the time they received their policies. See Hicks, at 462. The evidence also indicates that knowledge of the optional nature of the adjacent structures coverage under the Foremost policy would have been of value to the plaintiffs. Although Foremost presented compelling evidence that the policy was marketed as a "package" for the benefit of all of its customers, even those without adjacent structures at the time of the purchase, the plaintiffs testified that had they known that the adjacent structures coverage could be dropped, they would not have purchased it and incurred the additional expense. This Court has stated that "[w]here the defendant had superior knowledge of the suppressed fact and the defrauded party has been induced to take action that otherwise might not have been taken, the obligation to disclose is particularly compelling." Baker v. Bennett, 603 So. 2d 928, 935 (Ala.1992). With respect to the specific duty of an insurance company, we note that Carmichael testified as follows:
Based on the evidence presented, we conclude that there was sufficient evidence of each of the elements of the plaintiffs' suppression claim (duty to disclose a material fact; nondisclosure of that fact; inducement of the plaintiffs to act; and damage) to submit those claims to the jury. See Lowder Realty, Inc. v. Odom, supra; Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So. 2d 496 (Ala.1984). We emphasize, however, that by this holding we do not decide whether an insurer marketing a package policy with no optional coverages (coverages that could, upon request by the customer, be dropped with a corresponding reduction in the premium) is under a duty to inquire of the customer as to whether he or she wants or has a need for a specific coverage included in the policy and to disclose the existence of that coverage under the policy. We hold only that a duty does arise on the part of an insurer to disclose the existence of a specific coverage under the policy when, as shown by the evidence in this case, the insurer has specific knowledge that a significant number of customers may not want or have a need for the coverage and that the coverage could be dropped with a corresponding savings in premium to the customer. Under these circumstances, the customer should be informed that the coverage may not be desired or necessary for everyone and the customer should be allowed to make an informed decision as to whether to purchase the coverage.
Relying primarily on Musselman v. Colonial Bank of North Alabama, 554 So. 2d 973 (Ala.1989), Foremost contends that the plaintiffs had waived their suppression claims as a matter of law. The record indicates that the plaintiffs renewed their mobile home homeowner's policies and retained their coverage for adjacent structures after they had learned the facts that later formed the basis for their suppression claims. In this respect, the record indicates that the plaintiffs first learned of a suppression in connection with their adjacent structures coverage in February 1994, when their attorney brought the matter to their attention; that they filed this action on May 13, 1994, naming, among others, several fictitiously named defendants, but without naming Foremost as a defendant; that the Parhams renewed their policy *425 containing adjacent structures coverage in July 1994; that the plaintiffs amended their complaint on October 13, 1994, to state a claim of misrepresentation (free insurance) against Foremost; that Massey renewed her policy containing adjacent structures coverage in December 1994; that the plaintiffs amended their complaint on February 13, 1995, to state a claim of suppression against Foremost, based on allegations that Foremost had not disclosed to the Parhams the existence or the cost of the adjacent structures coverage; and that the plaintiffs amended their complaint on February 17, 1995, to state a claim of suppression against Foremost, based on allegations that Foremost had not disclosed to Massey the existence or the cost of the adjacent structures coverage. The plaintiffs testified that they left the decision to renew their policies up to their attorney. The record does not indicate exactly why the plaintiffs' attorney elected to renew the policies.
According to Foremost, the plaintiffs could not, as a matter of law, simultaneously retain their adjacent structures coverage and sue for damages for suppression of the fact that they were sold such coverage when they purchased their mobile homes. In Musselman, this Court, citing Holczstein v. Bessemer Trust & Savings Bank, 223 Ala. 271, 136 So. 409 (1931), noted that when a party, after renewing a promissory note, alleges fraud in the execution of the note, the renewal of the note with knowledge of the fraud could constitute a waiver of fraud as a defense to the enforcement of a note. Musselman involved various claims for damages, including claims based on allegations of fraud, surrounding the execution of the note. Although this Court indicated in Musselman that the rule stated in Holczstein could, under certain circumstances, be applicable so as to cause the waiver of damages claims as a matter of law, the summary judgment for the defendant bank was reversed because of the conflicting nature of the testimony. Musselman, in our view, is distinguishable from the present case in one important respect. In Musselman, the plaintiffs renewed the note in question before they filed their complaint. Had there not been other conflicts in the evidence that required resolution by a jury, the fact that the plaintiffs renewed the note before they filed their action might have constituted a waiver of their fraud claims. However, in the present case, the plaintiffs filed their complaint before they (or, as the record indicates, their attorney) made the decision to renew their policies. The plaintiffs did nothing before filing their complaint that would indicate an intention on their part to relinquish their fraud claims. Whatever reason the plaintiffs' attorney may have had for waiting until February 1995 to add the suppression claim against Foremost, or whatever reason the plaintiffs' attorney may have had after filing the complaint for renewing the Foremost policies and retaining adjacent structures coverage for the plaintiffs, we cannot hold, as a matter of law, based on the facts before us, that the plaintiffs intended to waive their fraud claims or that their attorney intended to do so on their behalf. The burden of proving an affirmative defense is on the defendant. Lightfoot v. Floyd, 667 So. 2d 56 (Ala.1995); Pegram v. Hebding, 667 So. 2d 696 (Ala.1995); J. Colquitt, Alabama Law of Evidence, § 12.1 (1990). In Alabama, a waiver requires the intentional relinquishment of a known right, and that intentional relinquishment must be shown in an unequivocal manner. Putman Constr. & Realty Co. v. Byrd, 632 So. 2d 961 (Ala.1992). We conclude that Foremost did not establish the existence of that defense as a matter of law. Waiver is normally an issue for the jury, Putman, supra; Braswell Wood Co. v. Fussell, 474 So. 2d 67 (Ala.1985); and the jury was instructed on that defense.
Citing Chrysler Credit Corp. v. McKinney, 456 So. 2d 1069 (Ala.1984), Foremost contends that the trial court erred in not ordering a new trial on the ground that one of the jurors was not qualified under Ala.Code 1975, § 12-16-60, to serve on the jury. Section 12-16-60 provides, in pertinent part, as follows:
The record indicates that Foremost learned through a post-trial interview that one of the jurors suffered from diabetes and a hearing problem. That interview, which was conducted by a paralegal employed by Foremost's attorney, was recorded on audiotape. Foremost argued in support of its new trial motion that the juror's diabetic condition worsened while the trial was in progress and that, as a result, she was not capable of rendering satisfactory jury service. The trial court conducted a hearing on the matter and questioned the juror as to whether she had understood and fully participated in the trial proceedings and jury deliberations. The juror responded that she had. As part of its cross-examination of the juror, Foremost's attorney sought to use the tape to "refresh her recollection and/or impeach [her] testimony." The trial court refused to allow Foremost to question the juror about the tape and refused to admit into evidence either the tape or the juror's medical records, which, according to Foremost, confirmed the "long-standing and severe nature of her diabetic problems." Foremost maintains that the trial court erred in restricting its examination of the juror. The plaintiffs contend that it was within the trial court's discretion to question the juror and to limit questions by Foremost's attorney, who, according to the plaintiffs, was merely attempting to impermissibly impeach the jury's verdict.
Without deciding whether the trial court overstepped its bounds in restricting Foremost's examination of the juror, we hold that Foremost waived its right to mount a post-trial challenge to the juror's qualifications under § 12-16-60. The record indicates that the trial court asked the following question during voir dire: "Are there any of you that are incapable by reason of physical or mental ability to render satisfactory jury service?" This was the only question that the trial court asked that even came close to inquiring as to a prospective juror's medical condition. The challenged juror did not respond to this question, and the record does not indicate that the question called for a response on her part. Foremost's primary contention is that the juror's diabetic condition worsened after voir dire, while the trial was in progress. The record also fails to reveal any questions on the part of Foremost's attorney during voir dire pertaining to any of the prospective jurors' medical conditions and to the effect that those medical conditions might have on their jury service. In Holland v. Brandenberg, 627 So. 2d 867 (Ala.1993), this Court considered the criteria for jury qualification found at § 12-16-60. The qualifying factor at issue in Holland is found at § 12-16-60(a)(4) (the prospective juror has "lost the right to vote by a conviction for any offense involving moral turpitude"). In Holland, the prospective jurors were not specifically asked whether any of them had been convicted of an offense involving moral turpitude, yet this potentially disqualifying factor was raised in a motion for new trial. This Court held that "[f]ailure to use due diligence in testing jurors as to qualifications or grounds of challenge is an effective waiver of grounds of challenge; a defendant cannot sit back and invite error based on a juror's disqualification." 627 So. 2d at 870. As in Holland, nothing in the record in the present case indicates that the complaining party's attorney followed up on the trial court's general inquiry as to whether any of the prospective jurors were physically unable to serve. There is no indication that Foremost's attorney asked the prospective jurors whether any of them suffered from any kind of chronic medical condition that might from time to time worsen and, thus, have an adverse effect on their ability to serve as jurors. Foremost was not entitled to a new trial on this ground. See, also, McBride v. Sheppard, 624 So. 2d 1069 (Ala.1993); General Motors Corp. v. Hopper, 681 So. 2d 1373 (Ala.1996).
Foremost also contends that it should have been granted a new trial on the grounds that the trial court committed several *427 errors during the trial that either individually or cumulatively prejudiced it in the eyes of the jury. Foremost first argues that the trial court improperly commented on the credibility of one of the witnesses, Robert Banks, the sales representative for C & C who sold the insurance policies to the plaintiffs. Banks, who was called as a hostile witness by the plaintiffs, testified that he did not tell the plaintiffs that they would incur no charge for their first year's coverage. According to Foremost, the credibility of Banks's testimony was called into question during the following colloquy between the parties' attorneys and the trial court:
The plaintiffs argue that the trial court's comment was not directed toward the evidence and that even if that comment could be construed as an indirect comment on Banks's credibility, it was not so prejudicial as to require a new trial.
It is improper for a trial court to comment on the weight and effect of the evidence or on the credibility of a witness. Macon County Comm'n v. Sanders, 555 So. 2d 1054 (Ala.1990). After reviewing the record, we conclude that no reversible error occurred. As we understand Foremost's argument, the prejudice supposedly occurred when the trial judge stated that he had issued the bench warrant "because he [Banks] failed to obey a subpoena." According to Foremost, the trial court should not have made this comment without conducting a further inquiry to determine the exact circumstances surrounding the issuance of the subpoena. Although it might have been prudent for the trial court to do as Foremost has suggested, the record does not indicate that Foremost objected to the comment, asked for a curative instruction, or moved for a mistrial. Without Foremost's at least calling this comment to the trial court's attention and without its seeking a clarification from the witness as to whether he had failed to obey the subpoena, we can conclude only that Foremost waived any error that may have resulted from the trial court's comment.
Foremost next argues that the trial court erred to reversal in admitting the testimony of Lewis Tunstall, Rachael Morgan, and Aaron Grubbs as evidence of a pattern or practice of fraud on Foremost's part. Although it acknowledges that evidence of similar fraudulent acts is admissible to prove an alleged fraudulent scheme, according to Foremost the testimony of these witnesses was not admissible because their experiences were not substantially similar to the events that formed the basis of this action. See Ex parte Georgia Casualty & Surety Co., 531 So. 2d 838, 841 (Ala.1988) (evidence of other fraudulent transactions by the same party and substantially of the same character, contemporaneous in point of time, or nearly so, is admissible to show fraud in respect to a matter wholly distinct from the previous *428 transaction). The plaintiffs contend that no error resulted in the admission of Tunstall's testimony because, according to the plaintiffs, the trial court later instructed the jury to disregard his testimony. The plaintiffs argue that the testimony of Morgan and Grubbs, even if found to be irrelevant and, thus, inadmissible, could not have so prejudiced Foremost as to require a new trial.
The record indicates that the trial court initially overruled Foremost's objection to Tunstall's testimony, but later reversed its decision:
According to the plaintiffs, the trial court's instruction to the jury cured any prejudice that may have resulted from the admission of Tunstall's testimony. Foremost argues that Tunstall's testimony was so prejudicial that no instruction by the trial court could have cured it. After reviewing the record, we do not believe that the admission and subsequent exclusion of Tunstall's testimony requires reversal. Tunstall testified that he had purchased a mobile home in January 1991 from a dealer in Greene County who had also sold him a Foremost homeowner's insurance policy. Tunstall further testified that that dealer had misrepresented to him that he would incur no charge for the first year's premium. Although this testimony was relevant to show a pattern or practice of fraud on the part of mobile home dealers representing Foremost in Alabama, the trial court excluded it, based on the conduct of one of the plaintiffs' attorneys during a deposition. The trial court fully explained to the *429 jury why it was excluding Tunstall's testimony, and it specifically instructed the jury not to consider it for any purpose. Foremost has cited no cases indicating that the trial court's instruction was insufficient as a matter of law, and we are not persuaded that the initial admission of Tunstall's testimony constituted reversible error.
Likewise, we find no basis for reversal because of the admission of the testimony of Morgan and Grubbs. Morgan testified, over objection, that she had purchased a mobile home in 1988 from a dealer in Tuscaloosa and that that dealer had sold her a Foremost mobile home homeowner's insurance policy. She further testified that that dealer misrepresented to her that she would incur no charge for her first year's coverage and that she was not told anything about having adjacent structures coverage. Foremost was allowed to fully cross-examine Morgan, and, although she expressed uncertainty as to the circumstances surrounding the purchase of her mobile home, she was adamant in her belief that she had been sold a Foremost insurance policy in 1988. Foremost introduced evidence (a copy of a declarations page from an insurance policy) indicating that the insurance policy issued to Morgan in 1988 was, in fact, a three-year policy issued by American Security Insurance Companynot by Foremostfor a premium of $619. This documentary evidence, as well as the testimony of Peggy Ferrell, a manager in Foremost's customer relations department, indicated that Foremost did not insure Morgan until 1991, when it issued her a policy that, according to Ferrell, replaced the one previously issued by American Security. In rebuttal, the plaintiffs introduced a copy of an "Installment Note Security Agreement and Disclosure Statement" prepared in connection with Morgan's purchase of her mobile home. On that document, a $619 premium is shown as having been paid to "insurance companies." Directly beneath that provision, the following appears: "$.00 to Foremost Insurance Company for 00 month extended warranty contract." We are uncertain as to what this means; however, it appears the plaintiffs introduced the document in an attempt to show that Foremost was somehow involved in the purchase of Morgan's mobile home. Based on our review of the record, we agree with the trial court that Morgan's credibility was a question for the jury and that it would be inappropriate to rule that as a matter of law the admission of her testimony constituted reversible error. As previously noted, in fraud cases, where intent, knowledge, and scienter constitute essential elements of the offense, evidence of similar frauds and misrepresentations is admissible. In passing upon the admissibility of such collateral matters, great latitude must be extended so as to allow the admission of any relevant evidence bearing upon the ultimate issue of fraud. In this respect, questions of relevancy rest largely within the discretion of the trial court. Its ruling concerning the relevancy of pattern and practice evidence should not be disturbed on appeal unless the court's discretion has been abused. Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665 (Ala.1981). We cannot hold, based on the record before us, that the trial court abused its discretion.
Grubbs testified that he had a Foremost mobile home homeowner's policy with adjacent structures coverage and that he had inquired of Foremost whether his policy covered a damaged fence on his property. Grubbs testified, over objection, that a Foremost representative told him that his fence was not covered as an "adjacent structure" under his policy. Foremost presented evidence indicating that it had no record of Grubbs having filed such a claim. We agree with Foremost that Grubbs's testimony should have been excluded on relevancy grounds. The experience of this witness was not substantially similar to the experience made the basis of the plaintiffs' complaint. However, even though this testimony was erroneously admitted, the dispositive issue is whether its admission constituted reversible error. Rule 45, Ala.R.App.P., provides, in pertinent part, that "[n]o judgment may be reversed or set aside, nor new trial granted in any civil ... case on the ground of ... the improper admission ... of evidence ... 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 *430 probably injuriously affected substantial rights of the parties." After careful review, we conclude that although Grubbs's testimony injected extraneous matters into the trial (matters that were not relevant to the issues presented by the plaintiffs' complaint), we do not believe that this testimony, by itself, was so prejudicial as to necessitate a new trial.
Foremost also contends that the plaintiffs' attorney, through "repeated narrative questions," was "allowed to testify" before the jury. Citing no cases in support, Foremost argues that this form of questioning by the plaintiffs' attorney was prejudicial and requires a new trial. Although Foremost contends that the plaintiffs' improper questioning was pervasive during the trial, the only two questions specifically complained of by Foremost in its briefs were as follows:
As the above quotes illustrate, Foremost objected to both questions. The plaintiffs' attorney withdrew the first question and after Foremost's objection to the second question the trial court appears to have admonished the plaintiffs' attorney to be more careful in *431 asking his questions. In any case, we also note that the trial court instructed the jury very specifically at the close of the case that statements made by the attorneys were not to be considered as evidence. After carefully reviewing these questions in context, we cannot hold that a new trial is required.
Foremost argues that the trial court exhibited hostility and bias toward it during the course of the trial and subsequent posttrial proceedings and that the trial court's conduct requires a new trial. One instance cited by Foremost occurred as the trial court was instructing the jury to disregard Tunstall's "pattern and practice" testimony:
According to Foremost, this comment conveyed to the jury that its attorneys' objections were somehow improper. Foremost maintains that this "sarcastic" comment by the trial court suggested to the jury that "when [Foremost] made proper objections to improper evidence or questions, a jury could be expected to perceive [it] as acting improperly."
After examining the context in which this statement was made, we agree with Foremost that the comment was uncalled for. Even the plaintiffs concede in their brief "that the trial court's comparison of defense counsel to `the boy who cried wolf may have been improvident." The trial court has a duty to be thorough, courteous, patient, just, and impartial. Allen v. State, 290 Ala. 339, 276 So. 2d 583 (1973). Although we agree with Foremost that comments such as this one are not appropriate and could, under certain circumstances, operate so as to have a negative impact on the overall fairness of a trial, we are not persuaded that that was the case here, especially in light of the following instruction that the trial court gave to the jury at the close of the case:
We note that we have carefully considered the other instances cited by Foremost as indicating open hostility on the trial court's part toward it and its attorneys. Although our examination of the record does cause us to question some of the trial court's comments and actions (e.g., locking one of Foremost's attorneys out of the courtroom for a few minutes while testimony was being taken), we, nonetheless, can find no basis for *432 holding that the trial court's conduct so prejudiced Foremost as to require a new trial.
As to Foremost's contention that the jury's finding of liability was against the weight of the evidence, we note that an order denying a motion for a new trial on this ground 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 the reviewing court that it is wrong and unjust. Dorton v. Landmark Dental Care of Tuscaloosa, P.C., 577 So. 2d 425 (Ala.1991). As we have noted previously, the evidence was in dispute as to whether Foremost, through C & C and its sales representative, Banks, made misrepresentations and suppressed material information in connection with the plaintiffs' purchase of their mobile home homeowner's insurance. Suffice it to say that the purpose of a jury trial is to resolve such disputes in the evidence. We cannot hold that the jury's finding of liability on Foremost's part was against the weight of the evidence.
Foremost contends that the jury's compensatory damages awards were not supported by the evidence. It argues that those awards indicate bias, passion, or prejudice on the jury's part and that those awards must be reduced on the grounds that they are constitutionally flawed. We agree.
The right to a trial by jury in civil cases is guaranteed by § 11, Alabama Constitution; therefore, a jury verdict will not be set aside unless it is flawed, thereby losing its constitutional protection. Upon finding a verdict to be flawed, the trial court, pursuant to Rule 59(f), Ala.R.Civ.P., and this Court, pursuant to Ala.Code 1975, § 12-22-7, may interfere with it. In considering questions of the adequacy or excessiveness of jury awards, each case must be determined on its own facts. Wilson v. Dukona Corp. N.V., 547 So. 2d 70 (Ala.1989).
After carefully reviewing the record, we consider it quite clear that the trial court, as well as all the parties, understand that the compensatory damages awarded by the jury bore no rational relation to the evidence presented. There was no evidence that the Parhams sustained any damage for which compensation was due other than an economic loss of $1,633.50 (the amount of the first year's premium, plus interest) with respect to their misrepresentation claim and $234.80 (the amount of the premiums paid for adjacent structures coverage, plus interest) with respect to their suppression claim. The jury was not instructed that it could award the Parhams damages for mental anguish. Therefore, the $3,500 award of compensatory damages on the Parhams' misrepresentation claim and the $3,000 award of compensatory damages on their suppression claim were clearly excessive. Likewise, there was no evidence that Massey sustained any harm or loss for which compensation was due other than an economic loss of $1,200.93 with respect to her misrepresentation claim (the amount of the first year's premium, plus interest) and $228.50 (the amount of the premiums paid for adjacent structures coverage, plus interest) with respect to her suppression claim. The jury was not instructed that it could award Massey damages for mental anguish. Therefore, the $3,000 award of compensatory damages on Massey's misrepresentation claim and the $3,000 award of compensatory damages on her suppression claim were clearly excessive. Thus, we conclude that the jury's award of compensatory damages was constitutionally flawed; that it therefore lost the presumption of correctness that normally attaches to a jury's verdict; and that each award of compensatory damages is due to be reduced to the amount supported by the evidence.
Because the jury found for the plaintiffs, we must assume that Banks made the oral misrepresentation, which he denies making, that the first year's insurance premium was free to the Parhams and to Massey. Ms. Parham is a high school graduate and was at the time of trial attending college. Massey *433 received her GED in 1980 and enjoys reading as a hobby. The Parhams and Massey admitted that they executed various documents and received copies of them, including copies of the installment contracts, and that they had ample opportunity to read the installment contracts before signing them. Ms. Parham testified that her installment contract "shows plainly on the front of it the amount being financed included $540 for insurance on [her] mobile home." Massey testified that "it is certainly easy to understand that if you look at [the C & C installment contract,] you can tell that you're paying for... insurance." The installment contracts on the first page provide:
At Item 4(a)(1) on the Parhams' installment contract, the figure $540 appears. At Item 4(a)(1) on Massey's installment contract, the figure $397 appears.
In addition to the installment contract, the Parhams signed, and were given copies of, a mobile home invoice and bill of sale, which showed "Cost of Insurance 12 months $540.00"; and the $540 was added to the unpaid balance to arrive at the amount to be financed. In addition to the installment contract, Massey signed, and was given a copy of, a mobile home invoice and bill of sale, which showed "Cost of Insurance 12 months $397.00"; and the $397 was added to the unpaid balance to arrive at the amount to be financed.
Even assuming that Banks made the oral misrepresentations, it is clear, given the undisputed facts, that at the time this oral misrepresentation was made to the Parhams the Parhams would not have had a viable cause of action for misrepresentation. Torres v. State Farm Fire & Casualty Co., supra, 438 So.2d at 758-59:
See the following cases, which all follow Torres on this point: Wilson v. Brown, 496 So. 2d 756 (Ala.1986); First National Bank of Mobile v. Horner, 494 So. 2d 419 (Ala.1986); Newman v. First National Bank of Mobile, 497 So. 2d 106 (Ala.1986); Hughes v. Cloud, 504 So. 2d 734 (Ala.1987); Webb v. Reese, 505 So. 2d 321 (Ala.1987); Turner v. Landmark Chevrolet, Inc., 514 So. 2d 1337 (Ala.1987); Hinson v. Center Court Productions, 514 So. 2d 1374 (Ala.1987); Southern Life & Health Ins. Co. v. Smith, 518 So. 2d 77 (Ala. 1987); Syx v. Midfield Volkswagen, Inc., 518 So. 2d 94 (Ala.1987); Traylor v. Bell, 518 So. 2d 719 (Ala.1987); Pranzo v. ITEC, Inc., 521 So. 2d 983 (Ala.1988); Cherokee Farms, Inc. v. Fireman's Fund Ins. Co., 526 So. 2d 871 (Ala.1988); and Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081 (Ala.1989).
On July 28, 1989, by a five-to-three vote of the Justices on this Court, the law of fraud changed. Hickox v. Stover, 551 So. 2d 259 (Ala.1989). Therefore, at the time Banks made the oral misrepresentation to Massey (February 5, 1990), it was for a jury to determine whether this oral misrepresentation constituted actionable fraud under the facts.
When the oral misrepresentations were made to the Parhams and Massey, the Alabama Legislature had enacted § 6-11-21, which capped most punitive damages awards *434 at $250,000, and at that time this Code section had not been declared unconstitutional by this Court.
There is nothing that would have constituted notice to Foremost that acts of C & C's employee Banks, relating to Foremost's mobile home homeowner's insurance policies could subject Foremost to punitive damages awards of millions of dollars.
What was the disparity between the actual harm suffered by the plaintiffs and their punitive damages awards?
On the misrepresentation claim, the jury awarded the Parhams $3,500 in compensatory damages and $3,000,000 in punitive damages; this gives a punitive/compensatory ratio of 857 to 1. The trial court purported to reduce the Parhams' compensatory damages to $1,633.50 and their punitive damages to $750,000; that would have given a punitive/compensatory ratio of 459 to 1.
On the misrepresentation claim, the jury awarded Massey $3,000 in compensatory damages and $3,000,000 in punitive damages; this gives a punitive/compensatory ratio of 1,000 to 1. The trial court purported to reduce Massey's compensatory damages to $1,200.93 and her punitive damages to $750,000; that would have given a punitive/compensatory ratio of 624 to 1.
There was no evidence that the Parhams sustained any compensable loss other than an economic loss of $1,633.50. There was no evidence that Massey sustained any compensable loss other than an economic loss of $1,200.93.
Alabama provides a fine of not more than $1,000 for making a fraudulent statement or representation regarding an application for insurance. See Ala.Code 1975, §§ 27-12-23 and 27-1-12.
The jury's punitive damages award to the Parhams and its punitive damages award to Massey, when compared to the maximum fine that could be imposed, both give a ratio of 3,000 to 1. After the trial court's purported reduction, the ratio would have been 750 to 1 for each award.
To sum up, the plaintiffs signed documents that clearly showed the amount of their homeowner's insurance premium and clearly showed that their first year's premium was being financed, and they were given copies of those documents. The oral representation that the plaintiffs would not have to pay the first year's premium would not have afforded the Parhams a cause of action at the time this oral misrepresentation was made to the Parhams (Torres, supra). The plaintiffs were required to have insurance on their mobile homes, and they always had that insurance. The only damage or loss the plaintiffs suffered was an economic loss, which consisted of the first year's insurance premium and interest on that amount from the date of financing to the date of trial (for the Parhams, $1,633.50; for Massey, $1,200.93). The plaintiffs will receive this in compensatory damages. Given this small amount of compensatory damages, however, the costs of litigation for these particular plaintiffs constitutes an important factor in determining the reasonable punitive award. After thoroughly considering all the pertinent factors set out in Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), and BMW of North America, Inc. v. Gore, ___ U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996), we hold that $60,500 is the maximum amount of punitive damages recoverable by the Parhams under their misrepresentation claim. We also hold that $60,500 is the maximum amount of punitive damages recoverable by Massey under her misrepresentation claim. We note that the plaintiffs settled with the defendant C & C, the employer of Banks, who made the misrepresentation, for $42,000 for Massey and $42,000 for the Parhams.
How reprehensible was the defendant's suppression of the fact that adjacent structures coverage was included in the plaintiffs' policies and that such coverage could have been dropped and the plaintiffs' premiums reduced approximately $40 a year, if Foremost's underwriters approved dropping *435 this coverage? Neither the Parhams nor Massey inquired about adjacent structures coverage or expressed a desire not to have this coverage. Both the Parhams and Massey were furnished a copy of their mobile home homeowner's insurance policy, which clearly showed that adjacent structures coverage was included. Neither the Parhams nor Massey objected to this. It is possible that there was no actionable tort at the time this matter was allegedly suppressed from the Parhams. See Wilson v. Brown, supra, and Southern Life & Health Ins. Co. v. Smith, supra, which were also inferentially overruled when the law of fraud was changed in Hickox v. Stover, supra (July 28, 1989), which was after the suppression as to the Parhams but before the suppression as to Massey. There was no body of law in existence in this State showing that the activity of the defendant constituted "clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to" either the Parhams or Massey. § 6-11-20(a). Only in the discussion of the sufficiency of the evidence as to suppression in this case did we hold that the conduct of the defendant was or could have been found to be "suppression"; that, in and of itself, was a close question, given this Court's opinion in Lambert v. Mail Handlers Benefit Plan, 682 So. 2d 61 (Ala.1996).
What was the disparity between the actual harm suffered by the plaintiffs and their punitive damages awards?
On the suppression claim, the jury awarded both Massey and the Parhams $3,000 in compensatory damages and $4,500,000 in punitive damages; this gives a punitive/compensatory ratio of 1,500 to 1. The trial court purported to reduce the Parhams' compensatory damages to $234.80 and their punitive damages to $2,500,000; that would have given a punitive/compensatory ratio of 10,647 to 1. The trial court purported to reduce Massey's compensatory damages to $228.50 and her punitive damages to $2,500,000; that would have given a punitive/compensatory ratio of 10,941 to 1.
We find no specific civil fine dealing with an insurer's suppression of the extent of coverage. However, if that is a violation of the Insurance Code, the maximum fine would be $1,000. The punitive damages awarded by the jury to the Parhams and to Massey were in a ratio of 4,500 to 1 when compared to the maximum fine that could be imposed. Even after the purported reduction, there would have been a ratio of 2,500 to 1.
Again, to sum up, Foremost was receiving from the plaintiffs premiums for coverage that Foremost should have known the plaintiffs did not want or need. However, the Parhams' compensatory damages award ($234.80) refunds to them the premium for this coverage that they did not want, and this economic loss is the only damage proved by the Parhams. Given this small amount of compensatory damages, however, the costs of litigation for these particular plaintiffs constitutes an important factor in determining the reasonable punitive award. After a consideration of all of the Green Oil and BMW factors, we hold that $114,500 is the maximum amount of punitive damages recoverable by the Parhams under their suppression claim. Massey's compensatory damages award ($228.50) also refunds to her the premium for this coverage that she did not want, and this economic loss is the only damage proved by Massey. Therefore, we hold that $112,500 is the maximum amount of punitive damages recoverable by Massey under her suppression claim.
For the foregoing reasons, the judgment in case number 1950507 is affirmed, conditioned upon the Parhams' accepting a remittitur of all compensatory damages in excess of $1,868.30 and a remittitur of all punitive damages in excess of $175,000. The judgment in case number 1951238 is affirmed, conditioned upon Massey's accepting a remittitur of all compensatory damages in excess of $1,429.43 and a remittitur of all punitive damages in excess of $173,000. The plaintiffs shall, within 28 days after the date of this opinion, file remittiturs with this Court; *436 otherwise, this judgment will be reversed and the cause remanded for a new trial.
1950507 AFFIRMED CONDITIONALLY.[*]
1951238 AFFIRMED CONDITIONALLY.*
HOOPER, C.J., and MADDOX and KENNEDY, JJ., concur.
ALMON, SHORES, and SEE, JJ., concur specially.
COOK, J., concurs in the result.
BUTTS, J., dissents.
ALMON, Justice (concurring specially).
I concur with most of what is said in the majority opinion and write specially to point out that in 1991 I disapproved of this Court's interpretation of our fraud law:
McCullough v. McAnalley, 590 So. 2d 229, 235 (Ala.1991) (Almon, J., concurring in part and dissenting in part).
SHORES, Justice (concurring specially).
The justifiable reliance standard adopted by this Court in Hickox v. Stover, 551 So. 2d 259 (Ala.1989), permitted a victim of fraud to assume that he was told the truth and permitted him to put his claim before a jury merely by presenting evidence that the defendant *437 had misrepresented the facts. The defendant could escape liability merely by telling the truth. When I voted to concur in Hickox v. Stover, that proposition did not seem unreasonable. It may, however, have been naive. If it is naive to assume that parties to a business transaction will not lie, it is equally naive to assume that misrepresentations are never made in order to defraud.
That said, however, I agree that the Court's departure from the reasonable reliance rule and its adoption of the more subjective justifiable reliance standard may have allowed careless victims of fraud to reach a jury with their claims. It may also have encouraged victims of fraud to avoid discovering potential fraud when it could have been discovered by checking oral representations against the documents memorializing the transaction. It may even, as has been suggested, have encouraged people to falsely accuse another of misrepresenting the facts, in order to bring a lawsuit. It is reprehensible to deliberately misrepresent material facts in order to cheat another. It is equally reprehensible to lie in order to bring a lawsuit. The law can tolerate neither.
For these reasons, I concur in the decision to return to the objective reasonable reliance standard. This standard worked satisfactorily for many years, and it permits the jury to get at the truth and to decide whether both parties acted reasonably under all of the circumstances.
Because courts are made up of human beings, courts sometimes make mistakes. In my opinion, this court made a mistake in departing from a standard in fraud cases that had served well. As a member of the majority that made that departure, I am willing to admit that the rule should not have been changed.
SEE, Justice (concurring specially).
History demonstrates that severing liberties from responsibilities invites social and legal disorder. See generally Edmund Burke, Reflections on the Revolution in France and on the Proceedings in Certain Societies in London Relative to That Event, in III The Works of Edmund Burke 308-11, 314-35 (Boston, Little, Brown, and Co. 1865). Alabama's experience with the "justifiable reliance" standard for fraud is an example of the price paid for severing legal rights from concomitant responsibilities.
To sustain a claim of fraud, the plaintiff must show that he suffered damage as a proximate result of his reliance on a misrepresentation of material fact. Ala.Code 1975, § 6-5-101; Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757, 758 (Ala.1983). This Court has adopted two different standards for determining such reliance. For more than a century it applied the "reasonable reliance" standard.[6] In 1989, this Court abandoned that standard for what has come to be called the "justifiable reliance" standard.[7] The choice of standard impacts both *438 the merits of the claim and the time in which the claim must be brought.
With respect to the merits of a fraud claim, the "reasonable reliance" standard affords the buyer the right to rely on a representation only if he fulfills his responsibility, or duty, to exercise ordinary prudence. Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413, 415 (Ala.1980) ("where a party has reason to doubt the truth of the representation or is informed of the [actual] truth before he acts, he has no right to act thereon"). In contrast, under the "justifiable reliance" standard, the buyer has the right to rely on a representation of the seller, but has no correlative duty to act reasonably.[8]Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989) (providing that a particular buyer has the right to rely on a representation of a seller even though a reasonable man would not have so relied).
With respect to the statute of limitations for a fraud claim, the "reasonable reliance" standard requires the buyer to act reasonably to discover fraud. If he does, he has the right, within the applicable limitations period, to bring his claim. See Gonzales v. U-J Chevrolet Co., 451 So. 2d 244 (Ala.1984) (providing that the limitations period for fraud begins to run when the plaintiff "should have discovered ... facts which would provoke inquiry by a person of ordinary prudence"). In contrast, the "justifiable reliance" standard effectively affords the buyer the right to assert a fraud claim without the duty to act reasonably to discover the fraud. See Hicks v. Globe Life & Acc. Ins. Co., 584 So. 2d 458, 463 (Ala.1991) (stating that unless the particular plaintiff "actually knew" of facts that would have put him on notice of the fraud, the jury decides when the statutory limitations period began to run).
For example, Buyer and Seller voluntarily enter into an arm's length transaction for the purchase of insurance. Buyer wants the most coverage for the least premium, while Seller wants the most premium for the least coverage. The written contract plainly and clearly provides for $9,000 of coverage. Without reading it, Buyer signs the contract. Three years later Buyer suffers a loss, receives $9,000, and files a fraud claim alleging that Seller orally represented that the contract provided $10,000 of coverage. Should a court allow such a claim to go to a jury? "Justifiable reliance" says "Yes." "Reasonable reliance" says "No."[9]
Fundamentally, the question is: Should Buyer's right to rely on Seller's representation be tied to Buyer's duty to take reasonable precautions for himself? Or, should Buyer's right to rely be independent of any duty to act reasonably in his own behalf?
The consequences of severing the buyer's right to rely from his duty to act reasonably can be understood only by examining the dramatic impact that such severance has had both inside and outside the courtroom. First, severing the buyer's right to rely from his duty to act in a reasonable manner has discouraged buyers from reading their contracts. It has reduced the traditional costs associated with such laxity[10] by insulating the buyer from its consequences and by providing *439 an incentive for the buyer to recast his own carelessness as the seller's "fraud." Under this relaxed standard, a jury can permit a buyer, who has negotiated and voluntarily agreed to an express contractual obligation, to escape that obligation based on the mere allegation of a misrepresentation. See Hicks, 584 So. 2d at 469 (Almon, J., dissenting) ("The new standard of `justifiable reliance' gives to parties claiming fraud undue leeway to ignore written contract terms and allows in some cases the automatic creation of a jury issue by a plaintiff's statement in contradiction of such written terms.").
Second, the "justifiable reliance" standard has greatly enlarged the potential plaintiff class for fraud actions. It has broadened the plaintiff class to include those who unreasonably relied, as well as those who reasonably relied. See Hickox, 551 So. 2d at 263 (allowing plaintiffs who received reasonable notice, but failed to read their contract, to pursue a fraud claim). Also, using the "justifiable reliance" standard to interpret the statute of limitations has expanded the plaintiff class to include not only those who acted reasonably and timely to discover fraud, but also those who failed to act reasonably. See Hicks, 584 So. 2d at 464 (allowing plaintiff who had possession of contract for approximately four years, and chose not to read it, to pursue a fraud claim).
Third, the adoption of the "justifiable reliance" standard has deprived trial judges of the summary judgment procedure as a means to eliminate fraud cases that should not consume scarce judicial resources. Under the justifiable reliance standard, both the merits of the reliance and the time of discovery by the buyer have become automatic jury issues. See Hickox, 551 So. 2d at 267-68 (Kennedy, J., concurring specially in part; dissenting in part) (arguing in dissent that summary judgment for defendant on statute of limitations issue should be affirmed where the buyer had reasonable noticea written lettermore than two years before filing the action).
Weighed against the cost of requiring buyers to act as reasonable citizens, the cost of the experiment with "justifiable reliance" has been too high. Unbound by the terms of their contracts, unimpeded by any prospect of summary judgment, and lured by the promise of gain,[11] plaintiffs have choked the courts with a flood of fraud litigation. This serves as an example of the price paid for severing rights from concomitant responsibilities. The law should not promote the disorder of profligate litigation or encourage people to enter into contracts for the purpose of acquiring a fraud claim.[12]
Today, this Court returns to the "reasonable reliance" standard to restore the bond between the right to rely and the responsibility to act reasonably.[13]
I concur.
BUTTS, Justice (dissenting).
Although I agree with the majority that the punitive damages awards in this case are excessive and should be remitted, I must nevertheless disagree with the majority's interpretation and application of BMW of North America, Inc. v. Gore, 517 U.S. ___, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). I was not a member of this Court when it issued the original opinion in BMW of North America, Inc. v. Gore, 646 So. 2d 619 (Ala. 1994), and I do not believe that today's majority opinion settles, or even addresses, the true issue that the United States Supreme Court has raised in its reversal in Gorehow a defendant may be assured of adequate notice of the conduct that will subject him to punishment and adequate notice of the severity *440 of punishment that he might expect for such conduct. The majority has merely reiterated the elements of Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), and I do not agree that doing so provides a correct interpretation of Gore. Moreover, I dissent from the majority's ex mero motu rejection of the justifiable reliance standard in fraud cases and now write to address that issue.
The majority states that the justifiable reliance standard basically eliminates a person's "duty ... to read the documents received in connection with a particular transaction (consumer or commercial)." 693 So. 2d at 418. The majority envisions cases where the "party or parties claiming fraud in a particular transaction were fully capable of reading and understanding their documents, but nonetheless [make] a deliberate decision to ignore written contract terms." 693 So. 2d at 421. The majority emphasizes that one of the plaintiffs in this case enjoys reading as a hobby, as though this vests her with the abilities of a seasoned attorney; however, unless insurance policies and their language are her literature of choice, it is difficult to see how this hobby would place her on the same level of understanding as the insurance company.
I believe that the majority of this Court simply ignores the commonsense reality that consumers who want to buy insurance, an automobile, or a home must first sign complex documents that have been crafted to favor the party across the table from them. The people who write these documents develop exceptions and exclusions that limit the benefit a consumer will receive from the transaction, and then hide these limitations behind the specialized language of corporate attorneys. It is no surprise that even educated consumers find it difficult to fully understand what they must sign and be bound by; this is precisely why they often rely so heavily upon representations that are made to them as to the meaning of certain terms and provisions, particularly when they are made in a friendly voice and with an assuring smile.
I do not believe that the justifiable reliance standard should take away a consumer's responsibility to prudently conduct his or her business affairs; the consumer should remain alert to obvious falsehoods and should not close his or her eyes to avoid discovery of the truth. Moreover, I recognize that there are instances where a consumer may unfairly or even dishonestly blame an honest businessperson for a misrepresentation, without having attempted to read and understand the document at issue. I do not believe the law should reward consumer dishonesty or place an unfair burden upon one who makes an innocent representation to the consumer. However, there should be a level playing field between those who profit and those who pay, so that the person who has superior knowledge of a document has the duty to tell the truth about it.
In the absence of meaningful statutes to impose criminal or civil punishment for fraud in this state, lawsuits and jury verdicts have become the only means that many consumers have to protect themselves. As I stated in my dissent in Life Ins. Co. of Georgia v. Johnson, 684 So. 2d 685, 719 (Ala.1996), "[i]t is clear that Alabama needs stronger consumer protection laws and a realistic means to enforce them." I cited as an example the fact that Alabama's Insurance Department, with a scant budget of less than $2 million, a staff of fewer than 30 professional employees, including only 4 consumer protection specialists, is responsible for regulating Alabama's $6 billion insurance industry, composed of 1100 companies. 684 So. 2d at 719. Certainly, most fraudulent acts, and the lawsuits that result from them, would diminish or disappear altogether if simple truth became the order of the day, but this will not happen without action by all three branches of government.
The legislature of this state should recognize fraud as the criminal act and civil wrong that it is, and treat it accordingly. In Alabama there is no real criminal penalty for consumer fraud, and the $2,000 civil fine in the Deceptive Trade Practices Act is not even a slap on the wrist. The legislature should enact meaningful criminal fraud statutes that impose strong punishments and *441 should increase the civil penalty to an amount that will sting when a sting is needed. Of course, any newly enacted criminal and civil fraud laws will succeed when the attorney general's office, and others charged with the responsibility of enforcing our laws, vigorously carry them out. Moreover, the executive branch should include an officer, perhaps even a cabinet member, to lead a consumer protection department in charting a middle ground between the competing interests of businesses and consumers. For too long, the other branches of government have failed to lead the attack on consumer fraud, although they alone have the power to fight it at its source. Instead, the legislative and executive branches have left the judiciary to resolve the disputes that commonsense, visionary leadership could have prevented, and litigation has become the first and only line of defense against consumer fraud. In sum, I believe that if those with the power to do so would arm the State of Alabama with reasonable criminal and civil consumer protection laws and then courageously enforce them, it would finally serve notice that persons who wish to defraud Alabama citizens will do so at their peril.
Until such action is taken, it is left to the courts of this state to fairly resolve the issues of fraud that will continue to arise unabated, and I believe the majority today retreats from that task. When this Court adopted the "justifiable reliance" standard in 1989, it did not break radical new ground in American jurisprudence; rather, it adopted the position that is established in the majority of jurisdictions and that reflects the progressive development of the law of fraud.[14] The Court recognized a modern standard of business ethics that demands that factual statements be made carefully and honestly, so that consumers need not assume that they are consistently being lied to, but may rely upon what they are told unless it is patently false. The majority of this Court now abandons the progress it made and regresses to the law of the 1840's, adopting a standard of business ethics wherein it is assumed that any one may be expected to overreach another in a bargain if he can and that only a fool will expect common honesty. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 108, at 751-52 (5th ed.1984) (emphasis added).
As of today, in a state where lawsuits are brought to obtain and force the necessary funding for adequate public secondary education, the majority assumes that a high school graduate is fully capable of understanding the intricacies of documents drawn up by corporate lawyers and is capable of recognizing any and all falsity in statements made to them by those who profit the most *442 from such statements. Even a college graduate, when reading contract provisions such as those stated in the documents appearing as appendices to this special opinion, might naturally look to the party with superior knowledge of the documents and simply ask "What does this mean?" and expect an honest answer.
To the majority of this Court, that expectation of honesty is far too great. The crushing burden of truthfulness that the justifiable reliance standard imposed on the party with superior knowledge of the truth has been lifted and the so-called "balance" is restored; those with greater knowledge and bargaining power are free to lie about the complicated documents that they draft for their profit, and the consumers who are least able to understand the documents are free to catch themif they can.
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*453
[1] The sales documents indicate that Massey's premium was $397; her policy states that the premium was $396. Those documents estimated the Parhams' premium to be $540. The actual premium was $499.
[2] The record is not clear as to whether Massey signed her Foremost mobile home homeowner's worksheet.
[3] Peggy Ferrell (spelled "Ferrell" in the record;" "Farrell" in the plaintiffs' brief), a customer relations manager for Foremost, testified in pertinent part as follows:
"Q. All right. You are familiar with policies that your company writes on mobile homes aren't you?
"A. Yes, I am.
"Q. Could adjacent structures coverage have been removed from policies sold to Ms. Massey and Ms. Parham?
"A. It could be removed with permission of underwriting.
"Q. Do you recall what you told us on your deposition, and I'm not going to spend all day going back and forth on this, but do you remember you told us no?
"A. Yes, I remember that. There is a reason for that, that I would like to explain.
"THE COURT: Go ahead.
"A. The reason is that if an insured desires coverage that is not inthat does not have Foremost Insurance or rather does not have adjacent structures, we would put them in a program that does not have that.
"....
"A. Typically, what we do if thethat is the secondary program if the insured is adamant that they don't want that policy number changed, we can remove the coverage from the program that they are in with permission.
"Q. What if they didn't even know that they had adjacent structures coverage at all, if the agent didn't explain it to them that sold it to them?
"A. I wouldn't know ifhow that had occurred. The policy clearly [points] out they have the coverage.
"Q. In fact, they bought a package deal didn't they?
"A. Yes, they did.
"Q. And their package included adjacent structures coverage?
"A. Yes.
"Q. And if they didn't have adjacent structures on their property they still had adjacent structure coverage?
"A. That would be true if they didn't have adjacent structures.
"Q. And they paid a premium for it every year, am I correct on that?
"A. Yeah.
"Q. At the time they bought their policy, could both Ms. Parham and Ms. Massey have obtained a policy without adjacent structures coverage?
"A. Yes.
"....
"Q. Okay. Do you believe that a customer always has the option to either take adjacent structures coverage or not?
"A. Yes, they would have had that option.
"...
"Q. Would you recall on Ms. Massey whether or not she could have purchased the optional coverage?
"A. I don't understand your question.
"Q. Could Ms. Massey have bought a policy without adjacent structures coverage?
"A. Yes."
[4] The evidence was in dispute as to the exact percentage of those mobile home homeowners who were shown as not having certain adjacent structures. The survey itself was not admitted into evidence. Testimony at trial indicated that the mobile home homeowners surveyed were asked, "What is the approximate total value of all structures which are not attached to your mobile home, such as a shed, garage, satellite dish, barn, et cetera?" Those surveyed were to respond to this question by placing a dollar amount on the appropriate line or by checking a box that said "have no other structure." On examination by the plaintiffs' attorney, Foremost's designated corporate representative, John Johnson, indicated that the percentages of those mobile home homeowners who did not have certain adjacent structures in 1987 and 1990 were in excess of 50% (specifically, 56% in 1987; 66% in 1990). However, on examination by Foremost's attorney, Johnson indicated that the mobile home homeowners who did not have certain adjacent structures in 1987 and 1990 were in the 40% to 41% range.
[5] The Manning Agency was also named as a defendant and the jury awarded the Parhams $3,500 in compensatory damages on their misrepresentation claim and $3,000 in compensatory damages on their suppression claim against that defendant. The jury also awarded Massey $3,000 in compensatory damages on her misrepresentation claim and $3,000 in compensatory damages on her suppression claim against the Manning Agency. The jury assessed no punitive damages against the Manning Agency, and it did not appeal.
[*] Note from the Reporter of Decision: On June 3, 1997, the Supreme Court issued certificates of judgment in these two cases, following the plaintiffs' filing of remittiturs. In case 1950507 the Court entered this order:" IT IS NOW CONSIDERED, ORDERED AND ADJUDGED that the judgment of the circuit court be reduced to $176,868.30 and as thus reduced, the judgment of the circuit court is hereby affirmed, with interest and costs." In case 1951238 the Court entered this order: "IT IS NOW CONSIDERED, ORDERED AND ADJUDGED that the judgment of the circuit court be reduced to $174,429.43 and as thus reduced, the judgment of the circuit court is hereby affirmed, with interest and costs."
[6] As Justice Houston points out, Alabama courts employed the objective "reasonable reliance" standard for fraud actions until 1989. See, e.g., Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983) (applying "reasonable reliance" standard to affirm summary judgment against plaintiffs who, had they acted reasonably, would have discovered the truth); Munroe v. Pritchett, 16 Ala. 785, 789 (1849) (embracing "reasonable reliance" standard by stating that a purchaser has no "right to rely" on representations where "the purchaser, had he exercised ordinary prudence, could have attained correct knowledge").
[7] Hickox v. Stover, 551 So. 2d 259 (Ala.1989) (adopting "justifiable reliance" standard to reverse summary judgment for defendants where plaintiffs did not check on the value of insured property when told to do so by the defendant's agent). I note that the majority of our neighboring states has avoided Alabama's unfortunate experience by retaining the objective "reasonable reliance" standard, instead of adopting the subjective standard that we have labelled "justifiable reliance." Compare Garcia v. Charles Evans BMW, Inc., 222 Ga.App. 121, 473 S.E.2d 588, 590 (1996) (upholding defendant's summary judgment on fraud count where plaintiff failed to read the contract); Winstead v. First Tennessee Bank N.A., Memphis, 709 S.W.2d 627, 631 (Tenn. App.1986) (stating that where ordinary diligence would have uncovered a problem, buyer cannot attack the validity of the contract on the basis of fraud); and Taylor v. Kenco Chemical & Mfg. Corp., 465 So. 2d 581, 586 (Fla.Dist.Ct.App.1985) (stating that buyer could not recover punitive damages for fraud where he had the clear opportunity to read the contract) with Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So. 2d 1254, 1259 (Miss. 1991) (allowing buyer to bring fraud claims regarding addendum to contract after buyer signed contract without reading to see if addendum had been included).
[8] The "justifiable reliance" standard shifts the duty to safeguard the buyer's interests from the buyer to the seller and emphasizes the facial falsity of the seller's representation. See Harris v. M & S Toyota, Inc., 575 So. 2d 74, 77-78 (Ala.1991) ("the new standard of justifiable reliance places a burden on the party making the statementthe burden of knowing the truthfulness of a statement"); Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1088 (Ala.1989) (Hornsby, C.J., concurring specially) (stating that the justifiable reliance standard merely requires a plaintiff not to rely on "patently ridiculous representations" such as promises of the "moon").
[9] This assumes, of course, that Buyer does not fall within that narrow class of consumers that, through lack of education, physical infirmity, or other cause, cannot understand their contracts. See, e.g., Lloyd v. Jordan, 544 So. 2d 957 (Ala. 1989); Webb v. Reese, 505 So. 2d 321 (Ala.1987); Williamson v. Matthews, 379 So. 2d 1245 (Ala. 1980).
[10] See 3 Arthur Linton Corbin, Corbin on Contracts § 607, at 656 (1960) (reciting the traditional standard for unilateral mistake that "[o]ne who signs or accepts a written instrument without reading it with care is likely to be surprised and grieved at its contents later on").
[11] See generally Green Oil Co. v. Hornsby, 539 So. 2d 218, 223 (Ala.1989) (providing that the size of punitive damages awards should "encourage plaintiffs to bring wrongdoers to trial").
[12] See Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1088 (Ala.1989) (Hornsby, C.J., concurring specially) ("Alabama courts should not serve as the means for advancing such `counterschemes.'").
[13] See Torres, 438 So. 2d at 758-59 ("Because it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one's own interest, the right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests.") (emphasis added).
[14] A majority of jurisdictions utilizes the "justifiable reliance" standard as one of the elements of a fraud claim. See Barber v. National Bank of Alaska, 815 P.2d 857 (Alaska 1991); Calandro v. Parkerson, 936 S.W.2d 755 (Ark.1997); Alliance Mortgage Co. v. Rothwell, 10 Cal. 4th 1226, 44 Cal. Rptr. 2d 352, 900 P.2d 601 (1995); Robert K. Schader, P.C. v. Etta Industries, Inc., 892 P.2d 363 (Colo.App.1994); Zirn v. VLI Corp., 681 A.2d 1050 (Del.Supr.1996); Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So. 2d 168 (Fla.App.1995); Hanlon v. Thornton, 218 Ga.App. 500, 462 S.E.2d 154 (1995); Weber v. DeKalb Corp., 265 Ill.App.3d 512, 202 Ill.Dec. 155, 637 N.E.2d 694 (1994), appeal denied, 158 Ill. 2d 566, 645 N.E.2d 1369, 206 Ill.Dec. 847 (1994); Carlson v. Vondrak, 555 N.W.2d 238 (Iowa App.1996); Seigle v. Jasper, 867 S.W.2d 476 (Ky.App.1993); Dousson v. South Central Bell, 429 So. 2d 466 (La.App. 1983); McCarthy v. U.S.I. Corp., 678 A.2d 48 (Me.1996); Tytel v. Massachusetts Mut. Life Ins. Co., 104 Md.App. 765, 1995 WL 551268 (1995); Cormack v. American Underwriters Corp., 94 Mich.App. 379, 288 N.W.2d 634 (1979); Florenzano v. Olson, 358 N.W.2d 175 (Minn.App.1984), reversed on other grounds, 387 N.W.2d 168 (Minn.1986); Mark Twain Kansas City Bank v. Jackson, Brouillette, Pohl & Kirley, P.C., 912 S.W.2d 536 (Mo.App.1995); Cechovic v. Hardin, 273 Mont. 104, 902 P.2d 520 (1995); Blanchard v. Blanchard, 108 Nev. 908, 839 P.2d 1320 (1992); Bronstein v. GZA GeoEnvironmental, Inc., 140 N.H. 253, 665 A.2d 369 (1995); Barry L. Kahn Defined Benefit Pension Plan v. Township of Moorestown, 243 N.J.Super. 328, 579 A.2d 366 (1990); Ruiz v. Garcia, 115 N.M. 269, 850 P.2d 972 (1993); Landes v. Sullivan, 651 N.Y.S.2d 731 (N.Y.App.Div.1997); Helms v. Holland, 478 S.E.2d 513 (N.C.App.1996); Burr v. Board of Comm'rs of Stark County, 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986); Mallette v. Children's Friend & Service, 661 A.2d 67 (R.I.1995); Forsberg v. Burningham & Kimball, 892 P.2d 23 (Utah App. 1995); Silva v. Stevens, 156 Vt. 94, 589 A.2d 852 (1991); Martin v. Era Goodfellow Agency, Inc., 188 W.Va. 140, 423 S.E.2d 379 (1992); Chitwood v. A.O. Smith Harvestore Products, Inc., 170 Wis.2d 622, 489 N.W.2d 697 (Wis.App.1992), review denied, 494 N.W.2d 210 (Wis.1992); Rissler & McMurry Co. v. Sheridan Area Water Supply Joint Powers Board, 929 P.2d 1228 (Wyo.1996). | March 14, 1997 |
0602d086-ff0c-4250-a9ff-25cda7b6bb0a | Palm Harbor Homes, Inc. v. Crawford | 689 So. 2d 3 | 1951156 | Alabama | Alabama Supreme Court | 689 So. 2d 3 (1997)
PALM HARBOR HOMES, INC.
v.
Rosemond D. CRAWFORD and Cecilia Ann Crawford.
1951156.
Supreme Court of Alabama.
January 10, 1997.
Rehearing Denied March 14, 1997.
*5 W. F. Horsley of Samford, Denson, Horsley, Pettey & Martin, Opelika; James R. McKoon, Jr., Phenix City; Walter R. Byars of Steiner, Crum & Baker, Montgomery; and J. Pelham Ferrell, Clayton, GA, for Appellant.
Sam E. Loftin of Loftin, Herndon & Loftin, Phenix City, for Appellees.
BUTTS, Justice.
The defendant, Palm Harbor Homes, Inc., appeals from a trial court judgment based on a jury verdict in favor of the plaintiffs Rosemond D. Crawford and Cecilia Ann Crawford. We affirm in part, reverse in part, and remand.
Rosemond Crawford purchased for himself and his wife Cecilia Crawford a custom-built mobile home manufactured by Palm Harbor; he purchased it from All Star Mobile Homes, Inc. All Star is a retailer of Palm Harbor products in Opelika, Alabama. In July 1992, before Mr. Crawford purchased the mobile home, the Crawfords visited the Palm Harbor factory in Boaz, Alabama, and took a factory tour. The Crawfords testified that during their visit to the factory, they were told that if that they bought a Palm Harbor home, Palm Harbor would "do everything for them except sell them the home."
During the visit, the Crawfords were given a brochure that contained an introduction by "your Palm Harbor retailer" and described a guided tour of the factory. The last page of the brochure referred to a "Palm Harbor Sales Center" and listed several ways the sales center would assist the purchaser of a Palm Harbor home. At that point, the brochure included the following statement: "We will handle the delivery and setup of your home just as though we were the ones who were going to live in it."
In August 1992, Mr. Crawford ordered a custom-built, double-wide Palm Harbor home from All Star for $41,000. He made a $4,100 down payment on the home at that time. Although the Crawfords testified that up to that point they had still not been informed that Palm Harbor would not set up their mobile home, the purchase agreement with All Star that Mr. Crawford signed provided that delivery and setup of the home was to be performed by All Star.
After the Crawfords' home was manufactured by Palm Harbor, it was delivered to the All Star lot in October 1992. While still located on the All Star lot, the Crawfords' home was accidentally damaged when a truck delivering another mobile home backed into it. All Star contacted Palm Harbor regarding the damage, and Palm Harbor dispatched an employee to repair the home. However, neither All Star nor Palm Harbor disclosed to Mr. Crawford that the new home had been damaged.
A few days before the scheduled meeting for Mr. Crawford to close the purchase of the mobile home, All Star telephoned him and informed him that Virgil Adams, Sr., would visit the site the Crawfords had chosen to have the home set up on. Although Mr. Adams had been employed by All Star to set up the mobile home, Mr. Crawford testified that he was not told at that time who Mr. Adams worked for. On October 23, 1992, Mr. Crawford completed the closing transaction for the purchase of his mobile home at the All Star office. Mrs. Crawford was not a party to the purchase of the home.
Approximately a week after the closing, and after the mobile home had been delivered to its site, Mr. Crawford located the mobile home's installation manual inside the mobile home. The installation manual included the Palm Harbor home warranty. He had not seen or read the Palm Harbor warranty before that time. The setup of the home by All Star's crew of workers directed by Mr. Adams took several weeksmuch longer than the Crawfords had been told it would take.
After the Crawfords moved in, representatives from All Star conducted a walk-through of the mobile home in November 1992, and made a list of items needing correction. The list was forwarded to Palm Harbor for repair under its warranty. Palm Harbor did not send a representative to repair the items until almost two months later, in January 1993, and the man did not perform all of the *6 requested repairs. The Crawfords discovered further defects and sent another list to All Star and Palm Harbor. The Crawfords were notified that a Palm Harbor repairman would arrive to perform the repair work on February 21, 1993, but no repairman arrived on that date.
On February 25, 1993, the Crawfords made a complaint regarding the condition of their mobile home to the Alabama Manufactured Housing Commission ("AMHC"). Palm Harbor rescheduled the repair work for March 6, 1993, but again no repairman arrived on that date. Thereafter, a representative of the AMHC inspected the Crawfords' home and compiled a lengthy list of needed repairs. More than 20 of the needed repairs were attributed to manufacturing defects; however, others were attributed to a faulty, unlevel setup of the home. The AMHC forwarded the list to Palm Harbor, but Palm Harbor took no action in regard to those defects other than to send a representative to the Crawfords' home to make his own list of required repairs. Then in May 1993, Palm Harbor sent Mr. Adams and his crew, the same workers All Star had hired to set up the Crawfords' home, to do repair work on the home. However, Mrs. Crawford would not let them perform the work, telling them she had learned they were not licensed by the AMHC.
The Crawfords filed suit in August 1993, alleging breach of express and implied warranties against Palm Harbor and All Star, and alleging that Palm Harbor, All Star, and Virgil Adams, Sr., had negligently or wantonly caused or allowed the mobile home to be set up improperly. The complaint was later amended to add claims against Cannon Manufactured Housing Group, All Star's parent company. The amended complaint also added claims alleging that Palm Harbor had intentionally or recklessly misrepresented that it would handle the delivery and setup of the Crawfords' home, and alleging that Palm Harbor and All Star had fraudulently suppressed the fact that the mobile home had been damaged.
In January 1995, All Star, Cannon, and Mr. Adams filed a motion to stay the trial pending arbitration of the claims against them according to the terms of the sales contract between All Star and Mr. Crawford. In March 1995, the trial court entered an order staying trial of the claims against All Star and Cannon, in favor of arbitration, and denying the stay as to Mr. Adams. However, in July 1995, the trial court also referred the Crawfords' claims against Mr. Adams to arbitration.
In August 1995, nearly eight months after All Star, Cannon, and Adams had moved for arbitration, and five months after the motion had been granted as to All Star and Cannon, Palm Harbor moved to compel arbitration. The trial court denied the motion; however, Palm Harbor did not file an interlocutory appeal of that ruling.
The Crawfords then filed a second amended complaint, alleging several counts against Palm Harbor: (1) breach of implied and express warranties (as to both Mr. and Mrs. Crawford),[1] (2) fraudulent misrepresentation that it would handle the delivery and setup of the mobile home (as to Mr. Crawford), (3) fraudulent suppression of the fact that the home had been damaged (as to Mr. Crawford), and (4) fraudulent misrepresentation that the home was free of defects and had been constructed in compliance with federal standards (as to Mr. Crawford). The Crawfords sought compensatory and punitive damages.
The case went to trial in November 1995. Palm Harbor moved for a directed verdict at the close of the Crawfords' evidence and again at the close of all evidence. The trial court denied the motions and submitted the case to the jury. The jury returned two verdicts: a general verdict in favor of Mr. Crawford awarding $63,000 in compensatory damages and $1,000,000 in punitive damages, and a verdict in favor of Mrs. Crawford on her breach of warranty claims awarding $50,000 in compensatory damages for emotional *7 distress and physical injury.[2] The trial court entered a judgment based on the verdicts. Palm Harbor then moved for a J.N.O.V., a new trial, or remittitur. Following a Hammond[3] hearing, the trial court denied Palm Harbor's post-judgment motions. Palm Harbor appeals.
Palm Harbor has raised several issues on appeal: (1) whether the trial court erred in denying its motion to compel arbitration, (2) whether the trial court erred in denying its motions for a directed verdict and submitting the fraud claims to the jury, (3) whether the trial court erred in submitting the claim of punitive damages to the jury, (4) whether the trial court erred in denying its motion for a J.N.O.V., a new trial, or remittitur, and (5) whether the jury's award of punitive damages is unconstitutionally excessive. Palm Harbor raises no issue relating to the Crawfords' claims based on breach of warranty.
We first address the issue whether the trial court erred by denying Palm Harbor's motion to compel arbitration of the Crawfords' claims against it. Although there was no arbitration agreement between Palm Harbor and the Crawfords, Palm Harbor argues that the Crawfords' claims against it should have been referred to arbitration based on the broad language of the arbitration clause contained in the mobile home purchase agreement between All Star and Mr. Crawford. Although it was not a signatory to the arbitration agreement, Palm Harbor, relying on Ex parte Gates, 675 So. 2d 371 (Ala.1996), argues that the language of the arbitration agreement is such that Palm Harbor, as the manufacturer of the home, was due to be included as a party to the arbitration.[4]
In response, the Crawfords argue that the trial court correctly denied Palm Harbor's motion to compel arbitration. They make several arguments in support of their position, including the argument that Palm Harbor waived any right it had to arbitration. The Crawfords point out that Palm Harbor waited for two years after they had filed their complaint, and nearly eight months after All Star, Cannon and Mr. Adams had moved for arbitration, to file its own motion for arbitration. They also point out that Palm Harbor did not seek arbitration until just before the first trial date. They contend that by waiting so long to seek arbitration, and by failing to immediately appeal the trial court's order denying arbitration, Palm Harbor indicated a clear intent not to pursue arbitration.
In August 1992, the trial court denied Palm Harbor's motion to arbitrate, based on several grounds, including waiver. It is well established that a trial court ruling denying a motion to compel arbitration is an appealable interlocutory order. 9 U.S.C. § 16; Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897 (Ala.1995); Long v. Industrial Dev. Bd. of the Town of Vincent, 619 So. 2d 1387 (Ala.1993); A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala.1990). However, Palm Harbor did not appeal the trial court's denial of its motion to compel arbitration, even though the trial was delayed and did not begin until November, several months later.
In Whitesell, this Court explained:
Viewing all the facts of this case, we find it clear that Palm Harbor waived any right it may have had to compel arbitration by substantially invoking the litigation process, and that ordering the Crawfords to submit to arbitration now, after a lengthy trial and the rendering of a jury verdict, would cause them to suffer substantial prejudice. We conclude that the following facts clearly constitute a waiver of arbitration: (1) Palm Harbor's delay, in relation to All Star, Cannon, and Mr. Adams, in initially moving to compel arbitration, and (2) its failure to appeal from the trial court's denial of its motion for arbitration, and choosing instead to defend the claims against it at a jury trial. Only after the jury had returned a verdict against Palm Harbor did it attempt to appeal the order denying its motion to compel arbitration. Clearly, Palm Harbor's decision to go to trial without first appealing the order denying arbitration indicates that it freely chose the process of litigation over arbitration. Now that Palm Harbor has lost in litigation, it cannot change its mind and seek arbitration; any right it may have had to seek arbitration has been waived.
We next address the issue whether the trial court erred in denying Palm Harbor's motion for a directed verdict as to any, or all, of the three fraud claims that were submitted to the jury. In Bussey v. John Deere Co., 531 So. 2d 860, 863 (Ala.1988), this Court stated:
(Citations omitted.)
We further note that because alternative fraud claims were submitted to the jury, over directed verdict motions by Palm Harbor, and the jury rendered a general verdict as to those claims, we must determine whether Mr. Crawford offered substantial evidence in support of all the fraud claims. Green Tree Acceptance, Inc. v. Tunstall, 645 So. 2d 1384 (Ala.1994); Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981). In other words, is each of the three fraud counts a "good" count, or is at least one a "bad" count? If a verdict should have been directed as to one or more of the claims, then the judgment based on those claims must be reversed. Green Tree, supra. "In such a circumstance, a reviewing court will not presume that the [general] verdict was returned on a good count." Green Tree, supra, 645 So. 2d at 1387.
Mr. Crawford alleged that when he visited the Palm Harbor factory Palm Harbor fraudulently misrepresented to him, through a sales brochure and a statement made by a Palm Harbor employee, that it would do everything for him except sell him a home. Mr. Crawford alleged that by that statement and the language of its brochure, Palm Harbor falsely represented that it would be responsible for the delivery and setup of any Palm Harbor mobile home he purchased, even though Palm Harbor was aware that it provided no such service to home purchasers. He further alleged that he relied on the representation and, as a result, was induced to purchase a Palm Harbor mobile home and that he suffered damage as a proximate result.
Palm Harbor argues that the alleged misrepresentationthat it would deliver and set up a mobile home if Mr. Crawford purchased oneis not an actionable fraud because, it says, it was not a representation of an existing fact, but was instead a promise to act in the future. Palm Harbor argues that even if such a representation was made, Mr. Crawford has not shown that it made the representation with the intent to deceive.
*9 Palm Harbor contends that the Crawfords simply misinterpreted the brochure discussing setup of a Palm Harbor mobile home given to them at the Palm Harbor factory as a brochure for the Palm Harbor factory, when it was actually a brochure for Palm Harbor retailers. Palm Harbor argues that under Alabama law one cannot allege a fraudulent misrepresentation founded solely on his or her interpretation of a document. It also contends that any statement by its employee regarding mobile home setup must have been ambiguous and, thus, should have provoked further inquiry by the Crawfords.
In response, Mr. Crawford argues that he presented substantial evidence, by his and his wife's trial testimony regarding the employee's alleged statement to them and the language of the sales brochure, that Palm Harbor represented to them that it would set up their Palm Harbor mobile home if they purchased one. Mr. Crawford argues that Palm Harbor made the representation with an intent to deceive; he argues that when Palm Harbor made the promise to set up their mobile home it had no intent to fulfill the promise, and that this is evident because it was not licensed to set up mobile homes in Alabama and had never set up mobile homes.
In its order denying Palm Harbor's post-judgment motions, the trial court stated the following regarding this fraud claim:
This claim alleges the "promissory" species of fraud. In order to establish promissory fraud, a plaintiff must show: (1) that the defendant made a false misrepresentation; (2) of a material fact; (3) that is justifiably relied upon; (4) that the plaintiff suffered damage as a proximate result; (5) that at the time of the misrepresentation, the defendant intended not to perform the promised act; and (6) that the defendant had an intent to deceive. Gewin v. TCF Asset Mgmt. Corp., 668 So. 2d 523 (Ala.1995); Pinyan v. Community Bank, 644 So. 2d 919 (Ala.1994). Viewing the evidence in a light most favorable to Mr. Crawford, the nonmovant in regard to the directed verdict and J.N.O.V. motions, we conclude that he presented substantial evidence in support of his claim. He presented substantial evidence that Palm Harbor represented to him that it would deliver and set up his mobile home if he purchased a Palm Harbor home,[5] that he justifiably relied upon the representation by purchasing a Palm Harbor home,[6] and that he suffered damage as the result of his purchasing a home that was damaged when it was improperly set up by unlicensed representatives of All Star. He also presented substantial evidence, albeit circumstantial, that when Palm Harbor made the representation it had no intent to perform as promised and made the representation with an intent to deceive.
Although Palm Harbor also argues that there was no justifiable reliance on any misrepresentation made during the Crawfords' factory tour, because the purchase agreement Mr. Crawford signed in October 1992 contained a statement that All Star would perform setup of the mobile home, we believe the fraud was already complete when Mr. Crawford made his $4,100 down payment in August 1992 and first suffered monetary damage as a proximate result. Thus, the promissory fraud count was a "good" count.
Mr. Crawford alleged that by expressly warranting that his mobile home was free from defects in materials and workmanship *10 and that it had been constructed in compliance with federal guidelines, Palm Harbor fraudulently suppressed the fact that the home actually had numerous defects, which, he alleged, Palm Harbor was aware of when it sold him the mobile home. He also alleged that Palm Harbor suppressed that fact with the intent to induce him to purchase his Palm Harbor mobile home, and that he suffered damage as a proximate result.
Palm Harbor argues that under Alabama law a fraud claim will not lie for a breach of a warranty, and that Mr. Crawford's fraudulent suppression claim should not have been submitted to the jury. Citing Rhodes v. General Motors Corp., 621 So. 2d 945 (Ala. 1993), Palm Harbor argues that an allegation of a breach of an express warranty to repair will support only a breach of contract claim and not a tort claim. Moreover, Palm Harbor argues that Mr. Crawford could not have relied to his detriment on any statement or representation contained in its warranty because, it says, Mr. Crawford did not read the warranty until well after he had purchased the mobile home.
In response, Mr. Crawford argues that he presented substantial evidence in support of a claim of fraudulent suppression. He refers this Court to certain language contained in the written warranty that the United States Department of Housing and Urban Development ("HUD") requires to be given with the sale of a new manufactured home. That document, which is a standard HUD form, states, in relevant part:
(Emphasis added.) Mr. Crawford contends that by signing this HUD form, Palm Harbor represented that the mobile home he was purchasing was free of defects and suppressed from him the fact that the home actually contained many defects.
In its order denying Palm Harbor's post-judgment motions, the trial court stated the following regarding this claim:
Although we find no error with the trial court's reasoning regarding the application of the facts of this case to the elements of a fraudulent suppression claim, we note that Palm Harbor is correct in arguing that under Alabama law the breach of an express warranty will not support a fraud claim. This Court has previously held that the language of an express warranty to repair cannot be *11 construed as a representation that a product is entirely free of defects. Hughes v. Hertz Corp., 670 So. 2d 882 (Ala.1995); Rhodes v. General Motors Corp., 621 So. 2d 945 (Ala. 1993); Tittle v. Steel City Oldsmobile GMC Truck, Inc., 544 So. 2d 883 (Ala.1989). Rather than guaranteeing that the product is free of defects, an express warranty to repair anticipates that any defects detected during the term of the warranty will be remedied. Hughes, supra; Rhodes, supra; Tittle, supra. Likewise, the Crawfords each admitted during trial that, following the Palm Harbor factory tour, they were made to understand that Palm Harbor's warranty meant that Palm Harbor would come out and fix any problems with their mobile home that occurred during the first year.
Because the language of an express warranty to repair will not support a fraud claim based on a representation that the product is free of defects, the trial court erred in denying Palm Harbor's directed verdict motion on Mr. Crawford's fraudulent suppression claim and submitting it to the jury. Thus, this fraudulent suppression claim was a "bad" count, and the judgment based on the jury's general verdict in favor of Mr. Crawford must be reversed and the cause remanded for a new trial on any "good" counts.
Mr. Crawford alleged that Palm Harbor fraudulently suppressed the fact that the Palm Harbor mobile home he purchased had been damaged while on the All Star lot and the fact that a Palm Harbor representative had performed an inferior-quality repair of the damage. He further alleged that as a result of Palm Harbor's failure to inform him of the damage and inferior repair before he purchased the mobile home, he was proximately caused to suffer damage.
Palm Harbor argues that it had no legal duty to disclose to Mr. Crawford the fact that the mobile home had been damaged and then repaired. Palm Harbor states that the damage occurred after title to the mobile home had passed from Palm Harbor to All Star, and that it had repaired the damage only because All Star had requested it to do so. Palm Harbor contends that All Star, not it, had the duty to disclose the damage and the repair. Palm Harbor argues that its retailer All Star had an independent duty to inform Mr. Crawford of the damage and the repair, and citing McGhee v. Oryx Energy Co., 657 So. 2d 853 (Ala.1995), it argues that because of that duty Palm Harbor had the right to rely on All Star to perform that duty.
In response, Mr. Crawford argues, first, that the same federal manufactured housing standards that required Palm Harbor to give a written warranty imposed on Palm Harbor the duty to disclose the damage and the repair. Mr. Crawford argues alternatively that the nature of the relationship between him and Palm Harbor imposed on Palm Harbor a duty to disclose that the mobile home had been damaged and repaired. He relies on Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909 (Ala.1994), which held that even in the absence of a contractual relationship the existence of a duty to disclose can be a question of fact for the jury. Thus, Mr. Crawford contends, because Palm Harbor custom-built the home according to specifications and requirements supplied by him and his wife, and because Palm Harbor had learned of the damage to the mobile home and had repaired that damage, it had a duty to inform him of the damage before he purchased the home.
In its order denying Palm Harbor's post-judgment motions, the trial court stated:
In order to establish a prima facie case of fraudulent suppression of a material fact under Ala.Code 1975, § 6-5-102, a plaintiff must show: (1) that the defendant had a duty to disclose a material fact; (2) that the defendant concealed or failed to disclose the material fact; (3) that the defendant's concealment or failure to disclose the material fact induced the plaintiff to act or to refrain from acting; and (4) that the plaintiff suffered actual damage as a proximate result. Hines, supra; Soniat v. Johnson-Rast & Hays, 626 So. 2d 1256 (Ala.1993). Viewing the evidence in a light most favorable to Mr. Crawford, the nonmovant in regard to the motions for a directed verdict and a J.N.O.V., we conclude that he presented substantial evidence of all the elements of his claim.
McGhee v. Oryx Energy Co., 657 So. 2d 853 (Ala.1995), cited by Palm Harbor, is not controlling. In McGhee, we held that a propane gas manufacturer had no duty to warn the ultimate users of its product about the propane's dangerous properties because the manufacturer had no way of ascertaining the identity of the users and, thus, no way of submitting product information to them except through its retail distributor. 657 So. 2d at 855. However, in this case, Palm Harbor knew that the Crawfords were the ultimate users of the damaged Palm Harbor home, and Palm Harbor had the means and the information necessary to inform them that the home had been damaged.
Thus, we believe that, even without contractual privity, the nature of the relationship between Palm Harbor and Mr. Crawford, the value of the fact allegedly suppressed, and the particular circumstances of this case, see Hines, supra, created at least a question of fact as to the existence of a duty on the part of Palm Harbor to disclose material facts to Mr. Crawford. Mr. Crawford presented substantial evidence indicating that Palm Harbor had superior knowledge of a material fact regarding the mobile home it had just custom-built for Mr. Crawford; the custom building was a process in which Palm Harbor and the Crawfords had worked together. He proved that Palm Harbor had repaired the damage; that it had done shoddy repairs; and that the repairs were completed in such a manner that the poor workmanship was concealed from view. Mr. Crawford also presented substantial evidence that Palm Harbor's failure to disclose that the home had been damaged and subsequently repaired induced him to purchase the home, and that he was caused to suffer damage as a proximate result. Accordingly, this fraudulent suppression claim was also a "good" count.
Because we must reverse the judgment entered on the jury's general verdict in favor of Mr. Crawford, we need not now address the issues raised by Palm Harbor regarding the jury's award of punitive damages and the trial court's denial of its other post-judgment motions. The trial court's order denying Palm Harbor's motion to compel arbitration is affirmed. However, the judgment, being based on the jury's general verdict, must be reversed. The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
ORDER DENYING ARBITRATION AFFIRMED; JUDGMENT REVERSED; AND CAUSE REMANDED.
SHORES, HOUSTON, and KENNEDY, JJ., concur.
*13 ALMON and COOK, JJ., concur in the result.
HOOPER, C.J., and MADDOX, J., concur in part and dissent in part.
MADDOX, Justice, concurring in part and dissenting in part.
I concur in the holding that Palm Harbor Homes waived its right to compel arbitration, and I concur in the holding that the second fraud claim ("Defects in the Mobile Home") was a "bad count"; however, I must respectfully dissent from the holdings that the other two fraud counts were "good counts."
On the arbitration issue, it appears to me that this Court's holding in Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897 (Ala.1995), is consistent with holdings by federal courts on this issue of waiver. See, Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 25 (2d Cir.1995); Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482 (10th Cir.1994); Cotton v. Slone 4 F.3d 176 (2d Cir.1993); Morrie Mages & Shirlee Mages Foundation v. Thrifty Corp., 916 F.2d 402 (7th Cir.1990).
In Envirex, Inc. v. K.H. Schussler Fur Umwelttechnik GmbH, WDS-Engineering & Consulting Corp., 832 F. Supp. 1293 (E.D.Wis.1993), the Wisconsin district court opined:
(Emphasis added.)
In Leadertex, supra, the Second Circuit Court of Appeals stated that the factors to be considered in deciding whether there had been a waiver of any rights to arbitration include: "[1] the amount of litigation (usually exchanges of pleadings and discovery), [2] the time elapsed from the commencement of litigation to the request for arbitration, and [3] the proof of prejudice." 67 F.3d at 25. A delay in seeking arbitration does not necessarily create a waiver, the question being whether the delay prejudices the opposing party. 67 F.3d at 25. Furthermore, these factors must be carefully considered in the context of the United States Supreme Court's strong policy favoring arbitration: "The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765 (1983). See also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S. Ct. 3346, 3353-54, 87 L. Ed. 2d 444 (1985); Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995); and Cotton v. Slone, 4 F.3d 176, 179 (2d Cir.1993).
Palm Harbor waited two years after the filing of the initial complaint and nearly eight months after All Star, Cannon, and Adams moved for arbitration to file its own motion for arbitration. Furthermore, it waited until after the trial to appeal the trial court's denial of arbitration. Applying the principles set out above, I find a waiver here; nevertheless, Palm Harbor, in my opinion, had a right to seek immediate review of the trial court's order, because "§ 16 authorizes immediate appellate review of an order `refusing a stay' of litigation pending arbitration or an order denying a motion to compel arbitration. 9 U.S.C. § 16(a)(1)(A), (B), & (C) (Supp. V *14 1994). It matters not whether these orders are final or interlocutory because orders that favor litigation over arbitration are `immediately appealable, even if interlocutory in nature.' "American Cas. Co. of Reading, Pennsylvania v. L-J, Inc., 35 F.3d 133, 135 (4th Cir.1994), quoting Stedor Enterprises, Ltd. v. Armtex, Inc., 947 F.2d 727, 730 (4th Cir.1991) (emphasis added in American Cas.); 9 U.S.C. § 16. See also, Matter of Arbitration Between Chung and President Enterprises Corp., 943 F.2d 225 (2d Cir. 1991).[7]
I disagree with the majority's holding that the trial court properly denied a directed verdict on the first and third fraud claims. Mr. Crawford, in my opinion, failed to present substantial evidence that Palm Harbor made a false representation concerning the setup the mobile home, but even if it did, Mr. Crawford certainly did not rely upon it to his detriment. See Taylor v. Moorman Mfg. Co., 475 So. 2d 1187 (Ala.1985); Webb v. Renfrow, 453 So. 2d 724 (Ala.1984); and Davis Bluff Land & Timber Co. v. Cooper, 223 Ala. 137, 134 So. 639 (1931).
As to the third fraud claim I do not believe the evidence supports a finding that Palm Harbor fraudulently suppressed facts relating to the damage to the mobile home caused by a third party. When the damage occurred, title to the mobile home had been transferred to All Star Homes and the mobile home was located on All Star's property. It does not seem to be disputed that Palm Harbor repaired the mobile home at the request of All Star; consequently, I fail to see how Palm Harbor's undertaking to repair the mobile home established a duty on its part to disclose any facts to the Mr. Crawford. See, Interstate Truck Leasing, Inc. v. Bender, 608 So. 2d 716 (Ala.1992).
Consequently, I must respectfully disagree with the Court's holding that Mr. Crawford presented substantial evidence to support the first and third fraud claims.
HOOPER, C.J., concurs.
[1] A breach of warranty action extends beyond the purchaser to any natural person if it is reasonable to expect that the person may use, consume, or be affected by the product and the person suffers personal injury because of the breach of warranty. Bishop v. Faroy Sales, 336 So. 2d 1340 (Ala.1976).
[2] Mrs. Crawford had suffered a finger laceration when she contacted an exposed nail in the kitchen pantry. The cut required hospital treatment, and Mrs. Crawford testified at trial that she continues to be bothered by the injury.
[3] Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986).
[4] The language of the arbitration agreement at issue in this case is the same as that in the arbitration agreement at issue in Ex parte Gates.
[5] The evidence as to the statement allegedly made by the Palm Harbor employee to the Crawfords during their factory tour was in conflict. Further, a Palm Harbor representative admitted at trial that the language of the brochure could mislead the general public as to what services Palm Harbor provided to the purchasers of its mobile homes.
[6] Mr. Crawford testified that it was important to him that the mobile home he would purchase be set up correctly.
[7] Likewise, this Court has consistently held that an appeal is the proper procedure for challenging a denial of a motion to compel arbitration. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990); Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897 (Ala.1995); Long v. Industrial Dev. Bd. of the Town of Vincent, 619 So. 2d 1387 (Ala.1993). | January 10, 1997 |
b56cfaa9-08cd-4062-b579-26a500c7d438 | Ryan Warranty Services, Inc. v. Welch | 694 So. 2d 1271 | 1950419 | Alabama | Alabama Supreme Court | 694 So. 2d 1271 (1997)
RYAN WARRANTY SERVICES, INC.
v.
Ruby Joyce WELCH.
1950419.
Supreme Court of Alabama.
January 10, 1997.
Rehearing Denied April 18, 1997.
Davis Carr and James W. Lampkin II of Pierce, Carr, Alford, Ledyard & Latta, P.C., Mobile, for Appellant.
Samuel A. Cherry, Jr., and Carl E. Underwood III of Cherry, Givens, Peters, Lockett & Diaz, P.C., Dothan, for Appellee.
SHORES, Justice.
This appeal concerns a specific arbitration clause in a vehicle mechanical repair service contract between the plaintiff Ruby Joyce Welch and the defendant Ryan Warranty Services, Inc. Ryan Warranty appeals from the trial court's denial of its motion to submit the dispute to arbitration and to stay the action pending arbitration. We affirm.
Welch purchased a used 1988 Chevrolet Beretta automobile from the Plaza Annex dealership in Dothan on May 3, 1994. When she bought the car, she also purchased a used vehicle mechanical repair agreement from Ryan Warranty Services, Inc., for a premium of $779. This agreement contained the following provision:
(Bold type in the original.) In December 1994, the car broke down. The repairs were completed before Ryan Warranty had performed an inspection. Welch submitted a claim to Ryan Warranty Services.
On February 3, 1995, Ryan Warranty denied Ms. Welch's claim, on the grounds that she had breached the warranty agreement by not allowing Ryan's agent to inspect the vehicle before the repairs were made, as provided for in the agreement. Ryan Services stated in its letter to Ms. Welch:
Welch then sued Ryan Warranty, alleging breach of contract, bad faith, and fraud. Ryan Warranty moved to submit the dispute to arbitration and to stay the proceedings pending arbitration. Ryan Warranty appeals from the trial court's denial of this motion.
The mechanical repair service contract between the parties contains a specific arbitration clause, which reads as follows:
(Bold type in the original.) The term "cost" is defined in the agreement:
The standard of review applicable in this case is the "clearly erroneous" standard. Ex parte Warrior Basin Gas Co., 512 So. 2d 1364, 1368 (Ala.1987); Ex parte Kent Corp., 641 So. 2d 242 (Ala.1994). Applying this standard, we conclude that the trial court's denial of the motion to compel arbitration and to stay the proceedings pending arbitration is not clearly erroneous.
The question whether a contract's arbitration clause requires arbitration of a given dispute remains a matter of contract interpretation. Atkinson v. Sinclair Refining *1273 Co., 370 U.S. 238, 242, 82 S. Ct. 1318, 1321, 8 L. Ed. 2d 462 (1962). The answer depends on the intent of the parties, and the threshold question is whether the parties intended that the particular dispute be covered by the arbitration clause. Ex parte Warrior Basin Gas Co., supra, at 1367, citing Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343 (11th Cir.1982). The Court of Appeals for the Eleventh Circuit held in Seaboard that, notwithstanding the applicability of the Federal Arbitration Act to a contract's arbitration clause, the question whether the clause requires arbitration of a given dispute remains a matter of contractual interpretation, to be determined by the intent of the parties. 690 F.2d at 1348.
When parties so tailor an arbitration clause that it is applicable only in a clearly defined situation, such as the clause in this case, it indicates that the parties intended to limit the arbitrable issues to those specified. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-85, 80 S. Ct. 1347, 1353-54, 4 L. Ed. 2d 1409 (1960). A party to a contract can be forced to arbitrate only those issues he or she specifically agrees to submit to arbitration. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-44, 115 S. Ct. 1920, 1924, 131 L. Ed. 2d 985 (1995). General rules of contract interpretation require that the intent of the parties be derived from the words of the contract, unless an ambiguity exists. Loerch v. National Bank of Commerce, 624 So. 2d 552 (Ala.1993). Additionally, a contract is to be construed in its entirety and not solely on a single provision. Yu v. Stephens, 591 So. 2d 858 (Ala.1991).
The trial court determined that the contract here did not require arbitration of the dispute presented in Welch's action, but the court did not make specific findings of fact. This Court has written to the situation where a trial court denies a motion to compel arbitration, but does so without making a specific finding of fact:
Ex parte Warrior Basin Gas Co., supra, 512 So. 2d at 1368. It is clear that the trial court concluded that Ryan Services denied Welch's claim because it contended that she had breached the agreement.
The trial court concluded that the parties intended that the arbitration clause be specific and limited only to the issue of costs, and, thus, that Ryan Warranty was not entitled to compel arbitration. Such a determination by a trial court of what was intended by the parties in their agreement is a question of fact, not to be disturbed by this Court unless clearly erroneous. Ex parte Warrior Basin Gas Co., supra, 512 So. 2d at 1368, citing Western Beef, Inc. v. Compton Investment Co., 611 F.2d 587, 591 (5th Cir.1980). It is clear from the agreement that the parties intended this to be a clearly defined and specific arbitration clause, applying only to disputes concerning costs. The agreement defines "costs" as "the usual and fair charges for parts and labor necessary to repair or replace the parts covered." As previously stated, Ryan Warranty denied Welch's claim in its entirety. The question whether the charges associated with repairing the vehicle were "usual and fair charges for parts and labor necessary to repair," which would be subject to arbitration, was not raised.
For the reasons stated above, the order of the trial court is affirmed.
AFFIRMED.
ALMON, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
*1274 MADDOX, Justice (dissenting).
It appears to me that the very essence of the dispute between the parties in this case arises out of the defendant's failure to pay the costs that the plaintiff incurred in repairing the covered automobile. It seems to me that the term "costs" in the arbitration agreement is broad enough to cover a dispute over expenses incurred in repairing a vehicle, which incidentally was the theory of the plaintiff's claim.[1]
The record, in fact, suggests that the reason given by the defendant for denying the claim was the fact that the plaintiff had failed to advise it before the "costs" were incurred, as provided for in the contract, and, even though the word "costs" is defined, it is clear that the dispute in this case is over the cost of services rendered in the repair of the covered vehicle. The law relating to the scope of arbitrable issues clearly states that "[a]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration," Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S. Ct. 3346, 3353, 87 L. Ed. 2d 444 (1985).
The plaintiff also argues that because the provisions of the McCarran-Ferguson Act, 15 U.S.C. § 1012(b), leave to the States the regulation of the business of insurance, the preemption provisions of the Federal Arbitration Act ("F.A.A.") are precluded by Alabama's statute disfavoring specific enforcement of arbitration clauses.[2] Although the plaintiff did not raise the issue of the applicability of the McCarran-Ferguson Act in the trial court, she does raise it here as authority for sustaining the trial court's order refusing to stay the proceeding. The majority does not address this issue, but the Supreme Court of the United States and several other jurisdictions have. Because I believe that it will be hotly litigated in the future, I feel compelled to address it at this time.
The McCarran-Ferguson Act provides, in part, that "[n]o act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purposes of regulating the business of insurance... unless such Act specifically relates to the business of insurance." 15 U.S.C. § 1012. Because the agreement in this case is a contract of insurance, the plaintiff argues that "the McCarran-Ferguson Act preserved to the States the right to regulate insurance and precluded the application of the F.A.A. to insurance contracts."
I have reviewed the cases cited by the plaintiff, Mutual Reinsurance Bureau v. Great Plains Mut. Ins. Co., 969 F.2d 931 (10th Cir.1992), cert. denied, 506 U.S. 1001, 113 S. Ct. 604, 121 L. Ed. 2d 540 (1992), and Stephens v. American Int'l Ins. Co., 66 F.3d 41 (2d Cir.1995), and find that in both cases state law specifically addresses insurance contracts. In the Stephens case, a specific Kentucky statute prohibited compelling an insurance liquidator to arbitrate disputes concerning delinquency proceedings, and in Mutual Reinsurance Bureau, a specific Kansas statute provided for the validity of arbitration agreements except agreements in contracts of insurance. The plaintiff cites no specific individual statute that addresses insurance contracts in Alabama, but argues that Alabama's general statute, Ala.Code 1975, § 8-1-41(3), which states that agreements to arbitrate cannot be specifically enforced, would apply to contracts of insurance, especially in view of the provisions of the McCarran-Ferguson Act quoted above.
I cannot agree with the plaintiff's argument, because § 8-1-41(3) is a general statute and is not specifically tailored to apply to "the regula[tion] of the business of insurance." 15 U.S.C. § 1012(b). My disagreement with the plaintiff is based upon my review of cases decided by the Supreme Court of the United States and other federal courts that have addressed the question presented, that being the impact of the F.A.A. on agreements to arbitrate in view of the provisions of the McCarran-Ferguson Act. The substance of these holdings, as I read them, is that a commonsense view of the word "regulates" would lead to the conclusion that in order to regulate insurance, the *1275 specific state law must not just have an impact on the insurance industry, but be specifically directed toward that industry. See, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50, 107 S. Ct. 1549, 1554, 95 L. Ed. 2d 39 (1987). The inevitable conclusion, based on my interpretation of these cases, is that the F.A.A. applies to contracts of insurance unless there is a state statute specifically directed toward that industry dealing with the validity of arbitration clauses in insurance contracts. In Pilot Life Insurance Co. v. Dedeaux, for example, the Supreme Court of the United States rejected an argument that Mississippi's bad faith law was a law regulating insurance under the provisions of the McCarran-Ferguson Act, and held that the F.A.A. applies to arbitration agreements in insurance contracts, unless there is a specific state statute that conflicts with the F.A.A. and the enforcement of an arbitration agreement would invalidate, impair, or supersede a state law regulating the business of insurance.
Barnett Bank of Marion County, N.A., v. Nelson, ___ U.S. ___, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996), although not involving the F.A.A., does involve rights created by an act of Congress. In that case, the United States Supreme Court discussed the McCarran-Ferguson Act's antipreemption rule, which generally prohibits federal statutes from preempting state insurance laws, and held that a federal statute granting national banks in small towns the authority to sell insurance preempted a Florida state law prohibiting national banks from selling insurance.
In support of her argument that the F.A.A. is not applicable to insurance contracts because of the provisions of the McCarran-Ferguson Act, plaintiff has not cited any Alabama State law that would be invalidated, impaired, or superseded by the F.A.A., i.e., any law specifically forbidding the enforcement of arbitration clauses in insurance contracts. Moreover, the plaintiff's argument has been specifically rejected by the United States Court of Appeals for the Fifth Circuit in Miller v. National Fidelity Life Ins. Co., 588 F.2d 185 (5th Cir.1979), where the Court said:
Miller, 588 F.2d at 187; see, also, Hart v. Orion Ins. Co., 453 F.2d 1358 (10th Cir.1971); and Hamilton Life Ins. Co. of New York v. Republic Nat'l Life Ins. Co., 408 F.2d 606 (2d Cir.1969).
The defendant argues that the Supreme Court adopted the McCarran-Ferguson test to reject an argument that Mississippi's bad faith law was a law regulating insurance and, therefore, not preempted by ERISA, citing and quoting from Pilot Life Ins. Co. v. Dedeaux, where the Court held:
481 U.S. at 50-51, 107 S. Ct. at 1555. See also Smith v. Jefferson Pilot Life Ins. Co., 14 F.3d 562 (11th Cir.), cert. denied, 513 U.S. *1276 808, 115 S. Ct. 57, 130 L. Ed. 2d 15 (1994) (Georgia statute requiring an insurer to notify insureds of employer's termination of ERISA plan held not a law regulating the business of insurance under the McCarran-Ferguson Act test).
Based on the foregoing, I respectfully dissent.
HOOPER, C.J., concurs.
[1] She claimed that the defendant did not pay her claim for the costs she incurred for towing, getting a rental car, and getting her car repaired.
[2] Section 8-1-41(3), Ala.Code 1975. | January 10, 1997 |
025466a8-aab5-4fd8-9ea2-9cbde1c2dc01 | Shirley v. Mazzone | 591 So. 2d 469 | 1901348, 1901463, 1901464 | Alabama | Alabama Supreme Court | 591 So. 2d 469 (1991)
Mary Lena SHIRLEY, et al.
v.
Miriam Ellen Hall MAZZONE and Robert F. Prince, as Successor Executor of the Estate of Jesse Carl Hall, Deceased.
Melody D. GENSON, as Trustee of the Bankrupt Estate of H. Newell Hall
v.
Miriam Ellen Hall MAZZONE and Robert F. Prince, as Successor Executor of the Estate of Jesse Carl Hall, Deceased.
F. Mary HALL
v.
Miriam Ellen Hall MAZZONE and Robert F. Prince, as Successor Executor of the Estate of Jesse Carl Hall, Deceased.
1901348, 1901463 and 1901464.
Supreme Court of Alabama.
December 13, 1991.
W. Kenneth Gibson and W. Donald Bolton, Jr., Fairhope, for appellants.
Robert D. Segall and E. Terry Brown of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant Melody D. Genson, as trustee, etc.
Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellees.
STEAGALL, Justice.
The sole issue in this case is whether the award of attorney fees to the plaintiffs' counsel out of the proceeds of a sale of certain real property in Baldwin County was erroneous. The history of this case is protracted and involves three prior appeals *470 to this Court. See Cherry v. Mazzone, 568 So. 2d 799 (Ala.1990); Hall v. Mazzone, 540 So. 2d 1353 (Ala.1988); and Hall v. Mazzone, 486 So. 2d 408 (Ala.1986). The parties pertinent to this appeal, and their respective interests, are as follows:
On November 27, 1984, Miriam Hall Mazzone sued Mary Hall, Hines Newell Hall, and Sarah Hall Shirley in Baldwin Circuit Court, seeking a partition in kind of the property or, in the alternative, a sale for division.[1] On December 28, 1987, Mazzone secured a judgment against Mary Hall and Hines Hall in Tuscaloosa Circuit Court in the amount of $416,868.44 in a suit by Mazzone concerning their handling, as original executors, of the estate of her father, Jesse Hall. Mazzone amended her Baldwin County complaint on January 29, 1988, alleging that certain conveyances by Mary and Hines were fraudulent and seeking to have them set aside. After a hearing on the fraudulent conveyance portion of Mazzone's complaint, the trial court entered a judgment in her favor on December 21, 1988, and set aside the subject conveyances. On July 3, 1989, the trial court determined that the real estate at issue could not be partitioned in kind and ordered a private sale. The trial court also held that Mazzone was entitled to use the Tuscaloosa judgment as a set-off against her bid to purchase the interests of Mary Hall and Hines Hall. This Court affirmed that judgment in Cherry v. Mazzone, 568 So. 2d 799 (Ala.1990).
In its final judgment of April 5, 1991, concerning the sale of the property, the trial court provided as follows regarding the fees to which Mazzone's attorneys were entitled:
Four days later, the trial court entered an order in which it recited its reasons for awarding the fee, based on Peebles v. Miley, 439 So. 2d 137 (Ala.1983), and Irons v. Le Sueur, 487 So. 2d 1352 (Ala.1986), and *471 reviewed the 12 factors enumerated in those cases. In that order, the trial court stated, in part:
L.D. Owen, as successor administrator of the estate of Sarah Shirley; Melody Genson, as bankruptcy trustee of the estate of Hines Hall; Mary Hall; Mary Lena Shirley; George Michael Shirley; and Judy Elizabeth Shirley appeal from the trial court's judgment, arguing that the attorney fee awarded is excessive, because, they contend, it violates Ala.Code 1975, § 34-3-60. That section reads:
The appellants argue that the trial court did not follow completely the mandate of Irons v. Le Sueur, supra, at 1359, that attorney fees awarded under § 34-3-60 must be "on the basis of, and solely for, the benefits inuring to the common estate and to the tenants in common and not involving controversy as to respective rights or interests of individual tenants in common." (Citations omitted.) Specifically, they contend that the major portion of Ollinger's efforts in the case was expended in securing the Tuscaloosa judgments against Mary Hall and Hines Hall and that a significant portion of the efforts of Allan Chason, of the Chason & Chason firm, was spent securing the fraudulent conveyances judgment on Mazzone's behalf, as well as in the collection of that judgment, and that those efforts did not inure to the benefit of all of the tenants in common.
Chason testified at the hearing regarding the amount of attorney fees to be awarded:
Chason also testified that he spent about 100 to 110 hours on the fraudulent conveyance part of the case and that his brother, John, and their secretary, Lilly Middleton, spent a total of about 37 hours on the fraudulent conveyance aspect alone. When Genson asked Allan Chason about his efforts in that regard, he responded:
It also appears from the trial court's order and from Ollinger's testimony that Ollinger will receive some portion of the fee, although his major contribution to the case was in obtaining the judgments against Mary Hall and Hines Hall.
Although the trial court considered each of the 12 factors enumerated in Peebles, supra, and Irons, supra, and stated in its initial order that the services Chason & Chason and Thomas Ollinger rendered in this case were "for the common benefit of the parties hereto," we find from our review of the record that Allan Chason's and Thomas Ollinger's representation of Mazzone was, at least in part, adversarial in nature and that it inured to the benefit of fewer than all of the tenants in common. While we recognize that the trial court has great discretion in awarding attorney fees in a case of this type and that attorneys should be reasonably and justly remunerated for their efforts rendered for the "common benefit" of the parties, it appears from the facts of this case that not all of the attorneys' efforts were expended for the benefit of all the parties involved. Consequently, the judgment of the trial court is reversed and this case is remanded in order for the trial court to determine and consider precisely what representation by Mazzone's attorneys in fact benefited all of the tenants in common and to adjust its original award accordingly.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, ALMON and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I would affirm an award of ten per cent (10%) of the sale price as an attorney fee upon the appellees' agreeing to remit the balance of the attorney fee awarded from the common fund.
Alabama Code 1975, § 34-3-60. "The common benefit is in bringing about a division of the lands through a judicial sale, so that each of the joint owners can have and enjoy his own." Dent v. Foy, 214 Ala. 243, 248, 107 So. 210, 215 (1925). There was no evidence before the trial court to contradict the evidence that for more than 30 years in cases involving sales for division, attorney fees had been based on the value of the property and not on an hourly rate and that the minimum fee in Baldwin County in sale-for-division cases was 10% of the sale price.
*473 If the attorneys for the appellees feel that additional sums are owed for services rendered in this matter, they could be recovered from their clients, the individuals for whom the services were rendered, if this did not conflict with the attorney-client employment contract.
There is no question that the attorneys performed many services not normally required in an action for a partition of property or a sale for division; however, I am persuaded that most of this extra work, if not all of it, was for the benefit of some rather than all of the joint owners of the property sold. In Irons v. Le Sueur, 487 So. 2d 1352, 1359 (Ala.1986), I acknowledged the perseverance of the attorney for the plaintiffs in keeping the case in court and getting it to trial in light of the fact that "[t]he defendants obtained continuance after continuance for the purposes of giving birth, sustaining life, recovering from injuries sustained in a car crash, and lecturing at a legal seminar." However, in Irons v. Le Sueur, all of the extra effort of the attorney for the plaintiffs was to bring about the division of the property and to distribute to each his own, a common benefit.
[1] Sarah Hall Shirley died on February 26, 1986, and her estate was substituted as a defendant. In addition, Robert Prince, as successor executor of the estate of Jesse Carl Hall, who had died in 1970, was added as a plaintiff in 1988. All subsequent references to "Mazzone" in this opinion will refer to Robert Prince and Miriam Mazzone collectively. | December 13, 1991 |
1cb7e09d-6ef5-4f09-815c-b7f251ba7f46 | Norman v. Schwartz | 594 So. 2d 45 | 1901094 | Alabama | Alabama Supreme Court | 594 So. 2d 45 (1991)
H. Dickson NORMAN and Mary P. Norman
v.
Edward L. SCHWARTZ.
1901094.
Supreme Court of Alabama.
December 20, 1991.
Rehearing Denied February 21, 1992.
Margaret Y. Brown, Auburn, for appellants.
C. Michael Benson of Davis, Cox, Benson & Brady, Auburn, for appellee.
MADDOX, Justice.
Edward L. Schwartz sued H. Dickson Norman and Mary P. Norman, claiming as follows: 1) nonpayment of a $25,000 promissory note; 2) nonpayment of a $2,500 loan; and 3) and nonpayment of $2,950.31 for a credit card debt incurred by the Normans and guaranteed by Schwartz. The trial court, sitting without a jury and hearing ore tenus evidence, found in favor of Schwartz and entered a judgment for the full amount sought on all three claims. The Normans filed a motion for new trial on the grounds that the judgment was not supported by the evidence. This motion was denied, and the Normans appealed to this Court. The only issue presented for review is whether the evidence was sufficient to prove the claims upon which the judgment was entered. We affirm.
The evidence in this case was heard by the court without a jury. We have often stated the rule applicable to such cases:
Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 12-13 (Ala.1989).
We have reviewed the record in light of this standard of review. We conclude that the judgment of the trial court is not plainly and palpably wrong, but that it is supported by credible evidence.
The judgment of the trial court, therefore, is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and STEAGALL, JJ., concur. | December 20, 1991 |
7030091a-1adb-44a4-9442-1028d55a6c67 | George v. Champion Ins. Co. | 591 So. 2d 852 | 1901506 | Alabama | Alabama Supreme Court | 591 So. 2d 852 (1991)
Cletus GEORGE, as Father and Next Friend of Elizabeth Karen George, a Minor
v.
CHAMPION INSURANCE COMPANY.
1901506.
Supreme Court of Alabama.
December 20, 1991.
*853 William D. Davis III of Davis & Goldberg, Huntsville, for appellant.
Robert E. Ledyard III of Lanier Ford Shaver & Payne P.C., Huntsville, for appellee.
SHORES, Justice.
The plaintiff, Elizabeth Karen George, a minor who sued through her father, Cletus George, as next friend, was injured when the automobile in which she was a guest passenger ran a red light and collided with another vehicle. The accident occurred on April 10, 1988, in Madison County, Alabama. Karen sued Champion Insurance Company under the underinsured motorist provisions of three insurance policies that her father had purchased. She claimed, among other things, that the conduct of the driver of the vehicle in which she was a passenger was wanton, and, therefore, that Champion, as her father's carrier of underinsured motorist coverage, was obligated to her.
On May 28, 1991, the trial court entered a summary judgment in favor of Champion on all issues. The plaintiff appeals the summary judgment, but only as to the issue of wantonness.[1] We affirm.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact and 2) that the moving party is entitled to a judgment as a matter of law. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Code 1975), for actions filed after June 11, 1987. See Bass v. South-Trust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
The Alabama Guest Passenger Statute, § 32-1-2, applies to the present case. It provides as follows:
In Central Alabama Elec. Cooperative v. Tapley, 546 So. 2d 371, 379 (Ala.1989), this Court set forth a test for wantonness:
546 So. 2d at 379. (Emphasis added in Tapley.) See also Yamaha Motor Co. v. Thornton, 579 So. 2d 619, 623 (Ala.1991).
We must determine whether the facts of this case present substantial evidence of wantonness. If not, the summary judgment was proper. The facts before the trial judge were that the plaintiff, Elizabeth Karen George, age 16, was the passenger in an automobile driven by her best friend, Shannon Plaiss, also 16. The two were going to a birthday party. Shannon was driving a white 1979 Ford Pinto automobile, proceeding south on Memorial Parkway in Huntsville. It was a full car. Shannon was driving, Scott White was sitting in the front passenger seat, Karen's sister Paula was sitting beside White. Karen and her sister Kelly George were in the rear seat. It was Sunday afternoon and a clear day. The occupants of the car were engaged in conversation. As the car approached the intersection of the Parkway and Golf Road, Shannon saw that the traffic light was green. She glanced back in conversation. When she looked forward, the traffic light was red. Scott cried out for her to stop. Shannon testified in her deposition that she tried to put her foot on the brake pedal, but missed and hit the clutch pedal. She ran the red light, and her automobile collided with a vehicle that was turning left in front of her.
We conclude that the facts of this case, when viewed in a light most favorable to the plaintiff, do not provide substantial evidence of the requisite elements of wantonness on the part of the driver of the vehicle. While the facts show inadvertence on the part of the driver, they do not amount to wantonness, which requires some degree of conscious culpability. Joseph v. Staggs, 519 So. 2d 952, 954 (Ala. 1988). For that reason, we find that the trial judge did not err in entering the summary judgment for Champion Insurance Company on the wantonness claim.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., concur.
[1] All other claims have been settled. | December 20, 1991 |
ad70f06d-a071-4d8a-88c7-5be72e30b569 | Ex Parte Alabama State Tenure Com'n | 595 So. 2d 479 | 1901454 | Alabama | Alabama Supreme Court | 595 So. 2d 479 (1991)
Ex parte ALABAMA STATE TENURE COMMISSION.
(Re ALABAMA STATE TENURE COMMISSION v. LEE COUNTY BOARD OF EDUCATION).
1901454.
Supreme Court of Alabama.
December 13, 1991.
*480 Ernestine Sapp of Gray Langford Sapp McGowan & Gray, Tuskegee, and Edward Still, Birmingham, for petitioner.
W.F. Horsley of Samford, Denson, Horsley, Pettey, Martin and Barrett, Opelika, for respondent.
MADDOX, Justice.
The issue in this case is whether the Court of Civil Appeals, 595 So. 2d 476, correctly held that the decision of the Alabama State Tenure Commission was against the overwhelming weight of the evidence.
The record reveals the following: Thomas Jones was a tenured teacher with the Lee County Board of Education (hereinafter "Board"), certified by the State of Alabama to teach health, physical education, driver's education, and biological science until 1994. During the 1989-90 school year, Jones's primary teaching assignment was driver's education; he also taught science classes.
After Jones was twice arrested for driving under the influence of alcohol (DUI) within a period of 13 months,[1] his driver's license was suspended and his automobile insurance was canceled, thereby rendering him ineligible to teach driver's education. Subsequently, in June 1990, the Board held a hearing pursuant to Ala.Code 1975, § 16-24-9, and voted to terminate Jones's teaching contract. The grounds of Jones's termination were set out by a letter of dismissal sent to him by the Board:
The record shows that in the first Board meeting following Jones's termination, the Board hired teachers to fill teaching positions in physical education and science in two high schools within the Lee County school system.
Jones appealed to the Alabama State Tenure Commission ("Commission"), which reversed the Board's decision, finding that Jones's termination was "arbitrarily unjust." The Board then petitioned the Lee County Circuit Court for a writ of mandamus to vacate the decision of the Commission. The circuit court granted the writ and reinstated the Board's decision to terminate Jones's teaching contract. The Commission appealed, and the Court of Civil Appeals affirmed the circuit court's judgment, finding that the grounds stated in the Board's letter clearly fell within the perimeters of Ala.Code 1975, § 16-24-8, which sets out the grounds justifying cancellation of a tenured teacher's employment contract:
Alabama State Tenure Comm'n v. Lee County Bd. of Educ., 595 So. 2d 476 (Ala. Civ.App.1991).
The Court of Civil Appeals rejected the Commission's contention that the Board's dismissal of Jones was "arbitrarily unjust" because Jones was certified to teach subjects other than driver's education, and wrote:
Alabama State Tenure Comm'n, 595 So. 2d 476.
In its petition to this Court, the Commission argues that the Court of Civil Appeals placed the burden of proof upon the wrong party, in contravention of the statement of the burden of proof set forth in Ex parte Alabama Tenure Comm'n, 555 So. 2d 1071, 1073 (Ala.1989):
In other words, the Commission argues that the presumption should be that the Commission's decision is correct unless the Board showed that there were no nontenured teachers hired to teach in the same fields as the discharged teacher was qualified to teach in, rather than placing the burden upon the Commission to show that the newly hired teachers are nontenured.
We agree. The following principles are set forth in Ala.Code 1975, § 16-24-38:
The "review" by petition for mandamus filed in the circuit court does not mean a trial de novo. Greene v. Washington County Bd. of Educ., 45 Ala.App. 216, 228 So. 2d 829 (1969). Mandamus is an extraordinary writ, and the writ of mandamus will not lie for the purpose of a supervisory review of the Commission's decision; the circuit court is limited to two considerations: (1) whether the commission's action is in accordance with the teacher tenure law, and (2) whether the action was "unjust." Alabama State Tenure Comm'n v. Mountain Brook Bd. of Educ., 343 So. 2d 522 (Ala.1976); DeCarlo v. Tarrant City Bd. of Educ., 52 Ala.App. 220, 291 So. 2d 155 (1974); State Tenure Comm'n v. Madison County Bd. of Educ., 282 Ala. 658, 213 So. 2d 823 (1968).
Because the Commission has the power to retry the case on the record and to reach its own conclusions of fact, Sumter County Bd. of Educ. v. Alabama State Tenure Comm'n, 352 So. 2d 1133, 1135 (Ala.Civ.App.), aff'd as modified, 352 So. 2d 1137 (Ala.1977), once the Commission makes a finding from the record, an appellate court must presume the Commission's decision to be correct and overturn the decision only if it finds overwhelming evidence contrary to the decision. After carefully reviewing the evidence in this case, we cannot hold that the overwhelming evidence is contrary to the conclusion reached by the Commission.
We have consistently held that the purpose of the tenure statute is to promote stability in employment and to prevent a board from discharging a tenured teacher instead of a nontenured teacher:
Board of School Commissioners of Mobile County v. Wright, 443 So. 2d 43 (Ala.Civ. App.1983); see Board of Educ. of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822 (1941); Madison County Bd. of Educ. v. Wigley, 288 Ala. 202, 259 So. 2d 233 (1972). Jones was qualified to teach courses other than driver's education. The burden was upon the Board to show that it did not place nontenured teachers in the same fields as the discharged teacher was qualified to teach in.
For the foregoing reasons, the judgment of the Court of Civil Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
HOUSTON and INGRAM, JJ., dissent.
HOUSTON, Justice (dissenting).
Our standard of review is set out in Ex parte Weaver, 559 So. 2d 178 (Ala.1989), and Ex parte Alabama State Tenure Commission, 555 So. 2d 1071 (Ala.1989). Was the action of the Tenure Commission "unjust"? The answer depends on whether the action was contrary to the overwhelming weight of the evidence. The Court of Civil Appeals' finding that the Tenure Commission's decision was "wholly unsupported by the evidence" and that there was "no evidence" as to the availability of teaching positions was tantamount to a finding that the decision of the Tenure Commission was contrary to the overwhelming weight of the evidence. Therefore, I would affirm.
INGRAM, J., concurs.
[1] The first arrest resulted in a conviction for the offense and the suspension of Jones's driver's license for two months. At the time of the hearing in the case at bar, Jones had not been tried for the second DUI offense. However, there is evidence in the record that Jones admitted that he was under the influence of alcohol at the time of the second arrest for DUI.
[2] At the cancellation hearing the Board presented no evidence of incompetency to teach science or of neglect of duty or disciplinary problems. | December 13, 1991 |
96b645f8-9956-4493-99d7-48f151dc9f24 | Turner v. Barnes | 687 So. 2d 197 | 1950891 | Alabama | Alabama Supreme Court | 687 So. 2d 197 (1997)
Geraldine TURNER
v.
David BARNES, et al.
1950891.
Supreme Court of Alabama.
January 3, 1997.
Harold G. Peck of Peck & Morrow, Florence, for Appellant.
Mel Burns of Mel Burns & Associates, P.C., Birmingham, for David Barnes.
Joe W. Morgan, Jr., Birmingham, for Cellie W. Miller, for Appellees.
PER CURIAM.
The plaintiff, Geraldine Turner, appeals from judgments in favor of three defendants, Cellie Miller, David Barnes, and Edward May. The defendants argue that Turner's appeal was untimely and should be dismissed.
On November 30, 1995, the trial court filed the judgments with the clerk of the Jefferson County Circuit Court. However, consistent with an internal court policy, Turner was not mailed notice of the orders by the clerk's office. On January 8, 1996, the fact of the orders was logged in the clerk's computer system. Before that date, anyone telephoning the clerk's office and inquiring as to the status of the case would have been advised that no judgment had been filed, because none would have shown up on the clerk's computer records.
*198 There is no dispute that Turner's attorney telephoned the clerk's office and acted diligently in an effort to "keep abreast of the status of this case." However, the attorney learned of the judgments from the clerk's office more than 42 days after they had been filed. Rule 4(a), Ala.R.App.P., allows 42 days for appeal. On Turner's motion, the trial court extended the time for appeal, pursuant to Rule 77, Ala.R.Civ.P. The defendants argue that it was without authority to do so.
In Sparks v. Alabama Power Co., 679 So. 2d 678 (Ala.1996), no notice of a denial of the appellant's motion for a new trial was mailed to the appellant and her attorney had relied on information provided by the Jefferson County circuit clerk's Office, which was based on computer records. The computer records did not reflect that an order denying the motion had been entered, and the attorney was unaware that the order had been entered on the case action summary sheet. When the attorney finally discovered that he had received incorrect information, the deadline for appeal had passed. In discussing whether the trial court had properly denied an extension of the time limit for appeal, this Court stated:
679 So. 2d at 681. Observing that Rule 1, Ala.R.Civ.P., directs the just treatment of litigants, the Court declined to dismiss that appeal.
In the present case, the clerk's office failed to notify Turner by mail of the entry of the judgments. Clerk's offices are unequivocally directed by Rule 77(d): "Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail...." Nothing in Rule 77 indicates that this language is aspirational, or that other means of giving notice to the parties may be substituted. Adherence to this rule should alleviate the notice problems experienced in this case.
The Rules of Civil Procedure are to "be construed and administered to secure the just, speedy and inexpensive determination of every action." Rule 1(c), Ala.R.Civ.P. Following Rule 1, we decline to dismiss the appeal, because of the failure of the clerk's office to comply with Rule 77 to notify Turner of the entry of the judgments by mail.
As to the merits of the case, Turner is alleging legal malpractice. The defendants were partners in the law firm hired by Turner in an earlier action. In December 1987, Turner hired them to represent her in an action against her employer. They sued on behalf of Turner in February 1989 in a Federal district court. Turner's employer moved for a summary judgment, and Turner's attorneys did not respond. A summary judgment was entered in favor of the employer on July 19, 1989.
Turner alleges that she was unaware of the summary judgment and that she was told by her attorneysthe present defendants that the case was progressing nicely. In late August or early September 1991, she says, she became suspicious and contacted the Federal court clerk's office, which informed her of the summary judgment.
On August 6, 1993, Turner sued her attorneys, seeking damages for legal malpractice, breach of contract, and under general tort theories. First, we note that under § 6-5-572, Ala.Code 1975, a legal services liability action embraces all claims for injuries or damage, whether based in contract or in tort. It is clear that the Legislature intended for a legal services liability action to include "any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future." § 6-5-572(1).
The statute of limitations for a legal services liability claim is "two years after the act or omission or failure giving rise to the claim ...; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within *199 six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided, further, that in no event may the action be commenced more than four years after such act or omission or failure." § 6-5-574.
Assuming that Turner discovered in late August or early September 1991 that the summary judgment had been entered against her in the Federal action in July 1989, then Turner had 6 months to sue, from early September 1991. Thus, the last date her action could be commenced would have been early March 1992, i.e., 6 months after the date of the discovery of facts that would reasonably lead to discovery.
In Michael v. Beasley, 583 So. 2d 245 (Ala.1991), we held that the time limits set out in § 6-5-574 are to be measured from the date of the accrual of the cause of action, not from the date of the occurrence of the act or omission, and that a cause of action accrues when some injury occurs giving rise to the cause of action. In Michael, the cause of action, alleged legal malpractice in an earlier case, would have accrued when the jury rendered its verdict in that earlier case and not on the day this Court affirmed the trial court's judgment based on that verdict.
Even if we applied the four-year limitations period, we would have to conclude that Turner's action was not timely, based on Michael. Under the Michael rule, her cause of action accrued on July 19, 1989, when the summary judgment was entered for her employer in the Federal action. The last possible date that she could sue under the four-year limit would have been July 19, 1993. Turner did not sue until August 6, 1993.
The judgment of the trial court is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, HOUSTON, and KENNEDY, JJ., concur. | January 3, 1997 |
341ddfa1-e151-4e40-a0db-a85447f0ce95 | Ex Parte Caribe, USA, Inc. | 702 So. 2d 1234 | 1952046 | Alabama | Alabama Supreme Court | 702 So. 2d 1234 (1997)
Ex parte CARIBE, U.S.A., INC.
(In re Dane ROMANO v. CARIBE, U.S.A., INC. [and two other cases]).
1952046.
Supreme Court of Alabama.
February 28, 1997.
*1235 K.W. Michael Chambers and R. Scott Hetrick of McRight, Jackson, Dorman, Myrick & Moore, L.L.C., Mobile; and John F. Young of Young & Associates, New Orleans, LA, for Petitioner Caribe, U.S.A., Inc.
G. Hamp Uzzelle III and E. Luckett Robinson II of Hand Arendall, L.L.C., Mobile, for Respondent Dane Romano.
HOUSTON, Justice.
Caribe, U.S.A., Inc., which was in the break bulk cargo liner service business, hired Dane Romano as general manager of export operations. Romano had been previously employed by Bordelon Brothers Towing (which was also in the break bulk cargo liner service business), where for approximately four months he served as director of export operations, directly involved in booking break bulk cargo. Pursuant to an employment agreement between Caribe and Romano that contained noncompetition and nonsolicitation-of-customers provisions, Caribe was allowed to seek injunctive relief and other remedies in case of a breach. In negotiating the agreement and before he agreed to these restrictions, Romano insisted on and received additional language that provided him more compensation. Six weeks after Romano was hired, Caribe discharged him because of allegedly poor performance. Subsequently, Romano was employed by G & B Marine, Inc., as an export coordinator.[1] Subsequently, Romano induced G & B to compete directly with Caribe by soliciting its customers. When Caribe discovered Romano's activity, it sent him a letter by certified mail asking that he cease and desist from soliciting its customers and adhere to the agreement. Romano refused. Consequently, Caribe sought a temporary restraining order and preliminary and permanent injunctions requiring Romano to comply with the terms of the employment agreement, and it sought damages for breach of contract. Romano asserted that the employment agreement was void and that Caribe did not have a protectable interest to *1236 support the enforcement of the nonsolicitation and noncompetition provisions of the agreement. The trial court, after hearing ore tenus evidence, granted Caribe's request for a three-year injunction against competing with Caribe or from soliciting those customers for which Caribe had actually shipped cargo as of December 31, 1992 (Romano's last day of employment with Caribe). The trial court's judgment provides as follows:
Furthermore, although the trial court was reasonably satisfied that Caribe suffered damage as a result of Romano's violation of the noncompetition and nonsolicitation provisions of the agreement, it was not reasonably satisfied as to the amount of damage. Therefore, it awarded Caribe only nominal damages, in the amount of $1, but held that Caribe was entitled to reasonable attorney fees, costs, and expenses, which were to be determined at a later date. Subsequently, Caribe filed a bill of costs; following an ore tenus proceeding, the trial court entered an order awarding Caribe attorney fees of $98,000 and costs of $2,998.09. Romano appealed, maintaining that the trial court erred in holding that Caribe had a protectable interest sufficient to enforce the noncompetition and nonsolicitation provisions of the employment agreement; in concluding that the nonsolicitation provision in the agreement was only a partial restraint of trade; and in awarding Caribe nominal damages, $98,000 in attorney fees, and costs. Caribe cross appealed, maintaining that the trial court erred in awarding it only nominal damages for Romano's breach of contract and in reducing the enforceability of the noncompetition and nonsolicitation provisions from five years to three years.
Finding dispositive the issue whether the trial court erred in holding that Caribe had a protectable interest that allowed it to enforce the noncompetition and nonsolicitation provisions of the employment agreement, the Court of Civil Appeals, by an opinion issued June 28, 1996, held that the trial court misapplied the law to the facts before it when it held that Caribe had a protectable interest in its pricing information; its customers' history of shipments, shipment quantities, and destinations; and its customer lists, and that the trial court abused its discretion in entering the permanent injunction. Therefore, the Court of Civil Appeals vacated the injunction and reversed the judgment of the trial court. Caribe applied for a rehearing of the order vacating the injunction. Romano also applied for a rehearing, asking the Court of Civil Appeals to consider whether the injunction was wrongly issued and, therefore, whether he was entitled to costs, damages, and attorney fees. On August 23, 1996, the Court of Civil Appeals withdrew its original opinion and substituted a new opinion; the new opinion was identical to the original opinion holding that the injunction had been wrongly issued, except that the substituted opinion, in addition to holding that the injunction had been wrongfully issued, also held that Romano was entitled to whatever costs, damages, and attorney fees he was able to prove to the trial court. The Court of Civil Appeals wrote:
"`DeVoe v. Cheatham, 413 So. 2d at 1142.'
"`"In order to have a protectable interest the employer must possess a `substantial right in its business sufficiently unique to warrant the type of protection contemplated by [a] noncompetition agreement.'" Id. at 1142, citing Cullman Broadcasting Co. v. Bosley, 373 So. 2d 830, 836 (Ala. 1979). In the case of a "post-employment restraint," ... justification, according to the Restatement (Second) of Contracts § 188, Comment B (1979), generally must be "on the ground that the employer has a legitimate interest in restraining the employee from appropriating valuable trade information and customer relationships to which he has had access in the course of his employment." ... "[I]f an employee is in a position to gain confidential information, access to secret lists, or to develop a close relationship with clients, the employer may have a protectable interest." DeVoe v. Cheatham, 413 So. 2d at 1143.'
"Moore v. McNider, 551 So. 2d 1028, 1029-30 (Ala.1989) (quoting McInnis v. Lay, 533 So. 2d 581, 582 (Ala.1988)).
Romano v. Caribe, U.S.A., Inc., 702 So. 2d 1230, 1232-34 (Ala.Civ.App.1996). Caribe petitioned for certiorari review, which we granted to determine whether the trial court erred in holding that Caribe had a protectable *1241 interest that allowed it to enforce the noncompetition and nonsolicitation provisions of the agreement.
Caribe argues that the Court of Civil Appeals disregarded what Caribe calls the trial court's express and correct findings of fact that Caribe's hiring Romano as a salesman and placing him in a position to develop current and potential customer contacts and relationships supported a finding of a protectable interest. Caribe argues that the Court of Civil Appeals thus incorrectly substituted its own judgment of the evidence and ignored the ore tenus rule in concluding that the trial court erred in finding that Caribe possessed a protectable interest. We agree.
When a trial court hears ore tenus testimony, its findings based upon that testimony are presumed correct and its judgment based on those findings will not be disturbed unless, after consideration of all the evidence and all reasonable inferences to be drawn therefrom, the judgment is found to be plainly and palpably wrong, manifestly unjust, or without supporting evidence. See Marvin's, Inc. v. Robertson, 608 So. 2d 391 (Ala.1992).
From a thorough review of the record, we find sufficient evidence to support the trial court's findings that the information at issue was confidential, proprietary, and protectable. There was sufficient evidence for the trial court to find that in the course of his six weeks with Caribe, where Romano worked as general manager of export operations, he was in a position where he had access to confidential and proprietary information, i.e., highly beneficial business information about Caribe's customers, such as customer lists, which included names of contact persons and their telephone numbers; that he was in a position where he could develop close personal relationships with customers of Caribe and generate business and customers for Caribe's benefit; that, as a salesman for Caribe, Romano solicited customers with which he had had no familiarity or contact before working with Caribe; that the break bulk cargo liner service business is highly competitive and the acquisition and protection of customer lists, pricing lists, trade routes, and a regular clientele are of crucial importance; that the information and documentation obtained by Romano, or to which he had access, while employed by Caribe was sufficiently "substantial or unique"; that although some of the information about Caribe's customers that was provided to Romano, e.g., pricing information, shipment quantities and destinations, receivers' names, shippers' names, and cargo weight, was available to the public by the required filing of tariffs pursuant to Federal regulations and through a reporting service published by the Journal of Commerce, and, therefore, could not be considered "top-secret," that information was not easily obtainable, but rather was publicly available, if at all, only through expertise, purchase, investigation, or extensive research; that Caribe treated all aspects of its business, including, but not limited to, the customer lists, pricing lists, voyage histories, deck plans, tariffs, and the like in a confidential manner; and that Romano, in executing the employment agreement acknowledged that the information and documentation received by him, including information concerning Caribe customers, were confidential business and financial information.
The trial court would have erroneously applied the law to the facts before it only if there were no dispute in the facts and the facts were the way the Court of Civil Appeals found them to be. However, the facts were in dispute; and, after considering all the evidence and all reasonable inferences to be drawn therefrom, we conclude that the trial court's findings of fact were not plainly and palpably wrong. Therefore, the trial court did not erroneously apply the law to the facts before it. The Court of Civil Appeals found the facts anew, in violation of the ore tenus standard of review.
The trial court properly recognized that Caribe had a protectable interest and properly issued the permanent injunction. The judgment of the Court of Civil Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SHORES, KENNEDY, COOK, BUTTS, and SEE, JJ., concur.
[1] G & B had not operated a break bulk cargo liner service business before it hired Romano. | February 28, 1997 |
e30bbf13-5634-4aff-b811-cd3fabd6496d | Ex Parte Krages | 689 So. 2d 799 | 1952161, 1960063, 1960114 | Alabama | Alabama Supreme Court | 689 So. 2d 799 (1997)
Ex parte Bert P. KRAGES.
(Re Thomas A. CARDER, et al. v. CITY OF ORANGE BEACH, et al.).
Thomas P. CARDER, et al.
v.
CITY OF ORANGE BEACH.
Bert P. KRAGES
v.
Thomas A. CARDER, et al.
1952161, 1960063 and 1960114.
Supreme Court of Alabama.
February 7, 1997.
*801 L. P. Sutley and Spencer of E. Davis of Murchison & Sutley, L.L.C., Foley; and P. David Matheny of Bishop & Matheny, P.C., Bay Minette, for Thomas P. Carder, et al.
Algert S. Agricola, Jr., and Charles B. Campbell of Wallace, Jordan, Ratliff & Brandt, L.L.C., Montgomery; and Gregory L. Leatherbury, Jr., and Bryan A. Thames of Hand, Arendall, L.L.C., Mobile, for Bert Krages.
J. Patrick Courtney III and William E. Screve, Jr., of Lyons, Pipes & Cook, P.C., Mobile, for City of Orange Beach.
C. Bennett McRae, Gulf Shores, for Haywood Baker.
Charles C. Partin, Circuit Judge, Bay Minette, pro se.
PER CURIAM.
These cases arise out of an election contest commenced in the Baldwin County Circuit Court challenging the results of a municipal election in the City of Orange Beach. More specifically, they arise out of a runoff election held on September 17, 1996, to choose members of the city council of the City of Orange Beach ("the City") and to choose between Bert Krages and Jerry Davidson for mayor.
On September 23, 1996, Thomas A. Carder, Anne M. Douglas, V.L. Arnold, Gerald Davidson, Stuart Gilliam, and Mike Reilly, residents and electors of the City, filed a three-count complaint initiating the contest. The individual defendants were Bert Krages, candidate for mayor, and Haywood Baker, candidate for city council, Place Two.[1] Other defendants were the City, the city council, and the Mayor.
Count One alleged that certain absentee ballots cast for Krages "should not have been counted in determining the [mayoral] election..., because ... the electors were either unqualified, or the ballots were not properly executed." Count Two alleged that "in accordance with Ala.Code § 11-46-69 and the provisions of the `Fair Campaign [Practices] Act,' [Ala.Code 1975, §§ 17-22A-1 to -23]... Krages ... and Baker were not eligible *802 candidates for the offices for which they ran..., because they failed to properly file the appropriate reports of `contributions and expenditures' as required by Ala.Code § 17-22A-8." Count Three alleged that "illegal votes were counted in determining the winner[s] of the election" for mayor and members of the council.
By October 1, 1996, the city council had not certified the election results or issued a certificate of election. On September 30, 1996, Krages filed an answer, which included, as a cross-claim, a petition for a writ of mandamus directing the city council to certify him as the winner of the mayoral election. The same day, Circuit Judge Pamela Baschab issued a writ of mandamus, writing and holding in pertinent part:
On October 1, 1996, before the city council had complied with the writ, Judge Baschab recused, in response to a motion by the plaintiffs, and the action was reassigned to Judge Charles C. Partin. On that same day, Judge Partin issued an order stating in pertinent part:
(Emphasis added.)
Judge Partin heard oral argument on October 3, 1996, and, on October 4, 1996, granted the contestants' "motions for a judgment on the pleadings" as to Krages and ordered the city council "to convene before October 7, 1996, and issue a certificate of election to Jerry Davidson in the mayoral race due to the disqualification of ... Krages." Judge Partin also ordered the City council to issue a certificate of election to Baker for Place Two on the city council. He certified the judgment as final, pursuant to Ala. R. Civ. P. 54(b).
Also on October 4, Krages filed in this Court an "Emergency Petition for Writ of Mandamus," asking this Court to direct Judge Partin to "withdraw his order ... commanding the City Council of Orange Beach ... to issue a certificate of election to... Jerry Davidson." On October 5, 1996, the city council met and issued a certificate of election to Davidson and scheduled his investiture for 7:30 p.m. on October 7. On October 7, Krages filed in this Court a "Motion for Leave to File Amended Emergency Petition for Writ of Mandamus," in which he "requested that the swearing in be prevented from taking place." However, on October 7, Davidson took the oath of office as scheduled.
The plaintiffs and Krages appealed and cross-appealed, respectively, the October 4 judgment. Krages's mandamus petition is case 1952161; the plaintiffs' appeal is case 1960063; and Krages's cross-appeal is case 1960114.
The respondentsJudge Partin, the City, and the plaintiffscontend that the writ of mandamus should not issue because, they insist, the requisites for the extraordinary writ are not present. Those requisites are: "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) a lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Martin, 598 So. 2d 1381, 1383 (Ala.1992). In particular, the respondents argue that Krages had "another adequate remedy," namely, the right to appeal the judgment.
As to this third requisite, we have stated:
598 So. 2d at 1383 (emphasis added).
Krages, however, insists that the third requisite is met here, because of City of Talladega v. Pettus, 602 So. 2d 357 (Ala.1992), which stated: "A court can prevent the issuance of a certificate of election to a municipal office, but, once the certificate is issued, the court is without authority to revoke it." Id. at 359. In his mandamus petition, Krages stated: "[I]f the City Council meets and issues the certificate of election to candidate Jerry Davidson, Petitioner Krages ... will be deprived of any remedy if it is subsequently determined that the order [to certify Davidson] should not have been issued."
Also, the City contends that Pettus is inconsistent both with caselaw and with statutes governing the duties of municipal governing bodies in municipal elections. The City requests that this Court define or clarify the procedure that must be followed in this case and in subsequent cases. We acknowledge this inconsistency and we take this opportunity to revisit Pettus.
Pettus arose out of the following facts:
602 So. 2d at 358 (footnote omitted).
This Court reversed the judgment of the trial court and rendered a judgment in favor of Barton. In doing so, it discussed a number of issues pertinent to this case. In particular, it discussed Ala.Code 1975, § 17-22A-21, which provides:
(Emphasis added.) Discussing this section, the principal opinion in Pettus stated:
602 So. 2d at 359-60 (two Justices concurring and five Justices concurring in the result) (footnote omitted). The principal opinion then proposed:
602 So. 2d at 360 (two Justices concurring and five Justices concurring in the result) (footnote omitted). The Pettus "rule" thus turns, in effect, on the omission in the statute's second sentence of the word "local" or a synonym more precise than the word "county."[2]
We acknowledge "the rule on omitted words," which compels this Court to "proceed *805 with great caution in supplying [omitted words] and [to] do so only where the omission is `palpable.'" Pace v. Armstrong World Indus., Inc., 578 So. 2d 281, 285 (Ala. 1991). But we also recognize the "rule of statutory construction that where it appears from the context that certain words have been inadvertently omitted from a statute, the court may supply such words as are necessary to complete the sense, and to express the legislative intent." Walker v. Kilborn, 46 Ala.App. 695, 699, 248 So. 2d 736, 738-39 (Ala.Civ.App.1971).
Ascertainment of legislative intent is, of course, the object of statutory construction. Langham v. State, 662 So. 2d 1201 (Ala. Crim.App.1994). However, "`If a statute is susceptible of two constructions, one of which is workable and fair and the other unworkable and unjust the court will assume that the legislature intended that which is workable and fair.'" Ex parte Hayes, 405 So. 2d 366 (Ala.1981) (quoting State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 233-34, 66 So. 2d 726, 731 (1953)). (Emphasis added.) For the following reasons, we conclude that Pettus's construction of § 17-22A-21 is unworkable.
The duty to canvass election returns and certify a winner is ministerial in nature. Roe v. Mobile County Appointment Bd., 676 So. 2d 1206, 1249 (Ala.1995) (Cook, J., concurring specially); Sears v. Carson, 551 So. 2d 1054, 1056 (Ala.1989); Cosby v. Moore, 259 Ala. 41, 46, 65 So. 2d 178, 181 (1953); Ex parte Pollard, 251 Ala. 309, 313, 37 So. 2d 178, 182 (1948); Hudmon v. Slaughter, 70 Ala. 546, 550 (1881). In discharging this duty, a city council is forbidden to "`go behind [the election returns] or inquire into fraud or irregularity.'" Sears, 551 So. 2d at 1056.
The procedure to be followed in performing this duty is correctly and aptly illustrated in the circuit court's September 30, 1996, writ of mandamus, which directed the city council (1) "promptly [to] canvass the results ... without regard to any alleged irregularities in the conduct of the election and in precise concurrence with the returns of the inspectors for both the polling place and the absentee ballot box"; and, having done so, (2) "forthwith [to] issue a certificate of election to the candidate in each race who received the most votes and immediately file a copy of each certificate of election in the office of the Baldwin County Probate Judge as required by law." The "law" that compels this procedure is Ala.Code 1975, § 11-46-55(a). Specifically, it requires a "municipal governing body" to canvass election returns "[n]ot later than 12:00 noon on Wednesday after the election." (Emphasis added.) At that time, "[i]f it appears that any candidate ... has received a majority of the votes cast for that office ..., the municipal governing body" must, forthwith, issue that candidate a certificate of election. Id. Just as significantly, as the September 30 order correctly illustrates, the legislature did not authorize the city council to "inquire [into] or to investigate election irregularities or fraud or to determine the legality of any votes." Thus, the city council is invested, not with discretionary power as an adjudicatory tribunal, but only with a clearly defined, nondiscretionary dutythe duty to certify election results.
The legislature, itself, sought to ensure the strict performance of this duty through the imposition of criminal sanctions for its nonperformance. Specifically, Ala. Code 1975, § 11-46-59(c), subjects to a minimum fine of $100 "[a]ny mayor or other chief executive [municipal] officer ... who willfully and knowingly neglects, fails or refuses to perform any of the duties prescribed." However, because the certification of municipal election winners is a clearly defined, nondiscretionary duty, performance may also be compelled by a writ of mandamus. Cosby, 259 Ala. at 46, 65 So. 2d at 182; Ex parte Pollard, 251 Ala. at 313, 37 So. 2d at 182.
What may not be compelled judicially, however, is the nonperformance of the duty mandated by § 11-46-55(a). In other words, the judiciary may not order a municipal governing body to disobey or disregard its clearly expressed, statutory duty. Thus, the Baldwin County Circuit Court was without the power to orderas it did on October 1, 1996that the city council "withhold certification of a candidate in the two races, i.e., the Mayor's race and the race for Council *806 member place number 2" (emphasis added) during the pendency of the election contest.
It was on the basis of Pettus that the trial court ordered the city council to disregard § 11-46-55(a), that is, not to certify the apparent winner, as required by the statute. In its October 4, 1996, order, the trial court explained:
Choosing, therefore, what it may have considered to be the lesser of two evils, the trial court sought to "prevent the issuance of ... certificate[s] of election." Pettus, 602 So. 2d at 359. The only alternative would have been to allow the certificates to issue, which result would, under Pettus, have barred all further inquiry into the propriety of the election. This is true because the legislature did not authorize the city council to "`go behind [the election returns] or inquire into fraud or irregularity.'" Sears, 551 So. 2d at 1056. That latter alternative would, under Pettus, have deprived the voters of all remedial relief from the consequences of election irregularities of whatever nature or degree.
The legislature could not have intended either alternative. It did not intend for the courts of this state to order municipal governing bodies to disregard the legislature's statutory mandates. Neither did it intend to deprive the voters of every meaningful opportunity to adjudicate allegations of fraud or other election irregularities.
Significant in this connection are the policies and purposes of legislation regulating entrance into, and conduct within, Alabama public office. Specifically, the legislature has declared that "[i]t is important that there be public confidence in the integrity of government," Alabama Code of Ethics for Public Officials ("Ethics Act"), Ala.Code 1975, § 36-25-2(a)(4) (emphasis added), and, further, that it is the policy of Alabama to "protect[ ] the integrity of all governmental units of this state." Section 36-25-2(d) (emphasis added).[3] The facts of this case have amply demonstrated that Pettus's construction of § 17-22A-21 will not further these goals and policies. Denying voters every meaningful opportunity to correct election improprieties will neither further "public confidence in the integrity of government" nor "protect[] the integrity of all governmental units of this state."
In short, Pettus's construction of § 17-22A-21 is unworkable. Therefore, to the extent it construes the second sentence of § 17-22A-21 as excluding municipal offices, Pettus is overruled.
It must be remembered, however, that, even though we today refuse to follow Pettus, when this mandamus petition was filed Pettus was prima facie the caselaw that controlled the resolution of this dispute. Krages had every reason to believe, and apparently did believe, that this Court would follow Pettus. Under Pettus, given the severe limitations on the amount of time given municipal governing bodies to issue certificates, a writ of mandamus would, in most, if not all, cases involving allegations of irregularity in such elections, have provided the only realistic means of preventing the issuance of an election certificate and the consequent application of the Pettus rule barring judicial review. We will, therefore, proceed to the merits of the issues raised in Krages's petition.
It is undisputed that Krages did not comply with § 17-22A-8(a), which provides in part: "The treasurer of each principal campaign committee or other political committee shall file with the Secretary of State or judge of probate, as designated in Section 17-22A-9, reports of contributions and expenditures... between five and 10 days before a run-off election." (Emphasis added.) In other words, it is undisputed that Krages filed the "contributions and expenditures" report ("the report") required under this provision on September 18, 1996, the day after the runoff election.
Krages contends, however, that, because he ultimately filed the reportalbeit, on the day after the electionhe did not "fail to file any statement or report required by" the FCPA, within the meaning of § 17-22A-21. Specifically, he argues, § 17-22A-21 "does not state that a certificate of election shall not be issued to a candidate who has failed to file a report `within (5) days of the election'" but, he says, "The statute simply states that no certificate shall be issued to any person elected who shall fail to file the required report." Petitioner's Reply Brief, at 9 (emphasis added). "In other words," he contends, "§ 17-22A-21 does not specify when the ... reports must be filed; it merely requires that [they] be filed prior to issuance of a certificate of election." Id. (emphasis in original). Thus, he reasons, "any defect in filing was cured and the certificate was due to be issued to him (once he filed the required report)." Id. (emphasis added). This case thus requires us, once again, to address the consequences of noncompliance with the reporting requirements of the FCPA.
These consequences were most recently discussed in Davis v. Reynolds, 592 So. 2d 546 (Ala.1991). In that case, this Court discussed the consequences of filing "a statement designating [a candidate's] principal campaign committee" after the period specified by § 17-22A-4, but before the day of the election. 592 So. 2d at 547. In doing so, we commented on the "primary laudable purpose" of the FCPA, id. at 555, which, we stated, was to "inform the voting public of the source of a candidate's financial support" and, thereby, to "aid the voting public in choosing its [government] officials." 592 So. 2d at 556.
We reasoned, however, that this purpose could be accomplished only as long as candidates comply with the requirements of the FCPA to "disclose campaign contributions and expenditures prior to elections." Id. at 555 (emphasis added). Thus, we reasoned, a winning candidate who waits until after the election to disclose the required information, "forfeit[s] the election." Id.[4]
As Davis explained, the disclosure obligations are so fundamental to the purposes and objectives of the FCPA that a disclosure offered to the voting public only after the election constitutes an incurable default. This is so, of course, because a post-election disclosure simply cannot provide the benefits the legislature sought to bestow upon the voting public by passage of the FCPA.
To be sure, in Davis we overruled Megginson v. Turner, 565 So. 2d 247 (Ala.1990), which had construed the FCPA to require a forfeiture for any defect in the reporting requirements, even one that was ultimately filed well before the election. Davis, 592 So. 2d at 556; Id. at 558 n. 8 (Maddox, J., concurring in part and dissenting in part). However, Krages's interpretation of § 17-22A-21, namely, that a candidate may cure a defect in his or her compliance with the reporting requirements by filing at any time before the certificate is issuedeven after the electionwould render the FCPA illusory. We hold, therefore, that Krages, who waited until after the election to file the reports required by § 17-22A-8, "fail[ed] to file" within the meaning of § 17-22A-21, and, consequently, may not be certified the winner of the mayoral election.
This holding does not, however, suggest the conclusions of the trial court, namely, (1) *808 that because of Krages's default and forfeiture, Jerry Davidson must be certified the winner; and (2) that Krages may not hold the office under any circumstances. Particularly relevant in this connection is Ala.Code 1975, § 17-15-6, which provides in part:
(Emphasis added.) This section strictly limits the judiciary's power to "affect" the procedures by which Alabama's public representatives are elected and limits the remedies for election irregularities to those remedies specifically authorized by the legislature.
The sole authority cited by the respondents for the certification of a candidate who did not receive a majority of the votes is Pettus. Specifically, the plaintiffs cite that portion of the principal Pettus opinion that stated:
602 So. 2d at 360 (emphasis added). The respondents' reliance on Pettus is based on two principles that they derive from this last-quoted sentence, namely (1) that a trial court has jurisdiction to order a municipal governing body not to issue a certificate as required by § 11-46-55, and (2) that in the interim, the court can fashion any remedy it chooses. For several reasons, however, their reliance is misplaced.
First, as we have explained previously in this opinion, we reject the two primary propositions set forth in Pettus, namely, (1) that a trial court has no jurisdiction to revoke a certificate of election to a municipal office; and (2) that the trial court has jurisdiction to order a municipal governing body not to issue a certificate as required by § 11-46-55. Second, the statement of the corollary principle, which is that until a certificate is issued the judiciary may fashion any remedy it chooses, is clearly dictum. But even if the statement were not dictum, such a principle would violate § 17-15-6. Consequently, we also overrule Pettus to the extent it would authorize the certification of a candidate who did not receive the necessary majority of votes.
Krages and the City both contend that this case is governed by § 11-46-70, pertaining to the "contest of elections." That section provides in part: "If the person whose election is contested is found to be ineligible to the office, judgment must be entered declaring the election void, and the fact must be certified to the municipal governing body. The vacancy in such office shall be filled in the manner prescribed by law." (Emphasis added.) Krages and the City argue that if Krages's default on the disclosure requirements of § 17-22A-21 disqualifies him from certification, then his disqualification renders him "ineligible" within the meaning of § 11-46-70. This ineligibility creates a "vacancy," which, they contend, is to be filled pursuant to Ala.Code 1975, § 11-43-42(b). That section provides in part:
Judge Partin rejected this argument of Krages and the City, reasoning that § 11-43-42(b) would permit the city council to fill the vacancy with anyoneincluding Krages. He concluded that such a result would be inconsistent with § 17-22A-21, because it "would," he states, "penalize one who follow[ed] the law and potentially reward[ ] the one who [broke] the law." Brief of Respondent [Judge] Charles C. Partin ... in Response to Petition for Emergency Mandamus, at 6. We agree that Krages would be permitted to hold the office pursuant to § 11-43-42(b), but we disagree with the conclusion that the selection pursuant to § 11-43-42(b) of a person who had defaulted on obligations imposed by the FCPA is inconsistent with § 17-22A-21.
As we have stated previously in this opinion, the purpose of the FCPA is to "inform the voting public of the source of a candidate's financial support," and, thereby, to "aid the voting public in choosing its [government] officials." Davis v. Reynolds, 592 So. 2d 546, 556 (Ala.1991) (emphasis added). The objective of § 17-22A-21 is to ensure implementation of the FCPA. However, municipal governing bodies are not "the voting public." They are deliberative bodies invested by the legislature with "legislative powers and other powers granted to cities and towns." Ala.Code 1975, § 11-43-43. Simply stated, the FCPA in general, and § 17-22A-21 in particular, have no bearing on municipal governing bodies functioning within the context of § 11-43-42(b). In effect, § 11-43-42(b) constitutes a method of mayoral selection that is an alternative to election by the voting public.
Thus, because it is an alternative method, the municipal governing body is not prohibited from choosing as mayor a person who, solely because of failure to file a disclosure report before the day of the election, was "not eligible ... at the time of such election," § 11-46-69 (emphasis added), or who, otherwise stated, was "ineligible [for certification of election] to the office," § 11-46-70. At any rate, § 17-15-6 forbids the judiciary to fashion a remedy of its own choosing in an attempt to correct what it perceives as an inequity.
For these reasons, the trial court's October 4, 1996, order directing the city council to certify Davidson as the winner of the September 17, 1996, mayoral election was entered in violation of Krages's clear, legal right. The petition for a writ of mandamus directing the trial court to vacate that order is, therefore, granted. The trial court is directed to order the revocation of the certificate of election awarded Davidson pursuant to its October 4, 1996, order, and to instruct the city council to select a mayor according to § 11-43-42(b).
The facts underlying Baker's election dispute differ from those discussed in Part I of this opinion in only one material respect. Whereas Krages filed his FCPA report on September 18, 1996, the day after the election, Baker, at approximately 12:00 noon on September 17, 1996, filed his "Report of Contributions and Expenditures" ("Report"), which Report was required by § 17-22A-8(a). September 17 was, of course, the day of the election.
We have held that a default on FCPA disclosure obligations does not require the winner of an election to forfeit the election, as long as the required report is filed before the election. Davis v. Reynolds, 592 So. 2d 546 (Ala.1991). We held in Part I of this opinion that a default on FCPA disclosure obligations does require the winner of an election to forfeit the election if the required report is filed only after the election. The question presented in this appeal is, therefore, whether an FCPA report filed on the day of the election is filed before the election, within the meaning of Davis.
Candidates for election to "local" offices, such as those involved here, are required to file their FCPA forms in the office of the "judge of probate of the county in which the office is sought." Ala.Code 1975, § 17-22A-9. Baker contends that "[t]here is no election until the polls close and the votes are tabulated." Brief of Appellee Haywood Baker, at 8 (emphasis added). Thus, he argues, *810 a candidate who files before the probate office closes on the day of the election has satisfied the rule set forth in Davis. We disagree with this argument.
The purpose of the FCPA is, we reiterate, to "inform the voting public of the source of a candidate's financial support" and, thereby, to "aid the voting public in choosing its [government] officials." Davis, 592 So. 2d at 556. These objectives can be accomplished, however, only as long as every potential voter has an opportunity to inspect a candidate's FCPA reports before voting. Baker's argument is patently inconsistent with Davis.
We hold, therefore, that Baker, who did not file the reports required by § 17-22A-8(a) until the day of the election, "fail[ed] to file," within the meaning of § 17-22A-21, and, consequently, may not be certified as the winner of the election for city council, Place Two. The judgment of the trial court is reversed, and the cause is remanded with directions to order the revocation of Baker's certification.
Analysis of the issues and authority for filling the vacancy created in Place Two by Baker's ineligibility for certification parallels that in Part One of this opinion regarding the filling of the mayoral vacancy. See §§ 11-46-69 to -70. The "manner prescribed," § 11-46-70, for filling the vacancy in Place Two is set forth in § 11-43-41. That section provides that "[v]acancies in the office of the aldermen in any city or town shall be filled by the council at the next regular meeting or any subsequent meeting of the council."
As we discussed in Part I of this opinion, the filling of a vacancy by the city council is not synonymous with certification pursuant to an election and § 11-46-55. This cause is, therefore, remanded with directions to the trial court to instruct the city council to fill the vacancy in Place Two according to § 11-43-41.
The issues raised in Krages's cross appeal have been fully addressed and resolved in Part I of this opinion. Therefore, the cross appealcase 1960114is dismissed as moot.
In summary, the petition for a writ of mandamus (case 1952161) is granted. In case 1960063, the judgment is reversed and the cause is remanded with directions. The cross appeal (case 1960114) is dismissed.
1952161 PETITION GRANTED.
1960063 REVERSED AND REMANDED WITH DIRECTIONS.
1960114 CROSS APPEAL DISMISSED.
SHORES, KENNEDY, and COOK, JJ., concur.
ALMON and BUTTS, JJ., concur in the result.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur in the result but dissent as to the reasoning, with opinion.
SEE, J., recuses.
HOUSTON, Justice (concurring in the results reached but dissenting as to the reasoning of the main opinion).
In what can most charitably be described as obiter dicta, the Court is judicially legislating.
Alabama Code 1975, § 17-22A-21, which is part of the Fair Campaign Practices Act, provides:
(Emphasis added.)
Alabama Code 1975, § 17-22A-2(7), part of the "Definitions" section of the Fair Campaign Practices Act, provides this definition:
Section 17-22A-21, after the sentence quoted above, continues with the following *811 sentence, which has absolutely nothing to do with the resolution of this case:
(Emphasis added.)
Section 17-22A-21 means what it says, and the term "local office" is specifically defined in the definitions section of the Fair Campaign Practices Act; and the word "county," instead of the defined phrase "local office," is used in the second sentence of § 17-22A-21. The number of counties and their names are set out in Ala.Code 1975, § 11-1-1; "the City of Orange Beach" is not among them.
Why the difference in the use of words in the first and second sentences? That is the business of the Alabama Legislature, because I find nothing in the statute or in Act No. 88-873, Acts of Alabama 1988, that indicates that the Legislature inadvertently omitted the words "local office" or inadvertently added the word "county." However, the last sentence of § 17-22A-21 has absolutely nothing to do with the resolution of this case, and why this Court feels compelled to rewrite that sentence is beyond my comprehension.
I am not persuaded that § 17-22A-21 is unworkable or unjust. It worked remarkably well for the trial judge, who followed the direction of the first sentence of § 17-22A-21 and ordered that the certificate of election not be issued to the person elected who had failed to file the statement or report required to be filed by the Fair Campaign Practices Act.
The main opinion, again in dicta, states that "the nonperformance of the duty mandated by § 11-46-55(a)" may not be compelled judicially. 689 So. 2d at 805. Whether that is correct or not is irrelevant, for there is another duty, arising subsequent to the duty imposed by Acts of Alabama 1982, No. 82-458 (which was last amended by § 11-46-56), and that is the duty imposed by Act No. 88-873that "[a] certificate of election... not be issued to any person elected... to ... local office who shall fail to file any statement or report required by this chapter." (Emphasis added.) Section 24 of Act No. 88-873 provides, in pertinent part, that "all laws and parts of laws in conflict herewith are hereby repealed." Therefore, to the extent that § 11-46-55(a) compelled a municipal governing body to forthwith issue a certificate of election to the candidate in each race who received the most votes, it was repealed or superseded if the candidate who received the most votes had not filed any statement or report required by the Fair Campaign Practices Act. The trial court required the municipal governing body of Orange Beach to withhold certification of candidates who did not file the required reports. In doing so, it did not err.
The per curiam opinion purports to overrule City of Talladega v. Pettus, 602 So. 2d 357 (Ala.1992). That opinion interprets § 17-22A-21 in the only way that it can be interpreted without violating the separation of powers doctrine and judicially legislating. If the legislature meant for "county" to mean "local office," it can amend § 17-22A-21 by substituting "local" for "county" in the second sentence. This has nothing to do with this case, because Jerry Davidson, who was certified mayor by the municipal governing body of Orange Beach, had not failed to file the reports required by the Fair Campaign Practices Act, so far as I can ascertain from the record. Therefore, the last sentence of § 17-22A-21 has no field of operation in the facts before this Court.
The trial court did err in directing the municipal governing body of Orange Beach to certify Jerry Davidson. Until all election contests have been finally adjudicated, there is a vacancy in the office of mayor of Orange Beach, which the city council had the right and duty to fill pursuant to Ala.Code 1975, § 11-43-42(b). I agree with the main opinion that nothing in the Fair Campaign Practices Act or other parts of the Alabama Code would prohibit the city council from appointing Bert Krages or, for that matter, Jerry Davidson, or any other qualified elector in Orange Beach who meets the qualifications required by law for the performance of the duties of the office of mayor.
*812 I also agree that the city council had the right and duty to fill any vacancy in the office of alderman pursuant to § 11-43-41.
HOOPER, C.J., and MADDOX, J., concur.
[1] Also named as a defendant was Mike Schiehl; he is no longer involved in these cases.
[2] It must be remembered that although a "local office" is not necessarily a "county" office, a "county" office is a local office, as defined in § 17-22A-2(7).
[3] The Ethics Act, at § 36-25-30, declares that its provisions are to "be construed in pari materia with other laws dealing with the subject of ethics." The FCPA, § 17-22A-23, requires that its "provisions be construed in pari materia with other laws regulating political contributions." Section 36-25-2 is, therefore, to be construed in pari materia with provisions of the FCPA. See Hunt v. Tucker, 875 F. Supp. 1487, 1517 (N.D.Ala. 1995) (construing provisions of the FCPA and the Ethics Act in pari materia).
[4] We carefully distinguished the consequences of a post election disclosure from those of an untimely pre-election disclosure. In the latter event, as was the case in Davis, the candidate was subject, we determined, only to the misdemeanor penalties imposed by § 17-22A-22, rather than to the harsher, election-forfeiture penalty imposed by § 17-22A-21. 592 So. 2d at 555. | February 7, 1997 |
7f93cadd-f295-413b-9ffc-0d5edbe9c43e | Ex Parte Cincinnati Ins. Co. | 689 So. 2d 47 | 1951867 | Alabama | Alabama Supreme Court | 689 So. 2d 47 (1997)
Ex parte CINCINNATI INSURANCE COMPANY.
(In re CINCINNATI INSURANCE COMPANY, et al. v. BROOKWOOD MEDICAL CENTER, et al).
1951867.
Supreme Court of Alabama.
February 28, 1997.
*48 Tom Burgess of Burgess & Hale, L.L.C., Birmingham, for petitioners.
Dorothy A. Powell and Deborah Ann Payne of Parsons, Lee & Juliano, P.C., Birmingham, for respondents.
BUTTS, Justice.
Cincinnati Insurance Company ("Cincinnati") has petitioned for a writ of mandamus directing Judge Jack D. Carl of the Jefferson Circuit Court to allow Cincinnati to amend its complaint in a pending action to specifically request punitive damages in accordance with Ala.Code 1975, § 6-5-410, the wrongful death statute, with any portion of a recovery in excess of Cincinnati's subrogation interest to be held in trust for Edna H. Bushnell, the sole dependent of Dr. James J. Bushnell, deceased.
Dr. Bushnell was killed on July 14, 1992, when he was struck by a delivery van as the van backed down an alleyway adjacent to his office in a medical clinic building that borders Brookwood Medical Center in Homewood, Alabama. The truck was owned by Royal Cup, Inc., and was driven by Clifford Culpepper, a Royal Cup employee. At the time of his death, Dr. Bushnell was employed by Bushnell & Associates, P.C. Cincinnati was the workers' compensation carrier for Bushnell & Associates, and it has paid insurance benefits to Edna Bushnell, Dr. Bushnell's widow.
Mrs. Bushnell did not file a wrongful death action against any party, and the two-year statutory limitations period for such an action has expired.[1] However, under the extended limitations period of Ala.Code 1975, § 25-5-11(d), Cincinnati exercised its right to subrogation for its workers' compensation payments to Mrs. Bushnell, by filing a wrongful death action against Brookwood Medical Center, Royal Cup, and Mr. Culpepper. In the style of its complaint, Cincinnati indicated that it was the subrogee of Mrs. Bushnell, individually; of Mrs. Bushnell as the administratrix of Dr. Bushnell's estate; and of Bushnell & Associates. The complaint *49 stated several counts; in each count, Cincinnati requested "judgment against defendants in the amount of workers' compensation benefits paid to which the plaintiff's subrogee is entitled."
On January 2, 1996, the trial court entered an order setting a pretrial conference and barring the filing of any additional claims, amended answers, or defenses. However, on the day of the conference, January 16, the court allowed Brookwood Hospital to file an amended answer asserting additional defenses. Apparently, at that conference Cincinnati realized for the first time that the trial court had interpreted its complaint to seek only the amount of its subrogation interest for workers' compensation payments to Mrs. Bushnell. Thereafter, Cincinnati moved to amend its complaint to specifically request a judgment for punitive damages pursuant to § 6-5-410, the wrongful death statute, in addition to the costs, attorney fees, and reasonable expenses allowed by § 25-5-11(d). Cincinnati informed the trial court that it intended to seek a recovery for all the damages allowed by law, but that it would retain only the amount of its subrogation interest, and that any excess of the recovery would be placed in trust for Mrs. Bushnell. The court denied Cincinnati's motion to amend the complaint.
In July 1996, Cincinnati filed a "Motion for Instructions on the Law," in which it requested the trial court to reconsider its ruling on the issue of damages. The trial court denied the motion. Apparently, the trial court's ruling on the issue of damages was based on a combination of the wording of Cincinnati's complaint and the language of § 25-5-11(d), which the court did not believe allowed a subrogee to seek a recovery larger than the amount of its subrogation interest. In response, Cincinnati has petitioned for a writ of mandamus.
The writ of mandamus is an extraordinary remedy, and it will be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Service Stations, Inc., 628 So. 2d 501, 503 (Ala.1993). See Ex parte Lumbermen's Underwriting Alliance, 662 So. 2d 1133 (Ala.1995).
This Court has previously issued a writ of mandamus directing a circuit judge to allow plaintiffs to amend their complaint, even in the face of a pre-trial order, where the Court found that amendment of the complaint would not unduly delay the judicial process or prejudice the substantial rights of any parties. Huskey v. W.B. Goodwyn Co., 295 Ala. 1, 321 So. 2d 645 (Ala.1975).[2] See Hammond v. Realty Leasing, Inc., 351 So. 2d 893 (Ala.1977). In this case, it is uncontested that the requested amendment to the complaint would not cause undue delay and would not prejudice the substantial rights of any parties.[3] Under Rule 15, Ala.R.Civ.P., amendments of pleadings are to be freely allowed where justice so requires. Even after the trial court barred the filing of any further pleadings, it granted Brookwood Medical Center's motion to amend its answer to add certain defenses. Yet the trial court denied Cincinnati's motion to amend its complaint.
Thus, on this review of Cincinnati's petition for a writ of mandamus, we must determine whether Cincinnati has a clear legal right under § 25-5-11(d) and § 6-5-410 to amend its wrongful death complaint to seek an award of punitive damages in excess of the amount of its subrogation interest, with any excess to be held in trust for Mrs. Bushnell.
Under § 6-5-410(a), the personal representative of a deceased's estate "may *50 commence an action and recover such damages as the jury may assess ... for the wrongful act, omission, or negligence ... whereby the death of his testator or intestate was caused." This Court has consistently held that the damages assessed by a jury in a wrongful death action are punitive in nature and are not intended to be compensatory. King v. National Spa & Pool Inst., Inc., 607 So. 2d 1241 (Ala.1992); Hardin v. Sellers, 270 Ala. 156, 117 So. 2d 383 (1960); Harris v. Wright, 225 Ala. 627, 144 So. 834 (1932). The damages assessed in a wrongful death action are imposed against the tortfeasor for the purpose of preserving human life, to punish the tortfeasor for the wrongful act, and to deter the tortfeasor and others from similar conduct in the future. Harvey v. Mitchell, 522 So. 2d 771 (Ala.1988); General Tel. Co. of Alabama v. Cornish, 291 Ala. 293, 280 So. 2d 541 (1973).
Although Mrs. Bushnell did not file a wrongful death action based on the death of her husband, Cincinnati filed such an action under the authority of § 25-5-11(d). That section states:
(Emphasis added.)
Section 25-5-11(d) did not create a new cause of action in addition to the one created by § 6-5-410; rather, it gave workers' compensation insurance carriers, such as Cincinnati, that have paid death benefits a right to commence an action under § 6-5-410. Thus, the damages to be assessed against the tortfeasor in such an action are the punitive damages recoverable in a § 6-5-410 wrongful death action.
In order to fully meet society's goal of punishing the tortfeasor and deterring the tortfeasor and others from similar wrongful conduct in the future, the jury may need to impose punitive damages in an amount in excess of the workers' compensation insurance carrier's subrogation interest. This idea is reflected by the legislature's recognition that the monetary punishment assessed by the jury in a wrongful death case may need to exceed the sum of an insurer's subrogation interest; § 25-5-11(d) expressly calls for the excess to be held in trust for the deceased employee's dependents.
Accordingly, we conclude that Cincinnati had a clear legal right to seek punitive damages in its wrongful death action against Brookwood Medical Center, Royal Cup, and Mr. Culpepper, even though the damages awarded may exceed the amount of Cincinnati's subrogation interest.[4] Cincinnati also *51 had a clear legal right to amend its complaint to seek such damages. Thus, we issue the writ of mandamus.
WRIT GRANTED.
HOOPER, C.J., and SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur.
MADDOX, J., dissents.
[1] Ala.Code 1975, § 6-5-410(d).
[2] This Court held: "We believe that Alabama Rule 16 [Ala.R.Civ.P.] must be read in conjunction with Rule 15 and Rule 1; therefore, liberal allowance of amendment when justice so requires must take precedence over the pre-trial order in Alabama practice." 295 Ala. at 7, 321 So. 2d at 648.
[3] The amendment would not add any claims, nor would it require additional defenses.
[4] A similar lawsuit was described by this Court in Louisville & N.R.R. v. American Mut. Liability Ins. Co., 254 Ala. 128, 47 So. 2d 206 (1950), involving the predecessor to § 25-5-11(d):
"This is a suit by the insurance carrier of the Ingalls Iron Works Company against the Louisville & Nashville Railroad Company under authority of Title 26, section 312, Code 1940 [the predecessor to § 25-5-11(d)].... The plaintiff as insurance carrier for Ingalls Iron Works Company paid the compensation payable to [the deceased's] widow as his only dependent under the Workmen's Compensation Law....
"The suit is for the purpose of reimbursing the plaintiff as insurance carrier and, after being reimbursed, the recovery is for the benefit of the sole dependent of deceased, his widow. The liability is dependent upon principles different from those which fix a liability under the Workmen's Compensation Law, and the measure of the liability is also different. But the nature of the suit as to its form and applicable principles is as though it were by the personal representative of [the deceased] under the homicide statute."
254 Ala. at 128, 47 So. 2d at 206. | February 28, 1997 |
5b39ddda-7b0f-432c-a029-4afaa18ad20e | Gonzalez v. Blue Cross/Blue Shield of Ala. | 689 So. 2d 812 | 1951605 | Alabama | Alabama Supreme Court | 689 So. 2d 812 (1997)
Marco A. GONZALEZ and Theresa Gonzalez
v.
BLUE CROSS/BLUE SHIELD OF ALABAMA and Alfa Mutual Insurance Company.
1951605.
Supreme Court of Alabama.
March 7, 1997.
*813 John F. Kizer, Jr., of Kizer & Gonzalez, L.L.C., Birmingham, for Appellants.
Connie Ray Stockham and Stephanie Zohar of Stockham & Stockham, P.C., Birmingham, for Alfa Mutual Insurance Company.
*814 Bert S. Nettles and Laura E. Proctor of London & Yancey, L.L.C., Birmingham, for Blue Cross and Blue Shield of Alabama.
SHORES, Justice.
Marco A. Gonzalez and his wife Theresa Gonzalez sued Blue Cross/Blue Shield of Alabama ("Blue Cross") and Alfa Mutual Insurance Company ("Alfa Mutual"), after Blue Cross had refused to pay insurance claims relating to the birth of the Gonzalezes' son. The designation of the "Alfa" defendant has caused several problems in this case. First, there has been a question whether the proper legal designation of this defendant should be "Alfa Insurance Company" or "Alfa Mutual Insurance Company." The Gonzalezes' original complaint of August 14, 1994, named "Alfa Insurance Company" as a defendant. In a motion for an extension of time and in its answers to the plaintiffs' interrogatories, the Alfa defendant stated that the designation in the complaint was erroneous and should instead read "Alfa Mutual Insurance Company." To further complicate matters, there is an additional issue of which "Alfa" corporation, "Alfa Mutual Insurance Company" or "Alfa Services, Inc.,"the two are alleged to be different corporate entities had actually provided the insurance coverage to the Gonzalezes. Hereinafter, we shall refer to these corporations as "Alfa Mutual" and "Alfa Services," respectively. The plaintiffs amended their complaint on May 17, 1996, to change the designation of the Alfa defendant from "Alfa Insurance Company" to "Alfa Services, Inc." On May 20, 1996, the trial judge entered a summary judgment in favor of "Alfa Mutual."
Against both defendants the Gonzalezes stated claims of breach of contract and bad faith failure to pay an insurance claim, and they also stated a claim of fraud against Alfa Mutual. The trial court entered a summary judgment for Blue Cross on the bad faith claim and a summary judgment for Alfa Mutual on all claims and made those summary judgments final pursuant to Rule 54(b), Ala. R. Civ. P. The Gonzalezes appeal. We affirm.
The Gonzalezes sought family health insurance coverage. On January 28, 1993, they completed and signed a "Blue Cross and Blue Shield Application for Health Coverage" and then submitted this application to the Alfa Service Center in Pelham, Alabama. Under a contract with Alfa Services, Blue Cross acts as the claims administrator for the Alfa Health Plan, the policy for which the Gonzalezes applied. Blue Cross approved the application and mailed a "Certificate of Alfa Group Health Benefits" ("the certificate") to the Gonzalezes. The final page of the application is entitled "Conditions of Enrollment"; the conditions stated there include an acknowledgment that the insured understands that maternity care benefits would be covered under the insurance policy but would be subject to a 365-day waiting period:
"I, the undersigned, represent that:
The certificate issued to the Gonzalezes contained a similar explanation of the 365-day waiting period for maternity benefits:
Under these provisions, the Gonzalezes' waiting period for maternity benefits began on March 1, 1993, the effective date of their coverage, and would expire on February 28, 1994.
*815 Marco Gonzalez, who is an attorney at law, alleges that he was not told, before he submitted the application and a $650 check to cover the first premium, that there was a 365-day waiting period for maternity benefits. Indeed, he alleges that an employee at the Alfa Service Center told him, instead, that he and his family would have "full coverage immediately." Marco Gonzalez also alleges that he did not read the application before signing it and did not read the certificate until after Blue Cross had rejected the claim relating to the birth of his son.
On June 30, 1993, during an examination by her family doctor, Dr. Bryan McClelland, Mrs. Gonzalez discovered that she was pregnant. The following day, she visited her obstetrician-gynecologist, Dr. Robert May, who confirmed Dr. McClelland's findings. Because Dr. May was nearing retirement, the Gonzalezes chose Dr. William Somerall to care for Mrs. Gonzalez during her pregnancy and to deliver the baby. On September 8, 1993, Mrs. Gonzalez visited Dr. Robert Ryan, who performed an ultrasound examination. After the claim for this service was submitted for payment, Blue Cross requested the results of the ultrasound examination to determine the applicability of the waiting period to Mrs. Gonzalez's pregnancy. On November 12, 1993, Blue Cross received the ultrasound computer printout, which listed the first day of Mrs. Gonzalez's last menstrual period as May 23, 1993, showed that the fetus had a gestational age of about 15.6 weeks, and designated the expected delivery date as February 26, 1994. The accompanying report from Dr. Ryan said that the clinical expected delivery date was February 27, 1994. Both of these due dates were before the expiration of the waiting period on February 28, 1994.
On February 22, 1994, Mrs. Gonzalez was admitted to Brookwood Medical Center and there gave birth on February 24, 1994, to a nine-pound, five-ounce, baby boy. It is undisputed that the actual delivery date came before the expiration of the waiting period. The claims associated with the delivery, which included the hospital admission, the delivery itself, and an epidural, were submitted to Blue Cross for payment. Blue Cross paid claims on March 14 and March 28, 1994, for the delivery and the epidural, respectively. But on March 31, 1994, Blue Cross rejected the $8,031.90 claim for Mrs. Gonzalez's hospital stay from February 22 to February 26, 1994. On April 13, 1994, Blue Cross paid the claim for the ultrasound examination, which had been performed by Dr. Ryan on September 8, 1993. However, Blue Cross later determined that this ultrasound claim, as well as the claims for the delivery and the epidural, had all been paid in error, and it requested refunds of amounts it had initially paid for these services.
After being notified that Blue Cross had rejected the hospital admission claim, Mr. Gonzalez wrote two letters, dated May 2 and May 18, 1994, to Brookwood Medical Center, requesting information and documentation regarding why that claim had been rejected. Copies of these letters were also sent to Blue Cross. On June 6, 1994, Martha Melton, a Blue Cross customer service representative, wrote to Mr. Gonzalez, acknowledging receipt of his letters and stating that Mrs. Gonzalez's medical records had been forwarded to the Blue Cross medical review staff. On June 20, 1994, the Gonzalezes received a letter, by certified mail, from Brookwood Medical Center with an enclosed copy of a Blue Cross remittance notice dated March 31, 1994, stating that benefits were unavailable for Mrs. Gonzalez's hospital admission because the waiting period specified in the contract had not been served. Also on June 20, Blue Cross sent Mr. Gonzalez a letter offering the same explanationthat the hospital admission claim had been rejected because of the 365-day waiting period. In reply, Mr. Gonzalez wrote another letter to Blue Cross, dated July 13, 1994, enclosing copies of a letter from Dr. McClelland and a record from Dr. May stating that Mrs. Gonzalez's positive pregnancy test was given on June 30, 1993, and that the first day of her last menstrual period was documented as June 21, 1993. Mr. Gonzalez claimed that this information he submitted indicated an expected delivery date that was after February 28, 1994, and thus was outside the waiting period. Lynn Farley, medical director with Blue Cross, wrote back, explaining that this new information provided by Drs. *816 McClelland and May conflicted with the previously submitted ultrasound records from Dr. Ryan that Blue Cross had reviewed. Farley's letter further stated that, in light of the conflicting information, Blue Cross had requested additional records from Drs. Somerall and May and that Blue Cross would reconsider whether the hospital admission claim would be paid. The Gonzalezes did not wait for a response from Blue Cross, but filed this action on August 17, 1994.
On appeal, the Gonzalezes raise four issues: They contend that the trial court erred because: (1) they say they created a genuine issue of material fact on their bad faith claim against Blue Cross; (2) they say the court erred in striking an affidavit by Dr. Ryan that the Gonzalezes had offered with their motion to alter, amend, or vacate the summary judgment on the bad faith claim; (3) they contend the summary judgment for Alfa Mutual on all claims was improper; and (4) they say the court erred in overruling their motion to compel the defendants to comply with certain discovery requests. We shall address each of these arguments in turn.
The Gonzalezes argue that on their bad faith claim against Blue Cross they presented evidence creating genuine issues of material fact for a jury to decide and, therefore, that the trial judge erred by granting Blue Cross's motion for summary judgment.
A 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, Ala. R. Civ. P. On a motion for summary judgment, the burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact to be considered by the jury. Brantley v. Proactive Ins. Corp., 632 So. 2d 969 (Ala.1994). When the moving party has made this prima facie showing, the burden shifts to the nonmoving party to present "substantial evidence" creating a genuine issue of material fact. Id.; § 12-21-12, Ala. Code 1975. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). In determining whether a summary judgment was proper, this Court must view the evidence in a light most favorable to the nonmoving party. Brantley, at 970.
This Court first recognized an actionable tort for an insurer's bad faith refusal to pay an insurance claim in Chavers v. National Security Fire & Cas. Ins. Co., 405 So. 2d 1 (Ala.1981). "Bad faith is the intentional failure by an insurer to perform the duty of good faith and fair dealing implied by law." Koch v. State Farm Fire & Cas. Co., 565 So. 2d 226, 229 (Ala.1990). In Chavers the Court held:
405 So. 2d at 7. The Gonzalezes' bad faith claim rests on the second tier of the Chavers test, which was clarified in Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916, 924 (Ala. 1981):
The elements of a bad faith claim were summarized in National Security Fire & *817 Cas. Co. v. Bowen, 417 So. 2d 179 (Ala.1982), as follows:
417 So. 2d at 183.
In Blackburn v. Fidelity & Deposit Co., 667 So. 2d 661, 668 (Ala.1995), we stated:
Thus, the issue before this Court is whether the Gonzalezes presented substantial evidence that Blue Cross failed to properly investigate the Gonzalezes' claims or to subject the results of its investigation to a "cognitive evaluation and review."
The policy issued to the Gonzalezes specifically requires that coverage be in effect for 365 days before maternity benefits will be provided. As previously noted, the effective date of the policy in this case was March 1, 1993, so the waiting period for maternity benefits expired on February 28, 1994. Mrs. Gonzalez gave birth on February 24, 1994, before the expiration of the waiting period. However, the policy also specifies that maternity benefits would be provided "when the pregnancy terminates before [the] expected delivery date which, if carried to full term, *818 would have occurred after the expiration of the 365-day waiting period." Thus, because the actual birth of the Gonzalezes' baby came before the expiration of the waiting period, the maternity care services rendered to Mrs. Gonzalez would be covered under the policy only if the expected delivery date was after the expiration of the waiting period on February 28, 1994.
The record shows that on November 1, 1993, Blue Cross requested the records of Mrs. Gonzalez's ultrasound examination that had been performed on September 8, 1993, by Dr. Ryan, in order to determine the applicability of the waiting period. It is undisputed that Blue Cross received both the computer printout indicating the results of that examination and showing an expected delivery date of February 26, 1994, and the accompanying report from Dr. Ryan stating that the clinical expected delivery date was February 27, 1994. In addition, Mrs. Gonzalez's Hospital "Admission Summary, Delivery and Newborn Record" from Brookwood Medical Center also lists the expected delivery date as February 27, 1994, and it states the gestational age as approximately 39.2 weeks and states that the baby was nine-pounds, five-ounces and that the pregnancy was considered full-term. (C.R. 110) Each of these documents, all of which show the dates of actual delivery and expected delivery to be before the expiration of the waiting period, was sufficient to establish an arguable or debatable reason for denying the claim.
The Gonzalezes counter by arguing that there is no evidence that the information in Mrs. Gonzalez's file was actually considered by Blue Cross medical review personnel until after the claim was initially rejected on March 31, 1994. The Gonzalezes correctly argue that Blue Cross cannot defeat a bad faith claim by advancing reasons for the denial, no matter how valid, that were discovered only after it had rejected an investigation of the claim. "Whether an insurance company is justified in denying a claim under a policy must be judged by what was before it at the time the decision was made." Dutton, 419 So. 2d at 1362. However, Blue Cross records show that Mrs. Gonzalez's file, which included the ultrasound results and Dr. Ryan's report, both of which indicated due dates that would come before the expiration of the waiting period, had been forwarded for medical review as of November 29, 1993. (C.R. 452) In addition, the record also shows that at least by January 25, 1994, Blue Cross was aware that Mrs. Gonzalez's expected delivery date was February 26, 1994, and it also shows that by January 25 Blue Cross had already determined that the exclusion (for the case of a baby born during the waiting period whose full-term delivery would have come after the waiting period had ended) could be applicable. (C.R. 449.)
The Gonzalezes next argue that Blue Cross failed to properly evaluate their claim, arguing that when Blue Cross rejected their claim it had not yet discovered or considered the information from Drs. May and McClelland that indicated an expected delivery date outside the waiting period. Blue Cross did not receive this information until Mr. Gonzalez submitted it with his letter dated June 13, 1994, several months after Blue Cross had initially denied the claim. However, the record indicates no reason for Blue Cross to believe that the information already in its possession was incorrect or incomplete. Even assuming that Blue Cross had considered the records submitted by Drs. May and McClelland and had then denied the claim, the ultrasound results and the hospital delivery records in Blue Cross's possession showing that both the actual and the expected delivery dates were before the expiration of the waiting period still would provide at least an arguable or debatable basis for Blue Cross to deny the claim; and once Mr. Gonzalez submitted the conflicting information regarding the expected date of delivery, Blue Cross agreed to reopen the file and to review its determination that it had a valid reason to deny the claim. Thus, the Gonzalezes cannot complain that Blue Cross did not properly investigate the claim once it received evidence indicating that the denial of benefits might have been incorrect. See King v. National Foundation Life Ins. Co., 541 So. 2d 502, 505 (Ala.1989). We conclude that the trial court properly entered the summary *819 judgment in favor of Blue Cross on the claim of bad faith.
After the trial court had entered the summary judgment for Blue Cross on the bad faith claim, the Gonzalezes moved to alter, amend, or vacate that judgment, pursuant to Rule 59, Ala. R. Civ. P., and offered with their motion an affidavit of by Dr. Robert Ryan. Blue Cross responded by moving to strike the affidavit. The trial court granted Blue Cross's motion to strike the affidavit and denied the Gonzalezes' Rule 59 motion.
The Gonzalezes argue that the trial court erred in striking Dr. Ryan's affidavit. However, we do not address this issue, because the Gonzalezes' brief does not does not comply with Rule 28(a), Ala.R.App.P. The Gonzalezes' brief states as one of its issues: "Did the trial court commit prejudicial error in overruling Appellants' Motion to Reconsider and granting Appellee's Motion to Strike the Affidavit of Dr. Robert T. Ryan?" The Gonzalezes' brief merely cites the affidavit as if it had been admitted as evidence, but the Gonzalezes completely fail to argue why excluding the affidavit was error and they cite no authority to support their position. "When an appellant fails to properly argue an issue, that issue is waived and will not be considered on appeal." Sullivan v. Alfa Mut. Ins. Co., 656 So. 2d 1233 (Ala.Civ.App. 1995), citing Boshell v. Keith, 418 So. 2d 89 (Ala.1982).
The Gonzalezes next argue that the trial court incorrectly entered the summary judgment for Alfa Mutual on all their claims, i.e., breach of contract, bad faith, and fraud.
The Gonzalezes claimed that they entered into a health insurance contract with Alfa Mutual and that Alfa Mutual breached that contract by failing to pay the claims relating to Mrs. Gonzalez's maternity care. Before the trial court, Alfa Mutual argued that it was entitled to a summary judgment on the breach of contract claim because, it said, there was no evidence to show that a contract existed between itAlfa Mutual Insurance Companyand the Gonzalezes. Rather, Alfa Mutual contended, the Gonzalezes' contract of health insurance was with Blue Cross and had been issued through the group carrier, Alfa Services, Inc., a corporate entity separate and distinct from Alfa Mutual.
The essential elements of a contract are an agreement, consideration, two or more contracting parties, a legal object, and capacity. Shirley v. Lin, 548 So. 2d 1329 (Ala. 1989). The Gonzalezes presented no substantial evidence indicating that a contract existed between them and Alfa Mutual. The certificate received by the Gonzalezes shows that their insurance coverage under the Alfa Health Plan was through Alfa Services, not Alfa Mutual:
(Emphasis added.) The Gonzalezes do not dispute Alfa Mutual's allegation that Alfa Mutual Insurance Company and Alfa Services, Inc., are different corporations. Indeed, *820 the Gonzalezes amended their complaint on May 17, 1996, to change the designation of the "Alfa" defendant from "Alfa Insurance Company" to "Alfa Services, Inc.," implicitly acknowledging that their original complaint designated the incorrect party as a defendant in this action.
The Gonzalezes argue, however, that, as a result of certain statements made by opposing counsel during a deposition and in a legal brief, it is "undisputed" that a contract existed between them and Alfa Mutual. Thus, the Gonzalezes appear to contend that Alfa Mutual has stipulated to the existence of such a contract and should not be permitted now to argue the issue. In support of their position, the Gonzalezes first allege that during the deposition of Martha Melton, a Blue Cross customer service representative, the attorney then representing both Blue Cross and Alfa Mutual, Bert Nettles, agreed to the existence of a contract between the Gonzalezes and Alfa Mutual. The deposition transcript in the record indicates the following exchange between Bert Nettles and Marco Gonzalez, who was acting as his own attorney:
(C.R. 287.) (Emphasis added.) The Gonzalezes further claim that Nettles also stipulated that the Gonzalezes had family coverage through "a group Alfa Mutual Insurance Company Health Plan"; they say this stipulation came in the Blue Cross brief filed in the trial court in support of Blue Cross's motion for summary judgment.
A stipulation is defined as a "`voluntary agreement between opposing counsel concerning [the] disposition of some relevant point so as to obviate [the] need for proof or to narrow [the] range of litigable issues.'" Evans v. Alabama Professional Health Consultants, Inc., 474 So. 2d 86 (Ala.1985) (quoting Black's Law Dictionary 1269 (5th ed. 1979)). "Parties may stipulate the issues in a case[,] with the consequence that such stipulations are binding." Vann Express, Inc. v. Phillips, 539 So. 2d 296 (Ala.Civ.App.1988). Agreements between parties or by their attorneys "made in open court or at pretrial conferences are binding, whether such agreements are oral or written." Jones v. Gladney, 339 So. 2d 1019 (Ala.1976), citing Rule 47, Ala.R.App.P., and, under some circumstances, agreements made during a deposition, a transcript of which appears in the record, may be deemed to have been made "in open court" and thus may be enforceable, notwithstanding that there was no signed writing. See Ex parte W.Y., 605 So. 2d 1175 (Ala.1992); see also McKelvy v. Darnell, 587 So. 2d 980 (Ala.1991).
Neither of the statements relied on by the Gonzalezes helps them. Even if we assumed that the exchange between Marco Gonzalez and Bert Nettles during the deposition did constitute a stipulation of an issue, Nettles's answers could affirm only that the Gonzalezes had a contract with Blue Cross, not that they had a contract with Alfa Mutual. The witness being deposed was an employee of Blue Cross, and Marco Gonzalez asked whether it was agreed that the Gonzalezes had a valid contract of insurance with Blue Cross. Nettles answered in the affirmative. Neither Nettles nor Mr. Gonzales referred to Alfa Mutual.
Later, in his brief filed on March 5, 1996, in support of Blue Cross's motion for summary judgment, Nettles did refer to the fact that the Gonzalezes had insurance coverage through a policy with Alfa Mutual. Section 34-3-21, Ala.Code 1975, provides 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, *821 or by an entry to be made on the minutes of the court." Once again, even if we assumed that such a statement by counsel in a brief was binding upon the party counsel represents, we would note that the record shows that Nettles did not represent Alfa Mutual when he filed Blue Cross's brief. On October 25, 1995, attorney Connie Ray Stockham filed a notice of appearance as separate counsel for Alfa Mutual. Since that time, Nettles has represented Blue Cross only and has not acted on behalf of Alfa Mutual in any matter connected with this case. Even if Nettles stated in his brief, which was admittedly submitted on behalf of Blue Cross rather than Alfa Mutual, that he agreed that Alfa Mutual had entered into a contract with the Gonzalezes, that statement would not help the Gonzales, because Alfa Mutual was no longer his client when he filed that brief. Therefore, Alfa Mutual is not bound by his statements or agreements. See Shoals Community College v. Colagross, 674 So. 2d 1311 (Ala.Civ.App.1995). We find in the record no evidence that Alfa Mutual stipulated that it had entered into a contract with the Gonzalezes. Indeed, the undisputed evidence shows that it did not enter into such a contract. Thus, the trial court correctly entered the summary judgment for Alfa Mutual on the breach of contract claim.
We have noted above, in our discussion of the elements of an action for bad faith failure to pay an insurance claim, that the plaintiff in such an action has the burden of proving the existence of an insurance contract between the parties and a breach thereof by the defendant. See Bowen, 417 So. 2d at 183. Because we have already determined that the trial court correctly held that evidence showed there was no contract of insurance between the Gonzalezes and Alfa Mutual, we must also conclude that the Gonzalezes failed to present the evidence necessary to defeat the summary judgment motion as to their bad faith claim against Alfa Mutual. The Gonzalezes offered no evidence that there was an insurance contract between the parties and that the insurer had breached that contract. See Bean v. State Farm Fire & Cas. Co., 591 So. 2d 17, 22 (Ala.1991).
We now consider the summary judgment for Alfa Mutual as it regards the Gonzalezes' fraud claim. Marco Gonzalez alleges that he was told by an agent or employee at the Alfa Service Center in Pelham that the Gonzalez family would have "full coverage immediately." He claims that he was defrauded by Alfa Mutual because maternity benefits were not available immediately, but were, rather, subject to the 365-day waiting period.
"The elements of a fraud claim are: (1) a misrepresentation of a material fact [by the defendant]; (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." Howard v. Mutual Sav. Life Ins. Co., 650 So. 2d 868, 871 (Ala.1994); see § 6-5-101, Ala.Code 1975. The misrepresentations of an insurance agent may be imputed to his or her insurer principal. Washington Nat'l Ins. Co. v. Strickland, 491 So. 2d 872, 874 (Ala.1985).
We have held that the Gonzalezes presented no substantial evidence that their insurance coverage was issued through Alfa Mutual. There may be evidence indicating that the agent who solicited the Gonzalezes to purchase insurance and who allegedly made the misrepresentation to Marco Gonzalez was acting as an agent on behalf of some principal. However, the Gonzalezes presented no evidence that the agent was, at that time, acting on behalf of Alfa Mutual. Therefore, any misrepresentation on the part of the agent would not be imputable to Alfa Mutual. We conclude that the summary judgment in favor of Alfa Mutual was proper as to the fraud claim.
The Gonzalezes' final argument is that the trial court erred in overruling their motion to compel the defendants to comply with discovery requests that asked for information regarding all similarly situated policyholders who in the preceding three years had been denied maternity benefits on account of the waiting period and that asked for copies of all the defendants' commercials and advertisements that had run in Alabama in the *822 preceding three years. The Gonzalezes' motion to compel was initially granted by the trial court. After Blue Cross and Alfa Mutual filed motions to reconsider that ruling, the trial court overruled the motion to compel. The Gonzalezes argue that the trial court erred because they say the information they requested is in fact discoverable, even if the trial judge subsequently should find it to be inadmissible.
In Ex parte Mobile Fixture & Equipment Co., 630 So. 2d 358, 360 (Ala.1993), this Court stated:
630 So. 2d at 360, quoting Ex parte McTier, 414 So. 2d 460, 461 (Ala.1982). With this standard in mind, we conclude that the Gonzalezes have failed to show that the trial judge abused his discretion in overruling the motion to compel. On February 17, 1995, the judge held a status conference, at which he entered an order requiring that all medical discovery and other discovery be completed by June 15, 1995. The Gonzalezes did not file their two items styled "Interrogatories and Request for Production" asking both defendants to produce the information regarding the similarly situated policyholders and the defendants' advertisements, until October 5, 1995, and January 22, 1996. Both discovery requests came well beyond the deadline set by the trial court, and it was therefore within the court's discretion to overrule the motion to compel.
The trial court correctly entered the summary judgment for Blue Cross on the claim of bad faith and correctly entered the summary judgment for Alfa Mutual on all claims.
Those judgments are affirmed.
AFFIRMED.
HOOPER, C.J., and ALMON, HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur.
MADDOX, J., recuses. | March 7, 1997 |
a6a18534-676a-4148-b0bc-9ab670586d47 | Ex Parte Jones | 592 So. 2d 210 | 1901702 | Alabama | Alabama Supreme Court | 592 So. 2d 210 (1991)
Ex parte Darin Anthony JONES.
(Re Darin Anthony Jones v. State).
1901702.
Supreme Court of Alabama.
December 20, 1991.
Thomas M. Goggans, Montgomery, for appellant.
*211 James H. Evans, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for appellee.
SHORES, Justice.
The petitioner, Darin Anthony "Rollo" Jones, was convicted of murder in the Circuit Court of Etowah County and was sentenced to life imprisonment. The Court of Criminal Appeals affirmed. The trial court had admitted as evidence the gun allegedly used by Jones. Jones claims that there was a break in the chain of custody of that gun and, therefore, that the trial court erred in allowing it into evidence.
On December 27, 1989, Ishmeal Ransaw, Kevin Traylor, Vada Samuels, and Willie Brown were riding around Gadsden, Alabama, in Traylor's automobile. They were looking for Glenn Williams for the purpose of inflicting some type of harm upon him. They stopped at Shaw's convenience store, where they saw Bobby Rudolph and Jones. Samuels told Jones that they were looking for Williams, and Jones responded by saying that he wanted "a piece of the action." Jones and Rudolph then got into Traylor's car.
Traylor drove to Jones's house, where Jones retrieved a shotgun from the trunk of another car. Jones got back into Traylor's car and they drove to a location near Carver Community Center; Samuels also had a shotgun with him. Brown got out of the car and subsequently began fighting with Williams. Ransaw testified that thereafter Jones got out of the car, placed his gun over the top of the car and fired at least two shots; Samuels also began firing shots.
Traylor then drove, with Rudolph, Jones, and Samuels, to Atlanta; on the way there, Jones stated "I got him. I got him," and also said that he had shot Williams first. Samuels stated that, as he and Brown were running off, Williams was calling his name, and that he went back and loaded one more shell and shot him again. Samuels also stated that he had hidden his gun by a Marvin's hardware store; on January 15, 1990, Samuels's gun was found beside a Marvin's hardware store.
During the trial, Ransaw identified State's exhibit number one as Samuels's gun and identified State's exhibit number 38 as the gun used by Jones. Faye Gary, a lieutenant with the Gadsden Police Department, testified that she received a telephone call on February 26, 1990, at her home, from a confidential informant; she said she met with the informant and at the meeting was given State's exhibit number 38. She testified that she took the gun home with her and kept it until 8:00 a.m. the next morning, when she carried it to city hall and gave it to Lieutenant Jeffrey E. Wright.
Lieutenant Gary testified that her informant told her that he was given this gun by an unidentified person and that this unidentified person told Gary that he had bought it for $5 from a small child who had seen it being put in a ditch behind the Carver Community Center. Gary also testified that when she turned the gun over to Lieutenant Wright, it was in the same, or substantially the same, condition as it was in when she received it from the informant.
Jones does not dispute the chain of custody of the gun after it was placed into officer Gary's custody. Jones contends only that there was insufficient testimony as to the whereabouts of the gun between the time of the offense and its initial delivery to Lieutenant Gary; therefore, he argues, there was a break in the chain of custody and the gun should have been excluded from evidence. The trial court admitted into evidence exhibit number 38 over Jones's chain-of-custody objection. Jones was found guilty of murder and was sentenced to life imprisonment. The Court of Criminal Appeals affirmed, stating in an unpublished memorandum opinion, 586 So. 2d 304, that Jones's chain-of-custody argument was "without merit, because the chain of custody began when the shotgun was seized." We agree.
Laws v. State, 562 So. 2d 305, 306 (Ala.Cr. App.1990).
Williams v. State, 505 So. 2d 1252, 1253 (Ala.Cr.App.1986), aff'd, 505 So. 2d 1254, 1255 (Ala.1987). A gun is properly admitted into evidence when it is identified at trial as being the weapon used in the commission of the offense. Sumpter v. State, 480 So. 2d 608, 613-14 (Ala.Cr.App.1985).
Because there was no link missing from the chain of custody of exhibit number 38 and there was a positive identification of the shotgun by Ransaw, a witness to the murder who had personal knowledge of the gun that Jones took to the scene of the crime and which he saw Jones fire, the trial court correctly admitted the gun into evidence.
For the foregoing reasons, the judgment of the Court of Criminal Appeals is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., concur. | December 20, 1991 |
a4905feb-79d9-4ad6-b91c-3e29c17db44f | Brewer v. Davis | 593 So. 2d 67 | 1901650 | Alabama | Alabama Supreme Court | 593 So. 2d 67 (1991)
Linda BREWER, et al.
v.
Lindsey M. DAVIS and Holt, McKenzie, Holt and Mussleman.
1901650.
Supreme Court of Alabama.
December 13, 1991.
Rehearing Denied January 17, 1992.
Howard M. Miles of Stockham & Miles, Birmingham, for appellants.
John B. Baugh and Ralph M. Young of Gonce, Young & Westbrook, Florence, for appellees.
STEAGALL, Justice.
The plaintiffs appeal from a summary judgment entered in favor of the defendants in a legal malpractice action.
Linda Brewer, Mary E. Hill, and Gene Brown employed Lindsey Davis, a lawyer with the firm of Holt, McKenzie, Holt and Mussleman, to contest the will of Lois Brown, deceased. The will was admitted to probate on May 2, 1986. On August 4, 1986, Davis, on behalf of her clients, filed a petition to remove the estate to circuit *68 court, and the petition was granted. On April 22, 1987, Davis, on behalf of her clients, filed an amendment to the petition for removal, asserting grounds for the will contest. The case was tried to a jury, a verdict was returned against the will, and a judgment was entered. On appeal by the executrix of Lois Brown's estate, this Court, in Bullen v. Brown, 535 So. 2d 76 (Ala.1988), reversed the trial court's judgment, holding that the petition for removal did not constitute a proper complaint to contest the will and that the amendment to the petition for removal was not effective because there was no complaint to amend, and, therefore, that the trial court was without jurisdiction. The application for rehearing in Bullen was overruled by this Court on October 31, 1988, and a final certificate of judgment was entered on November 8, 1988. On March 22, 1990, Linda Brewer, Mary E. Hill, Kay Brown, Danny Brown, Jason Brown, and Amy Brown filed this legal malpractice suit against Lindsey M. Davis and Holt, McKenzie, Holt and Mussleman.
It appears from the pleadings in the record before us that Gene Brown was deceased when this complaint was filed and that Kay Brown, Danny Brown, Jason Brown, and Amy Brown are heirs of Gene Brown. We recognize that under Ala.Code 1975, § 6-5-462, Gene Brown's claim did not survive his death and that Kay Brown, Danny Brown, Jason Brown, and Amy Brown have no standing to assert the legal malpractice claim. (See Gillilan v. Federated Guar. Life Ins. Co., 447 So. 2d 668 (Ala.1984), wherein this Court held that a claim sounding in tort for which no action has been filed does not survive the death of the person with the claim.) Accordingly, the appeal is dismissed as to those parties.
In its order entering summary judgment for the defendants, the trial court held that the cause of action accrued on November 2, 1986 (the last date to file a will contest); the trial court wrote:
In Michael v. Beasley, 583 So. 2d 245 (Ala.1991), this Court held that the time limits set out in the Legal Services Liability Act, Ala.Code 1975, § 6-5-570 et seq., are to be measured from the date of the accrual of the cause of action, not from the date of the occurrence of the act or omission, and that a cause of action accrues when some injury occurs giving rise to a cause of action. In that case, we concluded that the Michaels sustained a legal injury sufficient for them to maintain an action at the time a jury verdict was returned against them and that their cause of action accrued at that time, not when this Court affirmed the trial court's judgment.
In the present case, we find that the plaintiffs sustained a legal injury sufficient for them to maintain an action against the *69 defendants when this Court overruled the application for rehearing in Bullen v. Brown, supra. In this case, unlike Michael v. Beasley, supra, the jury returned a verdict in favor of the plaintiffs and the plaintiffs sustained no loss or injury until this Court reversed the trial court's judgment and overruled the application. Accordingly, the judgment of the trial court is reversed and the cause is remanded.
DISMISSED AS TO KAY BROWN, DANNY BROWN, JASON BROWN, AND AMY BROWN; AS TO LINDA BREWER AND MARY E. HALL, REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and INGRAM, JJ., concur. | December 13, 1991 |
ea3c1527-9c16-42fa-81be-0080c8a79c20 | City of Prattville v. Joyner | 698 So. 2d 122 | 1951263 | Alabama | Alabama Supreme Court | 698 So. 2d 122 (1997)
CITY OF PRATTVILLE
v.
Leon Harold JOYNER, et al.
1951263.
Supreme Court of Alabama.
June 13, 1997.
*123 Donald J. Stewart, Roy J. Crawford, and Richard E. Davis of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile and Birmingham; and George H. Howell of Howell, Sarto & Howell, Prattville, for Appellant.
Alfred Q. Booth, Prattville; and Donald G. Madison, Montgomery, for Appellees.
Bill Pryor, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., as Amici Curiae.
Alabama League of Municipalities, Amici Curiae, in support of appellant, represented by Kenneth Smith, league counsel.
MADDOX, Justice.
This is the second time this case has been before this Court. It presents this time, as it did the first time, the issue whether a municipality, here the City of Prattville, can terminate fire protection services to residents and businesses located within its police jurisdiction. See, City of Prattville v. Joyner, 661 So. 2d 1158 (Ala.1995) (hereinafter referred to as Joyner I).
Most of the basic facts are stated in Joyner I, but we state a few of those facts again for a better understanding of the legal issue presented.
On October 19, 1993, the Prattville City Council passed an ordinance that purported to withdraw fire protection from Prattville's police jurisdiction, the initial ordinance providing for an effective date of January 1, 1994; the date was later extended to May 1, 1994. On April 29, 1994, just before the ordinance was to become effective, Leon Joyner, the owner of a business located within the Prattville police jurisdiction, filed a class action in which he sought declaratory relief and an order restraining the City from terminating the fire protection in the police jurisdiction on the ground that the City's action was "arbitrary and capricious, null and void, and unconstitutional." On April 30, 1994, the trial judge temporarily restrained Prattville from terminating fire protection, and on May 15, 1994, after a hearing on a request to enter preliminary relief, he entered a preliminary injunction enjoining "the City of Prattville, its Mayor and members of its Council, agents and employees" from "withdrawing, eliminating and/or terminating police and fire protection from the business and individual residents who are located and/or residing within the three mile radius of the city known as and statutorily defined as the police jurisdiction" (emphasis in original). The City appealed; this Court affirmed.
In affirming, this Court cited Alford v. City of Gadsden, 349 So. 2d 1132 (Ala.1977), stating that
661 So. 2d at 1161-62. Nevertheless, this Court held that the doctrine could be applied in that case, saying, among other things, the following:
661 So. 2d at 1163 (emphasis original).
In Joyner I, the Court also found that "[o]ther jurisdictions [had] also considered reasonable reliance as an appropriate basis for enforcing a duty on the part of the municipality," citing cases. 661 So. 2d at 1162.
After this Court rendered its decision, the parties made several additional filings, in which Joyner asked that the injunction be made permanent and the City asked that the cause be dismissed because of Joyner's failure to serve a copy of the pleadings on the attorney general. On August 11, 1995, Joyner served a notice of the pendency of the proceeding on the attorney general, attaching copies of the complaint and amendments to it. Joyner then filed a motion for summary judgment on the basis of the preliminary injunction order and Joyner I. The original trial judge recused and the case was assigned to another judge.[1]
The newly assigned trial judge, without holding a hearing, granted Joyner's request for a permanent injunction and denied each of the requests by the City to dismiss for the court's failure to require the joinder of the Cities of Montgomery and Millbrook, whose police jurisdictions overlap, in part, with Prattville's.
The City also raises the issue whether the trial court erred in certifying this action as a class action; the City contends that the requirements of Ala.R.Civ.P. 23(a) have not been satisfied. The City of Prattville also raises the issue whether the trial court erred in failing to require the joinder of the City of Millbrook and the City of Montgomery under Ala.R.Civ.P. 19(a).
We first consider the City's argument that Joyner I conflicts with the preexisting fundamental principles of Alabama municipal law. The City cites in support of its argument the case of City of Leeds v. Town of Moody, 294 Ala. 496, 501, 319 So. 2d 242, 246 (1975), where this Court stated, "Municipalities are mere instrumentalities of the state possessing only such powers as may have been delegated to them by the legislature." The City contends that in City of Leeds this Court, in referring to a municipality's power with respect to its police jurisdiction, held that such power is "legislative power[] delegated [to it] by the legislature," which the *125 municipality cannot "by any provision or terms in a contract delegate or barter away." Id. The City also cites as authority for its position Karagan v. City of Mobile, 420 So. 2d 57 (Ala.1982), in which this Court held that in the absence of fraud, a municipality's decision of a discretionary nature is presumed legal and correct; and that, unless it is constitutionally proscribed, or otherwise prohibited by law, such a decision, being a legislative act, is judicially reviewable only on grounds of arbitrariness and capriciousness, to be tested by the "fairly debatable" standard. The City further argues that in Williams v. City of Tuscumbia, 426 So. 2d 824 (Ala.1983), and Ziegler v. City of Millbrook, 514 So. 2d 1275 (Ala.1987), this Court held that "there is no legislative duty imposed upon a municipality to maintain a fire department." 426 So. 2d at 825. Last, the City says that forcing it to provide fire protection to the police jurisdiction will place a substantial financial burden on the City.[2]
The City also argues that the principles announced in Joyner I create ambiguities in the law and that it will be difficult to implement those principles. The City mentions such things as annexation of additional territory, or revising the City limits by deannexation, and says that this Court did not define "how and when this `duty' arises and whether the `duty' can be terminated."
On this appeal, we have been favored with amicus briefs from the attorney general and the Alabama League of Municipalities. The attorney general argues that "[a] governmental entity cannot be precluded from making prospective changes in its policy of providing governmental services based on a single claim of reliance on the preexisting policy for providing such services." The attorney general concludes his brief with these propositions:
The Alabama League of Municipalities argues that "[t]he Code of Alabama places no duty on a municipality to provide service to the police jurisdiction and the theories of reasonable reliance or equitable estoppel should [not] prohibit a municipality from withdrawing service from the police jurisdiction."
It is apparent that this Court decided Joyner I on the principles of equitable estoppel and that it did not foresee some of the questions that could arise from the application of that doctrine. Although the City and the attorney general appear to recognize that if expenditures for police jurisdiction services equal or exceed business license revenues received from the police jurisdiction then the City must furnish services, each argues that the determination of what services are provided is a matter within the legislative discretion of the governing body of the city and that that determination is entitled to judicial deference absent a clear abuse of that discretion.
Although the City and the attorney general recognize that the doctrine of equitable estoppel can be applied against a city, both say that it should not have been applied In Joyner I. After further review of that principle, we agree.
In State Highway Dep't v. Headrick Outdoor Advertising, Inc., 594 So. 2d 1202, 1204-05 *126 (Ala.1992), this Court discussed the doctrine:
In view of the additional arguments that have been presented on this appeal, and in view of the implications of the Joyner I decision that we did not envision on original deliverance, we believe we should revisit Joyner I.[3]
The general rule of law stating the right of a city to tax residents in the police jurisdiction and the duties that flow from that right are stated in Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S. Ct. 383, 58 L. Ed. 2d 292 (1978), where the Supreme Court of the United States held that a municipality can impose taxes and license fees on residents and businesses in the police jurisdiction, without giving those residents a right to vote, if the amount collected is reasonably related to the costs of the services furnished. This Court, in Joyner I, using the principle of Holt Civic Club, applied its own accounting formula and determined that the City's accounting procedures were "flawed" because they divided the total fire budget by the total number of fire calls made. The City, the attorney general, and the Alabama League of Municipalities all argue that the accounting method used by the City was a fair way of apportioning the cost of fire protection and that it would appear to treat all subscribers equally, whether they lived in the corporate limits or in the police jurisdiction. Especially troubling to the City and the amici was the holding by this Court in Joyner I that the residents of the police jurisdiction do not have to share in the "fixed" costs of the fire department, which the Court defined as "the expenses [that] would exist as a result of providing fire protection within the corporate limits regardless of whether [the city] provided the fire protection to the police jurisdiction." 661 So. 2d at 1163. We believe that holding improperly applies the principles of Holt Civic Club, and, insofar as it is inconsistent with the principles set out in State Department of Revenue v. Reynolds Metals Co., 541 So. 2d 524 (Ala.1989), it should not be followed. The principle set out in Reynolds Metals Co. is as follows:
541 So. 2d at 532. This formula is similar to the one used by the Supreme Court of the United States in Holt Civic Club v. City of Tuscaloosa in determining whether a tax or license fee could be constitutionally imposed on citizens without giving them the right to vote.
The City raises other issues, such as: (1) whether the trial court erred by issuing a permanent injunction without holding an evidentiary hearing, even though such a hearing was contemplated by the trial court's original order that was appealed to this Court in Joyner I (the City argues that there are genuine issues of fact as to whether there was sufficient reliance to justify the relief ordered by the trial judge); (2) whether the trial court erred in certifying a class action under Rule 23(a) (the City argues that the requirements of Rule 23(a) have not been met); and (3) whether the trial court erred by failing to require the joinder of the Cities of Montgomery and Millbrook, whose police jurisdictions overlap, in part, with Prattville's. In view of our holding, we think it not necessary to address these other issues.
The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HOOPER, C.J., and SHORES and COOK, JJ., concur.
HOUSTON, J., concurs specially.
SEE, J., concurs in the result.
BUTTS, J., dissents.
HOUSTON, Justice (concurring specially).
If a municipality collects taxes from the businesses within its police jurisdiction, that municipality must provide within the police jurisdiction services that cost the municipality the amount of the tax collected there. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S. Ct. 383, 58 L. Ed. 2d 292 (1978). I referred to this as a duty in the majority opinion in State Department of Revenue v. Reynolds Metals Co., 541 So. 2d 524 (Ala. 1988), where I was primarily expressing how a municipality's obligation to provide such services could be fulfilled. 541 So. 2d at 531. If a municipality is providing within the police jurisdiction services the cost of which exceeds the amount of taxes collected there, then I believe the municipality has the right to curtail those services that the governing body of the municipality in its reasonable discretion elects to curtail. Using our customary standard of review, I was not persuaded from the facts in the record in City of Prattville v. Joyner, 661 So. 2d 1158 (Ala. 1995) (Joyner I), that Prattville was providing services costing more than the taxes collected from the police jurisdiction. Certainly, a full hearing is necessary to determine the costs of the services it is providing. I am now persuaded by additional briefs and oral argument that Joyner I was wrongly decided.
[1] On August 18, 1995, the trial judge filed a disclosure stating that his mother was a member of the plaintiff class certified by him in the class action order, and he specified a 10-day period to allow the parties to file a written agreement for remittal of disqualification. An attorney for the plaintiffs filed a "notice of withdrawal" from the "Residential Class" notifying the court that the judge's mother had purportedly "opted out" of the class certified in the class action order. On August 31, 1995, the trial judge, noting that all parties had not filed a remittal of disqualification, transferred the case to another circuit judge.
[2] The City contends that Joyner I requires it to continue fire protection to residents of the police jurisdiction despite the fact that this continued protection would cause the City to run an annual deficit of over $70,000.
[3] In State Department of Revenue v. Reynolds Metals Co., 541 So. 2d 524, 526 (Ala.1988), we quoted Justice Shores's statement in Jackson v. City of Florence, 294 Ala. 592, 598, 320 So. 2d 68, 73 (1975):
"As strongly as we believe in the stability of the law, we also recognize that there is merit, if not honor, in admitting prior mistakes and correcting them."
In Joyner I, Justices Maddox and Cook, dissenting, raised the question of what happens when the revenue from license fees and taxes that a municipality is authorized by the legislature to collect is insufficient to compensate the municipality for the municipal regulation and service the municipality is furnishing in the police jurisdiction. The City and the attorney general both argue that a City has no duty to furnish services to the police jurisdiction if furnishing such services would cause a deficit. | June 13, 1997 |
8baa44a1-f0f3-4acd-b897-c9bfee246305 | Ex Parte Nelson | 595 So. 2d 510 | 1901453 | Alabama | Alabama Supreme Court | 595 So. 2d 510 (1991)
Ex parte Joseph Langston NELSON.
(Re Joseph Langston Nelson v. State).
1901453.
Supreme Court of Alabama.
December 13, 1991.
*511 Eddie Beason of Fine & McDowell, Russellville, for petitioner.
James H. Evans, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
In Alabama, when a witness takes the stand and swears to tell the truth and then testifies, there is no legal presumption that he or she testifies truthfully. Such an instruction to a jury would constitute error.
The petitioner, Joseph Langston Nelson, was indicted for the offense of attempted murder. Following a jury trial, Nelson was found guilty of the lesser included offense of first degree assault, and he was ultimately sentenced to 20 years' imprisonment. On appeal, the conviction was affirmed by the Court of Criminal Appeals. 595 So. 2d 506.
On Thursday, February 1, 1990, Anthony Winston, the victim, went into the Washington Court housing project in the Reedtown Community of Russellville, Alabama. Upon arrival he was approached by Nelson, who requested a sum of money. Winston refused to give Nelson any money, and left. Later that day Nelson met Winston again and made a similar demand. A dispute ensued, and Winston shoved Nelson from the back. Nelson turned and struck Winston with his fist. He then drew a knife and began swinging it. Nelson admits to swinging the knife and cutting Winston's hand but denies inflicting wounds to his chest. Winston fled the scene and was rushed to a hospital, where he underwent surgery for two puncture wounds to his hand and chest.
At trial, the court charged the jury in pertinent part as follows:
(R. 468).
The Criminal Court of Appeals relied on Williams v. State, 520 So. 2d 179 (Ala.Cr. App.1987), in reaching its decision. In that case, the trial court gave an almost identical jury charge. In deciding Williams, Judge Taylor stated:
520 So. 2d at 181.
In this case, however, the Court of Criminal Appeals held the charge to be harmless error. Although error, the giving of a charge like the one in this case can be found to be harmless error when viewed in light of the entire charge.
Harris v. State, 412 So. 2d 1278, 1281 (Ala. Cr.App.1982).
Rule 45, A.R.App.P., states in pertinent part:
Several decisions have held that, when a jury was charged that there is a presumption of truthfulness on the part of a sworn witness, the error was harmless. 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, 568 So.2d. 309 (Ala.Cr. App.1989). In those cases, however, the trial courts further instructed the jurors that it was their duty to use that presumption to reconcile the testimony. In the case before us, the trial court's instructions contained no such clarifying language.
In this case, as in Williams, the trial court asserts a legal presumption of the truthfulness of a witness's testimony. By erroneously charging the jury that a witness is presumed to tell the truth and then compounding this error by charging the jury that, because Nelson had previously been convicted of a crime involving moral turpitude, there was no longer a presumption that he would tell the truth, the trial court prejudiced Nelson. This constitutes a comment on the weight and credibility of the evidence, which is impermissible. "In charging the jury, it is the duty of the trial judge not to indicate, by the matter or manner of his charge, what his own views are as to the effect of the testimony." C. Gamble, McElroy's Alabama Evidence, § 469.01 (3d ed. 1977); see also Pease v. Montgomery, 333 So. 2d 221 (Ala.Cr.App. 1976); Summerlin v. State, 40 Ala.App. 652, 120 So. 2d 755 (1960); Bertrand v. State, 46 Ala.App. 631, 247 So. 2d 386 (1971); Mays v. State, 45 Ala.App. 337, 230 So. 2d 248 (1970).
Williams v. State, 520 So. 2d 179 (Ala.Cr. App.1987).
We have carefully reviewed the trial court's oral charge to the jury in its entirety. From this review, we conclude that the error was not cured by the entire charge but was compounded and was therefore prejudicial to Nelson. Therefore, we hold that that error "probably injuriously affected substantial rights of the accused." Rule 45, A.R.App.P.
We conclude that once the jury was told that one who takes the oath is presumed to tell the truth, but that this defendant was not presumed to tell the truth, because of a prior felony conviction, no amount of instruction to the contrary could have erased that thought from the minds of the jurors.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS and INGRAM, JJ., concur.
STEAGALL, J., concurs in the result.
HOUSTON, J., dissents.
HOUSTON, Justice (dissenting).
The oath and the perjury penalty are "prophylactic rules" of "auxiliary probative policy" that seek "to remove, before the evidence is introduced, such sources of danger and distrust as experience may have shown lurk in it." 4 J. Wigmore, Evidence § 1172 (Chadbourn Rev.1972).
Ex parte Frazier, 562 So. 2d 560, 566 (Ala. 1989).
I think that there is a legal presumption that a witness, who is sworn to tell the truth and who testifies, testifies truthfully. The oath and the penalty for perjury are two prophylactic rules that have been promulgated to assure, and are time-honored in assuring, that truth, "which is the sine qua non of a fair trial,"[1] "will out." I would overrule cases that hold that it is error to instruct a jury that there is a legal presumption that every witness who takes the witness stand and is sworn to tell the truth, the whole truth, and nothing but the truth, testifies truthfully.
[1] Estes v. Texas, 381 U.S. 532, 540, 85 S. Ct. 1628, 1631, 14 L. Ed. 2d 543 (1965). | December 13, 1991 |
51b67e3d-e17b-4845-998f-e4c7247fdb9c | Greene v. Hanover Ins. Co. | 700 So. 2d 1354 | 1951580 | Alabama | Alabama Supreme Court | 700 So. 2d 1354 (1997)
Johnnie C. GREENE, Jr.
v.
HANOVER INSURANCE COMPANY and Massachusetts Bay Insurance Company.
1951580.
Supreme Court of Alabama.
May 23, 1997.
Rehearing Denied August 15, 1997.
James H. Crosby, E. J. Saad, Donald G. Beebe, and Jack B. Hood of Crosby, Saad, Beebe & Crump, P.C., Mobile, for appellant.
Charles J. Potts and Michael D. Strasavich of Janecky, Newell, Potts, Wells & Wilson, P.C., Mobile, for appellees.
*1355 SEE, Justice.
Johnnie Greene sustained injuries in an automobile accident. His vehicle was involved in a collision with a vehicle driven by Scott James Vance. Greene filed this action against Scott's employer's insurance carrier, Hanover Insurance Company and Massachusetts Bay Insurance Company (collectively, "Hanover"). The trial court held that Hanover did not provide insurance coverage in this case and entered a summary judgment accordingly. Because we conclude that neither Hanover's primary policy nor its umbrella policy provides coverage in this case, we affirm.
Prior to 1993, Hanover had sold two insurance policies to Vance Electrical Contractors, Inc. ("VEC"). The first policy (the "Primary Policy") provided business automobile liability coverage to VEC. Scott Vance was an employee of VEC. He had a driving record that reflected a driver's license suspension for driving under the influence, several accidents, and at least two speeding tickets. Consequently, Hanover refused to provide automobile liability coverage to VEC with respect to Scott. The Primary Policy contained an exclusion endorsement (the "Primary Endorsement") that specifically excluded Scott from coverage under the Primary Policy.
The second policy Hanover sold to VEC (the "Umbrella Policy") provided commercial liability coverage to VEC. The Umbrella Policy contained an endorsement (the "Umbrella Endorsement") that excluded coverage for personal injury and property damage liability arising from the "use or entrustment" of VEC's vehicles.
On January 9, 1993, Greene's vehicle was involved in a collision with one of VEC's vehicles, which was being driven by Scott. Greene was severely injured and Scott was killed. Greene initially sued Scott's estate, VEC, and First of Georgia Insurance Company ("First Georgia"), which had issued a policy that covered Scott, as a result of the automobile accident. Because Hanover's policy specifically excluded Scott from coverage, Hanover did not defend Scott's estate against Greene's claims.
Greene reached pro tanto settlements with VEC and First Georgia. The case proceeded to a nonjury trial against Scott's estate. After a trial on the merits, Greene received a judgment in his favor in the amount of $3,350,000, less a $500,000 set-off ($400,000 paid on behalf of VEC by Progressive Insurance Company and $100,000 paid by First Georgia) for monies previously paid through the pro tanto settlements, leaving an unpaid judgment of $2,850,000.
Because the balance of the judgment had not been paid by Scott's estate, Greene commenced an action pursuant to Ala.Code 1975, § 27-23-2,[1] against Hanover and the administrator of Scott's estate. Greene argued that despite the wording of the Primary Endorsement and the Umbrella Endorsement, both the Primary Policy and the Umbrella Policy covered Scott. Specifically, Greene argued that the Primary Endorsement was inapplicable to Scott because that endorsement incorrectly listed Scott's name as "James Scott Vance" instead of "Scott James Vance." Without objection from Greene, the trial court allowed parol evidence to show that the transposition of Scott's first and middle names was a mistake, and that both parties to the insurance contract (i.e., VEC and Hanover) had intended for Scott to be excluded from coverage. Accordingly, the trial court entered a summary judgment for Hanover.[2]
*1356 On appeal, Greene argues that the summary judgment was improper because, he says: (1) the Primary Endorsement was ineffective to exclude Scott; and (2) the Umbrella Policy provides coverage for Scott. For the summary judgment to be proper, Hanover had to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Long v. Jefferson County, 623 So. 2d 1130, 1132 (Ala. 1993). If Hanover made that showing, then the burden shifted to Greene to present evidence creating a genuine issue of material fact, so as to avoid the entry of summary judgment against him. Long, 623 So. 2d at 1132. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to Greene. Id.
Greene argues that the Primary Endorsement is ineffective to cover Scott, for two main reasons. First, Greene argues that parol evidence is not admissible to clarify to whom the Primary Endorsement refers because that endorsement, which names "James Scott Vance" instead of "Scott James Vance," is unambiguous on its face. This argument ignores the well-settled law that parol evidence is admissible to clarify a latent ambiguity. In Medical Clinic Board v. Smelley, 408 So. 2d 1203, 1206 (Ala.1981), we stated:
(Quoting Ford v. Ward, 272 Ala. 235, 130 So. 2d 380 (1961).) In Lamar v. Minter, 13 Ala. 31, 35 (1848), this Court stated that parol evidence was admissible to clarify the latent ambiguity arising from the incorrect listing of Sheppard Spencer Johnson's name in a deed. Specifically, the Court stated that it would not bar parol evidence to show that "Spencer S. Johnson" in the deed was a transposition of the person's first and middle names and was intended to refer to "Sheppard S. Johnson." Id. Likewise, in this case, we will not bar parol evidence to show that the naming of "James Scott Vance" in the Primary Policy is a transposition of the person's first and middle names and was intended to refer to "Scott James Vance."
In support of its motion for summary judgment, Hanover submitted the affidavit of Scott's father, the president of VEC, stating that he and Scott both had understood that Scott was not covered by Hanover. Further, Hanover introduced a deposition of its agent in which the agent said that both Hanover and VEC intended the Primary Endorsement to exclude Scott from coverage. The agent also stated that he had helped VEC obtain coverage from another insurance company, Progressive Insurance Company, solely because Hanover would not cover Scott. Greene failed to produce any evidence to contradict the evidence that the true intent of Hanover and VEC was to exclude Scott from coverage under the Primary Endorsement.[3] Thus, the parol evidence was *1357 admissible at the summary judgment stage to reform the insurance contract with respect to the transposition of first and middle names, in order to show the true intent of the parties. See National Life & Accident Ins. Co. v. Saffold, 225 Ala. 664, 665-66, 144 So. 816 (1932) (allowing parol evidence clarifying a woman's name to reform an insurance contract).
Greene argues that even if the parol evidence was admissible, the trial court could not use it to reform the name "James Scott Vance" to "Scott James Vance" because such a reformation would operate to prejudice Greene's right as a third-party beneficiary of the Primary Policy. Greene cites Ala. Code 1975, § 8-1-2, which states:
(Emphasis added.) Section 8-1-2 codified the equitable remedy of reformation of contracts. American Liberty Ins. Co. v. Leonard, 270 Ala. 17, 21, 115 So. 2d 470, 473 (1959). This remedy will not operate to prejudice third parties, such as bona fide purchasers, who acquire rights for value that would be affected by the reformation. Irvin v. Griffin Corp., 808 F.2d 802, 806 (11th Cir.1987) (interpreting Ala.Code 1975, § 8-1-2). The no-prejudice bar will not, however, prevent reformation that will affect the rights of third parties, such as judgment creditors, where those rights were acquired without paying value. See Beasley v. Mellon Fin. Servs. Corp., 569 So. 2d 389, 394 (Ala. 1990) ("Reformation will be allowed ... against ... judgment creditors"); 66 Am. Jur.2d Reformation of Instruments § 69 (1973) ("reformation of an instrument may be had in equity as against judgment creditors, since they are not regarded as bona fide purchasers for value"); see also 2 Couch on Insurance 3d § 27:82 (1975) ("insurance policies may be reformed or modified to limit or exclude coverage if such was the intention of the parties, even where the rights of third-party claimants who are not parties to [the] insurance contract are adversely affected"). The trial court properly reformed the Primary Endorsement to reflect the undisputed intention of VEC and Hanover to exclude Scott from coverage. Greene cannot recover under the Primary Policy.
Next, Greene argues that even if the Primary Policy does not cover Scott, Hanover's Umbrella Policy does. Specifically, Greene contends that the general language of the "Excess Insurance" section of the Umbrella Policy provides excess coverage (i.e., coverage in excess of the underlying policy limits) with respect to VEC's employees, including Scott, if the underlying insurance (i.e., Hanover's Primary Policy) is inapplicable.[4] Thus, Greene argues that if we hold *1358 that the Primary Policy does not cover Scott, then we must hold that the Umbrella Policy does cover Scott as "excess insurance." This argument misses the point. Regardless of whether the Umbrella Policy coverage takes the form of excess or nonexcess coverage, it is still subject to the Umbrella Endorsement's exclusion for injuries arising from the use of automobiles. The Umbrella Endorsement unambiguously provides that the Umbrella Policy does not cover "`bodily injury,' `property damage' or `personal injury' arising out of the ownership maintenance, use or entrustment" of VEC's vehicles.[5] Greene's injury and damage claims fall squarely within this exclusion because they arose from Scott's use of VEC's vehicle. We therefore hold that Greene cannot recover under the Umbrella Policy. See Cook v. Aetna Ins. Co., 661 So. 2d 1169, 1170 (Ala.1995) (holding that an unambiguous exclusion in an insurance policy will be enforced according to its terms).
The judgment of the trial court is affirmed.
AFFIRMED.
HOOPER, C.J., and MADDOX, ALMON, SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
[1] Ala.Code 1975, § 27-23-2, reads as follows:
"Upon the recovery of a final judgment against any person, firm or corporation by any person, ... for loss or damage on account of bodily injury, ... or for loss or damage to property, if the defendant in such action was insured against the loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurer and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within 30 days after the date when it is entered, the judgment creditor may proceed against the defendant and the insurer to reach and apply the insurance money to the satisfaction of the judgment."
(Emphasis added.)
[2] The trial court specifically held:
"[B]y agreement between the insured, Vance Electrical, and Hanover Ins., the driver of the vehicle in question whether he be called James Scott Vance or Scott James Vance (the son of James K. Vance, President of Vance Electrical), was effectively removed from coverage before the incident in question."
[3] Greene also argues that the Primary Endorsement is ineffective because VEC and Hanover did not execute the endorsement itself. This argument ignores the well-settled rule that a rider or endorsement that is attached to a policy from its inception and that is specifically referenced therein is deemed to be a valid and binding part of the insurance contract.
"As a general rule, where a rider or slip is physically attached to a policy of insurance contemporaneously with execution, and delivered to the insured as attached, and sufficient reference is made in either the policy or the attached matter to identify the papers as related, the fact that the matter so attached is without the signature of the insurer or its authorized agents will not preclude its inclusion and construction as a part of the insurance contract. Thus, unsigned riders attached to the policy at the time of the delivery to the insured become part of the policy...."
43 Am.Jr.2d Insurance § 296 (1982). See, e.g., Topeka Tent & Awning Co. v. Glen Falls Ins. Co., 13 Kan.App.2d 553, 556, 774 P.2d 984, 986 (1989) (holding that unsigned endorsement specifically referred to by number in main policy was valid and binding part of insurance contract); Anderson v. Aetna Casualty & Sur. Co., 432 S.W.2d 151, 153 (Tex.Civ.App.1968) (stating that unsigned endorsement is valid if attached to insurance policy and referenced therein); Automobile Underwriters v. Camp, 217 Ind. 328, 336-37, 27 N.E.2d 370, 373 (1940) (holding that signing of insurance policy effects a signing of all riders properly attached to policy at time of signing). In this case, the Primary Policy, on page 1, specifically references the Primary Endorsement, by number, as being included in the policy since its inception, and then states, "These declarations together with the business auto policy provisions and endorsements, if any, issued to form a part thereof, complete the above numbered policy." Thus, the Primary Endorsement is a valid and binding part of the Primary Policy.
[4] The Excess Insurance Section of the Umbrella Policy provides:
"1. OTHER INSURANCE
"This insurance is excess over `underlying insurance' whether or not valid and collectible, or any other valid and collectible insurance which is specifically purchased by the insured as excess insurance over the insurance provided by this policy.
"If there is no `underlying insurance' or valid and collectible insurance available to the insured with respect to an `occurrence' to which this insurance applies, then this policy shall apply as excess over the Retained Limit stated in the DECLARATIONS except:
"....
"c. When you fail to maintain `underlying insurance' in accordance with 9. MAINTENANCE OF UNDERLYING INSURANCE in SECTION VICONDITIONS.
"2. FAILURE TO MAINTAIN `UNDERLYING INSURANCE' (footnote cont'd) "In the event you fail to maintain `underlying insurance' as required in 9. MAINTENANCE OF UNDERLYING INSURANCE in SECTION VICONDITIONS, this insurance shall not replace such `underlying insurance' but shall apply as if the `underlying insurance' were valid and collectible."
(Emphasis added.) Although the Progressive policy appears to provide "valid and collectible" insurance to Scott, thus making the Umbrella Policy coverage "excess" coverage, the Umbrella Endorsement still applies. Therefore, even if the Umbrella Policy coverage is "excess" coverage, it does not apply to Scott's use of a VEC vehicle. See infra note 5.
[5] The Umbrella Endorsement provides:
"COMMERCIAL UMBRELLA LIABILITY "THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
"FOLLOW FORMAUTO LIABILITY
"This endorsement modifies insurance provided under the COMMERCIAL UMBRELLA LIABILITY COVERAGE FORM.
"This insurance does not apply to `bodily injury,' `property damage' or `personal injury' arising out of the ownership, maintenance, use or entrustment to others of any `auto.'
"This exclusion does not apply to the extent that valid and collectible insurance is provided by `underlying insurance,' except with respect to limits of insurance or limits of liability."
Greene argues that the following language negates the operation of the Umbrella Endorsement: "This exclusion does not apply to the extent that valid and collectible insurance is provided by `underlying insurance'...." (Emphasis added.) However, because the "underlying insurance," Hanover's Primary Policy, specifically excluded Scott, the Umbrella Endorsement is effective. | May 23, 1997 |
e57d9e78-9a62-4c7e-a77d-54939b0aac17 | Ex Parte Harsco Corp. | 689 So. 2d 845 | 1950791, 1950792 | Alabama | Alabama Supreme Court | 689 So. 2d 845 (1997)
Ex parte HARSCO CORPORATION.
(Re ADI FABRICATORS, INC. v. HARSCO CORPORATION and Chatham Steel Corporation).
Ex parte CHATHAM STEEL CORPORATION.
(Re ADI FABRICATORS, INC. v. HARSCO CORPORATION and Chatham Steel Corporation).
1950791, 1950792.
Supreme Court of Alabama.
January 10, 1997.
*846 Meade Whitaker, Jr., and J. Clinton Pittman of Sadler, Sullivan, Sharp, Fishburne & Van Tassel, P.C., Birmingham, for Harsco Corp.
Jonathan E. Lyerly, Birmingham, for Chatham Steel Corp.
Jack R. Thompson, Jr., and Ronald C. Wall, Jr., of Kracke, Thompson & Ellis, Birmingham, for respondent.
PER CURIAM.
We granted Harsco Corporation and Chatham Steel Corporation's petitions for writs of certiorari to the Court of Civil Appeals, in order to determine whether that court erred in reversing the circuit court's nonjury ruling in favor of those parties in their actions against ADI Fabricators, Inc. ("ADI").
Both Harsco and Chatham ("the plaintiffs") are manufacturers and suppliers of steel. They both sold steel materials to American Industrial Fabricators ("A.I.F.") on credit. A.I.F. purchased the steel to fabricate items according to the plans and specifications for a large industrial building being constructed by the Stone & Webster Engineering Corporation. Stone & Webster was the prime contractor on a construction project undertaken by the Industrial Development Board of Scottsboro, Alabama ("the Development Board"), on behalf of Akzo Industrial Fibers, Inc. Wachovia Bank of North Carolina provided financing and held a security interest on the project.
On December 30, 1992, some time after A.I.F. had received the steel from the plaintiffs, *847 ADI purchased A.I.F. for $677,685. The sale to ADI involved all of A.I.F.'s assets, including all of its real estate, furniture, equipment, machinery, inventory, and contract rights. The closing memorandum for the sale assigned $44,000 of the purchase price to "contract rights and miscellaneous furniture, equipment, inventory and personal property." However, the trial court found that the value of the inventory transferred was approximately $39,000. A.I.F. was dissolved as a corporation after its sale to ADI, and ADI took over the contract with Stone & Webster.
Harsco and Chatham were not paid for the steel they had delivered to A.I.F. before A.I.F.'s sale to ADI, nor were they notified of the sale prior to its consummation. Moreover, ADI was not notified by A.I.F. of A.I.F.'s debt owed to Harsco and Chatham. Once Harsco determined it would not be paid by A.I.F., it filed a complaint against A.I.F., ADI, the Development Board, Akzo, and Wachovia. The complaint alleged that A.I.F. had breached its contract with Harsco, that A.I.F. had violated Alabama's Bulk Transfers Act, Ala.Code 1975, § 7-6-101 et seq.,[1] and that ADI was liable for A.I.F.'s debt. Harsco also filed a lien on the Akzo construction site at the Development Board property.
In response, the Development Board and Akzo filed an interpleader action and paid $75,000 into the trial court. That sum represented the amount the Development Board owed to ADI for materials ADI had provided to the construction project. Thereafter, Chatham sued A.I.F. and Akzo and asserted a lien on the construction site. ADI then sued the Development Board, Akzo, and Wachovia, seeking to recover the $75,000 held in the interpleader action. The trial court consolidated the three cases on June 30, 1993.
The trial court entered summary judgments in favor of the Development Board, Akzo, and Wachovia, then held a bench trial regarding Harsco, Chatham, and ADI's claims for the interpleaded funds, on November 30, 1994. On January 25, 1995, the trial court ruled:
The trial court later ruled that Harsco should receive 34% of the interpleaded fund and that Chatham should receive 66% of the fund. Because the trial court had found ADI liable under the Bulk Transfers Act, the court did not make a judgment as to Harsco's allegation regarding ADI's possible liability based on assumption of A.I.F.'s contract with Stone & Webster.
ADI appealed the trial court's judgment, and the Court of Civil Appeals reversed, holding that A.I.F. was not a business enterprise subject to the Bulk Transfers Act. ADI Fabricators, Inc. v. Harsco Corp., 689 So. 2d 841 (Ala.Civ.App.1995). The Court of Civil Appeals court concluded:
689 So. 2d at 844.
We must determine whether the Court of Civil Appeals erred in reversing the trial court's holding that the sale of A.I.F. to ADI came within the scope of the Bulk Transfers Act. The trial court's holding that the sale was within the scope of the Act was based on a nonjury trial. Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's findings of fact based on that evidence; those findings will not be disturbed except for a plain and palpable abuse of discretion. Faulkner v. Walters, 661 So. 2d 227 (Ala.1995); Marvin's, Inc. v. Robertson, 608 So. 2d 391 (Ala.1992). Further, a trial court's judgment based on findings that are based on ore tenus evidence will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Hope Developers, Inc. v. Vandiver, 665 So. 2d 910 (Ala.1995); Jasper City Council v. Woods, 647 So. 2d 723 (Ala.1994). However, when the trial court improperly applies the law to the facts, no presumption of correctness will exist as to the court's judgment. Beavers v. County of Walker, 645 So. 2d 1365 (Ala.1994); Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So. 2d 415 (Ala.1994).
The sections of the Bulk Transfers Act[2] most relevant to this case are Ala.Code 1975, §§ 7-6-102, -104, and 105. Section 7-6-102 states, in part:
Section 7-6-104 states, in part:
(Emphasis added.)
Section 7-6-104 works in combination with § 7-6-105, which states:
Accordingly, if a business enterprise subject to the Act fails to fulfill its notice requirements, the bulk transfer of inventory is "ineffective" against any creditor of the transferor. Get it Kwik of America, Inc. v. First Alabama Bank, 361 So. 2d 568 (Ala.Civ. App.1978).
It is uncontested that the notice requirements of the Bulk Transfers Act were not met in this case. However, we must first determine whether A.I.F. was a business enterprise subject to the Bulk Transfers Act, under § 7-6-102(3). In other words, was A.I.F. an enterprise whose "principal business is the sale of merchandise from stock"?
This Court has never before addressed the specific issue of whether a particular business falls within the scope of § 7-6-102(3). Some guidance to the meaning of § 7-6-102(3) can be gained from Comment 2 to § 7-6-102, which states that subsection (3) does not include "farming nor contracting nor professional services, nor such things as cleaning shops, barber shops, pool halls, hotels, restaurants, and the like whose principal business is the sale not of merchandise but of services."
Section 7-6-102(3) is an adoption of Uniform Commercial Code § 6-102(3). U.C.C. commentators have noted that the question whether a business comes within the scope of the bulk transfers article depends on what can be termed the "primary element" test. In other words, does the business primarily render services, even if its doing so requires some inventory or supply of goods, or is it primarily in the business of selling goods from stock? See Ronald A. Anderson, Anderson on the Uniform Commercial Code, Vol. 7A, § 6-102:42:45 (1995 revision); James J. White and Robert S. Summers, Uniform Commercial Code, § 27-2a. (4th ed.1995).
Utilizing this type of test, other jurisdictions have found the following types of businesses to be providers of services rather than sellers of goods and thus not subject to the bulk transfers article: an airline (Mix v. Gem Investors, Inc., 103 Idaho 355, 647 P.2d 811 (Idaho App.1982)); a janitorial business (Sumner v. Janicare, Inc., 294 S.C. 483, 366 S.E.2d 20 (S.C.Ct.App.1988)); a custom printing business (H.P.S. Inc. of Florida v. Willis, 483 So. 2d 767 (Fla.Ct.App.1986)); a radiator repair business (Allsbrook v. Azalea Radiator Service, Inc., 227 Va. 600, 316 S.E.2d 743 (1984)); a vehicle towing business (All Nite Garage, Inc. v. A.A.A. Towing, Inc., 85 Nev. 193, 452 P.2d 902 (1969)); and a small loan company (Credithrift Financial Corp. v. Guggenheim, 232 So. 2d 400 (Fla. App.1970)). However, in many instances courts have found it quite difficult to determine by judicial notice the exact nature of a business and have found it to be a question of fact as to whether a business was primarily selling goods or was primarily providing services. See Yarbrough v. Rogers, 300 So. 2d 286 (Fla.App.1974) (beauty salon); Marlick Constr. Co. v. T. Lynn Davis Realty & Auction Co., 140 Ga.App. 867, 232 S.E.2d 147 (1977) (business assembling and selling premanufactured housing unit packages); Chromacolour Labs, Inc. v. Snider Bros. Property Mgmt., Inc., 66 Md.App. 320, 503 A.2d 1365 (1986) (film processing business). This case is similar.
ADI argues that A.I.F. was not a provider of goods because, it says, A.I.F. did not maintain a set inventory of goods that it sold, but only purchased materials and supplies, such as the steel it purchased from Harsco and Chatham, on an as-needed basis to fabricate steel for each of its customers. However, § 7-6-102(3) does not require that a business maintain a large inventory of goods or sell goods from an inventory in order to be subject to the Bulk Transfers Act. Section 7-6-102(3) requires only that the business sell goods from stock, which includes self-manufactured goods. ADI contends that A.I.F. was primarily a provider of services. However, the record and briefs are fairly vague as to the exact nature of A.I.F.'s business.
Paul Adamson, Jr., a former shareholder and corporate representative of A.I.F., testified that A.I.F. was "an industrial steel fabricator." *850 However, the record indicates that Adamson had some difficulty testifying as to the nature of A.I.F.'s business operations.[3] ADI's brief describes A.I.F. as "as a contract shop which fabricated large components for industrial machinery." These general statements provide little indication of whether A.I.F. was primarily a provider of services, or was primarily a provider of goods from stock it had manufactured.
However, the trial court determined, based on an ore tenus hearing, that A.I.F. was subject to the Bulk Transfers Act. Implicit in that court's holding is a finding of fact that A.I.F. was primarily a provider of goods rather than services. That finding, based on ore tenus evidence, cannot be disturbed on appeal unless it is shown to be a plain and palpable abuse of discretion. Faulkner, supra. ADI offered no evidence of the exact nature of A.I.F.'s business; therefore, we cannot conclude that the trial court abused its discretion. Accordingly, the Court of Civil Appeals erred by reversing the judgment of the trial court and ruling that A.I.F. was a provider of services. We conclude that the trial court properly ruled that A.I.F. was a provider of goods subject to the requirements of the Bulk Transfers Act.
The next issue we must consider is whether A.I.F.'s transfer of its inventory to ADI was a "bulk transfer." The trial court held that A.I.F. was subject to, and had violated, the notice requirements of the Bulk Transfers Act. Implicit in that holding is a finding that the transfer of inventory was a bulk transfer. That finding is due a presumption of correctness. Faulkner, supra.
As noted previously, § 7-6-102(1) defines a "bulk transfer" as "any transfer in bulk and not in the ordinary course of the transferor's business of a major part of the materials, supplies, merchandise or other inventory (Section 7-9-109) of an enterprise subject to this article." First, it is uncontested that A.I.F. transferred all of its inventory to ADI; clearly, that was a transfer of a "major part" of A.I.F's inventory. Although Paul Adamson of A.I.F. testified that the inventory A.I.F. transferred to ADI consisted simply of steel, paint, welding rods, and nuts and bolts rather than finished goods, § 7-6-102(1) includes materials and supplies as inventory. Moreover, under § 7-6-102(2), the transfer of a substantial part of a business's equipment is also a bulk transfer if it is made in connection with a transfer of inventory. Such a transfer of equipment was made in this case. Thus, we conclude that the trial court correctly found that the transfer of inventory from A.I.F. to ADI was a bulk transfer.
As noted previously, it is uncontested that the notice requirements of the Bulk Transfers *851 Act were not fulfilled; thus, the Act was violated. We must now determine what remedy is available to Harsco and Chatham. The Development Board and Akzo's interpleader action was consolidated with Harsco and Chatham's actions seeking damages from ADI. The trial court held that Harsco and Chatham should have their claims paid from the interpleaded fund. In reversing, the Court of Civil Appeals stated:
689 So. 2d at 844.
In reaching that conclusion, the Court of Civil Appeals relied upon its earlier opinion in Get It Kwik of America, Inc. v. First Alabama Bank of Huntsville, N.A., 361 So. 2d 568 (Ala.Civ.App.1978), and the opinion of the Fifth Circuit Court of Appeals in Bill Voorhees Co. v. R & S Camper Sales of Birmingham, Inc., 605 F.2d 888 (5th Cir. 1979). In Get It Kwik, the Court of Civil Appeals noted that U.C.C. § 6-106, which can make a transferee of inventory personally liable for certain debts of the transferor, was not incorporated into Alabama's Bulk Transfers Act. In Bill Voorhees Co., the federal appeals court, making an Erie[4] guess, ruled that this Court would hold that the transferee of inventory was not personally liable to a creditor of the transferor because the legislature had not adopted U.C.C. § 6-106. The federal court noted that "[a]ctions against the transferee personally are conspicuous by their absence." 605 F.2d at 890-91.
The Bulk Transfers Act does not specifically spell out the remedies available to creditors if the Act's notice provisions are not followed; nor does it say that any specific remedy is exclusive. It states only that the transfer of the inventory is "ineffective" against any creditor of the transferor. Sections 7-6-104 and -105. Apparently, the creditors are left to whatever form of relief is available by the common law against the inventory that was transferred in violation of the Act. However, an in rem action against the inventory is a viable remedy only if the items composing the transferred inventory are still in the ownership of the transferee and are clearly identifiable among the transferee's possessions. An action in rem against the inventory would provide no relief to a transferor's creditors for violation of the Bulk Transfers Act if the inventory has been disposed of by the transferee to another party or has been so commingled with other property of the transferee that it can no longer be identified.
Although the Court of Civil Appeals held in Get It Kwik, supra, that a transferee of inventory had no personal liability to a creditor of the transferor, we believe the better-reasoned rule is that a transferee is not personally liable to the transferor's creditors unless the transferred inventory has been disposed of or so commingled that it has been placed beyond the reach of the creditors in an in rem action. This rule has been adopted by the courts of New York and Texas, states where, like Alabama, U.C.C. § 106 was not adopted. Cleaners Products Supply, Inc. v. Garcia, 165 Misc.2d 365, 629 N.Y.S.2d 647 (1995); In Matter of Curtina International, Inc., 23 B.R. 969 (Bankr. S.D.N.Y.1982); Anderson & Clayton Co. v. Earnest, 610 S.W.2d 846 (Tx.Civ.App.1980). To hold otherwise might encourage transferees, once they learn the transferor has unpaid creditors, to take such actions necessary as would prevent the creditors from reaching the inventory in an in rem action. This Court cannot condone such action. Accordingly, we overrule Get it Kwik, to the extent that that opinion holds that a where a violation of the notice provisions of the Bulk *852 Transfers Act has occurred, the transferee cannot be personally liable to the transferor's creditors under any circumstances.
The possibility of this Court's recognizing personal liability of a bulk transferee to the transferor's creditors is not unprecedented. In McKesson Robbins v. Bruno's Inc., 368 So. 2d 1 (Ala.1979), this Court reversed a trial court's dismissal of an action by a bulk transferor's creditor alleging personal liability against a transferee, for failure to state a claim on which relief could be granted. Although the reversal of the dismissal was based on a question of law relative to pleading and not liability, so that the reversal by this Court was not an express recognition of transferee personal liability, this Court had an opportunity at that time to expressly renounce such a claim and failed to do so.
Of course, because the creditor's basis for recovery from the transferee is the transferred inventory, the transferee's personal liability is limited to the value of the inventory that was transferred. Curtina Int'l, supra; Anderson & Clayton Co., supra. Thus, ADI's personal liability is limited to the value of the inventory transferred to it by A.I.F. The record discloses that that inventory had a value of $39,000. Accordingly, the trial court erred in ruling that Harsco and Chatham were to have their claims paid from the entire amount of the $75,000 that the Development Board and Akzo had interpleaded. Instead, Harsco and Chatham's total recovery is limited to $39,000, the value of the transferred inventory, and they should receive payment in the proportion determined by the trial court. The remainder of the fund must be released to ADI.
The judgment of the Court of Civil Appeals reversing the trial court's judgment must be reversed and this cause remanded with instructions for the Court of Civil Appeals to remand it to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
ALMON, SHORES, HOUSTON, and KENNEDY, JJ., concur.
HOOPER, C.J., and COOK, J., concur in the result.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
I respectfully dissent. I agree with the Court of Civil Appeals' opinion, because I do not believe the Bulk Transfers Article applies to transfers of the type involved in this case.
[1] In 1965, the Alabama legislature adopted most, but not all, of Article 6 of the Uniform Commercial Code. The Bulk Transfers Article of Title 7 of the Code of Alabama 1975, was enacted by the legislature in response to the problem of merchants selling their inventory, pocketing the proceeds, and leaving their creditors unpaid. Official Comments to Ala.Code 1975, § 7-6-101.
[2] By Act No. 96-523, 1996 Ala. Acts, the Alabama legislature repealed the Bulk Transfers Article, Ala.Code 1975, § 7-6-101 et seq., effective May 17, 1996.
[3] Mr. Adamson testified as follows:
"Q. All I'm trying to ask you is this: You get an order for a job. At that point you go out and order the materials?
"A. I don't go out and do anything.
"Q. Well, your company did, went out and ordered the materials at that point to do the job. Is that the way your company worked?
"A. No.
"Q. It didn't work that way?
"A. No.
"Q. Tell me how it worked.
"A. We had to not just get an order, but we had to have drawings and particularly with Stone & Webster they had to be approved. They absolutely had to.
"Q. At that point did your company then go out and order the materials necessary to complete the order?
"A. Yes. I assume so. I don't know.
"Q. Is it your testimony that you don't know how your business operated?
"A. Yeah, I know how it operated. You do.
"Q. Is that basically what I described to you correct that you got youryou got an order. You got drawings. You got whatever
"A. It's
"[Adamson's counsel]: Let him finish his question and answer his question.
"Q. You get your order. You get your specifications. You get your drawings. Once all that is approved, then you go out and get the material to complete that order?
"A. I don't know.
"Q. You don't know?
"A. Yeah, I know.
"Q. Do you know or don't you know?
"A. I know.
"Q. Well, then tell me how you operated.
"A. It was a long, involved process from negotiation of the contract to ultimate delivery of the steel, and some of the things you mentioned were in that process."
[4] Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). | January 10, 1997 |
a8fcfcbd-f565-4bdc-8da9-d71c3e2721b6 | Ex Parte Carpenter | 592 So. 2d 627 | 1900342 | Alabama | Alabama Supreme Court | 592 So. 2d 627 (1991)
Ex parte Charles CARPENTER.
(Re State of Alabama v. Charles Carpenter).
1900342.
Supreme Court of Alabama.
December 13, 1991.
*628 W. Donald Bolton, Jr., Foley, and Thack H. Dyson of Brackin & Dyson, P.C., Foley, for petitioner.
James H. Evans, Atty. Gen., and Joseph G.L. Marston II, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.[1]
This Court's original opinion was released August 30, 1991. On October 2, 1991, the Court granted the State's application for rehearing, and the case was orally argued on November 12, 1991. The original opinion is withdrawn and the following is substituted therefor.
At the outset, we note that the facts of this case present a very close case. We granted rehearing so as to again review the facts and the applicable law.
Charles Carpenter was indicted by the Baldwin County grand jury for the offense of possession of a controlled substance, in violation of § 13A-12-212, Ala.Code 1975. Carpenter filed a motion to suppress the evidence, arguing that it had been illegally seized. After a hearing on the motion to suppress, the trial court granted the motion.
The Court of Criminal Appeals reversed the trial court's order suppressing the evidence. This Court granted certiorari review in order to determine whether the record supported the Court of Criminal Appeals' reversal of the trial court's order.
At the hearing on the motion to suppress, Steve Griffis, a police officer with the City of Fairhope, Alabama, testified that he received a telephone call from a reliable informant who told him that Carpenter would be driving up South Mobile Avenue in Fairhope in his own automobile and that he would be in possession of a firearm and drugs. Officer Griffis testified that before the arrest, he knew Carpenter and that he knew what type of car Carpenter drove. He further stated that the identity of the informant was known to him and that the informant was reliable.
Officer Griffis proceeded to South Mobile Avenue, where he saw Carpenter exiting a residential driveway in his own automobile. Griffis followed Carpenter for a brief period and then stopped him. Griffis approached the car and asked Carpenter for his driver's license. Griffis then directed Carpenter and a passenger to get out of the car and to stand behind it. Griffis saw a pistol protruding from a zippered carrying case on the floorboard of the driver's side. After discovering the pistol, Griffis searched the car. He found what he believed were controlled substances inside the covering of the gearshift box. Griffis then arrested Carpenter for the offense of carrying a weapon without a permit and transported him to the Fairhope police station. It was later confirmed that the drugs found by the police were one Valium pill and one methamphetamine.
At the hearing on the motion to suppress the evidence, Officer Griffis testified on cross-examination as follows:
Carpenter argues that the police had no reasonable and articulable basis to warrant stopping his car. Carpenter further argues that Officer Griffis was not justified in making a "protective" search of the car for weapons and, furthermore, that he had no probable cause to search the car.
The first question that this Court must answer is whether there was a "reasonable suspicion," based on the informant's tip, to justify stopping Carpenter's car.
The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), held that "a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." 392 U.S. at 22, 88 S. Ct. at 1880. The standard for allowing a Terry stop is whether there is a reasonable suspicion that "the person being stopped has engaged in some type of criminal activity." Webb v. State, 500 So. 2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So. 2d 1282 (Ala.1986).
In Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), the Supreme Court addressed the question of whether an informant's tip created a reasonable suspicion to justify a Terry stop. In that case, an informant known to the police officer told him that an individual in a nearby automobile was carrying drugs and had a gun at his waist. The officer approached the car and asked the defendant to open his door. The defendant rolled down the window, and the officer reached inside and found a gun at the defendant's waist. The defendant was arrested and searched pursuant to the arrest. Drugs were found on the defendant and in the car. The Supreme Court noted that the *630 informant's unverified tip may have been insufficient for a narcotics arrest or for a search warrant under Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), but held further that the tip from an informant known to the police officer "carried enough indicia of reliability to justify the officer's forcible stop of [the defendant]." Adams v. Williams, 407 U.S. at 147, 92 S. Ct. at 1924.
In Illinois v. Gates, 462 U.S., 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the Supreme Court abandoned the rigid two-pronged test of Aguilar and Spinelli, in favor of a "totality of the circumstances" approach in determining whether an informant's tip creates probable cause. Under Aguilar and Spinelli, the prosecution had to prove the informant's "veracity" or "reliability" and the informant's "basis of knowledge." Under the totality-of-the-circumstances approach, the informant's "veracity" and "reliability" and his "basis of knowledge" are all relevant factors in determining whether probable cause exists. However, "a deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other [factors], or by some other indicia of reliability." Illinois v. Gates, 462 U.S. at 233, 103 S. Ct. at 2329.
United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).
Most recently, the Supreme Court has held that an anonymous telephone tip, corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop. Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). In Alabama v. White, an unknown informant told police that the defendant would be leaving a specific apartment building at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to a certain motel, and that she would be in possession of cocaine inside a brown attaché case. The police went to the apartment building, identified the station wagon, and saw the defendant get into the station wagon. They followed the station wagon along the route to the motel and stopped the vehicle. The police found cocaine and marijuana in the defendant's possession.
The Supreme Court held that the "veracity," "reliability," and "basis of knowledge" factors for determining whether an informant's tip creates probable cause are also "relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard." Alabama v. White, 496 U.S. at ___, 110 S. Ct. at 2415.
In the instant case, the informant was known to Officer Griffis, who stated that the informant's tips had led to at least 20 arrests and convictions. The officer testified that a tip from this informant was "like money in the bank." The informant had told him that Carpenter would be travelling down South Mobile Avenue, in his own car, and that he would be armed and would have drugs in the car. The officer already knew Carpenter and knew the type of car he drove. The officer saw Carpenter's car leave a residential driveway and enter South Mobile Avenue. The officer followed Carpenter for a brief period and then stopped him.
In Alabama v. White, supra, the Supreme Court held that certain information *631 received through a tip, which information was verified to nearly the same degree as the information in this case, created a reasonable suspicion to warrant a Terry stop, even though that tip came from an anonymous telephone source. A known informant's tip "is a stronger case than obtains in the case of an anonymous telephone tip." Adams v. Williams, 407 U.S. at 146, 92 S. Ct. at 1923. We hold that the facts of this case, given the informant's reliability, created a reasonable suspicion to warrant stopping Carpenter's car based on the known informant's tip.
The second question this Court must answer is whether Officer Griffis was justified in making a protective search of the car for weapons. The informant told Officer Griffis that Carpenter would be armed. After stopping Carpenter, Officer Griffis asked Carpenter to get out of the automobile and to stand behind it. Griffis then saw the butt of a pistol protruding from a zippered carrying case on the floorboard of the driver's seat.
Once a police officer with reasonable suspicion has stopped a suspect in an automobile, the officer has the authority to ask the suspect to get out of the automobile. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977); State v. Calhoun, 502 So. 2d 808 (Ala.1987). This intrusion is de minimis when balanced with concerns for the officer's safety. Pennsylvania v. Mimms, 434 U.S. at 112, 98 S. Ct. at 334.
The need to protect police and others justifies protective searches when police have a reasonable belief that the suspect poses a danger. Roadside encounters between police and suspects are hazardous, and danger may arise from the possible presence of weapons in the area surrounding a suspect. Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889. Because Officer Griffis had a reasonable suspicion to believe that Carpenter was armed, he acted properly in seizing the pistol from the floorboard.
Last, this Court must decide whether there was probable cause to search Carpenter's car after the pistol was found. Officer Griffis had received from a reliable informant a tip informing him that Carpenter would be driving on South Mobile Avenue with a gun and drugs in his possession. Officer Griffis knew Carpenter and knew the type of car that Carpenter drove. He stopped Carpenter on South Mobile Avenue and Carpenter had a gun in his possession. At that point, the information from the informant had been corroborated by Officer Griffis. Clearly, this information would lead a reasonable and prudent person to believe that Carpenter was probably in possession of drugs. Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).
Based on the foregoing, the judgment of the Court of Criminal Appeals is affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Although Justice Kennedy was not present at the oral argument of this case on rehearing, he has listened to and reviewed the taped transcription thereof prior to the submission of this case to the Court for its decision. | December 13, 1991 |
d1a9939e-490d-4b12-9f46-878697d58612 | Ex Parte Jones | 592 So. 2d 608 | 1901116 | Alabama | Alabama Supreme Court | 592 So. 2d 608 (1991)
Ex parte Bobby JONES.
(Re Bobby JONES v. Esther Faye WILLIAMS).[*]
1901116.
Supreme Court of Alabama.
December 20, 1991.
*609 Demetrius C. Newton, Birmingham, for appellant.
J. Scott Vowell of Vowell & Meelheim, P.C., Birmingham, for appellee.
HORNSBY, Chief Justice.
In Ex parte Bayliss, 550 So. 2d 986, 987 (Ala.1989), this Court held that Alabama trial courts "have jurisdiction to require parents to provide post-minority support for college education to children of a marriage that has been terminated by divorce." In the present case, we are called upon to decide whether the principle established in Bayliss encompasses the situation where the child is born out of wedlock and the parents have not subsequently married.
Darlene Williams was born out of wedlock to Esther Faye Williams on March 25, 1972. A paternity action instituted by Esther in 1973 established Bobby Jones as Darlene's father, and he was required to pay the mother $43.75 per month as child support. As the result of a modification proceeding in 1977, the child support obligation was increased to $20.00 per week and Jones was required to provide medical insurance for Darlene. In 1989, Esther filed another petition to modify Jones's child support obligation. She sought an increase in the child support payments to meet Darlene's dental expenses and future college education expenses. A trial court referee ordered Jones to pay $350.00 per month as child support until Darlene reached the age of majority or until she reached the age of 21 if she attended an accredited college. The trial court, upon appeal of the referee's decision, ordered Jones to pay $475.00 per month as child support until Darlene reached her 19th birthday. Upon reaching age 19, Jones was to pay $475.00 each month Darlene was enrolled in college, until her 23rd birthday.
Upon appeal, Jones relied on this Court's decision in Ex parte Bayliss, 550 So. 2d 986 (Ala.1989), and claimed that the trial court had erred in ordering him to provide post-minority support for college education expenses in circumstances not involving divorce. The Court of Civil Appeals affirmed, holding that the father of a child born out of wedlock could be required to provide the child post-minority support for a college education.
Jones petitioned this Court for a writ of certiorari. We granted the petition, and now affirm the judgment of the Court of Civil Appeals.
Initially we recognize that our recent decision in Ex parte Barnard, 581 So. 2d 489 (Ala.1991), limited the trial courts' jurisdiction to award or modify child support to provide post-minority support for college education to cases in which a petition for the award or modification is made prior to the child's reaching the age of majority. In the present case, Darlene was 18 years of age, not yet at the age of majority in Alabama, when her mother filed the petition for modification of child support at issue. Thus, the child support petition meets the mandate of Barnard.
We further note that the characterization of Darlene as an illegitimate child is irrelevant to the disposition of this case. It is firmly established in this State that parental obligations do not differ with regard to whether the parents of the child are married. Harris v. State, 356 So. 2d 623 (Ala.1978). In fact, we have held that "the ultimate objective of the [Uniform Parentage Act, Ala.Code 1975, § 26-17-1 et seq.,] is to promote full equality for all children, *610 be they legitimate or illegitimate." Ex parte Presse, 554 So. 2d 406, 411 (Ala.1989).
With any consideration of legitimacy removed from this case, we find no basis for distinguishing between the character of the familial relationships in this case and those we recognized in Bayliss. Further, contrary to Jones's contention, our decision in Bayliss did not depend on the fact that the parties to that proceeding were divorced. Our decision did, however, depend on the existence of the parent-child relationship. Therefore, we hold that the "college education exception" to the general rule that a "parent has no duty to contribute to the support of his or her child after that child has reached the legislatively prescribed age of majority," Bayliss, 550 So. 2d at 992, applies as well where the parents were not married at the time of the birth of the child and were not married thereafter.
In Bayliss, we set out the factors a trial court shall consider in determining whether to order a noncustodial parent to provide post-minority support to his children for a college education:
Bayliss, 550 So. 2d at 987. Aside from the reference to the dissolution of marriage, we believe that the factors we require the trial court to consider in the context of support for children of divorced parents are no less applicable in the situation where the parents have never married. In either circumstance, the existence of a legal parent and child relationship is the focal point of our analysis.
We agree with the Court of Civil Appeals that the trial court properly considered the factors set out above in arriving at its conclusion. Therefore, the judgment of the Court of Civil Appeals is affirmed.
AFFIRMED.
MADDOX, STEAGALL and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
ALMON, SHORES, ADAMS and INGRAM, JJ., dissent.
HOUSTON, Justice (concurring specially).
As the author of the majority opinion in Ex parte Bayliss, 550 So. 2d 986 (Ala.1989), I find that the premise upon which Justice Adams bases his dissent is faulty. It is based upon there being no support in statutory law for the majority opinion; this is not correct.
In his dissent, Justice Adams's historical account of the Parentage Act and the Non-support Act is interesting and instructive; however, it does not make his dissent, which is based on a faulty premise, correct. The dissent is premised on the majority's holding being forbidden by statute, specifically, Ala.Code 1975, § 26-17-8, which provides:
How, pray tell, does the majority opinion "violate[] both the spirit and the letter of § 26-17-8"? It does not. The only subsection of this Code section that could apply is (b). This action was filed before the child attained age 19. As a matter of fact, all actions for post-minority support for college education must be filed before the child attains age 19. Ex parte Barnard, 581 So. 2d 489 (Ala.1991).
ADAMS, Justice (dissenting).
I respectfully dissent. The majority opinion, on the authority of Ex parte Bayliss, 550 So. 2d 986 (Ala.1989), holds that henceforth "Alabama trial courts `have jurisdiction to require parents to provide post-minority support for college education to children,'" whether the parents are divorced or have never married. This holding finds no support in statutory law. On the contrary, it is forbidden by statute. The holding of the majority, therefore, violates the applicable statutory law and there are grave questions regarding its constitutionality. Because of the seriousness of these criticisms, I shall set forth my reasoning in some detail.
The jurisdiction of trial courts to order child support for illegitimate children is currently defined by the Alabama Uniform Parentage Act, Ala.Code 1975, §§ 26-17-1 to -21 ("Parentage Act"). The Parentage Act was drafted specifically to provide a "civil cause of action in the courts of this state for the determination of paternity for the purposes of support and other reasons." Act No. 84-244, 1984 Ala.Acts 375. Section 26-17-2 declares the object of the Act, which is to apply the consequences of the "parent and child relationship ... equally to every child and to every parent, regardless of the marital status of the parents." Most pertinent for our discussion is § 26-17-8(b), which provides that "[a]n action to determine paternity for the purposes of obtaining support shall not be brought after the child attains age 19." Although it is unnecessary to look further than this section to conclude that the legislature intended to remove from trial courts the jurisdiction to order post-minority support for illegitimate children, an examination of the legislative background of the Parentage Act is enlightening.
The first predecessor of the Parentage Act was passed on December 13, 1811, by the General Assembly of the Territory of Mississippi. The Act of 1811 Concerning Bastardy, Act No. 7 of the Mississippi Territorial Legislature of 1811 ("Bastardy Act"), which was the first statute aimed at providing support for illegitimate children in Alabama, prescribed a procedure for the determination of paternity.[1] In relevant part, the Act provided:
Section 4 of the Act, which contained the relevant support provision, stated:
(Emphasis added.)[2]
The provision requiring support payments was first codified at Ala.Code 1852, § 3808. Section 3808 required the defendant to "enter into bond and security ... in the sum of one thousand dollars, payable to the state, and conditioned to pay such sum, not exceeding fifty dollars a year ... for ten years, to the judge of probate of the county, for the support and education of the child." Section 3808 passed into the next five successive Codes without substantial change. See Ala.Code 1867, § 4405; Ala.Code 1876, § 4080; Ala.Code 1887, § 4854; Ala.Code 1896, § 4393; and Ala.Code 1907, § 6376.
In 1915, the legislature enacted what was to become an important supplement to the limited protection afforded illegitimate children by the Bastardy Act. Act No. 498, 1915 Ala.Acts 560 ("Non-support Act"), criminalized a parent's failure to support "his or her child, or children, under the age of sixteen years." (Emphasis added.) The Act further provided:
(Emphasis added.) Four years later, the legislature amended the Act to raise the age limit for receiving support to 18 years. Act No. 181, 1919 Ala.Acts 176, codified at Ala.Code 1923, §§ 4480-4495.
The Non-support Act supplied a significant disincentive for desertion and neglect of minor children. The Act was, however, initially held to be inapplicable to illegitimate children. Ex parte Newsome, 212 Ala. 168, 102 So. 216 (1924). Consequently, the Bastardy Act's $50 per year support provision continued to be the illegitimate minor child's only remedy.
This impediment was removed when, in 1923, § 4479 was added to the Code. Ala. Code 1923, § 4479 defined the word "parent," for the purpose of the Non-support Act, to "include [the] natural legal parent or parents, or other persons who shall have legally acquired the custody of such child or children, and the father of such child or children, though born out of lawful wedlock." (Emphasis added.) Thus, for the first time in this state, through the combination of the Bastardy Act's mechanism for proving paternity with the Non-support Act's flexible power to provide meaningful support, illegitimate children under 18 years of age had legal recourse to significant subsistence. Law v. State, 238 Ala. *613 428, 430, 191 So. 803, 804 (1939); Coan v. State, 224 Ala. 584, 585, 141 So. 263, 263-64 (1932).
For the next 38 years, these pertinent sections of the Bastardy Act and the Non-support Act, which passed into the 1940 Code as Tit. 6, § 12, and Tit. 34, §§ 89, 90, and 98, respectively, provided complementary benefits for illegitimate children. See Law v. State, supra (paternity must be proven under provisions of Bastardy Act before support could be awarded under provisions of Non-support Act).
In 1961, the legislature replaced the Bastardy Act with Act No. 295, 1961 Ala.Acts 2353, codified at Ala.Code 1940 (Recomp.1958), Tit. 27, §§ 12(1)-(9) (Cum.Supp. 1973) ("Paternity Act"). The Paternity Act, like the Bastardy Act, provided a mechanism for proving paternity in "any court of the county where [the complainant resided], having jurisdiction ... to try and punish parents for the offenses of desertion and non-support, as provided for under Title 34, sections 89 to 104, inclusive." Ala.Code 1940 (Recomp.1958), Tit. 27, § 12(1). Moreover, the Paternity Act also incorporated some of the language and much of the substance of the Non-support Act. For example, the Paternity Act provided:
Tit. 27, § 12(4) (emphasis added). The legislature did not, at that time, incorporate into the Paternity Act the Non-support Act's age limitation.
In 1977, the legislature raised the age limit on the right of illegitimate children to receive support from 18 to 19 years, when it replaced § 90 of the Non-support Act with the act that became Ala.Code 1975, § 13A-13-4. That section now provides:
(Emphasis added.) The remainder of the Non-support Act, with the exception of § 91, still exists as Ala.Code 1975, §§ 30-4-50 to -65.
Seven years later, the Paternity Act was superseded by the Parentage Act, the legislature's most recent statement on the subject of support for illegitimate children. The Parentage Act, like its predecessors, sets forth procedures for a determination of paternity and provides for court-ordered support following such a determination. See Ala.Code 1975, § 26-17-14. However, unlike its predecessors, the Bastardy Act and the Paternity Act, the Parentage Act's provision tying actions for support to the age of majority of the child now parallels the Non-support Act's age limitation on the right to receive child support. In view of the extensive, complementary history and the interplay of the Parentage Act's predecessors with the Non-support Act and its predecessors, the inescapable effect of this section is to remove from trial courts the jurisdiction to order support for illegitimate children past the legislatively prescribed age of majority.
At this juncture, it hardly seems necessary to point out that these are matters with which the courts have nothing to do. The "power to raise or lower the [age of majority] is exclusively reserved to the legislature and outside the authority of the courts." State ex rel. Taylor v. Nelson, *614 535 So. 2d 178, 179 (Ala.Civ.App.1988) (emphasis added); Davenport v. Davenport, 356 So. 2d 205, 210 (Ala.Civ.App.1978) ("fixing of the age of majority is within the sphere of the legislature not the courts"); see also Hutchinson v. Till, 212 Ala. 64, 65, 101 So. 676, 676 (1924) ("Legislature has full power to prescribe" age of majority).
In extending the "college education exception" set forth in Ex parte Bayliss, 550 So. 2d 986 (Ala.1989), to confer jurisdiction on Alabama trial courts to order post-minority support for illegitimate children, the majority opinion violates both the spirit and the letter of § 26-17-8. To be sure, the extension of Bayliss to encompass the situation presented in this case follows from the amalgamation of the Bayliss doctrine with the equal protection guarantees of both the federal and state constitutions. The Bayliss doctrine, therefore, must be reconsidered in light of the equal protection issues raised by its operation on the facts of this case.
The well-established rule in this state was that "[a] father [was] bound, by the common law, to support and educate his children during their minority." Beasley v. Watson, 41 Ala. 234, 240 (1867) (emphasis added); see Alston v. Alston, 34 Ala. 15, 27 (1859) ("It is a general rule of law, that the father is bound to support his minor children, if able to do so, even though they have property of their own" (emphasis added)); Godfrey v. Hays, 6 Ala. 501, 502 (1844) ("From the obligation of the father to support his children during minority, he is entitled to their services, and to the earnings of their labor" (emphasis added)).
In Bayliss, a majority of this Court held that a trial court had jurisdiction to order a divorced, noncustodial parent to pay expenses incurred by a 19-year-old child in pursuit of a college education if petition had been made for such support before the child reached age 19. In carving out this exception to the general rule, the majority correctly recognized that "any jurisdiction of a trial court to require a parent to provide post-minority support for a child's college education is conferred by statutes, expressly or by implication." Bayliss, 550 So. 2d at 989. The majority further acknowledged that the "Legislature of Alabama [had] not enacted a specific statutory change in its domestic relations laws to permit post-minority support for college education." It proceeded to find such jurisdiction, however, in the "absence of restrictive language in Alabama Code 1975, § 30-3-1." Bayliss, 550 So. 2d at 989 (emphasis added).
In doing so, the majority overlooked the fact that "`a fixed and received construction of a statute, made by the Supreme Court of the State," becomes a part of the statute. Jackson v. Fillmore, 367 So. 2d 948 (Ala.1979), quoting Farrior v. New England Mortgage Security Co., 92 Ala. 176, 9 So. 532 (1891); Lawson v. Swift, 280 Ala. 227, 191 So. 2d 379 (1966). This Court has taken numerous opportunities to pass upon the meaning of the word "children" in § 30-3-1 since the section's predecessor first appeared as Ala.Code 1852, § 1977. Until Ex parte Brewington, 445 So. 2d 294 (Ala.1983), this Court had construed that section as contemplating minor children. Reynolds v. Reynolds, 274 Ala. 477, 149 So. 2d 770 (1963), overruled by Ex parte Brewington, 445 So. 2d 294 (Ala.1983); Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735 (1951). This consideration appears to have been overlooked in favor of the concededly marginal inference that could be drawn from the fact that the legislature did not immediately react to the novel construction employed by Brewington.[3]Ex parte Bayliss, 550 So. 2d at 993-94.
No sooner was Bayliss announced than it became apparent that the decision raised grave equal protection concerns. Some of these difficulties were articulated by Mr. *615 Justice Almon in Ex parte Barnard, 581 So. 2d 489 (Ala.1991):
Id. at 491-92 (Almon, J., concurring in the result).
The equal protection problem posed by Bayliss in the instant case stems from the fact that "once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother." Gomez v. Perez, 409 U.S. 535, 538, 93 S. Ct. 872, 874-75, 35 L. Ed. 2d 56 (1973). Thus, because of Bayliss, this Court is cast upon the horns of a dilemma. It is compelled by the equal protection guarantees of both the state and federal Constitutions to extend the Bayliss doctrine to the children of unwed parents. Simultaneously, it is forbidden by the legislature, and, therefore, by the separation-of-powers provisions of the Alabama Constitution, to do so.
There is no question in this case regarding the constitutionality of § 26-17-8. The only question is whether this Court will obey the statute. Incredibly, the majority, in order to accommodate its holding in Bayliss, chooses to violate a validly enacted statute by assuming jurisdiction where jurisdiction has been denied by the legislature.
As I noted previously in this opinion, these are matters committed to the sound discretion of the legislature. In order to avoid the difficulties that were pointed out in Ex parte Barnard (Almon, J., concurring), and that are presented in this case, we must await legislative reform.
In this case, I would not be placed in the position of choosing which constitutional provision must be violated in order to preserve the holding in a judicial opinion. I would overrule Bayliss. Consequently, I would hold that henceforth Alabama trial courts have no jurisdiction to require parents to provide post-minority support for college education to children, whether the parents are divorced or have never married.
ALMON, SHORES and INGRAM, JJ., concur.
[*] [Reporter of Decisions' note: Some of the documents filed in this case spell the respondent's name as Ester Fay Williams. Her brief to the Supreme Court indicates that she is now known as Esther Faye Anchrum.]
[1] At common law, an illegitimate child "was said to be filius nullius. His natural father may die never so rich, and he may be upon the parish, yet he took none of his estate, unless left to him by will. In the absence of a statute, the father is under no legal obligation to support him; and the statute prescribes the mode, and the only mode, by which this support can be obtained." Simmons v. Bull, 21 Ala. 501, 504 (1852) (emphasis added).
[2] In Pruitt v. Judge of the County Court, 16 Ala. 705 (1849), this Court interpreted the Act to require 10 annual payments, not exceeding $50 dollars per payment, beginning on the date of judgment. This section became Ala.Code 1940, Tit. 6, § 12.
[3] Although the Brewington doctrine, which recognizes jurisdiction to order post-minority support for the disabled, may suffer the same infirmity as does the Bayliss principle, there is no issue of disability in this case. Therefore, I will reserve judgment on Brewington until an issue of disability is squarely before the Court. | December 20, 1991 |
6619cdb0-949e-4e99-a34d-42788dbeb597 | Fuqua v. INGERSOLL-RAND CO., INC. | 591 So. 2d 486 | 1901302 | Alabama | Alabama Supreme Court | 591 So. 2d 486 (1991)
Ernest FUQUA, Jr.
v.
INGERSOLL-RAND COMPANY, INC.
1901302.
Supreme Court of Alabama.
December 20, 1991.
Billy C. Burney, Decatur, and Brent M. Craig, Mobile, for appellant.
Jack B. Porterfield, Jr. of Porterfield, Harper & Mills, P.A., Birmingham, for appellee.
MADDOX, Justice.
The issue presented in this case is whether the trial court erred in entering a summary judgment for the defendant, Ingersoll-Rand Company against the plaintiff, Ernest Fuqua, Jr., an employee of the 3M Company, who was injured by an allegedly defective chain hoist. After a careful review of the evidence submitted, we find that Ingersoll-Rand failed to meet its initial burden of showing a complete absence of any genuine issue of material fact. Accordingly, we must reverse and remand.
Fuqua was an employee of 3M Company, in its Decatur, Alabama, plant. Fuqua's job at the time in question was to "build filters." Building filters involved placing a large, industrial-sized filter, along with a metal gasket, into a tubing or barrel. After inserting an "eye bolt"[1] into the filter, Fuqua would use a chain hoist[2] to move *487 the filter from one part of the plant to a filter assembly area. Once in the filter assembly area, Fuqua would suspend the filter over the barrel, using his right hand to control the chain hoist; and then, holding the gasket in place with his left hand, Fuqua would lower the filter into the barrel. On March 28, 1987, while Fuqua was building a filter, the filter somehow slipped off the chain hoist. Two fingers of Fuqua's left hand were crushed by the weight of the filter and later required amputation.
Fuqua sued several chain hoist manufacturing companies, including the Ingersoll-Rand Company, Inc. ("Ingersoll-Rand"), and the Gardner-Denver Company, Inc. ("Gardner-Denver"), under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD").[3] Fuqua alleged that one of these companies had placed an unreasonably dangerous or defective product into the stream of commerce, and that the product had caused him injury when he used it in a normal or customary way. After substantial discovery, both Gardner-Denver and Ingersoll-Rand filed motions for summary judgment. The trial court granted each company's requested summary judgment. Fuqua did not appeal from the judgment entered in favor of Gardner-Denver, but did appeal from Ingersoll-Rand's summary judgment.
Initially, we note that our review of a summary judgment is de novo; that is, we must examine all the evidence that was before the trial court. Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976). The two-tiered standard of review for summary judgment has been repeatedly stated: 1) there must be no genuine issues of material fact, and 2) the movant must be entitled to a judgment as a matter of law. Ala.R.Civ.P. 56(c), Tripp v. Humana, Inc., 474 So. 2d 88 (Ala.1985) (emphasis supplied). Further, on review of a summary judgment we must view all the evidence in a light most favorable to the nonmovant, here Fuqua; and we must entertain all reasonable inferences from the evidence in favor of the nonmovant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991). See, also, Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
One moving for a summary judgment must come forward with a prima facie showing that there are no genuine issues of material fact, and that he is entitled to a judgment as a matter of law. Fincher, 583 So. 2d at 257. If this showing is made, the burden then shifts to the nonmovant to rebut the movant's prima facie showing by "substantial evidence." Ala. Code 1975, § 12-21-12. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
*488 Ingersoll-Rand makes five arguments as to why there were no genuine issues of material fact, and thus why it says it was entitled to a judgment as a matter of law. Ingersoll-Rand says: 1) that there was no evidence that it made the chain hoist in question; 2) that there was no evidence that the chain hoist was defective; 3) that there was no evidence that the chain portion of the chain hoist was defective; 4) that there was no evidence that the hook portion of the chain hoist was defective; and 5) that, even admitting that the safety latch portion of the chain hoist was defective, there was no evidence that Ingersoll-Rand made the safety latch in question. While Ingersoll-Rand's arguments as to the hook and chain portions of the chain hoist[4] may be valid, we are unconvinced by the other arguments. We find that there are genuine issues of material fact that should be submitted to a jury. Two genuine issues of material fact, at the very least, are evident from our de novo review of the record: whether Ingersoll-Rand actually manufactured the chain hoist, and whether Ingersoll-Rand manufactured the safety latch attached to the hook of the chain hoist used by Fuqua on the day of the accident.
As to the issue of what company manufactured the chain hoist used by Fuqua, there was ample evidence submitted in opposition to the summary judgment motion that, when viewed in a light most favorable to the nonmovant, could lead a fair-minded person to conclude that Ingersoll-Rand manufactured the chain hoist. The deposition testimony is replete with references to Ingersoll-Rand hoists having "bicycle" type chains, while other company's hoists have "link or log" type chains. Further, several deponents, who viewed the accident scene soon after the accident, testified that the hoist used by Fuqua had a "bicycle" type chain. This evidence supports the inference that Ingersoll-Rand manufactured the chain hoist used by Fuqua on the day of his accident.
There was also testimony that the chain hoist used by Fuqua was probably not made by Ingersoll-Rand, and there was testimony that the chain hoist in question had a "log" type chain, thus supporting the inference that the chain hoist was not manufactured by Ingersoll-Rand. Quite obviously, then, there was a genuine factual dispute on this issue requiring a jury determination.
On the question of whether Ingersoll-Rand manufactured the safety latch that was attached to the hook of the chain hoist used by Fuqua on the day of the accident, there was also sufficient conflict in deposition testimony to raise a genuine issue of fact for jury determination. Specifically, Tommy Farris, the 3M employee in charge of maintaining all the chain hoists in 3M's Decatur plant, testified that parts for an Ingersoll-Rand chain hoist were never interchanged with parts on any other company's hoist, because the manufacturers did not recommend doing that and because interchanging parts was against company policy. Further, Farris testified that replacement parts for any given hoist were ordered only from the particular company that made the hoist. The inference, of course, is that the safety latch on the hoist used by Fuqua was made by Ingersoll-Rand.
In contradiction to Farris's testimony, Raymond Sutton, the 3M employee in charge of safety and security, testified that replacement safety latches were purchased from a local supplier. It is not clear from Sutton's deposition, however, which company manufactured the safety latches for the local supplier. At one point, Sutton asserted *489 that he did not know who manufactured the safety latch, while at another point he testified that a J.H. Williams Company manufactured the latches. In short, it is clear that there was a genuine dispute as to what company actually manufactured the safety latch attached to the hook of the chain hoist used by Fuqua on the day of his accident.
Having found at least two genuine issues of material fact, we hold that the trial court erred by entering the summary judgment for Ingersoll-Rand; therefore, we reverse that judgment and remand the case.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS and INGRAM, JJ., concur.
[1] An "eye bolt" is defined as "a bolt with a looped head." Webster's Ninth New Collegiate Dictionary 442 (1986).
[2] Deposition testimony offered the fact that a chain hoist consists of basically three parts: the hoist mechanism, or that part of the machine that actually raises and lowers the chain; the chain; and the hook. Additionally, the hook will most often have a safety latch or catch attached to it that is designed to prevent any object attached to the hook from slipping off the hook during movement. For clarity, these four terms will be used throughout this opinion: "hoist mechanism," "chain," "hook," and "safety latch." When referring to the entire machine we will use the term "chain hoist."
[3] In Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132-33 (Ala.1976), and Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala.1976), this Court set out the elements of a prima facie case under the AEMLD, as follows:
"To establish liability, a plaintiff must show:
"(1) he suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if
"(a) the seller is engaged in the business of selling such a product, and
"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
"(2) Showing these elements, the plaintiff has proved a prima facie case although
"(a) the seller has exercised all possible care in the preparation and sale of his product, and
"(b) the user or consumer has not bought the product from, or entered into any contractual relation with, the seller."
In Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991, 995 (Ala.1981), this Court added two additional elements to an AEMLD prima facie case: 1) proof that "the product was substantially unaltered when used by [the plaintiff]," and 2) proof of "causation in fact, including proof that the defect caused the injury and that the defect is traceable to the Defendant."
[4] Ingersoll-Rand's argument as to the "hoist" itself may also be valid; however, the ambiguity of the phrase makes it impossible for this Court to determine the validity of the argument. If by "hoist" Ingersoll-Rand means the hoist mechanism or the top piece of the chain hoist that actually moves the chain up and down, Ingersoll-Rand may have a valid argument. However, if by "hoist" Ingersoll-Rand means the entire apparatus used by Fuqua, then there is evidence that one part of that apparatus, the safety latch, was defective, and, therefore, there is evidence that the entire apparatus was defective. Determination of which alternative Ingersoll-Rand intended is not necessary, however, because we find other genuine issues of material fact worthy of jury determination. | December 20, 1991 |
4a06f203-391e-4f1c-9755-e2c0626f045f | Whitman v. Walker County Bd. of Educ. | 591 So. 2d 481 | 1901504 | Alabama | Alabama Supreme Court | 591 So. 2d 481 (1991)
Douglas O'Neal WHITMAN
v.
WALKER COUNTY BOARD OF EDUCATION, et al.
1901504.
Supreme Court of Alabama.
December 20, 1991.
*482 Ruth S. Sullivan, Dadeville, for appellant.
Phillip A. Laird of Laird & Wiley, P.C., Jasper, for appellees.
HOUSTON, Justice.
Douglas O'Neal Whitman was employed by the Walker County Board of Education ("the Board") as the head football coach of Parrish High School. As part of his duties as football coach, he maintained the grounds at the stadium and maintained the structures appurtenant thereto. While Whitman was in the press box obtaining signs to place on the field, he fell through a hole in the floor and sustained severe injuries. Subsequently, he filed a claim with the Board of Adjustment of the State of Alabama. The Board of Adjustment awarded him $23,000, and he received his money by indorsing a check from the state that contained the following words on the back:
Thereafter, Whitman sued the Board in the Circuit Court of Walker County, alleging that he had been permanently injured because the Board had breached an express or implied contract to provide him a safe place to work and had negligently failed to perform contractual obligations to him. The Board moved for a summary judgment, claiming that Whitman's claim was barred because he had signed a release and had been paid by the state. The trial court granted the Board's motion, holding in part as follows:
Whitman appeals. We affirm.
Pursuant to Ala.Code 1975, § 12-21-109, "[a]ll ... releases ... in writing... must have effect according to their terms and the intention of the parties." In the absence of fraud (which Whitman does not allege), a release supported by valuable consideration and unambiguous in meaning will be given effect according to the intent of the parties, that intent to be judged by the court from what appears within the four corners of the instrument itself. Jehle-Slauson Construction Co. v. Hood-Rich, Architects & Consulting Engineers, 435 So. 2d 716 (Ala.1983).
*483 In this case, the release clearly states that by indorsing the check, Whitman effectively released the State of Alabama and its agencies from all claims arising out of the injuries and damages he sustained in regard to the claim for which he was awarded $23,000. It is undisputed that the claim Whitman made in the circuit court arose out of the injuries and damages that he sustained in the claim that he made before the Board of Adjustment and for which he received the $23,000 award. Furthermore, as the trial court correctly held, the Walker County Board of Education is an agency of the state. "County boards of education are not agencies of the counties, but local agencies of the state...." Belcher v. Jefferson County Bd. of Educ., 474 So. 2d 1063, 1065 (Ala.1985); see Ala.Code 1975, §§ 16-8-8, -9; see, also, Hutt v. Etowah County Bd. of Educ., 454 So. 2d 973 (Ala.1984). The Board is not an unnamed third party, referred to in the release as "any and all parties" or by words of like import, but is a named party, as an agency of the state. See Green v. Wedowee Hospital, 584 So. 2d 1309 (Ala.1991).
Based on the foregoing, the summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and STEAGALL, JJ., concur. | December 20, 1991 |
47e8ff03-561a-43fa-9f87-05a7044accb3 | USF & G. v. German Auto, Inc. | 591 So. 2d 841 | 1901341 | Alabama | Alabama Supreme Court | 591 So. 2d 841 (1991)
UNITED STATES FIDELITY AND GUARANTY COMPANY
v.
GERMAN AUTO, INC.
1901341.
Supreme Court of Alabama.
November 27, 1991.
M. Clay Ragsdale IV and P. Perry Finney of Starnes & Atchison, Birmingham, for appellant.
Drayton N. James of Clark & James, Birmingham, for appellee.
HOUSTON, Justice.
The insurer appeals from a judgment awarding prejudgment interest on a business interruption loss. We reverse and remand.
On January 15, 1988, the business premises of German Auto, Inc., sustained damage by fire. At that time, German Auto had in force a policy with United States Fidelity and Guaranty Company ("USF & G") providing indemnity for loss from fire, including losses based on business interruption. In February 1988, after an investigation of the loss, USF & G paid German Auto $300,000 as an advance payment for the loss of the building and the contents. Thereafter, with the additional payment of $143,871.61, the claim relating to the building and contents was settled. However, because the claim involving the business interruption loss remained, German Auto sued, seeking a judgment declaring "the rights, entitlements and obligations of the parties in connection with the ... fire loss and [asking that the trial court] award *842 [German Auto] the amount [to] which it is entitled under the terms of the ... policy." Subsequently, German Auto and USF & G agreed to submit to arbitration their dispute as to the amount due German Auto under the business interruption provisions of the USF & G policy. The arbitration resulted in an award of $420,923 to German Auto on November 12, 1990. Because USF & G had paid German Auto an advancement for the business interruption loss during that period in the amount of $133,615 on May 10, 1988, the amount due upon the arbitrator's final determination was $287,308, which USF & G paid on December 7, 1990. Thereafter, USF & G filed a "Motion for Entry of Judgment on Arbitrator's Award and Notice of Satisfaction Thereof." On that same day, German Auto filed a "Motion for Award of Interest" it claimed was due on the $287,308. At the hearing on the motion for an award of interest, the trial court, hearing ore tenus evidence, found that interest in the amount of $43,237.89 was due, holding as follows:
Subsequently, USF & G filed a "Motion to Alter and Amend [or] Vacate the Judgment and for Stay of Execution," which the trial court denied. USF & G appeals.
As the trial court correctly noted, this Court has had no cases dealing with prejudgment interest in the context of a claim based on business interruption loss. Nevertheless, this Court, in general, has consistently held that there is a statutory right to interest on the amount payable under any type of insurance policy, LeFevre v. Westberry, 590 So. 2d 154 (Ala. 1991), pursuant to Ala.Code 1975, § 8-8-8, which provides as follows:
The Court in LeFevre, however, specifically held that "for the insured to be entitled to interest, the amount due under the policy must be a liquidated sum [capable of being ascertained]." (Emphasis added.) See Martin v. Tolson, 562 So. 2d 217 (Ala.1990); Lapeyrouse Grain Corp. v. Tallant, 439 So. 2d 105 (Ala.1983).
Thus, applying the holding in LeFevre to this case, we must first determine whether the damages were liquidated. Then, we must determine whether the trial court, hearing ore tenus evidence, was plainly and palpably wrong in holding that USF & G was liable to German Auto for $43,237.89 in prejudgment interest on $287,308, calculated from May 10, 1988, to November 12, 1990. See, Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9 (Ala.1989) (for a discussion of the ore tenus standard of review).
The term "liquidated damages" is defined as "the amount of damages ... ascertained by the judgment in the action, or ... a specific sum of money ... expressly stipulated by the parties ... as the amount of damages to be recovered.... [Those] damages which are reasonably ascertainable at time of breach, measured by fixed or established external standard, or by standard apparent from documents upon which plaintiffs based their claim." Black's Law Dictionary 391 (6th ed. 1990). The term "unliquidated damages" is defined as damages that "are not yet reduced to a certainty in respect of amount, nothing more being established than the plaintiff's right to recover; or [damages] as cannot be fixed by a mere mathematical calculation from ascertained data in the case." Black's Law Dictionary 393 (6th ed. 1990).
The facts in this case clearly established the difficulty and complexity involved in determining the amount due the plaintiff on its business interruption claim. Five separate analyses were performed, which resulted in five widely disparate sums$244,000 from the analysis of German Auto's own accountant; $218,000 from the analysis of USF & G; $529,933 from the analysis of an independent accountant hired by German Auto after it was dissatisfied with the analysis of its own accountant; $302,443 from the analysis by an independent accounting firm hired by USF & G; and $420,923 from the analysis of the arbitrator as the final determination of the loss from business interruption. Further evidence of the difficult, varied, and complex factors involved in analyzing and evaluating the business interruption loss came through the testimony of the agreed-upon arbitrator. Based on those facts, we must conclude that the award for business interruption loss in this case was uncertain and difficult to ascertain because of competing positions about various items of loss and because of differences of opinion about calculating the loss. The loss, therefore, represented "unliquidated" damages until the arbitrator made the final determination. Consequently, no interest was due until a judgment or award was judicially entered.
For the foregoing reasons, relying on the rationale of the Court in LeFevre, supra (which we note had not been decided at the time of the trial court's holding in this case), we hold that because of the many variables involved in evaluating the claim of business interruption loss and determining the loss sustained by German Auto, the total amount owed by USF & G to German Auto was not capable of being ascertained prior to the final determination of the arbitrator and, accordingly, no prejudgment interest is due to German Auto. Therefore, we reverse the judgment and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | November 27, 1991 |
a0f65f7d-275b-44bd-9e27-919a6316f180 | Davis v. Reynolds | 592 So. 2d 546 | 1900899 | Alabama | Alabama Supreme Court | 592 So. 2d 546 (1991)
Reuben DAVIS
v.
George R. REYNOLDS, et al.
1900899.
Supreme Court of Alabama.
December 20, 1991.
*547 Richard F. Allen and Ellen M. Hastings of Capell, Howard, Knabe & Cobbs, P.A., Montgomery, for appellant.
James C. Barton and Robert S. Vance, Jr. of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellees George R. Reynolds, Probate Judge, Polly Conradi, Clerk of Circuit Court, and Sheriff Melvin Bailey, as members of the Jefferson County Bd. of Supervisors/Election Comm'n.
Michael L. Edwards, Marshall Timberlake and Victoria J. Franklin of Balch & Bingham, Birmingham, for appellee Jeff Germany.
SHORES, Justice.
The question presented here is whether the Jefferson County Election Commission should have revoked a certificate of election it had issued to the winner of an election for a local office because the winning candidate had violated certain provisions of the Fair Campaign Practices Act of 1988[1] by failing to timely file a statement designating his principal campaign committee after he became a candidate for election.
This Court first examined the basic facts of this dispute in Dunning v. Reynolds, 570 So. 2d 668 (Ala.1990), and affirmed the trial court's dismissal of the complaint in that case. In that case, Etta E. Dunning, Jeff Germany's opposition in the Democratic Party's primary run-off election for Jefferson County Commission District One Commissioner ("commissioner"), sought a declaratory judgment and a writ of mandamus to have Germany's certificate of nomination revoked and his name removed from *548 the general election ballot for his failure to timely disclose his campaign contributions as required by law. A summary of Germany's actions follows:
January 31, 1990
April 4, 1990
April 20, 1990
June 5, 1990
June 26, 1990
November 6, 1990
November 9, 1990
This Court affirmed the trial court's dismissal of Dunning's complaint in the Dunning case, on the ground that "[t]he record fails to show affirmatively that petitioner exhausted her remedies before the State Democratic Executive Committee prior to filing the instant action." Id. at 669.
In the present case, Reuben Davis, the incumbent Democratic commissioner, who was also a candidate in the June 5, 1990, primary election, sued the members of the Jefferson County Election Commission ("the Commission");[2] George Reynolds, as the probate judge of Jefferson County; Melvin Bailey, as the sheriff of Jefferson County; and Polly Conradi, as the clerk of the Circuit Court for Jefferson County, alleging that Jeff Germany was not a legally qualified candidate for the Democratic nomination for district one commissioner, because, Davis alleges, Germany had failed to timely file a statement naming his principal campaign committee; such a statement is required by Ala. Code 1975, § 17-22A-4, which reads in pertinent part as follows:
An election contest was filed with the Jefferson County Democratic Executive Committee relating to the primary election, and in July 1990 the Committee rendered an election contest opinion, finding that Germany had failed to name his principal campaign committee within five days after becoming a candidate for the Democratic nomination for the office of commissioner; nevertheless, the Committee certified Germany as the Democratic nominee upon his payment of a fine of $4,000. No appeal was taken to the State Democratic Executive Committee from that action by the Jefferson County Democratic Executive Committee, and no further judicial review was sought.
Germany was the successful candidate in the November general election, and on November 9, 1990, the Commission certified Germany as the elected district one commissioner. On December 21, 1990, Davis *549 made a demand on the Commission to revoke the certificate of election issued to Germany. The Commission refused. Subsequently, Germany filed a declaratory judgment action in the Jefferson County Circuit Court, seeking to confirm his certification by the Commission, asserting that his rights and the rights of the citizens would be affected and injured by an interpretation of the Fair Campaign Practices Act that would revoke his certificate of election. Davis filed a petition for the writ of mandamus along with his answer to Germany's complaint, asserting the same ground that Dunning had asserted in Dunning. Davis also asked for a declaratory judgment.
The trial court held that Davis's action was time barred by the 20-day statute of limitations set out in § 17-15-22. The court wrote:
We agree. Davis challenges Germany's election and argues that he is ineligible to hold the office. He became ineligible to hold the office, and thus was not eligible to hold the office he sought, this argument goes, on the sixth day after he became a "candidate," as defined by Alabama Code 1975, § 17-22A-2, because, the argument continues, he did not file a statement showing his principal campaign committee within five days as he was required to do by § 17-22A-4. A challenge to an election on grounds of ineligibility is an election contest under § 17-15-1, which provides:
This being the case, this action is controlled by § 17-15-22, which provides:
Davis's challenge to the election of Jeff Germany to the office of member, County Commission, District 1, is barred by the applicable statute of limitations, and the trial court's order is affirmed on that ground.
In addition, the trial court also found that Davis's claim was barred by the doctrine of res judicata. Its judgment is affirmed on that ground as well.
Finally, the trial court found, correctly, that the Jefferson County Election Commission has no authority to revoke Germany's certificate of election.
We adopt the judgment of the trial court on each of these issues as follows:
"On April 4, 1990, Germany filed with the Democratic Party a written document declaring himself to be a candidate for the Democratic Nomination in the primary election scheduled for June 5, 1990, for the Office of Member, County Commission District 1. By that same document filed April 4, 1990, Germany appointed himself as his principal campaign committee to receive and disburse money contributed to his campaign.
"Section 17-22A-4, Alabama Code 1975, requires that the statement by Germany appointing his finance committee be filed within five days after the date when he becomes a candidate for office.
"On January 31, 1990, Germany filed with the Probate Court of Jefferson County, Alabama, a document styled, `Summary of Contributions and Expenditures,' showing that during the period from October 10, 1989, to January 31, 1990, Germany received contributions in the total amount of $10,750.00, and made expenditures totalling *550 $7,700.00, leaving him with a balance on January 31, 1990, in the amount of $4,950.00.
"In a subsequent summary filed with the Probate Court of Jefferson County on April 20, 1990 (a Pre-Election Summary), showing contributions beginning on March 15, 1990, and expenditures beginning April 1, 1990, Germany listed as his beginning balance the sum of $4,950.00.
"The Democratic Primary Election was held on June 5, 1990. The results certified by the Chairman and Secretary of the Jefferson County Democratic Executive Committee show the five candidates for the Office of Member, Jefferson County Commission, District 1, as receiving the votes shown as follows:
"While Germany received more votes than any other candidate, he did not receive a majority of the votes cast. Consequently, a primary run-off election was scheduled for June 26, 1990, with only the two candidates in the lead, Germany and Dunning. On that occasion, the votes received by the two candidates were as follows:
"Following the run-off election, a contest of the election result was filed by Dunning with the Jefferson County Democratic Executive Committee (`Committee').
"Dunning asserted as the ground for her contest the same ground asserted now in the present case by Reuben Davis; namely that Germany became a candidate as defined in § 17-22A-2(1)(b), Alabama Code 1975, before he filed the form on April 4, 1990, declaring himself to be a candidate and appointing himself as his finance committee.
"Following a hearing conducted by the Committee, it found that Germany's January 31, 1990, filing showing an ending fund balance of $4,950.00, included funds raised by Germany to eliminate a campaign debt incurred by Germany in connection with his campaign to be elected in October 1989, to the Birmingham City Council.
"Because his report filed April 20, 1990, showed a beginning balance of $4,950.00, it was considered that this fund representing contributions made during 1989 was a fund raised in connection with Germany's decision to be a candidate for the Office of Member, County Commission. The opinion of the Committee stated in part:
"In summary, the Committee concluded that a certificate of nomination should be issued to Germany, finding that he was in substantial compliance with the Act. The Committee imposed a fine of $4,000.00, apparently concluding that by doing so, candidates would be encouraged to comply with all aspects of the election laws of Alabama.
*551 "Following the decision of the Committee, Dunning and Jan Judkins, a resident voter, filed a complaint in this Court asking that this Court direct that Germany not be issued a certificate of election or nomination or, in the event that such a certificate of election or nomination had already been issued, that the same be ordered revoked.
"By decision rendered August 2, 1990, Circuit Judge Jack D. Carl concluded that this Court had no jurisdiction at that time to hear the case based upon the decision of the Supreme Court of Alabama in Ex parte Baxley, 496 So. 2d 688 (Ala.1986). The complaint was dismissed for want of jurisdiction.
"On appeal to the Supreme Court of Alabama, the dismissal by the circuit court was affirmed. The majority opinion of the supreme court stated:
"Germany was then certified as the nominee of the Democratic Party for the Office of Member, County Commission District 1. At the election conducted on November 6, 1990, the three members of the Election Commission, George Reynolds, Polly Conradi and Melvin Bailey, certified the results of the election and the votes received by candidates for the Office of Member, County Commission District 1 as follows:
"On November 9, 1990, the Election Commission certified Germany as the elected officer for the position of Jefferson County Commissioner for District 1.
"No appeal was ever taken to the State Democratic Executive Committee by either Dunning, Judkins, or any other person. However, by letter dated December 21, 1990, addressed to the three members of the Election Commission, Richard F. Allen as the attorney representing Reuben Davis, demanded that the Board revoke the certificate of election issued to Germany on November 9, 1990, because of Germany's failure to name his principal campaign committee within five days after becoming a candidate in the Democratic Primary for the Office of Member, Jefferson County Commission District 1. As a result of Allen's letter, Germany commenced the present action seeking to resolve doubt and uncertainty regarding his status as the certified winner in the election for Jefferson County Commissioner, District 1.
"The procedure to be followed in contesting general elections is statutory and may be found in § 17-15-1 et seq., Alabama Code 1975.
"Section 17-15-1 provides in pertinent part as follows:
"Thus, under § 17-15-1, one of the grounds contemplated for filing a contest of an election is the ineligibility of the person elected to office.
"The time within which a contest of an election must be filed is set out in § 17-15-22, Alabama Code 1975, which provides as follows:
"If § 17-15-22 applies in the present case to the counterclaim filed by Reuben Davis, then his action to disqualify Germany comes too late. As this Court has previously noted, the Election Commission certified Germany as the elected officer for the position of Jefferson County Commissioner, District 1, on November 9, 1990. Consequently, under § 17-15-22, the contest was required to have been made by November 29, 1990. In the present case, Germany's complaint was filed on December 28, 1990. Assuming that Davis' counterclaim related back to the filing of the complaint, it still comes too late if § 17-15-22 is here applicable.
"It is the position of counsel for Reuben Davis that § 17-15-22 is not here applicable. Counsel for Davis says that there is no limitation period on the right to contest Germany's election. According to counsel for Davis, Germany's right to hold office as Jefferson County Commissioner could be challenged years after he assumed that office.
"In support of his argument, counsel for Davis refers to three decisions of the Supreme Court of Alabama, namely: Osborne v. Banks, 439 So. 2d 695 (Ala.1983); Sears v. Carson, 551 So. 2d 1054 (Ala.1989); and Reed v. City of Montgomery, 376 So. 2d 708 [Ala.1979].
"In both Sears v. Carson, supra, and Reed v. City of Montgomery, supra, the dispute did not involve a question concerning the eligibility of a candidate or the procedure followed in conducting the election. Both cases involved the action of the election officials in counting the votes after the polling had ended.
"In Sears v. Carson, supra, Sears and Gibson were the two candidates seeking to be elected to the Town Council of Franklin, Alabama. The election was conducted on Tuesday, August 23, 1988. After the election, the election officials prepared a statement of canvass to deliver to the Franklin Town Council (which also served as the Canvassing Board). The statement said that Sears received forty-four votes (thirty-two by machine, eight by challenged ballot, and four by absentee ballot), and that Gibson received thirty-eight votes (thirty-three by machine, two by challenged ballot, and three by absentee ballot). Under § 11-46-55, Alabama Code 1975, the municipal governing body was required to open the envelopes not later than 12:00 noon on Wednesday, the day after the election, and determine the number of votes received by each candidate.
"The Canvassing Board did not meet by noon, August 24, 1988. On August 26, 1988, Sears obtained a writ of mandamus from the circuit court ordering the Board to count the votes and declare a winner by August 29, 1988. Initially, the Canvassing Board threw out all of the votes but the machine votes and declared Gibson the winner by a vote of thirty-three to thirty-two. Sears then filed another petition for writ of mandamus, which the circuit court initially denied. On reconsideration the court amended its original order of mandamus and required the Board to count all of the votes, including absentee and challenged votes by September 28, 1988.
"On September 27, 1988, the Town Council recanvassed the votes and declared Sears the winner. It issued Sears a certificate of election. On September 30, 1988, Gibson filed an election contest.
"Under § 11-46-69(b), Alabama Code 1975, the contest of the election was required to be commenced within five days after the result of the election was declared. The Supreme Court of Alabama concluded that the five days began to run from August 23, 1988. It reversed the judgment of the circuit court declaring in favor of Gibson and remanded the cause in order for the circuit court to declare the five-day time limit for Gibson to have expired, confirming Sears as the winner of the election. The supreme court stated that canvassing the returns was a ministerial act and that the canvassers are controlled *553 by the returns of the inspectors and have no power to go behind them or inquire into fraud or irregularity. According to the supreme court, the canvassers must add together the number of votes each candidate received in the several voting precincts, according to the certificates of the inspectors, and declare the results. They are subject to mandamus to compel a performance when necessary.
"Similarly, in Reed v. City of Montgomery, supra, an election was scheduled on the issue whether certain unincorporated areas were to be annexed by the City of Montgomery. After the election, the certification of the results was held up because after delivery to the Judge of Probate of the original statement of canvass showing a narrow vote in favor of annexation, the Chief Inspector of Precinct 38 informed the Judge of Probate that a mistake had been made in tabulating the final vote.
"In this case, the City of Montgomery filed a petition for writ of certiorari, mandamus and for other extraordinary writs in the circuit court seeking an order directing the Judge of Probate to certify the election results according to the results of the original statement of canvass. The supreme court held that the proceeding was not an election contest but merely an action to require the reporting of the results of the election. The supreme court stated that canvassing the returns of an election was a ministerial act and that the canvassers are controlled by the returns of the inspectors and have no power to go behind them or inquire into fraud or irregularity but must add together the number of votes each candidate received according to the certificates of the inspectors and declare the results.
"Neither of these two cases involves the contest of an election contemplated by § 17-15-1 et seq., Alabama Code 1975.
"In Osborne v. Banks, supra, Richard Osborne and Ralph Banks were candidates for district judge of Greene County in the Democratic Primary held September 7, 1982. Osborne was the winner and was certified as the nominee of the Democratic Party for that office. There were no other candidates. On October 12, 1982, Banks learned that Osborne had been convicted of larceny in the Municipal Court of Montgomery in 1969, when Osborne was twenty-one years old. On October 28, 1982, Banks' son, Ralph Banks, III, filed suit as a voter and taxpayer and resident citizen of Greene County seeking preliminary injunction and declaratory relief. A temporary restraining order was later granted when no service was obtained on Osborne. The temporary restraining order restrained the members of the Board of Supervisors of Greene County for the November 2, 1982, general election and also restrained the members of the Board of Registrars of Greene County from certifying election results for the office of district judge pending a hearing on the merits.
"After a hearing on the merits, the trial judge on November 19, 1982, concluded that Osborne was ineligible to hold office by reason of his conviction [of the] crime of petty larceny. A conditional writ of mandamus was issued by the circuit judge. The Board of Supervisors then certified that Banks received 626 write-in votes and on December 20, 1982, proclaimed Banks elected to the Office of District Judge for Greene County.
"Affirming the trial court, the Supreme Court of Alabama concluded that Osborne was disqualified from holding the Office of District Judge as a result of his conviction for the crime of petty larceny. Referring to § 36-2-1, Alabama Code 1975, setting out the various grounds which would render a candidate ineligible to and disqualified from holding office, the supreme court concluded that a person convicted of larceny, whether grand or petty, is disqualified by reason of § 36-2-1. It is implicit in the supreme court decision in Osborne v. Banks that the twenty-day statute of limitations set out in § 17-15-22 is not applicable where a challenge is made of a person's eligibility to hold office on grounds set out in § 36-2-1.
"However, the decision in Osborne v. Banks does not mean that the twenty-day statute of limitations set out in § 17-15-22 does not still have a field of operation. *554 While the legislature repealed the Corrupt Practices Act (§ 17-22-1 through § 17-22-15)... when it enacted the Fair Campaign Practices Act (§ 17-22A-1 through § 17-22A-23), the legislature did not amend § 17-15-22, the twenty-day statute of limitations provision. If it was intended that a different statute of limitations should apply to violations of the Fair Campaign Practices Act, the legislature could have included such a provision in the Act itself or could have expressly provided that § 17-15-22 would not apply where an election result was challenged on grounds that there was a failure to comply with the Fair Campaign Practices Act.
"Section 17-15-22 was first enacted as a part of the 1896 Alabama Code. It appears that the legislature recognized approximately ninety-four years ago that it was important to have questions involved in an election put to rest within a very short time. Otherwise, if attacks could be made on an elected official's right to hold office at any time while he remained in office, the result would be to destabilize the wheels of government. No officeholder could ever feel secure in his office, and many persons might be discouraged from ever qualifying for election to public office. Section 17-15-22 says in effect that a challenge of the qualification procedure or election procedure or the election itself must be made within twenty days of the date of the election or the challenge is barred.
"Counsel for Davis has also cited the decision of the Supreme Court of Alabama in Megginson v. Turner, 565 So. 2d 247 (Ala.1990). In that case, Megginson had qualified for election as the nominee of the Democratic Party for election to the House of Representatives from District 102. On the challenge of his election as the Democratic nominee, the trial court found that Megginson had filed his statement naming his principal campaign committee more than five days after he filed his announcement and declaration of candidacy and therefore was in violation of § 17-22A-4. The trial court concluded that Megginson's name could not appear on the ballot for the general election because of his violation of § 17-22A-4. On appeal, the supreme court affirmed. However, the question of the applicability of § 17-15-22 (the twenty-day statute of limitations period) was not raised.
"Similarly, in David Barnes v. Perry A. Hand, Case No. CV 90-779-PA, in the Circuit Court for the Fifteenth Judicial Circuit of Alabama, David Barnes was a candidate for [a] seat in the House of Representatives of the Alabama Legislature. He failed to timely file his financial disclosure forms. For example, his purported disclosure for the primary election was filed four days too soon and failed to reflect a significant financial contribution received one day after the filing. His disclosure for the run-off was filed more than a month late. His disclosure for the general election was not filed until two days after that election. Although Barnes received a majority of the votes cast, the Secretary of State determined that Barnes had failed to file his pre-election financial disclosure reports before the Special General Election and refused to issue a certificate of election because of his violation of the Fair Campaign Practices Act. Here again, the applicability of § 17-15-22 (the twenty-day statute of limitations) was not raised or discussed.
"This Court therefore concludes that the present challenge made by Reuben Davis is barred because his challenge was not brought within twenty days after the results of the election of Jeff Germany were declared as required by § 17-15-22, Alabama Code 1975.
"Counsel for the Election Commission also argues that the duties of the Election Commission are purely ministerial and confined to mere computation. Counsel cites a number of cases holding that the supervisors are clothed with no power to hear and determine complaints of the illegal registration or illegal voting; that the Election Commission are canvassers controlled by *555 the returns of the inspectors and have no power to go behind them or inquire into fraud or irregularity. The Supreme Court of Alabama has so held. See, e.g., Sears v. Carson, 551 So. 2d 1054 (Ala.1989); Reed v. City of Montgomery, 376 So. 2d 708 (Ala. 1979).
"Alternatively, this Court concludes that the Election Commission has no authority itself to refuse to certify a candidate elected to office on the ground that such candidate failed to comply with particular provisions of the Fair Campaign Practices Act.
"This Court finds it unnecessary to consider other grounds asserted by Germany in view of its decision that Reuben Davis' challenge is barred by § 17-15-22.
"In accordance with this opinion, it is hereby declared by the Court that Jeff Germany is the certified winner of the election for Jefferson County Commissioner, District 1.
"Jeff Germany also asks for an injunction enjoining the Election Commissioners from revoking his certificate of election. Such is unnecessary in view of the position of the Election Commissioners that they have no power to revoke Germany's certificate of election in any event.
"Each party shall bear his or their own costs. This order concludes all matters at issue in this case.
"Done this 11th day of January, 1991.
"/s/ Marvin Cherner
"CIRCUIT JUDGE"
The Fair Campaign Practices Act was enacted by the Legislature in 1988. Its primary laudable purpose was to require candidates for public office in Alabama to disclose campaign contributions and expenditures prior to elections. It repealed parts of the Corrupt Practices Act, § 17-22-1 et seq., which required disclosure only after the election. To accomplish this purpose, the legislature included sanctions for violation of the statute. For a failure to file a statement required by the statute prior to the election, § 17-22A-21 provides the harshest penalty of all:
Thus, any candidate who fails to file a statement that is required to be filed by the Fair Campaign Practices Act, prior to the election for the purpose of informing the voting public of the sources of his contributions and the subject of his expenditures, shall forfeit the election.
For the candidate who does not fail to file a statement before the election, but who files such a statement late, § 17-22A-22(b) prescribes and applies punishment in the form of a criminal penalty.
These two distinct sanctions, forfeiture of the election for those candidates who fail to file the disclosure statements required by the statute prior to the election, and criminal fines for candidates who file such disclosure statements prior to the election but not within the time prescribed by the statute, carry out the legislative intent of full disclosure before the election; but these sanctions do not require a candidate who discloses his contributions and expenditures before the election (but not within the time provided by the statute) to forfeit the election. That sanction is too harsh to visit upon a candidate who has not failed to file the statements required, but has merely filed them late. After all, this candidate is the candidate chosen by the people as their representative, even though his disclosure statement was filed untimely. The people's choice should prevail even if the candidate is in violation of the time constraints of the statute, if he files his disclosure statements prior to the election.
A fair reading of the Fair Campaign Practices Act leads one inescapably to the conclusion that the Legislature made a clear distinction between penalties that would apply to those candidates who fail to file disclosure statements and those candidates who merely file them late. It is not surprising that it did so. It was designed to differ from the Corrupt Practices Act, which provided only the harsh sanction of removal of the candidate's name from the *556 ballot.[3] The purpose of the Fair Campaign Practices Act is to aid the voting public in choosing its state and county officials. Its purpose is not to deny the voting public its choice of representative, even if he or she has failed to meet a statutory deadline for filing disclosure statements, so long as he or she nevertheless has filed the statements prior to the election.
The penal provisions of the Fair Campaign Practices Act have been addressed by this Court in only one case. In Megginson v. Turner, 565 So. 2d 247 (Ala. 1990), this Court affirmed a trial court's ruling that Megginson could not be certified as the Democratic nominee because he had filed his statement naming his principal campaign committee more than five days after his announcement and declaration of candidacy. Megginson cited Jones v. Phillips, 279 Ala. 354, 185 So. 2d 378 (1966); Owens v. Heartsill, 279 Ala. 359, 185 So. 2d 382 (1966); Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967), and Kirksey v. Democratic Party of Alabama, 495 So. 2d 638 (Ala.1986), as authority for its holding. However, those cited cases were decided under the Corrupt Practices Act, which did not provide the separate sanctions that the Fair Campaign Practices Act provides.
All candidates are, of course, subject to the five-day requirements of § 17-22A-4. If one fails to file a statement required by that section before the election, § 17-22A-21 applies the sanction: forfeiture of the election. If one files the statement required by § 17-22A-4 before the election, but not within the five days required by that section, § 17-22A-22(b) applies. To the extent that Megginson v. Turner, supra, holds to the contrary, it is overruled.
The Fair Campaign Practices Act marks a new day in Alabama campaign practices. It requires full and complete disclosure by all candidates for public office of the sources of all contributions and the subject of all expenditures. It requires this disclosure prior to the election. If it is not made before the election, the candidate may not be certified to the office if he wins the election, § 17-22A-21. It requires this disclosure shortly after one becomes a candidate. If it is not made within the time required, but before the election, the candidate is subject to the penalties provided by § 17-22A-22(b). Its purpose is to inform the voting public of the source of a candidate's financial support. This purpose is served by the sanctions provided for in the Act. This Court has no authority to enlarge the sanctions provided for in the legislation itself.
For the reasons stated above, the judgment of the trial court is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX and HOUSTON, JJ., concur in part and dissent in part.
MADDOX, Justice (concurring in part; dissenting in part).
When the legislature adopted the Fair Campaign Practices Act of 1988 ("FCPA") and repealed the Corrupt Practices Act (Chapter 22 of Title 17 of the Code of Alabama 1975), it intended to strengthen the laws relating to the reporting of campaign contributions. Although I concur in that part of the opinion holding that the action here is an "election contest," I cannot agree with the remainder of the opinion. The majority's interpretation of the Act, I believe, rewrites the plain words of the Act governing the reporting of campaign contributions. Consequently, I must respectfully dissent from that portion of the opinion.[4]
At first, I was of the opinion that the action filed here to seek revocation of a certificate of election was not an "election contest," and at first I thought that this action was not governed by the provisions *557 of Ala. Code 1975, § 17-15-22 (providing that a contest must be filed within 20 days "after the result of the election is declared,"), but after further study I have concluded that the legislature probably intended to place a 20-day limit upon actions seeking to have a certificate of election revoked. Consequently, I concur in the holding that the 20-day provision of § 17-15-22 applies.
I cannot agree with that portion of the opinion interpreting the reporting requirements of the new FCPA. I believe that the legislature, in passing the FCPA, intended to completely change the method of reporting campaign contributions and to correct an evil that had previously been permitted. Under the old law, a candidate could receive contributions, without reporting them, until he or she filed an official declaration of candidacy. As I read the FCPA, that is no longer permitted. I believe that the new FCPA makes a person a "candidate" when certain levels of contributions are received, or expenditures are made (§ 17-22A-2), whether the candidate has filed an official declaration of candidacy or not. That is precisely what Germany failed to do here. He was a "candidate," as a matter of law, before he filed his official declaration of candidacy.
Under the old Corrupt Practices Act, which was repealed by the FCPA, a "person" was not considered a "candidate" until an official declaration was filed. Under that law, a person could wait until the last day for qualifying to officially declare his candidacy and by doing so could receive substantial contributions without having to appoint a campaign committee or to report those contributions. Now, there are strict reporting procedures set out in the law. Ala. Code 1975, § 17-22A-8(a)(1).
The requirements of law regulating so-called "corrupt practices" in political elections have been strictly enforced. They were enforced against a candidate for the state senate who failed to file required forms with a probate judge, as required by law. Jones v. Phillips, 279 Ala. 354, 185 So. 2d 378 (1966). They were enforced against a candidate for the state legislature who failed to file required forms with the probate judge. Owens v. Heartsill, 279 Ala. 359, 185 So. 2d 382 (1966). They were enforced against a member of a black political party (Greene County Freedom Organization), because, as was the case here, a candidate did not comply with statutory requirements by filing a statement declaring the name of the committee to receive and disburse campaign funds. Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967). They were enforced against a Democratic candidate for the State Board of Education who failed to file with the secretary of state the required statement regarding the appointment of his finance committee. Kirksey v. Democratic Party of Alabama, 495 So. 2d 638 (Ala.1986). They were enforced just last year in Megginson v. Turner, 565 So. 2d 247 (Ala.1990), when this Court was faced with the identical legal question presented here, involving the identical statutes that are involved here. In Megginson, this Court stated that the provisions of § 17-22A-4 were "mandatory,"[5] and I can see no reason why that holding in Megginson, supported by substantial authority, should not be applied here.
*558 The FCPA defines a "candidate" and compels a candidate to disclose his or her financial contributions, whether an official declaration of candidacy has been filed or not. The Act defines a "candidate" as follows:
§ 17-22A-2. Because of the plain words of this statute, Germany was a "candidate" when he received contributions of more than $1,000. Under the provisions of the Act, Germany should have filed his declaration for candidacy at the time he reached the $1,000 threshold of campaign contributions for his election to the office of district one commissioner.[6] The law does not permit a candidate to determine when he or she becomes a "candidate." The law specifically states when that event occurs, and when it does the filing requirements are thereby triggered. A failure to comply with those mandatory requirements of the law has previously resulted in severe sanctions. Megginson, Kirksey, Herndon, Owens, and Jones, supra. In Megginson, this Court clearly declared that because Megginson had failed to comply with the filing requirements of the FCPA he could not be the Democratic nominee.[7] The majority recognizes that Megginson is direct authority, but now overrules Megginson. The reasoning in Megginson is sound. Megginson is not wrong.[8]
In holding that "[t]o the extent that Megginson v. Turner, ... holds to the contrary, it is overruled," the majority has changed the law. The Court takes a step backward, rather than a step forward, thereby frustrating legislative intent rather than fostering it.
The majority shows this frustration of legislative intent when it construes the requirements of § 17-22A-21 as follows:
Opinion at 556. I believe that this holding by the Court misconstrues legislative intent. In my opinion, any elector can file an election contest to challenge the eligibility of any candidate to be certified as the nominee or the person elected at a general *559 election, provided that challenge is timely filed. I also believe that a willful failure of a candidate to comply with the provisions of the FCPA could result in a criminal prosecution under § 17-22A-22. In fact, I think a quo warranto action might be an appropriate remedy if such an action is commenced as provided by law. Ala. Code 1975, § 6-6-591.
What is especially disturbing about the majority's opinion is that it states that insofar as an election contest is concerned, it makes no difference when a candidate files the required forms regarding the naming of a principal campaign committee so long as the required papers are filed "before the election." The interpretation placed on the FCPA by the majority opinion could completely frustrate the very purpose of the FCPA to require "candidates" to file and report as soon as they became candidates. Ala.Code 1975, § 17-22A-8. This Court is without authority to vary those terms. The majority's attempt to distinguish the decisions in Jones, Owens, Herndon, and Kirksey on the ground that "the Corrupt Practices Act ... did not provide the separate sanctions that the Fair Campaign Practices Act provides" seems to be based on a misconstruction of the Corrupt Practices Act. The Corrupt Practices Act provided for sanctions.[9]
This is the second time the candidate here has escaped the sanctions imposed by the FCPA. He escaped its sanctions in the primary election when this Court said it lacked jurisdiction.[10] He now escapes sanctions once again in the general election.
In the past, this Court has strictly applied the provisions of law against candidates for the state legislature and the state board of education, and I believe that the Court should apply the sanctions of the FCPA here. The provisions of the FCPA should be strictly applied, because its provisions are mandatory. Megginson, supra.
Had this challenge been filed within 20 days after the Commission certified Germany as the winner of the general election, I would hold that the Commission unlawfully issued Germany's certificate of nomination, and that it should have been revoked. Section 17-22A-21 states that a "certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this chapter shall be revoked." Admittedly, this penalty set by the legislature is harsh, but the penalties applied in Jones, Owens, Herndon, Kirksey, and Megginson were also harsh. Based upon the foregoing, I disagree with those portions of the majority opinion interpreting the filing requirements and the sanction provisions of the FCPA. Had the challenge here been timely filed, I believe that the Commission would have had statutory authority to revoke Germany's unlawfully issued certificate; therefore, I respectfully dissent as to those portions of the opinion.
HOUSTON, J., concurs.
[1] Alabama Code 1975, § 17-22A-4 ("Candidate to file statement showing principal campaign committee; candidate acting as own committee; duties and procedures; expenditures by candidate").
[2] Alabama Code 1975, § 17-14-2, provides that immediately after ascertaining the results of an election for county officers, the board of supervisors must make, in writing, a public declaration of the result and file an original certificate with the judge of probate. In Jefferson County, the "board of supervisors" is commonly known as the Jefferson County Election Commission, and it is composed of the judge of probate, the sheriff, and the clerk of the circuit court.
[3] §§ 17-22-5 and -6.
[4] Because the majority decides that the action was not timely filed, the portions of the opinion interpreting the provisions of the Fair Campaign Practices Act could be obiter dicta, but because the majority addresses the legal question, I also address it.
[5] In Megginson, the Court stated that, "[a]fter studying the record and the briefs of counsel and amicus curiae, [it concluded] that the trial court's ruling removing Megginson as a candidate [was] due to be affirmed, on the authority of the cases cited" in the following written order entered by the trial court:
"[T]he Court finds that Ken Megginson filed his statement naming his principal campaign committee more than five days after he filed his announcement and declaration of candidacy, contrary to the requirements of Section 17-22A-4 of the Code of Alabama requiring that the statement be filed within five days. The provisions of Section 17-22A-4 are mandatory. Since Ken Megginson failed to comply, [he] may not be certified as the nominee of the Democratic Party for House District 102 and his name may not appear on the ballot for the general election. Section 17-22A-4 of the Code of Alabama, Kirksey v. Democratic Party of Alabama, 495 So. 2d 638 (Ala.1986); Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967); Owens v. Heartsill, 279 Ala. 359, 185 So. 2d 382 (1966); Jones v. Phillips, 279 Ala. 354, 185 So. 2d 378 (1966)."
565 So. 2d at 248.
[6] Germany's April 20, 1990, summary of contributions reflects that he had raised over $1,000 toward his candidacy for county commission sometime prior to his official declaration of candidacy on April 4, 1990.
[7] I agreed with the majority in Megginson that the provisions of the FCPA were mandatory, but I did not agree that the Democratic Party, having failed to have a candidate nominated in the primary election, could fill the so-called "vacancy." See, Megginson, 565 So. 2d at 249 (Maddox, J., dissenting).
[8] The opinion in Megginson does not show whether Megginson filed the required statement before the election, but the record in Megginson on file in this Court specifically shows that Megginson filed his declaration of candidacy with the secretary of state on April 6, 1990, but that he did not file the statement naming his principal campaign committee until April 17, 1990. The primary election was held on June 5, 1990. Megginson was unopposed in the Democratic primary. Consequently, the basic facts of Megginson are not different from the facts here and in the other cases cited in Megginson.
[9] Section 17-22-12 stated that a "certificate of election shall not issue" to a candidate who failed to file a statutorily required statement, and § 17-22-15 provided for criminal sanctions. Consequently, it appears to me that the sanctions in both the repealed Act and the new Act are basically the same.
[10] In Dunning v. Reynolds, 570 So. 2d 668 (Ala. 1990), this Court affirmed a trial court's dismissal of the complaint because it lacked jurisdiction. That decision was, of course, wrong. See Dunning, 570 So. 2d 668, 669 (Maddox, J. dissenting). On this appeal, Davis argues that a penalty imposed upon him by the party could not preempt the authority and duty of the Commission to impose sanctions for violation of the FCPA; a candidate who has been unlawfully issued a certificate of election cannot circumvent the clear intent of the law by asserting that a political party's fine substitutes for the penalties established by the legislature. As I said in my dissent in the Dunning case, "To vest in a political party the absolute power to enforce the sanctions, in my opinion, fails to carry out legislative intent." 570 So. 2d 668, 671. | December 20, 1991 |
37b9668a-1cc4-47d5-9c92-a25f2c0827cd | Ex Parte Ivey | 698 So. 2d 187 | 1950740 | Alabama | Alabama Supreme Court | 698 So. 2d 187 (1997)
Ex parte Homer Eugene IVEY.
(In re Homer Eugene Ivey v. State).
1950740.
Supreme Court of Alabama.
June 13, 1997.
Allen R. Stoner of McPhillips, Shinbaum, Gill & Stoner, Montgomery, for Petitioner.
Bill Pryor, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for Respondent.
ALMON, Justice.
Homer Eugene Ivey petitioned for certiorari review of the judgment of the Court of Criminal Appeals upholding his conviction for aggravated stalking, Ala.Code 1975, § 13A-6-91. See Ivey v. State, 698 So. 2d 179 (Ala. Crim.App.1995). This Court granted the petition, to consider Ivey's argument that his conviction violates the constitutional protections against twice being placed in jeopardy for the same offense, U.S. Const. Amend. V; Ala. Const.1901, art. I, § 9. Ivey was earlier held in contempt of court for the conduct that is the basis for this prosecution. This certiorari petition requires us to consider for the first time the circumstances under which, under the rule of United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), the Double Jeopardy Clause bars *188 prosecution of a defendant for a substantive crime that formed the basis for finding the defendant in criminal contempt.
While Ivey and his wife were involved in divorce proceedings, the circuit court issued a temporary restraining order (TRO), on May 12, 1993. It provided, in pertinent part:
The class B felony of "aggravated stalking" is defined in Ala.Code 1975, § 13A-6-91(a):
Section 13A-6-90(a) defines the crime of "stalking":
On June 11, 1993, the court hearing the divorce action entered a judgment finding Ivey in criminal contempt of court for having violated the terms of the above-quoted TRO:
This was "criminal contempt" because it was imposed as punishment, rather than to induce Ivey to perform some act. State v. Thomas, 550 So. 2d 1067, 1072 (Ala.1989); Ex parte Abercrombie, 277 Ala. 479, 482, 172 So. 2d 43 (1965).
However, under the Alabama Criminal Code, this contempt is only an "offense," § 13A-1-2(1), not a "crime," § 13A-1-2(5). The maximum sentence the circuit court can impose for criminal contempt is 5 days in jail and a $100 fine. Ala.Code 1975, § 12-11-30(5). An offense that may be punished only for 30 or fewer days in jail is a "violation," § 13A-1-2(2). Only misdemeanors and felonies (not violations) are crimes. § 13A-1-2(5). Therefore, under our statutes, criminal contempt is a violation, and is merely an offense, not a crime.
This Court held in Ex parte Evett, 264 Ala. 675, 89 So. 2d 88 (1956), that criminal contempt was not an "act `declared criminal,'" within the meaning of Ala.Code of 1940, Tit. 15, § 287 (now Ala.Code 1975, § 15-3-8), which prohibited multiple punishments or successive prosecutions under the circumstances stated therein. 264 Ala. at 679, 89 So. 2d at 91. The Evett court further held that "[a] conviction on an indictment will not purge a contempt, nor [will] a conviction for a contempt be a bar to an indictment." Id. 264 Ala. at 679, 89 So. 2d at 91; Ex parte Morehead, 281 Ala. 71, 199 So. 2d 82 (1967). See also International Brotherhood of Electrical Workers, Local 136 v. Davis Constructors & Engineers, Inc., 334 So. 2d 892 (Ala.1976).
Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968), held that the right of jury trial applies to serious contempts, just as it applies to other serious criminal charges. United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), relying largely on Bloom, applied the Double Jeopardy Clause to criminal contempts, but Dixon had been sentenced to 180 days in jail and Foster (whose appeal was addressed along with Dixon's) had been sentenced to a total of 600 days in jail. Thus, the Court did not address the possibility of not applying the Double Jeopardy Clause to minor contempts.
*189 Because the United States Supreme Court has held that jeopardy attaches in criminal contempt proceedings, but has so held only in cases in which significant punishment is available or has been imposed; because our statutes make criminal contempt only a "violation," not a "crime," and allow the circuit court to impose no more than a 5-day jail sentence and a $100 fine as punishment; and because our cases have held that contempt is not a crime as to which jeopardy attaches for purposes of the Double Jeopardy Clause, we hold that the Court of Criminal Appeals reached the correct result in affirming Ivey's conviction for aggravated stalking.
AFFIRMED.
MADDOX, SHORES, HOUSTON, KENNEDY, COOK, BUTTS, and SEE, JJ., concur.
HOOPER, C.J., concurs in the result. | June 13, 1997 |
6a12e62b-1c4b-43ab-9426-42f7f37ffea8 | Patterson v. COMMONWEALTH NAT. BANK | 591 So. 2d 73 | 1901632 | Alabama | Alabama Supreme Court | 591 So. 2d 73 (1991)
Ronald E. PATTERSON
v.
COMMONWEALTH NATIONAL BANK and Nettie M. Stewart.
1901632.
Supreme Court of Alabama.
December 6, 1991.
Chandler Kite Stanard, Mobile, for appellant.
Palmer C. Hamilton and Lester M. Bridgeman of Miller, Hamilton, Snider & Odom, Mobile, for appellees.
ADAMS, Justice.
The plaintiff, Ronald E. Patterson, appeals from a summary judgment entered in favor of the defendants, Commonwealth National Bank and the chairman of its board of directors, Nettie M. Stewart. Patterson alleged that the bank breached his *74 employment contract, and that Nettie M. Stewart was guilty of intentional interference with business or contractual relations and/or fraud with regard to Patterson's termination as a bank employee. We affirm.
Patterson held the position of president of Commonwealth National Bank, pursuant to a three-year contract that ended on May 17, 1990. He was also a director of the bank. On May 10, 1990, the board extended the contract for one additional year. In October 1990, a meeting of the board of directors was called and notice thereof was sent to all directors, except Patterson. At the meeting, the board voted to terminate the employment of Patterson, and he was notified of that decision by Nettie M. Stewart. Stewart thereafter reported Patterson's dismissal at a subsequent board meeting, according to affidavits submitted by the defendants in support of their motion for summary judgment.
A national bank has the power:
12 U.S.C. § 24. Patterson does not seem to dispute the effect of 12 U.S.C. § 24, which would have the effect of changing his contract of employment to one of employment-at-will; however, he contends that 12 U.S.C. § 24 never came into effect under the facts of this case, because he was not terminated by the bank. He argues, instead, that he was terminated by a meeting of the board of directors that he says was void because one of the directors, namely Patterson himself, did not receive notice of the meeting pursuant to the by-laws. Therefore, he contends that the meeting terminating his employment was ultra vires and that he can now pursue claims alleging breach of contract, intentional interference with business or contractual relations, and fraud.
Despite Patterson's arguments, even if the board's actions were ultra vires (and we do not necessarily think that they were), the affidavits of the board members confirm that the board received a report that Patterson had been informed of his termination and basically ratified the dismissal at a subsequent board meeting, which was not attended by Patterson.
We find no error in the trial court's entering the summary judgment, and, therefore, we affirm.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | December 6, 1991 |
868e6a5b-f681-4eae-9a71-641b2cd2812c | Baptist Memorial Hosp. v. Bowen | 591 So. 2d 74 | 1900812 | Alabama | Alabama Supreme Court | 591 So. 2d 74 (1991)
BAPTIST MEMORIAL HOSPITAL
v.
Terry Lee BOWEN.
1900812.
Supreme Court of Alabama.
December 6, 1991.
*75 Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellant.
Douglas Burns and Stewart Burns of Burns, Burns & Burns, Gadsden, and Carl Robinson, Bessemer, for appellee.
MADDOX, Justice.
The issue presented by this case is whether the trial court erred in denying the defendant's motion for JNOV, or, in the alternative, for a new trial, where the court's judgment was based upon a jury verdict that the defendant alleges was inconsistent with the legal theories advanced by the plaintiff at trial. Because the verdict form used was a general one, and because there was evidence adduced from which the jury could have found liability based on one of the legal theories advanced by the plaintiff in his complaint, we affirm the judgment of the trial court.
Viewing the evidence in the light most favorable to the plaintiff, the jury could have found the following facts: In May 1987, Terry Bowen became ill. Because resting at home failed to help, Bowen's wife took him to the emergency room at Baptist Memorial Hospital ("Baptist") in Gadsden on May 12, 1987. Initially, Bowen was examined by Dr. Walter Conner. Dr. Conner, however, was called away and a Dr. Reiland completed Bowen's exam. *76 Drs. Conner and Reiland consulted upon Conner's return, and they diagnosed Bowen as having bronchitis. An antibiotic was prescribed and Bowen was sent home.
Two days later, on May 14, 1987, Bowen was no better. He returned to Baptist's emergency room and was admitted into the hospital for a preliminary examination. After a portion of this preliminary exam was completed, and after various tests were ordered, Dr. Shannon, the examining physician, was called away. There was evidence that Bowen was in excruciating pain and that he cried for a doctor. Another hospital employee checked on Bowen. Bowen showed this employee his May 12 prescription bottles and begged the employee for a doctor. The employee told Bowen that he would have to remain quiet and wait. Bowen became somewhat abusive, and an employee told him that he should leave the hospital if he did not like how it was run. It seems that hospital employees may have also made other belittling or derogatory remarks to Bowen. Bowen threw a styrofoam cup of ice he had in his hand against one of the examination room partitions. He then slid off the bed on which he was lying and began to leave the hospital. Bowen collapsed as he walked down the corridor. His wife assisted him to their automobile, and drove him to another Gadsden hospital. Bowen was later diagnosed as having spinal meningitis.
Bowen sued Baptist and Drs. Reiland, Conner, and Shannon, alleging that they had negligently misdiagnosed or failed to diagnose his spinal meningitis, and also alleging that they had constructively forced him to leave the hospital or had constructively abandoned him without warning him of the possible dangers of his leaving the hospital, and that they had acted negligently in doing so. Liability against Baptist, under both theories, was bottomed on the employer-employee relationship between the doctors and the hospital staff and Baptist. It was undisputed that Drs. Reiland, Conner, and Shannon were all paid employees of Baptist. At the time of the incident they were all interns paid to work in the emergency room.
After Bowen presented his case-in-chief, the court directed a verdict for Dr. Shannon, holding that he had no duty to diagnose because he had had too little time and information for a proper diagnosis. The case went to the jury against Dr. Reiland and Dr. Conner, and Baptist. The jury returned a verdict for Bowen against Baptist alone for $450,000. Baptist made a post-trial motion for JNOV, or, in the alternative, for a new trial or for a remittitur. After hearing arguments and reading the submissions, the court denied Baptist's motion. Baptist appealed.
Baptist argues on appeal that the trial court erred by denying its post-trial motion because the verdict form submitted to the jury, and a clarifying instruction given by the court, allowed the jury to render a verdict inconsistent with the legal theories espoused by Bowen at trial. Additionally or alternatively, Baptist contends that Bowen failed to substantiate his allegations of negligence.[1] We are unpersuaded by either argument, especially given our standard of review and the fact that the jury verdict was general rather than specific.
Initially, we note that we are dealing with a judgment rendered on a jury verdict. Jury verdicts, in Alabama, are presumed correct. Cloverleaf Plaza, Inc. v. Cooper & Co., 565 So. 2d 1147, 1149 (Ala.1990). Further, "[u]pon the denial of a post-judgment motion for a new trial, this presumption is strengthened, `and [a verdict] will not be set aside unless so contrary to the evidence as to convince this court that it is wrong and unjust.'" Id. Stated differently, this court will not reverse a judgment based on a jury verdict, unless the evidence, when viewed in a light *77 most favorable to the nonmovant, "is so preponderant against the verdict as to clearly indicate that it was plainly and palpably wrong and unjust." Christiansen v. Hall, 567 So. 2d 1338, 1341 (Ala.1990) (emphasis added).
A motion for JNOV is properly granted only when: 1) there is either (a) a complete absence of proof on a material issue of fact or (b) no factual controversy upon which reasonable people could differ; and 2) the movant is entitled to a judgment as a matter of law. Deaton, Inc. v. Burroughs, 456 So. 2d 771, 773 (Ala.1984). Furthermore, all reasonable inferences must be considered in a light most favorable to the nonmovant. Id.
Denying, and, to a more limited extent, granting, a motion for new trial is within the sound discretion of the trial court. See, Jawad v. Granade, 497 So. 2d 471, 477 (Ala.1986). Such a "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." McDowell v. Key, 557 So. 2d 1243, 1246 (Ala.1990).
In view of these standards, it would be most difficult for us to reverse the trial court's judgment, as Baptist asks us to do. From a review of the evidence presented, we cannot say that the trial court erred in denying Baptist's post-trial motion. We discuss Baptist's specific contentions of error more fully below.
After the jury had been charged and had deliberated for a time in the jury room, the jury submitted a written request for clarification. A short discussion, on the record, ensued between the jury and the court. The court then instructed the jury:
(Emphasis added.) Baptist argues that this instruction was improper because, Baptist says, it was inconsistent with any legal theory relied upon, or evidence adduced, by the plaintiff at trial. We cannot agree.
Bowen pleaded the negligence of the abusive hospital employees, as well as the doctors, in his complaint. Specifically, paragraphs six and seven of Bowen's complaint states:
Further, at trial Bowen substantiated not only the events as pleaded, but also that such actions were a breach of the hospital's applicable standard of care which directly aided in causing his injuries. Specifically, Dr. Arthur Pedersen, the plaintiff's medical expert, testified that for the hospital staff to ask Bowen to leave without informing him of the dangers inherent in that action was a breach of the standard of care observed by the national health care community. Dr. Pascal Herrera, another medical expert testifying for the plaintiff, attested to causation and damages by stating, in essence, that any delay in treatment worsened Bowen's condition and caused irreparable damage.
Baptist also argues that the court's giving of the clarifying instruction was error because no written jury instructions were given to cover the principle enunciated in the clarifying instruction. It is true that each party is entitled to proper jury instructions, Nunn v. Whitworth, 545 So. 2d 766, 767 (Ala.1989), but the following is equally true:
Standard Plan, Inc. v. Tucker, 582 So. 2d 1024, 1033 (Ala.1991). The trial court's oral charge, rather than the refused or granted written charges, is pivotal. An oral charge that, when viewed as a whole, adequately covers requested written instructions will survive attack on appellate review. Id. Logically, then, a trial court may refuse requested written charges, and not commit reversible error, as long as the oral charge adequately covers the same principles. Id.
In this case, Bowen asked for several jury instructions that addressed Baptist's potential liability for the May 14 visit. The trial court's refusal of some of these instructions was cured by the clarifying instruction. In short, the clarifying instruction properly placed before the jury the principle necessary for its finding of liability on Baptist's part: an agency relationship between the employees and Baptist. This instruction, along with the other oral instructions on duty, breach, etc., adequately guided the jury, and they support its finding of liability on Baptist's part for what happened during the May 14 visit.
Baptist also contends that the jury verdict form used was erroneous because it allowed the jury to impose liability against Baptist alone when, Baptist argues, no legal theory had been espoused that would allow this, and when, it also argues, insufficient evidence had been presented to support such a finding. We have previously noted that Bowen pleaded and substantiated his theory of "negligence on the part of the abusive employees." Additionally, because the verdict form was "general" rather than "specific" we cannot determine exactly why the jury found against Baptist alone. See, Alabama Hospital Ass'n Trust v. Mutual Assurance Society, 538 So. 2d 1209, 1216 (Ala.1989). Under the evidence, the jury could have found that Baptist's employees (who are not defendants in this action) were negligent; and therefore, based on the doctrine of respondeat superior, could have found against Baptist. Such a finding would be based on the negligence of employees other than the defendants. Because of the general form of the verdict, and our standard of review as to jury verdicts, we find no reversible error here. Id.
Based on the foregoing, we affirm the judgment.[2]
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Baptist states the issues as: 1) was there causation shown between the acts of the hospital employee and Bowen's injuries? 2) is there any evidence of negligence on May 12 apart from the alleged negligence of Drs. Connor and Reiland? 3) was there any evidence of negligence on May 14 apart from the alleged negligence of Dr. Shannon? and 4) was the jury verdict unresponsive to the pleadings, evidence, and jury instructions?
[2] No argument was made on appeal that the verdict was excessive; therefore, that issue is not properly before us. | December 6, 1991 |
6eff9f11-c52f-4023-9473-506faa65b2e8 | Wheeler v. Marvin's, Inc. | 593 So. 2d 61 | 1900818, 1900819 | Alabama | Alabama Supreme Court | 593 So. 2d 61 (1991)
Alan Scott WHEELER and Deborah Wheeler
v.
MARVIN'S, INC.
Alan Scott WHEELER and Deborah Wheeler
v.
PINSON VALLEY MILLWORKS, INC.
1900818, 1900819.
Supreme Court of Alabama.
November 27, 1991.
Rehearing Denied January 24, 1992.
*62 Christopher Lyle McIlwain of Hubbard, Waldrop, Reynolds, Davis & McIlwain, Tuscaloosa, for appellants Alan Scott Wheeler and Deborah Wheeler.
John E. Medaris, Alabaster, for appellee Marvin's, Inc.
Douglas J. Centeno of Schoel, Ogle, Benton, Gentle and Centeno, Birmingham, for appellee Pinson Valley Millworks, Inc.
SHORES, Justice.
These appeals arise from suits brought by materialmen pursuant to Code of Alabama 1975, § 35-11-218, to enforce liens against the "unpaid balance" due by a homeowner under contract.[1] Following nonjury proceedings, the trial court entered judgments for the materialmen. We affirm.
On August 7, 1989, Scott and Deborah Wheeler entered into a contract with Davenport Companies, Inc., Davenport Property, Inc., Davenport Building Company, Inc., and James D. Davenport (all of whom we shall call "Davenport") for the construction of a house on the Wheelers' property in Tuscaloosa, Alabama. The original contract price of the Wheelers' home was $667,000. The Wheelers obtained a loan from Central Bank of the South ("Central Bank") for that amount; a "draw" or construction account was set up to pay approved draws on the loan.
The Wheelers hired Ray Harris as their architect and to oversee the construction project. Davenport hired several subcontractors and materialmen. Among the materialmen were Pinson Valley Millworks, Inc. ("PVM"), which supplied windows, doors, and moldings, and Marvin's, Inc., which supplied various building materials.
Davenport commenced construction in August 1989. On November 17, 1989, the Wheelers were notified that Davenport had gone out of business. On November 20, 1989, the Wheelers assumed the control of the construction of the house. Also on November 20, Marvin's served a lien notice on the Wheelers; on November 27, 1989, Marvin's filed a verified statement of lien in Tuscaloosa County Probate Court for $34,459.71. On November 22, 1989, PVM served on the Wheelers a lien notice; on November 30, 1989, PVM filed a verified statement of lien in Tuscaloosa County Probate Court for $17,217.91. The construction was 46 percent complete when Davenport ceased operation.
On November 24, 1989, the Wheelers completed the fourth application requesting additional money. The Wheelers received $60,000, and these funds were deposited into the construction account. As of November 24, there had been four draws on this account, totalling $304,465.
Marvin's and PVM allege that, notwithstanding the lien notices filed by them, the Wheelers used $35,238.75 of the $60,000 loan to pay certain subcontractors and a materialman for work performed before Davenport ceased operation. The Wheelers claim that in order to continue the construction work as scheduled, they were forced to pay in full some of the debts owing to the subcontractors and a materialman that pre-existed Davenport's termination. Those who were paid out of the $60,000 loan were:
These preferential payments totalled $35,238.75. The house was completed in May 1990, and the final cost was $741,176.
In December 1989, Marvin's and PVM filed complaints in the Circuit Court of Tuscaloosa County, Alabama, against Davenport, Central Bank, and the Wheelers. Both Marvin's and PVM sought to enforce their liens on the Wheelers' property for materials supplied to Davenport for construction of the Wheelers' house.
*63 The two cases were consolidated for trial with suits filed against the Wheelers by two other lien claimants, Kilpatrick Concrete Company ("Kilpatrick") and Barnes Excavating Company ("Barnes"). On November 19 and 20, 1990, a nonjury trial was conducted on all four cases; the trial judge issued his initial judgment in favor of Marvin's and PVM and against Davenport and the Wheelers; in favor of Kilpatrick, and against the Wheelers; and in favor of the Wheelers and against Barnes.
On December 20, 1990, the trial court entered an order setting aside the judgment in favor of Kilpatrick and entered a judgment in favor of the Wheelers and against Kilpatrick. In addition, the court imposed liens against the Wheelers' property based on claims filed by Marvin's and PVM.
The Wheelers filed a motion to amend the judgment and a motion for new trial, and on January 28, 1991, the trial court entered a "Second Amended Judgment and Order On Motion for New Trial," which read as follows:
Where the evidence is presented to the trial court ore tenus, as it was in this case, the trial court determines the weight and credibility of the testimony, and its findings are presumed correct and will not be disturbed on appeal unless the record reveals the evidence to be plainly and palpably wrong or manifestly unjust. Tibbs v. Anderson, 580 So. 2d 1337, 1339 (Ala.1991); Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538, 543 (Ala.1988).
"Under the `ore tenus rule,' a presumption of correctness accompanies the trial court's judgment when it has made findings of fact based on oral testimony without a jury, and its judgment will not be reversed unless it is shown to be plainly and palpably wrong, considering all of the evidence and all inferences that can be logically drawn from the evidence. King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala.1987); McCrary v. Butler, 540 So. 2d 736 (Ala.1989). The trial court's judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to *64 support the judgment. McCrary v. Butler, supra; Jones v. Jones, 470 So. 2d 1207 (Ala.1985)."
Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 12-13 (Ala.1989).
In establishing a materialman's lien, the owner bears the burden of proving that the expenses from the unpaid balance have been used to complete the construction in accordance with the plans and specifications of the particular job. Justice v. Arab Lumber & Supply, Inc., supra, at 545. The owner may not use the unpaid balance for expenses not contemplated in the original contract. However, this Court has held that in cases where the contractor has abandoned his duties, an owner is permitted to expend the unpaid balance for expenses not so contemplated, provided that the expenditures are for labor and materials that are necessary for the completion of the job according to the original contract. Id. at 544-45.
The Wheelers contend that the trial court used an improper analysis for determining the existence of the unpaid balance. The Wheelers allege that the unpaid balance amounted to $62,355, as opposed to the $61,810.60 found by the trial court. We have carefully examined the record in this case, and we affirm the trial court's finding that the Wheelers failed to carry their burden of proving that all of the expenditures in November 1989 were necessary for the completion of the construction of the house as contemplated in the original contract. The record reflects that the Wheelers made contract changes that increased the construction cost; these expenditures, which totalled $26,571.85, included:
The trial court calculated the unpaid balance by adding the above amount of $26,571.85 to the amount of preferential payments of $35,238.75, for a total of $61,810.60.
The Wheelers also contend that the trial court erred by failing to give them credit for payments made by them to subcontractors and a supplier. We do not agree. The Wheelers' argument assumes that all of the suppliers who performed work or supplied materials would have filed liens if they were not paid. Only if the lien claimant has perfected its lien does Alabama law allow for proration of the lien. Alabama Code 1975, § 35-11-228.
Last, the Wheelers contend that the trial court erred by failing to give the Wheelers credit for payments made for security and architectural services. With regard to the 24-hour security service retained by the Wheelers, Mrs. Wheeler's testimony was directly contradicted by her superintendent's testimony on the issue of the necessity for such services. We therefore affirm the trial court's finding that this 24-hour security service was unnecessary.
The necessity of the architectural services was also contested at the trial. It is undisputed that a replacement architect was hired because the lender required it. We agree with the trial court's finding that the materialmen should not be prejudiced by a requirement of the Wheelers' lender.
For the foregoing reasons, the trial court's judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, STEAGALL and KENNEDY, JJ., concur.
[1] "Unpaid balance" means the "unpaid balance that the owner of the land owes the original contractor; it is not used in the context of referring to the unpaid balance that the original contractor owes the subcontractor or supplier." Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538, 540 (Ala.1988). | November 27, 1991 |
6def9be4-a226-4bb5-989b-95dbadddcf75 | Williams v. Allstate Ins. Co. | 591 So. 2d 38 | 1900439, 1901479 | Alabama | Alabama Supreme Court | 591 So. 2d 38 (1991)
Rance H. WILLIAMS
v.
ALLSTATE INSURANCE COMPANY.
1900439, 1901479.
Supreme Court of Alabama.
November 27, 1991.
*40 Joseph J. Boswell, P.C., Mobile, for appellant.
Mark E. Spear and Mark J. Upton of Richardson, Daniell, Spear & Upton, P.C., Mobile, for appellee.
MADDOX, Justice.
Two major issues are presented for our review in this case between an insured and his insurer: (1) whether the trial court erred in denying a series of motions made by the insured[1] and (2) whether the trial court erred by refusing to give a requested jury instruction. On both points, we find no error; therefore, we affirm the judgment of the trial court.
Rance H. Williams and his wife owned a number of apartments in the Prichard area of Mobile County. On January 21, 1989, at approximately 8:30 p.m., a fire broke out at a duplex apartment owned by them. The duplex was insured by Allstate for $20,000. Several days after the fire, Williams and his wife both made claims to the insurance money. Independent investigators hired by Allstate determined that arson was the cause of the fire. Citing indications that Williams might have set the fire, Allstate denied his claim, but Allstate paid the claim of Williams's wife on the same policy, even though, according to Williams, he and his wife were together at the time of the fire.
In April 1989, Allstate filed a declaratory judgment action against Williams, seeking to have the court determine whether it was liable on the insurance contract. Allstate denied liability, based on an arson defense. Williams counterclaimed, seeking damages based on an alleged breach of contract, and bad faith refusal to pay a claim. After substantial discovery, Williams moved for a summary judgment as to Allstate's declaratory judgment action, and as to his breach of contract claim. Allstate moved for a partial summary judgment as to Williams's bad faith claim. After hearing argument and reading submissions, the trial court denied both Williams's and Allstate's summary judgment motions and the case proceeded to trial.
After Allstate presented its case-in-chief, Williams moved for directed verdicts on Allstate's declaratory judgment action, on his breach of contract claim, and on the question of liability on his bad faith refusal to pay claim. The court denied all of Williams's motions for directed verdicts.
Williams then presented his case to the jury. Both parties submitted written, proposed jury instructions. The judge refused to give Williams's requested instruction number 12. Williams objected, and argues here that the refusal was error.
The case was then submitted to the jury. The jury returned a verdict for Allstate on all claims; the trial court entered a judgment on that verdict and Williams appealed.
Williams filed a series of pre-trial, trial, and post-trial motions to test the sufficiency and weight of Allstate's evidence. We address each motion in turn.
Williams moved for a summary judgment on Allstate's declaratory judgment action and on his breach of contract claim. Williams asserted that: 1) a contract existed, the insurance policy; 2) a destruction of the covered property took place, the fire; 3) a refusal to honor the contract occurred, Allstate's refusal to pay the claim; and 4) Allstate lacked a valid defense to liability under the policy. See, Coleman, Summary Judgment In Alabama: The Nuances of Practice under Rule 56, 20 Cumb.L.Rev. 1, 13 (1989). Williams was asserting, then, that no genuine issue of material fact existed, that he was entitled to a judgment as a matter of law, and that Allstate did not have enough *41 evidence to substantiate its arson defense. Id. See, A.R.Civ.P. Rule 56(c) and Tripp v. Humana, Inc., 474 So. 2d 88 (Ala.1985). Williams's initial burden in regard to his summary judgment motion was carried when he introduced the insurance policy, affidavits concerning the fire, and Allstate's failure to pay the claim. The burden then shifted to Allstate to establish its arson defense by substantial evidence.[2]
A prima facie case of arson can be shown when the insurer introduces evidence that proves: 1) "arson by someone"; 2) "motive by the insured" (Williams); and 3) "unexplained surrounding circumstantial evidence implicating the insured" (Williams). Bush v. Alabama Farm Bureau Mutual Casualty Insurance Co., 576 So. 2d 175 (Ala.1991); Great Southwest Fire Insurance Co. v. Stone, 402 So. 2d 899 (Ala.1981).
Allstate produced evidence at the summary judgment stage that would substantiate its claim of "arson by someone." Specifically, a "cause and origin" investigator found debris samples that, when tested, showed that an accelerant (specifically, gasoline) had been used in one of the duplex apartments. Also, a rather neat, square hole had been cut in the wall connecting the apartments' back bedrooms. Affidavits and depositions show that this hole was probably intended to vent and spread the flames of the fire. We are convinced that Allstate showed the "arson by someone" element.
Allstate also had to show "motive by the insured." Allstate produced affidavits that revealed that the Williamses were in Chapter 11 bankruptcy. Although the Williamses did not attempt to keep the bankruptcy a secret, we are convinced that Allstate met its burden of showing motive by establishing that the Williamses were in financial need.
Finally, Allstate had to show "unexplained surrounding circumstantial evidence implicating the insured." Allstate produced a witness who saw Mr. Williams leave the apartment building a few hours before the fire. Allstate established that gasoline was poured on the apartment's floor, that the apartment's gas line control valve was broken into an "on" position, and that some form of paper was stuffed into the gas line, supposedly to keep the line open. Also, Allstate showed that the apartment was locked at the time of the fire, and that Williams had the only key. Altogether, this can be taken as "unexplained surrounding circumstantial evidence implicating the insured." Therefore, because Allstate substantiated its arson defense, and, thus, rebutted Williams's initial showing, the trial court did not err by denying Williams's motion for summary judgment.
At the close of Allstate's case-in-chief, Williams moved for directed verdicts on Allstate's declaratory judgment action on the insurance policy, on his breach of contract claim, and on his bad faith claim. As noted above, at the summary judgment stage the declaratory judgment action and the breach of contract claim both hinged on whether Allstate substantiated its arson defense. The same was true at the directed verdict stage. Also, the motion for a directed verdict on the bad faith claim, to the extent that the motion was not premature, was tied to the question of contract liability, and thus to the arson defense.
In reviewing a motion for a directed verdict, we must view all the evidence in the light most favorable to the nonmovant, here, Allstate. Adams v. Travelers Ins. Co., 494 So. 2d 401, 403 (Ala.1988); Walker-Waddell Realty, Inc. v. Kresge, 533 So. 2d 573, 575 (Ala.1988); Ex parte Hicks, 537 So. 2d 486, 488 (Ala.1988). Also, we must entertain such reasonable inferences as the jury would be free to draw from the evidence. Walker-Waddell, 533 So.2d at *42 575. Additionally, there is a presumption favoring the denial of a motion for directed verdict. Adams, 494 So. 2d at 403. Finally, we must uphold a denial of a directed verdict, "if, by any interpretation, the evidence can support a conclusion favoring the [nonmovant]," Hicks, 537 So. 2d at 488.
Given these standards, and based upon an examination of Allstate's case-in-chief, and viewing the evidence in a light most favorable to Allstate, we are convinced that Williams was not entitled to a directed verdict. The testimony of Allstate's investigator, the eyewitness who saw Williams leave the apartment just hours before the fire, and Williams's own testimony concerning his bankruptcy all serve to substantiate Allstate's arson defense. Substantiating the arson defense, in turn, entitled Allstate to get to the jury on the declaratory judgment action and the breach of contract claim.
The trial court also allowed the bad faith claim to go to the jury. In light of our holding on the declaratory judgment action and breach of contract claim (i.e., the arson defense), this action was proper. See, National Savings Life Insurance Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982).[3] Thus, the trial court did not err in denying Williams's motions for directed verdict.
After the jury had returned a verdict for Allstate, Williams filed a motion for J.N.O.V. The trial court denied the motion; Williams argues that this denial was reversible error. We disagree.
A motion for J.N.O.V. is merely a reassertion of an earlier motion for a directed verdict. See Alabama Power Co. v. Williams, 570 So. 2d 589 (Ala.1990). All evidence must be viewed in a light most favorable to the nonmovant. Id. For a movant to obtain a J.N.O.V., he must show: 1) either (a) a complete absence of proof on a material issue of fact, or (b) that there exist no controverted questions of fact on which reasonable people could differ; and 2) that he is entitled to a judgment as a matter of law. Deaton, Inc. v. Burroughs, 456 So. 2d 771, 773 (Ala.1984).
Williams failed to show either of the two alternatives in the first prong of the standard. In fact, Williams's entire case on his breach of contract claim was dependent on the jury's believing his contentions as to his whereabouts at the time of the fire, and on its accepting some alternative to arson as the cause of the fire. There clearly was a controverted question of fact for the jury to resolve (i.e., whether the loss was caused by arson) and Allstate clearly presented proof in support of its position on that issue. Therefore, the court properly denied Williams's motion for J.N.O.V.
In addition to the motion for J.N.O.V., Williams also made a motion for a new trial after the jury had returned its verdict. He claimed that the jury verdict was against the great weight and preponderance of the evidence. The court denied his motion; Williams argues that this was error. Based on the applicable standard of review, we cannot agree.
There is a strong presumption of correctness that attaches to a jury verdict in Alabama, if the verdict passes the "sufficiency test" presented by motions for directed verdict and J.N.O.V. Christiansen v. Hall, 567 So. 2d 1338, 1341 (Ala. 1990); Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala.1988). This presumption of correctness is further strengthened by a trial court's denial of a motion for new trial. Christiansen, 567 So. 2d at 1341. Denying, and to a more limited extent *43 granting, a motion for new trial is within the sound discretion of the trial court. See, Jawad v. Granade, 497 So. 2d 471, 477 (Ala. 1986). This Court will not reverse a judgment based on a jury verdict on a sufficiency of the evidence basis unless the evidence, when viewed in a light most favorable to the nonmovant, shows that the verdict was "plainly and palpably wrong and unjust." Christiansen, 567 So. 2d at 1341. Based on our review of the record, we cannot say that the verdict was plainly and palpably wrong or unjust. Therefore, we uphold the trial court's denial of Williams's motion for new trial.
Williams argues that the trial court erred by refusing to give his written requested jury instruction number 12, which stated:
The trial court did instruct the jury that its verdict could not be based on speculation, conjecture, or guess. Williams argues that the court's actual, oral charge did not adequately cover the proposition of law stated in requested charge 12.
We note that the refusal to give a requested written instruction can be error only if the same principles are not substantially covered in the court's oral charge to the jury. A.R.Civ.P. Rule 51; Standard Plan, Inc. v. Tucker, 582 So. 2d 1024, 1033 (Ala.1991). To determine whether the principles were adequately covered, we must look to the oral charge as a whole. Id. Having looked to the oral charge in the record before us, we conclude that the concept stated in the requested instruction was indeed substantially covered by the trial court.
First, the court instructed the jury that its verdict could not be based on speculation, guess, or conjecture. Second, the court instructed the jury on Allstate's burden of proof on its declaratory judgment action. Implicit in the instruction on burden of proof is the notion that Allstate's decision could not be based on mere speculation, conjecture, or guess, but rather had to be based on positive evidence of arson. Third, the court instructed the jury on Allstate's burden of proof in showing the arson defense. Also, implicit in this instruction is the idea that mere conjecture would not suffice to sustain Allstate's decision to question liability on the policy. Because the oral instructions adequately covered the refused written instruction, we find no error in this refusal.
Based on the foregoing, we affirm the judgment of the trial court.
1900439 AFFIRMED.
1901479 AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Each motion will be discussed in turn; as to each, we conclude that the trial court did not err in its ruling.
[2] This Court, construing § 12-21-12, Alabama Code 1975, has defined "substantial evidence" as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
[3] Dutton contains the following pertinent, and controlling, language:
"In the normal case in order for a plaintiff to make out a prima facie case of bad faith refusal to pay an insurance claim, the proof offered must show that the plaintiff is entitled to a directed verdict on the contract claim and, thus, entitled to recover on the contract claim as a matter of law. Ordinarily, if the evidence produced by either side creates a fact issue with regard to the validity of the claim and, thus, the legitimacy of the denial thereof, the tort claim must fail and should not be submitted to the jury."
419 So. 2d at 1362. | November 27, 1991 |
e9364160-9ce0-4e75-9efe-8c570bf426c3 | Byrd Companies, Inc. v. Smith | 591 So. 2d 844 | 1900586 | Alabama | Alabama Supreme Court | 591 So. 2d 844 (1991)
The BYRD COMPANIES, INC.
v.
Charles William SMITH, et al.
1900586.
Supreme Court of Alabama.
December 6, 1991.
Jesse P. Evans III of Najjar, Denaburg, P.C., Birmingham, for appellant.
Joseph B. Mays, Jr., Frank C. Galloway III and Michael S. Dennison of Bradley, Arant, Rose & White, Birmingham, for appellees.
ALMON, Justice.
The defendant appeals from a judgment enjoining it from trespassing on the plaintiffs' land and requiring it to remove all *845 water pipes and other materials that it had installed on the plaintiffs' land. The trial court stayed the injunction pending this appeal. The issues are whether the trial court lacked jurisdiction for failure of the plaintiffs to join indispensable parties and whether the court erred in holding that the defendant's actions had extinguished an easement on the plaintiffs' land.
The plaintiffs are the Vestaclaire Office Condominium Association, Inc. ("Vestaclaire"), and four individuals, Charles Smith, Laura Smith, Laurence Bannon, and Charlotte Bannon. The property that is the subject of this action ("the Vestaclaire property") is a lot with a building known as "the Vestaclaire Office Condominiums." The Smiths and the Bannons own condominium units within the building and, therefore, fractional shares of the common areas of the Vestaclaire property.
According to testimony at the hearing held by the trial court, Vestaclaire is responsible for the care, maintenance, and administration of the Vestaclaire property. The defendant, Byrd Companies, Inc. ("Byrd"), is the owner of land adjacent to the Vestaclaire property. The boundary line between the Byrd property and the Vestaclaire property is the center line for a 10-foot-wide easement for public utilities.
In his order, the trial judge described the arrangement of the land as follows:
Byrd's property and the Vestaclaire property form an entire block surrounded by four streets. Thus, no other property is affected by the easement at issue. For several years, Byrd has operated a shopping complex on its land, using its seven lots as a single unit. A few months prior to the filing of this action, Byrd began renovation and remodeling of the shopping complex. As part of the renovation and remodeling, Byrd had a new building constructed. The building occupied Byrd's land up to a point one inch from the boundary line between the Vestaclaire property and Lot 15. Byrd's construction of the building on the five feet of the easement located on Byrd's property effectively prevented use of Byrd's land for installation of public utilities.
The trial judge's order described the situation as follows:
To provide the new building with water, Byrd installed water pipes on the Vestaclaire land. After notifying Byrd that trespass would not be tolerated, the plaintiffs filed their complaint, requesting an injunction and damages for trespass. After a hearing, the trial court found that Byrd's construction of the building extinguished the easement for public utilities and granted the injunction. The trial court also stated in its order that the amount of damages due to Byrd's trespass would be determined following Byrd's removal of the water pipes from the Vestaclaire property.[1]
Byrd first argues that the injunction is void because of the plaintiffs' failure to join indispensable parties, namely, the other two owners of condominium units within the office building, James Chamg and the estate of Charles Estes.
As Byrd correctly points out, all owners of condominium units also own an undivided interest in the common elements of the condominium property, as set forth in the declaration of condominium ownership. Ala.Code 1975, § 35-8-6. Condominium property includes not only all of the property covered by the declaration, but also any easements, rights, and interests belonging to the land or intended for the benefit of the land. Ala.Code 1975, § 35-8-2(6). Chamg and the estate of Charles Estes are therefore owners of an undivided interest in the real estate and the easement involved. However, the plaintiffs' failure to join them in this action, prior to obtaining the injunction, does not render the injunction void.
Rule 19, Ala.R.Civ.P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy. Hooper v. Huey, 293 Ala. 63, 69, 300 So. 2d 100, 105 (1974), overruled on other grounds, Bardin v. Jones, 371 So. 2d 23 (Ala.1979). Where the parties before the court adequately represent the absent parties' interests and the absent parties could easily intervene should they fear inadequate representation, no reason exists why the trial court could not grant meaningful relief to the parties before the court. Ross v. Luton, 456 So. 2d 249, 257 (Ala.1984). Also, joinder of the absent parties is not absolutely necessary where determination of the controversy will not result in a loss to the absent parties' interest or where the action does not seek a judgment against them. Morgan Plan Co. v. Bruce, 266 Ala. 494, 497-98, 97 So. 2d 805, 808 (1957). A defendant's delay and its self-serving purpose for raising the issue have also been held to be proper considerations in determining whether a judgment is proper in the absence of a particular party. J.R. McClenney & Son, Inc. v. Reimer, 435 So. 2d 50, 52 (Ala.1983). See also, Geer Bros., Inc. v. Walker, 416 So. 2d 1045, 1050 (Ala.Civ.App.1982).
This Court has also held, however, that in cases where the final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined. Johnston v. White-Spunner, 342 So. 2d 754, 759 (Ala. 1977). However, Johnston is not applicable to this case. Johnston involved a boundary line dispute within a subdivision, and the trial court's judgment in Johnston established the boundary line to properties owned by parties who were not before the court. This Court held that, because the effect of the trial court's judgment would be to determine the boundary lines of property owned by absent parties, the absent parties were indispensable and the judgment entered in their absence was void. In the present case, the trial court's judgment did not determine the boundary line between the Byrd and Vestaclaire properties. Rather, the court's judgment determined that Byrd's action had extinguished the private easement between the properties.
*847 The issues in the hearing on the request for an injunction related to interests held in common by all of the Vestaclaire property owners, not to individualized interests or to damages to be awarded to them. Thus, Vestaclaire, the corporate entity managing the condominiums, sufficiently represented the absent owners' interests for purposes of the injunction. Furthermore, Byrd was aware of the ownership interests of Chamg and the estate of Charles Estes before the hearing on the injunction, but failed to raise any issue concerning their absence until this appeal. See, J.R. McClenney & Son, Inc., supra; Geer Bros., Inc., supra. For these reasons, we decline to hold the injunction void based on Byrd's argument that the absence of James Chamg and the estate of Charles Estes was a jurisdictional defect.[2]
Byrd's principal argument for overturning the injunction involves the issue of whether the easement for public utilities was extinguished by Byrd's use of the land in a manner inconsistent with the easement. Byrd argues that the disputed easement is a public easement and, as such, cannot be vacated, abandoned, or extinguished except through compliance with § 35-2-53 or -54, Ala.Code 1975.
The disputed easement in this case is an easement "for public utilities." Whether the easement is "public" or "private" depends on the number and the character of the persons the easement is intended to benefit. This Court has stated that, for an easement to be a public easement, the dedication must be for the benefit of the public at large and that no public easement exists where the right of enjoyment is confined to a few individuals who are owners of the adjoining property. Trustees of Howard College v. McNabb, 288 Ala. 564, 572-73, 263 So. 2d 664, 671-72 (1972).
In this case, the disputed easement is a private easement. The only parties who could possibly benefit from the existence or use of the easement are the owners of the property subject to the easement. Because Byrd owns all of the lots other than the Vestaclaire property that were originally benefited by the easement, no third parties can be adversely affected by the judgment that Byrd has extinguished the easement. The disputed easement does not create a right in the general public to use the land for public utilities or otherwise. The language describing the easement as "for public utilities" is merely a limitation of the uses that the adjoining landowners may make of the easement.
In Trustees of Howard College v. McNabb, 288 Ala. 564, 574, 263 So. 2d 664, 673 (1972), this Court followed the general rule "that `an easement in a particular building coupled with no interest in land, is extinguished by the destruction of the building,'" quoting Pizitz-Smolian Co-operative Stores v. Randolph, 221 Ala. 458, 465, 129 So. 26, 32 (1930). In Trustees of Howard College, the disputed easement applied to a lake. The lake ceased to exist. The court applied the general rule and held that "[a]n easement granted for a particular purpose terminates as soon as such purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment." 288 Ala. at 574, 263 So. 2d at 673 (citations omitted; emphasis added). This rule has been followed in other jurisdictions as well. See, Penn Bowling Recreation Center, Inc. v. Hot Shoppes, Inc., 179 F.2d 64 (D.C.Cir.1949); Bricault v. Cavanaugh, 261 Mich. 70, 245 N.W. 573 (1932); Polyzois v. Resnick, 123 Neb. 663, 243 N.W. 864 (1932).
In Polyzois, a factually similar case, the Supreme Court of Nebraska held that "if the owner of [an] easement by his own act renders the use of the easement impossible, or himself obstructs it in a manner inconsistent with its further enjoyment, ... the easement will be considered as abandoned." 123 Neb. at 668, 243 N.W. at 866 (1932), quoting 19 C.J. Easements, § 167 at 950 (1920). In Polyzois, the plaintiffs owned land adjacent to the defendants' land. The boundary line between the plaintiffs' *848 land and the defendants' land served as the center line for a 10-foot-wide easement for a driveway. With knowledge of the easement, the defendants erected a one-story brick building that covered the defendants' entire property, including the five-foot portion of the easement on the defendants' property.
In reversing the judgment and holding in favor of the plaintiffs, the Supreme Court of Nebraska stated:
Polyzois, 123 Neb. at 667-68, 243 N.W. at 866. We find the reasoning of the Supreme Court of Nebraska persuasive. The facts of the present case are almost identical.
In the present case, the purpose of the easement was to permit installation of public utility fixtures within the 10-foot easement. Five feet of the easement was on Byrd's property and five feet of the easement was on the Vestaclaire property. The easement is terminated because Byrd's construction of the building to the edge of the Vestaclaire property and along the boundary between Lot 15 and Lots G and 10 through 14 operated as an abandonment of the easement,[3] because the building's construction made use of Byrd's property for the accomplishment of the easement's purpose effectively impossible. By constructing its building to the very edge of Lot 15, Byrd has sought to impose the entire burden of the utilities easement on the plaintiffs' property. The trial court did not err in forbidding this inequitable result.
The judgment of the trial court is therefore affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Although the injunction was not a final judgment, Byrd filed its notice of appeal within 14 days as provided for in Rule 4(a)(1)(A), Ala. R.App.P.
[2] If further proceedings are held for the determination of damages for trespass, and if Byrd moves for the absent parties to be joined, the trial court should probably order them to be joined.
[3] The plats and drawings in the record show utilities easements entering Byrd's property at several other points, so the abandonment of this easement does not deprive Byrd's property of access to utilities. | December 6, 1991 |
a5aefc51-6730-494a-88fd-48456366cf6d | Ex Parte Hill | 591 So. 2d 462 | 1901833 | Alabama | Alabama Supreme Court | 591 So. 2d 462 (1991)
Ex parte Melvin HILL.
(Re Melvin Hill v. State.)
1901833.
Supreme Court of Alabama.
December 6, 1991.
*463 Phyllis J. Logsdon, Dothan, for appellant.
James H. Evans, Atty. Gen., for appellee.
SHORES, Justice.
The petition for writ of certiorari is denied. Although the entire record of the proceedings below is not before us, it is clear and undisputed from the petition, the opinion of the Court of Criminal Appeals, and the briefs that the petitioner was represented by two attorneys when he entered pleas of guilty on two charges of unlawful distribution of controlled substances. He was also represented by a third attorney on a third charge being dealt with in the same proceeding and on that charge entered a guilty plea to a charge of theft of property, second degree.
The trial court conducted a hearing before accepting these guilty pleas, and at that hearing Hill did not indicate any dissatisfaction with his attorneys.
Hill then filed a post-conviction petition under Rule 32, A.R.Cr.P. (formerly Rule 20, A.R.Cr.P.Temp.), alleging that the two attorneys who represented him in the controlled substance cases had rendered inadequate assistance. Under these facts, the trial court was justified in denying the post-conviction petition without holding a hearing. If Hill was dissatisfied with their representation, he had an opportunity to say so at the time the hearing was held on his guilty plea. Objections going to the adequacy of counsel must be raised at the first opportunity or else, like other objections, they are waived.
While it is true that our cases hold that a judge must conduct a hearing on a post-conviction petition that is meritorious on its face, a judge who presided over the trial or other proceeding and observed the conduct of the attorneys at the trial or other proceeding need not hold a hearing on the effectiveness of those attorneys based upon conduct that he observed. In this case, the judge considering the post-conviction petition had observed the representation of the attorneys at the hearing held on the defendant's guilty pleas. He reviewed the record made at that hearing and then denied the post-conviction petition. This was not error. In regard to the attorneys' representation, the petitioner alleged that they had failed to conduct pretrial investigations and had failed to represent him adequately at the proceeding at which the defendant pleaded guilty to two charges. The first allegation could have been made in the hearing held when the defendant entered his guilty pleas. The events that serve as the basis of the second allegation, charging inadequacy of representation at the proceeding, were observed by the same judge who ruled on the post-conviction petition. Because the judge had observed the attorneys in the original proceeding, it was not necessary for the judge to hold a hearing on the allegation that *464 their representation in the original proceeding had been inadequate.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, HOUSTON, and KENNEDY, JJ., concur. | December 6, 1991 |
aa6c8632-8749-4665-bde9-76541748a3d7 | Goodwin v. Goodwin | 592 So. 2d 212 | 1901250 | Alabama | Alabama Supreme Court | 592 So. 2d 212 (1991)
Gwen GOODWIN
v.
Richard Scott GOODWIN and John Stephen Goodwin.
1901250.
Supreme Court of Alabama.
December 20, 1991.
*213 J. Fred Wood, Jr. and Terry McElheny of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellant.
Ralph H. Yeilding of Bradley, Arant, Rose & White, Birmingham, for appellees.
PER CURIAM.
The issue presented in this case is whether the trial court erred in entering a summary judgment for the defendants in a suit to set aside deeds. The case involves the interpretation of an antenuptial agreement in which the wife, pursuant to Alabama Code 1975, § 43-8-72, waived certain rights (that section allows a surviving spouse to waive homestead rights by written contract), and its effect on the provisions of § 6-10-3 (which declares that a conveyance of the homestead of a married person is invalid in the absence of the voluntary signature and assent of the spouse).
After the death of her husband, John W. Goodwin, Gwen Goodwin sued to set aside the deeds to two lots on which their homestead property is located, which John Goodwin gave to his sons, Richard Scott Goodwin and John Stephen Goodwin, without her voluntary signature or assent. The trial court interpreted an antenuptial agreement between John and Gwen Goodwin as being a waiver of her right to dissent from a conveyance, and entered summary judgment on behalf of defendants. Mrs. Goodwin appeals. We reverse and remand.
A summary judgment is proper only when the trial court determines 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. Rule 56, A.R.Civ.P. Tripp v. Humana, Inc., 474 So. 2d 88 (Ala.1985). Because there was no factual dispute below, the issue addressed by the trial court was whether Mrs. Goodwin had waived her legal right to dissent from a conveyance by executing the antenuptial agreement.
It is undisputed that on May 19, 1983, John W. Goodwin and Gwen T. Doughty executed an antenuptial agreement in contemplation of marriage. Both were represented by competent counsel. The agreement states that both parties had been married before and had children from their earlier marriages. Also, it indicates that each had acquired separate estates and desired to make provision for his or her respective children. The agreement recites that the parties had fully disclosed to each other the content and extent of their separate estates.
Under the terms of the antenuptial agreement, Mrs. Goodwin was to have a life estate in the homestead property. Paragraph 2 reads as follows:
Paragraph 3 of the agreement gives a family heirloom diamond ring to Mrs. Goodwin for her life, with provisions that the ring be *214 disposed of by Mr. Goodwin's will. Paragraph 4 is entitled "Waiver of Spousal Rights pursuant to § 43-8-72...."
The parties were married sometime after the antenuptial agreement was executed and lived together until the death of Mr. Goodwin on November 3, 1990. On June 21, 1990, Mr. Goodwin executed deeds to two lots, conveying them to his sons Richard and John. The house in which the Goodwins resided is located on one of these lots. It is not disputed that Mrs. Goodwin did not sign or assent to the conveyance.
On November 7, 1991, Mrs. Goodwin filed a complaint to set aside the deeds to the Goodwin sons. She contended in her complaint that the deeds were given without her assent and were therefore void under Ala.Code 1975, § 6-10-3.
The trial court held that Mrs. Goodwin, by signing the agreement stating that the parties waived rights "which he or she may acquire in the separately owned property of the other by reason of the marriage" had waived her right to dissent under § 6-10-3. We do not agree.
Since the Constitution of 1868, the conveyance of the homestead, without the voluntary signature and assent of the wife, has been inoperative. Art. X, § 205, of the Constitution of Alabama 1901, provides that the "alienation of said homestead by the owner thereof, if a married man, shall not be valid without the voluntary signature and assent of the wife to the same." What is now § 6-10-3 has been a part of the Code of Alabama in some form since 1876:
The public policy of Alabama strongly favors setting aside the homestead for the surviving spouse.
It is clear from the wording of Paragraph 2 of the antenuptial agreement that it was the intention of these parties when they signed this antenuptial agreement that Mrs. Goodwin have a life estate in the homestead property. It is equally clear that it was not the intention of the parties in signing this antenuptial agreement that Mrs. Goodwin would waive her right under § 6-10-3 to dissent from a conveyance of the homestead.
The trial court reasoned that because one does not obtain a spouse's right to dissent from a conveyance of the homestead until one becomes a spouse, Mrs. Goodwin meant to waive her right to consent to the conveyance of the homestead by signing the antenuptial agreement. We can not agree that this is what the two intended. Why would Mrs. Goodwin waive, in paragraph 4, the right to continue to live in the homestead specifically set aside to her in paragraph 2?
Furthermore, the waiver of spousal rights under paragraph 4 specifically refers to the waiver of spousal rights as being given "[p]ursuant to the authority of Section 43-8-72 of the Code of Alabama, 1975, as amended (the `Code'), and existing Alabama case law." Section 43-8-72 reads as follows:
By virtue of § 43-8-72, Mrs. Goodwin was waiving only certain rights available to the surviving spouse. The rights of a "surviving spouse" arise only upon the death of the other spouse. Black's Law Dictionary (5th ed. 1979). In fact, the statute states that the waiver is of rights "at death." By executing the antenuptial agreement, Mrs. Goodwin was not waiving her rights as a wife during the lifetime of Mr. Goodwin. She was waiving her rights to the "elective share, homestead allowance, exempt property and family allowance," which would be hers ordinarily at the death of Mr. Goodwin.
After citing a waiver of spousal rights under § 43-8-72, paragraph 4 of the antenuptial agreement goes on to say that the parties are waiving "the rights of either to claim, as the surviving spouse, under Title 43, Chapter 8 of the Code, the Law of Intestate Succession and Wills." However, nowhere is there a reference to a waiver of rights during the lifetime of the parties (other than claims of alimony in case of divorce) and nowhere is there a reference to a waiver of any rights held pursuant to § 6-10-3.
For the reasons stated above, the judgment of the trial court is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX and INGRAM, JJ., dissent.
MADDOX, Justice (dissenting).
The majority, applying what I believe are equitable principles rather than legal principles, reverses a finding by the trial judge, who made a determination that a wife had waived her homestead rights by executing an antenuptial agreement.[1]
I have examined the subject antenuptial agreement and I conclude that the wife waived her right to assent to the conveyance by executing the antenuptial agreement. I would affirm the judgment of the trial court.[2]
The facts are largely undisputed and most are set out in the majority opinion. On May 19, 1983, John W. Goodwin and Gwen T. Doughty executed an antenuptial agreement. It appears that both were represented by competent counsel and that Ms. Doughty's attorney(s) actually drafted the agreement.
I do not find the agreement to be ambiguous. The introductory section of the agreement states that both Mr. Goodwin and Ms. Doughty had been married before and had children from their earlier marriages. Also, it stated that each was financially secure and wished his or her respective children to inherit only from their individual estates. Further, both Mr. Goodwin and Ms. Doughty had discussed their respective financial positions with the other, *216 and each desired that no gain accrue to the other as a result of their marriage.
The antenuptial agreement did contain two provisions that can be construed as affecting the separate estates of the parties. In paragraph three of the antenuptial agreement, Mr. Goodwin gave Ms. Doughty a life estate in a family heirloom wedding ring; Ms. Doughty was given the right to wear the ring for life, and upon her death the ring was to pass according to Mr. Goodwin's will. Additionally, in paragraph two, it was agreed that in the event "at the time of [Mr. Goodwin's death] they [were] living together as man and wife in a house owned by John W. Goodwin," Ms. Doughty would get an estate for years in that house.
In paragraph four of the agreement, both parties specifically waived their spousal rights in their separately owned estates. It is the interplay of paragraph four with paragraph two and the provisions of Ala. Code, 1975, § 6-10-3, relating to the right of a spouse to assent to a conveyance of the homestead, that is disputed before this Court.
I would hold, as did the trial court, that a spouse can waive his or her legal rights to assent to a homestead conveyance. Ala. Code 1975, § 6-10-120, states that "Any person, by an instrument in writing, may waive his or her right to an exemption in any property exempt from levy and sale under execution or other process." Section 6-10-122 states that "as to the homestead, the waiver must be by a separate instrument in writing, subscribed by the party making the same and attested by one witness." Thus, it is clear that one may waive one's right to assent to a conveyance of the homestead if the requirements of § 6-10-122 are met.
Mrs. Goodwin argues that she did not waive her right to assent under § 6-10-3 by the separate, written, and attested antenuptial agreement. The clear language of the antenuptial agreement convinces me that Mrs. Goodwin did waive her right to assent to the conveyance of the homestead. Further, it is equally clear that the antenuptial agreement was a separate, written, and attested instrument, as contemplated by § 6-10-122.
Paragraph four of the antenuptial agreement says:
Of particular importance is the phrase "which he or she may acquire in the separately owned property of the other by reason of the marriage." One does not obtain a spouse's right to assent to a conveyance of the homestead until one becomes a spouse. Thus, the right granted by § 6-10-3 would be a right "acquired by reason of the marriage." Therefore, I would hold *217 that the right was clearly waived by paragraph four of the antenuptial agreement.
Mrs. Goodwin stresses that the repetition of the phrase "surviving spouse" in paragraph four has significance. She argues that the only rights she waived in the antenuptial agreement were those rights accruing to her at Mr. Goodwin's death.
This argument ignores the clear language of the agreement immediately before the listing of rights waived. This phrase reads, "including but not limited to." The clear import of this phrase is that the list was exemplary only.
Additionally, this argument ignores paragraph four, sections (h) and (i), which waive rights not specifically dependent on "surviving spouse" status.
Because I would find that Mrs. Goodwin clearly waived her rights under Ala.Code 1975, § 6-10-3, to assent to a conveyance of the homestead, I conclude that the equally clear language of paragraph two of the antenuptial agreement supports the judgment. Paragraph two states:
The clear import of paragraph two is that Mrs. Goodwin would obtain an estate for years (or life, depending on whether she remarried or abandoned the house) if: 1) Mr. Goodwin predeceased her, 2) the two of them were living together as man and wife at the time of Mr. Goodwin's death, and, most importantly, 3) Mr. Goodwin actually owned the house in which they were living at the time of his death. Because Mr. Goodwin had conveyed to his sons the lot and house that he and Mrs. Goodwin were living together in at the time of his death to his sons before his death, he did not own the house at his death.
The final sentence of paragraph two must be analyzed also. Mrs. Goodwin was entitled to no greater rights in the house than were granted by paragraph two. Therefore, because Mr. Goodwin did not own the house he and Mrs. Goodwin were living in at the time of his death, Mrs. Goodwin took no rights to the house.
Because I would hold that Mrs. Goodwin waived her right to assent to the conveyance of the homestead in question, I will now address her argument that the antenuptial agreement was not supported by adequate consideration.
Mrs. Goodwin argues that if this Court finds that she waived her right to assent to the conveyance of the homestead, there remains a genuine issue of material fact as to whether the antenuptial agreement was supported by adequate consideration. Having examined the evidence in support of the motion for summary judgment, I find that Richard and John S. Goodwin submitted, as part of their requested discovery, a request for an admission that Mrs. Goodwin signed the antenuptial agreement after a full and fair disclosure of the contents. Mrs. Goodwin never responded or objected to this request. Therefore, based on Rule 36(a), Ala.R.Civ.P., the matter is deemed admitted. Daniel v. O.F. Richter & Sons, Inc., 385 So. 2d 1308, 1309 (Ala.1980). This admission meets one of the alternative requirements of a valid antenuptial agreement, i.e., that either 1) the consideration be adequate, and the entire transaction fair, just, and equitable; or 2) the agreement be entered into with competent, independent advice from counsel and full knowledge of any interest in the other party's estate, and its approximate value. Mixon v. Mixon, 550 So. 2d 999, 1000 (Ala.Civ.App.1989). Clearly the admission *218 admits that Mrs. Goodwin knew of any interest in Mr. Goodwin's estate, and its approximate value. Also, it is undisputed that both were represented by independent counsel. Therefore, I would reject Mrs. Goodwin's lack-of-consideration argument.
Based on the foregoing, I would affirm the trial court's judgment. Because the majority opinion reverses, I dissent.
INGRAM, J., concurs.
[1] The issue presented is whether the trial court erred in entering a summary judgment in a suit to set aside a deed. The suit involved the construction of an antenuptial agreement and its effect on a spouse's right to assent to a conveyance of homestead property, in view of Ala. Code, 1975, § 6-10-3, which provides, in pertinent part:
"No mortgage, deed or other conveyance of the homestead by a married person shall be valid without the voluntary signature and assent of the husband or wife...." (Emphasis supplied).
[2] The trial court, in entering the summary judgment, held that "as a matter of law ... when [Mrs. Goodwin] executed the `antenuptial agreement,' she waived her rights as a surviving spouse in the property which was conveyed by the deeds which she is now attempting to set aside."
A secondary issue, whether there was a failure of consideration for the antenuptial contract, was also raised by the wife on appeal, but I find that this issue was waived by the wife's failure in the trial court to answer a request for admission during discovery. See my discussion of this issue later in this opinion. | December 20, 1991 |
fcf2501a-f6e0-408e-9c19-5ae644757983 | Linton Coal Co. v. South Cent. Resources | 590 So. 2d 911 | 1900740, 1901151 | Alabama | Alabama Supreme Court | 590 So. 2d 911 (1991)
LINTON COAL COMPANY, INC.
v.
SOUTH CENTRAL RESOURCES, INC., et al.
1900740, 1901151.
Supreme Court of Alabama.
November 22, 1991.
John G. De Buys, Jr., John C. Morrow and Mark M. Lawson of Burr & Forman, Birmingham, for appellant.
Thomas L. Stewart of Gorham, Waldrep, Stewart, Kendrick & Bryant, P.C., Birmingham, for appellees.
STEAGALL, Justice.
On June 3, 1974, Linton Coal Company, Inc. ("Linton Coal"), leased certain land in Jefferson County to Hallmark Coal Company, Inc. ("Hallmark Coal"), for the express purpose of mining and removing coal. The lease was for an initial term of five years, after which the lessee had the option of extending the lease for additional successive five-year terms "so long as there is recoverable coal remaining in the lands leased hereby."
Hallmark Coal assigned its rights under the lease to Alabama By-Products Corporation ("ABC") on June 14, 1974, and, on June 10, 1983, ABC assigned its rights to Casgar Coal Company, now known as South Central Resources, Inc.[1] In June and September 1974 and from May until September 1975, ABC mined 6,700 tons and 36,000 tons of coal, respectively. In July and August 1984, South Central Resources mined approximately 2,500 tons of coal. Since August 1984, however, no coal has been mined on the land in spite of the fact that when Linton Coal entered into the initial lease with Hallmark Coal in 1974, there were about 5,398,245 tons of coal reserves on the property. South Central Resources subleased two sections of the land on May 28, 1987, to A C Excavators, Inc., which was owned by Charles Cupps.
Pursuant to a provision in the original lease, the minimum annual royalty payment of $12,000 was to increase by 20% at the end of the second five-year term. Sometime in August 1987, John Fleming, the president of Linton Coal at that time, realized that South Central Resources was several thousand dollars in arrears in its annual royalty payment because the 20% increase should have gone into effect in *912 June 1984. In a letter dated August 11, 1987, Fleming requested that South Central Resources pay the amount owed, which South Central Resources failed to do. After repeated attempts to collect the money, Fleming informed South Central Resources by a letter dated September 23, 1987, that the lease was suspended until the delinquent amount was paid.
On December 13, 1987, Cupps purchased the stock of South Central Resources and became its president. In February 1988, he mailed a $6,000 check to Linton Coal for the arrearage. Linton Coal negotiated neither that check nor any of the checks it received from South Central Resources representing the minimum 1988 royalty payment. Linton Coal also refused to allow South Central Resources to mine any of the property.
As a result, South Central Resources, A C Excavators, and Cupps sued Linton Coal on May 13, 1988, seeking specific performance under the lease; a declaratory judgment that the lease, all assignments, and the sublease were valid and enforceable; and damages for fraud. After a hearing at which evidence was presented ore tenus, the trial court held that the lease was valid and that, in essence, Linton Coal was estopped from arguing that the lease was void because, pursuant to the lease, Linton Coal had accepted over $192,000 in minimum royalty payments and had allowed the lease to run for approximately 13 years without terminating it, even though very little mining had been done on the property. Pursuant to a joint motion of the parties, the trial court ordered all future royalty payments to be paid to the clerk of the court. In its judgment, the trial court awarded those payments to Linton Coal, and in a clarification of its final judgment, the trial court ordered South Central Resources to continue paying the royalties into court, pending the disposition of the case on appeal.
Linton Coal's main argument on appeal, as it was below, is that the lease is void because it does not contain a "term certain," or definite ending date, and Linton Coal cites Womack v. Hyche, 503 So. 2d 832 (Ala.1987), as being dispositive of this case. In Womack, this Court held that a lease containing a provision that gave the lessee of a fishing camp the option to renew the lease "as long as the camp is run as a business for a profit" was void because the term of the lease was uncertain. In reaching that conclusion, we cited National Bellas Hess, Inc. v. Kalis, 191 F.2d 739 (8th Cir.1951), cert. denied, 342 U.S. 933, 72 S. Ct. 377, 96 L. Ed. 695 (1952), to the extent that:
Womack v. Hyche, 503 So. 2d at 834.
Here, although the provision that the lease may be renewed "so long as there is recoverable coal remaining in the lands leased hereby" is more definite because the coal reserves will eventually be exhausted, the date of that occurrence is entirely uncertain. The supply might be depleted sooner or later than expected, depending on the amount of coal actually on the land, the rate of mining production, and the good faith of the lessee in mining any coal at all.
This Court agrees with Linton Coal that the term of the lease is so incapable of ascertainment that it renders the lease void as a tenancy for years and a tenancy at will is created, Womack v. Hyche, supra, and Linton Coal is entitled to an order requiring South Central Resources's immediate vacation of the land covered by the lease. This Court is unpersuaded by South Central Resources's argument that Linton Coal should be estopped from asserting that the lease is void. The record reveals that Linton Coal agreed to renewals of the lease based on assurances by South Central Resources and Cupps that the property would be mined for coal. Thus, the judgment of the trial court is reversed and this case is remanded for the trial court to refund to South Central Resources the royalties that have been paid to the clerk of the court.
REVERSED AND REMANDED.
*913 HORNSBY, C.J., and SHORES, HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] Casgar Coal Company changed its name to South Central Resources, Inc., on October 17, 1984. | November 22, 1991 |
e0a83bee-ae60-49f6-8af1-5ed2d8532bb1 | Holman v. Bane | 698 So. 2d 117 | 1950596 | Alabama | Alabama Supreme Court | 698 So. 2d 117 (1997)
Albert HOLMAN, et al.
v.
Eugenia BANE, et al.
1950596.
Supreme Court of Alabama.
June 13, 1997.
Robert F. Prince of Prince, Poole & Cross, P.C., Tuscaloosa, for Appellants.
Gordon Rosen of Rosen, Cook, Sledge, Davis, Carroll & Jones, P.A., Tuscaloosa, for Appellees.
ALMON, Justice.
The opinion of January 10, 1997, is withdrawn and the following opinion is substituted therefor.
The dispositive issues in this appeal are, first, whether the notice of appeal filed by *118 the intervenors was timely as to the merits of the action, which had been resolved by an earlier order confirming the sale of the real property involved, or was timely only as to matters dealt with in the later order awarding attorney fees, and, second, whether the circuit court properly awarded attorney fees under Ala.Code 1975, § 34-3-60.
The facts of the case are somewhat controverted, but in essence it involves a family dispute over inherited property held by a tenancy in common. When the elder Mr. Holman died, his timber corporation was dissolved and each of his three childrenEugenia, Richard, and Tomgot a 1/3 undivided interest in 27,000 acres of land. These three children also purchased another 1500-acre farm together, separate from their inherited family holdings. For many years, the three children and their families held these lands by a tenancy in common, each with a right to possession but subject to an agreement concerning the mineral interests. Eventually, Tom Holman died; by his will he placed his interest in the property in two trusts for the benefit of his children and his wife, with AmSouth Bank as trustee of both trusts. After Tom's death, the Holman family members decided to break up their long-standing tenancy in common and entered into an agreement that divided most of the land.
The family members could not agree on to how to divide 6,300 + acres of the land. This land is generally described in the record as follows: 4,800 acres of "woods" property, the 1,500-acre "farm," and the 17-acre "Northport" property. Eugenia eventually filed a complaint against her surviving brother (Richard) and the trustee of her deceased brother's trusts (AmSouth Bank) to have some of the land partitioned and some of it sold. Richard realigned and joined with Eugenia in the action against the Bank. Albert, Margaret Ann, and Ellen Holman, who were Tom's son, daughter, and widow, respectively, and who were also the beneficiaries of his trusts, intervened in the action as defendants.
The circuit court, without a jury, heard testimony regarding the 6,300 acres. The plaintiffs argued that the woods property and the Northport property could be equitably partitioned, but not the farm, which they said should be sold. The Bank argued that none of the property could be equitably partitioned and that all of it should be sold. The intervenors claimed that the farm property could be equitably partitioned, but not the woods and Northport properties. However, at the ore tenus hearing the intervenors asked that the court consider all of the 6,300 acres as a whole to determine if it could be equitably partitioned. They proposed that they be given the farm property and a small portion of the woods property as their total share, or, alternatively, that the court partition the farm property among the parties.
The circuit judge rejected all of the parties' requests and fashioned his own remedy. He found that some parts of the woods property could be equitably partitioned, but ruled that other parts would have to be sold. He also found that the farm property, because of its diversity, could not be equitably partitioned, and he ordered it sold. Finally, the court found that the Northport property could not be equitably partitioned, and ordered it sold. On December 13, 1994, the judge entered the order requiring a sale.
On October 12, 1995, the court held a private auction among the parties for the lands that had been ordered sold. The plaintiffs purchased all of the property that was being sold, although the intervenors did bid on the farm. On November 1, the judge entered an order confirming the sale to the plaintiffs and ordering the circuit clerk to "make, execute and deliver deeds" to effectuate the partitions and the sales for division. That order reserved for a future determination the appropriate amount of attorney fees under Ala.Code 1975, § 34-3-60, and also the cost of a survey of some access roads on the property. However, everything else in the case was resolved by the November 1 order.
The court held a hearing on the question of attorney fees, and on December 18, 1995, it entered an order awarding 10% of the value of the 6,300 acres in question to the attorneys: 75% of that award to go to the plaintiffs' attorneys and 25% to go to the intervenors' *119 attorneys. The intervenors filed their notice of appeal on January 17, 1996.[1]
The parties have filed briefs addressing several issues concerning the partition and sale proceedings. However, the appellees have filed a motion to dismiss the appeal. Therefore, before we can address these contentions, we must first determine whether this Court has jurisdiction to hear the appeal as it relates to the November 1 confirmation of the sale and the earlier orders. Did the intervenors file their appeal within the time allowed by Rule 4(a)(1), Ala.R.App.P.?
Three dates are relevant to this question: November 1, 1995 (the date of the confirmation of the sale held pursuant to the order of sale that had been entered the previous year); December 18, 1995 (the date the court entered its order awarding attorney fees); and January 17, 1996 (the date the intervenors appealed). If the December 18 order was the final judgment, then the intervenors' appeal is not time-barred and this Court may address the substantive issues presented by the appeal; but if the November 1 order was the final judgment, then the appeal can present only questions pertaining to the award of attorney fees. Rule 4(a)(1), Ala.R.App.P., states:
The intervenors argue that the order confirming the sale was not a final judgment because in that order the court specifically reserved the issue of attorney fees for a future hearing. They argue that the award of attorney fees has a substantial impact on the proceeds of the sale, and, therefore, that the confirmation order could not be considered "final" for purposes of Rule 4(a), Ala. R.App.P.
Rule 58(c), Ala.R.Civ.P., which outlines the mechanics of entering a final judgment, states that the entry of a judgment or order "shall not be delayed for the taxing of costs." This Court has held that, where an order adjudicates all claims against all parties, the later taxing of costs will not affect the finality of the earlier order. Morton v. Chrysler Motors Corp., 353 So. 2d 505, 507 (Ala.1977). The statute that allows a court to award attorney fees in actions for the partition of land or for the sale of land for a division of the proceeds specifically states that the fees are to be taxed as costs:
Ala.Code 1975, § 34-3-60 (emphasis added). The statute treats the attorney fees as costs of the action, just like other costs involved in a partition proceeding or in a sale-for-division proceeding (such as surveyor fees and the costs of the sale). Therefore, the fact that the question of attorney fees was reserved is as insignificant to the question of finality of the confirmation order as is the reservation of an award of the survey fees.
Absent unresolved claims based on other causes of action, the confirmation order is properly considered the final judgment in an action for partition or a sale for division, because of the need for either the parties or the purchaser of the property to obtain clear title to the property partitioned or sold. *120 This is especially true where, as here, the judgment confirming the sale orders the circuit clerk to "make, execute, and deliver deeds" to the property sold or partitioned. If the order is made nonfinal by the fact that fees and costs are to be assessed later, then the status of the title to the property would unnecessarily be rendered uncertain.
In a consistent line of cases, the Court has held that in a case resulting in a sale for division, either the order directing the sale for division or the order confirming the sale may be considered a final judgment for purposes of appeal. Jetton v. Jetton, 502 So. 2d 756 (Ala.1987); Taylor v. Taylor, 398 So. 2d 267, 269 (Ala.1981); Baer v. Alco Land & Timber Co., 291 Ala. 640, 285 So. 2d 913 (1973); Sexton v. Sexton, 280 Ala. 479, 195 So. 2d 531 (1967); Wilson v. Phillips, 235 Ala. 410, 179 So. 203 (1938); Pettit v. Gibson, 201 Ala. 177, 77 So. 703 (1917). The fact that the order directing a sale is thus "partly final and partly interlocutory," Taylor, 398 So. 2d at 269, quoting Sexton, supra, does not mean that an order confirming a sale is similarly interlocutory simply because the question of attorney fees has been reserved. On the contrary, as shown below, an order that is final other than as to costs and fees is a final judgment from which any appeal must be taken within 42 days.
The reservation of attorney fees in this case does not affect the finality of the confirmation order on the theory that all claims had not been adjudicated. Under § 34-3-60, the attorney fees are either taxed directly out of the proceeds of the sale or become a lien on the partitioned property. These fees are not based on the attorney's acts in representing a client, but are based solely on the benefits inuring to the common estate. Shirley v. Mazzone, 591 So. 2d 469, 472 (Ala.1991). Because they are statutorily awardable only as costs, they are not, for the purposes of determining finality of an order, to be considered as a separate claim by one litigant or group of litigants against another, any more than would be any other request by one party that costs be taxed against some other party.
The order confirming the sale was entered on November 1, 1995. The only issue left for the court to address after that order concerned the taxing of costs, including the attorney fees. The intervenors did not appeal until January 17, 1996, which was 77 days after the confirmation of the sale. Therefore, as to the matters decided in the order directing a sale and in the order confirming the sale, the intervenors' appeal is time-barred by Rule 4(a). The appellees have moved to dismiss the appeal as untimely. However, the appeal was timely as to the award of attorney fees; it simply can raise no issue as to the earlier order confirming the sale. Accordingly, this Court denies the motion to dismiss the appeal, but it will address only the issue concerning the attorney fees.
The circuit judge, after allowing the attorneys to submit their claims for attorney fees, ruled under § 34-3-60, Ala.Code 1975, that the attorney fees should be set at 10% of the value of the land involved in the action, and, accordingly, it awarded a fee of nearly $700,000. The judge then awarded 75% of that fee to the plaintiffs' counsel and 25% to the intervenors' counsel. The intervenors state the issue as "[whether] the trial court [erred] to reversal in not determining what portion of the attorney fee awarded to the appellee was based on benefits accruing to the common estate."[2]
The circuit court's authority to award attorney fees in a partition action or a sale-for-division action is Ala.Code 1975, § 34-3-60. These fees must be awarded "on the basis of, and solely for, the benefits inuring to the common estate and to the tenants in common and not involving controversy as to respective rights or interests of individual tenants in common." Irons v. Le Sueur, 487 So. 2d 1352, 1359 (Ala.1986) (citations omitted); Shirley v. Mazzone, supra.
*121 Our review of an award of attorney fees is somewhat limited: "The allowance of attorney's fees to be paid as costs in such actions rests largely in the discretion of the trial court.... This is an `advised, just, judicial and revisable discretion in the light of the whole record.'" Irons, supra, at 1359. Accordingly, in this case we will review the judge's award only for an abuse of discretion, in light of the evidence presented at the ore tenus hearing.
The circuit judge, in his order of December 18, made the following finding of fact regarding the attorney fees:
In the hearing held on the question of attorney fees, the plaintiffs offered into evidence the testimony of two expert witnesses, Charles Malone and Jimmy Turner, who were both experienced lawyers in partition and sale-for-division cases. In questioning Mr. Malone, the plaintiffs' attorney presented a lengthy hypothetical question, which basically followed the factors set out in Peebles v. Miley, 439 So. 2d 137, 140-41 (Ala. 1983). The plaintiffs' counsel described to the court and to the expert a wide variety of things that he had done during the trial, stating the number of hours he and his co-counsel had expended, describing the documents he had produced for and at the direction of the court during the case (including all deeds required by the partitions and the sales), and explaining other matters relating to the other pertinent Peebles factors.
The intervenors argue that the record shows that many of the plaintiffs' actions were "adversarial" in nature and that the award to the plaintiffs' counsel should be reduced to reflect that. The record supports the finding that the efforts of the plaintiffs' counsel benefited the estate more than the efforts of the intervenors' counsel did. No abuse of discretion is shown as to the award of attorney fees.
For the reasons stated above, we deny the appellees' motion to dismiss the appeal as untimely, but hold that only the issue concerning the attorney fees is presented by the appeal. We hold that the circuit court did not abuse its discretion in awarding and distributing the attorney fees, and we therefore affirm the order relating to attorney fees.
OPINION OF JANUARY 10, 1997, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; MOTION TO DISMISS DENIED; AWARD OF ATTORNEY FEES AFFIRMED.
HOOPER, C.J., and SHORES and KENNEDY, JJ., concur.
COOK, J., concurs in the result.
MADDOX and HOUSTON, JJ., concur in part and dissent in part.
HOUSTON, Justice (concurring in part and dissenting in part).
The following statement appeared in the November 1, 1995, order:
(Emphasis added.) If under our rules an order with a provision such as this in it is nevertheless a final order for the purpose of starting the 42-day time for appeal (and I do not think it is), then our rules have created a trap for litigants, their attorneys, and trial courts.
*122 The majority refers to the December 18, 1995, order relating to attorney fees. On December 19, 1995, the court entered a more detailed order relating to attorney fees, but that December 19 order did more than just deal with the issue pertaining to the award of attorney fees. It directed the plaintiffs-purchasers to pay certain sums to the clerk of the court, and it directed the clerk, after such sums were paid, to execute and deliver to the plaintiffs-purchasers six deeds approved by the court. The December 19 order stated, "The Court's approval of the deeds [is] evidenced by the signature of [the trial judge] subscribed on each deed." Without this, the purchasers had no legal title to the property that they had purchased at the sale for division.
In my opinion, any aggrieved party had 42 days from December 19, 1995, to appeal. I think this appeal was timely filed, as to all issues the appellants attempt to raise here. I dissent from the holding that the appeal was timely only as to the issue of attorney fees.
Therefore, I have carefully reviewed all of the issues raised in the appellants' brief. I have determined that the trial court was not plainly and palpably wrong in entering the orders that it entered in this case. Circuit courts, by the statutes governing partition, possess broad powers "to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common." Ala.Code 1975, § 35-6-20. In exercising these broad powers, the trial court made findings of fact based on conflicting testimony and other evidence. These findings must be accorded a presumption of correctness and must not be reversed unless they are plainly and palpably erroneous. Williams v. McIntyre, 632 So. 2d 446, 448 (Ala.1993). I concur as to the issue regarding the award and distribution of attorney fees.
MADDOX, J., concurs.
[1] Ellen Holman, one of the intervenors, voluntarily dismissed herself from the appeal. Richard P. Holman, one of the plaintiffs, died during the pendency of this appeal, and his personal representatives were substituted.
[2] The intervenors, as the appellants, state in their brief that "appellants do not quarrel with the ten (10) percent of the value of the property divided and sold as being an adequate attorney fee, only that some of the money awarded to the Plaintiffs was not for the benefit of the estate." They also state that "the fee awarded the [appellants' attorneys] is not at issue." | June 13, 1997 |
4bce54c0-ef41-44a6-b402-747edbfb73fd | Pearson v. Fomby by and Through Embry | 688 So. 2d 239 | 1950976 | Alabama | Alabama Supreme Court | 688 So. 2d 239 (1997)
Dr. Bernard PEARSON
v.
Willie Fred FOMBY, By and Through Sara EMBRY, as Conservator of the Estate of Willie Fred Fomby, an Incapacitated Person.[1]
1950976.
Supreme Court of Alabama.
January 10, 1997.
*240 Larry W. Harper and W. Perry Webb of Porterfield, Harper & Mills, P.A., Birmingham, for Appellant.
Tom Dutton of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for Appellee.
SHORES, Justice.
Willie Fred Fomby, by and through Sarah Embry, the conservator of his estate, brought this medical malpractice action, claiming that the defendant, Dr. Bernard Pearson, had rendered negligent emergency room treatment and that that negligent treatment had caused Fomby to suffer severe injuries. The case was tried before a jury, beginning on October 23, 1995; the jury returned a verdict for the plaintiff. Dr. Pearson moved for a new trial on the grounds of juror misconduct, alleging that a juror had consulted a dictionary for a definition of the word "standard" and had told other jurors what he had discovered, in an effort to resolve the issue whether the doctor's medical treatment had breached the "standard of care." The trial court denied the motion, and Dr. Pearson appeals. The alleged juror misconduct was brought to the court's attention through the affidavit of another juror. We hold that the juror's affidavit was insufficient, standing alone, to require a new trial, but, because it is impossible to determine on the record before us whether the jury was influenced by the extraneous dictionary definition, we reverse and remand for the trial court to answer that question.
The events giving rise to this action are basically undisputed. On February 19, 1992, at approximately 11:24 a.m., Fomby sought medical attention in the emergency room of Citizens Hospital in Talladega. Fomby has epilepsy and had suffered a seizure at work. Dr. Pearson was the physician on duty in the emergency room. Dr. Pearson ran a series of tests and administered medication to control the seizures, and then he discharged Fomby. At approximately 1:50 p.m., Fomby *241 returned to the emergency room after having another seizure at work. Dr. Pearson ran more tests and administered additional medication. At about 5:15 p.m., Fomby was discharged from the hospital, accompanied by his mother. However, minutes later Fomby was rushed back into the emergency room after suffering yet another seizure in the hospital parking lot. As a result of this seizure, Fomby fell and sustained serious head injuries.
At trial, both parties presented expert testimony regarding whether Dr. Pearson had breached the standard of care. Fomby contended that Dr. Pearson had negligently caused his injuries by failing to admit him for observation and monitoring of his seizures and by failing to stabilize him before discharging him. Dr. Pearson denied these allegations, claiming that all aspects of his treatment complied with the standard of care for an emergency room physician. The jury began deliberating on the afternoon of October 26, 1995, but adjourned for the evening after failing to reach a verdict. On the morning of October 27, after about two hours of deliberation, the jury returned a verdict against Dr. Pearson, awarding $600,000 in damages.
The only issue on appeal is whether the trial court properly denied Pearson's motion for a new trial, which was based on allegations of juror misconduct. Pearson claimed that at least one juror, C.O., had improperly considered a dictionary definition of the word "standard" to resolve the key material issue whether Dr. Pearson had breached the "standard of care." Dr. Pearson alleged that C.O. had looked up the definition during the evening recess after the first day of deliberations and had informed the other jurors of his findings the following morning before the jury reached a verdict. In support of his motion, Dr. Pearson submitted the affidavit of juror S.P., which stated as follows:
On February 20, 1996, 54 days after Dr. Pearson's motion for a new trial had been served and two days before it was to be heard, Fomby filed a memorandum in opposition to the motion. Attached were the affidavits of three other jurors, including that of C.O., the juror said to have consulted the dictionary. In substance, these three affidavits stated that the verdict had been based only upon the evidence and the court's instructions, and they denied that a dictionary had been used. Dr. Pearson moved to strike these three affidavits offered by Fomby as not timely under Rule 59(c), Ala. R. Civ. P. The trial court heard arguments on the motion for a new trial, but it did not take any additional testimony from any of the jurors. The trial court denied Dr. Pearson's motion for a new trial, but it did so without ever considering the motion to strike the three affidavits Fomby had offered. Rather, the court found that S.P.'s affidavit, even if uncontradicted, was insufficient to require a new trial because it failed to "conclusively prove" that the verdict was influenced by anything outside of the trial. Therefore, we consider whether S.P.'s affidavit, standing as undisputed evidence, required the trial court to grant Dr. Pearson's motion for a new trial. We agree with the trial court that the affidavit, in itself, did not require the trial court to grant Dr. Pearson's motion for a new trial. However, we conclude that the affidavit was sufficient to demonstrate that extraneous matters were before the jury during its deliberations and to suggest that indeed the verdict could have been influenced by jurors' exposure to the extraneous dictionary definition. Therefore, because of the uncertainties presented in this case, we reverse the judgment and remand the case for the trial court to determine the extent to which the extraneous matters might have actually influenced the verdict.
*242 As a preliminary matter, we recognize that the final sentence of S.P.'s affidavit could constitute hearsay, which is not admissible in support of a motion for a new trial. See Jefferson County v. Kellum, 630 So. 2d 426 (Ala.1993). Although Fomby did raise the issue before the trial court, the judge did not rule on the admissibility of this statement, apparently assuming, without deciding, that it was admissible. Nor need we rule upon it, for, as we shall explain, even assuming C.O. did say that he "considered" the definition, and assuming S.P.'s statement is admissible, his statement is insufficient to show actual prejudice, and our remand for the trial judge to determine whether there had been any actual prejudice need only rely upon the preceding sentence in the affidavit, which states that C.O. consulted the dictionary for a definition and then informed the other jurors of what he had found.
In Whitten v. Allstate Ins. Co., 447 So. 2d 655 (Ala.1984), we examined the question of when juror misconduct requires the granting of a new trial, and there we stated the rule to be as follows:
447 So. 2d at 658 (overruling Jones v. McMonigal, 409 So. 2d 1381 (Ala.1982), to the extent Jones had excluded, as a ground for granting a new trial, extraneous matters from which prejudice may be presumed). "Consideration of the prejudicial effect of extraneous matter has been held to be `a case-by-case determination to be made in light of the particular facts and attending circumstances.'" Fulton v. Callahan, 621 So. 2d 1235, 1249 (Ala.1993), quoting Nowogorski v. Ford Motor Co., 579 So. 2d 586, 590 (Ala.1990).
Dr. Pearson argues that he was entitled to a new trial under the Whitten rule because, he argues, the affidavit showed that the juror misconduct affected the verdict, or, in the alternative, because the dictionary definition of the word "standard" constituted extraneous material that was prejudicial as a matter of law. We address each of these contentions in turn.
Dr. Pearson first claims that he is entitled to a new trial because the affidavit was sufficient to show that the exposure to the extraneous definition of "standard" resulted in actual prejudice that affected the verdict. We disagree. There is no evidence that any juror stated that he or she believed that the collective decision of the jury or the juror's individual decision was even influenced, let alone actually changed, by the exposure to the extraneous definition. We assume that the jurors were all exposed to the extraneous dictionary definition, because S.P. said C.O. shared it with them and said that C.O. said that he "considered" the definition, but these allegations do not necessarily imply that the exposure actually motivated the jury or any individual juror to decide in any particular way. Thus, actual prejudice was not shown.
However, Dr. Pearson argues that actual prejudice merely requires a showing that the verdict "could" have been affected, not that the juror misconduct necessarily determined the outcome. He points to two statements in prior decisions that, he argues, support this proposition. First, he cites Coots v. Isbell, 552 So. 2d 139 (Ala.1989), in which we stated, "In each of the cases in which we have held that the trial judge erred in failing to grant a new trial, there has been a common factorthe existence of juror misconduct that could have affected the verdict." 552 So. 2d at 140. And second, he cites Fulton v. Callahan, 621 So. 2d 1235 (Ala.1993), in which this Court concluded that the juror misconduct actually affected the verdict and in which we stated that the inquiry was "whether the dictionary definitions could have influenced the decision-making of the jury, not whether the jury's consideration of the definitions necessarily determined the outcome." 621 So. 2d at 1250. (Emphasis in original.) However, first it should be noted that the passage quoted from Coots is followed by a citation to Hallmark v. Allison, 451 So. 2d 270 (Ala.1984), a case in which prejudice was presumed because we were unable to determine whether the introduction of extraneous facts did change the decision of *243 the jurors. So our juror-misconduct cases encompass cases of both actual and presumed prejudice; that is, cases in which prejudice was actually shown by juror affidavits or testimony stating that the extraneous information had an affect upon the juror's verdict, and cases in which no juror so testified but because of the nature of the extraneous information the court presumed prejudice. And, second, when we framed the question in Fulton as whether the extraneous matter "could have influenced the verdict," 621 So. 2d at 1250, we did so in reference to a passage in Nowogorski v. Ford Motor Co., 579 So. 2d 586 (Ala.1990), which merely found that actual prejudice had been shown where a juror testified that his decision had been "influenced... to be `more in favor'" of one party than the other. See Fulton, 621 So. 2d at 1250. Therefore, when these statements are taken in context, it is clear that to show actual prejudice it is not necessary that a juror state that absent exposure to the extraneous material the jury verdict would have in fact been different. In short, actual prejudice has been shown where the introduction of the extraneous material had some influence upon the jury, but actual prejudice may not be inferred from the exposure itself. To hold otherwise would eradicate the distinction between actual and presumed prejudice.
Having decided that Dr. Pearson has not shown actual prejudice, we now discuss his second contention, that the dictionary definition of the word "standard" constitutes extraneous material that was prejudicial as a matter of law. Under the rule in Whitten, a new trial may be justified because members of the jury have been exposed to extraneous matters, even though there is no evidence showing that any juror's decision was actually changed as a result of the exposure. In Hallmark v. Allison, 451 So. 2d 270 (Ala. 1984), this Court held that a trial court had erred in overruling a motion for a new trial that was based on the fact that two jurors had taken unauthorized measurements of pick-up trucks after the first day of deliberations and had discussed and demonstrated their findings with other jurors. A single juror's affidavit, the only evidence of misconduct, stated that these measurements were "`important in reaching [their] decision because it would be physically impossible for the boy to hit the windshield while standing straight up.'" 451 So. 2d at 271. But there was no showing that any juror's decision was actually altered as a result of exposure to the extraneous matter. In reversing the judgment of the trial court, we concluded that the importance the jurors could have given the extraneous material in deciding a central issue in the case allowed prejudice to be presumed and that a new trial was required:
451 So. 2d at 271-72. (Emphasis added.)
Since Hallmark, this Court has discussed the rule that a new trial may be warranted where "consideration of the extraneous facts was crucial in resolving a `key material issue in the case,'" in the context of cases where jurors consulted dictionary definitions to provide illumination on the trial judge's instructions. Nowogorski, 579 So. 2d at 589, was a product liability case in which the Court held that the fact that several dictionary definitions were read aloud during jury deliberations required a new trial. We noted, "[T]he definition of the word `defective' given to the jury was critical in determining a proper verdict." Id. at 589. Similarly, in Jordan v. Brantley, 589 So. 2d 680 (Ala.1991), juror affidavits explained that on the first day of deliberations the jury had unanimously agreed to render a verdict in favor of the plaintiffs against two defendants, but that the jurors had been divided as to whether one remaining defendant had been "reasonable" and "prudent" in her actions. After finding that jurors consulted dictionary definitions of those two words to resolve the question, the trial court granted a new trial. This Court affirmed. Most recently, in Fulton v. Callahan, 621 So. 2d 1235 (Ala.1993), the Court held that it was reversible error to deny a motion for a new trial based on allegations of *244 juror misconduct. In Fulton, the jury assessed punitive damages; the judge had instructed the jury that punitive damages could be awarded only "where it is proven by clear and convincing evidence that the Defendant consciously or deliberately engaged in oppression, fraud, wantonness or malice with regard to the Plaintiff." Id. at 1249 (emphasis in Fulton). We held:
Id.
However, despite these analyses in Nowogorski, Jordan, and Fulton of the relationship between extraneous dictionary definitions and key material issues at trial, our holdings never presumed prejudice as a matter of law as a result of the exposure to the particular dictionary definitions. In each case we pointed to some showing of actual prejudice affecting the verdict. As noted previously, in Nowogorski we held that the evidence was sufficient to prove that the verdict was affected by juror misconduct because "at least one juror testified that his decision about the case was influenced by the extraneous dictionary definitions to be `more in favor' of [the defendant] than in favor of the plaintiff." 579 So. 2d at 590. Similarly, in Jordan "the foreperson told the trial judge that the dictionary definitions influenced the jury," and, therefore, we concluded, "[T]he trial court could not have found that the extraneous material was not prejudicial, because there was undisputed evidence that the extraneous material had influenced jurors." 589 So. 2d at 682. And finally, in Fulton we noted that "[One juror's] affidavit states further that he believed that the definitions `influenced [the jury] in [its] voting on the verdict.'" 621 So. 2d at 1249. As a result, in that case we concluded that there had been a showing of actual prejudice and therefore explicitly did not reach the argument that the use of the definitions was prejudicial as a matter of law. Id.
While the reasoning of Hallmark and the aforementioned cases suggest that prejudice could be presumed from exposure to a dictionary or reference source definition that is crucial to resolving a key material issue in a particular case, a majority of this Court has never explicitly held this as such. Justice Jones, in his lead opinion in Nichols v. Seaboard Coastline Ry., 341 So. 2d 671 (Ala.1976), did conclude that one juror's presenting to others, during deliberations, encyclopedia definitions of the terms "negligence," "contributory negligence," "subsequent negligence," and "subsequent contributory negligence" and four other jurors' consulting an encyclopedia or dictionary to clear up confusion concerning several legal words and phrases constituted prejudice as a matter of law. Justice Jones reasoned that a new trial was required because the jury's consideration of the extraneous reference source definitions of the legal terms, regardless of their substantive accuracy as statements of law, encroached upon the exclusive right of the trial judge to instruct the jury on the law. See Nichols, 341 So. 2d at 675-76. Justice Jones was careful to emphasize that his opinion was limited to the particular facts and circumstances of the case, but, even so, his opinion did not receive a majority of the votes of the Justices. Only one other Justice concurred with his opinion, and another concurred in the result without explanation. Six Justices, in a special writing, adhered to the traditional rule, overruled in Whitten, that actual prejudice had to be shown, although they concurred in the result of Justice Jones's opinion, because they concluded that a satisfactory showing of actual prejudice had been made under the facts of the case. See Nichols, at 677 (Bloodworth, J., concurring specially "in the result to reverse and remand").
However, even assuming that Justice Jones's opinion in Nichols had represented the majority view, that would not necessarily dictate a result in this case in favor of Dr. Pearson. Nichols involved reference source definitions of a number of words and phrases that were unarguably terms of art, with specific legal meanings. In this case we are unwilling to conclude that the jury's mere unauthorized exposure to the definition of the single word "standard" automatically requires *245 a new trial as a matter of law. The word "standard" clearly related to a key material issue in the case, specifically, whether Dr. Pearson's treatment had breached the "standard of care." In order to prevail on his medical malpractice claim, Fomby was required to show that Dr. Pearson's treatment breached the "standard of care." See Levesque v. Regional Medical Center Bd., 612 So. 2d 445, 448 (Ala.1993); Hannon v. Duncan, 594 So. 2d 85, 89 (Ala.1992); Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala. 1988); §§ 6-5-484, 6-5-548, Ala.Code 1975. And the phrase "standard of care," as used here, is a term of art with a specific legal definition that is set out in § 6-5-542(2), Ala.Code 1975:
However, we do not believe that the dictionary definition of a portion of the term "standard of care" was necessarily so "crucial to the resolution" of that key material issue that the exposure alone mandates a new trial. See Hallmark, supra, 451 So. 2d at 271. Nor are we convinced that consulting the dictionary for a definition of the single word usurped the trial judge's exclusive right to instruct the jury on the law. See Nichols, supra. We do not wish to be understood to mean that a juror's consulting a dictionary for a definition, even of a single word in the judge's charge, can never constitute prejudice as a matter of law. Today, we merely hold that, given the character of this particular nonlegal word, and considering the facts and circumstances of this case, the juror's consulting the dictionary does not require a new trial, absent a showing of some actual prejudice.
However, despite our holding that mere exposure to the definition does not require a new trial as a matter of law, we do believe that Dr. Pearson made a sufficient showing that the jury did consider extraneous material that was related to a key material issue at trial. The undisputed evidence shows the following: that the jury was unable to reach a verdict on the first day of deliberations; that one juror looked up the dictionary definition of the word "standard" and shared his findings with the others before the jury reached a verdict; and that the word looked up, the word "standard," did clearly relate to a key material issue in the case. This evidence was sufficient to strongly suggest that the jury had been exposed to extraneous matter that could have affected the verdict in this case. Given this showing, we remand this case for the trial judge to determine, after taking such evidence as he deems appropriate, whether there had been actual prejudice. Although it does not appear that we have heretofore required a trial judge to solicit additional testimony in this context, such post-trial hearings are not unprecedented when it is clear that jurors might have considered extraneous matter. See, e.g., Coots v. Isbell, 552 So. 2d at 141. In conclusion, we hold that, under the facts and circumstances of this case, Juror S.P.'s affidavit was insufficient to show actual prejudice that affected the verdict, given that there is no evidence that even one juror admitted that his or her vote was changed or even influenced as a result of the exposure to the definition. Similarly, we find ourselves unable to conclude that S.P.'s affidavit demonstrated that the exposure to the single dictionary definition, even though relating to a key material issue in the case, was so "crucial" to the determination of that issue that it constituted prejudice as a matter of law that would require a new trial. However, we hold that the S.P.'s affidavit, as undisputed evidence, was sufficient to strongly suggest that the jury had been exposed to extraneous matter that could have affected the verdict in this case. Therefore, the judgment is reversed and the case is remanded for the trial court to hold proceedings to determine the extent, if any, to which the exposure to the extraneous dictionary definition might have actually influenced the verdict. The court is then to reconsider the verdict in light of that determination.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, KENNEDY, and COOK, JJ., concur.
[1] The notice of appeal named the appellee as "Willie Fred Fomby by and through his mother, next friend and guardian Sara Fomby." The appeal has been restyled to correspond with the record. | January 10, 1997 |
764595dd-1e0d-4c65-a182-8ec8cfe09ac6 | Cain v. Sheraton Perimeter Park South Hotel | 592 So. 2d 218 | 1901319 | Alabama | Alabama Supreme Court | 592 So. 2d 218 (1991)
Nathaniel E. CAIN and Barbara L. Cain
v.
SHERATON PERIMETER PARK SOUTH HOTEL, et al.
1901319.
Supreme Court of Alabama.
December 20, 1991.
*219 Robert M. Pears of Trimmier, Atchison and Hayley, P.C., Birmingham, for appellants.
Joe C. Carroll, Birmingham, for appellees Sheraton Perimeter Park South Hotel and Woodlands Restaurant.
Roger C. Foster of McDaniel, Hall, Conerly & Lusk, P.C., Birmingham, for appellee Bon Secour Fisheries, Inc.
MADDOX, Justice.
The issue in this case is whether the trial court erred in entering a summary judgment in favor of the defendants on the plaintiffs' claim that they were liable to them because of a restaurant's serving him raw oysters that he alleges were infected with hepatitis.
On February 10, 1986, around 8:00 p.m., Nathaniel E. Cain, the plaintiff, arrived at the Sheraton Perimeter Park South Hotel to meet some business associates. While he was at the Sheraton, he consumed approximately three dozen complimentary raw oysters, and bought approximately $38.00 worth of liquor. Several other members of his party also ate several of the raw oysters off his plate.
Cain left the Sheraton around 9:00 p.m. and went to spend the evening at his sister's house. The evidence tended to show that around 11:00 p.m., Cain woke up feeling nauseous, that he had a bad headache, and that he subsequently went to a hospital. After eight days, the hospital released him with a diagnosis that he might have suffered from an allergic reaction to seafood.
After Cain's release from the hospital, he returned to his home in South Carolina. Two months later, he was still feeling ill so he went to see Dr. Jim B. Burford, who determined that Cain was suffering from hepatitis type A, which Dr. Burford concluded had been contracted from eating raw oysters. Cain claims that the raw oysters he ate at the Sheraton were contaminated and that as a result of his eating them he was sick for over a year, that he was unable to maintain his business or income, that his wife had to take care of him, and that he was worried that his condition was contagious.
In June 1987, Cain and his wife sued the Sheraton, Woodlands Restaurant, Empire Seafood Company, Inc., and Bon Secour Fisheries, Inc. He alleged negligence, breach of implied warranty of merchantability, and liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), and she alleged loss of society and consortium. After the conclusion of discovery, the defendants moved for summary judgment. The court granted Sheraton's and Woodland's motion on the grounds that Cain had failed to offer substantial evidence that they had been negligent, or that his illness had been proximately caused by consuming the raw oysters at the Sheraton and that the AEMLD did not apply in this case. The trial court reserved judgment on the motions for summary judgment filed by Bon Secour and Empire Seafood until they submitted affidavits showing that they could not have known from prior dealings with "respective antecedent purveyors" that Health Department violations, Department of Conservation violations, or matters relating to risk or a duty of suspicion existed. Subsequently, Bon Secour and Empire submitted affidavits and invoices showing that they did not have any notice of any violations or matters relating to risk or a duty and the trial court then entered summary judgment in their favor. Cain appealed the trial court's ruling in favor of all the defendants.[1] Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering summary *220 judgment. The rule requires that, in order to properly enter a summary jdugment, the trial court 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. The burdens placed on the moving party by this rule have often been discussed by this Court:
Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989) (quoting Schoen v. Gulledge, 481 So. 2d 1094 (Ala.1985)).
The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.[2]Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
The issues in this case require that we consider the effect of Ala.Code 1975, § 7-2-314, and the AEMLD upon the action. Section 7-2-314 provides in pertinent part:
The AEMLD is not based on a theory of strict liability in tort, but it retains a fault concept. Atkins v. American Motors Corp., 335 So. 2d 134, 139 (Ala.1976). "`[A] plaintiff must prove he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer....'" Ex parte Morrison's Cafeteria of Montgomery, Inc., 431 So. 2d 975, 977 (Ala.1983), quoting Atkins v. American Motors Corp., 335 So. 2d at 141.
According to the Court in Morrison's, "[t]he two standards go hand-in-hand, for it is apparent that a food product is defective or unreasonably dangerous if it is unmerchantable or unfit for human consumption." Morrison's, 431 So. 2d at 977, citing Matthews v. Campbell Soup Co., 380 F. Supp. 1061 (S.D.Tex.1974).
There are two tests that the courts use to determine if food is unmerchantable or unreasonably dangerous; one is the "foreign-natural" test, and the other is the "reasonable expectation" test. See Morrison's, 431 So. 2d at 977-78. After examining both tests, this Court in Morrison's decided to follow the "reasonable expectation" test as adopted by the Florida courts in Zabner v. Howard Johnson's, Inc., 201 *221 So. 2d 824 (Fla.Dist.Ct.App.1967). According to the "reasonable expectation" test:
Morrison's, 431 So. 2d at 978, quoting Zabner, 201 So. 2d at 826.
This Court, in Morrison's, found that the adoption of the reasonable expectation test was compatible with both the AEMLD and the implied warranty of merchantability, because "[t]he terms `defect,' `unreasonably dangerous,' and `merchantable' all focus on the expectations of the ordinary consumer, possessed of the ordinary knowledge common to the community." 431 So. 2d at 978. See Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976).
Generally, the question of what a consumer is reasonably justified to expect to find in his food is a question for the jury, unless the court finds, as a matter of law, that the consumer would reasonably expect to find the item in his food. Morrison's, 431 So. 2d at 979. See Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 59 P.2d 144 (1936).
Morrison's, 431 So. 2d at 979, quoting Rheingold, What Are The Consumer's "Reasonable Expectations"?, 22 Bus.Law. 589 (1967).
This Court, in Morrison's, held that the presence of a one-centimeter bone did not render a piece of fish unreasonably dangerous. 431 So. 2d at 978-79. The Sheraton and Woodlands argue that the Morrison's principle is applicable here because, they say, the average consumer knows that raw oysters are sometimes contaminated and they argue that a customer should reasonably expect to find contamination in a few raw oysters. We disagree. This Court cannot conclude that, as a matter of law, a consumer should reasonably expect to eat a contaminated oyster. The question concerning the reasonable expectation of a consumer is usually a question for the jury, and we see no reason to depart from that principle in this case. Only in limited circumstances such as were present in Morrison's may a court decide what a consumer should reasonably expect to find in his food, "as a matter of law."
Bon Secour and Empire Seafood stated that the issue for review is "[w]hether the trial court correctly granted summary judgment where the appellant submitted no evidence that his injuries were proximately caused by the consumption of oysters nor that the appellee supplied the alleged contaminated oysters."
Under both the AEMLD and § 7-2-314, the defect or lack of merchantability, of course, must be proved to have been the proximate cause of the plaintiff's injuries. Generally, the question of proximate cause is a question of fact to be determined by the jury. See General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala.1985); Marshall County v. Uptain, 409 So. 2d 423 (Ala.1981).
There was evidence that Cain became ill within several hours of eating the raw oysters at the Sheraton. The defendants presented evidence to the trial court that hepatitis has a long incubation period and that the hospital that treated Cain found that he possibly suffered from seafood allergies. The trial court concluded, however, that Cain presented no rebuttal evidence "tending to show that hepatitis can occur within hours of ingestion."
We must respectfully disagree with the trial court. Cain submitted an affidavit from Dr. Jim Burford, who examined Cain about two months after he was released *222 from the hospital. Dr. Burford stated that he diagnosed Cain as suffering from hepatitis at the time he examined him. He stated that the illness immediately following the consumption of the oysters was caused by ingestion of contaminated oysters. He did not say that the illness immediately following the consumption was a symptom of hepatitis.[3]
The defendants claim that Cain offered no "substantial evidence" that his illness was caused by the consumption of the raw oysters, because, they contend, Dr. Burford's affidavit was not based upon personal knowledge of the plaintiff's illness at the time of his hospitalization and therefore presents evidence that would be inadmissible at trial.[4]
In Perry v. Mobile County, 533 So. 2d 602, 604 (Ala.1988), this Court discussed the requirements for admissibility of an affidavit and held:
In this case, none of the defendants moved to strike the plaintiff's affidavit filed in his attempt to carry his burden of showing that there was a triable issue. The first time any of the defendants objected to the use of the affidavit came after the case was appealed. Because none of the defendants called the trial court's attention to the claim that Burford's affidavit was inadmissible, we hold that the defendants waived their right to object to its use. McMillian v. Wallis, 567 So. 2d 1199 (Ala. 1990). Even though Dr. Burford's affidavit might have been inadmissible because it was not based upon personal knowledge of the hospitalization, we find that its availability for the trial court's consideration, in any event, did not result in a "gross miscarriage of justice." Consequently, Dr. Burford's affidavit will be considered as evidence filed by Cain in opposition to the defendants' motion for summary judgment.
The Sheraton and Woodlands argue that they can not be held liable under § 7-2-314 because, they say, there was no "sale" by the Sheraton to Cain. Section 7-2-106(1) defines "sale" as the passing of title from the seller to the buyer for a price. Although the evidence shows that the Sheraton offered free oysters to patrons in the lounge, we cannot hold that the oysters were not "sold" within the meaning of the statute. Cain was a patron in the lounge, and the evidence shows that he had spent approximately $38.00 on drinks for himself and his business associates while he ate the oysters. He claims that the only reason he and his associates went to the Sheraton was to eat raw oysters.[5]
*223 We conclude that the learned trial judge erred in holding, as a matter of law, that Cain had failed to present substantial evidence that his illness was proximately caused by his consumption of raw oysters at the Sheraton. We find, upon review, that there is a genuine issue of material fact as to whether Cain should reasonably have expected that the raw oysters may have been contaminated. There is also a genuine issue of material fact as to whether the consumption of the raw oysters at the Sheraton was the proximate cause of Cain's hepatitis.
Based on the foregoing, we reverse the summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The appellant did not discuss the issue of negligence; therefore, this Court will not address it.
[2] This action was filed after June 11, 1987; therefore, the "substantial evidence" standard applies. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
[3] We note that, according to The Sloane-Dorland Annotated Medical-Legal Dictionary, p. 339 (1987), the incubation period for hepatitis type A is approximately 15 to 60 days; consequently, a diagnosis made two months after the consumption of raw oysters is plausible, and, therefore, a jury question.
[4] An affidavit submitted in support of, or in opposition to, a summary judgment motion must set forth facts that would be admissible at trial. Rule 56(e), A.R.Civ.P.; Welch v. Houston County Hosp. Bd., 502 So. 2d 340 (Ala. 1987). The party alleging the inadmissibility must make the trial court aware of the fact that the affidavit is inadmissible.
[5] According to the AEMLD, the product need only be put into the stream of commerce for a sale to take place. Atkins v. American Motors Corp., 335 So. 2d 134, 139 (Ala.1976). | December 20, 1991 |
d4489062-702d-43ca-b843-609f9d008d76 | Crowley v. State Farm | 591 So. 2d 53 | 1901349 | Alabama | Alabama Supreme Court | 591 So. 2d 53 (1991)
Don CROWLEY
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
1901349.
Supreme Court of Alabama.
November 27, 1991.
*54 M. Wayne Wheeler, Birmingham, for appellant.
Thomas A. Woodall of Woodall & Maddox, P.C. and Rufus E. Elliott III, Birmingham, for appellee.
HOUSTON, Justice.
State Farm Mutual Automobile Insurance Company ("State Farm") filed a declaratory judgment action against Don Crowley, seeking a resolution of coverage questions under a policy of insurance issued to Crowley. The coverage questions regarded an alleged theft loss of a 1981 Jaguar XJ6 automobile ("the vehicle"). By agreement in open court, the parties stipulated as to the exhibits and the nature and substance of the testimony of the witnesses. Based on that stipulation, the trial court held that "[Crowley] never had title to or ownership of the [vehicle] which was the subject of his claim and, therefore, there was no insurance coverage for theft loss on such [vehicle]." Crowley filed post-judgment motions (a motion for judgment notwithstanding the verdict, pursuant to Rule 50(b), Ala.R.Civ.P; a motion for new trial, pursuant to Rule 59(a); a motion to alter, amend, or vacate, pursuant to Rule 59(e); and a motion for a finding of facts, pursuant to Rule 52), all of which the trial court denied. Crowley appealed. We reverse and remand.
Crowley contends that the trial court erroneously held that, because he did not have a certificate of title, he did not own the vehicle and therefore had no coverage.
State Farm contends that the trial court correctly held that there was no coverage because, it contends, Crowley did not present sufficient proof that he owned the vehicle, especially in light of the fact that Crowley failed to show that his name appeared on a certificate of title.
The issue for our review is whether the trial court erred in holding that Crowley did not "own" the vehicle. We are not asked to decide, and we do not decide, whether there was a loss covered by the policy of insurance. Because the trial court decided this case based on documentary evidence and stipulations by the parties, the ore tenus rule does not apply; therefore, there is no presumption of correctness *55 afforded the trial court's holding. See Craig Construction Co. v. Hendrix, 568 So. 2d 752 (Ala.1990).
There is no need to set out all the evidence before the trial court, but we note the following:
State Farm issued a policy of insurance to Crowley that remained in effect at all times relevant to this appeal. The policy included comprehensive coverage for any loss to Crowley's vehicle caused by theft, with the comprehensive coverage extending to a "newly acquired car," which was defined as "a car newly owned by" the insured. Mike Cohen of Mike's Auto Sales purchased the vehicle from Bart Starr Motors, Inc. ("Bart Starr"), for $6,100. Thereafter, Crowley purchased the vehicle from Cohen for $12,750. Crowley then sold the vehicle to Al Locke for $13,500. When the payment checks from Locke to Crowley (one for $6,800 and one for $6,700) were returned unpaid because of insufficient funds, Crowley filed criminal charges against Locke alleging theft. Subsequently, Crowley made a theft claim with State Farm under the policy provision relating to a "newly acquired car." State Farm denied coverage after it had determined that Crowley had never owned the vehicle.
The undisputed evidence established that Crowley had no certificate of title. The evidence also, however, established the existence of a written bill of sale for the vehicle from Cohen to Crowley; a physical transfer of the vehicle from Cohen to Crowley; the recorded statements that Crowley gave to State Farm seeking coverage under the policy provision for coverage of a "newly acquired car"; and the subsequent sale of the vehicle by Crowley to Locke and Crowley's receipt of payment checks, albeit drawn on an account with insufficient funds, from Locke.
Pursuant to Ala.Code 1975, § 32-8-39(d), "[a] certificate of title issued by [the Department of Revenue] is prima facie evidence of the facts appearing on it." However, a certificate of title is not conclusive evidence of ownership, because ownership can be established by other evidence. See Government Employees Insurance Co. v. Fulmer, 376 So. 2d 748 (Ala.Civ.App. 1979); City Car Sales, Inc. v. McAlpin, 380 So. 2d 865 (Ala.Civ.App.1979), cert. denied, 380 So. 2d 869 (Ala.1980); see, also, Murray v. Dempsey, 521 So. 2d 1345 (Ala. Civ.App.1988); Congress Finance Corp. v. Funderburk, 416 So. 2d 1059 (Ala.Civ.App. 1982); Eleven Automobiles. v. State ex rel. Graddick, 384 So. 2d 1129 (Ala.Civ.App. 1980). Therefore, of necessity, the absence of ownership indicated by the absence of a certificate of title, as in this case, can be rebutted by other evidence of ownership. For example, ownership or a transfer of ownership can be established by evidence of a party's taking possession of the vehicle; by evidence of a bill of sale that manifests an intent to sell and transfer the vehicle and to grant dominion and control over it; and by evidence of a transfer of money for the vehicle. See, e.g., The Hartford Insurance Group v. State Farm Mutual Ins. Co., 372 So. 2d 1303 (Ala.1979) (bill of sale sufficient evidence of ownership).
In this case, although it is undisputed that Crowley did not have a certificate of title, the evidence established a transfer of ownership to him. State Farm could have restricted coverage pertaining to "a newly acquired car" to those vehicles as to which the insured had a certificate of title. However, State Farm did not so restrict coverage. Rather, the dispositive restrictive word in the provision at issue in this case was the word "owned."
In our opinion, the evidence established that Crowley "owned" the vehicle. Therefore, we reverse the judgment and remand the cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | November 27, 1991 |
37fb8f38-d9cf-474c-befd-14ee9cf26f4d | Lansford v. Gorham | 591 So. 2d 63 | 1900287 | Alabama | Alabama Supreme Court | 591 So. 2d 63 (1991)
Holly Howle LANSFORD, as executrix of the Estate of Henry Willingham Howle, deceased
v.
Opal GORHAM.
1900287.
Supreme Court of Alabama.
November 27, 1991.
Martha E. Williams, Cullman, for appellant.
Juliet G. St. John, Cullman, for appellee.
KENNEDY, Justice.
The Court's original opinion of August 23, 1991, is withdrawn, and the following opinion is substituted therefor.
On April 24, 1985, Henry Howle converted a checking account at AmSouth Bank in Cullman, Alabama, into a joint checking account, adding the name of Opal Gorham to the account. Both Henry Howle and Opal Gorham signed the signature card. Henry Howle was given a copy of the bank rules and regulations at that time. Mr. Howle died on September 29, 1986. On or about October 15, 1986, Ms. Gorham withdrew $122,124.77 from the joint checking account. On November 4, 1986, the Cullman County Probate Court granted letters *64 testamentary for the estate of Henry Howle to Holly Howle Lansford, the daughter of Henry Howle and the executrix of his estate. Upon Ms. Lansford's petition, the administration of Henry Howle's estate was removed to the Cullman Circuit Court. Ms. Lansford sent a written demand to Ms. Gorham to return the $122,124.77 to Henry Howle's estate. Ms. Gorham refused to do so.
Ms. Lansford filed an action in the circuit court, alleging in count one a conversion and praying in count two that a constructive trust be placed on the $122,124.77. The cause was tried before the trial court, sitting without a jury. The trial court held that, based on the language of the account signature card and the account rules and regulations and the evidence of the relationships between Henry Howle and the parties, the joint tenancy had created a right of survivorship in Ms. Gorham, and it entered a judgment for Ms. Gorham. The trial court's order states in pertinent part:
On appeal, the parties agree that the ownership of funds in a joint account is to be determined by an application of Ala. Code 1975, § 35-4-7, to the language of the joint tenancy instrument. Section 35-4-7 provides:
(Emphasis added.)
In Andrews v. Troy Bank & Trust Co., 529 So. 2d 987 (Ala.1988), we quoted Parr v. *65 Godwin, 463 So. 2d 129, 134-35 (Ala.1984), concerning the requirements of § 35-4-7:
529 So. 2d at 993.
The bank's checking account rules and regulations state in pertinent part:
(Emphasis added.)
The relevant portion of the checking account signature card states:
(Emphasis added.)
Although the language on the signature card and its reference to the bank rules governing payment to the surviving depositor are not literally an express grant of a right of survivorship, this language does indicate an intention consistent with the creation of a joint tenancy with right of survivorship. In addition to this evidence of intent, the trial court found independent evidence from the relationships between the parties and Henry Howle to indicate that Henry Howle intended to create a joint account with right of survivorship with Ms. Gorham. The trial court's findings that this evidence satisfied the requirements of Ala.Code 1975, § 35-4-7, and Andrews v. Troy Bank & Trust Co., supra, for the creation of joint tenancies with right of survivorship are not clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So. 2d 877, 878 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala.1981).
The judgment of the trial court is due to be, and it is hereby, affirmed.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur. | November 27, 1991 |
ac3f4c3f-f925-40d9-adb7-0b623bfb0c9a | Powe v. State | 597 So. 2d 721 | 1901568 | Alabama | Alabama Supreme Court | 597 So. 2d 721 (1991)
Ex parte State of Alabama.
(Re Willie James POWE v. STATE).
1901568.
Supreme Court of Alabama.
December 13, 1991.
Rehearing Denied February 14, 1992.
*722 James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for petitioner.
Lawrence B. Sheffield III and John A. Lentine of Sheffield, Sheffield, Sheffield & Lentine, P.C., Birmingham, for respondent.
INGRAM, Justice.
Willie James Powe was charged, in a two-count indictment, with first degree rape, in violation of § 13A-6-61, Ala.Code 1975, and second degree rape, in violation of § 13A-6-62. The charges stemmed from allegations by Powe's minor daughter, N.S., that Powe sexually assaulted her. Powe was convicted, after a jury trial, of rape in the first degree and was sentenced to a term of 12 years in the state penitentiary. However, the Court of Criminal Appeals reversed Powe's conviction and rendered a judgment for the defendant, 597 So. 2d 720, finding insufficient evidence to prove the element of forcible compulsion under § 13A-6-61(a)(1). This Court granted the State's petition for the writ of certiorari.
The State raises one issue for our review: Whether the Court of Criminal Appeals erred in reversing and rendering a judgment in the instant case based upon a finding of insufficiency of the evidence to prove the element of forcible compulsion. Specifically, the State argues that the Court of Criminal Appeals' decision conflicts with that court's decisions in Pittman v. State, 460 So. 2d 232 (Ala.Crim.App.1984), writ quashed, 466 So. 2d 951 (Ala.1985), and Parrish v. State, 494 So. 2d 705 (Ala.Crim.App.1985).
The record in this case reveals the following pertinent facts: The alleged victim, N.S., testified that Willie Powe is her natural father and that sometime during the month of May 1988, he sexually assaulted her. N.S. was 11 years old at the time of the alleged incident.
N.S. stated that the incident took place in her parents' bedroom when no one, other than N.S. and her father, was at home. N.S. testified that she and her father had *723 been arm wrestling while she was on the floor and her father was on the bed. She testified that at some point her father told her that it was time to take a nap and that he told her to lie on her mother's side of the bed. N.S. said she did as her father told her, while her father lay on the other side of the bed. Thereafter, N.S. said, Powe told her that he was cold, and she said he told her to get on top of him. Again, N.S. said, she obeyed her father. N.S. further testified that her father physically lifted her up on top of him. She stated that at this point she was lying lengthwise on top of her father.
N.S. testified that next her father unbuttoned and unzipped her pants, put his hand inside her panties, and touched her pubic hair. N.S. testified, on direct examination, that after her father touched her pubic hair, he then pulled down the hospital-type scrub pants that he was wearing and put his penis inside her vagina. Although this testimony conflicted somewhat with her response to certain questions on cross-examination, N.S. was recalled to the witness stand by the prosecution later in the trial and once again testified that her father did put his penis inside her vagina.
N.S. testified that after her father had put his penis inside her vagina, he then told her to get up and go and lock the door in the living room, which N.S. did. N.S. stated that she then went back to the bedroom, but that she did not get back on the bed with her father. Rather, N.S. stated, she combed her hair and got ready to go over to her best friend's house. N.S. testified that before she left her house, her father called her back into her mother's bedroom and told her that she was "acting like a baby."
N.S. testified that she had lain on top of her father for about two minutes and that it was about four or five minutes between the time that she got off her father and the time that she left the house. Although N.S. stated that her father did not expressly threaten her before or during the incident, she did testify that she was afraid of her father.
N.S. testified that she did not tell her best friend what had taken place because she did not think that her friend should know. However, some time after the incident occurred, N.S., while at school, wrote a note to a classmate telling her about the incident. The note was intercepted by two other classmates of N.S., who took the note to the school counselor. The counselor testified that after receiving the note she talked with N.S. about what she said her father had done to her. N.S. told the counselor that she had not told her mother about the incident because she was afraid it would cause her mother to hate her.
After talking with the school counselor about the incident, school officials reported the incident to the Birmingham Police Department. Thereafter, N.S. was interviewed by Sergeant Sue Boggan. Sergeant Boggan testified that when she talked with N.S., N.S. appeared very withdrawn and very fearful. She further stated that N.S. was extremely afraid of talking about what had happened and also about telling her mother about the incident. Sergeant Boggan stated that, based on her training and experience in dealing with abused children, she perceived N.S. as exhibiting characteristics consistent with those exhibited by other children that she had observed who were victims of sexual abuse.
After her interview with Sergeant Boggan, N.S. was taken by her mother to the Children's Hospital of Alabama, where she was examined by Dr. Christy Mulcahey. Dr. Mulcahey testified that she was a specialist in the area of obstetrics and gynecology. Dr. Mulcahey indicated that she was particularly interested in gynecologic problems in children and in teenagers and that as part of her training she had worked in a child abuse program in San Francisco, California.
Dr. Mulcahey stated that during her examination of N.S. in December 1988, N.S. told her that her father had "touched her all over" and had "put his penis in her vagina." Dr. Mulcahey testified that at the time of the examination, she wrote in her assessment of N.S. that N.S. gave a *724 very clear, fairly straight-forward history of abuse.
Dr. Mulcahey further testified that her physical examination of N.S. revealed nothing exceptional for "an 11- almost 12-year old who had already started her period." Dr. Mulcahey indicated that her examination revealed that N.S.'s hymenal tissue was still intact. However, Dr. Mulcahey cautioned that approximately three-fourths of children who have been sexually abused have normal physical examinations. She noted that the statistic is particularly true for children in N.S.'s age group because they are of an age where the hymenal tissue at the opening of the vagina "is more elastic and stretchy" than it would be at age four or five. Dr. Mulcahey further indicated that the increased elasticity of the vaginal tissue is the result of the female body's production of estrogen, which coincides with the onset of menstruation.
Audie Powe, N.S.'s mother, also gave testimony at the trial. She testified that she was Powe's wife and N.S.'s mother and that Powe was N.S.'s natural father. She further testified that she had initiated divorce proceedings against Powe, but that the divorce was not final at the time of trial.
Mrs. Powe testified that prior to the alleged incident between her daughter and her husband, her daughter had been a good student and had been active and well adjusted. Mrs. Powe further stated, however, that in the spring of 1988, her daughter's grades dropped and she began to get "rejectful in a lot of things." Mrs. Powe also testified that her daughter had been hospitalized on one occasion since the incident because she had become suicidal. Mrs. Powe testified that when she and her husband would "go to arguing, fussing ... and fighting," it made N.S. "real nervous and upset."
After the State rested its case, Powe testified in his own defense. Powe testified that he did not sexually assault his daughter and that the incident to which she testified never occurred. He further stated that his daughter had lied about the incident and had stuck to the lie after she was caught. He also testified that although he and his wife had argued in N.S.'s presence, he had never struck his wife or N.S. Powe denied ever threatening his wife or his daughter in any way.
The sole issue in this case is whether the evidence, as summarized above, is sufficient to support a conviction of first degree rape. In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So. 2d 485 (Ala.Crim.App.1984), aff'd, 471 So. 2d 493 (Ala.1985). Furthermore, a judgment of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the judgment is so decided as to clearly convince the reviewing court that it was wrong and unjust. Jackson v. State, 516 So. 2d 726 (Ala.Crim.App.1985).
Section 13A-6-61(a)(1), Ala.Code 1975, the provision under which Powe was convicted, provides that "[a] male commits the crime of rape in the first degree if ... [h]e engages in sexual intercourse with a female by forcible compulsion." "Sexual intercourse" is defined in § 13A-6-60(1) as occurring "upon any penetration, however slight." Furthermore, § 13A-6-60(8) defines "forcible compulsion" as "[p]hysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person."
In the present case, there is no evidence that N.S. was overcome by her father's physical force. Neither is there evidence of any express threat by Powe. However, the State argues that the evidence, taken as a whole, is sufficient to show an implied threat of such a nature as to support a conviction for first degree rape. The State bases its argument on Pittman v. State, 460 So. 2d 232 (Ala.Crim.App.1984), writ *725 quashed, 466 So. 2d 951 (Ala.1985), and Parrish v. State, 494 So. 2d 705 (Ala.Crim.App.1985). These cases present the general notion that in charges involving sex crimes against children the force required to consummate the crime differs from the force required to consummate those crimes against a mature female.
In Pittman, the Court of Criminal Appeals held that "[i]t is clear that the force required to consummate rape in the first degree is necessarily relative. The force required to consummate the crime against a mature female is not the standard for application in a case in which the alleged victim is a child." 460 So. 2d at 235. The Pittman court concluded that the evidence in that case was sufficient to satisfy the forcible compulsion element of rape in the first degree. Id. The evidence consisted mainly of the 13-year-old victim's testimony that she initially refused to have intercourse with her stepfather, the defendant, but that she eventually cooperated after she was expressly threatened. 460 So. 2d at 234-35.
In Parrish, the Court of Criminal Appeals addressed a sufficiency-of-the-evidence argument with regard to a first degree sexual abuse conviction. The first degree sexual abuse statute, like the first degree rape statute, requires a finding of forcible compulsion. See § 13A-6-66(a)(1), Ala.Code 1975.
The evidence in Parrish showed that the defendant, who was the boyfriend of the victim's mother, touched the 12-year-old victim's private parts while the victim pretended to be asleep on a bed in the appellant's house. 494 So. 2d at 706-09. The victim in Parrish testified that the defendant held her down by putting his foot over her leg and that when she pretended to wake up, the defendant left the room. 494 So. 2d at 707. In affirming the conviction, the Parrish court held that the mere fact that a 12-year-old girl makes no effort to resist a sexual confrontation does not negate the inference that sufficient legal force existed. 494 So. 2d at 709. The court went on to hold that when a sufficiency-of-the-evidence issue is raised in cases stemming from an alleged sexual assault of minors, questions involving resistance and consent must be viewed in the context of the age of the assaulted minor. 494 So. 2d at 710. Applying a totality-of-the-circumstances test, the court concluded that the record revealed a sufficient evidentiary showing on the forcible compulsion element of the crime charged. 494 So. 2d at 713.
Although the Parrish court ultimately held that the element of forcible compulsion was satisfied by the fact that the victim was held down by the defendant and by the fact that the victim stated that she had blood in her panties after the assault, other factors that the court considered significant were: (1) the victim's age and the fact that the attack was perpetrated by the boyfriend of the victim's mother; (2) that the defendant, who had been drinking and smoking marijuana, got into bed with the victim; (3) that the victim testified that the defendant had sexually molested her on another occasion but that her mother had ignored her when she tried to tell her about the assault; and (4) that the victim was in a particularly vulnerable situation because the assault took place at the defendant's residence. 494 So. 2d at 710. The court, in Parrish, further noted that the jury had the opportunity to consider factors such as the relative size of the parties, their ages, and their social differences. Id.
A third Court of Criminal Appeals case cited by the parties is Rider v. State, 544 So. 2d 994 (Ala.Crim.App.1989), which was relied on by the court below in its reversal of Powe's conviction. In Rider, as in Pittman and in Parrish, the defendant's primary argument was that the evidence was insufficient to support a finding of forcible compulsion. 544 So. 2d at 994. The defendant in Rider, the 27-year-old stepfather of the alleged victim, a child, was convicted of sexual abuse in the first degree and sodomy in the first degree. Id. The child testified that the defendant forced her hand onto his penis and that the defendant touched her breasts and her vagina. Id. The child further testified that the defendant performed oral sex on her and asked her to perform oral sex on him. Id. She testified that the touching began sometime *726 after her 9th birthday and continued until around her 12th birthday. 544 So. 2d at 995. When the prosecutor asked the child if she "voluntarily" performed oral sex acts on the defendant, she did not answer. Id. She testified that she tried to "mind" her stepfather because she "liked the way he treated her, like she was his only child." Id. She further stated that the defendant had never done anything to make her afraid of him and that she was not afraid of him. Id. In reversing the defendant's conviction, the Rider court concluded that there was no evidence that the child made any protest or complaint to the defendant sufficient to indicate that her earnest resistance was overcome. Id. Applying the totality-of-the-circumstances standard, the court found that the evidence was insufficient to support a finding of either physical force or a threat, express or implied. 544 So. 2d at 996.
After reviewing the Court of Criminal Appeals' decisions in Pittman, Parrish, and Rider, we find the facts of each to be distinguishable from the facts presented in the instant case. In Pittman, there was evidence that the victim was expressly threatened, and that evidence was held to be sufficient on the element of forcible compulsion. In Parrish, there was evidence that physical force was used to restrain the victim, and that evidence was held to be sufficient evidence on the element of forcible compulsion. Finally, in Rider, there was neither a threat of any kind nor the use of any physical force. Furthermore, there was nothing in the record to show that the sex acts were anything other than voluntary.
The record in this case reveals no evidence that physical force was used on the victim or that the victim was expressly threatened. Therefore, we find the Court of Criminal Appeals' decisions in Pittman and Parrish, since those cases, respectively, concern evidence of physical force and evidence of an express threat, to be inapplicable under the facts of the present case. Furthermore, we distinguish the Rider case because we find that the evidence in the present case, unlike the evidence in Rider, merits an analysis of whether, viewing the totality of the circumstances, a jury could properly find that an implied threat was made against the victim sufficient to satisfy the element of forcible compulsion. Such an analysis, however, presents an issue of first impression for the appellate courts of this state; therefore, we look to other jurisdictions for guidance in deciding this case.
One of the most persuasive cases that we discovered in our research of the issue presented in this case is State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987). In Etheridge, the North Carolina Supreme Court considered whether the evidence was sufficient to support the defendant's conviction of sodomy in connection with the sexual assault of his minor son. 319 N.C. at 36-37, 352 S.E.2d at 675. The record in Etheridge revealed no evidence that the defendant had used physical force or that he had coerced his son's cooperation by the use of express threats. Id. However, the Etheridge court affirmed the conviction, holding that a child's general fear of a parent can suffice as the force necessary to commit a forcible sexual assault. 352 S.E.2d at 682. The Etheridge court, in holding that constructive force could be reasonably inferred from the circumstances surrounding the parent-child relationship in that case, initially noted:
319 N.C. at 47, 352 S.E.2d at 681. The Etheridge court further observed that the incidents of abuse in that case all occurred while the victim lived as an unemancipated minor in the defendant's household, subject to the defendant's parental authority. The court then stated:
319 N.C. at 48, 352 S.E.2d at 681-82.
The Supreme Court of North Carolina, in reaching its decision in Etheridge, limited its prior decision in State v. Alston, 310 N.C. 399, 312 S.E.2d 470 (1984), and overruled Alston's progeny, State v. Lester, 70 N.C.App. 757, 321 S.E.2d 166 (1984), aff'd mem., 313 N.C. 595, 330 S.E.2d 205 (1985). In Alston, the court held that an adult victim's general fear of an attacker based on knowledge of prior acts of violence by the attacker was insufficient to show the force necessary to uphold a conviction of rape. The Etheridge court, however, limited Alston to sexual assault cases involving adults. 319 N.C. at 46-47, 352 S.E.2d at 681. In Lester, the North Carolina Court of Appeals decision had interpreted Alston as holding that evidence of a 15-year-old victim's general fear of her father was insufficient to support her father's conviction for rape. In overruling Lester, the Etheridge court disavowed Lester as misapplying the Alston "general fear" rationale to a case of intrafamilial sexual abuse. Id.
The Supreme Court of North Carolina's ruling in the Etheridge case was regarded in that state as a positive step toward dealing more effectively with intrafamilial sexual abuse cases. See Note, State v. Etheridge: The General Fear Theory and Intrafamilial Sexual Assault, 66 N.C.L.Rev. 1177 (1988). As one commentator noted:
Id. at 1184-85.
A second case that we find persuasive in our analysis of the issue in the present case is the Supreme Court of Pennsylvania's decision in Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). The defendant in Rhodes was convicted of forcibly raping his neighbors' eight-year-old daughter. 510 Pa. at 539-44, 510 A.2d at 1218-20. The evidence revealed that the defendant saw the child at a playground after school and asked her to walk to a nearby abandoned building with him; there, he had sexual intercourse with her. Id. There was no evidence that the child made any effort to resist or repel the defendant or that the defendant used physical force to compel the child to submit to sexual intercourse. Id. The superior court reversed the conviction, finding insufficient evidence on the element of forcible compulsion. Id. The Supreme Court of Pennsylvania, however, reversed the superior court's ruling and reinstated the conviction. 510 Pa. at 564-65, 510 A.2d at 1231.
In its opinion, the Supreme Court of Pennsylvania first noted:
510 Pa. at 553, 510 A.2d at 1225. The court further noted that the degree of force required to constitute rape is relative and depends upon the facts and particular circumstances of the case. 510 Pa. at 554-56, 510 A.2d at 1226. The court went on to *728 hold that the term "forcible compulsion," as used in Pennsylvania's rape statute, includes not only physical force or violence but also moral, psychological, or intellectual force used to compel a person to engage in sexual intercourse against that person's will. Id.
The Rhodes court then set out to determine whether, considering the totality of the circumstances, the evidence supported a finding that the defendant had used forcible compulsion. Id. The court noted that significant factors to be weighed in that determination would include
510 Pa. at 556, 510 A.2d at 1226. The court further noted, however, that this list of factors is by no means exclusive. Id.
After reviewing the evidence in the case, the Rhodes court found the evidence sufficient to demonstrate beyond a reasonable doubt that the defendant had engaged in sexual intercourse with the eight-year-old child by the threat of forcible compulsion. 510 Pa. at 556-58, 510 A.2d at 1227. In reaching such a conclusion, the Rhodes court stated:
510 Pa. at 557, 510 A.2d at 1227.
Although there is authority from other jurisdictions refusing to apply reasoning similar to that employed in State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987), and Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), see e.g., McQueen v. State, 423 So. 2d 800 (Miss.1982), we find the reasoning applied in Etheridge and Rhodes to be the most logical. Therefore, applying the reasoning of Etheridge and Rhodes, and taking into consideration the totality of the circumstances as outlined in the record in this case, we conclude that the evidence in the present case is sufficient to support the jury's finding that Willie James Powe had sexual intercourse with his daughter, N.S., through the use of forcible compulsion.
Powe was the natural father of N.S. At the time of the incident, Powe was married to N.S.'s mother and resided in the household with N.S. and her mother. Powe's arrest records indicate that at the time of the incident, he was approximately 40 years old, while N.S., on the other hand, was 11 years old. The incident between N.S. and her father occurred in her parents' bedroom while no one else was at home. Furthermore, N.S. indicated that she was afraid of her father. From this evidence, we conclude that a jury could reasonably infer that Powe held a position of authority and domination with regard to his daughter sufficient to allow the inference of an implied threat to her if she refused to comply with his demands.
At this point, however, we note that our holding in this case is limited to cases concerning the sexual assault of children by adults with whom the children are in a relationship of trust. The reason for the distinction between cases involving children as victims and those involving adults as victims is the great influence and control that an adult who plays a dominant role in a child's life may exert over the child. When a defendant who plays an authoritative role in a child's world instructs the *729 child to submit to certain acts, an implied threat of some sort of disciplinary action accompanies the instruction. If the victim is young, inexperienced, and perhaps ignorant of the "wrongness" of the conduct, the child may submit to the acts because the child assumes that the conduct is acceptable or because the child does not have the capacity to refuse. Moreover, fear of the parent resulting from love or respect may play a role as great as or greater than that played by fear of threats of serious bodily harm in coercing a child to submit to a sexual act. Note, State v. Etheridge: The General Fear Theory and Intrafamilial Sexual Assault, 66 N.C.L.Rev. 1177, 1185 (1988).
One commentator cited the statistic that about 80% of the reported cases of child sexual assault occur within what are traditionally referred to as affinity systems, e.g., immediate family, relatives, close friends, and neighbors. Elizabeth Ward, Rape of Girl-Children by Male Family Members, 15 Austl. & N.Z. J. Criminology 90 (1982). Of the 80% of child sexual assault cases occurring within affinity systems, about 50% of the offenders are the natural fathers of the victims. Id.
"....
Id. at 96-97. (Emphasis in original.)
Our holding in this case establishes a mechanism by which the unique relationship between children and the adults who exercise a position of domination and control over them may be taken into consideration in determining whether the element of forcible compulsion has been established. To hold otherwise would be to require a child to be mangled, to see a deadly weapon, or to hear the actual utterance of specifically threatening words before a jury would be authorized to discern a rational fear of violence. Making these criteria absolute would be ignoring reality. See McQueen v. State, 423 So. 2d 800 (Miss.1982) (Hawkins, J., dissenting).
In view of the foregoing, we reverse the judgment of the Court of Criminal Appeals and remand the cause for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX and ALMON, JJ., dissent.
ALMON, Justice (dissenting).
As the Court of Criminal Appeals has noted in its opinion, the evidence in this case simply does not support a finding of "forcible compulsion" as that term is defined in § 13A-6-60(8), Ala.Code 1975:
I see no evidence of physical force that overcame "earnest resistance" or of any threat that placed the daughter "in fear of immediate death or serious physical injury." Thus, I agree with the Court of Criminal Appeals that Powe is not guilty of first degree rape by forcible compulsion, the crime defined by § 13A-6-61(a)(1) and the crime for which he was indicted and convicted.
However, the evidence clearly would support a finding that Powe is guilty of first *730 degree rape by "sexual intercourse with a female who is less than 12 years old," the crime defined by § 13A-6-61(a)(3). Thus, this is purely a case of a defective indictment. See Rider v. State, 544 So. 2d 994 (Ala.Crim.App.), cert. denied, 544 So. 2d 997 (Ala.1989), in which the Court of Criminal Appeals similarly found that the evidence did not support a finding of "forcible compulsion" but that it would have supported a conviction if the indictment had been based on the victim's being less than 12 years old.
Now, to correct the prosecutor's mistake, this Court has changed the meaning of "forcible compulsion." The Court's strained interpretation of "forcible compulsion" to make up for the error committed by the prosecutor is a further error with much further-reaching consequences. The necessity of following the clear language of statutes defining criminal offenses should persuade the Court to make the hard decision of sustaining the reversal by the Court of Criminal Appeals. The Court of Criminal Appeals has already made the difficult, but correct, decision to reverse the conviction of a man who, as a jury could find under a proper indictment and the evidence presented at trial, has committed a sexual offense against his minor daughter. Powe is not guilty of the crime for which he has been indicted and convicted; the Court's understandable feeling that he should be punished should not cloud its judgment and lead to a distortion of the law.
Maddox, J., concurs. | December 13, 1991 |
724a78c0-23af-42df-b954-2ea82ad1ed0a | Ex Parte Holton | 590 So. 2d 918 | 1900662 | Alabama | Alabama Supreme Court | 590 So. 2d 918 (1991)
Ex parte Danny Ray HOLTON.
(Re Danny Ray Holton v. State).
1900662.
Supreme Court of Alabama.
November 22, 1991.
*919 D. Taylor Flowers of Lewis, Brackin & Flowers, Dothan, for appellant.
James H. Evans, Atty. Gen., and Norbert H. Williams, Asst. Atty. Gen., for appellee.
INGRAM, Justice.
Danny Ray Holton was convicted of selling cocaine and was sentenced to 21 years in prison. The Court of Criminal Appeals affirmed his conviction, 590 So. 2d 914, and Holton petitioned this Court for certiorari review. Holton claims that the opinion of the Court of Criminal Appeals conflicts with prior decisions of that court and of this Court on all four issues addressed by the Court of Criminal Appeals. We granted certiorari review to examine two of those issueswhether the State sufficiently proved the chain of custody of the cocaine allegedly sold by Holton to Alcoholic Beverage Control Board Officer Yvonne Bedgood, and whether Holton must present evidence that he does not have a scar before this Court can consider the issue of lack of proper identification. For a complete statement of the facts and a discussion of the issues not addressed here, see Holton v. State, 590 So. 2d 914 (Ala.Crim. App.1990).
Holton argues that the State failed to prove a sufficient chain of custody in order admit into evidence the cocaine allegedly sold to Bedgood by Holton. At trial, the State presented the following testimony: Bedgood testified that she had received the cocaine from Holton. She testified that she put the cocaine into a plastic bag, which, she said, she put into an envelope. She testified that she sealed the envelope and put her initials on it and then turned the envelope over to Governor Jackson, a narcotics investigator with the Dothan Police Department.
Jackson testified that he put tape over the seams of the envelope and that he also initialed the envelope. He further testified that he put the envelope in the police locker, to which only he had access. He testified that he later gave the envelope to Ray Owens, a Dothan police officer, to transport to the forensic laboratory. He stated that the envelope was in the same condition when he gave it to Owens as it was when he placed it in the locker.
The next person to testify was Joe Saloom, the director of the forensic laboratory in Enterprise. He testified that he had received the item from Owens and that when he received the envelope, it was sealed. Owens did not testify.
Holton argues that Owens's testimony is an essential link in the State's chain of custody and that, without such testimony, the cocaine was inadmissible. The State contends that the lack of testimony from Owens merely "weakens" the chain and creates a question of credibility, rather than one of admissibility.
This opinion sets forth an analysis to be followed in deciding whether a proper chain of custody has been shown. We have held that the State must establish a chain of custody without breaks in order to lay a sufficient predicate for admission of evidence. Ex parte Williams, 548 So. 2d 518, 520 (Ala.1989). Proof of this unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to *920 assure the authenticity of the item. Id. In order to establish a proper chain, the State must show to a "reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain." McCray v. State, 548 So. 2d 573, 576 (Ala.Crim.App.1988). Because the proponent of the item of demonstrative evidence has the burden of showing this reasonable probability, we require that the proof be shown on the record with regard to the various elements discussed below.
The chain of custody is composed of "links." A "link" is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link's possession of the item: "(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition." Imwinklereid, The Identification of Original, Real Evidence, 61 Mil. L.Rev. 145, 159 (1973).
If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a "missing" link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the "link," as to one or more criteria or as to one or more links, the result is a "weak" link. When the link is "weak," a question of credibility and weight is presented, not one of admissibility.
In this case, Owens failed to testify as to his action regarding the envelope. However, the record reflects his receipt of the item; he received the item from Jackson, who testified that he had given the envelope to Owens. Also, Owens's ultimate disposition of the item appears in the record through the testimony of Saloom, who testified that he received the item from Owens. Therefore, the only criterion left to analyze is the handling and safeguarding by Owens. Again, Owens did not testify; thus, there is no direct evidence of his handling of the item. However, both Jackson and Saloom testified that the envelope was sealed when given to and when taken from Owens. A sealed envelope was adequate circumstantial evidence to establish the handling and safeguarding of the item by Owens to treat the item as authenticated. Although the lack of Owens's direct testimony "weakens" the chain, the testimony of Jackson and Saloom prevented a break in the chain. The cocaine was properly admitted by the trial court, and the jury could decide how much weight to give the evidence, given the lack of direct testimony from Owens.
This opinion has presented an approach for analyzing chain-of-custody problems. In this case, the chain of custody was sufficient to authenticate the item, allowing the envelope containing the cocaine to be entered into evidence. Circumstantial evidence is generally sufficient to authenticate the item sought to be entered into evidence, except when there appears to be evidence that the item of evidence was tampered with or that a substitution was made while the item was in the custody of the link who has failed to appear and testify. In this case, there is no suggestion that Owens tampered with or made a substitution as to the item he was to deliver. Thus, we hold that as to the envelope containing the cocaine the State established a chain of custody sufficient to authenticate that item. The Court of Criminal Appeals properly decided the issue regarding the chain of custody.
The second issue we address is the sufficiency of the in-court identification of Holton by Bedgood. Bedgood testified that she had described the man who had sold her the cocaine as having a scar over his right eye. At Holton's trial, she identified him as the man who had sold her the *921 cocaine. In reviewing Holton's conviction, the Court of Criminal Appeals stated:
Holton, in his petition for certiorari review, stated that the opinion of the Court of Criminal Appeals conflicts with his constitutional right against self-incrimination. He argues:
The Court of Criminal Appeals misstated the respective burdens of the State and a criminal defendant. The State must prove, beyond a reasonable doubt, that a crime was committed and that the defendant committed it. This includes identification. The criminal defendant has the burden of meeting the State's evidence or suffering the consequence of conviction. The defendant is required to preserve on the record errors at trial sufficient for appellate review.
In this case, the alleged error is the identification by Bedgood of Holton as the man who sold her cocaine. Bedgood identified Holton in court and testified that, when he sold her the cocaine, she observed him in good lighting and at a relatively close distance. On cross-examination, Holton's attorney asked Bedgood about her prior identification and her statement that the man who sold her the cocaine had a scar over his right eye.
In his brief before this Court, Holton stated:
We hold that the cross-examination of Bedgood regarding the scar and the fact that the defendant was seen by the jury are sufficient to preserve for review the issue of Bedgood's identification of Holton. However, they are also sufficient to answer that issue. It is fundamental that the issue of identification of a defendant by a witness is a question to be resolved by the jury where, as here, the evidence has met the legal test of admissibility. Bedgood, during her direct examination, positively identified Holton as the man who had sold her the cocaine. She described her opportunity to see and observe him when the sale of cocaine took place and said that she observed him on that occasion at a close distance in good lighting and for a sufficient amount of time.
The lack of a scar on Holton, as he sat before the jury during the trial, was not offered into evidence by him except through Holton's cross-examination of Bedgood. His cross-examination on this issue was intense and thorough. It was a trial tool skillfully utilized by Holton to create a *922 doubt in the mind of the jury regarding Bedgood's positive, direct testimony of identification. At this stage of the trial, its office was not to prevent the admissibility of Bedgood's identification, but to shadow its credibility. Therefore, the Court of Criminal Appeals properly decided this issue.
For the reasons stated above, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | November 22, 1991 |
cad51d64-be7a-42ea-908d-bff96de15594 | Bank Independent v. Coats | 591 So. 2d 56 | 1901079 | Alabama | Alabama Supreme Court | 591 So. 2d 56 (1991)
BANK INDEPENDENT
v.
Barbara COATS and Ellis Coats.
1901079.
Supreme Court of Alabama.
November 27, 1991.
*57 Gary L. Jester and Willson Jenkins of Gary L. Jester, P.C., Florence, for appellant.
Harold G. Peck, Florence, for appellees.
HOUSTON, Justice.
The plaintiff, Bank Independent ("the Bank"), appeals from a judgment entered on a jury verdict in favor of defendant Barbara Coats in this action seeking to set aside, as fraudulent, the assignments of a promissory note and a mortgage securing that note.[1] We affirm.
In Pennington v. Bigham, 512 So. 2d 1344, 1346 (Ala.1987), this Court set out the pertinent law dealing with fraudulent conveyances and assignments:
See, also, J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala.1981).
The primary issue in the present case is whether the trial court erred in allowing the jury to consider whether the assignments of the note and mortgage to Barbara Coats by her former husband, Ellis Coats, were supported by an adequate consideration. The Bank contends that the assignments were not supported by any consideration and, therefore, that the trial court, as a matter of law, should have set the assignments aside under the theory of constructive fraud. The Bank points out that Ellis Coats, who was having financial problems and owed the Bank money at the time of the assignments, allegedly made the assignments for the purpose of satisfying his alimony and child support obligations, which had been previously established in the Coatses' divorce decree. The Bank maintains that Ellis Coats's alimony and child support obligations were not "debts" owed to Barbara Coats for satisfaction of which Barbara Coats could have legally accepted the assignments, and that Ellis Coats's child support obligation was not an obligation that could be the subject of a bargained-for exchange. Barbara Coats contends that the question concerning the adequacy of the consideration was one for the jury. We agree.
"Existing debt" is defined in Black's Law Dictionary 574 (6th ed. 1990), in pertinent part, as follows:
"Debt" is defined in Black's Law Dictionary at 403, in pertinent part, as follows:
Ellis Coats's obligations to make alimony and child support payments were fixed and certain obligations to pay, over a set period of time, money that was due by virtue of his responsibilities to Barbara Coats and his minor children. Those obligations, which were subject to judicial enforcement, fell squarely within the general definitions of "existing debt" and "debt," as those words are used in our cases dealing with fraudulent conveyances and assignments.[2] Furthermore, the law is clearly stated in Morgan v. Morgan, 275 Ala. 461, 464, 156 So. 2d 147, 150 (1963), as follows:
(Emphasis added.) Although there was conflicting expert testimony presented, there was sufficient evidence from which the jury could have found that the present monetary value of the note and mortgage was sufficient to cover Ellis Coats's legal obligation to support his minor children. Therefore, based on the evidence presented, we cannot say that the assignments by Ellis Coats of the note and mortgage for the purpose of satisfying his child support obligation had the effect of depriving his minor children of the support to which they were entitled under the Coatses' divorce judgment. We hasten to point out, however, that although agreements of the kind entered into by Barbara and Ellis Coats that affect child support obligations may be sufficient to support a questioned conveyance or assignment, they should be the *60 subject of careful scrutiny by the courts and, should it become necessary, a parent who conveys or assigns property for the purpose of satisfying a child support obligation may be required to provide additional support in the future in an amount above the value of the property conveyed or assigned, notwithstanding the agreement. This is in keeping with the public policy of this state that parents cannot abrogate their responsibilities to their minor children by mutual agreement between themselves so as to deprive their minor children of the support to which they are legally entitled.
Because there was sufficient evidence presented in this case for the jury to find that the present monetary value of the note and mortgage was substantially equivalent to the present monetary value of Ellis Coats's legal obligations to support Barbara Coats and his minor children, the trial court did not err in submitting to the jury the question concerning the adequacy of the consideration.
The Bank also contends that the trial court erred in charging the jury that the issue concerning the adequacy of the consideration for the assignments of the note and mortgage had to be resolved based on "the value of the transfer as of the date of the transfer only." The Bank further contends that the trial court erred in refusing to give the following written requested jury instructions:
The Bank argues in its brief that it "properly objected to the failure to give these charges, based on the `equitable exception' that these valuations should have been the proper measure in determining the real values actually paid." The Bank's argument, as we understand it, is that under a general principle of equity the assignments in this case should have been allowed to stand, if at all, only as security for the amount of alimony and child support that Ellis Coats would have actually paid to Barbara Coats if he had not assigned the note and mortgage to her. In Reese v. Smoker, 475 So. 2d 506, 509 (Ala.1985), this Court, quoting J.C. Jacobs Banking Co. v. Campbell, supra, at 844, discussed the applicable equitable principle as follows:
The verdict form provided to the jury contained interrogatories that were apparently intended to enable the trial court to apply this equitable principle if the jury found the assignments to be fraudulent.[3]
*61 In the present case, the trial court correctly instructed the jury that it had to place values on the note and mortgage and on Ellis Coats's alimony and child support obligations as of the date of the exchange. At the Bank's request, the jury was instructed that it could compute these values using either a "present value" method or a "simple cash flow" method, or a combination of both. Under the "simple cash flow" method, the jury was free to value Ellis Coats's alimony and child support obligations based on the actual amount that Ellis Coats would have paid to Barbara Coats had he not assigned the note and mortgage to her. The "simple cash flow" method was explained to the jury by the Bank's expert witness, and evidence of the payments that Ellis Coats would have actually made was admitted for the purpose of enabling the jury to apply that method. Consequently, it was unnecessary for the trial court to give the Bank's written requested instructions 20 and 30, the substance of those instructions having been fairly given to the jury in the trial court's oral charge. See Rule 51, Ala.R.Civ.P. Furthermore, these two requested instructions were confusing and misleading.[4] The trial court did not err in refusing to give the Bank's written requested instructions 20 and 30.
Finally, the dispositive factual question that had to be resolved by the jury in this case was whether the assignments of the note and mortgage were supported by an adequate consideration (i.e., whether the value of the note and mortgage was substantially equivalent to the value of Ellis Coats's alimony and child support obligations). The jury found that the assignments were supported by an adequate consideration and that they were not fraudulent; therefore, contrary to the Bank's contention, the trial court did not err in refusing to apply the equitable principle mentioned above. See Reese v. Smoker, supra.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Ellis Coats was also named as a defendant; however, he was dismissed from the case at the close of the Bank's case in chief. Although the Bank appealed the dismissal of Ellis Coats, it later withdrew its argument with respect to that dismissal. Consequently, the propriety of the dismissal is not before us for review.
[2] The Bank's reliance on Ex parte Thompson, 282 Ala. 248, 210 So. 2d 808 (1968), and Ryan v. Ryan, 271 Ala. 243, 123 So. 2d 102 (1960), in support of its contention that Ellis Coats's obligation to pay alimony was not a "debt" within the meaning of our cases dealing with fraudulent conveyances and assignments is misplaced. In Thompson, the issue was whether the petitioner's failure to pay certain debts that had been incurred by his former wife during the marriage, as he was required to do pursuant to a valid decree of divorce, was punishable by imprisonment for contempt of court. Holding that the petitioner's obligation to pay the debts could not be construed as an obligation to pay his former wife alimony, this Court held that the obligation was an ordinary debt and that § 20, Alabama Constitution of 1901, prohibited the petitioner's being imprisoned for failure to pay that debt. This Court noted in Thompson that an obligation to pay alimony is not considered to be a "debt" within the meaning of § 20, Alabama Constitution of 1901, which provides: "That no person shall be imprisoned for debt." In Ryan, where the issue was whether the husband was entitled to set off a portion of his alimony obligation against a debt owed to him by his former wife, this Court held that the husband's obligation to pay alimony to his wife was not a "debt" within the meaning of Title 7, § 350, Code of 1940, which provided that mutual debts, liquidated or unliquidated, demands not sounding in damages merely, subsisting between the parties could be set off one against the other. In both of these cases, the Court made it clear that an obligation on the part of a man to pay alimony to his former wife was not simply a contractual obligation, but was an obligation based upon considerations of equity and public policy. In Thompson, the Court noted: "The duty of a husband to support his wife is a higher duty than a mere contractual obligation, and, like the marriage contract, involves public interest and public policy." 282 Ala. at 254, 210 So. 2d at 813. In the present case, Ellis Coats assigned the note and mortgage to Barbara Coats for the purpose of satisfying his alimony obligation. This case is not like Thompson or Ryan in that this case does not involve a man who attempted to avoid the legal consequences of his alimony obligation by taking the legal position that that obligation was merely contractual in nature and thus, that it was an ordinary debt. Here, Ellis Coats apparently assigned the note and mortgage to Barbara Coats in recognition of his "higher duty" to her.
[3] The verdict forms read as follows:
"We the jury find as follows: (check which is your verdict)
"__ There was no fraudulent conveyance.
"__ There was a fraudulent conveyance. Further, we find:
"1. Barbara Coats gave value of $____ for the promissory note and mortgage.
"2. ____ Barbara Coats had notice of facts putting her on inquiry as to Ellis Coats's fraudulent intent.
"___ Barbara Coats did not have notice of facts putting her on inquiry as to Ellis Coats's fraudulent intent."
[4] Both requested instructions refer to "value actually paid" by Barbara Coats, even though the evidence was undisputed that Barbara Coats did not "pay" anything to Ellis Coats in exchange for the assignments of the note and mortgage; she did accept the assignments for the purpose of satisfying Ellis Coats's alimony and child support obligations. In addition, both instructions refer to payments "actually received" by Barbara Coats, or to payments "actually made" by Ellis Coats, while also referring to payments that Ellis Coats "would have had to" make. | November 27, 1991 |
ed838ac9-184c-4e7a-b1c8-4c05f2132751 | Henry v. Butts | 591 So. 2d 849 | 1901232 | Alabama | Alabama Supreme Court | 591 So. 2d 849 (1991)
Mary Hayes HENRY and Susan Hayes Rogers
v.
Randall Paul BUTTS.
1901232.
Supreme Court of Alabama.
December 20, 1991.
James Harvey Tipler of Tipler and Tipler, Andalusia, for appellants.
T. Randall Lyons and David E. Allred of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
*850 HORNSBY, Chief Justice.
This personal injury case arises from a motor vehicle accident that occurred on May 9, 1988. The plaintiffs, Mary Hayes Henry and Susan Hayes Rogers, sued Randall Paul Butts, alleging that Butts had been negligent and wanton in operating his vehicle and that his negligence and wantonness had caused the accident.
At the close of all the evidence, the trial judge directed a verdict for Butts on the wantonness count, and the jury returned a verdict for Butts on the negligence count. The plaintiffs appeal from the resulting judgment for the defendant. We affirm.
On May 9, 1988, Mary Hayes Henry and Susan Hayes Rogers were injured in an automobile collision on Highway 331 in Luverne, Alabama. Butts presented evidence that Henry was driving at approximately 50 miles per hour in a 35-mph zone when her car collided with Butts's truck as he was attempting to turn left.
During the trial, the judge allowed the investigating officer to testify as to the speed of the plaintiffs' car prior to the accident. Further, during cross-examination and rebuttal, the plaintiffs' attorney attempted to elicit from several witnesses the number of feet in a mile. When the witnesses stated that they did not know how many feet are in a mile, the plaintiffs' attorney asked the trial judge to take judicial notice of the fact that there are 5,280 feet in a mile. The trial judge refused to take judicial notice of that fact.
This case presents two issues: (1) whether the trial court erred when it allowed the police officer to testify concerning the speed of the plaintiffs' car, and (2) whether the trial court abused its discretion when it refused to take judicial notice of the fact that there are 5,280 feet in a mile.
The plaintiffs first argue that the trial court erred by permitting the investigating officer to give his opinion as to the speed of the plaintiffs' vehicle prior to the collision. The plaintiffs assert that the officer's opinion was based only on his assessment of the damage to the vehicle. The plaintiffs then argue that his testimony regarding his assessment of damage was not a sufficient predicate for the admission of the opinion.
The question of whether a particular witness may testify as an expert is largely discretionary with the trial court. The trial court's decision will not be disturbed on appeal except for palpable abuse. Dyer v. Traeger, 357 So. 2d 328 (Ala.1978); Baggett v. Allen, 273 Ala. 164, 137 So. 2d 37 (1962); Johnson v. Battles, 255 Ala. 624, 52 So. 2d 702 (1951). Where a proper scientific predicate is laid, an expert can testify concerning speed. Baggett, supra, and Jowers v. Dauphin, 273 Ala. 567, 143 So. 2d 167 (1962). Further, an expert who did not observe a collision may express an opinion as to the speed of a vehicle "predicated on the distance the tires `skidded' or were dragged along ... before impact," but the expert cannot testify as to the speed of the vehicle simply by observing the local conditions and viewing the damage to the vehicle. McWhorter v. Clark, 342 So. 2d 903 (Ala.1977), quoting Maslankowski v. Beam, 288 Ala. 254, 264, 259 So. 2d 804, 813 (1972); Glaze v. Tennyson, 352 So. 2d 1335 (Ala.1977); Rosen v. Lawson, 281 Ala. 351, 202 So. 2d 716 (1967); Jowers v. Dauphin, supra. Finally, skid marks before impact, the point of impact, and the damage to a vehicle are factors upon which an expert can validly predicate an opinion as to speed. Rosen, supra.
In the case at bar, the investigating officer testified as follows:
According to Rosen, an expert can testify as to the speed of an automobile predicated upon a consideration of the point of impact, the damage to the vehicle, and the damage to any other vehicle involved in the collision, and skid marks before impact. The officer's testimony reflected that he had examined the accident scene, including skid marks, position of the vehicles, and damage. Our review of the record indicates that the trial court reasonably viewed this testimony as the basis for the officer's opinion. Because the only skid marks ever referred to were those made before the vehicles collided, one must infer that the police officer was testifying concerning the skid marks made prior to impact. The police officer testified that "[t]his car was traveling in this lane, it came in ..., it hit its brakes and went into a skid and hit the truck, ... spinning the truck around and the car went on down here and stopped."
The police officer's testimony concerning speed was predicated on a consideration of the factors set out in Rosen. Therefore, the trial court did not err when it allowed the police officer to testify concerning the speed of the plaintiffs' vehicle.
The second argument raised is that the trial court abused its discretion when it refused to take judicial notice of the fact that there are 5,280 feet in a mile. The ground the plaintiffs use to support this argument is that this Court in Callahan v. Booth, 275 Ala. 275, 154 So. 2d 32 (1963), held that "it is common knowledge that there are 5,280 feet in a mile, 60 minutes in a hour, and 60 seconds in a minute." The plaintiffs argue that they were prejudiced by the trial court's refusal to take judicial notice of the number of feet in a mile because, by that refusal, they say, they were prevented from rebutting the testimony *852 of the police officer, who was the only person who presented evidence to support the defendant's defense of contributory negligence.
A court can take judicial knowledge of certain facts within the common knowledge. Whether to take judicial notice of a fact is in the discretion of the trial court. O'Barr v. Feist, 292 Ala. 440, 296 So. 2d 152 (1974). In O'Barr, this Court stated that "[i]t is generally held that taking judicial notice of facts of common knowledge is in the discretion of the trial court." The plaintiff is correct in stating that the trial court could have taken judicial notice of the fact that there are 5,280 feet in a mile. However, the trial court was not required to take judicial notice of this fact. O'Barr, supra.
In response to the request made by the plaintiffs for the court to take judicial notice of the number of feet in a mile, the trial court stated that "It won't do any good for me to take judicial notice of it. I know there are. The jury doesn't at this point." The trial court further stated that "that [evidence] wouldn't rebut anything. You're limited now to rebuttal and there's nothing there to rebut. You can't rebut something that isn't there.... You would be offering direct testimony if you did that and it's my understand[ing] that something in rebuttal, you're limited to rebutting something that has been offered into evidence." The trial court's refusal to take judicial notice under the circumstances of this case was not an abuse of discretion.
In summary, the taking of judicial notice and the "acceptance or rejection of the evidence during rebuttal" are both functions within the trial court's sound discretion, O'Barr, supra, and White v. Boggs, 455 So. 2d 820 (Ala.1984). That discretion was not abused in this case. The judgment below is due to be affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON and STEAGALL, JJ., concur. | December 20, 1991 |
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