id
stringlengths 36
36
| title
stringlengths 1
243k
| citation
stringlengths 3
718
| docket_number
stringlengths 1
304
⌀ | state
stringclasses 24
values | issuer
stringclasses 24
values | document
stringlengths 0
1.94M
| date
stringlengths 3
18
|
|---|---|---|---|---|---|---|---|
243fb9a3-98d1-47ce-84ea-6912206890c0 | Dixon v. State | 588 So. 2d 903 | 1900347 | Alabama | Alabama Supreme Court | 588 So. 2d 903 (1991)
Ex parte State of Alabama.
(Re Dana Lamark DIXON v. STATE).
1900347.
Supreme Court of Alabama.
August 16, 1991.
Rehearing Denied October 4, 1991.
Certiorari Denied January 13, 1992.
Don Siegelman, Atty. Gen., and James H. Evans, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for petitioner.
Dennis R. Pierson and George L. Beck, Jr., Montgomery, for respondent.
Certiorari Denied January 13, 1992. See 112 S. Ct. 904.
KENNEDY, Justice.
We granted certiorari review in this case in order to determine whether probable cause for arrest existed.
Dana Lamark Dixon pleaded guilty to first degree burglary and first degree rape while reserving his right to appeal from the trial court's denial of a motion to suppress. The Court of Criminal Appeals reversed the conviction, holding that there was no probable cause for arrest, and, therefore, that the motion to suppress should have been granted. 588 So. 2d 891. We reverse and remand.
The facts are as follows: Officer Echols of the Montgomery Police Department was on routine patrol on Wednesday, March 22, 1989. At about 9:20 a.m., Echols saw Dixon, age 15, standing on a sidewalk at the rear of a residence. Echols knew that this particular neighborhood had recently experienced a series of burglaries. Due to Dixon's demeanor and the fact that there had been recent burglaries in the neighborhood, Echols thought that Dixon was a possible *904 lookout for a burglary taking place or about to take place. Echols stopped for a few minutes and observed Dixon, who was standing on the sidewalk looking around. Echols then approached Dixon. When Dixon saw Echols, Dixon tried to walk away. Echols stopped Dixon and questioned him.
Echols asked Dixon what he was doing. Dixon said that he was "just standing there." Echols asked Dixon his age, and Dixon said he was 15 years old. Echols then asked Dixon why he was not in school. Dixon said that he had been expelled. Echols then asked Dixon if he had ever committed any burglaries. Dixon said that he had committed one burglary before, but that "he had already done what he was supposed to have done for it."[1] Echols then patted down Dixon and found a threeinch box cutter.
Echols noticed that Dixon was wearing a green baseball cap with white letters on it, a green-colored jacket with the style and logo of the Miami Dolphins football team, tan pants, and white tennis shoes and had a medium complexion. Echols then realized that Dixon matched the description of a rape suspect. The rape had occurred three blocks away and three days earlier. The victim had described the suspect as a black male with a medium complexion, approximately 5' 8" tall, weighing approximately 130 pounds, and wearing a green baseball cap with white letters, tan or khaki pants, and a light colored shirt.[2] The victim also described the rapist as 17 or 18 years of age. Echols then contacted an officer in the police department's sex crimes division. This officer requested that Echols bring Dixon to police headquarters, because Dixon generally fit the description of the rapist. Echols did not arrest Dixon, but asked Dixon to accompany him to police headquarters and Dixon agreed to do so.
Dixon was taken to police headquarters around 9:30 a.m. At headquarters, Corporal Locklar asked Dixon for his mother's name and place of employment. Locklar then called Dixon's mother and explained to her that Dixon was at police headquarters and that she could come to the station if she desired to do so. This conversation took place between 9:30 and 10:00 a.m.
Around 10:15 a.m. Echols took Dixon to the juvenile division of police headquarters and left Dixon with two juvenile officers, Corporal Fuentez and Investigator Livingston.
Livingston read Dixon his rights from the juvenile rights form, pursuant to Rule 11(A), A.R.Juv.P. Dixon said that he understood his rights, signed the form, and stated that he wanted to speak to his mother. Livingston telephoned Dixon's mother and told her that she needed to come to police headquarters as soon as possible.
Fuentez told Dixon that he was at police headquarters because he matched the description of a rapist and was basically wearing the same clothing as the rapist. Fuentez told Dixon that there was going to be a lineup at the Montgomery Youth Facility located on Air Base Boulevard.
Fuentez drove Dixon to the Youth Facility around 11:30 a.m. Fuentez placed Dixon in the visitation room of the Youth Facility. The personnel at the Youth Facility told Fuentez that the lineup could not be held until 12:30. Fuentez then left Dixon in the visitation room and went to lunch.
When Fuentez returned from lunch, he saw Dixon talking to his parents in the visitation room. Approximately 10 or 15 minutes later, Fuentez went into the visitation room and introduced himself to Dixon's parents. Fuentez took Dixon's parents into the in-take office, where he informed them that Dixon was to participate in a lineup.
At the lineup, the victim tentatively identified Dixon as the rapist. Fuentez went back to the visitation room and advised Dixon of his rights as a juvenile. Dixon then waived his rights and confessed to breaking into the victim's house and raping her. Detective Scott, the homicide detective originally assigned to the case, was *905 also present when Dixon waived his rights and confessed.
After obtaining Dixon's confession, Fuentez informed Dixon's parents that the victim had tentatively identified Dixon as the rapist. Fuentez also told them that Dixon had admitted to committing the crimes and that he was being taken to police headquarters to make a tape-recorded statement.
Dixon was again informed of his rights; he again waived his rights and admitted to breaking into the victim's house and raping her.
Dixon filed a motion to suppress the evidence of the lineup and the confessions. After the hearing on the motion to suppress, the trial court entered the following order:
The Court of Criminal Appeals held that, at some point, Dixon's voluntary trip to *906 police headquarters escalated into an arrest. Although the court did not find it necessary to determine the exact moment that Dixon was arrested, it held that he was arrested at some time prior to the lineup. The court then held that no probable cause existed for the arrest. The court also found that no intervening circumstances occurred between the arrest and the confession that would sufficiently attenuate the taint of the arrest. The court stated that even if the arrest had been sufficiently attenuated from the confession, the confession was not voluntary.
Even if we should agree with the Court of Criminal Appeals' determination that Dixon was arrested at some point prior to the lineup, we do not agree that there was no probable cause to arrest. Instead, we find that there was probable cause for arrest.
Probable cause to support a warrantless arrest must exist at the time of the arrest. Davis v. State, 507 So. 2d 1023 (Ala.Cr.App.1986). Probable cause exists if facts and circumstances known to the arresting officer are sufficient to warrant a person of reasonable caution to believe that the suspect has committed a crime. United States v. Rollins, 699 F.2d 530 (11th Cir.) cert. denied, 464 U.S. 933, 104 S. Ct. 335, 78 L. Ed. 2d 305 (1983). "In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act...." Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1891 (1949). "`The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.'" Id. "Probable cause to arrest is measured against an objective standard and, if the standard is met, it is unnecessary that the officer subjectively believe that he has a basis for the arrest." Cox v. State, 489 So. 2d 612 (Ala.Cr.App. 1985). The officer need not have enough evidence or information to support a conviction in order to have probable cause for arrest. Only a probability, not a prima facie showing, of criminal activity is the standard of probable cause. Stone v. State, 501 So. 2d 562 (Ala.Cr.App.1986). "`[P]robable cause may emanate from the collective knowledge of the police....'" Ex parte Boyd, 542 So. 2d 1276, 1284 (Ala. 1989) (citations omitted).
In the instant case, Echols saw Dixon acting in a way that suggested he was a lookout for a burglary. Dixon was standing at the rear of a residence, looking around. We note that Dixon was a teenager and that this occurred during school hours. This neighborhood had recently experienced a number of burglaries. When Dixon saw Echols approach him, he started to move away. When Echols asked Dixon what he was doing, Dixon said he was just standing there. Dixon admitted to Echols that he had a criminal history of burglary. Dixon matched the general description of the suspected rapist and burglar in that he was of the same race and basically the same size, age, and complexion. Also, Dixon was wearing a baseball hat and pants like those the victim had described as being worn by the attacker. Clearly, these facts and circumstances created reasonable cause to believe that Dixon was the suspected rapist and burglar.
The fact that an area is known for crime can serve to create a reasonable suspicion. See Lewis v. State, 518 So. 2d 214, 217 (Ala.Cr.App.1987). Dixon's deliberately furtive actions and flight at the approach of a police officer "are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of the crime, they are proper factors to be considered in the decision to make an arrest." Molina v. State, 533 So. 2d 701, 707 (Ala.Cr. App.1988), quoting Sibron v. New York, 392 U.S. 40, 66, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917 (1968). Also, evasive answers to police questions have been held to be a factor in establishing probable cause. See Childress v. State, 455 So. 2d 175 (Ala.Cr. App.1984). Dixon's reply to Echols's question "What are you doing?" was that he was "just standing there." Certainly, this evasive answer, when coupled with the fact *907 that Dixon was located at the rear of a residence and was looking around, is a factor tending to establish probable cause.
Dixon also matched the general description of the rapist. In United States v. Johnson, 741 F.2d 1338 (11th Cir.1984), the court held that because the defendant fit the "rough description" of the robber, given other factors, probable cause did exist.
There was probable cause to arrest Dixon, and the trial court correctly denied the motion to suppress.
We also disagree with the Court of Criminal Appeals' determination that the confessions were not voluntary.
In determining whether a confession is voluntary, the trial court's finding of voluntariness need only be supported by a preponderance of the evidence. Seawright v. State, 479 So. 2d 1362, 1367 (Ala. Crim.App.1985). The trial court's decision will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence. "`The test for the voluntary nature of an extrajudicial confession or inculpatory statement is whether in light of all the surrounding circumstances, the statement was free from inducement, threat or promise, either expressed or implied, which would have produced in the mind of the accused any fear of harm or hope of favor.'" Seawright, 479 So. 2d at 1367, citing Rogers v. State, 365 So. 2d 322 (Ala.Crim.App.), cert. denied, 365 So. 2d 334 (Ala.1978).
We note that the trial judge, as the finder of fact, determined the credibility of the witnesses. The trial court's determination regarding credibility of witnesses is entitled to great weight on appeal. Calhoun v. State, 460 So. 2d 268 (Ala.Crim. App.1982).
At the hearing on the motion to suppress, the defendant testified that Corporal Fuentez told him that if he did not make a confession he would be treated as an adult. Corporal Fuentez testified that Dixon's confession was voluntary and of his own free will. Detective Scott also testified to the voluntariness of Dixon's confession.
Although the Court of Criminal Appeals seemed to focus on only a portion of Detective Scott's testimony, we hold that, considering all of the record, the judge's finding of voluntariness was not against the great weight of the evidence. Detective Scott's testimony, in pertinent part, was as follows:
"Q. [Dixon's attorney:] Did you hear Corporal Fuentez tell Dana that if he made a statement, he could keep him in the juvenile system, he would be treated as a juvenile?
"A. [Detective Scott:] I don't remember the exact statement. Yes, I remember something to that extent.
"Q. Did you in fact make a statement to Dana that if he did not make a statement that he would have to be treated as an adult?
"Q. Did you make a statement that if Dana did not make a statement that he would go to the penitentiary?
On cross-examination, the prosecutor asked Detective Scott the following questions:
"Q. [Prosecutor:] You said something about his being in the juvenile system to Mr. Pierson [Dixon's attorney]. Please explain what was said.
"A. [Detective Scott:] I am sorry. I am losing you right here.
"Q. I was not clear either. When Mr. Pierson asked you a question about what you heard Corporal Fuentez say to the defendant about his giving a statement and being in the juvenile system, does that ring a bell?
"A. Yes. Corporal Fuentez introduced me as the officer that handled the initial investigation. With him being a juvenile, I would not be handling it. I was there strictly as the initial investigator.
*908 "Q. Were any promises or threats made to the defendant, Dana Dixon, to get him to talk?
(R.T. 119-20.)
Clearly, the trial judge's determination of voluntariness was not against the great weight of the evidence. "`Where the evidence of voluntariness is conflicting, and even where there is credible testimony to the contrary, the trial judge's finding of voluntariness must be upheld unless palpably contrary to the weight of the evidence.'" Carr v. State, 545 So. 2d 820, 824 (Ala.Crim App.1989) (other citations omitted).
The trial court did not err in denying the motion to suppress the confessions, because the evidence supports the trial judge's conclusion that they were made voluntarily.
REVERSED and REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
[1] Apparently, Dixon had committed a burglary, had been caught, and had been punished for it.
[2] Dixon weighed 169 pounds and was 5' 6" tall. | August 16, 1991 |
147208ca-55e4-4938-9ac9-76e8a03f0ca1 | Morris v. Young | 585 So. 2d 1374 | 1901323 | Alabama | Alabama Supreme Court | 585 So. 2d 1374 (1991)
Alfreda MORRIS
v.
Dr. Bruce YOUNG.
1901323.
Supreme Court of Alabama.
August 23, 1991.
*1375 John F. Kizer, Jr. of Kizer & Bennitt, Birmingham, for appellant.
Clarence Simmons, Jr. of Simmons, Brunson & McCain, Gadsden, for appellee.
HOUSTON, Justice.
Alfreda Morris sued Dr. Bruce Young, alleging dental malpractice. Ms. Morris's amended complaint alleged that Dr. Young "negligently provided ... dental services to [Ms.] Morris and negligently breached the acceptable standard of care in providing such dental services in that [Dr. Young] used excessive force in opening [Ms. Morris's] mouth wider than it was capable of opening during the extraction of one of [Ms. Morris's] wisdom teeth when [Dr. Young] should have only used such force to open [Ms. Morris's] mouth to a width that it was capable of opening."
Dr. Young filed an answer denying the allegations of the complaint and filed a motion for summary judgment, with his accompanying affidavit. In his affidavit, Dr. Young swore that at the time he provided dental services to Ms. Morris and at the time he was deposed that he was a duly licensed and practicing dentist, that he saw Ms. Morris in his office on March 14, 1988, and diagnosed her as having an abscessed wisdom tooth and gave her a prescription for antibiotics. On March 21, 1988, Dr. Young extracted Ms. Morris's lower wisdom teeth. Three days later, Ms. Morris returned to his office "complaining of elevated temperature and swelling." He prescribed antibiotics and referred her to Jacksonville Hospital. Dr. Young swore:
"I am not guilty of negligence or professional neglect in my treatment of [Ms.] Morris. At all times, I exercised *1376 such reasonable care, diligence, and skill as dentists in the same general line of practice ordinarily have and exercise in a like case.
This was sufficient to shift the burden of moving forward to Ms. Morris. She recognizes this in her brief, for the opening sentence of her argument is as follows:
In Black v. Reynolds, 528 So. 2d 848, 849 (Ala.1988), this Court held:
In Wozny v. Godsil, 474 So. 2d 1078, 1080 (Ala.1985), this Court held:
The pertinent portion of § 6-5-484 is as follows:
In opposition to Dr. Young's motion for summary judgment, Ms. Morris offered the affidavits of Dr. G. Fred Atwell and Dr. Robert Jay Fish.
Dr. Atwell's deposition was factual. Dr. Atwell is a duly licensed and practicing oral surgeon in Anniston, Alabama. He examined Ms. Morris at Jacksonville Hospital, where she had been admitted for facial cellulitis by her family internist. He noted a marked left submandibular and submental space edema and some apparent sublingual space involvement. Ms. Morris exhibited marked trismuses with a mandibular opening of approximately 3-4 mm. He transferred Ms. Morris to Regional Medical Center, performed an incision drainage extraorally in the submandibular region and an intraoral incision in the sublingual space. Ms. Morris improved and was discharged on April 1, 1988. She exhibited a mandibular opening of 5-6 mm. Dr. Atwell's final diagnosis was "trismus secondary to an apparent acute dislocation of the meniscus," which Dr. Atwell swore was in no way contributed to by the treatment and care that Dr. Atwell had rendered to Ms. Morris. This in no way shows a genuine issue of material fact that negligence of Dr. Young proximately caused any "injury that Ms. Morris had sustained."
Dr. Fish's affidavit was anything but factual, but concluded:
Therefore, if the trial court should have considered the opinion testimony of Dr. Fish, then it erred in entering the summary judgment.
Therefore, we examine Dr. Fish's affidavit. In it, he swore that he was a "medical expert" and a specialist in dentistry currently licensed and actively practicing in the State of Florida. Dr. Fish further swore that "no previous medical opinions rendered by him have been disqualified by any court of law." Dr. Fish further swore that his opinion was based upon "certain medical records" of Ms. Morris and "the subject dental chart of [Ms.] Morris and other information." The medical records, dental chart, and other information were not further identified by Dr. Fish in his affidavit. There were no properly authenticated medical records or dental chart of Ms. Morris before the trial court when it entered the summary judgment for Dr. Young. There was nothing else that Dr. Fish purported to rely upon in arriving at his previously quoted opinion.
Attached to the "Amended Motion in Opposition to Defendant's Motion for Summary Judgment" were unauthenticated medical records which were identified in the amended motion as the medical records that formed "the basis of the opinion rendered by Dr. Robert Fish." There was no motion to strike these medical records or the affidavit of Dr. Fish on the ground that Dr. Fish's opinion was based upon evidence that would not be admissible at trial, i.e., unauthenticated medical records. If there had been such a motion, it should have been granted, and we would not consider the affidavit of Dr. Fish or the medical records that formed the basis for the opinions expressed in Dr. Fish's affidavit. McMillian v. Wallis, 567 So. 2d 1199 (Ala. 1990); Perry v. Mobile County, 533 So. 2d 602, 604-05 (Ala.1988). However, because there was no motion to strike the affidavit, we must look at the affidavit in light of the medical records attached to the amended motion in opposition to the motion for summary judgment to see if the judgment should be reversed for the court's failure to consider the opinion testimony of Dr. Fish based upon those medical records. Schroeder v. Vellianitis, 570 So. 2d 1220, 1223 (Ala.1990).
An expert witness may give opinion testimony based upon facts of which he has personal knowledge (there is no evidence that Dr. Fish had personal knowledge of any facts involved in this case); or based upon facts in evidence that are assumed in a hypothetical question (there was no hypothetical question involved in this case); or based upon opinions of others that are in evidence, if these are opinions of a type customarily relied upon by the expert in the practice of his profession. W.S. v. T.W., 585 So. 2d 26 (Ala.1991) (Houston, J., concurring in the judgment). Because there was no motion to strike Dr. Fish's affidavit, in accordance with our standard of review that requires us to view the evidence most favorably to the nonmovant (Ms. Morris) (Chilton v. City of Huntsville, 584 So. 2d 822 (Ala.1991)), we will consider that Dr. Fish based his opinion upon the facts and opinions in the affidavit of Dr. Atwell and facts and opinions in the medical records attached to the amended motion in opposition to Dr. Young's summary judgment motion. "Said medical records and the Affidavit of Dr. Fred Atwell form the basis of the opinion rendered by Dr. Robert Fish." (Record C-65, "Amended Motion in Opposition to Defendant's Motion for Summary Judgment.")
There is nothing in the medical records or the affidavit of Dr. Atwell that in any way shows that Dr. Young even performed dental work on Ms. Morris, much less what dental work he did perform. Dr. Young's name does not appear in the medical records or in Dr. Atwell's affidavit.
The admitting diagnosis shown in the medical records was "facial cellulitis." The only medical history was: "The patient had extraction of two teeth approximately four days prior to [the admission to Jacksonville Hospital on March 24, 1988,] with results of increase in facial swelling and edema. There was no resolution of the cellulitis *1378 with I.V. antibiotics"; and "patient had extraction of 2 teeth approximately 4 days prior to admission with resultant marked facial cellulitis. Patient was placed on parenteral antibiotics with no resolution...."
The final or discharge diagnosis was: "Facial cellulitis secondary to dental alveolar abscess and trismus secondary to acutely displaced meniscus."
According to 1 Schmidt's Attorneys' Dictionary of Medicine C-89 (1985), cellulitis is "[a]n inflammation of soft supporting tissue, especially the connective tissue... under the skin." An alveolar abscess is:
Schmidt's, A-20 and 21.
Trismus is "[l]ockjaw; ankylostoma; a firm closing of the jaw due to tonic spasm of the muscles of mastication from disease of the motor branch of the trigeminus; usually associated with and due to general tetanus," Stedman's Medical Dictionary 1639 (25th ed. 1990); "motor disturbance of the trigeminal nerve especially spasm of the masticatory muscles, with difficulty in opening the mouth [lockjaw]; a characteristic early symptom of tetanus," Sloan-Dorland Annotated Medical-Legal Dictionary 750 (1987); "[a] spasm of muscles of the lower jaw (the muscles of chewing). While the spasm persists, the mouth cannot be opened. It occurs usually in tetanus." 4 Schmidt's Attorneys' Dictionary of Medicine 144 (1984). Meniscus is "[a] crescent-shaped structure," Stedman's at 944, or "a general term for a crescent-shaped structure of the body," Sloan-Dorland at 442.
There is nothing in the medical records or Dr. Atwell's deposition, the matters considered by Dr. Fish in formulating his opinion, that show anything that Dr. Young did or did not do to Ms. Morris. Other than the amended complaint, there is nothing in the entire record to substantiate in any way the allegations of Ms. Mossis's complaint that Dr. Young used excessive force in opening Ms. Morris's mouth wider than it was capable of being opened during the extraction of Ms. Morris's wisdom teeth.
Our independent research has revealed one case in which a malpractice action was brought against a dentist alleging negligence in failing to take proper measures to prevent trismus (lockjaw) from developing after the dentist had performed dental work on the plaintiff. Sacawa v. Polikoff, 150 N.J.Super. 172, 375 A.2d 279 (1977). However, the resolution of that case does not aid us at all in determining whether there were facts before the trial court from which Dr. Fish could form an admissible opinion.
Considering everything before the trial court that Ms. Morris contends that Dr. Fish considered in forming his opinion (the medical records and the affidavit of Dr. Atwell), we see no way that Dr. Fish could have concluded that Dr. Young did anything to Ms. Morris, much less that he "failed to meet reasonably required and expected standards of dental care and was negligent in his treatment" of Ms. Morris. The trial court properly accorded Dr. Fish's opinion no weight.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and STEAGALL, JJ., concur. | August 23, 1991 |
f82f3d07-58db-4728-81d4-90f6c84cc9df | Otis Elevator of Gadsden, Inc. v. Scott | 586 So. 2d 200 | 1900183 | Alabama | Alabama Supreme Court | 586 So. 2d 200 (1991)
OTIS ELEVATOR OF GADSDEN, INC.
v.
Phyllis Dean SCOTT.
1900183.
Supreme Court of Alabama.
August 23, 1991.
*201 George M. Van Tassel, Jr. and Robert H. Sprain, Jr. of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellant.
L. Andrew Hollis, Jr. and Jeffrey C. Kirby of Pittman, Hooks, Marsh, Dutton, Hollis, P.C., Birmingham, for appellee.
KENNEDY, Justice.
Phyllis Dean Scott filed a negligence action against Otis Elevator of Gadsden, Inc., McCalley and Associates, the Peelle Company, and other defendants who are not involved in this appeal. Ms. Scott alleged that she was injured during the course of her employment at Baptist Memorial Hospital of Gadsden when she became pinned between a door and a hospital dumbwaiter cart that had suddenly emerged from an automatic unloading dumbwaiter system. The Peelle Company manufactured and sold the automatic unloading dumbwaiter system; McCalley designed and constructed the Baptist Hospital building; and Otis installed the automatic unloading dumbwaiter system.
Ms. Scott entered into a pro tanto settlement with McCalley, and the Peelle Company, but not with Otis. McCalley and the Peelle Company were dismissed. At trial, Otis moved for a directed verdict at the close of the plaintiff's evidence and at the close of all the evidence. The motions were denied. The trial judge submitted the following interrogatories to the jury for use during its deliberations:
The jury answered the first question in the negative and the second and third questions in the affirmative. Based on its answers, the jury found for Ms. Scott and awarded her $100,000. The trial court entered a judgment for Ms. Scott in that amount. Otis filed a motion for judgment notwithstanding the verdict, which the trial court denied. Otis argues on appeal that the trial court erred in entering a judgment on the portion of the jury verdict in which Otis was found to have negligently maintained and inspected the automatic "cartveyor" system. Ms. Scott does not appeal.
The Baptist Memorial Hospital was equipped with two automatic cartveyor systems serving three levels. One system conveyed clean supplies from the central *202 supply area of the hospital, and the other conveyed dirty supplies to the central supply area. Each cartroom for each level could hold two carts. The doors to the cartrooms opened in to the cartrooms. There was no mechanism to indicate to one sending a cart to a different level of the hospital how many carts occupied the receiving cartroom on that level. It is undisputed by the parties that, for this reason, the cartveyor system created a hazard.
Ms. Scott used the cartveyor system during the course of her employment at the hospital. On the day of her injury, Ms. Scott ordered that two carts be sent to her level, one for the clean cartroom and one for the dirty cartroom. One cart already occupied the clean cartroom. Inadvertently, both carts were sent to the clean cartroom. At that time, Ms. Scott was standing in the doorway to the clean cartroom. The third cart entered the room on the cartveyor system, pushing the other two carts toward the door by which Ms. Scott was standing. Ms. Scott became pinned between the door, which opened in to the cartroom, and the carts. As a result, Ms. Scott sustained an injury to her arm.
On appeal, Otis argues that, as the inspector and maintainer of the cartveyor system, it owed no duty to Ms. Scott to correct design defects in the cartveyor system. It argues that the scope of its duty to third persons who might use the cartveyor system was defined by its contract with the hospital, and that the contract stated only that Otis would keep the cartveyor system in working order, not that it would correct design defects. In any event, Otis argues, it discharged any duty it had to third persons who might use the cartveyor system by informing the hospital of the potential hazard.
Ms. Scott contends that installation of an electric eye beam in the cartveyor system would have prevented a cart from being sent to a particular level if the cartroom for that level already had two carts in it. She does not argue that Otis had a duty to actually install an electric eye beam in the cartveyor system, but that it owed a duty to third persons to specifically recommend to the hospital that, as owner of the cartveyor system, it should install an electric eye beam in the cartrooms to prevent too many carts from being sent to a particular room.
After Otis installed the cartveyor systems, it provided three months of follow-up service. Thereafter, Otis entered into a maintenance and inspection contract with the hospital.[1] The contract states in pertinent part:
It is not disputed that Otis informed the hospital that the cartveyor system, as it was installed, created a potential hazard that could result in accidents such as the one that injured Ms. Scott. Jimmy Hamilton, the adjuster for Otis, testified that, at the time the hospital was being constructed, he recognized the danger inherent in the cartveyor system as it was designed. He stated that he suggested to John Scott, the hospital's construction coordinator, that the doors to the cartroom be redesigned to open outward and that a panic bar be installed on the door to the elevator room so that, if too many carts were sent to the cartroom, the nearest cart would contact the panic bar and open the cartroom door outward. Hamilton also testified that, at the time the hospital was being built, he recommended that an electric eye beam be installed in the cartveyor system. Willis Elrod, an Otis employee, testified that he was present during the conversation between Hamilton and Scott, and that he remembered Hamilton recommending that an electric eye beam be installed in the cartveyor system. However, later at trial, Hamilton was recalled as a witness and, at that time, stated that he did not recall making such a suggestion to Scott.
After the cartveyor system was installed and the hospital began operating, the cartrooms often became "jammed" with too many carts. On many occasions between 1979 and 1981, Willis Elrod was called to correct the problem. He said that he discussed the problem with Danny Holderfield, the hospital's chief engineer, and that, at that time, he suggested that the cartroom doors be redesigned so that they would not swing in to the cartroom. At some point thereafter and before Ms. Scott's accident, Jimmy Hamilton discussed the "jamming" problem with Danny Holderfield. Hamilton told Holderfield that, if the hospital did not implement any of Otis's remedial suggestions, Otis would require the hospital to pay for future visits to "unjam" the cartrooms. The hospital did not implement any of Otis's remedial suggestions.
This action was pending on June 11, 1987; therefore, the applicable standard of review is the "scintilla evidence rule." See Ala.Code 1975, § 12-21-12; Grider v. Grider, 555 So. 2d 104 (Ala.1989).
A motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in the same manner as a motion for a directed verdict at the close of all the evidence. Rule 50, A.R.Civ.P., Committee Comments. King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So. 2d 714 (Ala.1987). In order to direct a verdict under the scintilla rule of evidence, a trial court must conclude that there is no evidence that, if believed, would support a verdict in favor of the party against whom the directed verdict is sought. King Mines Resort, Inc., supra, citing Herston v. Whitesell, 374 So. 2d 267, 270 (Ala.1979). Because the criteria for testing motions for directed verdict and for J.N.O.V. provide an objective standard, a trial court's ruling on these motions is not discretionary; thus, if alleged error is properly preserved and presented on appeal, review of these rulings is de novo. King Mines Resort, Inc., supra.
Otis argues that, under the provisions of the contract between the parties, it discharged its duty by informing the hospital that the cartveyor system, as installed, presented a potentially hazardous instrumentality. Ms. Scott does not argue that the cartveyor system, as maintained in the condition that existed at the time of her accident, was negligently maintained; that is, she does not argue that Otis failed to keep the cartveyor system in proper working order. She argues only that Otis's inspection of the cartveyor system was negligent in that, she says, it did not specifically recommend that the hospital arrange to have an electric eye beam installed in the cartrooms. Because she does not argue that Otis did not properly maintain the cartveyor system, we hold that the trial court erred in denying Otis's J.N.O.V. motion on the issue of negligent maintenance of the cartveyor system. Thus, the remaining *204 issue is the propriety vel non of the trial court's denial of Otis's J.N.O.V. motion on the issue of negligent inspection.
As to that issue, Otis argues that, although there are no cases in Alabama stating the duty owed to third parties by one who inspects elevator systems, its duty in this case is analogous to the duty owed by insurers who inspect an insured's premises for potential hazards to the insured's employees and that Alabama courts have defined such an insurer's duty to third parties.[2] Otis cites Hughes v. Hughes, 367 So. 2d 1384 (Ala.1979), which states the duty owed by an insurer that voluntarily undertakes to inspect the premises of its insured. In that case, the plaintiff was injured when, as he was working on a scaffold, he slipped on debris scattered about the workplace. He sued both his employer and his employer's insurance carrier. He alleged that his employer's insurer had negligently inspected the premises. The trial court directed a verdict for the insurer. We stated that the plaintiff must prove that the insurer (1) had undertaken to inspect the worksite, (2) had performed such inspection negligently, and (3) that such negligence was the proximate cause of his injuries. We stated that the duty undertaken by the insurer was to inspect and report hazardous conditions, and that it had no duty to correct safety hazards that it discovered. Having determined that the insurer discovered and reported to its insured the very hazard that caused the plaintiff's injury, we affirmed the judgment of the trial court based on the plaintiff's failure to present a scintilla of evidence tending to prove that the insurer had negligently inspected the premises.
Otis also cites Cook v. Branick Mfg., Inc., 736 F.2d 1442 (11th Cir.1984), in which the Court of Appeals for the Eleventh Circuit applied Alabama law to the question whether a franchisor had discharged its duty to its franchisee's employee to adequately inspect the workplace for potential hazards. In that case, the franchisor, Bandag, Inc., furnished its franchisee, Lynn Strickland, with split curing rims, instruments used to recap tires. The split curing rims were constructed in two interlocking parts, and, potentially, the two halves of the rim could fly apart with extreme force.
The franchise agreement between Bandag and Lynn Strickland provided that Bandag could inspect the Lynn Strickland premises to ensure that the franchisee was "maintaining its premises adequately," and that Lynn Strickland's "operations hereunder shall be at its risk and under its control." A Bandag representative inspected the Lynn Strickland premises and discovered that its employees were misusing the safety pins on the curing rims; for convenience, workers were frequently removing the safety pins from the rims. The inspector orally informed the shop supervisor of the dangerous condition and later sent the supervisor a written notification. Six weeks later, the plaintiff, a Lynn Strickland employee, was severely injured when a tire rim split.
The plaintiff and his wife sued Bandag, alleging negligent inspection of the Lynn Strickland premises. The trial court directed a verdict for Bandag. The Court of Appeals, citing Hughes v. Hughes, supra, stated that under Alabama law a party undertaking a duty to inspect is responsible for reporting unsafe conditions, but that it is not required to correct them. It concluded that the franchise agreement imposed no such requirement. That court held that, by notifying Lynn Strickland of the hazard, Bandag had fulfilled its duty to inspect the Lynn Strickland premises.
Otis also cites decisions in which courts from other jurisdictions have defined the duty to third persons of one who contracts to inspect and maintain elevator systems. It cites Hunt v. Jefferson Arms Apartment Co., 679 S.W.2d 875 (Mo.App.1984), in which an elevator company had contracted with the owner of an apartment building to maintain elevators in good working condition *205 and to inspect them on a monthly basis. In that case, an elevator was improperly operated by the elevator owner's employees and the plaintiff was injured as a result. The plaintiff sued the elevator maintenance and inspection company, alleging failure to warn the owner of the elevator of the dangerous condition, i.e., the improper operation. The trial court directed a verdict for the elevator maintenance company.
In defining the duty of the elevator company, the Hunt court cited a decision from the Missouri Supreme Court in Wolfmeyer v. Otis Elevator Co., 262 S.W.2d 18 (Mo. 1953). In Wolfmeyer, the plaintiff was injured in an elevator and sued the elevator maintenance company, alleging failure to install a safety device. The trial court directed a verdict for the elevator maintenance company. The Missouri Supreme Court turned to the maintenance contract to determine the scope of the duty owed by the elevator maintenance company to third persons. The maintenance contract provided only that the elevator company would maintain the elevator system, not install new equipment. Therefore, that court held that the elevator maintenance company had no duty to install new equipment, and it affirmed the trial court's judgment based on the directed verdict.
Similarly, in Hunt, the Missouri Court of Appeals held that the scope of the elevator maintenance company's duty to third persons was to be determined by the provisions of the maintenance and inspection contract. That Court held that the elevator company was obligated to maintain the elevators in good working condition and to inspect them on a monthly basis, but that it was not obligated by the provisions of the contract to undertake to supervise the use of the elevator or to instruct the owner's employees on the proper use of the elevator.
Likewise, we hold that the scope of Otis's duty is to be determined by the provisions of the contract. The contract provides that Otis will "examine periodically all safety devices." The contract further provides that it shall be the hospital's responsibility "to guard and protect the [cartroom] openings during and after loading and unloading operations and to restrict access to the area of the loading, unloading and transfer operations to trained personnel."
The contract required Otis to inspect the elevator as it was installed. It did not require Otis to recommend the specific manner by which the cartveyor system could be made safer. It is undisputed that Otis informed the hospital on more than one occasion that the condition causing the accident in this case was hazardous and that it recommended that the hospital take steps to add a safety device to prevent such accidents as this one from occurring. Moreover, the record contains evidence that representatives of Otis suggested various means by which the cartveyor system could be made safe. We hold that Otis, by informing the hospital of the unsafe condition inherent in the cartveyor system, fulfilled its duty to third persons using the cartveyor system. Thus, the trial court erred in denying Otis' motion for J.N.O.V. on the issue of negligent inspection.
Based on the foregoing, the judgment of the trial court is due to be, and it is hereby, reversed, and the cause is remanded to that court for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] Otis states in its brief that it first executed a maintenance and inspection contract with the hospital in January 1980, but that it was unable to locate a copy of the contract. In any event, it is not disputed that the parties executed a maintenance and inspection contract on June 10, 1980.
[2] The liability of workmen's compensation insurance carriers to third persons has subsequently been limited by the enactment of Act No. 86, Acts of Ala.1975, 4th Ex.Session (Ala. Code 1975, § 25-5-11). | August 23, 1991 |
af9bc9c7-2de1-4b3a-9d2e-57f668ea10eb | White-Spunner Const., Inc. v. Cliff | 588 So. 2d 865 | 1901239 | Alabama | Alabama Supreme Court | 588 So. 2d 865 (1991)
WHITE-SPUNNER CONSTRUCTION, INC.
v.
Frank CLIFF, d/b/a Cliff and Sons Masonry.
1901239.
Supreme Court of Alabama.
October 4, 1991.
William M. Lyon, Jr. and William S. McFadden of McFadden, Lyon, Willoughby & Rouse, Mobile, for appellant.
Joseph F. Danner, Mobile, for appellee.
SHORES, Justice.
This is an appeal from a judgment of the Circuit Court of Mobile County dismissing the plaintiff's complaint for lack of personal jurisdiction and improper venue. We affirm.
The plaintiff, White-Spunner Construction, Inc., is an Alabama corporation engaged in the construction business. Its office is located in Mobile. In January 1988, White-Spunner was the general contractor on the initial construction of a shopping center known as Woodstock Commons, located in Woodstock, Georgia.
In February, Benjamin Cliff telephoned White-Spunner in Mobile, from Georgia, and talked with Conan Terrell, a vice-president of White-Spunner. Cliff submitted a bid on behalf of the defendant, Frank Cliff, d/b/a Cliff and Sons Masonry, for masonry work on the Woodstock project.
White-Spunner claims that Cliff initiated contact with White-Spunner by telephoning its office and mailing a resume into Mobile. Cliff claims that he did not initiate contact with White-Spunner, but that he had been informed that White-Spunner wanted to discuss masonry work with him with regard to the Woodstock construction project; thereafter, Cliff said, he called White-Spunner's office to set up a meeting with its project manager, Terrell. Cliff also argues that the resume was sent to White-Spunner later, after it had requested one.
After negotiating the terms of the contracts, White-Spunner sent them to Cliff in Georgia for his signature. Cliff and Terrell had several telephone conversations about changing some of the details in the contracts, and on February 22, 1988, White-Spunner and Cliff entered into the *866 two subcontracts. On March 8, 1988, the contracts were finalized and both parties signed them at the project site in Georgia. Cliff had already started working on the Woodstock construction project two weeks before the signing of the final contracts.
Thereafter, the contacts between White-Spunner and Cliff were at the project site in Georgia, with the exception of one telephone call by Cliff to Terrell in Mobile informing Terrell that he would have to cease working until White-Spunner's site was ready for performance. All payments to Cliff were made in Georgia, and there was no mail correspondence in Alabama except for the checks received from White-Spunner. Cliff had no other Alabama contacts.
Both of the subcontracts between White-Spunner and Cliff contained a forum selection clause, which stated: "This subcontract shall be interpreted in accordance with the laws of the State of Alabama, and the forum for any action to enforce its terms shall be the Circuit Court of Mobile County, Alabama."
Three issues are presented by this appeal:
Forum selection clauses in Alabama are considered invalid. In Redwing Carriers, Inc. v. Foster, 382 So. 2d 554 (Ala. 1980), we stated,
"`... contractual agreements by which it is sought to limit particular causes of action which may arise in the future to a specified place, are held invalid.'
382 So. 2d at 556.
Although Redwing Carriers, supra, dealt only with subject matter jurisdiction, the case of Keelean v. Central Bank of the South, 544 So. 2d 153, 156 (Ala.1989), expressly held "that Redwing Carriers, supra, includes personal jurisdiction as well as subject matter jurisdiction."
We, therefore, hold that the forum selection clause in the present case is invalid.
We next determine whether in personam jurisdiction exists in the Mobile County Circuit Court over this nonresident defendant. The requirements for personal jurisdiction over nonresident defendants are set forth in Rule 4.2(a)(2), A.R.Civ.P.:
"(A) transacting any business in this state;
"(B) contracting to supply services or goods in this state;
In Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), the United States Supreme Court held that, for a state court to acquire personal jurisdiction over a nonresident defendant, that defendant must have sufficient contacts with the state. Keelean, supra, sets forth a twopart analysis for determining whether a court has personal jurisdiction over a nonresident defendant:
544 So. 2d at 156-57.
As to the first part of the test, White-Spunner argues that it was foreseeable to Cliff that he would be sued in Alabama because the contract was entered into with an Alabama corporation. White-Spunner also argues that the forum selection clause in the two subcontracts provided "fair warning" of a possible suit in Alabama.
As to the second part of the test, White-Spunner argues that Cliff had sufficient contacts with Alabama, because he mailed a resume into Alabama and made "four or five telephone solicitations" into Alabama.
We hold that it was not foreseeable under these facts that Cliff would be sued in Alabama; the contacts with Alabama were insufficient to establish personal jurisdiction here: the construction project was in Georgia and was developed by a Georgia business; the subcontracts were negotiated in Georgia and became effective upon receipt and execution by Cliff in Georgia; no goods, services, or payments to White-Spunner by Cliff went out of Georgia; and the direct consequences of any default by Cliff would be felt at the Georgia project site, not in Alabama.
"The fundamental question is, did the defendant act in such a manner that he reasonably ought to anticipate the direct consequences of his actions to be felt by another person residing in another state?" Ex parte Lord & Son Const., Inc., 548 So. 2d 456, 457 (Ala.1989). By telephoning White-Spunner at White-Spunner's direction, Cliff did not act in such a manner.
We find that Cliff's dealings with White-Spunner are insufficient to establish the requisite sufficient contacts with Alabama. Thus, the Mobile Circuit Court correctly decided that it lacked in personam jurisdiction.
*868 Because of our holding on these two issues, we need not address the issue of venue.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | October 4, 1991 |
a3ea019c-a482-4199-8c0a-545883839eee | Sevigny v. NEW SOUTH FEDERAL SAV. & LOAN | 586 So. 2d 884 | 1900985 | Alabama | Alabama Supreme Court | 586 So. 2d 884 (1991)
Dorothy SEVIGNY
v.
NEW SOUTH FEDERAL SAVINGS AND LOAN ASSOCIATION, et al.
1900985.
Supreme Court of Alabama.
August 23, 1991.
*885 Thomas B. Hanes of Barnett, Noble, Hanes & O'Neal, Birmingham, for appellant.
Douglas L. McWhorter of Najjar Denaburg, P.C., Birmingham, for appellees.
HOUSTON, Justice.
Dorothy Sevigny appeals from a judgment declaring that certain certificates of deposit were payable to the estate of J.T. Munn. We affirm.
Sevigny filed a complaint for declaratory judgment against the defendants, Addie Lee McAdory, individually and as executrix of the estate of James Thornwell Munn ("J.T. Munn"), deceased; Guaranty Federal Savings and Loan Association ("Guaranty Federal"); City Federal Savings and Loan Association ("City Federal"); New South Federal Savings and Loan Association ("New South"); and Alabama Federal Savings and Loan Association ("Secor Bank"), requesting that the trial court "determine any appropriate questions of construction relating to [certificates of deposit in the names of Sevigny, McAdory, and J.T. Munn issued by the four defendant institutions][1] and declare [Sevigny's] rights, status or other legal relations under these certificates of deposit." McAdory filed an answer denying that Sevigny had any ownership interest in the four certificates and alleging that the addition of Sevigny's name on the certificates was the product of undue influence, fraud, or duress practiced upon J.T. Munn by Sevigny, or the result of the mistake or incompetency of J.T. Munn at the time the certificates were created, or a breach of fiduciary duty. Each of the defendant institutions filed either a motion to dismiss or a motion for summary judgment. The trial court granted the motions as to three of the defendant institutions Guaranty Federal, City Federal, and Secor Bankbut denied the motion as to New South. The parties remaining at trial were Sevigny, McAdory, and New South. These parties entered into a stipulation, under the terms of which they submitted the case to the trial court on the basis of certain medical records, the banking records of the four defendant institutions, and the depositions of Sevigny and McAdory. Sevigny appealed as to all four institutions.
Sevigny contends that pursuant to Ala. Code 1975, § 5-16-45 (the statutory provision that sets forth the law of survivorship as to accounts with savings and loan associations), and based on the holding in Johnson v. Sims, 501 So. 2d 453 (Ala.1986), she is entitled to a one-half interest in the certificates of deposit.
McAdory contends that the certificates of deposit should pass through the estate of J.T. Munn, deceased, according to the terms of his last will and testament; that the names of McAdory and Sevigny were added to these accounts as agents for J.T. Munn to evidence the fiduciary relationship they occupied as his agents.
The trial court found, in pertinent part, as follows:
This case was submitted to the trial court without an evidentiary hearing, but, by stipulation, upon a submission of the depositions of Sevigny and McAdory, certain medical records, and the bank records from the four defendant institutions. Therefore, the usual presumption of correctness applied to the trial court's findings in an ore tenus case is not applicable here. Phillips v. Knight, 559 So. 2d 564 (Ala.1990). Where the evidence is stipulated, and no testimony is presented orally to the trial court, this Court reviews the evidence without any presumption of correctness, i.e., without any presumption in favor of the trial court's findings. Bownes v. Winston County, 481 So. 2d 362 (Ala. 1985). In such a situation, this Court sits in judgment on the evidence. Id.
Therefore, the issue for our review is whether the trial court erred, as a matter of law, in its finding that McAdory and Sevigny held their interests in the certificates of deposit at issue as agents of J.T. Munn, and its holding that the proceeds of those certificates of deposit at issue were payable to the estate of J.T. Munn, deceased.[3]
A power of attorney is defined as "[a]n instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of principal. An instrument authorizing another to act as one's agent.... The agent is attorney in fact...." Black's Law Dictionary 1171 (6th ed. 1990). When one accepts the agency, she implicitly covenants to use the powers conferred upon her for the sole benefit of the party conferring such power, consistent with the purposes of the agency relationship. See, Dudley v. Colonial Lumber Co., 223 Ala. 533, 137 So. 429 (1931). Therefore, when one accepts the power of attorney, she impliedly covenants to use the powers bestowed upon her for the sole benefit of the one conferring that power on her, consistent with the purposes of the agency relationship represented by the power of attorney. Powers of attorney will be strictly construed, *887 restricting the powers to those expressly granted and those incidental powers that are necessary to effectuate the expressed powers. Hall v. Cosby, 288 Ala. 191, 258 So. 2d 897 (1972). The principal-agency relationship is fiduciary in nature and imposes upon the agent a duty of loyalty, good faith, and fair dealing. See, Williams v. Williams, 497 So. 2d 481 (Ala. 1971); Lauderdale v. Peace Baptist Church of Birmingham, 246 Ala. 178, 19 So. 2d 538 (1944).
Meyers v. Ellison, 249 Ala. 367, 369, 31 So. 2d 353, 355 (1947). (Citations omitted.) (Emphasis added.) An agent is not permitted to occupy a position that would allow her to profit as a result of that agency relationship. Lauderdale v. Peace Baptist Church of Birmingham, supra. In Lesnick v. Lesnick, 577 So. 2d 856, 859 (Ala. 1991), this Court held that a guardian's commingling of the funds of her ward with those of her own and those owned jointly, thereby making it impossible to determine whose funds were used for what purposes, was sufficient cause for the probate court to include jointly owned property in an accounting, because "[the] joint tenancy principle of law does not defeat a guardian's obligations to act in her fiduciary capacity as custodian of the ward's estate." The agent, if otherwise competent, may testify as a witness as to the nature and extent of her authority. See, McCarty v. Skelton, 233 Ala. 531, 172 So. 901 (1937).
Our review of the evidence, which was stipulated to by the parties, supports the following statement:
J.T. Munn had been married to Ruby Dunn Munn, who predeceased him, dying on December 31, 1987. They had no children. McAdory and Sevigny were nieces of J.T. Munn and his wife. Sometime around May 8, 1986, in virtually identical documents, Munn executed a durable power of attorney to McAdory and a durable power of attorney to Sevigny in which he gave them extensive authorization to handle his affairs. Sevigny was instrumental in procuring the durable powers of attorney in her name and in McAdory's name. J.T. Munn also nominated McAdory and Sevigny to serve as his "guardian, curator or other fiduciary charged with the management of [his] property or [his] estate." Beginning in December 1985 (prior to the execution of the durable powers of attorney in 1986), McAdory and Sevigny assisted J.T. Munn with some of his business affairs and legal matters.
Subsequently, because of J.T. Munn's decreased mental capacity and pursuant to the authority vested in her by the power of attorney, McAdory created the four certificates of deposit at issue. The money in the certificates belonged exclusively to J.T. Munn and his wife during their lifetimes, and neither McAdory nor Sevigny contributed any money to the accounts or made any withdrawals from the accounts during J.T. Munn's lifetime except for his benefit. In creating each certificate, McAdory telephoned the financial institution on behalf of J.T. Munn to obtain quotes on the prevailing interest rates. She then picked up J.T. Munn from the nursing home where he was living and took him to the specific savings and loan association. Although J.T. Munn went with McAdory, she was the one who conversed with the bank officials, while he sat in the lobby or at the desk with her and the bank official. On a previous occasion (unrelated to the certificates of deposit at issue), McAdory had been informed by a representative of First Alabama Bank (not a party to this suit) that the power of attorney executed by J.T. Munn was insufficient for her to conduct *888 banking activities as his agent.[4] Thereafter, she became concerned about the sufficiency of the power of attorney to handle J.T. Munn's affairs, so for each account McAdory instructed the bank officials to open the account with J.T. Munn's name first and then to add her name and Sevigny's name as additional signatories. McAdory told the bank officials to add Sevigny's name to each account so that if anything happened to McAdory while J.T. Munn was still living, Sevigny could assist him with his banking affairs. The bank official then prepared the necessary signature card, which McAdory took to J.T. Munn and requested that he sign. At no time did he read the signature card, nor did anyone read or explain it to him. In each case, J.T. Munn merely signed his name as requested and returned the card to McAdory, who then signed her own name and mailed the card to Sevigny, who lived in Florida, along with a cover letter requesting that Sevigny sign the card and return it in the self-addressed envelope either to McAdory or to the specific bank. According to the deposition testimony of McAdory, who created the certificates of deposit at issue, she never instructed any of the financial institutions to create a survivorship account:
J.T. Munn died on September 20, 1988, at 90 years of age. On November 10, 1988, his last will and testament was admitted to the probate court, and McAdory was appointed as his executrix. McAdory and Sevigny were designated beneficiaries under the willSevigny received $5,000 and McAdory received $500and the payment of these amounts, as well as the other specific bequests and debts of the estate, was accomplished without the use of the disputed accounts, which had a date of death value of $315,349.93 and represented approximately 79% of the assets of J.T. Munn. Irma D. McHugh[5] (the surviving sister of J.T. Munn's deceased wife) was the residuary beneficiary under the terms of the will, who would receive the proceeds of the certificates of deposit if the trial court determined that the certificates passed to the estate.
Based on the foregoing, we hold that the trial court did not err, as a matter of law, in finding that McAdory and Sevigny held their interests in the certificates of deposit as agents for J.T. Munn and, therefore, that the proceeds of the certificates of deposit were payable to the estate of J.T. Munn, deceased. We affirm the trial court's judgment.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] The four certificates of deposit at issue are as follows: $42,000 at City Federal Savings and Loan Association; $73,165 at Guaranty Federal Savings and Loan Association; $100,000 at New South Federal Savings and Loan Association; and $100,000 at Alabama Federal Savings and Loan Association (Secor Bank).
[2] Although these defenses were raised in the answer, McAdory did not argue them to the trial court, nor does she challenge the trial court's finding as to these defenses on appeal.
[3] We note that considerable argument was made as to the survivorship language, or lack thereof, contained in the certificates of deposit and, therefore, as to the applicable Code provision to be considered for the disposition of the proceeds of those certificates, i.e., Ala.Code 1975, § 5-16-45 (the provision governing the payment and ownership of jointly held funds on deposit in savings and loan associations) or § 35-4-7 (the provision dealing with bank accounts in which there is no survivorship language). However, because of our resolution of the issue in this case, we pretermit any discussion as to § 5-16-45 or § 35-4-7.
[4] In the interrogatories posed to Guaranty Federal Savings and Loan Association, McAdory asked "whether or not [Guaranty Federal] offered] an agency account or any other account in which one person [could] transact banking business as agent or representative of another," to which Guaranty Federal responded, "No."
[5] Irma D. McHugh was not a party to this suit. | August 23, 1991 |
0445f316-31af-4429-b0bd-07381b82b870 | Boggan v. Waste Away Group, Inc. | 585 So. 2d 1357 | 1900801 | Alabama | Alabama Supreme Court | 585 So. 2d 1357 (1991)
Robert G. BOGGAN
v.
WASTE AWAY GROUP, INC., and Larry Earl Pettiway.
1900801.
Supreme Court of Alabama.
August 23, 1991.
*1358 Lee H. Copeland and Gregory L. Davis of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees.
SHORES, Justice.
This is an appeal from a summary judgment in favor of the defendants in an automobile rear end collision case, on the grounds that the plaintiff had signed a release of all claims. We affirm.
On August 14, 1987, Larry Earl Pettiway, an employee of Waste Away Group, Inc., drove a truck into the rear end of a 1980 Oldsmobile Delta 88 Royale automobile owned by Robert L. Boggan and being driven by his son, Robert Glenn Boggan. Following the accident, a claim was filed by Robert L. Boggan with Waste Away's insurance carrier, St. Paul Insurance Company. Negotiations for settlement of the claim began between St. Paul's agent and Robert L. Boggan.
On September 16, 1987, an attorney hired by Mr. Boggan became involved in the negotiations. A settlement agreement was reached, and St. Paul's agent sent a release form to the attorney for the Boggans. On October 2, 1987, Robert L. Boggan and Robert Glenn Boggan both signed a document entitled "Full and Final Release of All Claims" and they received a check for $4,236.57.
A week after the release was signed, Robert Glenn Boggan began to experience pains in his neck and shoulder. He was diagnosed as having a ruptured disc resulting from the accident. The Boggans sought to rescind the release, but St. Paul refused to do.
The Boggans then filed suit in the Circuit Court of Montgomery County, Alabama, against Waste Away Group, Inc., and Larry Earl Pettiway, alleging negligence and wantonness. The defendants answered the complaint, asserting release and satisfaction as an affirmative defense. The defendants then moved for a summary judgment, which was entered by the trial judge on January 31, 1991. This appeal followed.
The sole issue before this Court is whether the trial judge erred in entering the summary judgment for the defendants based on the terms of the release. 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 the light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles *1359 Townsend Ford, Inc., 409 So. 2d 784 (Ala. 1981).
Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Alabama Code 1975), for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
On appeal from a summary judgment, this Court must look to the same factors considered by the trial court in its ruling on the motion. Jehle-Slauson Const. Co. v. Hood-Rich, Architects & Consulting Engineers, 435 So. 2d 716 (Ala. 1983). The trial judge wrote:
The record reflects that the trial judge had before him the defendants' request for admissions from the plaintiff and the plaintiff's response. Robert Glenn Boggan admitted in his response to the request for admissions (1) that he and his father signed the "Full and Final Release of all Claims" on or about October 2, 1987; (2) that they were of sound mind and able to read the release at the time they executed the document; (3) that they were not under duress when they signed the release; (4) that at the time the release was signed, it contained the following language:
(5) that he and his father were represented by counsel at the time they signed the release; (6) "that he and his father had an opportunity to read the release prior to it being signed"; (7) "that the signatures were notarized by a notary"; and (8) that "Glenn Boggan received from his father all of the money that was given to his father."
The applicable Alabama law as to releases is found in Alabama Code 1975, § 12-21-109:
"It is a well settled statement of law that `in the absence of fraud, a release supported by a valuable consideration, unambiguous in meaning, will be given effect according to the intention of the parties to be judged by the court from what appears within the four corners of the instrument itself, and parol evidence is not admissible to impeach or vary its terms.'" Jehle-Slauson Const. Co., supra, at 719-20, quoting Conley v. Harry J. Welchel Co., 410 So. 2d 14 (Ala. 1982).
This Court has said: "`The construction of a written document is a function of the *1360 court. If the document is unambiguous, its construction and legal effect are a question of law which may be decided under appropriate circumstances, by summary judgment.' " Jehle-Slauson Const. Co., supra, at 720, quoting Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1194 (Ala.1978). The trial judge held that this was a valid release and that the entry of a summary judgment was appropriate in this case.
The plaintiff concedes in his brief to this Court "that under the current status of Alabama law, he is precluded from bringing an action for injuries unknown at the time of the signing of the release when that release covers both known and unknown injuries." However, the plaintiff urges this Court to adopt a "better reasoned rule." We decline to do so. The rule adopted by the Alabama Legislature is sustained by a wealth of authority, and by sound reason. State Farm Mut. Auto. Ins. Co. v. Brackett, 527 So. 2d 1249, 1252 (Ala.1988).
For the reasons stated above, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., concur. | August 23, 1991 |
a7d56bbd-bbf2-46a3-bf27-d6ec4ce2ed8b | Veal v. Teleflex Inc. | 586 So. 2d 188 | N/A | Alabama | Alabama Supreme Court | 586 So. 2d 188 (1991)
Larry VEAL, as administrator of the Estate of Larry Randal Veal, deceased
v.
TELEFLEX, INC., et al.
James D. STIDHAM, as administrator of the Estate of James E. Stidham, deceased
v.
TELEFLEX, INC., et al.
MERCURY MARINE, a DIVISION OF the BRUNSWICK CORPORATION
v.
Larry VEAL, as administrator of the Estate of Larry Randal Veal, deceased.
MERCURY MARINE, a DIVISION OF the BRUNSWICK CORPORATION
v.
James Donald STIDHAM, as administrator of the Estate of James Edwin Stidham, deceased.
88-1605, 88-1606, 88-1661 and 88-1662.
Supreme Court of Alabama.
August 23, 1991.
Steve A. Baccus and J. Michael Tanner of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellants, cross-appellees Larry Veal and James Donald Stidham.
*189 John W. Clark, Jr., Anthony N. Fox and Amy K. Myers of Clark & Scott, Birmingham, for appellee, cross-appellant Mercury Marine.
Daniel G. McDowell, Russellville, and Francis P. Manchisi, New York City, for appellee Teleflex, Inc.
N. Price Nimmo and Richardson R. Lynn, Nashville, Tenn., and William Bedford, Russellville, for appellee Marine Group, Inc.
ADAMS, Justice.
These wrongful death cases arise out of a boating accident that occurred on September 1, 1986, on Bear Creek Lake in Northwest Alabama. The administrators of the estates of James E. Stidham and Larry Randal ("Randy") Veal appeal judgments on jury verdicts of $15,000 each against Teleflex, Inc., the manufacturer of the steering system on the boat in question, and judgments in favor of Mercury Marine, a division of Brunswick Corporation, successor to Maidencraft Mercury Marine, the manufacturer of the motor and the propeller, and Marine Group, Inc., the manufacturer of the bass boat involved in the accident.
On September 1, 1986, James E. Stidham and Randy Veal, who was partially paralyzed, were passengers in a bass boat owned and operated by Harold Frederick. The three men were planning to do some bass fishing on Bear Creek Lake, and were heading for their fishing spot when, the plaintiffs say, the steering system on the bass boat broke, causing the boat to begin "end swapping." All three of the men were thrown from the boat, and the boat began to move in a tight circle at a very slow rate of speed. Veal, who was not wearing a life jacket, drowned, and Stidham, the plaintiffs say, was decapitated by the propeller of the motor. Frederick was not harmed, and was rescued by someone in a nearby boat.
The administrators of the decedents' estates filed wrongful death suits against Teleflex, Inc., Mercury Marine, and Marine Group, Inc., alleging liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), negligence and wantonness.[1] The trial judge refused to charge the jury with regard to negligence or wantonness, but did instruct the jury as to the AEMLD. The jury returned verdicts in favor of the decedents' estates and against Teleflex in the amount of $15,000 each, and verdicts in favor of the other defendants.
The record indicates that Frederick bought the boat in question from Dr. Jack Langston, who had made several alterations to it in order to increase its speed. Langston had installed a "jack plate" on the back of the boat that enabled him to raise the motor on the boat, and, later, he had replaced the jack plate with a piece of wood and aluminum that allowed the motor to be lifted even higher. The appellees contend that these alterations were dangerous because, they say, when the engine was tilted forward it interfered with the steering system, which Langston also had installed himself.[2]
The steering system on the boat consisted of two steering cables, each capable of steering the boat independently of the other. Prior to the accident in question, one of the steering cables had become inoperative; the plaintiffs say this was because of corrosion due to ultraviolet degradation of the cable. The bracket holding the second steering cable in place had, at some point, been broken, but the cable was still working. Frederick had not had the broken bracket replaced; instead, he had simply had it welded back together. When the accident occurred, Frederick was making a turn in the boat when, a witness said, a "small explosion, like a shotgun," occurred, evidently resulting from the breaking of the welded bracket; the breaking of the bracket rendered the second steering cable inoperative. The passengers were thrown *190 overboard, resulting in the deaths of Stidham and Veal. The plaintiffs contend that if the first steering cable had been functional, the accident would not have happened; therefore, they argue, its failure was a proximate cause of the accident. Teleflex contends that the accident did not occur as a result of corrosion of the inner core of the inoperative steering cable. Instead, it claims that a bend found in the first cable after the accident occurred during the accident because, Teleflex argues, the type of bend in the cable was inconsistent with corrosion; however, Teleflex submits, the bend was consistent with the boat's having hit a submerged log.
First, the plaintiffs contend that the trial judge erred when he instructed the jury only with regard to liability under the AEMLD and refused to instruct the jury as to negligence and wantonness. In Casrell v. Altec Industries, Inc., 335 So. 2d 128, 134 (Ala.1976), we stated that the AEMLD is a fault-based concept and that "a manufacturer, or supplier, or seller, who markets a product not reasonably safe when applied to its intended use in the usual and customary manner, [is committing] negligence as a matter of law." Casrell, at 132. We further stated:
*191 Casrell v. Altec Industries, Inc., 335 So. 2d at 131.
Casrell, supra, at 132. The substance of the complaint against Teleflex was that it placed into the stream of commerce a product that was unreasonably dangerous for its intended use. This is a claim under the AEMLD, and the trial court did not err in refusing to charge the jury with regard to negligence and wantonness.
With regard to the claims against Mercury Marine, the successor to Maidencraft, Inc., which manufactured the motor and propeller in question, Stidham's estate claims that the trial court erred in refusing to charge the jury on negligence and wantonness. The plaintiffs contend that the motor decapitated Stidham after he was thrown overboard, and that the use of propeller guards would have saved his life. The plaintiffs contend that because there were several patents available for propeller guards, Mercury Marine was negligent or wanton in failing to utilize them on its boats. The sole question at issue, according to the plaintiffs, was whether propeller guards were feasible at the time of the accident. If so, then they contend that Mercury Marine was either negligent or wanton in failing to utilize them and this claim should have been submitted to the jury. We disagree. For the reasons stated above, the trial court did not err in refusing to charge the jury with regard to negligence and wantonness; in fact, in light of Beech v. Outboard Marine Corp., 584 So. 2d 447 (Ala.1991), the trial court should not have submitted the AEMLD charge to the jury with regard to Mercury Marine. In Beech supra, we stated:
Beech v. Outboard Marine Corp., supra, 584 So. 2d at 450. (Emphasis added.) For the reasons stated above, the trial court did not err in refusing to charge the jury with regard to negligence and wantonness; in fact, in light of Beech, the trial court should not have submitted the AEMLD charge to the jury with regard to Mercury Marine.
The plaintiffs also argue that the trial court improperly coerced a verdict from the jury. It is their contention that the trial court had been told that the jurors were hopelessly deadlocked, and, yet, continued to send them back for further deliberation. The trial judge reinstructed the jurors with regard to the law and encouraged them to reach a verdict on several occasions, and the plaintiffs suggest that the language he used was tantamount to coercion.
The appellees, on the other hand, contend that the trial court's "Allen *192 charges"[3] do not warrant a reversal in this case. We agree. In this case, the jurors were never instructed that they had to return a verdict; rather, they were merely encouraged to continue deliberating as long as there was a possibility that they could reach an agreement on the case. The jurors were instructed "not to violate [their] conscience in any way," and we find no merit in the argument that the verdict was coerced.
We also find no merit in the plaintiffs' argument that the bass boat was defectively designed, and we will not address that argument here.
For the foregoing reasons, the judgments in these cases are hereby affirmed.
88-1605, AFFIRMED.
88-1606, AFFIRMED.
88-1661, AFFIRMED.
88-1662, AFFIRMED.
MADDOX, ALMON, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
HORNSBY, C.J., concurs in the result.
[1] Veal's estate asserted no claim against Mercury Marine.
[2] Langston, prior to selling the boat to Frederick, had also put black tape around the ends of the steering cables.
[3] Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). | August 23, 1991 |
03fee2b7-2219-4999-9128-f38c8c41bf50 | Jordan v. Brantley | 589 So. 2d 680 | 1900617, 1900618, 1900724, 1900725 | Alabama | Alabama Supreme Court | 589 So. 2d 680 (1991)
Cherie JORDAN
v.
Bobby J. BRANTLEY.
Cherie JORDAN
v.
Dorothy A. ROBERTSON.
Bobby J. BRANTLEY
v.
Cherie JORDAN.
Dorothy A. ROBERTSON
v.
Cherie JORDAN.
1900617, 1900618, 1900724 and 1900725.
Supreme Court of Alabama.
August 23, 1991.
Rehearing Denied October 4, 1991.
A. Neil Hudgens, R. Alan Alexander and Thomas H. Nolan, Jr. of Brown, Hudgens, Mobile, for appellant/cross-appellee Cherie Jordan.
Dennis J. Knizley of Knizley & Powell, Mobile, for appellee/cross-appellant Bobby J. Brantley.
Billy C. Bedsole of Stockman & Bedsole, Mobile, for appellee/cross-appellant Dorothy A. Robertson.
SHORES, Justice.
These cases concern the misidentification of the bodies of two young men who were killed in a one-car accident in Mobile County, Alabama, on October 31, 1987. The plaintiffs and one defendant appeal from the granting of a new trial on the grounds of juror misconduct. We affirm in part and reverse in part.
John Randall Robertson and Robert Lynn Brantley were killed when the Pontiac *681 Firebird automobile in which they were riding left the road and crashed into a pecan tree. Their bodies were sent to the University of South Alabama Medical Center by two state troopers, who removed their identification. When the bodies arrived at the emergency room, there was nothing on them to tell which body was which. Identifying toe tags were placed on the bodies at the hospital by Nurse Cherie Jordan. She testified that she placed the toe tags on the bodies based on the information she received from the state trooper radio dispatcher. However, there was a mix-up, and the bodies were misidentified. As a result, when the Brantleys went to the funeral home to view their son's open casket, they discovered the body of the Robertson boy. The Robertsons had buried the Brantley boy in a closed casket.
After the discovery of the misidentification, Bobby J. Brantley and Dorothy Robertson each filed a complaint (the complaints were later consolidated) against State Trooper E.L. Chunn, State Trooper E. Bush, Nurse Cherie Jordan, and certain other named defendants.[1] Their complaints alleged that the defendants had negligently and/or wantonly misidentified the bodies of the dead boys, and, as a result, had caused severe emotional pain and suffering to the plaintiffs.
The case was tried to a jury on November 13, 1990. Following the presentation of the evidence, the trial judge charged the jury and submitted the negligence claims to it. The jury returned a verdict of $100,000 in favor of each plaintiff against the two state troopers. The jury found in favor of defendant Cherie Jordan.
On November 19, 1990, the trial judge held additional proceedings and informed counsel for the parties as follows:
Defendants Chunn and Bush then filed a motion for j.n.o.v. or, in the alternative, a new trial.[2] Plaintiffs Bobby Brantley and Dorothy Robertson also filed motions for a new trial. Nurse Cherie Jordan filed a response to the plaintiff's motions for a new trial and a brief in opposition to them.
The trial judge heard oral argument on the motions on January 4, 1991. He granted a new trial, based on this Court's decision in Nowogorski v. Ford Motor Co., 579 So. 2d 586 (Ala.1990). Cherie Jordan filed a motion to reconsider the granting of a new trial, which was denied by the trial court. Defendant Cherie Jordan[3] and plaintiffs Bobby J. Brantley and Dorothy A. Robertson[4] appeal.
*682 We first consider whether the trial court erred in granting a new trial on the basis of juror misconduct. In Nowogorski v. Ford Motor Co., supra, at 589, this Court quoted the rule as to juror misconduct, stated in Whitten v. Allstate Ins. Co., 447 So. 2d 655 (Ala.1984):
Id. at 658. In Nowogorski this Court said, "It is well settled, that if the verdict could have been affected by the juror misconduct, then a new trial is justified." 579 So. 2d at 590.
We have carefully considered the record in this case. We conclude that the 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. It is not disputed that, on the second day of deliberation, the foreperson of the jury took a dictionary into the jury room. The explanation given in the affidavits of the jurors was that on the first day of deliberation the jury had unanimously agreed to render a verdict in favor of the plaintiffs against the state troopers, but that they had been divided as to whether to render a verdict against Nurse Cherie Jordan, because they could not agree as to whether she had been "prudent" and "reasonable" in her identification of the bodies.
On the morning of the second day, the foreperson of the jury used the dictionary to look up the meaning of these words and discussed the meanings contained in the dictionary with the other members of the jury. Although some jurors stated in their affidavits that they were not influenced by the use of the dictionary, the facts show that they were. The affidavit of James David Mills, an attorney who served as a juror, states that "[t]erms such as negligence, reasonableness, and other terms having a legal impact were discussed as well as the definition of those terms given by the dictionary."
The evidence reflects that the jury had not been able to reach a verdict until the dictionary was used. The terms "prudent" and "reasonable" were crucial in resolving a key material issue in the case. In addition, the foreperson told the trial judge that the dictionary definitions influenced the jury. Thus, the trial court could reasonably find that the introduction of the extraneous matter into the jury deliberations was prejudicial.
Nurse Cherie Jordan argues that the granting of a new trial was unconstitutional "in the absence of evidence or substantial evidence that any single juror was influenced or that the plaintiff was prejudiced by the presence of a dictionary in the jury room." Obviously, we must reject the argument that the grant of a new trial was improper, because there is substantial evidence of such influence. We affirm the order granting a new trial, on the authority of Hallmark v. Allison, 451 So. 2d 270 (Ala. 1984); Nichols v. Seaboard Coastline Ry., 341 So. 2d 671 (Ala.1976); and Nowogorski v. Ford Motor Co., supra.
Nurse Jordan argues further that the trial court erred in failing to grant her motion for a directed verdict. She contends that she presented competent expert testimony that she did not deviate from the appropriate standard of nursing care, and she contends that the plaintiffs failed to offer competent expert testimony that she did deviate from the standard of care. We agree.
Regarding a motion for a directed verdict, this Court has held:
Dobbs v. Alabama Power Co., 549 So. 2d 35 (Ala.1989).
Under the Alabama Medical Liability Act, § 6-5-480 et seq., Nurse Jordan is a "health care provider." Section 6-5-481(8) reads:
In a case governed by the Act, the plaintiff must offer expert medical testimony as to what is or what is not the proper standard of care, and the lack of such testimony results in the lack of proof essential to establish the plaintiff's case. Rosemont, Inc. v. Marshall, 481 So. 2d 1126, 1129 (Ala. 1985); Gilbert v. Campbell, 440 So. 2d 1048, 1049 (Ala.1983); Moses v. Gaba, 435 So. 2d 58 (Ala.1983).
The record reflects that a directed verdict was appropriate in this case. Nurse Jordan presented the testimony of Cynthia Lynn Gurdak, a clinical nurse specialist, who testified that in her opinion, to a reasonable degree of medical certainty, Nurse Jordan did not deviate from the proper standard of care in placing the identification on the bodies. Nurse Gurdak testified that she had worked in the emergency rooms at the University of Alabama Hospital in Birmingham and the Washington Hospital Center in the District of Columbia. She had approximately 13 years of experience as a nurse dealing with trauma and burns and approximately two years of experience in emergency room work at the time of her testimony.
Nurse Jordan testified that she filled out the toe tags on the two bodies on the night in question with the information that she received from the state trooper's office. She was relying upon the information she received from the state trooper radio dispatcher regarding the identity of the bodies. All identification had been removed from the bodies by the state troopers. Nurse Gurdak testified as an expert witness that it was reasonable to rely upon information from state troopers via state trooper dispatchers. In her opinion, Nurse Jordan did not deviate from the standard of care.
The plaintiffs presented the testimony of Mildred Wood, a registered nurse, who testified that in her opinion Nurse Jordan deviated from the proper standard of care. However, Mrs. Wood had not worked in a hospital in the three years prior to the date of the trial. She admitted candidly that she was not an expert in emergency room procedures. She had never been assigned to work full time in an emergency room.
Because the only evidence that Nurse Jordan deviated from the standard of care came from one who is not an expert in emergency room procedures, we find that the trial court erred in failing to direct a verdict for Nurse Jordan.
For the reasons stated above, the order of the trial court granting a new trial is due to be affirmed. We reverse the trial court's denial of a directed verdict in favor of Nurse Jordan.
AFFIRMED IN PART; AND REVERSED IN PART.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] Defendants University of South Alabama Medical Center, the Alabama Department of Public Safety, the Alabama Department of Forensic Sciences, Dr. Gary Cumberland, Dr. Leroy D. Riddick, Serenity Gardens Funeral Home, and Mobile Memorial Gardens Funeral Home were either granted summary judgment or dismissed from the case. Defendant Radney Funeral Home entered into a pro tanto settlement agreement with Plaintiff Brantley and a stipulation of dismissal was filed.
[2] The troopers entered into a pro tanto settlement with plaintiff Brantley on December 18, 1990, and their motions for new trials were rendered moot.
[3] On appeal, Nurse Jordan contends that the trial court erred in failing to direct a verdict in her favor and in granting the plaintiff's motion for a new trial on the basis of juror misconduct.
[4] On appeal, the plaintiffs concede that the trial court did not err in granting a new trial on the grounds of juror misconduct. Brantley argues that the trial court erred in instructing the jury that the Alabama Medical Liability Act required expert testimony in order for the plaintiffs to prove their case. | August 23, 1991 |
4c1b13c7-1a09-4686-9c55-d3f8106df5ca | State Hwy. Dept. v. Milton Const. Co. | 586 So. 2d 872 | 1900596, 1900731 | Alabama | Alabama Supreme Court | 586 So. 2d 872 (1991)
STATE OF ALABAMA HIGHWAY DEPARTMENT
v.
MILTON CONSTRUCTION COMPANY, INC.
MILTON CONSTRUCTION COMPANY, INC.
v.
STATE OF ALABAMA HIGHWAY DEPARTMENT, et al.
1900596, 1900731.
Supreme Court of Alabama.
August 23, 1991.
*873 Jerry L. Weidler, Montgomery, for appellant/cross-appellee.
Rodney A. Max of Najjar Denaburg, P.C., and Wanda D. Devereaux, Montgomery, for appellee/cross-appellant.
Truman M. Hobbs, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for amicus curiae The Hardaway Co.
HORNSBY, Chief Justice.
This case arises out of a contract dispute between Milton Construction Company, Inc., and the State of Alabama Highway Department. In Milton Construction Co. v. State Highway Dep't, 568 So. 2d 784 (Ala.1990) ("Milton I"), we held that the clause in the contract between these parties, which authorized the Highway Department to withhold money as disincentive payments for projects not completed by the deadline, was void and unenforceable as a penalty.[1] In that case we reversed the judgment of the trial court and remanded the case for further proceedings consistent with our opinion.
On remand, Milton Construction filed a motion for summary judgment based upon this Court's opinion in Milton I. The Highway Department then filed an amended counterclaim, seeking damages for the "road user costs"[2] caused by Milton Construction's alleged breach of the contract and a motion in opposition to Milton Construction's motion for summary judgment. Milton Construction then filed a motion to dismiss the amended counterclaim. The trial court entered a judgment holding that the disincentive clause in the contract was void and that the Highway Department must reimburse Milton Construction the $534,000 withheld from payment under the disincentive clause in the contract, and the trial court dismissed the Highway Department's amended counterclaim. The trial court denied Milton Construction's motion for prejudgment interest. The court dismissed the Highway Department's amended counterclaim.
The Highway Department appealed on the grounds that the trial court erred in not allowing it to amend its counterclaim to seek actual damages under the contract and that the doctrine of sovereign immunity prohibits the Highway Department from reimbursing Milton Construction for the money it had withheld under the disincentive clause of the contract. Milton Construction filed a cross-appeal on the grounds that the trial court had erred in not granting its motion for the award of prejudgment interest. We affirm in part; reverse in part; and remand.
The Highway Department argues that the trial court erred because it dismissed the amended counterclaim, which sought a recovery of user costs allegedly caused by Milton Construction's breach of the contract. The Highway Department says that even though this Court held that the disincentive provision of the contract was void, the language of that provision still allows the Highway Department to prove and recover user costs caused by Milton's delay. The disincentive clause states as follows:
Milton I, 568 So. 2d at 786.
The Highway Department relies in large part on the decision in Cook v. Brown, 408 So. 2d 143 (Ala.Civ.App.1981). In Cook, the Court of Civil Appeals held that a "liquidated damages" provision contained in a contract between the parties was void as a penalty. The court reversed the trial court's judgment and remanded the case with instructions. In its opinion, the court stated that its finding that the liquidated damages provision was void did not prevent Cook from recovering actual damages caused by Brown's breach of the contract. The Highway Department urges this Court to apply Cook to this case and hold that although the disincentive clause was void, the Highway Department may amend its counterclaim to seek user costs caused by Milton Construction's delay in completing the contract. We hold, however, that Cook is distinguishable from this case.
In Milton I we held that the disincentive clause of the contract between Milton Construction and the Highway Department was void as a penalty and that it was not intended to provide "compensation for any delay caused to the Highway Department or to the public." Milton I, 568 So. 2d at 791 (emphasis added). Unlike the contract in Cook, the instant contract contained a liquidated damages clause and the invalid disincentive clause. When the court in Cook invalidated the liquidated damages clause as a penalty, the parties were left to recover actual damages. Here, the Highway Department has already recovered under the default and liquidated damages clauses of the instant contract. Milton I, 568 So. 2d at 786-87, 791. Now the Highway Department seeks to recover user costs in addition, on the ground that the contract provided that both the disincentive clause and the liquidated damages clause applied in case of deadline overruns.
Id. That is, the Highway Department's recovery under the contract's default provisions and liquidated damages provisions provide it with full compensation. Whether the additional damages are characterized as disincentives or as user costs, they would pass the "limit of reasonableness."
The Highway Department's recovery of such damages was specifically foreclosed by our decision in Milton I, wherein this Court held that the disincentive clause was a penalty and not a means of recovering damages for the travelling public. The same analysis applies to the claim for recovery of user costs, and the Highway Department is equally foreclosed. Although the Highway Department can not recover user costs in this case, we do not foreclose the possibility that the Highway Department may recover such costs caused by contract delays in highway construction contracts where the contract allows for such damages and those damages do not constitute a penalty. Therefore, we hold *875 that the trial court did not err in dismissing the Highway Department's amended counterclaim seeking an award of user costs.
The Highway Department next argues that, because of the doctrine of sovereign immunity, it can not be made to pay the $534,000 that it withheld from Milton under the void disincentive provision of the contract. The Highway Department argues that any action that seeks to compel the state, or a state agency (e.g., the Highway Department), to perform any contract or to pay any debt is barred under Ala. Const., art. I, § 14. We disagree.
It is true that § 14 of the Constitution prevents a suit against the state as well as suits against its agencies. See Phillips v. Thomas, 555 So. 2d 81 (Ala. 1989); Rutledge v. Baldwin County Comm'n, 495 So. 2d 49 (Ala.1986). However, this Court has also recognized that there are certain established exceptions to the protection afforded the state or its agencies by sovereign immunity. See Ex parte Carter, 395 So. 2d 65, 68 (Ala.1981). Among those recognized exceptions are actions brought to force state employees or agencies to perform their legal duties. Id. See also Nix and Vercelli, Immunities Available In Alabama For Cities, Counties And Other Governmental Entities, And Their Officials, 13 Am.J.Trial Advoc. 615 (1989).
Ala.Code 1975, § 23-1-40 states that it is the Highway Department's duty to maintain the roads of this state, and § 23-1-53 authorizes the Highway Department to make contracts for the construction or maintenance of highways, roads, or bridges in the state. Section 23-1-62(b) provides that the Highway Department use a portion of the funds appropriated to it for the expense of maintaining the roads. Pursuant to these statutes, the Highway Department contracted with Milton Construction to work on Interstate Highway 65 and Interstate Highway 59. See Milton I, 568 So. 2d at 785-86. Once the Highway Department has legally contracted under state law for goods or services and accepts such goods or services, the Highway Department also becomes legally obligated to pay for the goods or services accepted in accordance with the terms of the contract. It follows that this obligation is not subject to the doctrine of sovereign immunity and is enforceable in the courts. See, e.g., Gunter v. Beasley, 414 So. 2d 41 (Ala.1982); State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757 (1928).
It is undisputed that Milton Construction has already rendered the services called for under the contract. Consequently, we hold that this lawsuit is not barred by the doctrine of sovereign immunity, because it is in the nature of an action to compel state officers to perform their legal duties and pay Milton Construction for services contracted for and rendered. Gunter, supra; Roquemore, supra.
For example, in Roquemore the Highway Department contracted with Roquemore to purchase hay. After Roquemore had delivered a substantial amount of hay to the Highway Department, it refused to accept any further deliveries of hay and refused to pay for the hay that it had already received. Roquemore petitioned this Court for a writ of mandamus ordering the State Board of Administration[3] and the Highway Department to pay him for the hay that he had delivered. This Court held that the writ was proper and was not barred by the doctrine of sovereign immunity because, under the applicable statutes, the Highway Department could not refuse to pay for goods that it had already accepted. This Court held that the suit in Roquemore was one to force a state agency to perform its legal duty, i.e., to force the Highway Department to pay for the hay that it had already accepted. Likewise, in this case, Milton Construction's action against the Highway Department is not barred by the doctrine of sovereign immunity.
Milton Construction cross-appeals the trial court's refusal to grant it prejudgment *876 interest on the proceeds that the Highway Department withheld. Milton Construction argues that this Court should extend its decisions in Elmore County Commission v. Ragona, 561 So. 2d 1092 (Ala.1990) (post-judgment interest recoverable from counties), and Jefferson County v. City of Birmingham, 235 Ala. 199, 178 So. 226 (1938) (post-judgment interest recoverable from municipalities), to state agencies. As a general rule, a governmental agency is not liable for interest payable as damages for improperly withheld funds unless so stipulated by a contract or by a statute. Hogan v. City of Huntsville, 288 Ala. 595, 264 So. 2d 155 (1972); Jefferson County, supra.
Ala.Code 1975, § 8-8-8, provides as follows:
This Court has interpreted this statute to mean that "`[a]ll liquidated demands for a sum certain, fixed by agreement or otherwise, bear interest from the time the party becomes liable and bound to pay them.'" Miller & Co. v. McCown, 531 So. 2d 888 (Ala.1988), quoting C. Gamble, Alabama Law of Damages, § 8-7 (1988).
In Jefferson County, supra, we held that the statutes providing for the payment of prejudgment interest, § 8-8-8, and post-judgment interest, § 8-8-10, were broad enough to apply to counties. See also City of Birmingham v. Simmons, 222 Ala. 309, 132 So. 322 (1931) (predecessor to Ala.Code 1975, § 8-8-10, broad enough to include municipalities). Milton Construction argues that the reasoning this Court used to apply § 8-8-8 and § 8-8-10 to counties and municipalities also applies to state agencies. We agree.
When construing a statute, the duty of the Court is to ascertain the legislative intent from the language used in the statute, and, thus, when the statutory pronouncement is clear and not susceptible to different interpretations, it is the paramount judicial duty of the Court to abide by the clear pronouncement, not to amend or repeal the statute under the guise of judicial interpretation. Parker v. Hilliard, 567 So. 2d 1343 (Ala.1990). Section 8-8-8 states that it applies to all contracts, and the language used does not limit the operation of the statute so as to exclude state agencies. The Highway Department has cited us to no other statute that would exclude it from the operation of § 8-8-8, and we are unaware of such a statute. We hold that the language of the statute is broad enough to encompass actions against the state and its agencies. Therefore, we hold that § 8-8-8 is applicable to the Highway Department. Because the trial court made no findings in regard to prejudgment interest, we remand this case to the trial court to determine the amount of prejudgment interest due.
The judgment is affirmed to the extent that it denied the Highway Department a recovery of "user costs" and ordered the Highway Department to pay the money withheld under the void disincentive provision; it is reversed insofar as it denied an award of prejudgment interest on the amount withheld; and the cause is remanded for a determination and award of prejudgment interest.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The facts in this case are stated in Milton I and need not be repeated in this opinion. However, we point out that Milton Construction and the Highway Department actually entered into two contracts for similar projects on two different highways. Except for the dollar amounts, these contracts contained identical disincentive and liquidated damages clauses. For the purpose of this opinion, we refer to these contracts in the singular.
[2] The Highway Department defines damages for "road user costs" as "the daily cost of the traveling public due to delays caused by [the highway construction projects]." The Highway Department alleges that the amount of the road use costs are between $30,000 and $40,000 per day of delay.
[3] The State Board of Administration was required to approve and audit any bill owed by the Highway Department before the payment could be made. | August 23, 1991 |
3102ce8b-f2f8-4608-972d-50500d55e15b | Moore v. Mobile Infirmary Ass'n | 592 So. 2d 156 | N/A | Alabama | Alabama Supreme Court | 592 So. 2d 156 (1991)
Barbara MOORE
v.
MOBILE INFIRMARY ASSOCIATION.
89-1087.
Supreme Court of Alabama.
September 27, 1991.
Rehearing Denied January 3, 1992.
*157 Gregory B. Breedlove and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellant.
W. Michael Atchison, W. Stancil Starnes, Laura H. Peck and A. Sybil Vogtle of Starnes & Atchison, Birmingham, for appellee.
Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for amicus curiae Alabama Trial Lawyers Ass'n.
ADAMS, Justice.
Barbara Moore appeals from a judgment reducing the amount of damages awarded to her by the jury in a medical malpractice case against Mobile Infirmary Association ("Infirmary"). We reverse.
The undisputed facts reveal that on September 8, 1988, Barbara Moore entered the Infirmary's health care facility for treatment of lower back pain. Her physician prescribed bed rest, traction, physical therapy, pain medications, muscle relaxants, and anti-inflammatory agents. As a sedative, he prescribed periodic muscular injections of "sparine."
On September 18, a nurse injected sparine into Ms. Moore's right forearm, an improper location for such an injection. The injection caused an immediate "burning sensation," followed by a loss of feeling in portions of the right hand. The numbness in her right hand persisted after her discharge from the Infirmary.
On September 21, 1988, Ms. Moore suffered third-degree burns to her little finger while cooking. Because of the absence of sensation in her hand, she was unaware of the significance of the injury until the affected area became gangrenous. The gangrenous condition eventually required amputation of the right little finger. Her right ring finger has also become permanently anesthetized and contracted, and she is expected to experience permanent pain in other areas of her right hand and arm.
Ms. Moore filed an action against the Infirmary in which she sought compensatory and punitive damages, including damages for "physical pain and mental anguish," physical impairment, and disfigurement as a result of alleged negligence or wantonness of the Infirmary's employees. At trial, the Infirmary consented to the entry of a directed verdict against it in favor of Barbara Moore on the issue of liability. The jury, after considering only the issue of damages, returned the following verdict: "We, the jury, assess the plaintiff's damages as follows: Past damages, four hundred thousand dollars; future damages, two hundred thousand dollars. It is our intention to assess total damages to the plaintiff at six hundred thousand dollars."
The trial judge, pursuant to Ala.Code 1975, § 6-5-544(b), reduced the amount of the award of noneconomic damages to $400,000 and entered a judgment against the Infirmary in the amount of $459,000. The judgment thus included the sums of $59,000, which represented economic damages for lost earnings and medical expenses, and $400,000 in damages for noneconomic loss, as defined by the statute. On appeal, the only issue presented for review is whether the statute's limitation on the amount of noneconomic damages that a jury may award offends the Constitution of Alabama of 1901.
Section 6-5-544(b) was enacted as part of the Alabama Medical Liability Act of 1987. Act. No. 87-189, § 5, 1987 Ala.Acts 261. The statute provides:
Id. Section 6-5-544(a) defines "noneconomic loss" as "losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium and other nonpecuniary damage."
Ms. Moore contends that § 6-5-544(b) violates various provisions of the Declaration of Rights, which composes article one of the Constitution of Alabama. In particular, she insists that the statutory ceiling on damages violates (1) the right to trial by jury as guaranteed by Ala. Const. art. I, § 11, (2) guarantees of equal protection and due process, (3) the right-of-access-to-courts provision of Ala. Const. art. I, § 13, and (4) the separation of powers provisions of Ala. Const. art. III, §§ 42, 43. Ms. Moore does not challenge the validity of § 6-5-544(b) under any provision of the United States Constitution; therefore, our analysis and conclusions regarding the constitutionality of § 6-5-544(b) are based entirely on adequate and independent state law grounds.
Our disposition of this case is facilitated by reference to the substantial body of case law that has evolved from constitutional challenges brought in the highest courts of other states to statutes imposing damages "caps" of various types. As of the date of this opinion, it appears that the majority of courts reviewing challenges under the constitutions of their respective states have invalidated limitations on damages. See, e.g., Smith v. Department of Ins., 507 So. 2d 1080 (Fla.1987) (statute imposing a $450,000 cap on noneconomic damages recoverable in actions for personal injury violated open courts provision); Wright v. Central Du Page Hosp. Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736 (1976) ($500,000 limitation on recovery in medical malpractice actions violated equal protection guarantee); Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232 (1991) (statute imposing $875,000 limitation on noneconomic damages recoverable in actions for personal injury violated state constitution's equal protection guarantee); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980) (statute imposing $250,000 limitation on noneconomic damages recoverable in medical malpractice actions violated state constitution's equal protection guarantee); Arneson v. Olson, 270 N.W.2d 125 (N.D.1978) (statute imposing $300,000 limit on damages recoverable in medical malpractice action violated state and federal equal protection guarantees); Morris v. Savoy, 61 Ohio St.3d 684, 576 N.E.2d 765 (1991) (statute imposing $200,000 limit on "general" damages recoverable in medical malpractice action violated state due process guarantee); Lucas v. United States, 757 S.W.2d 687 (Tex. 1988) (statute limiting liability to $500,000 for damages in medical malpractice actions violated open courts provision); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989) (statute limiting medical malpractice liability of state hospital to $100,000 violated provisions of state constitution); Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989) (statute imposing a cap on noneconomic damages for personal injury at a rate of 0.43 × average annual wage and life expectancy violated right to jury trial under provision of state constitution); see also L. Nelson, Tort Reform in Alabama: Are Damages *159 Restrictions Unconstitutional? 40 Ala. L.Rev. 533 (1989). Contra, Fein v. Permanente Medical Group, 38 Cal. 3d 137, 211 Cal. Rptr. 368, 695 P.2d 665 (1985) (statute limiting recovery for noneconomic loss to $250,000 in action for medical malpractice did not violate equal protection or due process guarantees); Johnson v. Saint Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585 (1980) (statute limiting medical malpractice liability to $500,000 did not violate right-to-remedy, jury trial, equal protection, or due process provisions of state constitution); Samsel v. Wheeler Transp. Serv., Inc., 246 Kan. 336, 789 P.2d 541 (1990) ($250,000 limitation on recovery for noneconomic loss due to personal injury did not violate right-to-remedy or jury trial provisions of state constitution where legislature had provided sufficient quid pro quo); Etheridge v. Medical Center Hosp., 237 Va. 87, 376 S.E.2d 525 (1989) (statute limiting total recovery against a health care provider to $750,000 did not violate right to jury trial, due process, or equal protection; separation of powers provision; or special legislation prohibitions).
In reviewing the constitutionality of a statute, we "approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government." Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944). Nevertheless, if it clearly appears that an act of the legislature unreasonably invades rights guaranteed by the Constitution, we have not only the power but the duty to strike it down. City of Russellville v. Vulcan Materials Co., 382 So. 2d 525 (Ala.1980); Peddycoart v. City of Birmingham, 354 So. 2d 808 (Ala.1978).
The right to a jury trial in the courts of this state is guaranteed by Ala. Const. art. I, § 11. Section 11 provides in toto: "That the right of trial by jury shall remain inviolate." As we explained in Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651 (1974), the "crucial words" found in that section are "`shall remain inviolate.'" The clause "forbid[s] the state through the legislative, judicial, or executive departmentone or allfrom ever burdening, disturbing, qualifying, or tampering with this right to the prejudice of the people." Id. at 271, 292 So. 2d at 655. Section 11 "freezes" the right to trial by jury as that right existed in 1901, the date of the ratification of our present Constitution. Id. at 269, 292 So. 2d at 652; see also J. Hoffman, Alabama's Right to Trial by Jury in Civil Cases Since the Merger of Law and EquityWhat Has Changed and What Has Not, 32 Ala.L.Rev. 465, 488-89 (1981).
It is undisputed that juries were employed in Alabama in 1901 to assess "quality of life" damagesdamages for pain, suffering, and other noneconomic loss in actions alleging negligent personal injury. See, e.g., Ensley Ry. v. Chewning, 93 Ala. 24, 9 So. 458 (1891); South & North Alabama R.R. v. McLendon, 63 Ala. 266 (1879); Barbour County v. Horn, 48 Ala. 566 (1872).
The Infirmary contends, however, that "Article 1, Section 11 of the Alabama Constitution does not state that the plaintiff's inviolate right to a trial by jury includes the right to have the jury determine the actual amount of damages that the plaintiff will receive." Brief of Appellee, at 62 (emphasis added). It insists that the "Alabama Constitution, like the Federal Constitution, is silent on the question of whether a jury must determine the amount of recovery in a trial in which the jury determines issues of liability." Id. at 63. It thus argues, in effect, that the jury's factual determinations regarding the value of the plaintiff's injuries are not entitled to constitutional protection; therefore, it says, the right to trial by jury is simply not implicated by the actions of the trial court that disturb those determinations.
In support of this proposition, the Infirmary contends that the legislative imposition of a damages cap impairs the right to a jury trial no more than traditional forms of judicial supervision of damages assessments, such as remittitur, through which the prevailing party is given the option to *160 remit a portion of an excessive verdict as an alternative to a new trial. Consistent with its contention that § 11 guarantees do not extend to the remedy phase of the trial, the Infirmary contends that remittitur "does not deny a plaintiff his right to a trial by jury." Id. at 70. For the same reasons, the argument goes, § 6-5-544(b) does not invoke § 11.
We agree that these forms of judicial supervision, as they are presently employed in this state, do not offend the Constitution of Alabama; however, that is not because they do not implicate the right to a jury trial. On the contrary, these practices clearly implicate the right to trial by jury. See C. Wright & A. Miller, Federal Practice and Procedure § 2815, at 99-103 (1973); Carlin, Remittiturs and Additurs, 49 W.Va.L.Q. 1, 3-4 (1942); Note, Remittitur Practice in the Federal Courts, 76 Colum.L.Rev. 299, 310-11 (1976); Commentary, Remittitur Practice in Alabama, 34 Ala.L.Rev. 275, passim (1983).
The constitutional implications inherent in interference with jury awards through orders granting remittitur or a new trial were acknowledged by the appellate courts of Alabama early in this century. In Montgomery Light & Traction Co. v. King, 187 Ala. 619, 65 So. 998 (1914), this Court discussed the constitutional underpinnings of the jury's findings on the amount of damages. In that case, the Court said:
187 Ala. at 621, 65 So. at 998. (Emphasis added.) Similarly, the Court of Appeals cautioned:
Thompson v. Southern Ry., 17 Ala.App. 406, 408, 85 So. 591, 592-93 (1920). See also Castleberry v. Morgan, 28 Ala.App. 70, 72, 178 So. 823, 824 (1938) (power of the trial judge to set aside a damages award is circumscribed by the right of trial by jury "upon whom, by the law, is fixed the duty of ascertaining this very question").
In that connection, this Court has consistently regarded the authority to interfere with the jury's findings on the amount of damages as one to be exercised with great caution. Vest v. Gay, 275 Ala. 286, 154 So. 2d 297 (1963); Airheart v. Green, 267 Ala. 689, 104 So. 2d 687 (1958); Woodward Iron Co. v. Earley, 247 Ala. 556, 25 So. 2d 267 (1946); Central of Georgia Ry. v. White, 175 Ala. 60, 56 So. 574 (1911); Montgomery Traction Co. v. Knabe, 158 Ala. 458, 48 So. 501 (1908). The jury's role in fixing the amount of damages has been regarded as particularly sacrosanct in cases involving damages not susceptible of precise measurement. Alabama Power Co. v. Mosley, 294 Ala. 394, 401, 318 So. 2d 260, 266 (1975) ("[t]here is no fixed standard for ascertainment of compensatory damages recoverable ... for physical pain and mental suffering, but the amount of such award is left to the sound discretion of the jury"); Austin v. Tennessee Biscuit Co., 255 Ala. 573, 52 So. 2d 190 (1951); Sheffield Co. v. Harris, 183 Ala. 357, 61 So. 88 (1912); Montgomery Light & Traction Co. v. King, 187 Ala. 619, 65 So. 998 *161 (1914); C. Gamble, Alabama Law of Damages § 7-5, at 50 (2d ed. 1988); Commentary, Remittitur Practice in Alabama, 34 Ala.L.Rev. 275, 285-86 (1983) ("granting a remittitur option" in cases involving "intangible factors such as pain and suffering ... invade[s] the province of the jury").
This Court has often cautioned against interference with a jury's damages assessment unless the particular assessment is flawed by bias, passion, prejudice, corruption, or other improper motive. See Kabel v. Brady, 519 So. 2d 912 (Ala.1987); Hickox v. Vester Morgan, Inc., 439 So. 2d 95 (Ala. 1983); Alabama Fuel & Iron Co. v. Andrews, 215 Ala. 92, 109 So. 750 (1926); Montgomery Light & Traction Co. v. King, 187 Ala. 619, 65 So. 998 (1914); Commentary, Remittitur Practice in Alabama, 34 Ala.L.Rev. 275, 278 (1983). Recently, we have specifically identified the sole rationale upon which rests the authority to set aside a verdict thus flawed.
In Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), we reversed a judgment ordering the plaintiff to file a $10,000 remittitur in lieu of a new trial. We began our discussion by articulating a rationale that had previously remained largely implicit:
Id. at 1378 (emphasis added). Otherwise expressed, in cases involving damages that are incapable of precise calculation, a jury's damages assessment may be disturbed only when it is so flawed by bias, passion, prejudice, corruption, or improper motive as to lose its constitutional protection.
Consistent with this rationale, Hammond held that trial courts thereafter would be required to "reflect in the record the reasons for interfering with a jury verdict, or refusing to do so, on grounds of excessiveness of the damages." Id. at 1379. We then set forth standards by which trial courts should evaluate the soundness of the damages assessment in each particular case. Id.
Two years later, we revisited the relationship between the right to a jury trial and the sanctity of damages awards. City Bank of Alabama v. Eskridge, 521 So. 2d 931 (Ala.1988). In that case, the bank filed a motion for a new trial on the grounds that the damages were excessive. In denying the motion, the trial judge, using factors such as those we suggested in Hammond, expressed in the record his reasons for refusing to disturb the award. In affirming the denial of a motion for a new trial, we again explained: "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." Id. 493 So. 2d at 932. This Court held, therefore, that it had no authority to disturb the damages award in that case because the "presumption of correctness of the jury verdict [was not] overcome by a clear showing that the amount of the verdict [was] the product of bias, passion, prejudice, corruption, or other improper motive." Id. at 933.
Similarly, in Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.1989), we refused to disturb a jury verdict alleged to be excessive. The appellant contended, inter alia, that the Eighth Amendment proscription against cruel and unusual punishment required punitive damages awards to be assessed by the trial judge on the basis of factors identical to those we set forth in Hammond. In response to that argument, we said:
*162 Id. at 819 n. 1. (Emphasis added.) In an extended opinion on application for rehearing, we again stated that "[t]o limit the jury's discretion other than by proper instruction as to the circumstances under which ... damages are awarded, would appear to violate the right of trial by jury guaranteed by Article I, § 11, of the Alabama Constitution of 1901."[1]Industrial Chemical & Fiberglass Corp., 547 So. 2d at 837 n. 2. On the return to the remand, we also explained that the jury's right to fix the amount of damages precludes the use of an "ironclad rule in considering the adequacy or excessiveness of a verdict. Each case must be determined by its own facts and on its own merits." Id. at 833.
Even more recently, Justice Kennedy provided additional insight into the scope of § 11 protection. In Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414 (Ala. 1991), he concluded that §§ 6-11-23(a), -24(a), and a portion of the final sentence of -23(b) violated the right to trial by jury. 581 So. 2d at 421. He reasoned that these sections violated § 11 because they authorized "courts to disregard the verdict and to reassess the award of damages regardless of the propriety of the verdict rendered in the case." Id. at 422. (Kennedy, J., concurring specially.) (Emphasis added.) Moreover, he explained:
Id. at 422-23. (Emphasis added.)
From the foregoing discussion, two essential principles emerge. First, in cases involving damages incapable of precise measurement, a party has a constitutionally protected right to receive the amount of damages fixed by a jury unless the verdict is so flawed by bias, passion, prejudice, corruption, or improper motive as to lose its constitutional protection. As a corollary to that principle, the soundness of a jury's findings on the issue of damages must be evaluated on a case by case basis. Durham v. Sims, 279 Ala. 516, 517, 187 So. 2d 558, 559 (1966) ("[w]hether damages awarded for personal injuries are excessive depends on the facts of the particular case"); Birmingham Electric Co. v. Howard, 250 Ala. 421, 423, 34 So. 2d 830, 831 (1948). Were it otherwise, interference would be palpably invalid.
Viewed in this light, we can hardly countenance the Infirmary's contention that juries' damages assessments are not entitled to constitutional protection. Indeed, we might be inclined to regard the argument as specious had it not been endorsed in a recent decision by the Supreme Court of Virginia.
In Etheridge v. Medical Center Hosp., 237 Va. 87, 376 S.E.2d 525 (1989), the court, against a challenge based on the right to trial by jury as provided in the Virginia constitution, upheld a statute limiting a total recovery against a health care provider to $750,000. The court conceded that the "jury's fact-finding function extend[ed] to the assessment of damages." 237 Va. at 96, 376 S.E.2d at 529. It then reasoned, however, that "although a party has the right to have a jury assess his damages, he has no right to have a jury dictate through an award the legal consequences of its assessment." The court concluded that the *163 right to a jury trial is not impaired where the "trial court applies the [statute's] limitation only after the jury has fulfilled its fact-finding function." 237 Va. at 96, 376 S.E.2d at 529 (emphasis in original).[2]
The weakness of Etheridge's reasoning was aptly observed in Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989). The Supreme Court of Washington noted that the Etheridge court's analysis of the jury's function placed form over substance.[3] More specifically, the Court declared that the "undoing of Etheridge's reasoning" was that it "bypassed" a constitutional guarantee, thus "allowing it to exist in form but letting it have no effect in function." 112 Wash. 2d at 660, 771 P.2d at 724.
In deference to the Supreme Court of Virginia, we must point out that the relevant provision of the constitution of Virginia is materially distinguishable from its Alabama counterpart. While the Constitution of Alabama provides that the right to a jury trial must "remain inviolate," Va. Const. art. I, § 11, provides merely that "in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred." (Emphasis added.) Regardless of the source of the conclusion in Etheridge, however, it is clear that the damages assessments of Alabama juries are protected by the constitutional guarantee of the right to trial by jury. Thus, if § 6-5-544(b) burdens or impairs that right, and we conclude that it does, the statute offends the Constitution.
Under the procedure mandated by § 6-5-544(b), a jury is empanelled and deliberates, with the expectation that its verdict will have efficacy, an issue of fact singularly within its authority. At the conclusion of deliberations, however, the trial judge is required summarily to disregard the jury's assessment of the amount of noneconomic loss, that species of damages lying most peculiarly within the jury's discretion. See Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So. 2d 260 (1975); Durham v. Sims, 279 Ala. 516, 187 So. 2d 558 (1966); W.S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So. 2d 375 (1963). To the extent that the assessment exceeds the predesignated ceiling, the statute allows no consideration for exigencies presented by each case. Such a requirement has no parallel in the jurisprudence of this state and is patently inconsistent with the doctrines of remittitur or new trial as we have applied them.[4] See also Smith v. Department of Ins., 507 So. 2d 1080, 1088-89 (Fla.1987) ("Nor, we add, because the jury verdict is being arbitrarily capped, is the plaintiff receiving the constitutional benefit of a jury trial as we have heretofore understood that right").
It is not relevant, under a § 11 analysis, that the statute has not entirely abrogated the right to empanel a jury in this type of case. The relevant inquiry is whether the function of the jury has been impaired. Because the right to a jury trial "as it existed at the time the Constitution of 1901 was adopted must continue `inviolate,'" the pertinent question "is not whether [the right] still exists under the statute, but *164 whether it still remains inviolate." Alford v. State ex rel. Attorney General, 170 Ala. 178, 197, 54 So. 213, 218 (1910) (Mayfield, Sayre, and Evans, JJ., dissenting). "For such a right to remain inviolate, it must not diminish over time and must be protected from all assaults to its essential guaranties." Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 656, 771 P.2d 711, 722 (1989).
Because the statute caps the jury's verdict automatically and absolutely, the jury's function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status. This, as our cases illustrate, is insufficient to satisfy the mandates of § 11. See Thompson v. Southern Ry., 17 Ala.App. 406, 408, 85 So. 591, 592-93 (1920). A "constitution deals with substance, not shadows. Its inhibition [is] leveled at the thing, not the name." Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L. Ed. 356 (1866). Consequently, we hold that the portion of § 6-5-544(b), imposing a $400,000 limitation on damages for noneconomic loss represents an impermissible burden on the right to a trial by jury as guaranteed by § 11 of the Constitution of Alabama.
Contrary to the position taken by Mr. Justice Houston in his special concurrence, we see no significance in the fact that the jury is not informed of the amount of the ceiling. In our view, it is entirely inconsistent with law and logic to hold, as he suggests, that a jury's constitutionally protected factfinding function is impaired solely because the jury is unable to apply the law to its factual determinations, but that its function would be unimpaired if it knew that its findings would have no legal validity. The practical effect of the damages limitation, laying aside all reasoning based on pure sophistry, is to prevent the jury from applying the facts. Mr. Justice Houston's proposal serves only as a means through which to avoid the real issue. Consequently, the constitutional infirmity of § 6-5-544(b) cannot be cured merely by eliminating that portion of the statute that precludes any suggestion to the jury of the presence of the damages limitation.
The Infirmary also relies on Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987). That case involved an action by the Federal Government against a real estate developer for violation of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376, in which the finder of fact was not specified. The United States Supreme Court held that under § 1319, which authorized the imposition of a "noncompensatory [civil penalty] to enforce direct exercise of [Congressional] regulatory authority," the Seventh Amendment required a jury determination of liability, but not of the amount of damages. Tull, 481 U.S. at 428, 107 S. Ct. at 1841. (Emphasis added.)
The Infirmary urges this Court to uphold § 6-5-544(b), based on the holding and rationale in Tull. We decline to do so. The provisions of the Seventh Amendment are not binding upon state courts. Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 60 L. Ed. 961 (1916). Decisions of federal courts based on the Seventh Amendment are, therefore, instructive but not compulsory. Kraas v. American Bakeries Co., 231 Ala. 278, 164 So. 565 (1935). More significantly, the analogy between a federal act imposing penalties and a common law negligence action involving compensatory damages is too attenuated to support such an extension of rationale as that urged by the Infirmary. Tull, therefore, is inapposite.
The Infirmary also directs us to various statutes that have never been invalidated by this Court and contends that, by analogy, § 6-5-544(b) does not violate § 11. In particular, it cites Ala.Code 1975, § 9-6-14 (immunizing pollution control authorities from tort liability), § 11-93-2 (limiting tort liability of governmental entities to $100,000), § 25-5-11(a) (immunizing coemployees from liability for negligence and wantonness), § 32-1-2 (immunizing motor vehicle operators from liability for negligent injury to guest passengers), and § 6-5-331 (abolishing causes of action for alienation of affections). The Infirmary's reliance on this analogy is misplaced.
*165 For example, in Reed v. Brunson, 527 So. 2d 102 (Ala.1988), we upheld the constitutionality of Act No. 85-41, § 3, 1984 Ala. Acts 44 (codified at Ala.Code 1975, § 25-5-11(a)) against a challenge based on Ala. Const. art. I, § 13. Act No. 85-41 entirely abrogated causes of action by a worker against coemployees for injuries suffered as the result of the negligence or wantonness of the coemployees. Where the legislature completely abolishes a cause of action, "the right to trial by jury becomes irrelevant." Sofie v. Fibreboard Corp., 112 Wash. 2d at 651, 771 P.2d at 719 (1989); see also Mountain Timber Co. v. Washington, 243 U.S. 219, 235, 37 S. Ct. 260, 263, 61 L. Ed. 685 (1917). In other words, the right to a trial by jury does not arise in the absence of a cause of action requiring a finder of fact.[5] Section 25-5-11(a), therefore, does not implicate § 11.
For the same reasons, the right to a jury trial is not impaired by § 32-1-2, in which the legislature completely abolished a cause of action in negligence against a guest passenger. See Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939) (upholding the predecessor of § 32-1-2 against a constitutional challenge based on § 13).
We have never addressed a challenge to the validity of § 11-93-2 based on § 11. In Home Indemnity Co. v. Anders, 459 So. 2d 836 (Ala.1984), we upheld § 11-93-2 against allegations that the section violated the open courts provision of § 13. We specifically declined to address the contention that the statute impaired the right to a jury trial, because that ground had not been pressed in the trial court. Id. at 840. Consequently, neither that case nor any subsequent case reviewing § 11-93-2 can be advanced in support of the Infirmary's contention that § 6-5-544(b) does not violate § 11.
This Court has never addressed on any grounds a challenge to the constitutionality of § 9-6-14 or § 6-5-331. Statutes are presumed to comport with the constitution "[u]ntil assailed by a party whose rights are specially affected." Home Indemnity Co., 459 So. 2d at 845 (Jones, J., concurring specially); see also Jones v. Black, 48 Ala. 540 (1872). We thus find nothing in the case histories of the sections cited by the Infirmary that would suggest a result different from the one we reach here.
Sections 1, 6, and 22 of the Declaration of Rights combine to guarantee equal protection under the laws of Alabama.[6]Ex Parte Branch, 526 So. 2d 609 (Ala.1987); Mayo v. Rouselle Corp., 375 So. 2d 449 (Ala.1979); Black v. Pike County Comm'n, 360 So. 2d 303 (Ala.1978); City of Hueytown v. Jiffy Chek Co. of Alabama, 342 So. 2d 761 (Ala.1977); Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939). The guarantee of equal protection prohibits "class legislation arbitrarily discriminatory against some and favoring others in like circumstances." Opinion of the Justices, No. 102, 252 Ala. 527, 530, 41 So. 2d 775, 777 (1949).
However, the legislature may, in the exercise of its police power, create reasonable classifications in order to eradicate or ameliorate what it perceives to be a social evil. Southern Express Co. v. Whittle, 194 Ala. 406, 423, 69 So. 652, 657 (1915). In reviewing the constitutionality of such legislation, the sole function of the *166 judiciary is to determine whether, in the exercise of its police power, the legislature has "unreasonably" encroached upon "private rights" vouchsafed to the people of this state by the Constitution. McAdory, 246 Ala. at 13, 18 So. 2d at 818.
The critical inquiry thus becomes "whether the limitation imposed [on private rights] is ... one whose purpose and effect go no further than [to] throw reasonable safeguards in the public interest around the exercise of the right." Id. In addition, "there must be some reasonable relation to the regulation and to the ends to be attained." Id. The legislature may not, in the reasonable exercise of its police power, create classifications "to prevent evils of a remote or highly problematical character. Nor may its exercise be justified when the restraint imposed upon the exercise of a private right is disproportionate to the amount of evil that will be corrected." City of Russellville v. Vulcan Materials Co., 382 So. 2d 525, 527 (Ala.1980). Therefore, whether the classifications created under § 6-5-544(b) represent a reasonable exercise of legislative power depends on whether they are reasonably related to the stated objective, and on whether the benefit sought to be bestowed upon society outweighs the detriment to private rights occasioned by the statute. Mount Royal Towers, Inc. v. Alabama Bd. of Health, 388 So. 2d 1209 (Ala.1980); Bolin v. State, 266 Ala. 256, 259, 96 So. 2d 582, 585 (1957); McAdory, 246 Ala. at 13, 18 So. 2d at 818; Southern Express Co. v. Whittle, 194 Ala. 406, 69 So. 652 (1915); see also Carson v. Maurer, 120 N.H. 925, 933, 424 A.2d 825, 831 (1980); Condemarin v. University Hosp. 775 P.2d 348, 356-57 (Utah 1989).
The legislative purpose behind the enactment of § 6-5-544(b) is expressed in Ala. Code 1975, § 6-5-540, as follows:
(Emphasis added.) Section 6-5-540 thus indicates that the "crisis" endangering the "health and safety" of Alabama citizens consisted of the potential unavailability of health care as a result of the rising cost of malpractice insurance, which, in turn, stemmed from the "increasing threat of legal actions for alleged medical injury."
In an attempt to increase the availability of health care, the legislature placed a $400,000 limit on noneconomic damages recoverable against physicians. The Infirmary contends that the $400,000 limitation is calculated to improve the availability and affordability of health care by reducing the size of "health care liability claims," thereby "making insurance at reasonable, affordable rates available to health care providers." Brief of Appellee, at 52.
Ms. Moore, however, contends that the imposition of the damages cap creates a number of classifications. In particular, she insists that § 6-5-544(b) not only creates a favored class of tort-feasors, based solely upon their connection with health care, but also creates favored subclasses within the favored class by shielding those health care providers whose actions are the *167 most egregious. Because, she insists, the statute precludes full recovery of only those most severely injured, it creates classifications based upon the severity of the injury. We agree.
The issue, therefore, is whether the connection between the benefit sought to be conferred on society and the means employed to accomplish it, when weighed against the inequalities created by the statute's classifications, is so attenuated and remote as to constitute an unreasonable exercise of police power. A seminal study conducted by the United States General Accounting Office ("GAO") suggests that the connection between damages caps and the total cost of health care is, indeed, remote.
In response to a request from members of Congress, the GAO conducted a study on, inter alia, the effect on malpractice insurance of various statutory reforms enacted in response to the escalation of insurance costs of the 1970's. The GAO issued its findings in 1986 and 1987 through a series of published reports.
The GAO study found "no consensus among the interest groups [surveyed] that any of the reforms implemented in response to the situation experienced in the mid-1970's ... had a major effect" on the cost of malpractice insurance. General Accounting Office, Medical Malpractice: No Agreement on the Problems or Solutions, HRD-86-50 (February 1986), at 3 ("HRD-86-50"). Despite the fact that statutory reform, including damages caps, had been in place for nearly 10 years in some states,[7] the GAO found that in the period "[f]rom 1983 to 1985, total medical malpractice insurance costs for physicians and hospitals rose from $2.5 billion to $4.7 billion." General Accounting Office, Medical Malpractice: Insurance Cost Increased but Varied Among Physicians and Hospitals, HRD-86-112, at 2 (September 1986) ("HRD-86-112"). (Emphasis added.) It noted that the increase in the cost of malpractice insurance to health care providers greatly exceeded the "change in either the consumer price index or the medical care index." Id. at 2-3. The GAO could identify "no clear answer as to the causes of the increases in the cost of medical malpractice insurance." General Accounting Office, Medical Malpractice: A Framework for Action, HRD-87-73, at 2 (May 1987) ("HRD-87-73"). Nor could it identify any "specific action ... that would guarantee that insurance rates [would] not continue to increase." Id.
At this point, it must be noted that the GAO study did not attempt specifically to assess the impact of damages caps on the cost or availability of malpractice insurance. Its primary value to our appraisal of the reasonableness of § 6-5-544(b) lies in the insight the study provides into the relative importance to the total cost of health care of the various components of the total implicated by the statute.
In that connection, the GAO noted that the cost of malpractice insurance was the product of a number of elements and that the size and frequency of claims resulting from damages awards or settlements were only two of those elements. HRD-87-73, at 8. Other elements influencing the cost of malpractice insurance included "administrative expenses, marketing costs, investment income, taxes, profits, extent of state regulation, and amount of competition in the market." Id. at 31. The study also cited the "availability of reinsurance, [and the] extent of competition in the market" as contributing factors. General Accounting Office, Medical Malpractice: Six-State Case Study Shows Claims and Insurance Costs Still Rise Despite Reforms, HRD-87-21, at 9 (December 1986) ("HRD-87-21").
Not only does it appear that the element of damages awards composes but a fraction of the cost of malpractice insurance, but the study also revealed that malpractice insurance costs made up only 9 percent of the "total professional expenses" for self-employed physicians. HRD-86-112, at *168 3. "Nonphysician payroll," composing 33 percent of total expenses, ranked at the top of the list. "Office expense" and "medical supplies" ranked behind payroll at 26 and 11 percent of total expenses respectively. Only "medical equipment" ranked below malpractice insurance costs, at 6 percent of total professional expenses. Id. at 4. Indeed, the study revealed that despite the increase in cost of malpractice insurance between 1983 and 1985, "total physician premiums," as of September 1986, "still [composed] less than 1 percent of the country's total health care costs" based on the 1984 figure of approximately $390 billion. Id. at 25.
Other studies addressing the effects of the "tort reform" of the mid-1970's have largely corroborated the GAO's conclusions. One study concluded that damages caps could reduce the number and size of claims paid out as a result of settlements or damages awards. P. Danzon, The Effects of Tort Reforms on the Frequency and Severity of Medical Malpractice Claims, 48 Ohio State L.J. 413, 416 (1987). The author noted, however, that her studies did not address the "effect of tort reforms on malpractice insurance rates." Id. at 417. (Emphasis added.)
Another study attempted to establish a correlation between various approaches to tort reform and the price of malpractice insurance; nevertheless, the author noted: "To date, no one has isolated the effects of specific legislative actions on either the price or availability of malpractice insurance." F. Sloan, State Responses to the Medical Malpractice Insurance "Crisis" of the 1970's: An Empirical Assessment, 9 J. Health Politics, Policy, and Law 629, 630 (1985). The author concluded:
Id. at 643 (footnotes omitted). See generally P. Zwier and D. Piermattei, Who Knows Best About Damages: A Case for Courts' Rights, 93 Dick.L.Rev. 689 (1989).
In considering the evidence presented in these studies, we do not review the wisdom of the legislation challenged in this case. See Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996, 1000 (Ala.1982). We consider it only in our assessment of the juxtaposition of the $400,000 cap to the goal of reducing the cost of health care based on information that was available to the legislature in 1987. To permit the legislature to act as the sole arbiter of such juxtaposition, would be to vacate our judicial role. Brannigan v. Usitala, 134 N.H. 50, 587 A.2d 1232 (1991); Lucas v. United States, 757 S.W.2d 687, 691 (Tex.1988).
We conclude that the correlation between the damages cap imposed by § 6-5-544(b) and the reduction of health care costs to the citizens of Alabama is, at best, indirect and remote. Although there is evidence of *169 a connection between damages caps and the size of malpractice claims filed, the size of claims is merely one among a host of factors bearing on the cost of malpractice insurance. HRD-87-73, supra, at 8, 31. Even more significantly, the cost of malpractice insurance ranks near the bottom of the list of expenses incurred by health care providers. HRD-86-112, supra, at 3-4. Consequently, the size of claims against health care providers represents but one among many elements composing the cost of malpractice premiums, which, in turn, represent only a small component of the total burden borne by health care consumers. Id. at 25.
By contrast, the burden imposed by § 6-5-544(b) on the rights of individuals to receive compensation for serious injuries is direct and concrete. The hardship falls most heavily on those who are most severely maltreated and, thus, most deserving of relief. Unlike the less severely injured, who receive full and just compensation, the catastrophically injured victim of medical malpractice is denied any expectation of compensation beyond the statutory limit. Moreover, the statute operates to the advantage not only of negligent health care providers over other tortfeasors, but of those health care providers who are most irresponsible.
On this issue, we find particularly persuasive the reasoning of former Chief Justice Bird of the California Supreme Court:
Fein v. Permanente Medical Group, 38 Cal. 3d 137, 173, 211 Cal. Rptr. 368, 393-94, 695 P.2d 665, 689-90 (1985) (Bird, C.J., dissenting). The Supreme Court of New Hampshire has similarly observed:
Carson v. Maurer, 120 N.H. 925, 941-42, 424 A.2d 825, 836-37 (1980) (emphasis added).
It clearly appears that § 6-5-544(b), by balancing the direct and palpable burden placed upon catastrophically injured victims of medical malpractice against the indirect and speculative benefit that may be conferred on society, represents an unreasonable exercise of the police power. We hold, therefore, that § 6-5-544(b) violates the principle of equal protection as guaranteed by §§ 1, 6, and 22 of the Constitution of Alabama.
Because this case involves no federal issue, we deem it neither necessary nor useful to identify precisely which of the two lower levels of federal scrutiny our standard of review most nearly corresponds with. State courts, in determining the scope of rights guaranteed by their own constitutions, are not compelled exactly to correlate their standards of review to the "three-tiered" scrutiny employed by the federal courts and may, in fact, provide more protection for private rights than the United States Constitution requires. Gilbreath v. Wallace, 292 Ala. 267, 271, 292 So. 2d 651, 654-55 (1974); see also Denton v. Con-Way Southern Express, Inc., 261 Ga. 41, 402 S.E.2d 269 (1991); Lucas v. United States, 757 S.W.2d 687, 692 (Tex. 1988); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 831 (1980); W. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 495-501 (1977). As we explained in Mount Royal Towers, Inc. v. Alabama Bd. of Health, 388 So. 2d 1209 (Ala.1980):
Id. at 1214. Thus, the standard that we have applied in this case is neither new nor different; our holding is merely a reaffirmation of the standard we have traditionally applied in reviewing legislation adversely affecting private rights.
Reed v. Brunson, 527 So. 2d 102 (Ala. 1988), and Chandler v. Hospital Authority of Huntsville, 500 So. 2d 1012 (Ala.1986), are not contrary to this rule. Although the Infirmary contends that Reed and Chandler require the application of the federal "minimum scrutiny" standard in this case, it is clear that those cases involved challenges based on the Equal Protection Clause of the Fourteenth Amendment. Consequently, our disposition of the equal protection issues in Reed and Chandler turned on the application of federal standards of review and does not require an identical analysis in this case.
On Mr. Justice Houston's astounding assertion that the Constitution of Alabama contains no equal protection guarantee, we will not long deliberate. Suffice it to say that §§ 1, 6, and 22 so fundamentally reflect the spirit and principles embodied in the Preamble to the Constitution of the United States; the Declaration of Independence; and the principles upon which this nation was founded as to dispel any doubt that the Constitution of Alabama guarantees to the citizens of this state equal protection of the laws. See In re Dorsey, 7 Port. 293, 360-61 (Ala.1838) ("the first section of the declaration of rights ... was intended to guarantee to each citizen, all the rights or privileges which any other citizen can enjoy or possess" and assures a *171 "general equality ... as one of the fundamental rights of each citizen").
We have carefully considered the authorities cited by the Infirmary and amici, and we conclude that the portion of § 6-5-544(b) limiting damages for noneconomic loss to $400,000 violates the state constitution's guarantee of the right to trial by jury, as well as its guarantee of equal protection. Therefore, we do not address Ms. Moore's remaining constitutional challenges. The judgment is reversed and the cause is remanded to the trial court with directions to reinstate the damages award, subject only to the trial court's determination that the verdict was not flawed by bias, passion, prejudice, corruption, or other improper motive.
REVERSED AND REMANDED WITH DIRECTIONS.
SHORES, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs in the result.
ALMON, J., concurs as to Part I; he expresses no opinion as to Part II.
MADDOX and STEAGALL, JJ., dissent.
HOUSTON, Justice (disagreeing with the rationale of the Court's opinion, but concurring in the result).
I. Article I, § 11, Constitution of Alabama of 1901 ("That the right to trial by jury shall remain inviolate.")
With all due respect, I think that the majority of this Court is on a crusade to a constitutional holy land[8] that cannot be found by using a compass of judicial reasoning or legal logic.
The Alabama legislature can abolish or alter even a common law cause of action so long as its doing so does not interfere with a plaintiff's right to a remedy guaranteed by § 13 of the Constitution of Alabama of 1901.[9] The power to abridge the right guaranteed by § 13 is excepted out of the general powers of government by § 36 of the Constitution.
The Alabama legislature can abolish or alter a cause of action under the Medical *172 Liability Acts of 1975 and 1987 so long as its doing so does not interfere with a plaintiff's right to a remedy guaranteed by § 13 of the Constitution.
If so, then why can the legislature not limit the amount of damages to be recovered in actions filed under the Medical Liability Act (proof of injury or "damage" being an element of a cause of action under that Act) so long as its doing so does not interfere with a plaintiff's right to a remedy guaranteed by § 13 of the Constitution?
I am a firm believer that if a person is damaged as a result of the wrongful act, omission, or negligence of another, that person should be entitled to compensatory damages that fully compensate the injured party for all damage proximately caused by the wrongful act, omission, or negligence; Tatum v. Schering Corp., 523 So. 2d 1042, 1048 (Ala.1988) (Houston, J., dissenting). However, as a Justice, it is not within my power to determine the propriety, the wisdom, the necessity, the utility, or the expediency of Ala.Code 1975, § 6-5-544(b). All questions of propriety, wisdom, necessity, utility, and expediency are matters exclusively for the legislature to determine. I have the power to determine only whether the Constitution of Alabama of 1901 excepts the power to enact § 6-5-544(b) out of the general powers of government, Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810 (1944), cert. denied, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945); Art. I, § 36, Constitution; or out of the legislative department of government. Constitution, Art. III, §§ 42 and 43. I agree with Justice Maddox's dissent in his discussion of McAdory; however, I believe that Art. I, § 36, of the Constitution "excepts out of the general powers of government" to remain forever inviolate, the matters declared in the Declaration of Rights. My disagreement with both the majority opinion and Justice Maddox's dissent is what I perceive to be meant by "the right to trial by jury" that is excepted out of the general powers of government. See Clark v. Container Corp. of America, 589 So. 2d 184 (Ala. 1991), for my opinion as to what is meant by the words "the right to trial by jury."
The very Constitution that the majority relies on to strike down § 6-5-544(b) prohibits me from striking down a particular law or a part thereof (when the provisions of the Act are severable, as are the provisions of Act No. 87-189, 1987 Acts of Alabama, which includes § 6-5-544(b)) as unconstitutional because I disagree with the law or parts thereof. If the legislature, which has plenary power subject only to the restraints of the Alabama Constitution (Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334, 353 (Ala. 1980); Ex parte Foshee, 246 Ala. 604, 21 So. 2d 827 (1945); Sheppard v. Dowling, 127 Ala. 1, 28 So. 791 (1900)), has the power to enact the law, then the Constitution (§§ 42 and 43) prohibits this Court, which has the power to determine the extent of any constitutional restrictions on the powers of government, from thwarting the legislative power by declaring that law unconstitutional.
The majority of this Court holds that § 6-5-544(b) violates Article I, § 11, Constitution. In § 6-5-544(b), the legislature does not attempt to change the number of jurors, the impartiality of jurors, or the unanimity of jurors, which legislative restrictions or amplifications must not deny or impair (Kirk v. State, 247 Ala. 43, 22 So. 2d 431 (1945); Baader v. State, 201 Ala. 76, 77 So. 370 (1917); Culbert v. State, 52 Ala.App. 167, 290 So. 2d 235 (1974); Brown v. State, 45 Ala.App. 391, 231 So. 2d 167 (1970); Dixon v. State, 27 Ala.App. 64, 167 So. 340 (1936), cert. denied, 232 Ala. 150, 167 So. 349 (1936); Judge Walter B. Jones, Trial by Jury in Alabama, 8 Ala.L.Rev. 274, 277 (1956); 16 Ruling Case Law 181 (1917)); but I find that in the following sentence of § 6-5-544(b), the legislature does attempt to impinge upon the factfinding function (see Clark v. Container Corp. of America, supra) and the function of applying the law to the facts (see Nichols v. Seaboard Coastline Ry., 341 So. 2d 671, 676 (Ala.1976))functions of the impartial, duodecimal, and unanimous jury:
Because there is no prohibition against it in the Constitution of Alabama, the legislature has the power to change the law of damages. Sheppard v. Dowling, supra; Young v. State, 283 Ala. 676, 220 So. 2d 843 (1969); Broadway v. State, 257 Ala. 414, 60 So. 2d 701 (1952); Newberry v. City of Andalusia, 257 Ala. 49, 57 So. 2d 629 (1952). The legislature changed the law of damages in the Alabama Medical Liability Act of 1987 by limiting recovery for "noneconomic losses" to $400,000.
In Wood's Mayne on Damages § 791, at 739 (3d English ed. and 1st American ed. 1880), the following appears:
It is the duty of the jury to try the facts and apply the law to those facts. Clark v. Container Corp. of America, supra; Mathews Bros. Const. Co. v. Lopez, 434 So. 2d 1369, 1375 (Ala.1983); Plenkers v. Chappelle, 420 So. 2d 41, 44 (Ala.1982); McArdle v. State, 408 So. 2d 491, 493 (Ala. 1981); Nichols v. Seaboard Coastline Ry., supra; Southern Ry. Co. v. Terry, 268 Ala. 510, 512, 109 So. 2d 919 (1959).
The above-quoted sentence from § 6-5-544(b) purports to keep the law from the jury. How can the jury perform its factfinding function and apply the law to the facts, if the law is kept from the jury? It has always been the duty of the court to determine the law and to direct the jury to apply the law given to it by the court to the facts. Mathews Bros. Const. Co. v. Lopez, supra; Plenkers v. Chappelle, supra; McArdle v. State, supra; Nichols v. Seaboard Coastline Ry., supra; Southern Ry. Co. v. Terry, supra.
Harrison v. State, 78 Ala. 5, 12 (1884).
By prohibiting the trial court from giving the lawthe $400,000 cap on noneconomic damagesto the jury, the legislature is keeping from the jury an element that is essential for it to perform its function of applying the law to the facts.
"[T]he right to trial by jury shall remain inviolate." Section 11, Constitution. "[E]verything in this Declaration of Rights [which includes § 11] is excepted out of the general powers of government, and shall forever remain inviolate." Section 36, Constitution.
Because I view the right to trial by jury as guaranteed by § 11 as the right to have an impartial, duodecimal, unanimous body find facts and apply the law (as given to it by the court) to those facts, I am of the opinion, after careful deliberation, that a law specifically prohibiting a court from giving to a jury the law that a jury would traditionally apply to the facts and requiring the court to apply that law after a jury has completed its deliberations impinges upon the right to trial by jury, and that the power to enact such a law is excepted out of the power of government by § 36, Constitution.
Because the provisions of the Medical Liability Act are severable, I would hold that only the following sentence in § 6-5-544(b) is unconstitutional:
In my opinion, the remainder of § 6-5-544(b) is constitutional.
I would reverse the judgment of the trial court and remand for a reinstatement of the jury verdict.
*174 Understandably, in this case, there was no objection to the trial court's charge, which failed to instruct the jury that it could not award a sum in excess of $400,000 in noneconomic losses. Therefore, the instruction of the trial court to the jury became the law of the case. Blumberg v. Touche Ross & Co., 514 So. 2d 922 (Ala. 1987).
The jury followed the trial court's instructions and awarded noneconomic damages without being bridled by the $400,000 legislative cap. It would have been error for it not to do so, even though the trial court's instructions on the lawwhich were consistent with the majority's opinion in this casewere erroneous, Nowogorski v. Ford Motor Co., 579 So. 2d 586, 590 (Ala.1990); Burkett v. Burkett, 542 So. 2d 1215 (Ala.1989). If the trial court's instruction had been specifically objected to on the basis that the trial court should have told the jury of the $400,000 cap, then I would have voted to reverse the judgment and remand the case to the trial court for a new trial.
A plurality of this Court holds that § 6-5-544(b) violates an equal protection guarantee of the Alabama Constitution. This is certainly a crusade to a constitutional never-never land, for there is no equal protection clause in the Constitution of 1901.
In Opinion of the Justices No. 102, 252 Ala. 527, 530, 41 So. 2d 775, 777 (1949), this Court noted:
This is correct.[10] On the 37th day of the proceedings of the Constitutional Convention of 1901, the delegates conducted a detailed discussion of what was Article I, § 2, of the Alabama Constitution of 1875 ("That all persons resident in this state, born in the United States, or naturalized, who shall have legally declared their intention to become citizens of the United States, are hereby declared citizens of the State of Alabama, possessing equal civil and political rights"). See 2 Official Proceedings of the Constitutional Convention of 1901, pp. 1622-34. On the 38th day, § 2 was laid on the table by a vote of 49 to 42. 2 Official Proceedings, pp. 1639-44. This was done with the understanding that anything contained in § 2 of the Alabama Constitution of 1875 was covered by the 14th Amendment to the United States Constitution. Upon the third reading of the Preamble and Article I, Declaration of Rights, § 2 of the Constitution of 1875 was deleted by a vote of 116 to 2. 2 Official Proceedings, pp. 2254-60.
The equal protection applicable to persons within the State of Alabama is not guaranteed by any section or combination of sections of the Constitution of Alabama, but is guaranteed by the 14th Amendment to the United States Constitution:
Reviewing the earliest case cited for the proposition that §§ 1, 6, and 22 of Article I (the Declaration of Rights) of the Constitution guarantee equal protection, I found the following statement:
Pickett v. Matthews, 238 Ala. 542, 545, 192 So. 261, 264 (1939).
An unofficial annotation to Art. I, § 22, of the Constitution, omitting the reference to the 14th Amendment to the United States Constitution, suggested the following as the holding of Pickett v. Matthews, supra: "And sections 1, 6, and 22 taken together guarantee the equal protection of the laws." Ala.Code 1975, Vol. 1, p. 168 (1977); Ala.Code 1940 (Recompiled 1958), Vol. 1, p. 89.
Without citations of authority or explanation, this Court in City of Hueytown v. Jiffy Chek Co. of Alabama, 342 So. 2d 761 (Ala.1977), held that §§ 1, 6, and 22 of the Alabama Constitution combine to guarantee equal protection of the laws.
In Peddy v. Montgomery, 345 So. 2d 631, 633 (Ala.1977), this Court wrote:
Article I, § 1, of the Constitution of 1901 does not contain the words "all men are created equal" but "all men are equally free and independent"; this difference in wording makes a great difference in determining whether there is an implied equal protection guarantee in the Constitution of 1901 in face of the unquestioned removal of the equal protection provision from the Constitution of 1901 by the delegates to the Constitutional Convention.
Black v. Pike County Commission, 360 So. 2d 303, 306 (Ala.1978), cites only City of Hueytown, supra, for the proposition.
Mayo v. Rouselle Corp., 375 So. 2d 449 (Ala.1979), cites Peddy v. Montgomery, supra, and Pickett v. Matthews, supra. The only other case cited in the majority opinion for this proposition is Ex parte Branch, 526 So. 2d 609, 619 (Ala.1987), which quotes Ex parte Jackson, 516 So. 2d 768 (Ala. 1986), which relied on City of Hueytown, supra.
If I were drafting a constitution, I would make certain that there was an equal protection clause in that constitution; however, there is not one in the Alabama Constitution.
Is there an assurance of equal protection under the laws in the present Alabama *176 Constitution? Even if the delegates to the Constitutional Convention did not intend for there to be an equal protection provision in the Constitution of 1901, such a right could arise from a combination of provisions in that Constitution.
Section 1 provides:
Section 6 provides:
Section 22 provides:
Section 1 guarantees a person's right to be free. It does not protect a person against discriminatory laws or practices. Section 6 involves only the rights of an accused in a criminal prosecution. Section 22 permits discriminatory treatment of citizens that could conceivably be a violation of the 14th Amendment to the United States Constitution, for it permits special privileges and immunities so long as they are not "irrevocable or exclusive." How the combination of these three sections could be construed as guaranteeing equal protection of the laws, even if there were no minutes of the Constitutional Convention showing that the only equal protection afforded in Alabama is that afforded by the 14th Amendment to the United States Constitution, is beyond my comprehension.
I am disappointed and deeply distressed that the opinion, which is a plurality opinion insofar as equal protection is concerned, distorts a quote from Justice Goldthwaite's special concurrence in In re Dorsey, 7 Port. at 360-61, to strike down an act of the legislature. The plurality opinion quotes only this: "(`the first section of the declaration of rights ... was intended to guarantee to each citizen, all the rights or privileges which any other citizen can enjoy or possess' and assures a `general equality ... as one of the fundamental rights of each citizen')." Only by filling in the blanks, can we get the rest of the story and know what Justice Goldthwaite actually wrote:
7 Port. at 360-61. (Emphasis added in part to show that the quotation relied upon by Justice Goldthwaite contained the words "All freemen ... are equal in rights" and emphasis added in part to identify that portion of this quote that was included in the plurality opinion.)
Where, O where, in the Constitution of Alabama of 1901 does the following appear?
*177 Nowhere! Nowhere in that entire document do these words appear! These words are the first section of the declaration of rights referred to by Justice Goldthwaite. If these words did appear in the Constitution of Alabama of 1901, we would have an express provision affording equal protection, but these words do not appear in our present Constitution.
I presume that the plurality's opinion is predicated upon there being a "brooding spirit of the law" that comes from the Preamble of the Constitution of the United States, the Declaration of Independence, and "the principles upon which this nation was founded," and which pervades the words of §§ 1, 6, and 22 and a belief that in some magical way this combination guarantees equal protection under the laws, in spite of the acts of the framers of the Constitution of Alabama of 1901. Perhaps, I would be more comfortable if the plurality opinion was predicated upon there being a "brooding spirit" that pervades only § 1 of the Constitution to assure equal protection. Certainly, § 6, which is limited to an accused in criminal prosecutions, has no application in this case. Nor does § 22, which addresses ex post facto laws, impairment of obligations of contract, and irrevocable or exclusive grants of special privileges, have any application in this case. Instead of the "brooding spirit," I fear that this Court's finding of an equal protection guarantee in these sections is based upon its reliance on the misguided finger of an unofficial annotator of Art. I, § 22. Of that annotator it unfortunately may be said:
Edward FitzGerald, The Rubáiyát of Omar Khayyám (4th ed. 1879).
Or perhaps the unofficial annotator of Art. I, § 22, could best be compared with Sam Walter Foss's primeval calf in the poem quoted in its entirety in Justice Jones's opinion in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 618-19, 320 So. 2d 631 (1975):
As Justice Shores wrote in Jackson v. City of Florence, 294 Ala. 592, 598, 320 So. 2d 68, 73 (1975):
We should admit our prior mistake in regard to equal protection, so that equal protection challenges will be made under the 14th Amendment to the United States Constitution and not under some misconceived and misquoted right under the Constitution of Alabama of 1901.
ALMON, Justice (concurring specially).
I concur in Part I of the majority opinion, which holds that § 6-5-544(b), Ala.Code 1975, violates Art. I, § 11, of the Alabama Constitution of 1901. Because that holding disposes of this case, I see no need to reach the equal protection challenge addressed in Part II of the opinion and, therefore, I express no opinion as to Part II of the main opinion.
MADDOX, Justice (dissenting).
It has been said that "[a] dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed."[11]
Thomas Jefferson thought that each judge should write an opinion in every case so as to "throw himself in each case on God and country; both will excuse him for error and value him for honesty."[12] It is with Jefferson's admonition in mind that I express my reasons for dissenting, and I begin with this quote:
Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 (1944).
That principle of law is short, it is clear, it is easy to apply, and it should be applied. The majority, in a lengthy opinion, tries to explain why that settled principle of law does not apply in this case, but I think that they fail in their explanation.
Just a decade ago, in Reese v. Rankin Fite Memorial Hospital, 403 So. 2d 158 (Ala.1981), this Court had before it a question concerning the constitutionality of the Medical Liability Act, and in that case the Court quoted the McAdory principle I set *179 out at the beginning of this dissent to uphold that Medical Liability Act on the ground that the legislature had the power to address a health care crisis in Alabama. Today, a different Court construes legislation not unlike that considered in Reese, and comes to the opposite conclusion, and, I believe, embarks on a new track, a track that not only disregards principles of separation of powers of government, but treats legislative acts without any presumption of validity. It is a dangerous and destructive track.
During the entire history of this Court, except for one major departure in 1978,[13] this Court had consistently applied the rule of law expressed in McAdory that acts of the legislature are presumed to be valid, and that courts should declare them unconstitutional only when it was "clear beyond reasonable doubt" that they violated fundamental law. The Court, in Reese, quoted the McAdory rule and followed it. That rule is short and clear. It reads:
246 Ala. at 9, 18 So. 2d at 814-15. (Emphasis added.) The Court makes a passing reference to the McAdory principle regarding the duty of this Court to sustain legislation, but quickly dismisses that great principle and holds that "if it clearly appears that an act of the legislature unreasonably invades rights guaranteed by the Constitution, we have not only the power but the duty to strike it down," citing Peddycoart v. City of Birmingham, 354 So. 2d 808 (Ala.1978), a case authored by Mr. Justice Beatty.[14]
*180 The decision today unquestionably establishes a precedent that could be very far-reaching, in that it could be construed as granting to courts powers never before recognized to strike down acts of the legislature. What is especially troubling is the statement of what I consider to be a new rule of law, lifted out of a special concurrence filed in another case, that "[s]tatutes are presumed to comport with the constitution `[u]ntil assailed by a party whose rights are specially affected.'" Home Indemnity Co. v. Anders, 459 So. 2d 836, 845 (Ala.1984). In that case, Justice Jones had cited Jones v. Black, 48 Ala. 540 (1872), as stating that proposition.[15] The Court, in following that special concurrence, overlooks the fact that a majority of this Court, in Reese, quoting from McAdory, held that "[i]t follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government." 403 So. 2d at 161. (Emphasis added.)
The law in Alabama, and indeed the general law throughout the Nation, is that statutes are presumed to be valid and constitutional. 16 C.J.S. Constitutional Law § 97, p. 309 (1984). The rule is short and succinct. It is not ambiguous. It contains no qualifying phrase indicating that the presumption of validity vanishes when a person with standing challenges a statute, and I believe that the majority is wrong in holding that the presumption accorded legislative acts does not apply when the act is assailed.
The opinion in this case is lengthy, and this dissenting opinion is longer than I intended it to be initially, but length of writing, whether in support of, or in opposition to, the result reached in this case, cannot change the simplicity of the rule that "it is the recognized duty of the court to sustain [an] act unless it is clear beyond reasonable doubt that it is violative of the fundamental law." McAdory.[16]
*181 Instead of seeking to sustain the validity of the act, which McAdory calls the Court's "recognized duty," the Court unfortunately changes the rule regarding its duty and then seems to search for reasons to sustain its conclusion that the act is unconstitutional by citing cases from other jurisdictions that reach the result it desires. Furthermore, the Court cites law review articles and even goes behind the legislative finding of purpose and need, which the Constitution itself forbids it to do,[17] and concludes that "[a] seminal study conducted by the United States General Accounting Office (`GAO') suggests that the connection between damages caps and the total cost of health care is, indeed, remote." At 167. All the Court needed to do was what it did in Reese, apply the McAdory principle and leave to the legislature what belongs to the legislature and to the judiciary what belongs to the judiciary.
The Court bottoms its decision, at least in part, on the great principle of the right to "trial by jury," a principle embedded in our constitution, and a right this Court has jealously guarded, and a right the legislature has preserved "inviolate."[18]
The right to trial by jury is a most valuable right, guaranteed by both the federal and state constitutions, but the right to trial by jury is not the issue in this case. These plaintiffs had a right to trial by jury as that right was guaranteed. The majority cites Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651 (1974), a case in which I joined,[19] but that case dealt with the power of the legislature to reduce the number of jurors from 12 to 6 in the trial of a will contest in county court, not with the power of the legislature to deal with the amount of noneconomic damages that may be recovered in a case arising out of the providing of health care services.[20]Gilbreath v. Wallace is not authority for the holding in this case, because that case did not involve the power of the legislature to deal with what the legislature described as a "crisis" in this State, as this case does.[21] The real *182 issue in this case is whether the legislature is going to determine when there is a "crisis," or whether this Court will make its own independent determination of that issue. Therefore, this is a case involving the doctrine of separation of powers of government, and presents the same issue presented a decade ago in Reese.
The Court has also found that the act is unconstitutional because the Court finds that it violates the equal protection guarantee of the State Constitution.
Although I agree with the plurality of the Justices that Article I, §§ 1, 6, and 22 of Alabama's Constitution combine to guarantee equal protection of the laws,[22] I cannot agree that the act is unconstitutional as violating either of those sections or as violating any guarantee of those sections "taken together."[23] The power of the legislature to classify medical malpractice actions and to make distinctions to address what the legislature found to be a crisis in the providing of health care services was established in Reese:
403 So. 2d at 161.
This is the third of the so-called "tort reform" laws to be declared unconstitutional in the recent past. Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414 (Ala.1991); Clark v. Container Corp. of America, 589 So. 2d 184 (Ala.1991). It may not be the last one, if the rule of this case is applied to other challenges that are certain to be made.
The legislation stricken down today may or may not be good legislation. It may or may not accomplish what the legislature stated it hoped to accomplish by its passage. Another legislature, differently constituted, and presented the GAO findings and other facts this Court uses to strike down the legislation, might decide that it did not accomplish what the originating legislature thought it would accomplish. The original debates on this legislation were long and heated. The legislation was not adopted as introduced. There were *183 compromises made. That is why, in my opinion, the wisdom of the legislation should be left to the legislature in the legislative halls, and not to the Courts in the chambers of justice, unless, of course, there is "no doubt" that the legislature was without the power to pass the legislation, which is not the case here.
The question to be asked and answered, in my opinion, is not whether the legislation will accomplish what the legislature intended for it to accomplish, but whether it is "clear beyond reasonable doubt that it is violative of the fundamental law." The question is not whether the Court thinks that "there are elements [in the act] which are violative of natural justice or in conflict with the court's notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself," McAdory, 246 Ala. at 9, 18 So. 2d at 815, because "[a]ll... questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern." Id. See, Reese, in which this portion of McAdory is quoted and followed. 403 So. 2d at 161.
As I stated in the beginning of this dissent, I believe that the Court has made a major turn in construing legislative acts. Just a decade ago, the Court decided Reese, involving a similar act in which the legislature had made similar findings, and in which the Court applied the principles of McAdory. Today, it goes behind the legislative finding and ignores the principles of McAdory, and in doing so it has expanded the power of this Court to declare legislation to be invalid. Some of the principles expressed in the Court's opinion, especially those relating to the right of this Court to go behind legislative findings, would empower this Court to supplant its own concept of what is good or bad for what the legislature has decreed, and, by judicial interpretation, to violate that great principle that is the bedrock of our government, that there are three co-equal branches of government, and that the legislature makes the laws, the executive enforces the laws, and the judiciary interprets the laws.[24]
Because the Court embarks on a course that I believe to be quite different from the course it followed in Reese, a course that can only be described as one that would ultimately destroy the doctrine of separation of powers, I must register my most respectful disagreement, with the hope that "a later decision may possibly correct the error into which [I] believe the court to have been betrayed."
STEAGALL, J., concurs.
[1] Given the posture of the appellant's Eighth Amendment argument, our remarks in Chandler regarding the right of the jury to fix the amount of damages recoverable should not be regarded, as the Infirmary suggests, as merely gratuitous. We were squarely confronted with a potential conflict between the Eighth Amendment and rights guaranteed by § 11 of our state Constitution as we understood them.
[2] Similar reasoning was apparently employed by the Supreme Court of Indiana in Johnson v. Saint Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585 (1980), where the court summarily concluded: "It is the policy of this Act that recoveries be limited to $500,000, and to this extent the right to have the jury assess the damages is available. No more is required by Art. I, § 20, of the Indiana Constitution in this context." Johnson, 404 N.E.2d at 602.
[3] Wash. Const. art. I, § 21, provides, as does the Constitution of this state, that the "right of trial by jury shall remain inviolate."
[4] It should also be observed that the supervisory role of the judiciary was firmly established in Alabama long before the present Constitution was adopted. For example, the power of the judiciary to order a new trial where the "`sum awarded [was] so unreasonable as to show that the jury [had] not approached the subject in a proper judicial temper'" was recognized at common law. Dimick v. Schiedt, 293 U.S. 474, 482, 55 S. Ct. 296, 299, 79 L. Ed. 603 (1935). Similarly, the authority to condition a new trial upon the refusal of the plaintiff to remit a portion of an excessive verdict has been recognized since 1822. Blunt v. Little, 3 F. Cas. 760 (C.C.A.Mass. 1822); see also Richardson v. Birmingham Cotton Mfg. Co., 116 Ala. 381, 22 So. 478 (1897); Ex parte Steverson, 177 Ala. 384, 58 So. 992 (1912).
[5] Of course, an act abolishing a cause of action must not violate § 13 or other provisions of the Constitution.
[6] These sections provide:
"[§ 1] That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness."
"[§ 6] That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, ... and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law...."
"[§ 22] That no ex post facto law, nor any law, impairing the obligations of contracts, or making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the legislature; and every grant or franchise, privilege, or immunity shall forever remain subject to revocation, alteration, or amendment."
[7] "As of July 1985, 12 states had legislation in effect to limit health care providers' liability." HRD-86-50, at 78.
[8] A reference to Leia Baker's summation of Justice Holmes's career in The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes 634 (Harper Colins 1991). "[Justice Holmes] had no loyalties to any group, and he led no crusades to a constitutional holy land."
[9] It is uncertain what standard of review this Court uses when a legislative Act is challenged as being unconstitutional for violating a plaintiff's right to a remedy guaranteed by § 13 of the Constitution:
(a) The vested rights approach (the legislature could modify, limit, or abolish a cause of action if it had not already accrued or vested) was adopted and followed by this Court from 1857 (Coosa River Steamboat Co. v. Barclay & Henderson, 30 Ala. 120 (1857)) to 1978 (see Reed v. Brunson, 527 So. 2d 102, 114 (Ala.1988)); and has been used since 1978; see Reed v. Brunson, supra, and Mayo v. Rouselle Corp., 375 So. 2d 449 (Ala.1979). Ms. Moore's injury occurred after the effective date of Ala.Code 1975, § 6-5-544(b).
(b) The non-common law rights approach, which was advocated in Lankford v. Sullivan, Long, & Hagerty, 416 So. 2d 996, 1003 (Ala.1982), provides that for a statute to be upheld it must not be arbitrary or capricious. Alabama Code 1975, § 6-5-540, declares "that a crisis threatens the delivery of medical services to the people of Alabama and the health and safety of the citizens of this state are in jeopardy" and that the Alabama Medical Liability Act of 1987 (which includes § 6-5-544(b)) was enacted "to insure that quality medical services continue to be available at reasonable costs to the citizens" of Alabama. I cannot find § 6-5-544(b) arbitrary or capricious in light of our standard of review, which "shows great deference to legislative enactments, striking them down only if no reasonable relationship can be perceived or imagined between the statute's goal and the methods used to achieve them." Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334, 353 (Ala.1980) (Shores, J., concurring in the result).
(c) The common law rights approach requires that an act abolishing or altering a common law cause of action be held unconstitutional as violative of § 13 of the Constitution unless the individual possessor of the right to a remedy receives something in return for it (individual quid pro quo) or society at large receives a benefit (the eradication of a perceived social evil). Lankford v. Sullivan, Long, & Hagerty, 416 So.2d at 1000-03; Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d at 352-54 (Shores, J., concurring in the result).
For the same reason that I could not hold § 6-5-544(b), a part of the Alabama Medical Liability Act of 1987, was arbitrary and capricious under the non-common law rights approach, I could not hold under the common law rights approach that there was no individual or societal quid pro quo for § 6-5-544(b).
[10] I fear that the opinion, which is a plurality opinion insofar as the equal protection discussion is concerned, misquotes Opinion of the Justices No. 102, supra, to indicate that §§ 1, 6, and 22 of the Alabama Constitution forbid "`class legislation arbitrarily discriminatory against some and favoring others in like circumstances.' " I do not understand that opinion as holding that. In Opinion of the Justices No. 102, immediately after this Court stated that there was no equal protection clause in the Constitution of Alabama of 1901, the following appeared:
"Of course, the due process and equal protection clauses of the Fourteenth Amendment are involved here, although no specific reference is made thereto in your inquiry.
"While the due process and equal protection guarantees are not coterminous in their spheres of protection, equality of right is fundamental in both. Each forbids class legislation arbitrarily discriminatory against some and favoring others in like circumstances."
(Emphasis added.) 252 Ala. at 530, 41 So. 2d at 777.
Why must we act as if the quoted words apply to §§ 1, 6, and 22 of the Alabama Constitution, when it is clear that they apply to the equal protection clause of the Fourteenth Amendment of the United States Constitution?
[11] Musmanno, "Dissenting Opinions," 6 Kan. L.Rev. 407, 410 (1958); William O. Douglas, "The Dissent: A Safeguard of Democracy," 32 J.Am.Jud.Soc'y 104, 106 (1948).
[12] 32 J.Am.Jud.Soc'y at 106.
[13] On May 5, 1978, a majority of this Court decided to reject the rule, and in Grantham v. Denke, 359 So. 2d 785 (Ala.1978), the majority, citing as authority an Arizona case, held an act of the Alabama legislature unconstitutional. Mr. Justice Beatty, who joined the majority in Grantham v. Denke, would later recognize his mistake, and he began his scholarly dissent in Fireman's Fund Am. Ins. Co. v. Coleman, 394 So. 2d 334, 355 (Ala.1981), by describing Grantham v. Denke as a "judicial `tar baby.'" 394 So. 2d at 355.
I thought that this Court, in Reed v. Brunson, 527 So. 2d 102 (Ala.1988), had rectified the error that it had made in the Grantham case, because, in Reed, this Court reaffirmed the McAdory rule and adopted much of the rationale used by Mr. Justice Beatty in his dissent in Fireman's Fund.
[14] Peddycoart does state the principle for which it is cited, and in Peddycoart this Court did strike down a law that the Court found violated a section of the constitution, but in Peddycoart, this Court declared the act unconstitutional only after the Court had determined that there was "[no] doubt" that it violated the Constitution of Alabama. From a reading of Peddycoart, it is quite apparent that the Court, "in performing only [its] judicial function and [not encroaching] upon the separation of powers doctrine which makes the legislative branch supreme in legislative matters," found that there was "[no] doubt" that the act was unconstitutional. The Court said: "If we entertained any doubt upon the meaning of § 105, we would, of course, accord a weighty consideration to the legislative interpretation which has been manifested through the years by the passage of numerous local laws on subjects already affecting those localities through general laws." 354 So. 2d at 811.
The language from Peddycoart used by the majority to excuse the performance of its duty to uphold this act, should be read in the context of the Peddycoart case. Had the Court today applied the Peddycoart "[no] doubt" test to the act it declares unconstitutional, it would have upheld the act. Consequently, Peddycoart is not authority for this Court to strike down the act under consideration.
[15] A complete reading of Jones v. Black and Cooley's Constitutional Limitations, the treatise cited in Jones v. Black, shows that the language cited in Justice Jones's special concurrence was taken out of context and that meaning was read into it that is not contained in the opinion in Jones v. Black. The Court in Jones v. Black was merely pointing out that a person must have standing in order to challenge the constitutionality of a statute. The opinion in Jones v. Black begins:
"The power of the courts to declare an act of the legislature unconstitutional and void, is too well established at the present day to be doubted; but it is a highly responsible and delicate power, and never to be exercised, unless the exigencies of the particular case require it. While the courts can not, and ought not to shun or avoid the discussion of constitutional questions, when fairly presented, they will not, and should not, go out of their way to find such topics. They will not seek to draw in such weighty matters on trivial occasions; neither will they, as a general rule, pass upon a constitutional question and decide a statute to be invalid, unless a decision upon the very point becomes necessary to the determination of the particular case. It is both more proper, and more respectful to a coordinate independent department of government, to discuss constitutional questions only when that is the very lis mota; when the particular case in hand can only be disposed of by deciding the constitutional question."
48 Ala. at 542.
[16] Instead of writing at great length, I choose instead to refer the reader to my dissent in Grantham v. Denke and to a scholarly dissent by Mr. Justice Beatty in Fireman's Fund. Mr. Justice Beatty, in his Fireman's Fund dissent, went back to the bedrock of constitutional interpretation, and, quoting from the McAdory case, said that "[the police] power must not be exercised arbitrarily or capriciously, and there must some reasonable relation to the regulation and the ends to be attained," but that "if upon the matter men may reasonably differ, in view of all the circumstances, the legislative act in the exercise of the police power must be sustained." (Emphasis by Beatty, J.). In his dissent, Mr. Justice Beatty set out succinctly the range of legislative power and the duty of this Court when asked to strike down legislation adopted pursuant to that power. Much of his dissenting opinion is quoted favorably in Reed v. Brunson, 527 So. 2d at 110-12.
[17] Section 43 of the Alabama Constitution provides, in part, that "the judicial [branch] shall never exercise the legislative and executive powers, or either of them."
[18] The policy of this State, as expressed by the legislature in Ala.Code 1975, § 12-16-55, is that "all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this article, to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose."
[19] I concurred in Gilbreath v. Wallace, because it was clear to me from a reading of the constitutional debates on Section 11 that the delegates intended to preserve the number of jurors at 12. It is a quantum leap from that point to hold, in this case, that the legislature cannot deal with the damages recoverable in a civil action, although the legislature could, under certain circumstances, abolish a cause of action entirely. If Gilbreath v. Wallace establishes the principle for which it is cited, then I do not agree with that aspect of its holding. Of course, Gilbreath v. Wallace does not establish such a principle.
[20] I agree with Mr. Justice Houston that Section 11 applies only to the number of jurors required, the impartiality of those jurors, and the unanimity of their verdict. He cites Kirk v. State, 247 Ala. 43, 22 So. 2d 431 (1945); Baader v. State, 201 Ala. 76, 77 So. 370 (1917), and other cases for this principle.
Although I agree with Mr. Justice Houston's views on the Section 11 issue, I cannot agree with his conclusion that the act is unconstitutional because it prevents the jury from being told in advance about the limitation on damages. I frankly cannot understand how Mr. Justice Houston, if he applies the McAdory test, can conclude that "it is clear beyond reasonable doubt" that the legislature can change the law of damages but cannot put a cap on those damages unless the jury is advised, in advance, of that fact; consequently, I disagree with his special concurrence on this point.
[21] In Reese v. Rankin Fite Memorial Hospital, 403 So. 2d 158 (Ala.1981), this Court, in upholding the constitutionality of the Medical Liability Act, said:
"The Medical Liability Act was the legislature's response to a crisis which developed nationwide in the 1970's. We cannot say that the equal protection provisions of the Constitution restrict its authority to withdraw the legislative grace given minors in § 6-2-8 in the field of medical malpractice claims.
"We note that a number of other states passed similar legislation during this period. While we might have drafted a different act, we cannot substitute our judgment for that of the legislative branch, whose enactments come to us clothed with a presumption of validity."
403 So. 2d at 161.
[22] In Branch v. State, 526 So. 2d 609 (Ala.1987), I cited this Court's case of Jackson v. State, 516 So. 2d 768 (Ala.1986), in which this Court, citing City of Hueytown v. Jiffy Chek Co., 342 So. 2d 761 (Ala.1977), stated specifically that "Sections 1, 6, and 22, Ala. Const. 1901, combine to guarantee equal protection of the laws." This Court, in Pickett v. Matthews, 238 Ala. 542, 545, 192 So. 261 (1939), after finding that the legislative act there being reviewed did not violate § 13 of the Constitution, said:
"But section 13 ... does not in language, nor intent, prevent the legislature from changing a rule of duty to apply to transactions which may occur thereafter. If there exists any such prohibition it must be found elsewhere in the Constitution.
"Sections 1, 6, 22, State Constitution; Amendment 14, Federal Constitution, U.S.C.A.:
"These taken together guarantee the equal protection of the laws, protect persons as to their inalienable rights; prohibit one from being deprived of his inalienable rights without due process; and prohibit irrevocable or exclusive grants of special privileges or immunities."
238 Ala. at 545, 192 So. at 264. (Emphasis added.)
Because of what this Court has said in many cases, I cannot agree with Mr. Justice Houston's treatment of the equal protection issue, although I agree with him that the act is not violative of either Section 1, 6, or 22 of our State Constitution.
[23] In Pickett v. Matthews, 238 Ala. 542, 545, 192 So. 261 (1939), this Court said that those sections "taken together" guaranteed equal protection of the laws.
[24] Section 43 of our constitution states that "the judicial [branch] shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men." | September 27, 1991 |
3093013a-8567-4b89-bad4-e93c7d3029be | Prince v. Crow | 589 So. 2d 161 | 1900621 | Alabama | Alabama Supreme Court | 589 So. 2d 161 (1991)
Robert E. PRINCE and Carolinda L. Prince
v.
Margaret I. CROW and Betty P. Kamphius, as co-executrixes of the Estate of Helen Warder, deceased.
1900621.
Supreme Court of Alabama.
August 9, 1991.
Rehearing Denied October 18, 1991.
John W. Parker and L. Bratton Rainey III, Mobile, for appellants.
Charles S. Willoughby of McFadden, Lyon, Willoughby & Rouse, Mobile, for appellees.
INGRAM, Justice.
The plaintiffs, Robert E. Prince and his wife Carolinda L. Prince, appeal from a summary judgment in favor of the defendants, Margaret I. Crow and Betty P. Kamphius, as executrixes of the estate of Helen Warder.
In January 1982, Helen Warder conveyed, by a vendor's lien deed, a large tract of land to Gary L. Breen. Breen subdivided the land into smaller parcels. In March 1982, one of the smaller parcels was conveyed to the Princes. The deed from Breen recited that the conveyance was subject to the "[v]endor's lien granted in deed from Helen S. [Warder] to the Grantor [Breen], ... which Grantor hereby agrees to pay as the installments thereon fall due." In April 1982, Breen conveyed the remainder of the property to Dorothy Caron; Caron assumed the Warder vendor's lien and was assigned Breen's vendor's lien from the Princes.
The Princes purchased another parcel from Caron in September 1982. After Caron's death in February 1987, the Princes purchased two more parcels from her estate, one in June 1987 and another in June 1988. All deeds from Caron and, later, her estate recited that the conveyance was subject to the Warder vendor's lien. In January 1988, the Caron estate defaulted on the Warder vendor's lien, and the Warder estate foreclosed on its lien in December 1988.
The Princes sued Crow and Kamphius, as executrixes of the estate of Helen Warder, seeking to impose an equitable lien against the property for improvements alleged to *162 have been made before foreclosure.[1] The Warder estate filed a motion for summary judgment, which was granted, and a summary judgment was entered in favor of Crow and Kamphius as executrixes of the estate of Helen Warder. The Princes appealed to this Court.
A party is entitled to a summary judgment upon a showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. In reviewing a trial court's entry of a summary judgment, this Court will view the evidence in a light most favorable to the nonmovant and will resolve all reasonable doubts against the movant. Fincher v. Robinson Brothers Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991). The movant must carry his burden by presenting "substantial evidence." "`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).
In opposition to the motion for summary judgment, Robert E. Prince filed an affidavit that averred that he had made improvements in good faith. He stated that the improvements, which he valued at approximately $31,000, were made under the mistaken impression that payments were being made on the underlying indebtedness. He also alleged that the defendants had been aware of the purchase by the Princes of the several parcels and that the defendants had been aware of the improvements made by the Princes. Mr. Prince stated:
The issue in this case is whether the Princes, the purchasers of property that was subject to an underlying vendor's lien, can withstand a motion for summary judgment on a claim for an equitable lien on the property, when it is uncontroverted that the purchasers had knowledge of the underlying vendor's lien and that the estate of Helen Warder, the holder of the underlying vendor's lien, is alleged to have had knowledge that improvements were being made.
Vendor's liens are of three kinds: (1) a lien imposed by law in favor of a vendor who conveyed his property without taking a security interest for the payment of the purchase price; (2) a lien reserved by express contract, otherwise described as a "grantor's lien by express reservation"; and (3) "the so-called lien which a vendor has before conveyance and which consists of his retention of title as security for the performance of the contract by the vendee." Wingard v. Randall, 269 Ala. 420, 425, 113 So. 2d 674, 677-78 (1959). The Warder vendor's lien was expressly reserved in the deed from Warder to Breen.
Sims v. Moore, 288 Ala. 630, 637, 264 So. 2d 484, 489 (1972). For purposes of this case, the Warder vendor's lien will be treated as if it were an existing mortgage at the time the Princes purchased their parcels from Breen and later Caron and the Caron estate.
The Princes sought an equitable lien for the value of improvements made to the *163 parcels before foreclosure. The imposition of an equitable lien has been limited to three situations in Alabama:
Manning v. Wingo, 577 So. 2d 865 (Ala. 1991). The Princes claim that they were are entitled to equitable relief under the first situation. They allege that because the defendants did not tell them about the default of the Caron estate, they were mistakenly led to believe that the debt secured by the Warder lien was being paid. The only inducement to continue to improve the property alleged by the Princes is that Crow and Kamphius, as executrixes of the Warder estate, did not tell the Princes that the Caron estate was in default prior to foreclosure, and that Crow and Kamphius had knowledge that the Princes were continuing to improve the property during this time.
This Court has stated that mere passive conduct is not sufficient to entitle an improver to equitable relief. Costanza v. Costanza, 346 So. 2d 1133, 1136 (Ala. 1977). Without active inducement by Crow and Kamphius, and the Princes have not presented evidence sufficient to show such inducement, the Princes are not entitled to an equitable lien as described in Hewett v. McGaster, supra.
Manning v. Wingo, supra, established that an equitable lien may be proper in order "[t]o prevent such unjust enrichment... and to do equity between the parties" when the improver of the property, mistakenly and in good faith, believes he owns the property. Manning, 577 So. 2d at 869 (citing Somerville v. Jacobs, 153 W.Va. 613, 629, 170 S.E.2d 805, 813 (1969)). In Manning, the "improvers" had purchased property from the alleged beneficiary of an estate during a will contest. Under the circumstances of the case, the Wingos had reason to believe that the will contest would not affect their ownership of the property, and they made improvements to the property. This Court held that, under the circumstances, the Wingos were entitled to the value of their improvements.
The present case does not fall within the limited uses of equitable liens in Alabama and does not present the compelling circumstances found in Manning. In this case, the Princes were fully aware that their deed was subject to the underlying vendor's lien, meaning that if the underlying lien was not paid, the estate of Helen Warder could foreclose upon the larger tract. The only indication that Crow and Kamphius were aware that the Princes were making improvements after the default by the Caron estate, but before foreclosure, was the statement by Mr. Prince that, while working on the property, he had seen them drive by the property and that they had waved to him.
The facts, when viewed in a light most favorable to the non-movants, the Princes, reveal that the Princes were not misled by active conduct of Crow and Kamphius into improving the property. Also, the Princes did not believe in good faith that they could not be divested of the property, as did the Mannings. The Princes were aware that their continued ownership required that the Caron estate continue to pay the debt secured by the lien held by the Warder estate. They were not misled, and the circumstances *164 are such that they cannot claim that in good faith they believed otherwise. Under the circumstances, we find that the Princes have failed to offer substantial evidence that they are entitled to the value of their improvements through the remedy of an equitable lien.
AFFIRMED.
HORNSBY, C.J., and ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] The Princes also sued Frank Caron, Frank Caron, Jr., and Thomas Langan, alleging fraud, which consisted of accepting money from the Princes while concealing the fact that the underlying debt secured by the vendor's lien was not being paid. A settlement was reached between these parties, whereby the Princes received $125,000 for the alleged fraud, and that portion of the action was dismissed. | August 9, 1991 |
87d3cac6-fe8b-445f-8381-9a767f8cf2be | Hanners v. Balfour Guthrie, Inc. | 589 So. 2d 684 | 1900718 | Alabama | Alabama Supreme Court | 589 So. 2d 684 (1991)
Gerald HANNERS, d/b/a Newton Peanut Company
v.
BALFOUR GUTHRIE, INC.
1900718.
Supreme Court of Alabama.
August 23, 1991.
Rehearing Denied October 11, 1991.
Steven P. Schmitt, Tallassee, and Joseph W. Adams, Ozark, for appellant.
Steadman S. Shealy, Jr. of Buntin, Cobb & Shealy, P.A., Dothan, and J. Wayne Pierce and David J. Reed, Atlanta, Ga., for appellee.
HOUSTON, Justice.
The plaintiff, Gerald Hanners, d/b/a Newton Peanut Company, appeals from the judgment entered on a $60 jury verdict in his favor against Balfour Guthrie, Inc. ("Balfour"), in this fraud action based on alleged misrepresentations concerning Balfour's intent to perform under two contracts with Hanners for the sale of peanuts. We affirm.
For a detailed statement of the circumstances surrounding this case, see Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990), where this Court reversed a summary judgment for Balfour, holding that a fact question existed as to whether Hanners had justifiably relied on certain alleged misrepresentations by representatives of Balfour.
Two issues have been presented for our review on this appeal:
With regard to the first issue, we note that Hanners propounded to Balfour certain interrogatories and requests for admission of facts, to which Balfour objected on various grounds. After considering Balfour's argument that the interrogatories were overly broad and vague and that answering them would not reasonably lead to the discovery of admissible evidence, would be unduly burdensome, and would require it to divulge confidential information, and that the requests for admission of facts actually called for legal conclusions, the trial court entered a protective order limiting Hanners's right to discovery. Hanners contends that his interrogatories and requests for admission of facts were in proper form and that the information requested therein was vital to his case. Balfour contends that the trial court acted within its discretion in controlling the discovery process. We agree.
In Ex parte McTier, 414 So. 2d 460, 461-62 (Ala.1982), this Court, in a case similar to the present one, reiterated the applicable scope of appellate review of discovery rulings:
In the present case, as in Ex parte McTier, the record does not show a clear abuse of discretion on the trial court's part in limiting discovery. We note that in reaching this conclusion we have carefully reviewed each of the interrogatories and requests for admission of facts that are at issue. Interrogatories one through four were objectionable because answering them would not have led to the discovery of admissible evidence. These interrogatories sought information relating to Balfour's *686 financial status, and, rejecting Hanners's suggestion, we decline to change the well-established rule that evidence of a defendant's wealth is inadmissible during the liability phase of a trial for the purpose of proving the amount of punitive damages that should be assessed. See Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.1988). Interrogatory 10 was objectionable on the ground that it was overly broad. Interrogatory 15 called for Balfour to "[s]tate the name, address, and telephone number of every peanut dealer known to [it] who customarily [deferred] payment on peanut purchase contracts for 30 days after receipt of invoice." Hanners argues that the information he sought by this interrogatory was relevant to show that, contrary to Balfour's assertions, it was not an industry practice to defer payment after receipt of an invoice. The trial court ordered Balfour to divulge the requested information with regard to any peanut dealer that it intended to use as an example at trial in support of its claim as to the applicable practice within the industry of paying invoices. We fail to see how this limiting order could have prejudiced Hanners, who, being an experienced peanut dealer, could have acquired from other sources, through the exercise of reasonable diligence, any information that was not provided by Balfour concerning the practice within the industry of paying invoices. Interrogatory 16 was sufficiently answered by Balfour. The requests for admission of facts were objectionable on the ground that they called for Balfour to admit to the meaning of a contested term in the rules of the Southeastern Peanut Association. This Balfour was not required to do. There is no indication that the trial court placed an arbitrary limit on Hanners's right to discovery.
As to the second issue, the record shows that the jury first returned a verdict for Hanners, but failed to award him any damages. Hanners promptly moved for a new trial, arguing that the verdict was inconsistent. Instead of granting Hanners's motion, however, the trial court, with the consent of both parties, recharged the jurors, telling them, in part, to either find for Hanners and award him damages, or to find for Balfour. The only objection made by Hanners to the trial court's second set of instructions was that the court had not recharged the jury on the law of punitive damages. The trial court responded by stating that it had previously charged the jury with respect to punitive damages. Hanners now argues that the trial court's curative instructions were "confusing at best and misleading at worst, and [that] the trial court negated the issue of punitive damages in the minds of the jurors by denying [his] motion to charge the jury again on the issue of punitive damages."
We can find no error on the trial court's part in resubmitting this case to the jury. By recharging the jury, which had already heard all of the evidence, and affording it the opportunity to return a verdict in conformity with the law, the trial court furthered the goal of obtaining the most efficient use of our judicial system. Furthermore, because Hanners's only objection to the trial court's curative instructions involved the court's refusal to reinstruct on the law of punitive damages, he waived any error in connection with the instructions that were actually given. Adriatic Insurance Co. v. Willingham, 567 So. 2d 1282 (Ala.1990). Finally, the record shows that the trial court had previously instructed the jury on the law of punitive damages. We cannot conclude from our review of the record that the trial court "negated the issue of punitive damages in the minds of the jurors" by denying Hanners's motion to reinstruct the jury on punitive damages.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
MADDOX, SHORES, STEAGALL and INGRAM, JJ., concur. | August 23, 1991 |
bab00746-72d9-4b79-a5fc-09ef757e7d90 | Chandler v. Alabama Mun. Ins. Co. | 585 So. 2d 1365 | 1900915 | Alabama | Alabama Supreme Court | 585 So. 2d 1365 (1991)
A.A. CHANDLER
v.
ALABAMA MUNICIPAL INSURANCE COMPANY.
1900915.
Supreme Court of Alabama.
August 23, 1991.
Jack E. Propst, Kennedy, and Ronald H. Strawbridge, Vernon, for appellant.
James W. Porter II of Porter, Porter & Hassinger, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a declaratory judgment in which the trial court held that the Alabama Municipal Insurance Company has no duty to defend a civil action brought against A.A. Chandler on the grounds that he had fraudulently and illegally obtained public funds. We affirm.
On May 10, 1990, P.M. Johnston, the district attorney of Lamar County, Alabama, filed a civil suit against A.A. Chandler, individually and as mayor of the City of Vernon, Alabama. The complaint alleged that Chandler had illegally received $47,000 by fraudulently and unlawfully depleting the public funds of the City of Vernon; it sought a return of those funds to the city. The suit filed by the district attorney was the result of an eight-count indictment brought against Chandler by a Lamar County grand jury charging him with obtaining money by deceit, in violation of § 13A-8-3, Code of Alabama 1975, and the unlawful and felonious use of his official position to obtain direct, personal gain, in violation of § 36-25-5.
The Alabama Municipal Insurance Company, the insurance carrier for the City of Vernon, then filed this action, seeking to have the court declare that it had no duty to defend A.A. Chandler in the civil action brought against him. Alabama Municipal filed a motion for a judgment on the pleadings, *1366 contending that the plain language of the policy denied coverage for claims resulting from any dishonest or criminal act. The trial judge converted that motion to a motion for summary judgment and held a hearing on the motion on January 29, 1991. The trial court entered a summary judgment for Alabama Municipal. Chandler appeals.
We must determine whether the trial court erred in entering the summary judgment for the insurance company. 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 the summary judgment was properly entered, the reviewing court must view the evidence in the 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. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
We have carefully reviewed the record in this case. We conclude that the judgment of the trial court is due to be affirmed. The language of the "Public Officials Errors and Omissions Liability" portion of the contract reads in pertinent part:
"I. Insuring Agreement
"II. Exclusions.
"Coverage under this section does not apply to:
"....
"....
"....
"....
"....
*1367 This Court stated the rule as to an insurance company's duty to defend in Burnham Shoes, Inc. v. West American Ins. Co., 504 So. 2d 238 (Ala.1987), quoting Ladner & Co. v. Southern Guaranty Ins. Co., 347 So. 2d 100 (Ala.1977):
"`It is well established that the insurer's duty to defend is more extensive than its duty to pay. If the allegations of the injured party's complaint show an accident or occurrence which comes within the coverage of the policy, the insurer is obligated to defend regardless of the ultimate liability of the insured. Goldberg v. Lumber Mutual Casualty Ins. Co., 297 N.Y. 148, 77 N.E.2d 131 (1948). It is also generally the rule that the obligation of a liability insurer, under a policy requiring it to defend its insured in an action brought by a third party, is determined by the allegations of the complaint in such action. Bituminous Casualty Corporation v. Bartlett, [307] Minn. [72], 240 N.W.2d 310 (1976); Argonaut Southwest Insurance Co. v. Maupin, Tex., 500 S.W.2d 633 (1973); 50 A.L.R.2d 499.
"`This court, however, has rejected the argument that the insurer's obligation to defend must be determined solely from the facts alleged in the complaint in the action against the insured. In Pacific Indemnity Company v. Run-A-Ford Company, 276 Ala. 311, 161 So. 2d 789 (1964), Justice Coleman, speaking for the court, held:
"`"We are of opinion that in deciding whether a complaint alleges such injury, the court is not limited to the bare allegations of the complaint in the action against insured but may also look to facts which may be proved by admissible evidence...."
"`The court went on to state that when the allegations of the complaint show that the injury alleged is not within the coverage of the policy, other facts which did exist but were not alleged, could be taken into consideration....'"
504 So. 2d at 239-40, quoting 347 So. 2d at 102-03.
The action filed against Chandler is a civil action filed by a named insured against another named insured, the mayor. The clear and unambiguous language of the policy provisions clearly excludes coverage to Mayor Chandler. He is being sued for the recovery of "gain" which was allegedly wrongfully taken. This claim is expressly excluded under the policy in unambiguous language. The trial court properly held that the insurance carrier had no obligation to defend the lawsuit against Chandler.
For the reasons stated above, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and HOUSTON, STEAGALL and KENNEDY, JJ., concur. | August 23, 1991 |
814c61dd-2164-4941-bed2-78a88b2b3f87 | Hardy v. Blue Cross and Blue Shield | 585 So. 2d 29 | 1900339 | Alabama | Alabama Supreme Court | 585 So. 2d 29 (1991)
Glenda Joyce HARDY
v.
BLUE CROSS AND BLUE SHIELD OF ALABAMA and Alabama State Employees Insurance Board.
1900339.
Supreme Court of Alabama.
August 9, 1991.
*30 Roy S. Moore, Gadsden, for appellant.
Bert S. Nettles and J. Mark Hart of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellees.
HORNSBY, Chief Justice.
Joyce Hardy sued Blue Cross and Blue Shield of Alabama ("Blue Cross"), alleging breach of contract, bad faith, and fraudulent suppression. The trial court entered a summary judgment for Blue Cross on the fraudulent suppression claim and directed a verdict on the bad faith claim. The breach of contract claim was submitted to the jury, and it returned a verdict for Blue Cross. Hardy appeals neither as to the breach of contract claim nor as to the bad faith claim. She appeals only from the summary judgment entered against her on her fraudulent suppression claim. We affirm.
While employed with the Etowah County constable's office, Hardy was enrolled in a major medical benefit plan with Blue Cross, contract number XXX-XX-XXXX. On June 5, 1987, Hardy underwent laser surgery for treatment for a condyloma.[1] On June 22, 1987, Hardy became employed by the Etowah County circuit clerk's office. Upon her employment with the circuit clerk's office, Hardy became enrolled in another plan, under contract number XXX-XX-XXXX, in group 13000; that plan was administered by Blue Cross for the State Employees Insurance Board. On August 21, 1987, Hardy had a recurrence of her condyloma and again underwent laser surgery.
Hardy filed a claim with Blue Cross for the expenses she incurred, but Blue Cross denied her claim. Under the medical plan administered by Blue Cross, preexisting conditions were not covered for the first 270 days of coverage. In this case, the second laser surgery for Hardy's condyloma was performed 60 days after her coverage became effective. Blue Cross denied her claim because Hardy's condyloma was a preexisting condition and the 270-day waiting period had not run.
Hardy argues that the trial court never ruled on the summary judgment motions for either party and that Blue Cross moved for a directed verdict at the beginning of trial. The record does not support this contention. Blue Cross filed a motion for summary judgment on October 4, 1990, and Hardy filed a cross-motion for summary judgment on October 16, 1990. The motions were argued on October 18, 1990, before the commencement of the trial; the trial court struck Hardy's affidavit because she had failed to comply with A.R.Civ.P. 56(e) and it entered a summary judgment in favor of Blue Cross on the fraudulent suppression claim. The following occurred:
"THE COURT: I am going to grant [Blue Cross's] motion to strike [Hardy's] affidavit.
*31 "THE COURT: I am going to deny [Blue Cross's] motion on the contract claim for directed verdict.
"MR. MOORE: Yes sir, I do....
"....
"THE COURT: What says the Plaintiff?
"MR. MOORE: Judge, we consider that [evidence] highly relevant.
Based upon the foregoing, we review the summary judgment under A.R.Civ.P. 56.
Rule 56 sets forth a two-tiered standard for entering summary judgment. The rule requires the trial court to determine (1) that there is no genuine issue of material fact; and (2) that the moving party is entitled to a judgment as a matter of law.
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 the light most favorable to the nonmovant and resolve all reasonable doubts against the *32 movant. 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).
Because this action was filed after June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that, once the movant makes his prima facie showing, the nonmovant meet his burden by "substantial evidence." 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) (citing Rowden v. Tomlinson, 538 So. 2d 15, 19 (Ala.1988) (Jones, J., concurring)). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
To make out a prima facie case of fraudulent suppression, Hardy must show:
(1) that Blue Cross had a duty to disclose; (2) that Blue Cross suppressed an existing, material fact; (3) that Blue Cross had actual knowledge of the fact and its materiality; (4) that her lack of knowledge induced her to act; and (5) that she suffered actual damage as a proximate result. See, e.g., Cherokee Farms, Inc. v. Firemen's Fund Ins. Co., 526 So. 2d 871 (Ala.1988); Wilson v. Brown, 496 So. 2d 756 (Ala.1986); Harrell v. Dodson, 398 So. 2d 272 (Ala.1981).
This Court has often ruled that mere silence does not constitute fraud and that there is no duty to disclose facts when information is not requested. King v. National Foundation Life Ins. Co., 541 So. 2d 502 (Ala.1989); Wilson, supra; Keeler v. Chastang, 472 So. 2d 1031 (Ala. 1985); Ray v. Montgomery, 399 So. 2d 230 (Ala.1980). A duty to disclose may arise from a confidential relationship between the parties, or from the particular circumstances of the case. Ala.Code 1975, § 6-5-102; King, supra; McCausland v. Tide-Mayflower Moving & Storage, 499 So. 2d 1378 (Ala. 1986); Berkel & Co. Contractors Inc. v. Providence Hosp., 454 So. 2d 496 (Ala.1984); Holdbrooks v. Central Bank, 435 So. 2d 1250 (Ala.1983).
Hardy contends that she made a prima facie showing on her fraudulent suppression claim. Hardy claims that Blue Cross owed her a duty to disclose material facts not known to her and that Blue Cross breached her confidence and trust in Blue Cross. She contends that Blue Cross induced her to enter into a new contract by failing to inform her that if she had a recurrence of her condyloma any expense incurred in treating the recurrence would be excluded under the new contract. Hardy claims that because of Blue Cross's failure to inform her, she failed to purchase a conversion contract under her former insurance agreement and thus suffered injury or loss.
Notwithstanding her claims, Hardy presented no evidence suggesting that Blue Cross had a duty to disclose information. There was no evidence of a confidential relationship, and there were no special circumstances giving rise to a duty. Hardy did not request any information from Blue Cross about her coverage before enrolling in the group 13000 plan. No evidence was presented suggesting that she discussed her old and new coverages with Blue Cross or the possibility that Blue Cross would not pay any medical claims connected with a recurrence of her vaginal warts.
The evidence does show that when Hardy enrolled in the group 13000 plan she was given an employee booklet, which contained the following:
"Waiting Periods
(Emphasis added.)
Based upon the record before this Court, we conclude that Hardy failed to rebut the defendant's prima facie showing by presenting substantial evidence of fraudulent suppression. Consequently, we affirm the summary judgment.
AFFIRMED.
ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Condyloma is defined as: "Verruca Mollusciformis; a wartlike excrescence at the anus or vulva, or on the glans penis." Stedman's Medical Dictionary 340 (25th ed. 1990). | August 9, 1991 |
5c94aaef-1062-4d82-98b4-6c0634624622 | First Health, Inc. v. Blanton | 585 So. 2d 1331 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 1331 (1991)
FIRST HEALTH, INC.
v.
Harold L. BLANTON.
89-1579.
Supreme Court of Alabama.
August 16, 1991.
William L. Middleton of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellant.
W.H. Rogers, Moulton, for appellee.
KENNEDY, Justice.
The Courtland Regional Medical Center, Inc., d/b/a Community Hospital of Courtland in Courtland, Alabama, came into existence *1332 in 1975. In 1982, Dr. Harold L. Blanton entered into an agreement to provide medical services to the Community Hospital of Courtland. The hospital was later purchased by Nu-Med Hospital Corporation. In 1986, First Health Courtland, Inc., purchased all of the stock in the hospital from Nu-Med. Thereafter, First Health Courtland, Inc., became delinquent in paying wages to the staff physicians of Community Hospital of Courtland. This condition persisted until Dr. Blanton and the Community Hospital of Courtland entered into an agreement by which the hospital would pay Dr. Blanton the debt it owed him. First Health Courtland, Inc., made one scheduled payment to Dr. Blanton before filing for bankruptcy. It made no further payments to Dr. Blanton.
First Health, Inc., a Delaware corporation, owns 100% of the stock in First Health Courtland, Inc., which is incorporated in Alabama. One half of the stock in First Health, Inc., is owned by David Vance, and one half of its stock is owned by Robert H. Gladney.
Dr. Blanton filed an action against First Health Courtland, Inc., First Health, Inc., and David Vance to recover the unpaid balance of the debt owed to him by First Health Courtland. The case was tried to the court sitting without a jury. The trial court entered a judgment for Dr. Blanton and against First Health Courtland, Inc., and First Health, Inc., in the amount of $18,080 plus interest from April 1, 1988. First Health, Inc., appeals.
First Health, Inc., argues that the trial court erroneously disregarded the corporate entity of First Health Courtland and held First Health, Inc., liable for First Health Courtland's debt.
Where testimony is presented ore tenus, the trial court's findings are presumed correct and will not be disturbed unless palpably erroneous, without supporting evidence, or manifestly unjust. Howell v. Bradford, 570 So. 2d 643 (Ala.1990). The evidence, viewed in the light most favorable to the plaintiff, is as follows:
First Health owns stock in health facilities in Alabama, Mississippi, and Tennessee. The board of directors for both First Health and First Health Courtland consisted of David Vance, Robert Gladney, and Harry Baker. When First Health Courtland purchased the Community Hospital of Courtland, David Vance met with the hospital physicians, including Dr. Blanton, and he told them that the hospital would be run as it had been run before First Health Courtland purchased it.
All parties abided by the terms of the 1982 agreement until 1986. At that time, economic conditions worsened for the Community Hospital of Courtland, and First Health Courtland failed to pay Dr. Blanton and the other staff physicians for their services. Dr. Blanton testified that he discussed this deficiency with Carl Velte, the administrator of the Community Hospital of Courtland, and that he wrote to the directors of First Health in Batesville, Mississippi, concerning the overdue wages. The letter was addressed to the directors of First Health in their capacities as directors of the corporation.
Dr. Blanton testified that in the spring of 1987 the staff physicians agreed with Velte to reduce their emergency room hourly rate from $30 to $20. Dr. Blanton stated that Velte said that he had discussed the rate reduction plan with Vance in the "home office." Dr. Blanton said he was paid in accordance with that agreement until September 1987. Dr. Blanton stated that September 1987 began a four-month period during which he was not paid for his services. He testified that he spoke with Velte about this condition and that he wrote several letters to David Vance and the other directors of First Health concerning the delinquent payments.
Dr. Blanton next wrote to the directors of First Health concerning the payment of overdue wages in March and April 1987; he addressed the letter to the offices of First Health in Mississippi. He testified that the overdue wages were paid shortly thereafter.
Dr. Blanton again wrote Vance in December 1987. In that letter, he stated that, due to the hospital's inability to timely compensate its physicians, he intended to cease *1333 his employment at the Community Hospital of Courtland. Dr. Blanton wrote another letter to Vance in January 1988 that concerned the payment of past-due wages. On the same day, Dr. Blanton sent a letter to Lawson Woods, Velte's successor as administrator of the Community Hospital of Courtland. In the letter, Dr. Blanton asked Woods, "as a representative of the First Health Corporation," to arrange payment for past-due wages. In March 1988, Dr. Blanton again wrote Vance concerning payment of the same overdue wages.
Subsequently, Dr. Blanton entered into an agreement with the Community Hospital of Courtland whereby the hospital would pay him $1,000 per month until it had satisfied its debt, which was then $19,080. The agreement was typed on "Community Hospital of Courtland" stationery. It was signed by Dr. Blanton and by Lawson Woods in his capacity as the administrator of the hospital. On April 6, 1988, First Health Courtland drew a check for $1,000 made payable to Dr. Blanton, on its account at the Citizens Bank of Courtland, Alabama. First Health Courtland made no more payments to Dr. Blanton. It is not disputed that First Health Courtland owes Dr. Blanton $18,080.
Dr. Blanton testified that he did not know of, and did not attend, any First Health Courtland directors' meetings. He said that any discussions he had concerning the payment of past-due wages were with David Vance. He testified that decisions to pay him and decisions to buy hospital equipment were made by the hospital administrator through David Vance. Dr. Blanton testified that, other than Vance, he reported to Velte, in his capacity as administrator of the Community Hospital of Courtland, and to Lawson Woods, Velte's successor. Dr. Blanton testified that the hospital billed patients for medical services and that it collected payments for medical services. Dr. Blanton stated that any payments he received for services were paid by the Community Hospital of Courtland.
Next, Bonnie Blanton, Dr. Blanton's wife and a registered nurse at the hospital, testified. Ms. Blanton stated that, even though she was paid by First Health Courtland, on the days the hospital payroll checks were to be issued, the employees would sometimes have to wait because the payroll money would have to come from Mississippi. Ms. Blanton also said that the procedure for ordering hospital supplies was to fill out a request form and turn it in to the purchasing office at the hospital, and that it then went to the hospital administrator. She stated, however, that she was told that approval for nondisposable supplies had to come from the offices of First Health.
David Vance testified that First Health, First Health Courtland, and the other health care corporations whose stock was owned by First Health, were separately incorporated, some in different states, and that they maintained separate bank accounts, separate state tax returns, separate board meetings, and separate corporate minutes. He stated that the directors for First Health and First Health Courtland were the same. Vance said that, pursuant to Internal Revenue Service regulations, the two corporations filed a consolidated federal tax return form.
Vance stated that, as to the procedure for ordering hospital supplies, the day-to-day operation of the hospital was charged to the administrator, who submitted an administrator's report to the board of directors of First Health Courtland. He said that it was the responsibility of the administrator to order and purchase disposable supplies. At the beginning of each year, Vance said, the administrator had to submit a capital expenditure budget projection for the upcoming year. He stated that before equipment could be purchased, the administrator was required to demonstrate by a capital expenditure summary that it was financially feasible to purchase the equipment. Vance said that any equipment to be purchased in addition to the items of expenditure listed in the projected budget "were routed to us in Batesville for a decision."
Vance testified that he never told Dr. Blanton that he would receive payment for services from anywhere other than First Health Courtland. He said that the only *1334 time First Health became involved in any payment to First Health Courtland was in the spring of 1987; at that time, First Health obtained a loan to provide working capital for its subsidiaries. Vance said the loan was funded to First Health and "downstreamed to the subsidiaries." Vance testified that when a subsidiary corporation required capital to meet its payroll, another subsidiary might make an intercorporate transfer. However, he said that the transfers were not gifts and that the transferee corporation would be held accountable to the transferor corporation for the amount of the transfer. Vance stated that the money generated by the staff physicians at the Community Hospital of Courtland was deposited into the First Health Courtland account at the Citizens Bank of Courtland, and that funds generated by the hospital in Courtland were never transferred to First Health, save on one occasion when the hospital in Courtland was able to make an intercorporate transfer to First Health.
First Health does not dispute that First Health Courtland owes Dr. Blanton past-due wages. First Health argues only that it was error to disregard the corporate entity of First Health Courtland and to impose on First Health the liability of First Health Courtland, that is, to "pierce the corporate veil" of First Health Courtland. First Health states that, to pierce the corporate veil of First Health Courtland, Dr. Blanton must plead and prove 1) that First Health completely dominated the finances, policies, and business practices of First Health Courtland, 2) that First Health misused its control of First Health Courtland, and 3) that the misuse proximately caused Dr. Blanton's loss. First Health argues that Dr. Blanton failed to prove the first element and that he presented no proof of the second and third elements.
Piercing the corporate veil is not a power that is lightly exercised. The concept that a corporation is a legal entity existing separately from its shareholders is well settled in Alabama. Co-Ex Plastics, Inc. v. Alapak, Inc., 536 So. 2d 37 (Ala. 1988); Alorna Coat Corp. v. Behr, 408 So. 2d 496 (Ala.1981). The mere fact that an individual or another corporation owns all or a majority of the stock of a corporation does not, of itself, destroy the separate corporate entity. Messick v. Moving, 514 So. 2d 892 (Ala.1987); Forester & Jerue, Inc. v. Daniels, 409 So. 2d 830 (Ala.1982).
In certain situations, however, the corporate entity will be disregarded and limited stockholder liability will be denied. In Messick v. Moving, 514 So. 2d at 894, citing Piercing the Corporate Veil in Alabama: In Search of a Standard, 35 Ala. L.Rev. 311 (1984), this Court stated the following factors as typical justification for piercing the corporate veil: 1) inadequacy of capital; 2) fraudulent purpose in conception or operation of the business; or 3) operation of the corporation as an instrumentality or alter ego.
In this case, as in Messick, it is under the third theory that Dr. Blanton contends that the corporate entity should be disregarded. In Messick, we enunciated the standard to be applied to determine whether to disregard the corporate entity when the third theory is espoused:
514 So. 2d at 894-95.
The trial court held that Dr. Blanton should be allowed to disregard the corporate entity of First Health Courtland. Its order states in pertinent part:
Without commenting on the validity of First Health's first argument, that Dr. Blanton did not prove that First Health completely controlled and dominated the finances, policies, and business practices of First Health Courtland, we address its second argument, that Dr. Blanton did not present any proof that First Health misused its control, if any, of First Health Courtland or that the misuse of control proximately caused the unjust loss complained of by Dr. Blanton. Because we hold First Health's second argument to be meritorious, it is dispositive of this case.
As stated, First Health argues that Dr. Blanton presented no evidence that First Health misused its control or that such a misuse proximately caused Dr. Blanton's loss. We note that the trial court's order holds only that First Health controlled First Health Courtland and that it benefited from the services performed by the employees of First Health Courtland.[1] Having read the brief of Dr. Blanton and having thoroughly reviewed the trial court's findings, giving them the appropriate presumption of correctness, this Court does not find any evidence tending to prove that First Health misused its control, if any, of First Health Courtland, or that its misuse of control proximately caused Dr. Blanton's loss. Indeed, the only evidence relevant to this discussion tends to prove that First Health did not misuse its control of First Health Courtland.
Dr. Blanton stated numerous times, in his letters to David Vance and in his testimony at trial, that the staff physicians agreed to the interruptions in payments "due to the economic condition of the hospital." In his letter of 1987 to David Vance, Dr. Blanton stated that, since its inception, there was very little community interest in the Community Hospital of Courtland. In a January 1988 letter to Vance, in which Dr. Blanton asked for payment for past-due wages, Dr. Blanton stated:
Mere domination or control of a corporation by its stockholder cannot be enough to allow a piercing of the corporate veil. There must be the added elements of misuse of control and harm or loss resulting from it. Simmons v. Clark Equipment Credit Corp., 554 So. 2d 398 (Ala. 1989); Messick, supra. In the absence of any evidence that First Health misused its control, if any, of First Health Courtland, or that Dr. Blanton's loss resulted from a misuse of that control, the trial court, sitting without a jury, erred in disregarding the corporate entity of First Health Court-land.
*1336 Cf. Simmons v. Clark Equipment Credit Corp., supra.
Based on the foregoing, the judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, HOUSTON and INGRAM, JJ., concur.
[1] Naturally, as a stockholder in First Health Courtland, First Health would wish to benefit from the services of the employees of the corporation in which it holds stock. | August 16, 1991 |
a250107b-f099-4bf5-88b9-507a14f374c3 | Thomas v. Pepper Southern Const., Inc. | 585 So. 2d 882 | 1900119 | Alabama | Alabama Supreme Court | 585 So. 2d 882 (1991)
Rogers THOMAS and Ethel Thomas
v.
PEPPER SOUTHERN CONSTRUCTION, INC., and Sears, Roebuck & Company.
1900119.
Supreme Court of Alabama.
August 9, 1991.
*883 Thomas J. Knight, Anniston, for appellants.
George C. Douglas, Jr. of Gaines, Gaines & Gaines, Talladega, for appellees.
ADAMS, Justice.
The plaintiffs appeal from a summary judgment entered in favor of the defendants, Pepper Southern Construction, Inc. ("Pepper Southern"), and Sears, Roebuck & Company ("Sears"). Rogers and Ethel Thomas sought to recover damages for injuries Mr. Thomas received in an accident while working as an employee of Crestview Plumbing and Heating Company. Crestview was doing some work on the expansion of the Sears store building in Oxford, Alabama, when a trench caved in, resulting in injury to Mr. Thomas. His wife, Ethel Thomas, sued for damages for loss of consortium. The plaintiffs contend that Pepper Southern, as general contractor for the job, and Sears, as premises owner, both assumed the responsibility for the safety of the project and that they negligently performed their duties; therefore, the plaintiffs contend, the summary judgment should not have been entered.[1]
Pepper Southern and Sears, on the other hand, argue that the summary judgment was proper, because, they say, Crestview was an independent contractor.
We wrote the following in Pugh v. Butler Telephone Co., 512 So. 2d 1317 (Ala. 1987):
"Our standard of review of a summary judgment granted in favor of a defendant requires us to review the record in a light most favorable to the plaintiff and to resolve all reasonable doubts against *884 the defendant. Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986); Burt v. Commercial Union Insurance Co., 489 So. 2d 547 (Ala.1986); Autrey v. Blue Cross & Blue Shield of Alabama, 481 So. 2d 345 (Ala. 1985)."
512 So. 2d at 1318. Even considering the evidence in "a light most favorable to the plaintiff," we find that Crestview was an independent contractor and that no agency relationship existed between the parties to impose a duty on Pepper Southern and Sears with regard to the safety of Thomas. Therefore, for the reasons set forth below, we find that the summary judgment was proper.
This Court has set out the following rules:
Spell v. ConAgra, 547 So. 2d 501, 503 (Ala. 1989).
Alabama Power Co. v. Williams, 570 So. 2d 589, 591 (Ala.1990).
Weeks v. Alabama Elec. Co-op., Inc., 419 So. 2d 1381, 1383 (Ala. 1982).
Alabama Power Co. v. Williams, 570 So. 2d 589, 592 (Ala.1990).
In the present case, the depositions indicate that Pepper Southern had someone on the job site in order to make sure that the specifications of the job were carried out. The president of Crestview stated in his deposition that Crestview had control over the manner in which the job was performed, as long as the specifications in the contract were met. He further stated that Crestview had control over the number of employees that were maintained on the job site and that Crestview was responsible for the safety of its employees and the job area. The president of Crestview, as well as Mr. Thomas, stated that there were frequent *885 safety meetings held by someone with Pepper Southern. Mr. Thomas stated that at these meetings, the workers were reminded to wear their hard hats and safety shoes. He said that they were told that the failure to wear their hats and shoes would result in a $50 fine. Such meetings, however, do not indicate an exercise of control over the job site sufficient to present a jury question on this issue.
For the foregoing reasons, the judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur.
[1] The Thomases settled their dispute as it related to Crestview Plumbing; therefore, Crestview's liability is not at issue in this appeal. We note that because this case was pending on June 11, 1987, the "scintilla rule," and not the "substantial evidence rule," is the standard by which the propriety of the summary judgment in this case will be judged. See Ala.Code 1975, § 12-21-12. | August 9, 1991 |
b6a0108c-ec38-4961-be26-f1df42158cd1 | Bean v. State Farm Fire and Cas. Co. | 591 So. 2d 17 | N/A | Alabama | Alabama Supreme Court | 591 So. 2d 17 (1991)
Samuel L. BEAN III and Leigh Ann Bean
v.
STATE FARM FIRE AND CASUALTY COMPANY.
89-1732.
Supreme Court of Alabama.
August 23, 1991.
Rehearing Denied November 27, 1991.
*18 Hobart A. McWhorter, Jr., David G. Hymer and T. Michael Brown of Bradley, Arant, Rose & White, Birmingham, for appellant.
Bibb Allen, Jane G. Ragland and Rhonda K. Pitts of Rives & Peterson, Birmingham, for appellee.
HORNSBY, Chief Justice.
The opinion of May 24, 1991, is withdrawn and the following is substituted therefor:
Samuel L. Bean III and his wife, Leigh Ann Bean, appeal from a summary judgment in favor of State Farm Fire and Casualty Company. We affirm.
In August 1984, the Beans bought a house from Robert and Sue Burleson. At that time, BancBoston Mortgage Corporation held a mortgage on the house and the homeowner's insurance policy was with State Farm. When the Beans purchased the house, they assumed the mortgage. Included in the Beans' monthly mortgage payment was an amount to pay the insurance premiums, which BancBoston forwarded to State Farm.
On January 29, 1985, BancBoston mailed State Farm a letter directing it to change the name of the insured in the policy to reflect that the Beans were the new owners of the house. State Farm did not make the requested change and failed to take any other action in regard to the policy for over two and one-half years. During that time, State Farm accepted premium payments from BancBoston on behalf of the Beans. On August 6, 1987, Bobby Daily, a State Farm agent, apparently realized that State Farm had not changed the policy to reflect that the Beans were the owners of *19 the house. Daily mailed a letter, which included an insurance application, to the Beans, stating that they needed to complete the application in order to have the insurance on the house placed in their name.
Daily testified that he received no response from the Beans and that he was unsuccessful in several attempts to reach them by telephone. Daily eventually went to the Beans' house and photographed the property. Subsequently, Daily recommended that State Farm cancel the policy on the Beans' house on the grounds that there had been a material increase in risk because of what he termed the Beans' "poor housekeeping."
On September 10, 1987, State Farm mailed a certified letter to the Burlesons informing them that it was canceling the insurance policy on the house. State Farm also sent a letter to BancBoston informing it that the policy was being canceled. On September 26, 1987, BancBoston notified the Beans that State Farm had canceled the insurance coverage on their house and that, if they did not procure insurance of their own, then BancBoston would purchase insurance for the Beans. The Beans did not obtain any insurance; consequently, BancBoston purchased a 30-day insurance binder on the Beans' house from a different insurer. The Beans continued to make their mortgage payments, to which the amount to be used to pay an insurance premium had been added.
BancBoston subsequently sold the Beans' mortgage to Leader Federal Savings & Loan Association. Leader Federal tendered a check to State Farm in the amount of the insurance premium on the Beans' house for 1987. State Farm returned the check to Leader Federal. On February 26, 1988, a fire destroyed the Beans' house. The Beans submitted a claim to State Farm. After a State Farm claims committee reviewed the Beans' claim, it refused to pay the claim on the grounds that the Beans' insurance policy had been canceled on September 10, 1987.
On June 24, 1988, the Beans filed an action in the Jefferson County Circuit Court against State Farm, BancBoston, and Leader Federal. The complaint against State Farm alleged breach of contract, fraud, and bad faith refusal to pay a claim. The trial court issued a pretrial order on February 20, 1990. That order contained an agreed-to summary of the facts and a statement regarding each party's position and argument.
On April 30, 1990, State Farm filed a motion for summary judgment, contending that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. State Farm offered a brief in support of its motion for summary judgment, which relied on the terms of the policy at issue and on certain undisputed facts set out in the pretrial order. State Farm argued that it was undisputed that it had canceled the policy on the Beans' house, that the Beans had been notified of the cancellation on September 26, 1987, and that State Farm had not accepted any further premium payments on the policy after that date. These facts had been included in the February 20, 1990, pretrial order.
On May 9, 1990, in response to State Farm's motion for summary judgment, the Beans submitted a "Filing in Opposition to Motion for Summary Judgment." The trial court conducted a hearing on the motion for summary judgment on May 11, 1990. Although the Beans' "filing" stated that they relied upon the pretrial order, all depositions taken in the case, the answers to interrogatories, and a supplement to the pretrial order that the Beans had filed, no deposition was attached or submitted with the "filing."
On May 14, 1990, the trial court entered a summary judgment in favor of State Farm on the Beans' bad faith and fraud claims. In its order the trial court held that a summary judgment was due to be entered because there were no genuine issues of material fact and State Farm was entitled to a judgment as a matter of law. The pretrial order also stated that the Beans had voluntarily withdrawn their claim alleging breach of contract against State Farm, and the trial court dismissed that claim with prejudice.
*20 The Beans' claims against BancBoston and Leader Federal were tried before a jury. On May 18, 1990, the jury returned a verdict in favor of the Beans against Leader Federal for $80,000. The jury found in favor of BancBoston. The trial court entered a judgment in favor of the Beans against Leader Federal and in favor of BancBoston.
The depositions relied on in the Beans' "filing" in opposition to State Farm's motion for summary judgment were not actually submitted to the trial court until June 12, 1990, when the Beans filed a "Motion For Relief" regarding the trial court's order entering summary judgment in favor of State Farm on the Beans' bad faith claim.[1] At a hearing on July 11, 1990, the trial court overruled the Beans' motion. The Beans appeal the summary judgment on the bad faith claim, arguing that there was a genuine issue of material fact before the trial court. Specifically, the Beans argue that the trial court had before it "unrebutted" proof that the policy had been invalidly canceled and that State Farm had failed to investigate the reason for the cancellation when the Beans filed their claim. This "unrebutted" proof is allegedly based upon statements made in depositions by James McCain (a State Farm claims supervisor) and Bobby Daily.
This Court has repeatedly recognized that "`[t]he trial court can consider only that material before it at the time of submission of the motion' and that any material filed thereafter `comes too late.'" Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So. 2d 99, 101 (Ala. 1987) (quoting Osborn v. Johns, 468 So. 2d 103, 108 (Ala.1985)); Stallings v. Angelica Uniform Co., 388 So. 2d 942 (Ala.1980); Guess v. Snyder, 378 So. 2d 691, 692 (Ala. 1979). In reviewing a summary judgment, this Court is limited to the evidence that was before the trial court when it ruled on the motion for summary judgment. Prudential Ins. Co. of America v. Coleman, 428 So. 2d 593, 598 (Ala.1983).
Reviewing the record, we find that the depositions that the Beans relied upon in their "Filing in Opposition to Motion for Summary Judgment" were not presented to the trial court until after it had ruled on the motion for summary judgment. This fact was made clear at the May 14, 1990, pretrial hearing. At that hearing the attorneys for the Beans attempted to introduce into evidence the depositions cited in their "filing":
(Emphasis added.)
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering summary judgment. The rule requires the trial court to determine (1) that there is no genuine issue of material fact, and (2) that the moving party is entitled to a judgment as a matter of law. We further note that on a motion for summary judgment all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990). Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to go forward with evidence demonstrating the existence of a genuine issue of material fact. Grider v. Grider, 555 So. 2d 104 (Ala.1989).
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 from Schoen v. Gulledge, 481 So. 2d 1094 (Ala.1985)).
Because this action was filed after June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovants meet their burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test, the nonmovants 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); Ala.Code 1975, § 12-21-12(d). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
The record shows that the Beans failed to present to the trial court the depositions upon which they relied in their "filing." The trial court clearly explained why the evidence a party relies upon at the summary judgment stage must be presented when the motion or the response thereto is submitted to the trial court for consideration. The trial court can not consider evidence that is not before it. Therefore, we must look at the evidence that was available to the trial court at the time the motion for summary judgment was ruled upon and determine whether, based on that evidence, there was a genuine issue of material fact regarding the Beans' bad faith claim. See, e.g., Prudential Ins. Co. of America, supra.
The elements of a bad faith claim were summarized in National Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982):
(Emphasis in original.) See also Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala.1990).
The only evidence the trial court had before it at the time it considered State Farm's motion for summary judgment was the statement of undisputed facts set out in the February 20, 1990, pretrial order, namely, that State Farm had canceled the Beans' policy approximately five months before the fire, that BancBoston had notified the Beans on September 26, 1987, that the policy had been canceled, and that State Farm had not accepted any more premiums from BancBoston or Leader Federal on the Beans' behalf. These facts offered no inference that a contract of insurance existed between State Farm and the Beans when the fire occurred on February 26, 1988. The Beans, therefore, failed to meet their burden of proof in their bad faith claim against State Farm, because they offered no evidence that there was an insurance contract between the parties and that the insurer had breached that contract. National Security Fire & Cas. Co., 417 So. 2d at 183.
The Beans argue on appeal that the deposition of McCain provided substantial evidence that State Farm intentionally failed to investigate whether the Beans' policy had been wrongfully canceled. However, this evidence comes too late, because McCain's deposition was not presented to the trial court in time to be considered on State Farm's motion for summary judgment. Sheetz, Aiken & Aiken, 512 So. 2d at 101. We can not consider it for the first time on appeal. Osborn v. Johns, 468 So. 2d 103, 108 (Ala.1985); Prudential Ins. Co. of America, 428 So. 2d at 598.
The evidence before the trial court when it ruled on State Farm's motion for summary judgment could not be taken as "substantial evidence" of a bad faith failure to pay an insurance claim. There was no evidence before the trial court to indicate that a contract existed between the Beans and State Farm at the time of the fire; therefore, State Farm was entitled to a judgment as a matter of law. See, Thomas, supra. The judgment of the trial court is therefore affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The Beans did not challenge the summary judgment entered on their fraud claim. | August 23, 1991 |
80aa9549-4698-4d12-965b-65dd9810e8cf | Ex Parte Jones Mfg. Co., Inc. | 589 So. 2d 208 | 1900489 | Alabama | Alabama Supreme Court | 589 So. 2d 208 (1991)
Ex Parte JONES MANUFACTURING COMPANY, INC.
(Re STATE DEPARTMENT OF REVENUE v. JONES MANUFACTURING COMPANY, INC.
1900489.
Supreme Court of Alabama.
August 16, 1991.
*209 Ben F. Hayley and Norman P. Snell of Trimmier and Associates, P.C., Birmingham, for petitioner.
Ron Bowden, Chief Counsel, and Mark D. Griffin, Asst. Counsel, Revenue Dept., and Asst. Attys. Gen., for respondent.
Christopher R. Murvin and George M. Vaughn of Tingle, Sexton, Murvin, Watson & Bates, Birmingham, for amicus curiae Masada Communication, Inc.
ALMON, Justice.
The opinion of the Court of Civil Appeals, 589 So. 2d 206, sufficiently sets forth the facts of this case. The question presented is whether that court erroneously decided a question of first impression, that is, whether a taxpayer corporation that is not subject to recognition of a gain upon the sale of its assets is nevertheless subject to Alabama income tax based upon recapture of depreciation.
Alabama Code 1975, § 40-18-8(j),[1] reads:
The referenced section of the Internal Revenue Code ("I.R.C."), 26 U.S.C. § 337, reads, in pertinent part:
Thus, by adopting I.R.C. § 337 through § 48-18-8(j), the Alabama legislature has provided that corporations distributing all of their assets in a complete liquidation shall not recognize any gain on the sale of the assets. It is undisputed in this case that the sale of all of the stock of Jones Manufacturing Company to another corporation was a complete liquidation within the meaning of I.R.C. § 337 and that Jones Manufacturing complied with all of the requirements of that section so as to avoid the recognition of any gain. See also I.R.C. § 338 and Ala.Code 1975, § 40-18-8(k) (1990 Supp.; formerly § 40-18-8(l)).
Section 1245 of the I.R.C., however, requires a federal taxpayer to recognize a *210 gain on the disposition of certain depreciable property; this recognition of gain is known as "recapture of depreciation." For example, if the fair market value of the property exceeds the depreciated basis, that difference is treated as a gain recognized upon the disposition of the property, and is taxed accordingly. § 1245(a)(1)(B)(ii). Section 1245(a)(1) provides that "Such gain shall be recognized notwithstanding any other provision of this subtitle." Sections 337 and 1245 are both part of I.R.C. Subtitle A, "Income Taxes." Therefore, § 1245 requires the recognition of gain known as recapture of depreciation notwithstanding the provision of § 337 that no gain shall be recognized upon a complete liquidation.
Jones Manufacturing owned depreciated assets that were subject to recapture of depreciation, and on its federal income tax return for 1984 it paid taxes on the gain recognized pursuant to § 1245. On its Alabama income tax return, however, it claimed a refund of estimated taxes that had been paid. The Department of Revenue disallowed a portion of the refund, based on its position that Jones Manufacturing was required to recapture the depreciation on the state return as it had on its federal tax return.
Alabama Code 1975, § 40-18-35(6), allows, as a deduction from corporate income for income tax purposes, "[a] reasonable allowance for the exhaustion, wear and tear of property used in the trade or business, including a reasonable allowance for obsolescence." To implement that section, the Department has adopted its Regulation 810-3-15-.05, "Depreciation." Paragraphs (8) and (9) of that regulation provide that depreciation computed according to the declining balance method, the sum of the years digits method, or the accelerated cost recovery system, "in the same manner and with the same limitations as provided for federal income tax returns, will be considered a `reasonable allowance'" within the meaning of § 40-18-35. Paragraph (10) then provides:
The Department contends that it has adopted federal depreciation methods as an interlocking system, and that recapture of depreciation is a necessary part of that system and must be implemented along with the depreciation expense deduction. That argument is probably valid for ordinary sales of depreciated property. The problem here occurs because the legislature has statutorily adopted I.R.C. § 337, which prevents the recognition of a gain on a complete liquidation or a sale of all assets, and because recapture of depreciation, in the very terms of I.R.C. § 1245, is a recognition of gain. The Alabama legislature has not, however, statutorily adopted I.R.C. § 1245, so the portion thereof that allows recapture of depreciation notwithstanding the nonrecognition provision of I.R.C. § 337 has not been statutorily adopted in this state.
The provisions of a statute will prevail in any case of a conflict between a statute and an agency regulation. Ex parte State Dep't of Human Resources, 548 So. 2d 176 (Ala.1988). An administrative regulation must be consistent with the statutes under which its promulgation is authorized. Ex parte City of Florence, 417 So. 2d 191 (Ala.1982). An administrative agency cannot usurp legislative powers or contravene a statute. Alabama State Milk Control Bd. v. Graham, 250 Ala. 49, 33 So. 2d 11 (1947). A regulation cannot subvert or enlarge upon statutory policy. Jefferson County Bd. of Ed. v. Alabama Bd. of Cosmetology, 380 So. 2d 913 (Ala.Civ.App.1980). Regulation 810-3-15-.05(10) therefore cannot override Ala. Code 1975, § 40-18-8(j).
The Department asserts that Ala.Code 1975, § 40-18-57, gives it statutory authority for its application of recapture principles to this complete liquidation. Section 40-18-57 reads:
This general grant of regulatory authority, however, cannot override the specific provision of § 40-18-8(j), which, by adopting I.R.C. § 337, has specifically provided that a taxpayer corporation shall not be required to recognize a gain upon the sale of all its assets.
If we were to accept the Department's contention that § 40-18-57 gives it the authority to override § 40-18-8(j), a conflict between the two statutes would be created. Statutes should be construed together so as to harmonize the provisions as far as practical. Siegelman v. Folmar, 432 So. 2d 1246 (Ala.1983). In the event of a conflict between two statutes, a specific statute relating to a specific subject is regarded as an exception to, and will prevail over, a general statute relating to a broad subject. Murphy v. City of Mobile, 504 So. 2d 243 (Ala.1987); Bouldin v. City of Homewood, 277 Ala. 665, 174 So. 2d 306 (1965). We do not see a conflict between § 40-18-57, which generally gives the Department authority to make regulations concerning gains and incomes, and § 40-18-8(j), which specifically adopts the federal law that a taxpayer corporation does not recognize a gain upon a sale of all assets. The former does not authorize the Department to violate the latter. Even if a conflict were found, the latter statute would govern as to its specific field of operation.
For the foregoing reasons, we hold that the Court of Civil Appeals erred in holding that Jones Manufacturing was required to report a gain in the nature of recapture of depreciation upon the sale of all of its stock.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
STEAGALL, J., dissents.
INGRAM, J., recused.
HOUSTON, Justice (concurring specially).
I concur.
I write only to address the last point made in the opinion of the Court of Civil Appeals:
I cannot agree that reenactment without change is any more indicative of legislative intent than is failure to enact legislation; and I agree with Justice Scalia, who, in his dissent in Johnson v. Transportation Agency, 480 U.S. 616, 107 S. Ct. 1442, 1473, 94 L. Ed. 2d 615 (1987), wrote:
There is substantially that same complicated check on legislation in the Legislature of Alabama as in the Congress of the United States, with the exception that the Legislature of Alabama is never guilty of "political cowardice."
STEAGALL, Justice (dissenting).
I respectfully dissent. I believe that the regulation of the Department of Revenue requiring recapture of depreciation upon the sale of property is a reasonable exercise of the authority granted the Department *212-218 by the Legislature. I would not reverse the judgment of the Court of Civil Appeals.
[1] This version of § 40-18-8(j) was not in effect at the time of the 1984 tax year in question, see Acts 1985, No. 85-515, § 7. However, it has consistently been treated by the parties and the lower courts as being applicable, and the State does not even now argue that any other provision should be applicable to the tax return in question. Therefore, we shall consider the quoted provision as being applicable, under the doctrine of the law of the case. Louisville & N. R.R. v. Atkins, 435 So. 2d 1275, appeal after remand, 440 So. 2d 559 (Ala.1983). | August 16, 1991 |
af130f6e-3137-4f67-8ea1-17467f368b41 | Ex Parte Farrell | 591 So. 2d 444 | 1900673 | Alabama | Alabama Supreme Court | 591 So. 2d 444 (1991)
Ex parte Janet Marie FARRELL.
(Re Janet Marie Farrell v. State.)
1900673.
Supreme Court of Alabama.
August 16, 1991.
*445 Jon R. Sedlak, Decatur, and Brent M. Craig, Moulton, for petitioner.
James H. Evans, Atty. Gen., and Jean A. Therkelsen, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
Janet Marie Ferrell[*] was convicted of first degree robbery and was sentenced to serve 20 years in the penitentiary. The Court of Criminal Appeals affirmed her conviction and sentence with an unpublished memorandum opinion. We granted certiorari review to address whether the Court of Criminal Appeals erred by affirming the judgment of the trial court on any of three grounds raised in Janet's petition for certiorari:
Because of our resolution of the first two issues, we need not address the third; by not addressing that issue, however, we do not mean to imply that we agree with the ruling of the Court of Criminal Appeals on that issue.
In February 1989 Janet was an 18-year-old resident of Heidelberg, Mississippi, where she lived with her mother and was a senior in high school. Two weeks prior to the February 15, 1989, robbery that this case concerns, she met Fred Jones in Meridian, Mississippi, and they started dating. Jones and Janet were in Tchula, Mississippi and he convinced her to go to Louisville, Kentucky, with him, Ruby Jordan, who was an acquaintance of Janet's, and Jones's former *446 girlfriend, Nina. All four are black. Jones testified that he told Janet that it would take "an hour or two" to drive to Louisville, although it was actually a 10- to 11-hour drive. Janet testified that she did not drive, did not have a driver's license, and had intended to go to school that day.
Jones testified that while returning from Louisville, he and Ruby discussed committing a robbery; he further testified that Janet knew nothing about their plan to commit a robbery until after he and Ruby had committed it. They stopped at Bud's convenience store in Morgan County, Alabama; one female clerk was working in the store.
The clerk testified that around 11:00 p.m., a black male and a black female came into the store; that the male made her open the cash register; that he took all the money; that the male then told her to go to the store's office; that during all these events the female stood in front of the counter; that when the clerk and the male started going to the office, the female followed and all three went into the office; that the male tied her up with shoestrings; that the male and the female took her purse and jewelry; that the male and the female left the office; and that after that she heard two female voices. The clerk was found shortly after the robbers left, and she provided information about the robbers' automobile. While riding in the automobile that the clerk described, Jones, Ruby, and Janet were stopped by law enforcement officers, and they were then arrested for the robbery; Jones's former girlfriend was not with them when they were arrested.
At trial, the clerk at one point identified Janet as the female who had accompanied the male who had robbed her; later in the trial, the clerk contradicted herself and identified Ruby as the female who had accompanied the male who had robbed her.
Jones, whose trial for first-degree robbery was pending at the time of his testimony in Janet's trial, testified that Janet remained in the automobile while he and Ruby robbed the clerk and tied her up; that Janet did not leave the automobile until he, still armed with the pistol, told her to help Ruby bring out some food and beer; and that when Ruby dropped some of the beer on her way out of the store, Janet picked it up and brought it to the automobile. He also testified that he and Janet no longer date each other.
The trial court charged the jury concerning aiding and abetting, conspiracy, and complicity. One of Janet's objections to the jury charge was:
Section 13A-2-23, Ala.Code 1975, provides as follows on complicity:
(Emphasis added.)
Accordingly, Janet properly preserved for review the issue of whether the trial court instructed the jury on intent to promote or assist the commission of the offense as an element of complicity.
The complicity statute on its face requires that for a person to be legally accountable for another's behavior that constitutes a criminal offense, the individual accused of complicity must intend to promote or assist the commission of the offense. The record indicates that the trial court in its jury charge never defined complicity and never instructed the jury that the requisite intent described above was an element of complicity.
*447 The State contends that the trial court's charge to the jury, when considered and construed as a whole, sufficiently instructed the jury on the elements of complicity and thus that any error would be harmless. In so arguing, the State sets out in its brief a substantial portion of the relevant parts of the jury charge, but it does not set out all the relevant portions, which is what the State asks us to consider.
The trial judge mentioned complicity twice in his charge: once when he instructed the jury that it was to determine if there was complicity and once at the very beginning of the relevant portion of the jury charge, when he stated that "aiding and abetting" was "sometimes referred to as conspiracy and sometimes complicity."
The latter statement was legally incorrect. "Aiding and abetting" is one possible element of complicity. § 13A-2-23(2). Conspiracy is a crime in and of itself, independent of complicity. § 13A-4-3. Complicity is a theory for imposing criminal culpability, for which aiding and abetting may be an element. § 13A-2-23.
Furthermore, consider the effect of the trial court's equating complicity with aiding and abetting in light of the charges that the trial court gave on aiding and abetting:
In those charges on aiding and abetting, the trial court charged that if an individual aids and abets, he is as guilty as the principal. The trial court did not mention intent at all in those charges. Thus, the jury was instructed that aiding and abetting is the same as complicity and that the act of aiding and abetting alone, without regard to intent, was a basis for determining that Janet was guilty.[1]
Considering the charge as a whole certainly does not help the State's case. To be sure, the trial court mentioned intent four times during the charge: twice in relation to conspiracy, once in relation to aiding and abetting, and once in relation to "common enterprise." In relation to aiding and abetting, it charged that "Any word or act contributing to the commission of a felony, intended and calculated to encourage its accomplishment, brings the accused within this section." The trial court never read to the jury the "section" it was charging on,[2] however, and furthermore, immediately before that charge, it stated, "These are just statements of law you may find useful, you may not." Accordingly, even if the charge had otherwise been clear and sufficient on intent in complicity (it was not), the statement before the charge on intent made it unclear whether intent was required.
The closest the trial court came to charging on intent in complicity was when it charged as follows on "common enterprise":
Considering the charge as a whole, the trial court did not properly instruct the jury as to intent as an element of complicity. *448 § 13A-2-23. The trial court therefore erred, and the Court of Criminal Appeals erred in affirming the trial court's judgment.
Janet also argues that the trial court erred in denying her petition for youthful offender status. Before Janet was arraigned, the trial court entered an order denying the youthful offender petition, stating simply: "After investigation, the youthful offender petition is denied." That petition was denied without a hearing or any oral testimony, neither of which appears to be required under current law, Watkins v. State, 357 So. 2d 156 (Ala.Crim. App.1977), cert. denied, 357 So. 2d 161 (Ala. 1978). The investigation to which the trial court's order referred was made by a probation officer, who filed a document with the trial court entitled "youthful offender report of investigation" ("youthful offender report"). The prosecution presented no evidence concerning Janet's youthful offender petition. The only evidence that the trial court had before it at the time it denied Janet's petition was the youthful offender report and some letters that were sent to it from Janet's high school teachers and principal. We will discuss those letters presently.
The youthful offender report indicated that Jones and Ruby went into the store and robbed and tied the clerk; that Jones was armed with a pistol; that Janet did not leave the automobile until all of these events had occurred; that she entered the store and helped carry "cigarettes and other store goods" to the automobile; that Janet had no prior convictions, either misdemeanor or felony; that Janet had no prior arrests, either for a misdemeanor or for a felony; that Janet lacked nine weeks completing her senior year in high school at the time she left with Jones to go to Louisville; that she completed the necessary course work to graduate while in the Morgan County jail; that there was a detainer on file from the Louisville, Kentucky, police department for another robbery Janet said occurred on the same trip; that Janet thought the trip to Louisville would only take two hours; that, in the probation officer's opinion, Janet found herself in a situation over which she had little control once she left Mississippi; that her mother and stepfather had moved to Chicago and wanted her to come live with them and go to college; that her family stayed in constant contact with Janet and were especially concerned with her legal situation; that it was the probation officer's opinion that the best interests of society would not be served by trying Janet as an adult; and that he therefore recommended that the trial court grant Janet's petition for youthful offender status.
The record contains letters that were sent to the trial court from Janet's high school teachers and principal before the youthful offender petition was denied, including a letter from her homeroom teacher/sponsor detailing her overall grade average of 83 and stating: "Janet is doing well in all her classes and is not a discipline problem. She has the units to graduate in May of this year. In homeroom, Janet is a model student, arriving on time and never causing any kind of disturbance"; a letter from her history teacher calling her "one of my better students" and describing her conduct as "great and admirable"; a letter from her American government teacher saying that she seemed to show leadership qualities and describing her as "an asset to our school system"; a letter from Janet's guidance counselor referring to her as an "ideal student" and stating that she had "always conducted herself in a pleasing way"; and a letter from her principal stating, "Janet Ferrell has conducted herself at Heidelberg High School in a very positive way during this school year. She has not posed a discipline problem of any nature during her stay here in school."
Consider the nature of the fact situation on which the charge against Janet is based. Remember, at the time the trial court denied the petition, the only evidence that the trial court had before it concerning the nature of the fact situation on which the charge against Janet was based came from the youthful offender report. That report indicated that Janet's only participation in the robbery was carrying "cigarettes and other goods" to the automobile *449 after Jones and Ruby had robbed and tied the clerk. Considering the nature of the fact situation on which the first degree robbery charge was based, as that fact situation was described before arraignment to the trial court in the youthful offender report, the unanimously positive comments about Janet, and the fact that the record indicates that no evidence was presented concerning the youthful offender petition other than the letters and the youthful offender report, one must conclude that the reason the trial court denied the petition was the perceived severity of the charge itself, first degree robbery.
The statutory provisions concerning youthful offenders are set out at § 15-19-1 et seq. Section 15-19-1 provides:
Accordingly, the Legislature has provided that first degree robbery is a charge for which Janet could petition for youthful offender status. See §§ 13A-8-41(c) and 13A-5-6(a)(1) and (a)(4).
If the Legislature provides for and permits youthful offender protection in regard to a criminal charge, then it makes no sense for the judiciary to deny that protection because of that same criminal charge in and of itself. Indeed, such a judicial ruling would make it impossible for the accused to acquire the protection that the Legislature has afforded, because the very charge serving as the basis for allowing the youthful offender petition in the first place would also be used as the reason for denying it. Accordingly, we hold that a criminal charge in and of itself cannot be used as the sole basis for properly denying a petition for youthful offender status. Thus, it was improper for the trial court to deny Janet's petition for youthful offender status based solely on the charge in and of itself.
We are not saying that the nature of the fact situation on which a charge is based cannot be, in itself, a sufficient reason for denying youthful offender status; to the contrary, we hold that the nature of the fact situation on which a charge is based may, alone, be a sufficient reason for denying youthful offender status. For example, if a minor is charged with first degree assault for beating an elderly person nearly to death with a baseball bat, then the nature of the fact situation on which the first degree assault charge is based could be, in itself, a sufficient reason for properly denying a petition for youthful offender status, although the first degree assault charge in and of itself could not be the basis for denying that petition. If, in this case, Janet had had the pistol, the nature of the fact situation on which the charge was based might have been in itself a sufficient reason for denying her youthful offender petition, although the first degree robbery charge in and of itself could not be the basis for denying that petition. The Court of Criminal Appeals may have hinted at that distinction in Watkins, without saying it in those words.
As we have discussed, we must conclude that the trial court denied Janet's petition solely because she was charged with first degree robbery. Also, as we have discussed, that was improper. At the time the trial court considered Janet's petition, the evidence before the trial court concerning the nature of the fact situation on which the charge was based did not support a denial of the petition. The record does not otherwise support the trial court's ruling; instead, pursuant to current law, under the particularly compelling facts of this case, the record indicates that Janet's petition for youthful offender status was due to be granted.[3]
*450 Accordingly, the trial court erred both in its charge to the jury and in denying Janet's petition for youthful offender status. The judgment of the Court of Criminal Appeals affirming the conviction is due to be reversed and the cause remanded. The Court of Criminal Appeals is instructed to remand the cause to the trial court with instructions to enter an order granting Janet Ferrell's petition for youthful offender status and to conduct further proceedings necessary to the disposition of the case under the youthful offender statutes.
REVERSED AND REMANDED WITH INSTRUCTIONS.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
[*] Reporter of Decisions' note: This defendant's case was styled "Farrell" in the Court of Criminal Appeals, and her petition to the Supreme Court was styled "Farrell." See 575 So. 2d 1252 and 579 So. 2d 708. However, throughout her brief filed with the Supreme Court and in many instances in the record, including instances where she signed her own name, her name was spelled "Ferrell."
[1] The trial court defined "aiding and abetting" as "all assistance rendered by acts, or words of encouragement, or support, or presence, actual, or constructive, to render assistance should it become necessary."
[2] The only "section" that the trial court read in the relevant portion of the charge was Ala.Code 1940, Title 14, § 14, a repealed provision dealing with "principals" and "accessories." That repealed section does not mention "intent."
[3] We have not announced a standard of review in youthful offender cases and find it unnecessary to do so in this case. The Court of Criminal Appeals states the standard as "almost absolute discretion." E.g., Morgan v. State, 363 So. 2d 1013 (Ala.Crim.App.1978). | August 16, 1991 |
aa53a619-1186-4e77-ae8e-68f7dbacce0f | Hilliard v. City of Huntsville | 585 So. 2d 889 | 1900279 | Alabama | Alabama Supreme Court | 585 So. 2d 889 (1991)
Steve Wilson HILLIARD, as personal representative and administrator of the Estates of Darlene Cobb Hilliard, Santana Darlene Hilliard, and Steve William Hilliard, deceased
v.
CITY OF HUNTSVILLE.
1900279.
Supreme Court of Alabama.
August 9, 1991.
Douglas J. Fees of Morris, Smith, Siniard, Cloud & Fees, Huntsville, for appellant.
Clyde Alan Blankenship, Kerri J. Wilson and Mary Ena J. Heath, Huntsville, for appellee.
Kenneth Smith, Montgomery, for amicus curiae Ala. League of Municipalities, in support of the appellee.
INGRAM, Justice.
Steve Wilson Hilliard sued the City of Huntsville ("the city"), alleging that the city had negligently inspected the wiring in an apartment complex occupied by Hilliard and his family and that an electrical fire at that apartment complex had claimed the *890 lives of his wife and his two children just over a month after the city's inspection.
In addition to the city, Hilliard named as defendants in the suit the owner of the apartment complex, Philip Kromis; the electrical contractor that installed the wiring, Landman Electric Company, Inc.; and the Utilities Board of the City of Huntsville ("Huntsville Utilities"). Hilliard effected a settlement with Kromis and Landman Electric, and they were dismissed as defendants, leaving the city and Huntsville Utilities as the remaining defendants.
Hilliard's complaint, as finally amended, included two causes of action against the city: (1) negligence and/or wantonness and (2) nuisance. In response to Hilliard's complaint, the city filed a motion to dismiss or, in the alternative, for judgment on the pleadings, and a motion for summary judgment. After oral argument on the motions, the trial court entered a judgment on the pleadings in favor of the city as to both of Hilliard's causes of action.[1] Hilliard appealed.
The issue raised in this appeal is whether the trial court erred in entering a judgment on the pleadings on Hilliard's negligence and/or wantonness claim and on the nuisance claim.
With regard to the negligence and/or wantonness claim, we recognize that before liability for negligence can be imposed upon a governmental entity, there must first be a breach of a legal duty owed by that entity. Shearer v. Town of Gulf Shores, 454 So. 2d 978 (Ala.1984). In determining whether a claim is valid, the initial focus is upon the nature of the duty. Rich v. City of Mobile, 410 So. 2d 385 (Ala.1985). There must be either an underlying common law duty or a statutory duty of care with respect to the alleged tortious conduct.
For a number of years in Alabama, municipal liability was predicated upon the negligent performance of a proprietary, as opposed to a governmental, function. See, e.g., Hillis v. City of Huntsville, 274 Ala. 663, 151 So. 2d 240 (1963); City of Bay Minette v. Quinley, 263 Ala. 188, 82 So. 2d 192 (1955). Where the function in question was conferred not for the immediate benefit of the municipality, but rather "`as a means to the exercise of the sovereign power for the benefit of all citizens,'" no liability would extend to a municipal corporation for a failure to use its power well or for an injury caused by using it badly. Hillis, 274 Ala. at 667, 151 So. 2d 240, quoting City of Bay Minette v. Quinley, 263 Ala. 188, 82 So. 2d 192 (1955).
However, in 1975, this Court abolished the doctrine of municipal immunity in Jackson v. City of Florence, 320 So. 2d 68 (Ala. 1975). The abolition of sovereign immunity in Jackson did not create any new causes of action for activities that are inherently governmental in nature, but rather gave full effect to a municipal liability statute enacted by the legislature many years earlier. See § 1207, Ala.Code 1907. That statute, presently codified at § 11-47-190, Ala.Code 1975, provides, in part:
The Court's ruling in Jackson eliminated the distinction between governmental and proprietary functions, making municipalities liable for negligent performance of a number of activities for which they had previously been immune, thus allowing "the will of the legislature, so long ignored, [to] prevail." 320 So. 2d at 74. The Jackson Court expressed the hope that the legislature would provide, through legislation, additional limitations and protections for governmental bodies.
However, instead of the legislature, it was this Court that next addressed the *891 extent of a municipality's liability for damage resulting from its agent's negligent inspection or negligent failure to inspect; that was in Rich v. City of Mobile, supra. The allegations by the plaintiffs in Rich are virtually identical to the allegations by Hilliard in the present case. The Rich complaint alleged that city plumbing inspectors had failed to require the installation of proper materials; had failed to assure that no leaks existed; and had failed to require that the plumbing be installed according to the standard plumbing code. The plaintiffs alleged that the city had made three negligent preliminary inspections and had wholly failed to make a final inspection of the lines and connections. The plaintiffs attempted to characterize those actions as the breach of a duty to the individual homeowners, to which liability attaches.
The Rich Court initially noted that cases from other jurisdictions considering the duty owed by municipal inspectors had resulted in two distinct lines of reasoning. The Court cited Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976), Adams v. State, 555 P.2d 235 (Alaska 1976), and Campbell v. City of Bellevue, 85 Wash. 2d 1, 530 P.2d 234 (1975), as cases in which municipalities had been held liable for negligently inspecting a building. Other jurisdictions had rejected municipal liability for negligent inspections. The Court cited Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972), Besserman v. Town of Paradise Valley, Inc., 116 Ariz. 471, 569 P.2d 1369 (Ariz.App.1977), and Georges v. Tudor, 16 Wash. App. 407, 556 P.2d 564 (1976), for this latter proposition.
In reaching its holding in Rich, the Court followed the latter line of above-noted cases and refused to hold that the duty imposed upon city plumbing inspectors was owed to individual homeowners. Consequently, the breach of such a duty, the Court held, would not support an action for damages. The Court ruled that substantive immunity applies to those public service activities of municipalities "so laden with the public interest as to outweigh the incidental duty to individual citizens." Rich, 410 So. 2d at 387-88. The Court further opined that public policy considerations
Id. at 387.
In the present case, Hilliard argues that the trial court erred in relying upon Rich because, he argues, that case was limited to facts identical to the facts of that case. Hilliard contends that the facts in this case do not fall within the ambit of the Rich holding. We disagree.
The present case is precisely the type of case in which the substantive immunity rule applies. The city, like most municipalities, elects to perform electrical inspections as a benefit to itself and to the general public. While individuals receive a benefit from these inspections, that benefit is merely incidental to the benefit derived by the citizens in general. Although an individual driver benefits by the state's testing and licensing of drivers of motor vehicles, the state in so testing and licensing drivers does not guarantee to individual drivers that all licensed drivers are safe drivers. See Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn.1975).
In arguing that Rich is inapplicable to the present case, Hilliard attempts to draw a distinction between sewer inspections and electrical inspections, arguing that the sewer inspection in Rich involved a duty owed to the public at large and that the inspection in the present case, because it was of the electrical system in one apartment building, was a duty owed to the individual apartment residents. However, this is a distinction without a difference. We find no merit in this argument. The purpose behind both inspections is the same: to ensure compliance with municipal codes.
Hilliard cites several cases that he says indicate the reluctance of Alabama courts to apply the Rich holding. See Town of *892 Leighton v. Johnson, 540 So. 2d 71 (Ala.Civ. App.1989); City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985); Williams v. City of Tuscumbia, 426 So. 2d 824 (Ala.1983). However, each of these cases involved facts materially different from those of Rich and those of the present case. For instance, Hilliard cites Town of Leighton v. Johnson, supra, as showing the limits of Rich. However, in Johnson, the city created the defect that caused the injury by knocking a hole in a manhole cover and thereby allowing raw, untreated sewage to flow into a drainage ditch near the plaintiff's property. Alabama municipalities have long been held liable for damages caused by negligent operation and maintenance of sewers and drains under their control. See Sisco v. City of Huntsville, 220 Ala. 59, 124 So. 95 (Ala. 1929). Thus, in Johnson, the Court of Civil Appeals merely refused to hold that the substantive immunity rule changed the tort laws governing municipal operations.
Clearly, the same policy considerations that prevailed in Rich are equally compelling in this case. Although inspections performed by the city's electrical inspectors are designed to protect the public by making sure that municipal standards are met, and although they are essential to the well-being of the governed, the electrical code, fire code, building code, and other ordinances and regulations to which Hilliard refers are not meant to be an insurance policy or a guarantee that each building in the city is in compliance. While Hilliard calls to our attention the inherent danger of electricity, it is precisely because of the dangerous nature of that element that immunity should be granted to a municipality that, although not required by law to do so, chooses to provide for the public health, safety, and general welfare of its citizenry through the regulation of this inherently dangerous element.
The fact that the law does not mandate that a municipality provide inspections in order to protect the lives and property of its residents tends to increase the probability that the imposition of tort liability in this area would serve only to destroy the municipality's motivation or financial ability to support this important service. For these reasons, the same public policy considerations that led to the substantive immunity rule of Rich necessitate its extension to the facts of this case. Therefore, while we sympathize with Hilliard's tragic loss, we are compelled to conclude that the trial court did not err in entering a judgment on the pleadings on Hilliard's claim of "neglectful, careless, unskillful, negligent or wanton" inspection of the wiring at the apartment complex where he and his family resided.
With regard to Hilliard's allegation of wantonness, we conclude that the motion for a judgment on the pleadings was due to be granted on grounds unrelated to substantive immunity. Section 11-47-190 limits the liability of municipalities to injuries suffered through "neglect, carelessness or unskillfulness." Neighbors v. City of Birmingham, 384 So. 2d 113 (Ala.1980). To construe this statute to include an action for wanton conduct would expand the language of the statute beyond its plain meaning. For this reason, Hilliard's claim of wantonness was properly dismissed.
Hilliard's nuisance claim is based upon the same allegations contained in the negligence count of his complaint. Section 6-5-120, Ala.Code 1975, broadly defines a "nuisance" as "anything that works hurt, inconvenience or damage to another," and provides that "[t]he fact that the act done may otherwise be lawful does not keep it from being a nuisance." As a general rule, liability for damages caused by a nuisance does not depend upon proof of negligence and may exist even though there has been no negligence. Terrell v. Alabama Water Service, 245 Ala. 68, 15 So. 2d 727 (1943). However, an actionable nuisance claim against a municipality is dependent upon the plaintiff's ability to maintain a claim under § 11-47-190.
In City of Bessemer v. Chambers, 242 Ala. 666, 8 So. 2d 163 (1942), this Court considered whether, in addition to an action alleging liability arising under what is now § 11-47-190, an independent nuisance action could be maintained against a municipality.
*893 The Court answered in the negative, stating that "the limitation of liability in that statute necessarily means to exclude liability on any other count." Chambers, 242 Ala. at 669, 8 So. 2d at 165. Therefore, it follows that the viability of a negligence action against a municipality under § 11-47-190 determines the success or failure of a nuisance action based upon the same facts. Thus, we conclude that because the city is entitled to the benefit of the substantive immunity doctrine enunciated in Rich with regard to Hilliard's negligence claims asserted under § 11-47-190, his action for nuisance must also fail.
In view of the foregoing, we hold that the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] The court made that judgment final pursuant to Rule 54(b), A.R.Civ.P. Huntsville Utilities remains a defendant at the trial court level. | August 9, 1991 |
a4b24c52-04d1-49fd-836c-108d3347ccda | Brigman v. Dejute | 593 So. 2d 51 | 1900579 | Alabama | Alabama Supreme Court | 593 So. 2d 51 (1991)
John K. BRIGMAN and JoAnn Brigman
v.
Frank DEJUTE.
1900579.
Supreme Court of Alabama.
August 23, 1991.
Rehearing Denied January 24, 1992.
W. Lee Thuston and Mac B. Greaves of Sadler, Sullivan, Herring & Sharp, Birmingham, for appellants.
Lisa A. Wright of Berkowitz, Lefkovits, Isom & Kushner, Birmingham, for appellee.
HORNSBY, Chief Justice.
John K. Brigman was the sole shareholder of A.T.F. Trucking, Inc. ("A.T.F."). On June 3, 1987, Brigman entered into a contract with J.C. Holding, Inc., for the sale of A.T.F. for $450,000. As part of that agreement, $250,000 of the purchase price was placed in escrow accounts to cover the cost *52 of undisclosed liabilities and any contingent tax liabilities.
Frank Dejute, the president of J.C. Holding, executed the sales contract individually and in his capacity as president. On June 29, 1988, the contract was amended by a "letter agreement." This letter agreement was made "between Frank Dejute and John Brigman and JoAnn Brigman."[1] Among the provisions of the letter agreement was the following: "The parties agree that with respect to the Transcon Assurance litigation against A.T.F. and others, A.T.F. will assume all liability for this litigation and pay all sums necessary to settle or resolve this litigation."
The Brigmans allege that on February 8, 1989, a settlement was reached in the litigation involving A.T.F. and Transcon Assurance ("Transcon"). The terms of the settlement were that Transcon would dismiss all of its claims against A.T.F. and the Brigmans in exchange for $43,500. The Brigmans claim that pursuant to the terms of the letter agreement, they made numerous demands upon Dejute for payment of the settlement but that he refused. The Brigmans say that because Dejute refused to honor the letter agreement they were forced to pay the $43,500 in settlement of the Transcon litigation.
On May 22, 1989, the Brigmans filed a complaint against A.T.F. and Dejute, alleging breach of contract, fraud, intentional misrepresentation of a material fact, and fraudulent suppression of a material fact.[2] On May 24, 1989, A.T.F. filed for bankruptcy. The Brigmans pursued their claim against Dejute individually. Dejute moved for summary judgment on the grounds that the letter agreement was between the Brigmans and A.T.F. and did not involve Dejute in an individual capacity.
In support of his motion, Dejute filed his own affidavit and the affidavit of the lawyer who drafted the letter agreement. In his affidavit, Dejute stated that the parties did not intend that Dejute personally assume liability for the payment of the Transcon settlement and that he never promised to assume personal liability. The drafting lawyer said that the letter agreement was intended as a contract between the Brigmans and A.T.F., and that there was no intent to include Dejute individually. In opposition to Dejute's motion for summary judgment, the Brigmans filed their own affidavits, wherein they stated that the parties intended for the "letter agreement" to be between the Brigmans and A.T.F. and Dejute as an individual.
On November 28, 1990, the trial court entered a judgment in favor of Dejute. The trial court's order stated:
"That neither the letter agreement of June 29, 1988, nor the lease agreement of July 1, 1988, contains any obligation or agreement by Frank Dejute which [is] enforceable or cognizable under the complaint filed by the [Brigmans] herein. That all claims raised in said dispute pertain to the commercial lease of which *53 Frank Dejute was not a party or the letter agreement in which Frank Dejute did not agree to be bound by the terms of the lease.
The Brigmans appeal on the grounds that the trial court erred in entering a judgment in favor of Dejute because, they say, there was a genuine issue of material fact regarding the capacity in which Dejute was acting when he entered the "letter agreement" and regarding the question whether there was of fraud and misrepresentation. We affirm.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering summary judgment. The rule requires the trial court to determine (1) that there is no genuine issue of material fact, and (2) that the moving party is entitled to a judgment as a matter of law. 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 resolve all reasonable doubts against the movant. 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).
Because this action was filed after June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovants meet their burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovants 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).
Even when viewed in a light most favorable to the Brigmans, the record shows that there is no genuine issue of material fact concerning the terms of the Transcon litigation provision. The Brigmans argue that Dejute signed the letter agreement in an individual capacity as well as on behalf of A.T.F.[3] Even taking the signature on the letter agreement as a signature in Dejute's individual capacity, we conclude that the terms of the Transcon litigation provision in the letter agreement apply only to A.T.F. and not Dejute.
*54 Whether a contract is ambiguous is a question of law for the trial court to determine. Dill v. Blakeney, 568 So. 2d 774 (Ala.1990); Haddox v. First Alabama Bank of Montgomery, 449 So. 2d 1226 (Ala. 1984). It is the duty of the court to analyze and determine the meaning of a contract when its terms are clear and certain, and we will not disturb the trial court's decision on appeal unless the terms of the contract are doubtful of meaning. C.F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So. 2d 657 (1975).
In this case, the terms of the Transcon litigation provision are unambiguous: "The parties agree that with respect to the Transcon Assurance litigation against A.T.F. and others, A.T.F. will assume all liability for this litigation and pay all sums necessary to settle or resolve this litigation." (Emphasis added.) It is clear that by this provision of the contract only A.T.F. assumed liability to pay any settlement arising out of the lawsuit with Transcon.
We note that Dejute's signature on the letter agreement as an individual as well as on behalf of A.T.F. is explained without ambiguity when the letter agreement is viewed as a whole. Paragraph 8 of the letter agreement contains a mutual release of other claims not earlier specified in the agreement. Such a release was plainly intended to bind Dejute personally and provides ample reason for an individual signature without any finding of ambiguity. This Court will not insert ambiguity into a contract by a strained reading when it is clear that no ambiguities exist. ERA Commander Realty, Inc. v. Harrigan, 514 So. 2d 1329 (Ala.1987). Therefore, we affirm the trial court's judgment in favor of Dejute as to the breach of contract claim.
The Brigmans also alleged that Dejute fraudulently induced them to enter into the letter agreement by representing to them that he would individually honor the Transcon provision. The judgment of the trial court fails to specifically address the Brigmans' fraud claims against Dejute. We note that the alleged fraud in this case is in the nature of promissory fraud, because it is based upon an alleged promise to perform in the future, i.e., that A.T.F. would pay for any future settlement that might be reached in the Transcon case. See, E & S Facilities, Inc. v. Precision Chipper Corp., 565 So. 2d 54 (Ala.1990).
The terms of the Transcon provision were that A.T.F. would pay any future settlement that might arise out of the Transcon litigation. The letter agreement was dated June 29, 1988, but the settlement was not actually reached with Transcon until over seven months later, on February 8, 1989. The elements of fraud are (1) a false representation (2) of a material existing fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result of the misrepresentation. McAlister v. Deatherage, 523 So. 2d 387 (Ala.1988). If the fraud or misrepresentation is based upon a promise to perform some act in the future, then the plaintiff must prove two additional elements: (1) the defendant's intention, at the time of the alleged misrepresentation, not to do the act promised, and (2) an intent to deceive. E & S Facilities, supra; P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928, 930 (Ala.1985). A mere breach of contract, without more, is insufficient evidence to show a present intent not to perform. Gadsden Paper & Supply Co. v. Washburn, 554 So. 2d 983 (Ala.1989).
The only evidence that the Brigmans presented in support of their fraud claims was their own joint affidavit. In that affidavit the Brigmans in no way indicated that Dejute had a present intent not to pay any settlement arising out of the Transcon litigation when he entered into the letter agreement. The Brigmans' affidavit stated as follows:
"Mr. Dejute personally assured us that if we would agree to release the $40,000 in escrow, then he would use that money to settle the Transcon lawsuit. We would not have entered into the letter agreement without these personal assurances of Mr. Dejute because he was our *55 only real contact with A.T.F. and its parent company J.C. Holding, Inc. That is why we insisted on the letter agreement being between ourselves and Mr. Dejute, individually, and this was clearly understood both by himself and our lawyer...."
The Brigmans' affidavit presents no substantial evidence of fraud. Therefore, the trial court's judgment in favor of Dejute is also affirmed as to the fraud claim.
AFFIRMED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The record does not indicate why JoAnn Brigman was a party to the "letter agreement" but not to the June 3, 1987, contract for the sale of A.T.F. to J.C. Holding.
[2] This complaint was actually filed as a second amended complaint to an action filed on October 25, 1988, by the Brigmans against A.T.F. involving a separate dispute. The issue before us on this appeal concerns only the amended complaint filed on May 22, 1989. The Brigmans do not argue their claim of fraudulent suppression of a material fact; thus, that claim is waived. Bogle v. Scheer, 512 So. 2d 1336 (Ala. 1987).
[3] The letter agreement was signed in the following manner:
"/s/ Frank Dejute
"Frank Dejute
"/s/ John Brigman
"John Brigman
"/s/ Joann Brigman
"[Joann] Brigman
"A.T.F. Trucking Inc.
"By: /s/ Frank Dejute
"Its: Sec. Treas."
| August 23, 1991 |
1c19b288-0fea-49f0-9668-d9782bbf566c | Ex Parte Elmore | 585 So. 2d 921 | 1900318 | Alabama | Alabama Supreme Court | 585 So. 2d 921 (1991)
Ex parte Michael Clinton ELMORE.
(Re Mavis Lyles ELMORE v. Michael Clinton ELMORE).
1900318.
Supreme Court of Alabama.
August 16, 1991.
*922 T.J. Carnes of Carnes & Carnes, Albertville, for appellant.
Tameria S. Driskill of Barnett & Driskill, Guntersville, for appellee.
KENNEDY, Justice.
Michael Clinton Elmore and Mavis Lyles Hays were divorced in 1986. Elmore and Hays were granted joint custody of their two children, with Hays having physical custody of the children subject to Elmore's right of reasonable visitation. Both Hays and Elmore petitioned the trial court for a change in the custody arrangement. The trial court changed the visitation provision, allowing each parent alternating two-week periods with the children. However, both parents retained joint custody of the children.
The Court of Civil Appeals reversed the modified visitation order. 585 So. 2d 40. Specifically, the Court of Civil Appeals held that, because Hays was awarded physical custody of the children in the original divorce decree, she was the custodial parent. See Beam v. Beam, 543 So. 2d 700 (Ala.Civ. App.1989). Therefore, it held, any modification of the custody arrangement must meet the stringent standard set out in Ex parte McLendon, 455 So. 2d 863 (Ala.1984). The Court of Civil Appeals held that Elmore had failed to meet the standard in McLendon and, therefore, remanded the case to the trial court for it to enter an order specifying Elmore's visitation periods. Elmore then filed for a rehearing, which was denied.
This Court granted certiorari review and subsequently quashed the writ as improvidently granted. See Hays v. Elmore, 585 So. 2d 40 (Ala. 1991). However, the trial judge, William Jetton, entered a new order to comply with the Court of Civil Appeals' opinion while the review in this Court was pending. While a case is pending in an appellate court, the trial court may proceed in matters entirely collateral to that part of the case that has been appealed, but can do nothing in respect to any matter involved on appeal that may be adjudged by the appellate court. Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala.1984).
Elmore asks this Court to set aside the trial court's new order. We must grant the writ of mandamus, because the trial court was without jurisdiction to enter that order while the case was pending in this Court. Nevertheless, this Court has now quashed the writ of certiorari, and the trial court may now enter an order complying with the Court of Civil Appeals' judgment.
WRIT GRANTED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur. | August 16, 1991 |
d3477d7f-8588-4706-8507-e7f4d0ad3ae7 | Moore v. Reeves | 589 So. 2d 173 | 1900914 | Alabama | Alabama Supreme Court | 589 So. 2d 173 (1991)
Alfred Charles MOORE
v.
Benjamin REEVES, et al.
1900914.
Supreme Court of Alabama.
August 16, 1991.
Rehearing Denied October 4, 1991.
*174 Trey Riley, Huntsville, for appellant.
Danny D. Henderson and Wesley G. Smith of Spurrier, Rice & Henderson, Huntsville, for appellees.
HOUSTON, Justice.
Alfred Charles Moore appeals from a summary judgment entered in favor of the defendants, Benjamin Reeves, Robert Patterson, Geno D'Andrade, and James Patterson. We reverse and remand.
The summary judgment was proper in this case if there was no genuine issue of material fact and the defendants were entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the defendants to make a prima facie showing that no genuine issue of material fact existed and that they were entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to the plaintiff to present evidence creating a genuine issue of material fact, so as to avoid entry of a judgment against him. In determining whether there was a genuine issue of material fact, this Court must view the evidence in the light most favorable to the plaintiff and resolve all reasonable doubts against the defendants. Wakefield v. State Farm Mutual Automobile Ins. Co., 572 So. 2d 1220 (Ala.1990). Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" *175 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); § 12-21-12.
The evidence, viewed in the light most favorable to Moore, as required under the applicable standard of review, reveals the following:
At the time of the accident made the basis of this appeal, Moore, who was 70 years old, was employed as a security guard or security officer by Oakwood Seventh Day Adventist Church School System, Inc., a corporation, doing business as Oakwood College ("the college"), in Huntsville, Alabama. As part of his duties, Moore patrolled the campus at the college. Defendant James Patterson was a sergeant with the security department at the college and was Moore's immediate supervisor; he was responsible for maintaining and repairing the vehicles in the security department. Defendant D'Andrade was the safety director at the college, and he had assigned the responsibility for maintaining and repairing the vehicles in the security department to James Patterson. D'Andrade reported to and answered to defendant Robert Patterson, who was vice-president of finance of the college. Defendant Reeves was the president of the college.
On the date of the accident, when Moore arrived for his shift, he was informed that his normal patrol vehicle needed repair and was not usable; therefore, James Patterson gave Moore the keys to a 1976 Plymouth station wagon and instructed him to use that vehicle to patrol the campus.[1] Moore previously had refused to drive the 1976 Plymouth, because, he said, it was "junk"; it was, according to Moore, in a state of disrepair. Specifically, the driver's door of the 1976 Plymouth would come open, if it were not closed securely and locked, so that the driver had to hold the door in order to keep it from opening. D'Andrade and James Patterson were aware that the door and the door closure mechanism of the 1976 Plymouth did not function properly; they had been aware of this problem for several months prior to the accident, but had not repaired the door. D'Andrade had issued an order precluding the use of the 1976 Plymouth on patrol duty and directly instructing James Patterson to inform Moore not to use that vehicle, because it was "unsafe"that is, the door "went bad." James Patterson had indicated that at the time of Moore's accident, "because it was not the best vehicle, [it was] used ... for stake-outs, just for parking, surveillance." Although this problem had existed for several months prior to the accident, on the day of Moore's accident, at the insistence of James Patterson and after having registered a complaint regarding its safety, Moore used the 1976 Plymouth to patrol the campus. Because the door would not close properly, Moore drove the 1976 Plymouth while holding the door shut with his elbow on the outside. As he was rounding a curve, the door came open; he fell out; as he fell out, his foot became caught between the accelerator and the brake pedal; and he was dragged along by the vehicle until it crashed into a tree. As a result, Moore sustained injuries to his back.
Moore sued the defendants under Ala. Code 1975, § 25-5-11(c)(2) (a provision of the Alabama Workmen's Compensation Act), alleging that the injuries he sustained from the accident resulted from the inoperable condition of a safety guard or device upon the vehicle he was drivingthat the mechanism designed and installed by the manufacturer of the vehicle to keep the door closed while the vehicle was being operated, thus keeping passengers inside the vehicle during its operation, was inoperable for a significant time preceding the accident made the basis of this suit.
We note that this case appears to be conceptually different from the majority of workmen's compensation cases filed pursuant *176 to § 25-5-11(c)(2), which involve a safety guard or device on a machine in a factory-type, industrial setting, such as Harris v. Gill, 585 So. 2d 831 (Ala.1991) (a case in which an employee sued his supervisory co-employees for "bypassing" palm control buttons on a punch press designed to cut metal collars, which buttons were intended as a safety device or safety guard to protect the employee from injury). See, also, Bailey v. Hogg, 547 So. 2d 498 (Ala. 1989), and Williams v. Price, 564 So. 2d 408 (Ala. 1990). In this case, Moore, as the employee, sued the defendants, as his co-employees, for failing to maintain and/or repair the door and door closure mechanism on the vehicle he had to operate in order to patrol the campus, which was the job for which he was employed. Although not involving the more common machine in the more common industrial setting, the facts of this case nonetheless support an action under § 25-5-11(c)(2).
Section 25-5-11(c)(2) reads as follows:
In Creel v. Bridewell, 535 So. 2d 95, 97 (Ala.1988), this Court held that "[a] duty to provide co-employees with a safe workplace naturally encompasses a duty to provide co-employees with machines that function properly and safely." Thus, pursuant to the provisions of § 25-5-11(c)(2) and based on the well-settled law in Alabama, it was incumbent upon Moore to present substantial evidence that the defendants willfully and intentionally removed from the machine the safety guard or device provided by the manufacturer of the machine with knowledge that injury would likely or probably result from the removal. See Harris v. Gill, supra.
Moore contends that the willful and intentional failure to maintain or repair a safety guard or device that renders the guard or device inoperable or ineffective, is the equivalent of the "removal" of or the "failure to install" a safety guard or device within the purview of § 25-5-11(c)(2). Moore contends that the door and door closure mechanism of the 1976 Plymouth he was driving was as ineffective at keeping him inside the vehicle as if it had been removed; that the undisputed evidence establishes that his injuries resulted from the inoperable condition of that vehicle, because the door and door closure mechanism did not operate properly; and that that condition had existed for some time prior to his accident. He further contends that he presented substantial evidence that he was instructed to use the 1976 Plymouth in spite of its dangerous condition, with full knowledge on the part of the defendants that the vehicle was unsafe to operate and that operating it would result in injury.
The defendants contend that Moore failed to make out a prima facie case under § 25-5-11(c)(2). According to the defendants, this case does not even involve a safety guard or device as specified in § 25-5-11(c)(2). They contend that to hold that a door and door closure mechanism of a vehicle is a safety guard or device would implicitly extend the definition of those two terms "to encompass every aspect of a piece of machinery, which, in case of its malfunction, could result in an injury to an employee" and, therefore, "would result in a proliferation of co-employee suits." They also contend that Moore failed to present any evidence that the defendants, in allowing the door and door closure mechanism to remain unrepaired, knew that injury or death would likely or probably result.
Thus, ever mindful of, and consistent with, the well-established law that the Alabama *177 Workmen's Compensation Act is to be construed liberally to effect its beneficent purposes, resolving all reasonable doubts in favor of the claimant, Riley v. Perkins, 282 Ala. 629, 213 So. 2d 796 (1968); Tiger Motor Co. v. Winslett, 278 Ala. 108, 176 So. 2d 39 (1965), we must first determine, under the facts of this case, whether the door and door closure mechanism of a particular vehicle is a safety guard or device within the purview of § 25-5-11(c)(2).
The defendants contend that the terms "safety device" and "safety guard" refer to equipment installed on a machine for the primary purpose of guarding against a dangerous aspect of the machine and that a door and door closure mechanism of a vehicle does not qualify.
Moore contends that the door and door closure mechanism does qualify as a safety guard or device, because it was perfected to keep the door secure during the operation of the vehicle in order to protect the occupants of the vehicle from injury.
The legislature did not define the terms "safety device" and "safety guard"; there are no Alabama cases directly on point; and a careful research of other jurisdictions revealed nothing definitive. Therefore, for purposes of this appeal, noting that these terms are of general significance, and that their application is to be ascertained from the particular machine in controversy and the nature of the peril involved, we have undertaken to define the terms "safety device" and "safety guard" for purposes of § 25-5-11(c)(2).
"Device" is defined as "[an] invention or contrivance; any result of design," Black's Law Dictionary 452 (6th ed.1990); "something devised or constructed for a particular purpose," The American Heritage Dictionary of the English Language 361 (1969); "a piece of equipment or a mechanism designed to serve a special purpose or perform a special function," Webster's New Collegiate Dictionary 309 (1981).
"Guard" is defined as "any device or apparatus that prevents injury, damage, or loss; an attachment or covering put on a machine to protect the operator," The American Heritage Dictionary of the English Language 584 (1969); "a protective or safety device; specif: a device for protecting a machine part or the operator of a machine," Webster's New Collegiate Dictionary 505 (1981).
"Safety" is defined as "contributing to or insuring safety; protective," The American Heritage Dictionary of the English Language 1142 (1969).
Thus, combining the above definitions of the above terms"device," "guard," and "safety"we conclude that the terms "safety device" and "safety guard" mean an invention or contrivance intended to protect against injury, damage, or loss that insures or gives security that an accident will be prevented. Therefore, for purposes of construing these terms within § 25-5-11(c)(2), we hold that a "safety device" or "safety guard" is that which is provided, principally, but not exclusively, as protection to an employee, which provides some shield between the employee and danger so as to prevent the employee from incurring injury while he is engaged in the performance of the service required of him by the employer: it is not something that is a component part of the machine whose principal purpose is to facilitate or expedite the work.
Applying the above to the facts of this case (wherein the machine was the vehicle Moore was driving to patrol the campus, and the peril was the set of circumstances that caused Moore to sustain injuries), we hold that the door and door closure mechanism of the vehicle in which Moore was driving constituted a safety device or safety guard; it constituted a shield between Moore and danger so as to protect him from the injuries he sustained while he was patrolling the campus in performance of the services required of him by the college.[2]
The issue now becomes whether the failure to repair and/or maintain a safety *178 guard or device constitutes "removal" within the purview of § 25-5-11(c)(2).
In Bailey v. Hogg, 547 So. 2d 498, 500 (Ala.1989)[3], this Court emphasized the important public policy of promoting safety in the workplace and the importance of safety guards and safety devices in promoting that public policy:
See, Williams v. Price, supra (a case in which this Court refused to extend the concept of "removal" under § 25-5-11(c)(2) to include instructions pertaining to safety procedures, whether given or not given). See, also, Harris v. Gill, supra (a case in which we held that the act of "bypassing" a safety device of a particular machine that would prevent an injury was encompassed within the word "removal").
The defendants contend that, even if the door and door closure mechanism constituted a safety guard or device under the facts of this case, that safety guard or device had not been removed, but was simply operating ineffectuallythat, at most, the defendants failed to correct a situation that was possibly unsafe. They contend that the act of failing to repair and/or maintain the door and door closure mechanism does not establish a prima facie case of willful conduct as defined in § 25-5-11(c)(2). Rather, they contend that, in order to establish such willful conduct, there must be a "removal" of a safety guard or device, or its equivalent, "the failure to install" a safety guard or device. See, Bailey v. Hogg, supra; Williams v. Price, supra; and Harris v. Gill, supra.
Moore contends that just as this Court recognized in Bailey v. Hogg, supra, that the same danger existed to an employee when an available safety guard or device was not installed as when it was removed that in either case, because the safety guard or device was rendered ineffective, public policy indicated by the legislature dictates that such conduct is actionable under the facts in this case, this Court should recognize and hold that the willful and intentional failure to maintain and/or repair a "safety guard" or "safety device," thereby rendering it inoperable, is as dangerous as the "removal" or "failure to install" that safety guard or device. In other words, Moore contends that the safety guard or device provided by the manufacturer (in this case, the safety guard or device was the door and door closure mechanism on the vehicle he was driving) was just as ineffective in keeping him inside the machine that he operated (in this case, the machine was the vehicle he drove to patrol the campus) as if it had been removed.
In light of the facts before this Court, having read and reread those cases brought under § 25-5-11(c)(2); having considered the rationale of this Court's holdings in those cases; having considered the legislative purposes in enacting the Workmen's Compensation Act, specifically its intent in providing employees a cause of action for the willful conduct of co-employees in the workplace, we hold that the failure to maintain and/or repair a safety guard or device provided by the manufacturer of a particular machine would be tantamount to the "removal of" or the "failure to install" a safety guard or device. To hold otherwise would allow supervisory employees to neglect the maintenance and repair of safety *179 equipment provided to protect co-employees from injury, which by its very nature is a clear violation of public policy.
Based on the foregoing, after reviewing the record in the light most favorable to Moore and resolving all reasonable doubts in his favor, we hold that the trial court erroneously entered the summary judgment in favor of the defendants on Moore's claim under § 25-5-11(c)(2). Therefore, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
When this Court decided Reed v. Brunson, 527 So. 2d 102 (Ala.1988), I thought that the question of when and under what circumstances a workman could sue a co-employee had been laid to rest.
Today, the majority, by holding that a door locking mechanism on an automobile is a "safety guard or device" within the meaning of § 25-5-11(c)(2), reopens the debate, and, under the cloak of statutory construction, interprets the statute to apply to factual settings obviously not intended by our legislature. The holding today implicitly extends the definition of the term "safety guard or device" so that it conceivably encompasses every aspect of a piece of machinery that, in case of malfunction, could result in an injury to an employee, and thereby gives rise to a third-party lawsuit such as this one.
I believe that the majority applies the wrong rule of statutory construction to the statute and reaches a result not contemplated or intended by the lawmakers. I cannot accept the majority's conclusion that the failure of the workman's employer to repair a car door locking mechanism constituted a "willful and intentional removal from a machine of a safety guard or device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from such removal," so as to authorize the maintenance of a third-party action against co-employees for "willful conduct," as defined in Ala.Code 1975, § 25-5-11(c)(2). Consequently, I must respectfully dissent.
The Court states that § 25-5-11(c)(2) should be "construed liberally to effect its beneficent purpose, which is to require industry to bear part of the burden of disability and death resulting from the hazards of industry." It may or may not be "beneficent" to authorize an injured employee to sue his or her co-employee; that is not the question. The question is whether the legislature has permitted such a suit under the facts of this case.
It seems obvious to me that the legislature never intended such an interpretation to be made of this statute. In fact, the history of co-employee suits in this State shows that the legislature has repeatedly attempted to limit co-employee suits, not beneficently provide for them.[4] In applying *180 this rule of statutory construction to this statute, the Court seems to ignore the fact that the legislature, for almost two decades, had been attempting to prohibit co-employee lawsuits, and, rightly or wrongly, the legislature clearly has not considered such suits to be "beneficent," but a "social evil."[5]
Although it is clear that the legislature authorized some co-employee lawsuits, it is equally plain that it did not intend to authorize one involving facts such as are presented here.
Although noting that this case is "conceptually different from the majority of workmen's compensation cases ... which involve a safety guard or device on a machine in a factory-type, industrial setting," and although "not involving the more common machine in the more common industrial setting," the majority nevertheless holds specifically that "for purposes of construing these terms within § 25-5-11(c)(2) ... a `safety device' or `safety guard' is that which is provided, principally, but not exclusively, as protection to an employee, which provides some shield between the employee and danger so as to prevent the employee from incurring injury while he is engaged in the performance of the service required of him by the employer: it is not something that is a component part of the machine whose principal purpose is to facilitate or expedite the work."
The majority seems to recognize that, under a fair reading, the words of the statute[6] do not encompass a third-party suit under these facts, and the majority fails to explain why the failure to repair a car door is "willful conduct" in this case, and the removal of guards, albeit not from the injury-producing "nip point," was not *181 "willful conduct" in Reed v. Brunson.[7]
By interpreting the statute as not barring this action under the facts of this case, I think that the majority takes what the legislature intended as a very narrow exception to co-employee immunity, and expands it so that the exception will swallow up the rule and, rightly or wrongly, the intent of the legislature, as expressed in Section 1 of the very Act this case construes, will have been completely ignored and disregarded.
STEAGALL, J., concurs.
[1] The undisputed evidence established that there was no safety belt provided in the station wagon.
[2] If the legislature intended a more restrictive definition of the terms "safety guard" or "safety device," it can enact appropriate legislation for this purpose.
[3] Although the author of this opinion dissented in the holding in Bailey v. Hogg, 547 So. 2d 498 (Ala.1989), disagreeing with the rationale of the Court in its holding, that holding is the law; and the author is bound by stare decisis to follow that law and is bound to follow any rational and logical extension thereof.
[4] The history of co-employee lawsuits is well known, and such suits have received the attention of the legislature and this Court, especially in the last two decades. Insofar as I can tell, the question of the right of a co-employee to sue a fellow employee in a third-party action had not been considered until the question was presented to this Court for resolution in United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So. 2d 367 (1970). In that case, by an opinion authored by Merrill, J., and joined by Lawson, Harwood, Maddox, and McCall, JJ., the Court held that the legislature had not specifically mandated that co-employees could not be sued in third-party actions. The legislature quickly reacted to this holding and passed legislation to immunize co-employees from such suits. Act 1062, Acts of Alabama 1973, at pages 1771-72. That immunizing legislation was promptly attacked as being unconstitutional on the ground that the act signed by the governor materially differed from the bill passed by the legislature. A divided Court held that the 1973 Act was valid and that the defendants were entitled to summary judgment because the "plaintiff's injuries resulted from an accident which arose out of and in the course of his employment, and that by virtue of Tit. 26, § 312 [Code of Alabama of 1940], co-employees are not third-party tortfeasors against whom an action such as this can be brought." Childers v. Couey, 348 So. 2d 1349, 1352 (Ala.1977) (Embry, J., joined by Torbert, C.J., and Bloodworth and Faulkner, JJ., with Almon, J., concurring in the result; Shores, J., dissenting with opinion, in which Maddox, J., joined; Jones and Beatty, JJ., dissenting with opinions); also see, Atchison v. Horton, 348 So. 2d 1358 (Ala.1977). The legislature, in 1975, amended § 312, Tit. 26 (which authorized the filing of third-party lawsuits), but continued to immunize co-employees from suit, as it had in the 1973 Act. See Act No. 86, 4th Ex.Sess. § 10, p. 2748, Acts of Alabama 1975. Even though the 1973 Act immunizing co-employees was upheld against the attack made upon it, an attack was made against the 1975 amendment in Grantham v. Denke, 359 So. 2d 785 (Ala.1978), on the ground that the legislature could not immunize co-employees from third-party lawsuits because of the provisions of Section 13 of Alabama's Constitution. A majority of this Court (opinion by Embry, J., with whom Bloodworth, Faulkner, Jones, Almon, Shores, and Beatty, JJ., joined; Maddox, J., dissenting, with which Torbert, C.J., concurred) held that the immunizing legislation was unconstitutional as violating Section 13 of the Alabama Constitution.
In 1984, the legislature again amended what is now § 26-5-11 to provide for co-employee immunity, except when an injury resulted from "willful conduct." Ala. Acts 1984, 2d Ex.Sess., No. 85-41, p. 44, § 3. That amendment was the subject of an attack on the ground that Section 13 of our Constitution prohibited the legislature from granting co-employees immunity. See Reed v. Brunson, 527 So. 2d 102 (Ala.1988), in which this Court upheld as constitutional the legislation now being construed.
[5] In Reed v. Brunson, the author of the majority opinion in this case said that "the Legislature does have the power to eliminate such co-employee suits in an attempt to eradicate or ameliorate what it perceives to be a social evil." (Emphasis added.) 527 So. 2d at 116. In that case, this Court set out in its entirety Section 1 of the Act we construe today. 527 So. 2d at 112-13. In its findings, the legislature specifically stated that co-employee lawsuits were "contrary to the intent of the legislature in adopting a comprehensive workers' compensation scheme and are producing a debilitating and adverse effect upon efforts to retain existing, and to attract new industry to the state." In view of the clear expression of legislative intent to the contrary, it is difficult to understand why the majority calls such lawsuits "beneficent."
[6] The office of interpretation is not to improve a statute, but to expound it; and courts look for legislative intent in the language of a statute; that language may be explained, but it cannot be detracted from or added to. Alabama Indus. Bank v. State ex rel. Avinger, 286 Ala. 59, 237 So. 2d 108 (1970).
It seems to me that a fair reading and reasonable interpretation of the legislative definition of "willful conduct" contained in the Code requires several facts to be shown: (1) a removal; (2) of a safety guard or safety device provided by the manufacturer of the machine; (3) such removal being willful and intentional; and (4) with the knowledge that injury or death would likely or probably result from such removal. I personally cannot find any facts in this record to show that the workman here has shown such "willful conduct" on the part of these defendants.
[7] If the definition of "safety guard or device" that the Court adopts today had been used in Reed v. Brunson, it would appear that the plaintiff in Reed stated a claim for relief, because that case involved a concrete mixing machine and the plaintiff's injury was caused by an unguarded "nip point." In Reed, this Court said the following:
"The plaintiff argues, under § 25-5-11(c)(2), that the defendants willfully and intentionally removed a guard from the mixer that shielded the front of the drive wheel. As previously stated, there is evidence tending to show that such a guard had been removed from the mixer at some point prior to the plaintiff's injury. However, that guard did not shield the nip-point in which the plaintiff caught his hand. It appears undisputed in the record that at the time the mixer was installed at Faulkner Concrete Pipe Company, it was not equipped with side guards shielding the nip-point. Therefore, there is no evidence that the plaintiff's injury was proximately caused by the defendants' removal of a safety guard or device that had been provided by the manufacturer of the mixer."
527 So. 2d at 120. | August 16, 1991 |
27442c99-d2c9-4fc9-af33-dd785ebcb9c5 | Ex Parte Hilburn | 591 So. 2d 8 | 1900955 | Alabama | Alabama Supreme Court | 591 So. 2d 8 (1991)
Ex parte Richard Dale HILBURN.
(Re Richard Dale Hilburn v. City of Gardendale.)
1900955.
Supreme Court of Alabama.
August 16, 1991.
*9 Jerry N. Quick, Trussville, for petitioner.
Palmer Norris, Gardendale, for respondent.
ADAMS, Justice.
We granted Richard Hilburn's petition for certiorari review of a judgment of the Court of Criminal Appeals affirming his conviction of driving under the influence of alcohol. We reverse.
On September 26, 1989, Hilburn was convicted in the Gardendale Municipal Court of driving under the influence of alcohol, in violation of city ordinance 88-19. He was fined $1,000 and was sentenced to 60 days in the City of Gardendale jail. The same day, he gave a bond and filed notice of appeal to the Circuit Court of Jefferson County for a trial de novo.
On December 11, 1989, Hilburn's case came on for trial in the circuit court. Hilburn's counsel preliminarily moved to dismiss the appeal and to remand the case to the municipal court for execution of the sentence imposed by that court. The trial judge responded:
Following an adverse jury verdict, Hilburn was fined $2,000 and was sentenced to 90 days at hard labor.
In an unpublished memorandum opinion, the Court of Criminal Appeals affirmed the conviction. We granted certiorari review to determine whether a defendant, in an appeal from a conviction in the municipal court for a trial de novo in the circuit court, has the right, prior to the empaneling of a jury or the joining of issues in the circuit court, to submit to the judgment of the municipal court through the dismissal of his appeal and the reinstatement of the original judgment.
The trial court's denial of Hilburn's motion for dismissal was consistent with Ala. R.Crim.P. 30.5(b), which provides for appeals from municipal or district courts.[1] Rule 30.5(b) states in pertinent part:
(Emphasis added.)
Rule 30.5(b) thus authorizes, rather than requires, dismissal of the defendant's case upon the defendant's nonappearance or motion to dismiss and to remand the case to the municipal court. Under Rule 30.5(b), the disposition of a motion to dismiss an appeal from a judgment in municipal court for a trial de novo is thus within the discretion of the circuit court. Such a result stands in direct conflict, however, with the clearly expressed will of the Alabama Legislature.
The procedure for de novo appeals from municipal court is specifically set forth in Ala.Code 1975, § 12-14-70. That section provides in pertinent part:
(Emphasis added.) Unlike Rule 30.5(b), § 12-14-70 thus casts in mandatory terms the disposition of an appeal from municipal court upon the nonappearance of the defendant. Section 12-14-70 is the product of an evolution of legislative pronouncements on the subject, as is evidenced by a brief review of the legislative and case histories of that section's predecessors.
Ala.Code 1907, § 1218, setting forth the procedures for the disposition of appeals from the "recorder's court" for trials de novo in the circuit court, provided:
(Emphasis added.) This provision reappeared without significant change in Ala. Code 1923, § 1938.
In Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406 (1928), this Court held that where the defendant failed to appear before the circuit court for trial de novo, § 1938 did not authorize the judge to dismiss the appeal and to remand the case to the recorder's court. Following a thorough statutory analysis, this Court concluded that § 1938 and related sections required the circuit court to enter a final judgment as if the case had begun in that court. 217 Ala. at 493, 117 So. at 408.
Seven years after this Court's decision in Thompson, the legislature amended § 1938. Act No. 520, 1935 Ala.Acts 1107. Act No. 520 provided:
(Emphasis added.) Act No. 520, therefore, placed within the discretion of the trial judge the decision whether to dismiss the appeal or to retain the case and enter a final judgment. See also Anthony v. City of Birmingham, 240 Ala. 167, 168, 198 So. 449, 450 (1940). That provision passed into successive codes for the next 40 years, without substantive change. See Ala.Code 1958, tit. 37, § 588.
In 1975, however, the legislature, in order to "implement the new Judicial Article of the Alabama Constitution (Amendment No. 328 approved December 18, 1973)," materially altered both the form and the substance of the provisions for appeals from municipal court. Act No. 1205, 1975 Ala. Acts 2384, 2384. Section 8-105 of the 1975 Act deleted the clause in the former section providing for the discretionary retention of a case on appeal from municipal court. In its place, the 1975 Act substituted the clause now contained in § 12-14-70(f), which provides that "[u]pon failure of an appellant to appear in the circuit court when the case is called for trial ..., the court shall dismiss the appeal." (Emphasis added.) The series of enactments thus demonstrates a progression of legislative intent regarding the circuit court's discretion to retain a case on appeal, from the mandatory retention under Ala.Code 1923, § 1938through the express grant of discretion in the wake of Thompsonto mandatory dismissal and reinstatement of the original judgment through the repeal in the 1975 Act of the clause conferring discretion.
To be sure, the legislation under discussion has expressly addressed only the issue of dismissal upon failure of the defendant to appear for trial. Nevertheless, if the circuit court has no discretion to retain the case upon the nonappearance of the defendant, then, a fortiori, it lacks the discretion to retain the case if the defendant appears and affirmatively seeks the dismissal of the appeal and the remand of the case to the municipal court. To hold otherwise, as Hilburn points out in his brief, encourages defendants to "fail to show when their case is called for trial in order for their appeal to be dismissed."
In addition, a rule providing for mandatory dismissal and reinstatement of the original judgment on the motion of the defendant is sound from the standpoint of convenience. See Thompson v. City of Birmingham, 217 Ala. 491, 493, 117 So. 406, 409 (1928). The Constitutions of the United States and Alabama provide for the right to trial by jury in most criminal cases. If a jury trial were given to all defendants at the initial trial proceedings in the municipal and district courts, our judicial system could not manage the case load.[2]
Experience has proven that most defendants in those courts do not seek a jury trial. However, § 12-14-70 provides this constitutional protection for those who want it. Most defendants do not object to the fact that their constitutional rights are *12 temporarily held in abeyance. On the other hand, our judicial system should not be allowed to require a defendant to go to trial with a jury just because he filed a notice of appeal, even though he later decided, for whatever reasons, not to pursue the appeal.
We agree with the Supreme Court of Missouri, which observed that this "`two-tiered' approach allowing for de novo relitigation of the charge is solely for the benefit and protection of the accused." State ex rel. Garrett v. Gagne, 531 S.W.2d 264, 267 (Mo.1975). Indeed, the Rules of Criminal Procedure, themselves, expressly rest on this consideration and similar ones. Rule 1.2, which articulates the "purpose" and "objectives" of the Rules, states: "These rules are intended to provide for the just and speedy determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare." (Emphasis added.) We thus conclude that § 12-14-70 more accurately represents the policy of this state in matters such as judicial economy and the protection of the accused.
Therefore, Rule 30.5(b), which appears to give the circuit court the discretion that is absent from § 12-14-70, must be understood as though it read:
Id. (emphasis added).[3]
We hold, therefore, that a defendant, in an appeal from a conviction in the municipal court or district court for a trial de novo in the circuit court, has the right, prior to the empaneling of a jury or to the production of evidence in the circuit court, to submit to the judgment of the municipal court through the dismissal of his appeal and the reinstatement of the original judgment. Of course, the defendant remains liable for any court costs incurred by the circuit court prior to the voluntary dismissal.
The judgment of the Court of Criminal Appeals is reversed, and this cause is remanded to that court with directions to remand it to the circuit court for reinstatement of the judgment imposed in the municipal court.
REVERSED AND REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY and INGRAM, JJ., concur.
STEAGALL, J., concurs in the result.
SHORES, J., dissents.
[1] The Rules of Criminal Procedure were adopted by this Court pursuant to the authority granted by Ala. Const.1901, amend. 328, § 6.11. Ala.R.Crim.P. 1.1, committee comments. The current Rules took effect on January 1, 1991.
[2] The Advisory Commission on the Judicial Article Implementation stated the following:
"Jury trials should not be available in the district court. Any party who has a constitutional right to a jury trial may obtain such by appeal to the circuit court pursuant to the applicable rules of civil or criminal procedure. No supersedeas bond should be required to prevent execution pending civil appeals from the district court to the circuit court.
"Comment: This recommendation reflects the Commission's firm conclusion that jury trials and court reporting capability at the district court level would be prohibitively expensive and time consuming. Hence, the Commission proposes that the constitutional right to a jury trial be preserved by trial de novo on appeal, with no requirement of a bond for supersedeas."
Report of the Advisory Commission on Judicial Article Implementation, March 1, 1975, Joseph F. Johnston, Chairman, Charles D. Cole, Director.
[3] This construction of Rule 30.5(b) is also consistent with the committee comment to that Rule, which states: "If the defendant who has appealed from conviction fails without cause to pursue the appeal at trial, the remedy is dismissal of the appeal and automatic reinstatement of the judgment appealed from." (Emphasis added.) | August 16, 1991 |
fc14b595-c6f8-401a-ae91-df3aad590b86 | Garringer v. Wingard | 585 So. 2d 898 | 1900581 | Alabama | Alabama Supreme Court | 585 So. 2d 898 (1991)
Roy L. GARRINGER and Mary Garringer
v.
Dick WINGARD.
1900581.
Supreme Court of Alabama.
August 9, 1991.
Charles J. Kettler, Jr. of Kettler & Kettler, Luverne, for appellants.
David A. McDowell, Prattville, for appellee.
*899 PER CURIAM.
This appeal involves a boundary line dispute between two coterminous landowners. We affirm.
The issue is whether the evidence was sufficient to support a finding that the defendant, Dick Wingard, had, by adverse possession, acquired title to property that is included within the description of the deed held by the plaintiffs, Roy and Mary Garringer.
The facts are as follows: The Magnolia Shores Subdivision was created in the late 1950's. Both the plaintiffs' and the defendant's chain of title originated from the Magnolia Development Company.
The Magnolia Development Company conveyed what is now known as lot a 7 to Juliet P. Sykes by deed. The deed, dated August 21, 1958, contained the following description of the property:
Sykes conveyed the property, referred to in the deed as lot a 7, to James and Lucille McKenzie on October 24, 1973. The McKenzies conveyed the property to the plaintiffs on November 21, 1986.
The defendant's chain of title began with Magnolia Development Company's conveyance to Benny and Isophene Jones on May 23, 1961. The description of the property conveyed was as follows:
The Joneses conveyed the property to Wallace and Addie Brightwell on May 29, 1972. The Brightwells owned the lot until 1979, when it was conveyed to the defendant.
The plaintiffs sued the defendant on August 15, 1989. At a nonjury trial, the following testimony was presented: Mrs. Brightwell, one of the defendant's predecessors in title, testified that she erected a fence in 1976 between her lot (# 5) and the plaintiffs' lot (# 7). She testified that the plaintiffs' predecessor never disputed that the fence was the correct boundary line between the lots. One of the plaintiffs' predecessors, Mrs. McKenzie, stated that she never claimed any of the land on Mrs. Brightwell's side of the fence as belonging to her. Both Mrs. Brightwell and Mrs. McKenzie testified that they maintained their respective lots up to the fence. Mrs. McKenzie also testified that she conveyed lot # 7 to the plaintiffs with the boundary line marked by the fence. The defendant testified that when he purchased lot # 5 in 1979 he recognized the fence as the boundary line between the lots.
The trial court, in a nonjury trial, determined that the fence was the boundary line between the two lots and enjoined the plaintiffs from interfering with the fence.
We must first note our standard of review in adverse possession cases where the court hears ore tenus testimony. "[A] judgment establishing a boundary line between coterminous landowners on evidence submitted ore tenus is presumed to be correct and need only be supported by credible evidence. If so supported, the trial court's conclusions will not be disturbed on appeal unless plainly erroneous or manifestly unjust." Tidwell v. Strickler, 457 So. 2d 365, 367 (Ala.1984) (citations omitted). The presumption of correctness is particularly strong in boundary line dispute cases and adverse possession cases because it is difficult for the appellate court to *900 review the evidence in such cases. Bearden v. Ellison, 560 So. 2d 1042 (Ala.1990).
Tidwell, 457 So. 2d at 368. In the instant case, where adverse possession is claimed by the coterminous owner, he must prove open, notorious, hostile, continuous, and exclusive possession for 10 years. He need not prove a deed or other color of title to the property, annual listings for taxation, or descent or devise from a predecessor in order to maintain his claim. Id. The burden of proof is on the party asserting adverse possession. That is, the party asserting the adverse claim must prove actual, hostile, open, notorious, exclusive, and continuous possession for the statutory period. Id.
A fence is an "outstanding symbol of possession." Cockrell v. Kelley, 428 So. 2d 622, 624 (Ala.1983). "When one of the coterminous proprietors builds a fence as the dividing line and occupies and claims to it as such, with knowledge of the other, the claim of the former is presumptively hostile and the possession adverse." Smith v. Brown, 282 Ala. 528, 535, 213 So. 2d 374 (1968), quoting Hess v. Rudder, 117 Ala. 525, 23 So. 136 (1898) (other citations omitted).
Having reviewed the facts in this case, we conclude that the record contains credible evidence that the defendant and his predecessors had been in adverse possession of the property up to the fence line for more than 10 years and that the boundary line between the properties was the fence; therefore, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON, KENNEDY and INGRAM, JJ., concur. | August 9, 1991 |
96f74473-ded7-4877-8010-905ef2d66dcf | Ex Parte US Fidelity & Guar. Co. | 585 So. 2d 922 | 1901491 | Alabama | Alabama Supreme Court | 585 So. 2d 922 (1991)
Ex parte UNITED STATES FIDELITY & GUARANTY COMPANY. (Re James H. LEHMAN, Jr. v. UNITED STATES FIDELITY & GUARANTY COMPANY).
1901491.
Supreme Court of Alabama.
August 16, 1991.
*923 Donna S. Pate of Lanier, Ford, Shaver & Payne, Huntsville, for petitioner.
Trey Riley, Huntsville, for respondent.
ALMON, Justice.
United States Fidelity & Guaranty Company ("USF&G") has petitioned this Court for a writ of mandamus directed to a circuit judge of the Madison County Circuit Court. USF&G seeks relief from an order granting James and Cynthia Lehman leave to take the deposition of Mark McCauley and from the denial of its motion for a summary judgment. It also seeks to have this cause removed from the Madison Circuit Court's trial docket.
This is the second time this cause has been before this Court. In our first opinion, United States Fidelity & Guaranty Co. v. Lehman, 579 So. 2d 585 (Ala.1990) ("Lehman I"), this Court reversed a judgment that had been rendered in favor of James H. Lehman and his wife and against USF&G. The unusual facts giving rise to that appeal are fully set out in our first opinion and will not be restated at length here. Briefly stated, the Lehmans' action against USF&G arose from an incident that occurred during James Lehman's employment with a Nissan dealership in Huntsville. Lehman was riding in a Nissan automobile that was being driven by McCauley, who was ostensibly a customer of the dealership's. McCauley suddenly stopped the automobile and attacked Lehman with a knife. Although badly injured, Lehman was able to escape from the automobile. McCauley was subsequently convicted for his attack on Lehman and was sentenced to 50 years' imprisonment. Lehman I, 579 So. 2d at 585.
The Lehmans filed an action against McCauley and against USF&G, the Nissan dealership's insurance carrier. They sought to recover damages from USF&G under the uninsured motorist provision of the dealership's policy with USF&G.[1] McCauley did not answer the Lehmans' complaint or defend against their claims. Following a nonjury trial, the court entered a judgment in favor of the Lehmans and against USF&G for $120,000. Id. On appeal, this Court reversed that judgment, holding that Lehman's injuries did not "result from `use' of the [Nissan] automobile as that term is used in the [USF&G] policy," *924 and were therefore not covered under the policy. Lehman I, 579 So. 2d at 586.
On remand, the trial court set the cause on its trial docket. USF&G filed a motion for summary judgment, arguing that this Court's decision in Lehman I resolved the issues involved. USF&G's motion was denied. The Lehmans then filed a motion asking leave to take the deposition of McCauley, who is currently an inmate at Draper Prison. In an affidavit filed in support of that motion, the Lehmans' lawyer stated that McCauley's deposition was necessary to further explore the issue of whether McCauley's assault on Lehman constituted a "use" of the automobile. The trial court granted the Lehmans' motion. This petition for a writ of mandamus follows.
USF&G argues that the trial court erred by failing to follow this Court's mandate in Lehman I. It contends that, pursuant to the rationale expressed in that opinion, the trial court should have entered a judgment in its favor on remand.
On remand, trial courts are required to follow the mandates of this Court or of any other appellate court. Kinney v. White, 215 Ala. 247, 110 So. 394 (1926). The question of whether a trial court after remand has correctly interpreted and applied an appellate court's decision is properly reviewable by a petition for a writ of mandamus. Ex parte Bradley, 540 So. 2d 711, 712 (Ala.1989). If a trial court fails to comply with an appellate court's mandate, mandamus will lie to compel compliance. Id; Ex parte Alabama Power Co., 431 So. 2d 151 (Ala.1983).
USF&G and the Lehmans have both presented extensive argument regarding whether this Court's decision in Lehman I was based on a finding that the evidence was insufficient to support the trial court's judgment or on a finding that the judgment was against the weight and preponderance of the evidence. See Garmon v. King Coal Co., 409 So. 2d 776 (Ala. 1981); Ex parte Alabama Power Co., supra.
Our reversal of the trial court's judgment in Lehman I, however, was not based on a determination regarding either the sufficiency of the evidence or the weight and preponderance of the evidence. Instead, this Court held, as a matter of law, that because Lehman's injuries were the result of an independent criminal act by McCauley, they did not result from a "use" of the insured automobile. Lehman I, 579 So. 2d at 586. Therefore, they were not covered under the dealership's policy of insurance with USF&G and the Lehmans were not entitled to recover uninsured motorist benefits. Id. Our interpretation of the effect of the insurance policy terms in Lehman I represented a final disposition of the dispute between USF&G and the Lehmans. Therefore, the trial court's failure to enter a judgment in USF&G's favor on remand was error.
For the reasons stated above, the writ of mandamus is due to issue.
WRIT GRANTED.
All of the Justices concur.
[1] It appears that Lehman's medical expenses were paid by his employer's worker's compensation carrier. | August 16, 1991 |
bc6698d8-49e0-48f3-9e1d-9768a2b64321 | Tuscaloosa County Com'n v. Deputy Sheriffs | 589 So. 2d 687 | 1900911, 1900913 | Alabama | Alabama Supreme Court | 589 So. 2d 687 (1991)
TUSCALOOSA COUNTY COMMISSION
v.
DEPUTY SHERIFFS' ASSOCIATION OF TUSCALOOSA COUNTY and Tommy Squires, individually and as president of the Deputy Sheriffs' Association of Tuscaloosa County.
DEPUTY SHERIFFS' ASSOCIATION OF TUSCALOOSA COUNTY and Tommy Squires, individually and as president of the Deputy Sheriffs' Association of Tuscaloosa County
v.
TUSCALOOSA COUNTY COMMISSION.
1900911, 1900913.
Supreme Court of Alabama.
August 23, 1991.
Rehearing Denied October 11, 1991.
*688 Barry L. Mullins and Robert Spence of Mullins & Smith, Tuscaloosa, for appellant/cross-appellee.
Joseph G. Pierce of Drake & Pierce, Tuscaloosa, for appellees/cross-appellants.
KENNEDY, Justice.
The Tuscaloosa County Commission ("Commission") filed a declaratory judgment action against the Deputy Sheriffs' Association of Tuscaloosa County ("Deputies") and certain fictitiously named parties to determine whether law enforcement officers in the Tuscaloosa County Sheriff's Department were entitled to additional compensation and backpay. The trial court ordered the additional compensation but did not order the backpay, and both the Commission and the Deputies appeal.
The facts are undisputed and were stipulated to by the parties. In September 1975 the Legislature enacted, and the Governor approved, Act No. 323, Reg. Session, Ala. Acts 1975, which provides:
The Commission has raised the salaries of the deputy sheriffs several times pursuant to that legislation; these raises were based on legislation raising the state troopers' salaries as well as on Governor Fob James's approval of a state trooper salary increase because of the recommendation for an increase by the State Personnel Board.
Before the refusal to give the raise that is the basis of this action, the only time the Commission had not given a raise pursuant to Act No. 323 was when the legislature specifically excluded the deputy sheriffs from the operation of an act granting state troopers an increase in salary. Specifically, Act No. 84-745, Ala.Acts 1984, provided for a 10% increase in the compensation for state troopers, but it also provided that "the provisions of this bill shall not apply to any local employee whose salary is tied to that of any state employee." Accordingly, the Commission did not give the deputy sheriffs that 10% raise.
*689 Since that act was passed, the compensation of state troopers has been reestablished several times, with no restrictive language excluding a raise for a local governmental employee whose salary is tied to that of any state employee. The Commission continues to pay deputy sheriffs 10% less than the salary received by state troopers, because, it contends, Act No. 84-745 so requires.
On July 18, 1989, Governor Guy Hunt and the State Personnel Board, on the recommendation of the Director of Public Safety, approved certain increases in salary ranges for state troopers. The Commission refused to increase the salaries of the deputy sheriffs to make them equal to the salaries paid to state troopers as a result of that increase.
In the action below, the trial court was asked to determine 1) whether the deputy sheriffs were entitled to a salary increase equivalent to that received by the state troopers as a result of the July 18, 1989, administrative action; 2) whether "compensation" in Act No. 323 applies exclusively to salaries and not to additional benefits; 3) whether the July 18, 1989, action violated procedures established by the Alabama Administrative Procedure Act; 4) if the deputies were entitled to the salary increase, then when was the increase effective; 5) whether the deputies were entitled to the amount of compensation paid state troopers in the acts subsequent to Act No. 84-745, instead of 10% less, as the Commission has paid them.
The trial court held 1) that the deputies were entitled to the salary increase; 2) that "compensation" referred to salaries only; 3) that the action did not violate the Administrative Procedure Act, and 4) that the salary increase was effective on the first day of the next fiscal year commencing after July 18, 1989. The trial court did not order the backpay.
On the first issue, the Commission argues that the deputies are not entitled to an increase corresponding to the July 18, 1989, trooper salary increase, because that salary increase was a product of administrative rather than legislative action. This argument ignores general rules of statutory construction.
In interpreting the provisions of an Act such as Act No. 323, a court is required to ascertain the intent of the legislature as expressed and to effectuate that intent. Lewis v. Hitt, 370 So. 2d 1369 (Ala. 1979). The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage. Ex parte Holladay, 466 So. 2d 956 (Ala. 1985). Words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. Coastal States Gas Transmission Co. v. Alabama Public Service Commission, 524 So. 2d 357 (Ala.1988); Alabama Farm Bureau Mutual Casualty Insurance Co. v. City of Hartselle, 460 So. 2d 1219 (Ala.1984). If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect. Dumas Brothers Manufacturing Co. v. Southern Guaranty Insurance Co., 431 So. 2d 534 (Ala.1983); Town of Loxley v. Rosinton Water, Sewer, & Fire Protection Authority, Inc., 376 So. 2d 705 (Ala.1979).
The statute is clear and unambiguous. It states that the compensation of a law enforcement officer working for the Tuscaloosa County Sheriff's Department is not to be less than that of a state trooper with comparable years of service and comparable rank and position. The statute neither says nor implies anything that would indicate that law enforcement officers in the Tuscaloosa County Sheriff's Department are to receive a salary increase only when state trooper salaries are increased by legislative action. If the legislature had intended that meaning, it could easily have added such a qualifying phrase.
The trial court did not err in determining that Act No. 75-323 requires the Commission to grant its law enforcement officers increases in salary equivalent to the salary increases granted to state troopers by the *690 Governor on July 18, 1989. Shelby County Commission v. Smith, 372 So. 2d 1092 (Ala. 1979).
The Commission argues that the trial court erred by determining that the word "compensation" in Act No. 323 applies exclusively to salaries. Particularly, it argues that inasmuch as its law enforcement officers receive benefits other than salary, those benefits are to be valued in determining equivalent "compensation" to state troopers for the purposes of Act No. 323.
We disagree. In Mitchell v. Mobile County, 313 So. 2d 172 (Ala.1975), this Court addressed an act that had been passed to provide uniform minimum compensation for deputy sheriffs in counties with populations of less than 600,000. This Court held that the trial court had properly construed "compensation" to mean minimum basic salary, excluding overtime pay, riot training pay, and other benefits and allowances.
The structure of Act No. 323 also supports the conclusion that "compensation" means "salary": because the respective non-salary benefits are the same for all deputies regardless of rank and for all state troopers regardless of rank, the table in Act No. 323 setting out what rank among deputies is comparable to what rank among state troopers seems to refer to the salaries to be paid to the different ranks.
Finally, the wording of the Act does not convincingly support the Commission's argument. The Act does not say that the Commission's law enforcement employees are to have the benefits of state troopers; if the legislature had so intended, it could have inserted the phrase "and all other job-related benefits" after the word "compensation," for example.
The trial court did not err in determining that the word "compensation" in Act No. 323 meant "salary."[1]
The Commission contends that the Governor, in the July 18, 1989, salary increase, did not comply with the Alabama Administrative Procedure Act, Ala.Code 1975, § 41-22-1 et seq., and, therefore, that the salary increase should be considered ineffective for the purposes of Act No. 323. Specifically, the Commission contends that the granting of the salary increase was by a "rule" under the definition of Ala.Code 1975, § 41-22-3(9), and that the Governor failed to follow the appropriate notice and procedural provisions of the Alabama Administrative Procedure Act. The Commission did not prove that the July 18, 1989, salary increase was by a "rule" according to § 41-22-3(9), and its argument fails.
On cross-appeal, the deputies contend that the trial court erred in determining that the salary increase was effective on the first day of the next fiscal year commencing after July 18, 1989. Amendment 474 to the Alabama Constitution of 1901 provides in pertinent part:
*691 The Commission took none of the actions stated in the second sentence to make the July 18, 1989, salary increase effective, so the provisions of the first sentence are dispositive. The trial court's order directly tracks the mandate of the constitutional amendment.
The deputies contend that, because Act No. 323 preceded the amendment, the salary increase is not a "new" expenditure of county funds. Even if we agreed with that, we would note that the amendment addresses "new or increased expenditures," and the salary increase is certainly an "increased expenditure." The trial court did not err in its holding concerning the effective date of the salary increase.
Finally, we address the deputies' arguments concerning backpay. The stipulated facts indicated the following: Act No. 84-745 provided for a 10% percent increase in compensation for state troopers, and it also provided that that increase would not apply to local employees whose salaries are tied to those of state employees. Accordingly, the Commission did not increase the salary of its law enforcement officers pursuant to Act No. 84-745. The deputies do not challenge that decision. However, subsequent to the passage of Act No. 84-745, compensation for state troopers has been reestablished several times, each time without the language of Act No. 84-745 excluding a raise for a local employee whose salary is tied to that of state employees. Nevertheless, the Commission has paid its law enforcement officers 10% less than similarly situated state troopers, because it contends that Act No. 84-745 requires that reduction.
This action by the Commission is contrary to the mandate of Act No. 323. Again, we note that that Act is clear and unambiguous and that it provides that the Tuscaloosa County Sheriff's Department's law enforcement officers are entitled to no less compensation than state troopers with comparable years of service and comparable rank and position. Additional explanation of this point would be superfluous, although Shelby County Commission v. Smith, at 1094-96, is instructive.
On this issue the trial court erred, and as to that issue the judgment is due to be reversed and the cause remanded. The Tuscaloosa County Sheriff's Department's law enforcement officers are entitled to be paid a salary pursuant to Act No. 323 based on the acts or actions allowing salary increases after Act No. 84-745 that did not exclude raises for law enforcement officers whose salary was tied to that of the state troopers.
We understand that governments must operate under budgetary constraints, but Act No. 323 is nevertheless the law. As the Court said in Shelby County Commission v. Smith, "[i]f the county is no longer satisfied with the results of [that local act], its alternative is to have the local [act] repealed and introduce new legislation." 372 So. 2d at 1095.
The judgment is due to be affirmed in part and reversed in part and the cause remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] This Court, while not addressing the issue directly, in Shelby County Commission v. Smith, supra, assumed that the word "compensation" in the similar acts it was considering, referred to the amount of money paid as salaries: "It seems apparent to us, however, that the original drafters of these local acts intended to keep the salaries of employees of the sheriff's office competitive with those of the highway patrol, probably in order to prevent the loss of trained personnel to higher paying jobs." 372 So. 2d at 1095. | August 23, 1991 |
a23f99f3-f26f-45c1-92d3-86c1bb0f5f5d | Smith v. Medical Center East | 585 So. 2d 1325 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 1325 (1991)
Calvin V. SMITH, as father of Victor Scott Smith
v.
MEDICAL CENTER EAST, et al.
89-1490.
Supreme Court of Alabama.
August 16, 1991.
*1326 E. Ray Large, Birmingham, for Calvin V. Smith.
Lyman H. Harris and Linda E. Winkler, Birmingham, for appellee Medical Center East.
Michael A. Florie, Walter W. Bates, Ann Sybil Vogtle and W. Stancil Starnes, Birmingham, for appellee Cardio-Thoracic Surgeons, P.C.
Thomas W. Christian and Robert E. Cooper of Rives & Peterson, Birmingham, for appellee Southeastern Emergency Physicians, P.A.
Crawford S. McGivaren, Jr. and Sara E. Akin, Birmingham, for appellee Carraway Methodist Medical Center.
KENNEDY, Justice.
Calvin V. Smith, as the father of Victor Scott Smith, deceased, filed a wrongful death action against Medical Center East; Carraway Methodist Medical Center; Southeastern Emergency Physicians, P.A.; Cardio-Thoracic Surgeons, P.C; Suburban Ambulance Service; and several physicians, individually. The trial court entered a summary judgment for all defendants. Smith appeals as to all defendants except Suburban Ambulance Service and the individual physicians.
Victor Scott Smith ("Scott"), 17 years old, was a passenger in the front seat of an automobile being driven by his girlfriend, Tammy Graves. They were involved in a two-vehicle accident in Pinson, Alabama. As a result of the accident, both Scott and Ms. Graves were injured. Scott sustained a blunt trauma to his chest and abdomen. Ambulances arrived.
Anthony Whalen, an emergency medical technician for Suburban Ambulance Service, communicated by radio with Carraway Methodist Medical Center ("Carraway") concerning Scott's vital signs. The emergency department at Carraway received the first call from the emergency medical technicians concerning the accident at 2:15 p.m. Because it appeared that Smith was more severely injured than Ms. Graves, Scott and Ms. Graves were transported from the accident site in different ambulances with different destinations. Ms. Graves was transported to Medical Center East ("MCE"), a Level II trauma center. Scott was to be transported to Carraway, a Level I trauma center.
The plaintiff's expert medical witness, Dr. Jonathan Alexander, testified that a Level I trauma center has a larger staff and more medical supplies and personnel than a Level II trauma center. Because of the ability of its staff to diagnose and intervene rapidly, Dr. Alexander said, a Level I trauma center should show a higher survival rate than a Level II trauma center over a large number of patients.
Upon learning that Ms. Graves was being transported to MCE and not Carraway, Scott requested that he also be sent to MCE. The emergency medical technicians advised Scott that, because of the possible severity of his injury, it would be in his best interest to be treated at Carraway. Nevertheless, Scott stated that he wanted to be with Ms. Graves, and he repeated his request to be treated at MCE. The emergency *1327 medical technicians communicated Scott's preference to Dr. R.W. Berry, the emergency physician on call at Carraway. In the Carraway emergency department logbook, it is noted, in Dr. Berry's handwriting, that it should take 10 to 15 minutes for the ambulance to arrive at Carraway. Additionally, "ME" is inscribed on the log book. Dr. Berry stated that he presumed the inscription was a reference to MCE. He could not identify the handwriting. Despite the advice of the emergency technicians, Scott reiterated his request to be transported to MCE. The emergency medical technicians acceded to his request.
The emergency medical technicians notified MCE by radio that they were transporting Scott there, and that he had sustained a blunt trauma to the chest and abdomen. Dr. William Fialkowski, an employee of Southeastern Emergency Physicians, P.A., the emergency care provider for MCE, received Scott at 2:50 p.m. Dr. Fialkowski immediately obtained an X-ray of Scott's chest. The X-ray showed a widening of the superior mediastinum. Dr. Fialkowski believed that Scott had sustained a tear to his aorta, the main blood vessel that supplies blood from the heart to the rest of the body. Scott's appearance, grayish and dusky, and his vital signs blood pressure, heart rate, and pulsewere compatible with Dr. Fialkowski's diagnosis. At 3:00 p.m., Dr. Fialkowski called a Dr. Rollins, a general surgeon known to be at MCE at the time. Dr. Rollins agreed with Dr. Fialkowski's diagnosis. Both further agreed that to treat Scott a thoracic surgeon was needed.
Maxine Walker, the emergency unit secretary, called the hospital operator and obtained the exchange number for Cardio-Thoracic Surgeons, P.C., the group of thoracic surgeons providing emergency care to MCE. The exchange number was that of Answering Birmingham, the answering service for Cardio-Thoracic Surgeons. Ms. Walker called the exchange number and was told that Dr. Austen Bennett was the physician on call. Within 10 or 15 minutes, Dr. Bennett called MCE and informed Ms. Walker that he was not on call but that Dr. John Harlan was on call. Dr. Harlan called Ms. Walker at approximately 3:25 p.m., 10 or 15 minutes after Dr. Bennett had called Ms. Walker. Dr. Fialkowski related Smith's condition to Dr. Harlan, who ordered that an arch aortagram be done. An arch aortagram must be performed by a radiologist. At the time Dr. Harlan issued the order, a radiologist was on call, but he was not at the hospital. The purpose of an aortagram is to ascertain precisely the location of the tear in the aorta so that the tear can be reached quickly during surgery. Ms. Walker called a radiologist, who arrived at the hospital at 3:55 p.m.
At 3:47 p.m., Scott became asystolic, that is, his heart registered no electrical activity. Dr. Fialkowski and the MCE staff attempted cardio-pulmonary resuscitation at that time. An aortagram cannot be performed during cardio-pulmonary resuscitation. Attempts to revive Scott were unsucessful, and, at 4:50 p.m., he was pronounced dead.
Calvin Smith's action, alleging the wrongful death of his son Scott, was pending in the Jefferson Circuit Court on June 11, 1987; therefore, the "scintilla rule" of evidence applies. See Ala.Code 1975, § 12-21-12. The trial court entered a summary judgment for all defendants. The trial court, relying on Sasser v. Connery, 565 So. 2d 50 (Ala.1990), held that, the plaintiff had failed to produce a scintilla of evidence that any action or omission of any of the defendants had probably caused Scott Smith's death, and thus that there was no genuine issue of material fact on the element of proximate cause.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. Lolley v. Howell, 504 So. 2d 253 (Ala.1987). All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Lolley v. Howell, supra; Fountain v. Phillips, 404 So. 2d 614 (Ala.1981).
Calvin Smith argues that, for separate reasons, each of the defendants proximately *1328 caused his son's death. First, we address his argument concerning Carraway's alleged negligence.
Smith argues that Carraway proximately caused his son's death because Dr. Berry, the emergency physician on call at Carraway at the time of the accident, did not mandate that he be transported to Carraway. In support of his argument, Smith offers the deposition of Dr. Alexander, his expert medical witness. Dr. Alexander testified that he was aware that Scott Smith informed the emergency medical technicians that he wanted to be with Ms. Graves and that he wanted to be treated at MCE. In light of this testimony, Dr. Alexander stated that, given Dr. Berry's knowledge of the serious nature of Scott's injury, Dr. Berry should have instructed the emergency medical technicians on the scene to transport Scott to Carraway, regardless of his request to be taken to MCE.
Carraway argues that established medical procedures mandate that an injured person be transported to the hospital of his choice. Carraway presented the testimony of Dr. Berry, who stated that medical procedures for the transportation of injured persons from the scene of an accident are promulgated by the Birmingham Regional Emergency Medical Services System ("BREMSS"), an agency established by the Alabama Department of Public Health. He said that Carraway was a member of BREMSS at the time of Scott's accident. Dr. Berry further stated that, according to the procedure established by BREMSS, a patient must be transported to the hospital of his choice if that person is able to speak and is capable of making a decision. Dr. Berry's testimony is corroborated by the testimony of both Anthony Whalen and Peggy Hughes, the emergency medical technicians present at the scene of the accident.
Based on the undisputed testimony of Dr. Berry, Anthony Whalen, and Peggy Hughes, we hold that there was no genuine issue of material fact as to whether established medical procedures mandated that Suburban Ambulance transport Scott Smith to the hospital of his choice if he was able to speak and was capable of making a decision. It is also undisputed that Scott was able to speak and that he was capable of making a decision. Therefore, Carraway had no duty to mandate that Suburban Ambulance transport Scott to its emergency room. Accordingly, we hold that Carraway was entitled to a judgment as a matter of law.
The plaintiff argues that the trial court erred in entering judgment for MCE for three reasons: 1) MCE failed to order the ambulance squad to transport a seriously ill patient to Carraway, a Level I trauma center, rather than to MCE; 2) Dr. Fialkowski failed to order that Scott be transferred to Carraway after his initial evaluation of the patient; and 3) the staff at MCE caused a delay in contacting the on-call surgeon at Cardio-Thoracic Surgeons.
The plaintiff also argues that Southeastern Emergency Physicians, the group for whom Dr. Fialkowski provided emergency services to MCE, is liable for Dr. Fialkowski's failure, after initial evaluation, to order Scott transferred to Carraway.
As to Cardio-Thoracic Surgeons, the plaintiff argues that Dr. Harlan, upon learning of Scott Smith's condition, should have ordered that Scott be sent to Carraway, and that his failure to do so proximately caused Scott's death.
MCE, Southeastern Emergency Physicians, and Cardio-Thoracic Surgeons argue, separately, that the trial court correctly entered judgment on their behalf because, they argue, the plaintiff presented no evidence that they proximately caused Scott Smith's death. They argue that Dr. Alexander, the plaintiff's expert medical witness, could not state that their acts or omissions probably caused Scott Smith's death.
"In medical malpractice cases, the plaintiff must prove negligence through the use of expert testimony, unless an understanding of the doctor's alleged lack of due care or skill requires only common knowledge or experience." Monk v. Vesely, 525 So. 2d 1364, 1365 (Ala. 1988).
*1329 In Sasser v. Connery, 565 So. 2d 50, 51 (Ala.1990), we cited Peden v. Ashmore, 554 So. 2d 1010 (Ala.1989), in which we had stated the law concerning the legal sufficiency of evidence on the element of proximate cause in a medical malpractice action:
"The Plaintiff must adduce some evidence that the alleged negligence probably caused the injury or death:
"Howard v. Mitchell, 492 So. 2d 1018, 1019 (Ala.1986)."
554 So. 2d at 1013 (emphasis in original).
Resolving all reasonable doubts against the defendants, we find that Dr. Alexander's deposition testimony reveals the following:
Scott Smith suffered a torn descending aorta. A torn descending aorta causes blood to pour into the chest cavity. In Scott's case, although 10 pints of blood were transfused into his body, he died from an excessive loss of blood. Eighty per cent of those who suffer from a torn descending aorta as a result of an accident die at the scene of the accident. Approximately 90 to 95% of those who incur a torn descending aorta, whether they are transported from the accident scene or not, die from the injury. To survive, Scott Smith required a surgical procedure known as a thoracotomy. Performing a thoracotomy would have entailed opening Scott's chest, identifying the area of insult to the aorta, crossclamping the aorta, and repairing the tear. The surgery should be performed in "an operating room theatre, with anesthesia assistance, plus many other factors that favor survivability, as opposed to an emergency room." An "emergency thoracotomy" differs from a thoracotomy insofar as no presurgery aortagram, anesthesia, or other surgery support is used. Dr. Alexander stated that he did not "fault [Dr. Fialkowski] for not opening the chest" because "emergency thoracotomy has a close to zero per cent survival rate."
Although Dr. Alexander recommended that a thoracotomy should have been performed on Scott, he could not state that the surgery probably would have saved Scott's life. The defendants quote the following from Dr. Alexander's deposition:
"Q. Whatdo you contend that some surgery would have saved this boy's life?
"A. I contend that surgery performed in a timely fashion may have saved this boy's life, yes, sir.
"A. I can't tell you that with 100 percent certainty that surgery was going to save his life.
"Q. You can't even state that in all probability it would have, can you?
In Sasser v. Connery, Ollie Powers Sasser died from cancer. Her administrator, John Lee Sasser, sued Dr. Francis Connery in a wrongful death action, alleging that his failure to conduct certain tests on the deceased had resulted in her eventual death from a cancer that could have been effectively treated if those tests had been conducted and the cancer detected earlier. Dr. Connery argued that the plaintiff had failed to produce a scintilla of evidence that he proximately caused Ollie Sasser's death. The trial court denied the defendant's motions for directed verdict, and the jury returned a verdict in his favor. Sasser appealed and Dr. Connery cross-appealed. In his cross-appeal, Dr. Connery argued that the trial court erroneously denied his motions for directed verdict because, he argued, the plaintiff did not present any expert medical testimony that his alleged negligence probably caused Ollie Sasser's death. Reviewing the evidence for a scintilla of evidence tending to prove that Dr.
*1330 Connery's alleged negligence caused injury to Ollie Sasser, the Sasser Court stated:
565 So. 2d at 51 (emphasis in original).
In this case, Dr. Alexander testified that, while he disagreed with Dr. Fialkowski's treatment of Scott Smith and that he believed the defendants caused some delay in treating Scott, he could not say that a thoracotomy would have probably saved his life. Therefore, Calvin Smith did not produce a scintilla of evidence that the defendants' alleged negligence probably caused Scott Smith's death. Therefore, because the plaintiff clearly failed to rebut the prima facie showing of a lack of probable cause, there is no genuine issue of material fact and the defendants are entitled to a judgment as a matter of law.[1] Rule 56(c), A.R.Civ.P.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I find no initial legal liability on the part of any defendant for any act that proximately caused the tragic death of young Victor Scott Smith, even using the most liberal standard for testing the sufficiency of the evidencethe scintilla rule. In Bradford v. McGee, 534 So. 2d 1076, 1079-80 (Ala.1988), this Court held:
"`What was said in McClinton v. McClinton, 258 Ala. 542, 544-45, 63 So. 2d 594, 597 (1952), is appropriate in this case:
"`"Proof which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause."
"`But a nice discrimination must be exercised in the application of this principle.
"`(Quoting Southern Ry. Co. v. Dickson, 211 Ala. 481, 486, 100 So. 665, 669 (1924). See, e.g., McKinnon v. Polk, 219 Ala. 167, 168, 121 So. 539, 540 (1929) (a case involving a suit for personal injuries allegedly caused by the negligence of the plaintiff's physician)).'
"Howard at 1020."
[1] The reasoning employed in this portion of our opinion applies equally to Carraway; however, Carraway did not raise this argument on appeal. | August 16, 1991 |
b3002303-ef6d-44ac-84ab-498bbc67696a | Ex Parte Alfab, Inc. | 586 So. 2d 889 | 1901295 | Alabama | Alabama Supreme Court | 586 So. 2d 889 (1991)
Ex parte ALFAB, INC.
Re ALFAB, INC. v. Raymond E. MURRAY, et al.
1901295.
Supreme Court of Alabama.
August 23, 1991.
Joe S. Pittman and J. Stafford Pittman, Jr. of Pittman, Whittaker & Pittman, Enterprise, for appellant.
*890 J. Fairley McDonald III of Copeland, Franco, Screws & Gill, Montgomery, for appellee.
HOUSTON, Justice.
Alfab, Inc., has petitioned this Court for a writ of mandamus directing the Honorable Gary McAliley, Judge of the Coffee County Circuit Court, to set aside his order staying execution on Alfab's judgment against Raymond E. Murray, insofar as that judgment pertains to certain funds that were previously held in an escrow account under the supervision and control of Herbert A. Barr and that are now held in an account under the supervision and control of the circuit court clerk ("the escrowed funds"). The writ is denied.
The pertinent facts, which were adequately set out in Alfab's petition, are as follows:
The sole issue before this Court is whether Alfab is entitled to immediate possession of the escrowed funds, or, stated another way, whether the trial court had the authority to stay execution on the escrowed funds pending Murray's appeal.
It is well established that mandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Loeb & Co., 349 So. 2d 9 (Ala.1977).
Alfab contends that the trial court had no authority to stay execution on the escrowed funds because at the time the order staying execution was entered those funds had been transferred to the circuit court clerk pursuant to a writ of execution. Alfab further contends that the order staying execution on the escrowed funds was invalid because, it says, Murray failed to post an adequate bond under Rule 8(a), A.R.App.P. Alfab also asserts that the trial court's order prohibited it from receiving that portion of the escrowed funds that was the subject of the settlement agreement between it and the Solomons, and that the trial court had no authority to freeze those funds.
At common law, the execution on a judgment had to be superseded prior to the levy under a writ of execution or else the execution on the judgment could continue.[1] This rule was based on the theory that the judgment was fully executed from the time of the levy. However, although the execution on the judgment was allowed to continue when it was not superseded prior to the levy under a writ of execution (e.g., the sale of goods was permitted when the goods were seized under a writ of execution prior to the issuance of a writ of supersedeas), a writ of supersedeas issued after the levy, but prior to satisfaction of the judgment, stayed the disbursement of any proceeds generated by the execution. See 4 Am.Jur.2d Appeal and Error § 372 (1962); 4A C.J.S. Appeal and Error § 667 (1957); United States v. Dashiel, 70 U.S. (3 Wall.) 688, 18 L. Ed. 268 (1865); Meriton v. Stevens, Willes 271, 125 Eng.Rep. 1168 (1741). The common law rule appears to have been widely abrogated by statute, at least partially, and the rule now in effect in most jurisdictions is that a proper supersedeas becomes effective notwithstanding a levy, and stays any further proceedings under the writ of execution. 4 Am.Jur.2d, supra, § 372; 4A C.J.S., supra, § 667:
In Alabama, Rule 62(d), Ala.R.Civ.P., provides:
(Emphasis added.) In Osborn v. Riley, 331 So. 2d 268, 274 (Ala.1976), this Court, quoting Fidelity & Deposit Co. v. Torian, 221 Ala. 131, 133, 127 So. 829, 831 (1930), stated that "[t]he purpose of a supersedeas bond is `to keep the parties in status quo pending the appeal.'" The Court went on to note that the preemptive effect of a supersedeas bond on the right to execute on a judgment "`reach[es] not only to possession of the property, but [to] every other consequence of the judgment.'" See, also, North Birmingham Trust & Savings Bank v. Hearn, 211 Ala. 18, 99 So. 175 (1924).
Under the foregoing authorities, we hold that the trial court in the present case had the authority under Rule 62(d), upon the filing of a supersedeas bond in sufficient form and amount, to stay the execution on the escrowed funds and to maintain the status quo between Alfab and Murray by requiring the circuit court clerk to keep those funds in an interest-bearing account for the protection of the parties pending Murray's appeal to this Court.
Furthermore, we have carefully examined the supersedeas bond posted by Murray and we cannot agree with Alfab's contention that the bond is inadequate. Specifically, Alfab makes the following argument:
The bond, however, is sufficient in form and Murray's obligation thereunder, contrary to Alfab's contention, is secured by an irrevocable letter of credit from South-Trust Bank of Tampa, Florida, in the amount of $10,000. Because the funds sought by Alfab will be maintained by the circuit court clerk in an interest-bearing account pending Murray's appeal, we can find no abuse of discretion on the trial court's part in setting the bond at $10,000 pursuant to Rule 8(a)(3).[2] Alfab's assertion *893 that $10,000 is an insufficient amount to fully protect it is not supported by the record.
Furthermore, from our review of the record, we are uncertain as to whether the trial court actually intended to deny Alfab access to any funds that were the subject of the settlement agreement between Alfab and the Solomons. The settlement agreement provides, in pertinent part, as follows:
Alfab filed a motion asking the trial court to reconsider its order staying execution on the escrowed funds and, for all that appears in the record, argued for the first time in that motion that, even upon the filing of a proper supersedeas bond by Murray, the trial court had no authority to deny it access to any funds that were the subject of the settlement agreement between it and the Solomons. The trial court had not ruled on that motion at the time this petition was filed. We cannot issue a writ of mandamus in the absence of a clear showing that the trial court denied Alfab access to funds as to which it is entitled to immediate possession.
In conclusion, we note Alfab's contention that the stay should be lifted to enable the former escrow agent, Barr, and Alfab's attorneys, the firm of Pittman, Whitaker & Pittman, to be reimbursed for their respective expenses and compensated for their services rendered, from the escrowed funds. We point out, however, that neither Barr nor Alfab's attorneys are parties before this Court; therefore, we cannot issue a writ of mandamus with respect to any claims that they may have to immediate possession of a portion of the escrowed funds.
Having found no support in the record for Alfab's contention that it is entitled to the relief sought in its petition, we must deny the writ.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] A levy under a writ of execution is defined in 30 Am.Jur.2d Executions § 221 (1967) as follows:
"Generally, it may be stated that a levy under a writ of execution to enforce a judgment for money is an act of dominion over specific property by an authorized officer of the court which, but for the writ under which he proceeds, would be a trespass, conversion, or other unlawful invasion of a property right, and which results in the creation of a legal right to subject the debtor's interest in the property to the satisfaction of the debt of his judgment creditor, to the exclusion of others whose rights are inferior. Hence, the levy of execution is an absolute appropriation in law of the property levied upon to the payment of the judgment debt."
[2] Rule 8 provides, in pertinent part, as follows:
"(a) Stay by supersedeas bond. The appellant shall not be entitled to a stay of execution of the judgment pending appeal (except as provided in ARCP Rule 62(e)) unless he executes bond with good and sufficient sureties, approved by the clerk of the trial court, payable to the appellee (or to the clerk or register if the trial court so directs), with condition, failing the appeal, to satisfy such judgment as the appellate court may render, when the judgment is:
". . . .
"(3) Only for the performance of some act or duty, or for the recovery or sale of property or the possession thereof (or if the judgment includes the payment of money and appellant does not wish to supersede the judgment in that respect), in such sum as the trial court may in writing prescribe."
The judgment from which Murray appealed, insofar as it pertained to the escrowed funds, was for the recovery of personal property within the meaning of Rule 8(a)(3), and the trial court properly treated it as such. | August 23, 1991 |
09fb4efc-729f-46ad-a21e-70d95405d3ae | Alfa Mut. Ins. Co. v. Moreland | 589 So. 2d 169 | 1900811 | Alabama | Alabama Supreme Court | 589 So. 2d 169 (1991)
ALFA MUTUAL INSURANCE COMPANY
v.
James E. MORELAND.
1900811.
Supreme Court of Alabama.
August 9, 1991.
Edward O. Conerly and John F. McDaniel of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellant.
Billy L. Church of Church, Trussell & Funderburg, Pell City, for appellee.
*170 ALMON, Justice.
Alfa Mutual Insurance Company appeals from a judgment entered on a jury verdict against it in an action by its insured, James E. Moreland, to recover uninsured motorist insurance benefits. Two questions are presented: (1) Whether the trial court correctly denied Alfa's motion for a new trial based on the grounds that conduct by the plaintiff's counsel prejudiced the jury so as to cause it to return an excessive verdict, and (2) whether, in this action against an insurance company for uninsured motorist benefits where the court disallowed evidence as to the amount of available policy limits, the trial court should have granted Alfa's motion for remittitur when the jury's verdict was in excess of the policy limits for uninsured motorist benefits.
Moreland was involved in an automobile collision with a vehicle operated by an uninsured motorist. Moreland filed a claim with Alfa and, subsequently, brought this action to recover uninsured motorist benefits under three automobile liability insurance policies he had purchased from Alfa. It is undisputed that the total amount of uninsured motorist benefits available under these three policies was $60,000. Before the trial, the court granted Alfa's motion in limine to prohibit Moreland from offering evidence of the amount of uninsured motorist benefits available under the three policies. Although the closing arguments were not transcribed by the court reporter, Alfa contends that Moreland's counsel stated in his closing remarks to the jury that "Alfa had a contractual obligation to the plaintiff, and that obligation was for $150,000.00." Following the parties' closing arguments, Alfa, in a conference with the trial judge, objected to this statement, but no ruling was entered by the trial court on the objection. The jury returned a verdict in favor of Moreland in the amount of $150,000. Alfa then made a motion for new trial based on the allegedly prejudicial remarks made by Moreland's counsel during his closing arguments. In the alternative, Alfa sought an order of remittitur to the amount of the uninsured motorist benefits available under the three policies. Alfa's motion was deemed denied, pursuant to Rule 59.1, Ala.R.Civ.P., after no ruling had been entered at the expiration of 90 days.
Alfa contends that the trial court erred in refusing to grant its motion for a new trial based on the allegedly prejudicial remarks by Moreland's counsel during his closing arguments. The parties' closing arguments are not in the record. However, the record reveals that Alfa did not object to the allegedly prejudicial remarks until a trial recess following the conclusion of the parties' closing arguments, wherein the following discussion occurred:
Further, the record reveals that, although Alfa's counsel stated that he wanted to make an objection to Moreland's counsel's remark as being prejudicial and in error, Alfa failed to move to exclude the *171 remark, and no ruling was made by the trial court on this objection.
Isbell v. Smith, 558 So. 2d 877, 881 (Ala. 1989), cert. denied, ___ U.S. ___, 111 S. Ct. 68, 112 L. Ed. 2d 42 (1990).
Because of Alfa's delay in objecting and its failure to obtain a ruling by the trial court, there is no error for this Court to review. Isbell v. Smith, 558 So. 2d 877 (Ala.1989); Lawrence v. Alabama Power Co., 385 So. 2d 986 (Ala.1980); Alabama Power Co. v. Henderson, 342 So. 2d 323 (Ala.1977). Had Alfa made a timely and proper objection, a reversal would presumably be in order. The remark allegedly made by Moreland's counsel is not so clearly established or so prejudicial as to warrant a new trial notwithstanding Alfa's failure to properly preserve the alleged error. Therefore, the new trial was properly denied.
Having determined that a new trial is not warranted in this case, we must consider the question of whether, in this action against an insurance company for uninsured motorist benefits where the court disallowed evidence as to the amount of available policy limits, the trial court should have granted Alfa's motion for remittitur when the jury's verdict was in excess of the policy limits for uninsured motorist benefits.
In an opinion released simultaneously with the present opinion, this Court adopted the rationale of Allstate Ins. Co. v. Miller, 315 Md. 182, 553 A.2d 1268 (1989), that, in an action by an insured against its insurer to recover uninsured motorist benefits where the amount of coverage available is not in controversy, evidence of the coverage limits is likely to unduly influence the jury and, thus, is generally not admissible. Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165 (Ala.1991). In an action for uninsured motorist benefits, absent fraud or bad faith, an insured may recover from his insurer damages only up to the limits provided for in the contract of insurance. If the jury returns a verdict that exceeds the policy limits, "the trial court should then reduce the verdict, upon proper post-trial motion, to comply with the limits of the policy." Id., at 169, quoting Allstate Ins. Co. v. Miller, 315 Md. at 192, 553 A.2d at 1273.
The judgment of the trial court is due to be affirmed, conditioned upon Moreland's acceptance of a remittitur of $90,000.
AFFIRMED CONDITIONALLY.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | August 9, 1991 |
d8dba657-d573-482b-aa01-273b91c0e9ca | Durham v. Community Bank | 584 So. 2d 834 | 1900261 | Alabama | Alabama Supreme Court | 584 So. 2d 834 (1991)
Willie Madison DURHAM and Sandra Kay Durham
v.
COMMUNITY BANK OF MARSHALL COUNTY.
1900261.
Supreme Court of Alabama.
August 2, 1991.
Richard F. Ogle and Carolyn Landon of Schoel, Ogle, Benton, Gentle and Centeno, *835 Birmingham, and John David Knight, Cullman, for appellants.
M. Clay Ragsdale IV and Thoms L. Selden of Starnes & Atchison, Birmingham, for appellee.
KENNEDY, Justice.
The plaintiffs, Willie Madison Durham and Sandra Kay Durham, appeal from a summary judgment against them in a declaratory judgment action.
The Durhams borrowed $100,000 from the defendant, the Community Bank of Marshall County ("the Bank"). The Durhams obtained the loan in order to build a new house. On June 1, 1988, the Durhams borrowed an additional $32,079.15 from the Bank to complete the construction of the house. During the construction of the house, the Durhams maintained a checking account with the Bank in order to pay for construction expenses. The Durhams closed the construction checking account when the house was completed in August 1988.
In July 1988, the Durhams requested that the Bank convert the two construction loans to a permanent fixed-rate mortgage loan, and the Bank did so. The Bank alleges that as part of the consideration for the permanent mortgage loan, the Durhams orally agreed to maintain a checking account with the Bank. The Durhams deny that the Bank required them to maintain a checking account as part of the mortgage loan transaction. We note that maintaining a checking account was not a part of the written mortgage loan agreement.
When the Bank realized that the construction loan checking account had been closed, the president of the Bank contacted the Durhams and requested that they open another checking account. The Durhams did open another checking account in October 1988. However, in December 1988, the Durhams closed that checking account after a dispute with the Bank concerning an overdraft caused by certain checks.
On January 31, 1989, the president of the Bank wrote the following letter to the Durhams:
The Durhams wrote a letter to the Bank on February 2, 1989, requesting an explanation for demanding immediate payoff of the loan. The Bank did not respond to the letter. The Durhams sued the Bank, demanding declaratory and injunctive relief. The Durhams also claimed money damages based on the tort of outrage; based on breach of contract and breach of an implied duty of good faith; and based on negligence, intentional infliction of emotional distress, invasion of privacy, and wanton and willful misconduct.
The Bank filed a motion for summary judgment on March 6, 1990. At the summary judgment hearing, the plaintiffs agreed to dismiss the claims alleging outrage and breach of an implied duty of good faith. The trial court entered a summary judgment in favor of the Bank on the claim of intentional infliction of emotional distress. The Bank refiled its motion for summary judgment on the remaining claims. On October 11, 1990, the trial court entered a summary judgment in favor of the Bank on the claims for declaratory relief, injunctive relief, and damages based on breach of contract, negligence, invasion of privacy, and wanton and willful misconduct.
The Durhams argue, among other things, that the trial court erred by failing to grant declaratory relief setting out the rights of both parties. We agree.
There must be a bona fide justiciable controversy in order to grant declaratory relief. Gulf South Conference v. Boyd, 369 So. 2d 553 (Ala.1979). If no justiciable controversy exists when the suit is commenced, then the court lacks jurisdiction. *836 Wallace v. Burleson, 361 So. 2d 554 (Ala.1978).
In the instant case, there is a bona fide justiciable controversy. The Bank demanded that the loan be paid in full because of the plaintiffs' failure to maintain a checking account with the Bank. Although the Bank has taken no further action toward foreclosing on the loan, demanding full payment of the loan created a justiciable controversy. In its letter, the Bank threatened the Durhams with legal action if the loan was not paid in full by February 28, 1989. The Durhams requested an explanation for demanding that the loan be paid in full, and they were not given one. We note that the Durhams are not in default on their payments on the note that is secured by the mortgage. The mortgage still exists, as does the possibility that the Bank will attempt to foreclose. Simply because the Bank has not foreclosed on the loan does not mean that there is no controversy.
We reverse the judgment and remand this case to the trial court for a determination of whether the Bank is entitled to demand full payment of the loan based on an alleged oral agreement to maintain a checking account.
As to the other issues presented on appeal, we find that the plaintiffs have failed to show that a genuine issue of material fact existed. Thus, we affirm the trial court's summary judgment on the claims for injunctive relief and the claims for damages based on breach of contract, negligence, invasion of privacy, and wanton and willful misconduct.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, HOUSTON and INGRAM, JJ., concur. | August 2, 1991 |
000c8fa4-ff93-419f-a42b-44b038293220 | Brown v. Pound | 585 So. 2d 885 | 1900191 | Alabama | Alabama Supreme Court | 585 So. 2d 885 (1991)
Vadine BROWN
v.
Dr. Daniel POUND, et al.
1900191.
Supreme Court of Alabama.
August 9, 1991.
John L. Sims, Hartselle, for appellant.
John S. Key and James G. Adams, Jr. of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellees.
ADAMS, Justice.
This case involves the suspicion of child abuse reported by a doctor, pursuant to the Child Abuse Reporting Act, § 26-14-1 et seq., Code of Ala. 1975. Vadine Brown appeals from the dismissal of her claim against Dr. Daniel Pound and others, on the ground of immunity, as provided for by § 26-14-9, Code of Ala.1975. We affirm.
On March 6, 1988, Mrs. Brown took her grandson to Decatur Medical Surgical Center to be treated for a burn. Dr. Daniel Pound, who was in charge of the emergency room, examined the burn. As a result of his examination, he suspected child abuse and reported his suspicions to the Morgan County Department of Human Resources, as mandated by § 26-14-3, Code of Ala. 1975. The Department of Human Resources investigated and determined that there was no evidence of child abuse.
On January 10, 1989, Mrs. Brown filed a complaint in the Circuit Court of Morgan County, against Dr. Daniel Pound and Decatur Medical Associates, Ltd., a partnership doing business as Decatur Medical Surgical Center, on the theory of respondeat superior. She alleged that the report made by Dr. Pound was groundless and in violation of the Child Abuse Reporting Act. She further alleged that, as a result of the report, she had suffered mental and emotional damages, as well as an invasion of privacy.
In response to her complaint, Dr. Pound and Decatur Medical Associates filed a motion to dismiss on the ground of absolute immunity, citing § 26-14-9. The trial court dismissed the case. Vadine Brown filed a notice of appeal on November 1, 1990.
*886 The sole issue presented is whether the trial court erred in dismissing the case on the ground that § 26-14-9, Code of Ala. 1975, provides absolute immunity to the doctor and to the medical center.
The Alabama Child Abuse Reporting Act was passed in 1965 for the purpose of protecting children who may be subjected to abuse or neglect. Section 26-14-3 mandates that certain persons report known or suspected child abuse:
The failure of any of the persons named in the statute to report suspected child abuse subjects them to criminal sanctions. Because it requires that these individuals report child abuse, it also provides immunity to those who report.
Section 26-14-9 provides:
Mrs. Brown contends that § 26-14-9 is not, and should not be, an absolute grant of immunity. She alleges in her complaint that because of Dr. Pound's groundless report, she was subjected to embarrassment, humiliation, and mental and emotional stress.
Only one case to date has thoroughly addressed the issue of immunity in suspected child abuse or neglect cases. In Harris v. City of Montgomery, 435 So. 2d 1207 (Ala. 1983), the examining physician filed a report with the Montgomery Police Department after diagnosing the child's injury as a case of suspected child abuse or neglect. After an investigation, the police department determined that the case was not one of child abuse or neglect. Thereafter, the child's mother filed a complaint against the treating physician, the hospital, the police officers, and the City of Montgomery. The trial court granted the physician and the hospital's motion to dismiss, pursuant to the immunity provision of § 26-14-9. See 435 So. 2d at 1212. This Court stated that the immunity was absolute. Id.
In Harris, the allegations against the officers, however, included false imprisonment, false arrest, defamation, and other tortious conduct not protected by the statute. Harris, at 1212. This Court determined that the officers' alleged actions were not protected by the immunity provision and reversed the dismissal as to those allegations and remanded the case for further proceedings. Id.
Mrs. Brown argues that Harris indicates that the immunity provided by § 24-14-9, is not absolute if there are allegations of other torts. While mere compliance with the statute is not an automatic grant of immunity, this case does not present any allegations of injury or damage not related to the reporting of the suspected child abuse. See, Harris, at 1215. There is no evidence that Dr. Pound did anything more than comply with the mandates of the statute in reporting his suspicions. Because the action of Dr. Pound and the Decatur Medical Surgical Center were within the requirements of the Child Abuse Reporting Act, § 26-14-9 provides them with absolute immunity.
Vadine Brown contends that because the statute is not an absolute bar to immunity, *887 the trial court erroneously dismissed her claim. The standard of review applicable to motions to dismiss is set forth in Seals v. City of Columbia, 575 So. 2d 1061 (Ala. 1991), quoting from Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985):
"`Where a [Rule] 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So. 2d 258 (Ala.1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So. 2d 57 (Ala. 1982).'" (Emphasis in Fontenot.)
Mrs. Brown has failed to allege any claims for which § 26-14-9 does not provide immunity; therefore, the dismissal was proper.
The judgment of dismissal is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | August 9, 1991 |
8f0c40e0-d88f-46d2-be90-566674f00e22 | Peek v. RESERVE NAT. INS. CO. | 585 So. 2d 1303 | 1900055 | Alabama | Alabama Supreme Court | 585 So. 2d 1303 (1991)
Rayburn PEEK and Eve Peek
v.
RESERVE NATIONAL INSURANCE COMPANY and Lee Porter, Jr.
1900055.
Supreme Court of Alabama.
August 9, 1991.
*1304 Leila Hirayama of Johnson & Cory, Birmingham, for appellants.
Laura A. Woodruff of Maynard, Cooper, Frierson & Gale, Birmingham, for appellees.
PER CURIAM.
Rayburn and Eve Peek appeal from a summary judgment in favor of the defendants, Reserve National Insurance Company and Lee Porter, Jr., in their action alleging breach of contract, bad faith refusal to pay an insurance claim, and misrepresentation.
On September 3, 1985, Lee Porter, Jr., as an agent for Reserve National, met with Rayburn and Eve Peek, husband and wife, at the Peeks' home to discuss their desire to purchase a major medical health insurance policy that would provide coverage for themselves and their two minor daughters, Tina and Penny. The Peeks completed an application for coverage under Reserve National Insurance Company's group hospital-medical-surgical expense policy. As part of the application process, Porter questioned the Peeks regarding any hospital confinement or surgical operations that they had undergone. In response to these questions, the Peeks told Porter about menstrual difficulties and cramps that Tina had been experiencing since late 1984. They gave Porter a copy of the report written by Tina's physician, Dr. Snyder, following exploratory surgery that Dr. Snyder had performed on Tina in January 1985. The report including the following:
After the Peeks showed Dr. Snyder's report to Porter, Porter used the Peeks' telephone, read Dr. Snyder's report over the phone to someone, and questioned that person about coverage for Tina. Porter then told the Peeks that Tina would be "covered" under the policy that they were purchasing. Porter did not mention any preexisting condition exclusion to them or offer them a preexisting benefit endorsement. Porter summarized Dr. Snyder's report on the Peeks' application for the insurance with Reserve National, as follows:
Also during this meeting on September 3, 1985, Eve Peek signed a document entitled "Outline of Group Hospital and Medical-Surgical Expense Coverage." That document contained the following provision regarding the waiting period for coverage for preexisting conditions:
The Peeks contend that they did not receive a copy of that "Outline" of coverage or see it again until discovery in this action. Mrs. Peek conceded that the signature on it might be hers, but stated by affidavit that she did not remember having seen it and that Porter did not read it to her at the time he took the application. The "Outline" of coverage expressly states that "This is not an insurance contract and only the actual certificate provisions will control."
Reserve National subsequently issued a policy to the Peeks, which was effective September 3, 1985. This policy was delivered to the Peeks by Porter. The policy contained the following pertinent provisions regarding covered sickness:
The policy also contained the following clause, entitled "Recurrent Injury or Sickness":
The policy delivered to the Peeks did not contain any provision setting forth the definition of a "preexisting condition," nor did it contain any provision relating to the waiting periods for coverage for any expense that resulted from a preexisting condition.
In January 1986, Tina Peek consulted Dr. Blake Isbell, in Fort Payne, with complaints of pelvic pain. On January 12, 1986, Dr. Isbell admitted Tina to Baptist Medical Center in Fort Payne for exploratory surgery. The surgery revealed a left ovarian cyst, which Dr. Isbell removed. The Peeks submitted a claim to Reserve National for the costs of this operation. In considering the claim, Reserve National reviewed Dr. Isbell's summaries of the patient history and his physical examination, as well as the discharge report from Baptist Medical Center. The patient history included the following information:
The physical examination summary prepared by Dr. Isbell after his examination of Tina in January 1986 noted the following:
Additionally, the discharge summary, which was also prepared by Dr. Isbell, contained the following summary:
Based upon this information from Dr. Isbell, Reserve National determined that Tina's ovarian cyst was a preexisting condition and, accordingly, denied the Peeks' claim for benefits. Following that denial, the Peeks filed this action for damages, alleging fraudulent misrepresentation, breach of contract, and bad faith refusal to pay a claim. The defendants, Lee Porter and Reserve National, filed a motion for summary judgment as to all claims asserted by the Peeks. That motion was granted by the trial court, and the Peeks now appeal the resulting summary judgment; they raise issues regarding all three of their claims.
Regarding the breach of contract claim, the Peeks first argue that the contract of insurance entered into between themselves and Reserve National did not contain an exclusion for preexisting conditions. As pointed out above, the policy of insurance purchased by the Peeks contained only two clauses pertaining to sickness: one clause that defined a "sickness," including the condition that a covered sickness must first manifest itself after the effective date of the policy, and a second clause that defined a "recurrent injury or sickness." The only explicit reference to preexisting conditions is the clause setting forth the waiting periods for coverage for preexisting conditions that is found in the document entitled "Outline" of coverage. The outline of coverage, however, specifically states:
The Peeks assert that they were not given a copy of the outline of coverage when they applied for coverage on September 3, that Porter did not read it to them, and that no copy of it was delivered to them with the insurance policy. Further, in order for the outline to merge with and become part of the insurance policy, it must be incorporated by reference into the insurance policy. Rochester v. Hamrick Const. Co., 481 So. 2d 881 (Ala. 1985), overruled on other grounds, Elmore County Comm'n v. Ragona, 540 So. 2d 720 (Ala.1989). The outline of coverage is not referenced in any way in the insurance policy received by the Peeks. Thus, the language in the outline of coverage purporting to define and limit coverage for preexisting conditions is not part of the contract and cannot serve as a basis for denial of the claim.
The Peeks next argue that Tina's left ovarian cyst did not manifest itself before the effective date of the contract, or that there was at least a fact question as to whether it so manifested, and that that fact precluded a summary judgment based on the definition of a covered sickness. To support this argument, the Peeks refer to the exploratory surgery performed by Dr. Snyder in January 1985, which revealed no abnormalities. Furthermore, the Peeks contend that Reserve National failed to meet its burden of proving that the insured's sickness originated prior to the effective date of the policy. Boston v. National Life & Accident Insurance Co., 405 So. 2d 943 (Ala.Civ.App.), cert. denied, 405 So. 2d 944 (Ala.1981) ("[i]n cases such as this the burden of proof is upon the insurer to establish that the insured's sickness originated prior to the effective date of the policy").
To sustain its burden of proving that Tina's sickness originated prior to the effective date of the policy, Reserve National points out that Tina's medical records prepared by Dr. Isbell stated that the cyst had been documented by sonar three times in the period of one year prior to January 1986. However, the evidence does not conclusively show that any of those three sonars that were allegedly performed were performed prior to the effective date of the policy. There is some evidence that a sonar was performed prior to the exploratory surgery in January 1985, *1307 but any positive results of that sonar were contradicted by that exploratory surgery. Thus, from the record before us, there is a fact question as to whether the cyst was the cause of Tina's earlier problems or whether it first manifested itself after the effective date of the policy.
Furthermore, there is evidence that Reserve National approved coverage for Tina with knowledge of the earlier symptoms and exploratory surgery, but did not except further treatment for that condition from coverage. With coverage for Tina in spite of those symptoms being an express part of the application for and approval of the contract of insurance, Reserve National may be held to have waived any claim that treatment for that condition was excluded from the coverage of the policy. Also, Reserve National paid for an ultrasound examination performed by Dr. Isbell several days before he performed the 1986 surgery, and the diagnosis from the ultrasound was "left ovarian cyst." "[T]he waiver of contract provisions may be implied from acts and circumstances surrounding the performance of the contract." Industrial Machinery, Inc. v. Creative Displays, Inc., 344 So. 2d 743, 746 (Ala. 1977).
For the foregoing reasons, the trial court erred in entering the summary judgment as to the claim alleging breach of contract.
The elements of a claim alleging fraudulent misrepresentation have been set forth as follows:
Dickinson v. Moore, 468 So. 2d 136, 137-38 (Ala.1985). Of these four elements, the parties dispute only the existence of a false representation by Porter and reliance on that representation by the Peeks. Therefore, we pretermit any discussion of the other elements.
The Peeks contend that, in applying for health insurance, they gave Lee Porter accurate information about Tina's medical history. It is undisputed that this information included the following report regarding Tina's medical history:
The Peeks assert that, after they gave this information to Porter, he used their telephone to call someone, read Dr. Snyder's report over the telephone, questioned the party on the other end of the telephone line about coverage for Tina, and then represented to the Peeks that Tina would be "covered." The Peeks also state that Porter did not mention any preexisting condition exclusion to them or offer them a preexisting benefit endorsement.
The defendants contend that Mr. Porter did not make a false representation to the Peeks when he told them that Tina was "covered." According to the defendants, the trial court correctly granted their motion for summary judgment because Tina was "covered" under the policy of insurance; the coverage simply did not include coverage for further treatment for the described condition. Therefore, they contend, no misrepresentation occurred. We cannot agree.
The evidence is undisputed that, out of their concern about obtaining coverage for Tina, the Peeks specifically told Porter about Tina's prior medical problems and symptoms. In fact, the Peeks even provided Porter with Dr. Snyder's operative report from Tina's exploratory surgery in January 1985. Porter read this report to someone over the telephone and then represented to the Peeks that Tina was "covered." He did not explain any preexisting condition limitation to the Peeks or offer them a preexisting benefit endorsement. This evidence is sufficient to create a jury question as to whether Porter made a false *1308 representation concerning the coverage under the policy for Tina.
The defendants also contend that the evidence conclusively establishes that the Peeks did not rely upon any representation by Mr. Porter. They argue that the Peeks could not have relied on any statement made by Mr. Porter because they were informed of the limitation on pre-existing sicknesses by the outline of coverage, which was signed by Eve Peek.
In reversing a summary judgment on a claim alleging fraudulent misrepresentation, this Court in Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989), held:
"`[r]eliance should be assessed by the following standard: A plaintiff, given the particular facts of his knowledge, understanding, and present ability to fully comprehend the nature of the subject transaction and its ramifications, has not justifiably relied on the defendant's representation if that representation is "one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth."'
Our review of the evidence does not support a holding that, as a matter of law, the representation by Mr. Porter was "so patently and obviously false that [the Peeks] must have closed [their] eyes to avoid the discovery of the truth." Hickox, supra.
Porter discussed with the Peeks Tina's earlier symptoms, and he relayed the medical report of her treatment to other agents of Reserve National. After receiving approval from those agents, he told the Peeks that Tina would be covered. A jury could find from these facts that Porter, on behalf of Reserve National, represented that Tina would be covered without any exclusion of further treatment related to the symptoms she had described. Given that Reserve National now asserts that the coverage did exclude such treatment, a jury could find that such a representation was false. Although the outline of coverage contradicted such a representation, a jury could find that Porter obtained Mrs. Peek's signature on that document but did not give a copy of it to the Peeks. Mrs. Peek stated in her affidavit that she did not remember seeing the outline of coverage on September 3, 1985, and that Porter did not read it to her or her husband. The contract itself does not so clearly contradict the representation as to preclude a finding of reliance.
Under these circumstances, a fact question was presented as to whether the Peeks could have justifiably relied upon a misrepresentation that coverage for Tina did not exclude further treatment relating to the disclosed symptoms. Thus, we reverse the trial court's summary judgment insofar as it related to the Peeks' claim of fraudulent misrepresentation.
The elements of a bad faith cause of action are as follows:
In short, the plaintiff must go beyond a mere showing of nonpayment and prove a bad faith nonpayment, a nonpayment without any reasonable ground for disputing the claim. Or, stated differently, the plaintiff must show that the insurance company had no legal or factual defense to the insurance claim. Union Bankers Ins. Co. v. McMinn, 541 So. 2d 494 (Ala.1989); Burkett v. Burkett, 542 So. 2d 1215, 1217 (Ala.1989), quoting National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982).
The documents before Reserve National at the time of the denial, principally the reports of Dr. Isbell referring to the existence of the cyst for more than one year, were sufficient to establish an arguable or debatable reason for denying the Peeks' claim. Thus, the trial court correctly entered the summary judgment in favor of the defendants as to the Peeks' bad faith claim.
Based on the foregoing, the judgment is affirmed as to the bad faith claim, but is reversed as to the contract and fraud claims, and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
ALMON, J., concurs specially.
ALMON, Justice (concurring specially).
I dissented in Hicks v. Globe Life & Acc. Ins. Co., 584 So. 2d 458 (Ala.1991), based on my perception that the "justifiable reliance" standard adopted in Hickox v. Stover, 551 So. 2d 259 (Ala.1989), had changed the law of fraud unnecessarily. I concur in the reversal of the summary judgment on the fraud claim in this case, however, because I think the material submitted in opposition to the summary judgment motion showed a question of fact under the "reasonable reliance" standard. | August 9, 1991 |
033a627b-9547-42cd-9c27-feeab75ad83e | ALLIED SUPPLY CO. INC. v. Brown | 585 So. 2d 33 | 1900447, 1900448 | Alabama | Alabama Supreme Court | 585 So. 2d 33 (1991)
ALLIED SUPPLY COMPANY, INC.
v.
Mark S. BROWN, et al.
Mark S. BROWN, et al.
v.
ALLIED SUPPLY COMPANY, INC.
1900448 and 1900447.
Supreme Court of Alabama.
August 9, 1991.
*34 L. Tennent Lee III of Burr & Forman, Huntsville, for appellant.
Steven E. Haddock of Hardwick, Knight & Haddock, Decatur, for appellees.
ALMON, Justice.
Allied Supply Company, Inc. ("Allied"), appeals from a partial summary judgment entered in favor of the defendants, Mark Brown, Deborah Christopher, and David Graben,[1] in an action wherein Allied alleged that the defendants had breached their fiduciary duties in a number of ways; misappropriated confidential documents it characterized as "trade secrets"; suppressed material facts; and committed various acts of conspiracy. That judgment was made final pursuant to Rule 54(b), Ala.R.Civ.P. Brown, Christopher, and Graben have filed a cross-appeal, arguing that the trial court erred by not entering a summary judgment for them on count one of Allied's complaint, wherein it alleged that the defendants had breached their fiduciary duty.[2]
Brown, Christopher, and Graben were employees of Allied, an industrial supply company, until January 19, 1988. They all held managerial positions. Brown and *35 Christopher also held positions as corporate officers. In December 1987 they began discussing leaving Allied and forming their own industrial supply business. During December 1987 and January 1988, while still employed by Allied, the defendants took a number of steps toward forming that business. They resigned from Allied on January 19, 1988.
After the defendants resigned, Allied filed a complaint against them and the company they had formed. The company was later dismissed as a defendant. Brown, Christopher, and Graben moved for a summary judgment on each count in Allied's complaint. The trial court granted that motion, except as to Allied's claim that the defendants had breached their fiduciary duty by soliciting customers, vendors, and employees of Allied before resigning, and by misappropriating confidential documents. This appeal and cross-appeal follow.
Allied argues that it was error to enter a summary judgment on its claim that Christopher had breached her fiduciary duty by recommending that Allied purchase a new computer system and by "agreeing to be responsible for the installation, set up, operation, and use" of that system, even though she knew that she would soon be resigning from Allied. In a similar claim, Allied contended that the defendants had breached their fiduciary duties by resigning "en masse," without giving Allied the opportunity to hire and train personnel to replace them. In both claims, Allied is arguing that, as part of a general fiduciary duty, agents are obligated to give their principals advance notice of their plans to resign.
The defendants were employees at will. They had no employment contracts with Allied and, most significantly, no noncompetition agreements. Those facts are not in dispute. Employees at will can terminate their employment, or can be terminated by their employer, at any time, with or without cause or justification. Bell v. South Central Bell, 564 So. 2d 46 (Ala. 1990); Bailey v. Intergraph Corp., 537 So. 2d 21 (Ala.1988). Implicit in the "employment-at-will" doctrine is the concept that an employee at will can be discharged, or, conversely, can terminate his employment, without prior notice. Martin v. Tapley, 360 So. 2d 708 (Ala.1978). Although this doctrine has been criticized as harsh, it remains the law in Alabama. Allied has not presented any Alabama cases holding that the "employment-at-will" doctrine is modified by an agent's fiduciary duty to his employer.
Allied does direct this Court's attention to Cudahy Co. v. American Laboratories, Inc., 313 F. Supp. 1339 (D.Neb.1970), as support for its contention that, as a matter of loyalty, an agent should be required to disclose to his principal any plans he has to resign. We find that Cudahy does not support that argument, but instead recognizes that it is not a violation of an employee's fiduciary duty to prepare to enter into competition with his employer without providing prior notice. 313 F. Supp. at 1346. The principle expressed in Cudahy has been followed by courts in other jurisdictions. See, e.g., U.S. Anchor Mfg., Inc. v. Rule Industries, Inc., 717 F. Supp. 1565 (N.D.Ga.1989); Celpaco, Inc. v. MD Papierfabriken, 686 F. Supp. 983 (D.Conn. 1988); Abraham Zion Corp. v. Lebow, 593 F. Supp. 551 (S.D.N.Y.1984), aff'd, 761 F.2d 93 (2d Cir.1985); Bancroft-Whitney Co. v. Glen, 64 Cal. 2d 327, 49 Cal. Rptr. 825, 411 P.2d 921 (1966); Fish v. Adams, 401 So. 2d 843 (Fla.Dist.Ct.App.1981); E.D. Lacey Mills, Inc. v. Keith, 183 Ga.App. 357, 359 S.E.2d 148 (1987); Maryland Metals, Inc. v. Metzer, 282 Md. 31, 382 A.2d 564 (1978); and Rehabilitation Specialists v. Koering, 404 N.W.2d 301 (Minn.App. 1987).
In addition, it would be unjust to require an employee-at-will to give his employer advance notice of his resignation without imposing a reciprocal duty on the employer to give notice of its intent to terminate employment. Neither requirement would be amenable to existing law. Summary judgment on these issues was appropriate. *36 Allied also contends that the defendants' failure to give it prior notice of their intention to resign was a suppression of material fact. Ala.Code 1975, § 6-5-102. For the reasons stated above, it is clear that under the facts of this case, the defendants were not under a duty to disclose their intention to Allied. Absent a duty to communicate, there can be no liability under § 6-5-102. Cherokee Farms, Inc. v. Fireman's Fund Ins. Co., 526 So. 2d 871 (Ala.1988).
Allied also contends that Brown, Christopher, and Graben misappropriated customer and vendor lists before they left Allied; that those lists were "trade secrets"; and that by misappropriating the lists, the defendants violated both the common law and the Alabama Trade Secrets Act ("the Act"). Ala.Code 1975, § 8-27-1 et seq.
The trial court treated those claims separately, implicitly holding that a cause of action existed under both the common law and the Act. The court entered summary judgment against Allied on its claim filed pursuant to the Act, but denied summary judgment on Allied's "common law misappropriation" claim. The propriety of the court's ruling that two causes of action existed will be addressed in our discussion of the defendants' cross-appeal.
Section 8-27-2(1)(a)-(e) sets out a definition of "trade secret" that is composed of six elements. Most importantly for this case, § 8-27-2(1)(e) requires that the purported "trade secret" be "the subject of efforts that are reasonable under the circumstances to maintain its secrecy." The burden is on the party asserting trade secret protection to show that reasonable steps were taken to protect secrecy. Comment, § 8-27-2.[3]
After reviewing the material presented by the defendants in support of their motion for summary judgment, and by Allied in opposition to the defendants' motion, this Court concludes that there is not a genuine issue of material fact regarding whether Allied made reasonable efforts to maintain the secrecy of the lists. According to answers provided by Allied to interrogatories propounded by the defendants, at least 10 Allied employees had free access to the lists. In addition, the lists were not marked "confidential"; the lists were taken home by employees; multiple copies of each list existed; and the information on the lists was contained in the receptionist's Rolodex file. In light of that evidence, we agree with the trial court's implicit holding that Allied did not meet its burden of showing that it had taken reasonable steps to ensure that the lists remained a "trade secret." Summary judgment on Allied's claim under the Act was proper.
Finally, Allied argues that the trial court erred by entering a summary judgment on its claims that the defendants had conspired to defraud it, to breach their fiduciary duty by failing to give notice of their intent to resign, and to misappropriate confidential documents or "trade secrets."
This Court has stated that a conspiracy itself furnishes no cause of action. The gist of the action is not the conspiracy but the underlying wrong that was allegedly committed. Massengill v. Malone Freight Lines, Inc., 538 So. 2d 784 (Ala. 1988); Sadie v. Martin, 468 So. 2d 162 (Ala. 1985). If the underlying cause of action is not viable, the conspiracy claim must also fail. Id. For the reasons already set forth in this opinion, Allied's claims of fraud, breach of fiduciary duty based on the defendants' failure to give Allied notice of their resignations, and misappropriation of "trade secrets" were not viable claims. Therefore, the summary judgment on the conspiracy claim, as it related to each of those claims, was appropriate. Id.
The trial court denied the defendants' motion for summary judgment on count *37 one of Allied's complaint.[4] That count contained allegations that the defendants had breached their fiduciary duty by soliciting employees, customers, and vendors of Allied while still employed by the corporation and by misappropriating confidential documents. The defendants do not deny that they spoke with customers, vendors, and employees about their plans to form a business and encouraged them to either work for or trade with that business. However, they contend that their conduct in these matters was "ambivalent" or "casual" and therefore did not constitute a breach of fiduciary duty.
It is an agent's duty to act, in all circumstances, with due regard for the interests of his principal, and to act with the utmost good faith and loyalty. Williams v. Williams, 497 So. 2d 481 (Ala. 1986). Implicit in this duty is an obligation not to subvert the principal's business by luring away customers or employees of the principal, or to otherwise act in any manner adverse to the principal's interest. See Naviera Despina, Inc. v. Cooper Shipping Co., 676 F. Supp. 1134 (S.D.Ala.1987). In light of that duty, we agree with the trial court that there remain genuine issues of material fact regarding the extent of the defendants' solicitations of employees, vendors, and customers of Allied. Therefore, it was not error to deny summary judgment on those issues.
However, we do not agree with the trial court's ruling that Allied could pursue both statutory and common law theories of recovery for the defendants' alleged misappropriation of "trade secrets" or confidential documents. The Alabama Trade Secrets Act "is intended to both codify and to modify the common law of trade secrets in Alabama." Comment, § 8-27-6. The committee's comments to the Act indicate that the legislature intended for the Act to replace common law tort remedies for the misappropriation of trade secrets, while leaving existing contract remedies or safeguards in place. Id.; Long, The Alabama Trade Secrets Act, 18 Cumb.L.Rev. 557, 562 (1988). Because existing common law tort theories of recovery have been replaced by the provisions of the Act, the court's holding that Allied could pursue a common law misappropriation cause of action was error and is due to be reversed.
For the reasons stated above, the judgment of the trial court, except for that portion denying summary judgment on Allied's common law claim that the defendants misappropriated or conspired to misappropriate "trade secrets" or confidential documents, is affirmed. Specifically, our affirmance includes that portion of the trial court's order denying summary judgment on the claim that the defendants breached their fiduciary duty by soliciting Allied's employees, vendors, and customers.
1900448AFFIRMED.
1900447AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Brown, Christopher, and Graben will be referred to as "the defendants" or, where appropriate, by their individual surnames.
[2] Allied's complaint also contained a number of other allegations, including: interference with a business relationship; seizure of a corporate opportunity; and violation of RICO. Those claims were withdrawn by Allied.
[3] Allied relies heavily on this Court's opinion in Drill Parts & Service Co. v. Joy Mfg. Co., 439 So. 2d 43 (Ala.1983). However, Drill Parts was decided well before August 12, 1987, the effective date of the Act. Long, The Alabama Trade Secrets Act, 18 Cumb.L.Rev. 557 (1988). Because this Court applied the common law in Drill Parts, as opposed to the Act, the application of that case to the facts of this case is limited.
[4] The defendants have properly brought an appeal by permission pursuant to Rule 5, Ala. R.App.P., and, in a previous order, this Court has granted permission to appeal. | August 9, 1991 |
7b5ccf6e-de9a-4932-9319-c727a9dbaaf9 | Home Ins. Co. v. Rice | 585 So. 2d 859 | 1900437 | Alabama | Alabama Supreme Court | 585 So. 2d 859 (1991)
The HOME INSURANCE COMPANY
v.
Arthur M. RICE.
1900437.
Supreme Court of Alabama.
August 2, 1991.
James R. Shaw and William G. Gantt of Huie, Fernambucq & Stewart, Birmingham, for appellant.
Charles C. Pinckney and R. Alan Deer of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
ALMON, Justice.
The Home Insurance Company ("The Home") appeals from the entry of a partial summary judgment, made final pursuant to Rule 54(b), Ala.R.Civ.P., in favor of its insured, Arthur M. Rice, in Rice's action against The Home to compel it to defend him in two lawsuits[1] filed against him.
The Home issued to Rice a "claims made" errors and omissions insurance policy that The Home contends covered only *860 Rice's actions as a real estate agent or broker. This policy was in effect from October 9, 1984, through October 9, 1985. Actions were filed against Rice by Ernest Ross and George Miller on February 7, 1985, and April 9, 1985, respectively, stating claims that arose out of Rice's activities in connection with a retirement community in Birmingham, Alabama.
Upon receiving each complaint, Rice immediately notified W. Marshall Cullifer, The Home's local agent from whom Rice had purchased his policy. Cullifer, in turn, immediately forwarded a copy of each complaint to The Home. In each initial letter to The Home notifying it of a lawsuit, Cullifer relayed the same information. The following is the entire letter from Cullifer to The Home dated April 2, 1985:
(Emphasis added.) The Home acknowledged receipt of, and assigned a file number for, the Ross and Miller claims on April 22, 1985, and April 29, 1985, respectively. Following each of these acknowledgments, specifically, on April 24, 1985, and May 8, 1985, The Home contacted John Grenier, of the Birmingham law firm of Lange, Simpson, Robinson & Somerville, whom Rice had previously contacted regarding defending him in the Ross and Miller actions. In two substantively identical, successive letters to Mr. Grenier, the first referring to the Ross action and the second referring to the Miller action, The Home wrote the following:
"Thank you in advance for your anticipated courtesy and cooperation."
These two letters, by which The Home retained Mr. Grenier to represent Rice in the Ross and Miller actions, did not contain any reservation of The Home's right to deny an obligation to defend Rice.
During the course of the next several months, Mr. Grenier and his firm sent The Home several items of correspondence, including a status report on the consolidated Ross/Miller actions and periodic invoices for costs and legal services rendered in Rice's defense. It was not until approximately 13 months after The Home had retained Mr. Grenier that an Atlanta law firm retained by The Home notified Mr. Grenier that The Home had "declined" coverage for Rice and refused to provide for his defense in the Ross/Miller actions. Rice filed this action against The Home, contending that The Home was contractually obligated to defend the Ross/Miller actions, or, alternatively, that The Home was obligated, by the theories of waiver and estoppel, to provide Rice's defense. Following the trial court's entry of summary judgment in favor of Rice, The Home now appeals to this Court.
Initially, we address The Home's contention that the trial court's summary judgment in favor of Rice, "though specifically requiring The Home to pay attorney's fees incurred by Rice in a defense of the Ross and Miller actions, in effect creates coverage by estoppel in contravention of Alabama law." Upon a thorough review of the record, including Rice's motion for partial *861 summary judgment and the trial court's order granting that motion, we find no merit in The Home's contention that the trial court has created coverage by estoppel. Rice's motion specifically sought only a summary judgment on the issue of The Home's duty to defend Rice, and the trial court's order from which The Home now appeals holds only that Rice was entitled to a judgment on the issue of The Home's duty to defend. There has been no ruling by the trial court that in any way affects The Home's duty to provide coverage for the claims asserted against Rice. "It is well established [in this state] that the insurer's duty to defend is more extensive than its duty to pay." Burnham Shoes, Inc. v. West American Ins. Co., 504 So. 2d 238 (Ala.1987), quoting Ladner & Co. v. Southern Guaranty Ins. Co., 347 So. 2d 100 (Ala.1977).
Having confined our opinion to the question of The Home's duty to defend, we now consider whether the summary judgment was proper in this case.
"`The doctrine of estoppel is said to be founded upon principles of equity, morality and justice. 31 C.J.S. Estoppel § 1. When a liability insurer, by assuming the defense of an action, leads one to believe liability to do so is not denied, it would be unfair to subsequently permit that insurer to deny coverage, when, without reservation and with knowledge, it assumes exclusive control of the defense of an action. See 38 A.L.R.2d 1148, § 5[b], citing Security Ins. Co. v. Jay, 109 F. Supp. 87 (D.C.Minn.1952); Lincoln Park Arms Bldg. Corp. v. U.S.F. & G. Co., 287 Ill.App. 520, 5 N.E.2d 773 (1936); General Tire Co. v. Standard Acci. Ins. Co., 65 F.2d 237 (CA 8th Minn. 1933). The general rule is limited by the principle that the insurer may avoid the operation of the rule by giving notice that the assumption of the defense is not a waiver of its right to deny coverage.'"
Burnham Shoes, 504 So. 2d 238, 241. This general rule was also reiterated in Shelby Steel Fabricators v. United States Fidelity & Guaranty Ins. Co., 569 So. 2d 309 (Ala.1990).
When The Home retained Mr. Grenier to defend Rice in the Ross action, it had the complaint in Ross before it. Likewise, when The Home sent Mr. Grenier a letter retaining him to defend Rice in the Miller action it had the Miller complaint before it. The complaints in Ross and Miller, which set forth the claims and allegations against Rice, contained facts sufficient to put The Home on notice of any potential problem with coverage under its insurance contract with Rice. The Home having knowledge of the substance of those claims against Rice, it was incumbent upon The Home to preserve its rights by giving notice that its assumption of Rice's defense was not a waiver of its right to deny a duty to defend. Having failed to do so, The Home certainly led Rice to believe that its liability to provide a defense was not denied. It would be unfair to allow The Home to deny a duty to provide Rice's defense 13 months after it had assumed that defense. Campbell Piping Contractors, Inc. v. Hess Pipeline Co., 342 So. 2d 766 (Ala.1977); Burnham Shoes, supra.
Nevertheless, The Home argues that proof of actual prejudice to the insured is required before an insurance company that failed to reserve its right to deny a duty to defend is estopped to deny that duty. However, neither Campbell, supra, nor Burnham Shoes, supra, requires the insured to demonstrate actual prejudice in a duty-to-defend action. See generally Integrity Insurance Co. v. King Kutter, Inc., 866 F.2d 408 (11th Cir.1989).
The Home also challenges the trial court's refusal to allow it to depose Rice and his attorneys regarding communications that occurred between them or with Home representatives concerning the availability *862 of insurance coverage for the claims asserted in the Ross/Miller actions.
It is well settled that discovery matters are within the discretion of the trial court. Ex Parte Fielder, 528 So. 2d 325 (Ala.1988). We will not reverse the trial court's rulings on discovery issues unless there has been a clear abuse of discretion. Id. We find nothing in the record to indicate that the trial court abused its discretion in refusing to allow The Home to depose Rice and his attorneys regarding Rice's understanding, based on his discussions with his attorney, of the coverage for the claims. The Home's waiver of its right to deny a duty to defend occurred through its own conduct; it was not dependent on Rice's alleged suspicion of a coverage dispute. Therefore, the trial court did not abuse its discretion in refusing to allow The Home's requested discovery.
Based on the above, we affirm the trial court's summary judgment in favor of Rice. We note that the trial court reserved for a later hearing the question of the amount of attorney fees and costs to be awarded.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The two underlying lawsuits were consolidated in the United States District Court for the Northern District of Alabama as Ernest Ross and George Miller v. Arthur M. Rice, et al., No. 85-PT-0444-S and 85-PT-1044-S. On August 19, 1986, the federal district court granted Rice's motion for summary judgment in those consolidated cases. That decision was affirmed in Ross v. Bank South, N.A., 885 F.2d 723 (11th Cir.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 1924, 109 L. Ed. 2d 287 (1990). At the time of this appeal, only the state law claims in that action are pending, and they are now pending in the Jefferson County, Alabama, Circuit Court. | August 2, 1991 |
5c2717bb-04d1-48d1-8d9e-28ecccea43af | LeFevre v. Westberry | 590 So. 2d 154 | 1900057 | Alabama | Alabama Supreme Court | 590 So. 2d 154 (1991)
James LeFEVRE
v.
Lamar WESTBERRY and State Farm Mutual Automobile Insurance Company.
1900057.
Supreme Court of Alabama.
July 26, 1991.
Rehearing Denied November 15, 1991.
*155 John F. Dillon IV of Dillon, Kelley & Brown and Larry W. Morris of Radney & Morris, Alexander City, for appellant.
Edgar M. Elliott III and Deborah Alley Smith of Rives & Peterson, Birmingham, and Ralph Bland of Bland, Bland & Harris, Cullman, for appellees.
MADDOX, Justice.
This is an uninsured motorist case. The insured, James LeFevre, presents three issues on appeal to this Court: (1) whether he is entitled to recover damages for the alleged bad faith of State Farm Mutual Automobile Insurance Company ("State Farm"); (2) whether he is entitled to recover advance payments under his policy providing uninsured motorist benefits pending a final determination of the extent of his loss, and (3) whether he is entitled to recover interest on the tendered policy limits.
In July 1988 LeFevre was injured in an automobile accident with an uninsured motorist. At that time, he was covered under a policy of automobile insurance issued by State Farm that provided uninsured motorist coverage with liability limits of $50,000.
On July 6, the day following the accident, LeFevre's wife reported the accident to State Farm. State Farm opened a claim file and assigned the file to Lamar Westberry, its claims representative. After Westberry contacted both LeFevre and the uninsured motorist, he submitted a report to his supervisor, Richard Hardy, in which Westberry stated that "[LeFevre] was hit head-on by [the] adverse [party] on [the] wrong side [of the road]."[1]
Over the course of the next 15 months, Westberry received various reports from the Decatur Orthopaedic Clinic regarding *156 LeFevre's physical injuries. The first report from the clinic indicated that his injuries consisted of a nondisplaced fracture of the right tibial plateau and a soft tissue injury to his right foot. In December, the reports indicated that LeFevre had to have further surgery on his ankle. In response to this progress report, Hardy suggested that Westberry obtain a statement from the witness to the accident, and "reserve U[ninsured motorist benefits] up to $10,000."
After he contacted the witness, Westberry relayed to Hardy that the witness stated that the uninsured motorist was speeding, crossed over the center line, and collided head-on with LeFevre's automobile. At that point, Hardy recommended an increase in the uninsured motorist reserve to $30,000.
When LeFevre returned to the clinic in March, the doctor reported that he "seemed to be doing fairly well" and that the foot "is a lot better than it was before surgery but these deformities will persist."
Approximately four months later, the orthopaedic clinic report indicated that LeFevre had a 50% loss of function of the foot and that he continued to have complications that possibly would require a "BK" (below the knee) amputation.
In August 1989, Westberry reported to Hardy that State Farm had paid over $14,000 for LeFevre's medical expenses under the first-party medical payments provisions of the policy and suggested that State Farm should pay the $50,000 limit on the uninsured motorist claim. Hardy extended the authority to expend $50,000 to settle the claim, but suggested that Westberry first offer to settle for $40,000.
Westberry offered $45,000 to Ed McCormick, LeFevre's son-in-law, to settle the claim. Ultimately, in October 1989, Westberry offered the policy limits to settle the claim, and requested that LeFevre sign a release. Upon tender of the policy limits, LeFevre's attorney requested that State Farm pay interest on the uninsured motorist benefits. State Farm refused to pay interest on the benefits, and informed LeFevre that he could not receive his benefits unless he agreed to execute the release.
In November 1989, LeFevre sued State Farm, seeking damages for breach of contract, bad faith refusal to pay a direct claim, and intentional infliction of emotional distress. The trial court entered a summary judgment in favor of State Farm. LeFevre appeals. Although the complaint claims damages for breach of contract, intentional infliction of emotional distress, and bad faith, the issues raised on appeal concern only State Farm's alleged bad faith failure to pay the claim. Accordingly, all other issues have been waived. See Boyle v. Scheer, 512 So. 2d 1336 (Ala.1987).
In 1966, the Alabama Legislature joined a growing number of states in enacting legislation mandating that insurers offer uninsured motorist coverage to persons insured under automobile liability policies issued by the insurer. 1965 Ala.Acts 866 (codified at Ala.Code 1975, § 32-7-23). The policy of compensation underlying the statute was "to provide financial recompense to innocent persons who are injured and to dependents of those who are killed because of the wrongful conduct of uninsured motorists." State Farm Auto. Ins. Co. v. Reaves, 292 Ala. 218, 284, 292 So. 2d 95, 100 (1974) (quoting Gulf Am. Fire & Cas. Co. v. Gowan, 283 Ala. 480, 483, 218 So. 2d 688, 691 (1969).
The uninsured motorist statute, as amended, requires that, to be entitled to uninsured motorist benefits, the insured be "legally entitled to recover" damages from the owner or operator of the uninsured automobile:
Ala.Code 1975, § 32-7-23.
The policy sued upon in this case incorporates substantially the language of the statute emphasized above and requires that the insured prove he is "legally entitled" to recover damages:
Before we can determine whether the insured has stated a claim against State Farm for bad faith failure to pay, we must first determine if LeFevre has proven that he is "legally entitled to collect"; that language of the policy is consistent with the statutory language. What do the words "legally entitled to collect" mean?
In Quick v. State Farm Mut. Auto. Ins. Co., 429 So. 2d 1033 (Ala.1983), the Court noted that "legally entitled to recover as damages" has been interpreted to mean that "the insured must be able to establish fault on the part of the uninsured motorist, which gives rise to damages and must be able to prove the extent of those damages." Id. at 1035 (quoting State Farm Mut. Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 431, 286 So. 2d 302, 306 (1973)) (emphasis added in Quick). See State Farm Auto. Ins. Co. v. Baldwin, 470 So. 2d 1230 (Ala.1985) (citing Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606 (1973); Application of Travelers Indemnity Co., 226 N.Y.S.2d 16 (N.Y.Sup.1962); Cox, Uninsured Motorist Coverage, 34 Mo.L.Rev. 1, 34 (1969)).
In Quick, State Farm acknowledged that the Quicks were "entitled to some payment under the uninsured motorist coverage and that the only matter to be resolved is the amount of payment." The Quicks alleged that they were entitled to punitive damages against State Farm based upon an alleged bad faith refusal to pay their claim. The Court affirmed a summary judgment for State Farm on the basis that it was undisputed that there was a debatable issue as to the amount due under the uninsured motorist coverage. The facts of Quick are substantially like those presented here.
Clearly, the insured, LeFevre, was entitled to some payment under the uninsured motorist coverage of the State Farm policy, but the total amount of that entitlement was not capable of being fully ascertained as of the date State Farm received notice of the claim. In other words, as of that date LeFevre had failed to "prove the extent of those damages" in order to become "legally entitled to collect damages from the owner or driver of the uninsured motor vehicle." Our research reveals that several other jurisdictions have adopted a similar uninsured motorist coverage statute and have dealt with policy provisions in regard to uninsured motorist coverage either identical to or similar to that contained in our statute. See Widiss, Uninsured Motorist Coverage § 7.2 (1990); Hughes v. State Farm Mut. Auto. Ins. Co., 604 F.2d 573, 575-76 (8th Cir.1979); see also Allstate Ins. Co. v. Elkins, 63 Ill.App.3d 62, 66, 21 Ill.Dec. 66, 69, 381 N.E.2d 1, 4 (1978) (concluding that the words "legally entitled to recover" mean that "the plaintiff must be able to establish fault on the part of the uninsured motorist which gives rise to damages" and not that "the insurer stands in the shoes of the uninsured motorist who is the tortfeasor"); Allied Fidelity Ins. Co. v. Lamb, 361 N.E.2d 174, 180 (Ind.App. 1977) (the words "`legally entitled to recover' *158 simply mean that the insured may recover from an insurer ... only after establishing that the uninsured motorist is at fault"); Winner v. Ratzlaff, 211 Kan. 59, 64, 505 P.2d 606 (1973) ("We construe the words `legally entitled to recover as damages' to mean that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to damages and to prove the extent of those damages"); Satzinger v. Satzinger, 156 N.J.Super. 215, 220, 383 A.2d 753, 755 (Ch. Div.1978) ("In this contest, the term `legal entitlement' is synonymous with the factual issue of fault"); DeLuca v. Motor Vehicle Accident Indemnification Corp., 17 N.Y.2d 76, 81, 215 N.E.2d 482, 484, 268 N.Y.S.2d 289, 292 (1966) ("the phrase `legally entitled' means and denotes fault"). In Georgia and a few other states, however, the claimant must bring an action and obtain a judgment against the uninsured motorist as a condition precedent to recovery under the policy. Continental Ins. Co. v. Echols, 145 Ga.App. 112, 113, 243 S.E.2d 88, 89-90 (1978); Lawson v. Porter, 256 S.C. 65, 68, 180 S.E.2d 643, 644 (1971); Glover v. Tennessee Farmers Mut. Ins. Co., 225 Tenn. 306, 312-13, 468 S.W.2d 727, 730 (1971); Rodgers v. Danko, 204 Va. 140, 142-43, 129 S.E.2d 828, 830 (1963).
The Court in Quick, construing the statutory language, concluded:
429 So. 2d at 1035.
The Court reaffirmed Quick in Aetna Casualty & Surety, Inc. v. Beggs, 525 So. 2d 1350 (Ala.1988). In Beggs, the plaintiff's husband was killed in an accident with an uninsured motorist. At the time of the accident, the plaintiff had an automobile policy with Aetna that covered the automobile involved in the accident and provided approximately $20,000 in uninsured motorist coverage.
Approximately two months after the accident Aetna offered $10,000 under the uninsured motorist claim. The plaintiff countered with a demand for $20,000, to which Aetna responded with an offer of $15,000. Seven months after the accident, the plaintiff sued Aetna, alleging bad faith. Two months after suit was filed, Aetna decided to pay its policy limits of $20,000. The trial resulted in a jury verdict against Aetna on the bad faith claim in the amount of $100,000. This Court reversed, citing Quick. The Court noted in Beggs that there was no offer of proof by the plaintiff of the amount of the insurer's liability under the uninsured motorist provision until the trial of the case. Justice Houston wrote for the Court:
Id. at 1352-53.
We apply the same reasoning the Court applied in Beggs to resolve the question of whether State Farm acted with bad faith in failing to pay LeFevre's uninsured motorist claim, even though this case does not involve the wrongful death statute and the nature of the damages are different. Undoubtedly, in some cases the insured could prove the amount of the insurer's liability with the specificity necessary to recover against an insurer for bad faith; however, in personal injury cases similar to the case at hand, where the insured's injuries at first appear to be nominal and then gradually worsen, the insurer cannot be held liable for damages on a bad faith claim for failing to anticipate what even the physicians did not predict.
In order to recover on a claim alleging bad faith refusal to pay on a direct claim, the insured must prove: (1) the existence of an insurance contract; (2) an intentional refusal to pay the claim; and (3) the *159 absence of any lawful basis for the refusal and the insurer's knowledge of that fact or the insurer's intentional failure to determine whether a lawful basis exists for its refusal. Quick.
The plaintiff bears a heavy burden. National Sav. Life Ins. Co. v. Dutton, 419 So. 2d 1357, at 1362 (Ala.1982). In order to establish a prima facie case of bad faith, a plaintiff must demonstrate far more than the mere delay in payment of his or her claim:
Burns v. Motors Ins. Corp., 530 So. 2d 824, 827 (Ala.Civ.App.1987) (citing National Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179 (Ala.1982)).
The general policy consideration that underpins our recognition of a redressable tort in the case of an intentional breach of good faith in the context of first-party insurance contracts is that:
Chavers v. Nat. Sec. Fire & Cas. Co., 405 So. 2d 1, 6 (Ala.1981) (quoting Vincent v. Blue Cross-Blue Shield of Alabama, 373 So. 2d 1054, 1067 (Embry, J., dissenting)). Chavers did not involve an uninsured motorist policy, however, and in Quick, the Court noted the differences inherent in the uninsured motorist coverage situation:
429 So. 2d at 1035.
Uninsured motorist coverage in Alabama is a hybrid in that it blends the features of both first-party and third-party coverage. The first-party aspect is evident in that the insured makes a claim under his own contract. At the same time, however, third-party liability principles also are operating in that the coverage requires the insured to be "legally entitled" to collectthat is, the insured must be able to establish fault on the part of the uninsured motorist and must be able to prove the extent of the damages to which he or she would be entitled. The question arises: when is a carrier of uninsured motorist coverage under a duty to pay its insured's damages?
There is no universally definitive answer to this question or to the question when an action alleging bad faith may be maintained for the improper handling of an uninsured or underinsured motorist claim; the answer is, of course, dependent upon the facts of each case. Clearly, there is a covenant of good faith and fair dealing between the insurer and the insured, as with direct insurance, but the insurer and the insured occupy adverse positions until the uninsured motorist's liability is fixed; therefore, there can be no action based on the tort of bad faith based on conduct arising prior to that time, only for subsequent bad faith conduct.
There are several jurisdictions that reject extension of the bad faith doctrine to uninsured motorist coverage. The first case to reject such a claim was Lyon v. Hartford Accident & Indem. Co., 25 Utah 2d 311, 480 P.2d 739 (1971). The plaintiff in that case argued that Hartford had failed to bargain with her and that, as a result, she was compelled to incur legal expenses in pursuit of her claim. She contended that Hartford had acted in bad faith and that she should be compensated for the legal fees she incurred. The Utah Supreme Court refused to analogize to the third-party situation. The court, instead, *160 pointed out that the insurer and the insured were adversaries.[2]
In Baxter v. Royal Indemnity Co., 285 So. 2d 652 (Fla.Dist.Ct.App.1973), the insured again advanced the bad faith theory when the insured had earlier demanded the full uninsured motorist benefits in settlement; the company had refused to pay the demand, but an arbitration award gave the insured the full policy limits. The court rejected the bad faith argument for the following reasons:
Id. at 655-57.
In Quick, the Court, relying on Baxter, also discussed the inherent differences between the third-party and uninsured motorist coverages. The Court pointed out that until the insured proves fault on the part of the uninsured motorist and the amount of the insured's damages, the insurer and the insured are adverse to each other.
The question, of course, is how must an insured establish his or her entitlement to recover? Clearly, the legislature did not intend that the insured would have to sue and receive a judgment in his or her favor before bringing an action alleging bad faith. Griffin, 51 Ala.App. 426, 286 So. 2d 302. In cases such as this, where the evidence of the extent of damages is disputed, the insured has not proven, of course, that he is "legally entitled to collect"; therefore, one of the elements of proof necessary to support an action for bad faith is missing. Although some states have not permitted claims for bad faith failure to pay uninsured motorist benefits, the law in Alabama seems to support the application of the doctrine of bad faith to uninsured motorist coverage, but our cases seem to recognize the adversarial relationship created by the uninsured motorist coverage and to recognize that the adversarial relationship should not be diminished to the point of turning the coverage into something more like a first-party coverage than what it was designed to be.
Heretofore, this Court has not clearly defined the procedures an insurer must follow when its insured has notified it of a claim under the uninsured/underinsured motorist coverage provision of an automobile liability policy. The need is apparent, therefore, for some procedure that will allow the insurer to aggressively defend the claim and attempt to defeat the claim, or at least to minimize the size of the award, while concomitantly fulfilling the duties imposed on it by law and the obligations *161 imposed on it by its contract with the insured.
We now undertake to provide, as we did in Lambert v. State Farm Mut. Auto. Ins. Co., 576 So. 2d 160 (Ala.1991), some guidelines for everyone concerned to follow, applying what the legislature intended so that an insured will receive the benefits of the bargain the insured has made, but guidelines that will, at the same time, protect the insurer's rights to refuse to pay a claim it is not legally required to pay.
Any procedure, of course, must take into consideration the facts and circumstances of each case, but the following general rules should apply:
We now apply these guidelines to the facts of this case. In the present case, LeFevre's wife reported his claim to State Farm on the day following the accident. State Farm's claims representative immediately began investigating the claim, contacting LeFevre, the uninsured motorist, and a witness, obtaining reports from the orthopaedic clinic, and submitting progress reports to his supervisor. At all times State Farm continued to pay LeFevre's medical expenses.
For a period of approximately 15 months, State Farm received various conflicting reports on the extent of Lefevre's damages. The first report indicated that LeFevre had sustained a fracture to his right foot. Five months later, he had further surgery on the ankle. When he returned to the clinic three months after the surgery, the doctor reported that he "seemed to be doing fairly well." Approximately four months later, the orthopaedic clinic report indicated that LeFevre had a 50% loss of function of the foot and that he continued to have complications that possibly would require amputation. At that point, State Farm offered $45,000 to settle the claim, which was refused. Two months later, State Farm offered the policy limits to settle the claim.
In addition to these conflicting medical reports, we note that the record does not reveal any evidence that the insured requested a specific amount of benefits under his uninsured motorist policy. Furthermore, *162 LeFevre offered no proof of the amount of State Farm's liability under the uninsured motorist provision until after State Farm had tendered its entire policy limits. Not even at the time for consideration of the summary judgment motion did LeFevre offer evidence that the claim had a value exceeding $50,000.[5]
Alabama has imposed a rather heavy burden on a bad faith claimant; a cause of action for bad faith arises only "where the insurer has acted with an intent to injure." King v. National Found. Life Ins. Co., 541 So. 2d 502, 505 (Ala.1989); Alfa Mut. Ins. Co. v. Smith, 540 So. 2d 691 (Ala.1988). In the present case, LeFevre has not presented sufficient evidence to prove that State Farm acted with an intent to injure him by delaying the offer of the entire policy limits until the damages were conclusively ascertained.
Based on the foregoing, the trial court correctly ruled in favor of State Farm, because, after applying the guidelines we here establish, we hold that the record reveals a legitimate dispute between the insurer and its insured relating to the amount of liability of the uninsured motorist.
In summary, the insured, LeFevre, bore the burden of proving a lack of insurance on the part of the tort-feasor; the tort-feasor's legal liability; proximate cause; and damages. See Howard v. Alabama Farm Bureau Mut. Cas. Ins. Co., 373 So. 2d 628 (Ala.1979). LeFevre proved each element except the extent of his damages.
According to our caselaw, "[t]here can be no breach of an insured motorist contract, and therefore no bad faith, until the insured proves that he is legally entitled to recover [damages from the uninsured motorist]." Quick, 429 So. 2d at 1035. In the present case, because there was a legitimate dispute concerning the amount of damages, we hold that there was no evidence of bad faith on the part of State Farm in failing to tender the entire policy limits for approximately 15 months, and that the trial court correctly entered the summary judgment in favor of State Farm.
LeFevre next contends that State Farm acted in bad faith in refusing to make advance payments under the uninsured motorist coverage provision of the policy.
The parties are in dispute as to whether LeFevre ever made a request for advances. However, this factual issue did not preclude the summary judgment, because, even assuming that such a request was made, State Farm had no contractual obligation to make advance payments under the facts of this case. State Farm's duties and obligations are determined by the terms of the policy, which makes no provision for unconditional periodic payments.
LeFevre admits that the policy itself does not provide for advance payments, but asserts that the obligation of good faith and fair dealing supersedes the actual terms of the policy. We have found no Alabama case, nor have we been cited to one, where, in the context of good faith and fair dealing, the question of unconditional payments has been discussed. Thus, we hold that the written terms of the contract govern. This Court is not at liberty to read into a policy of insurance something that is not there. See Altiere v. Blue Cross & Blue Shield of Alabama, 551 So. 2d 290 (Ala.1989). Therefore, we hold that LeFevre's bad faith claim cannot be predicated upon State Farm's failure to make advance payments.
Last, LeFevre contends that State Farm acted in bad faith in refusing to pay interest on the amount ultimately agreed to be due under the policy. Granting State Farm's motion for summary judgment on this point, the trial court stated:
We conclude that the trial court did not err. In general, there is a statutory right to interest on the amount payable under any type of insurance policy. Ala. Code 1975, § 8-8-8; Thomas v. Liberty Nat'l Life Ins. Co., 368 So. 2d 254 (Ala. 1979). However, for the insured to be entitled to interest, the amount due under the policy must be a liquidated sum. LeFevre is not entitled to prejudgment interest on his policy. See State Farm Mut. Auto. Ins. Co. v. Reaves, 292 Ala. 218, 292 So. 2d 95 (1974); see also State Farm Mut. Auto. Ins. Co. v. Bradley, 293 Ala. 695, 309 So. 2d 826 (1975).
For the foregoing reasons, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs specially.
ALMON, J., concurs in the result.
HOUSTON, Justice (concurring specially).
I concur in the excellent opinion written by Justice Maddox. I write specially only because the majority opinion quotes Aetna Casualty & Surety Co. v. Beggs, 525 So. 2d 1350 (Ala.1988), a case that I do not consider to be at all applicable. Beggs involved an action under Ala.Code 1975, § 6-5-410. The majority of this Court interprets this statute as permitting the recovery of only punitive damages in wrongful death cases, an interpretation with which I strongly disagree, see Tatum v. Schering Corp., 523 So. 2d 1042 (Ala.1988). However, as long as that interpretation is placed on § 6-5-410, the only "remedy" is to "recover such damages as the jury may assess." Under this Court's interpretation of § 6-5-410, juries are instructed that "[t]he imposition of punitive damages is entirely discretionary with the jury." Alabama Pattern Jury Instructions: Civil 11.03 (Amended). Therefore, the amount that the personal representative of a deceased is entitled to recover from the deceased's uninsured motorist coverage could never be determined until the jury had exercised its wholly "discretionary" duty of imposing some, if any, punitive damages. I do not agree with this; however, that is the only reasonable conclusion that could be drawn as long as § 6-5-410 is interpreted as authorizing only punitive damages. I do not believe that Justice Maddox's procedure for determining when a bad faith action can be maintained against a carrier of uninsured motorist coverage would be applicable to wrongful death cases brought under § 6-5-410, as long as a jury is given unbridled discretion to determine whether or not to award any punitive damages for the death regardless of how wrongful it was. I do not believe that this same limitation would attach to the constitutional right to a remedy for death, which I think is provided by Article I, §§ 1 and 13 of the Alabama Constitution of 1901.
[1] The police report indicated that the accident occurred when the uninsured motorist lost control of his automobile and slid into the path of LeFevre's automobile, striking that vehicle head-on.
[2] The Court in Lyon considered only the question of whether a claim of bad faith gave rise to a tort cause of action; to the extent that Lyon is philosophically inconsistent with a recognition of a cause of action in contract, it was overruled by Beck v. Farmers Ins. Exchange, 701 P.2d 795 (Utah 1985).
In Beck the Court held that there is a good faith duty to bargain or settle under an insurance contract, but that violation of that duty gives rise to a claim for breach of contract.
In its recognition of the contractual obligation of good faith, the Court refuses to analogize the duty owed in a third-party situation to that owed in a first-party context:
"In the [third-party] situation, the insurer must act in good faith and be as zealous in protecting the interest of the insured as it would be in regard to its own. In the [first-party] situation, the insured and the insurer are, in effect and practically speaking, adversaries."
Beck at 799, quoting from Lyon, 25 Utah 2d at 319, 480 P.2d at 745.
[3] Other jurisdictions have been faced with the same issues regarding the obligation to act in good faith in handling claims. A three-month delay in raising a settlement proposal to policy limits was held insufficient to establish bad faith by a California court of appeals. Blough v. State Farm Fire & Cas. Co., 203 Cal. App. 3d 1260, 250 Cal. Rptr. 735 (1988). A one-year delay in denial of a fire loss claim did not constitute vexatious or unreasonable delay where evidence of arson presented a bona fide dispute on the issue of liability. Dark v. United States Fidelity & Guar. Co., 175 Ill.App.3d 26, 124 Ill.Dec. 681, 529 N.E.2d 662 (1988). Even in Alabama we rejected the claim that the mere delay in settlement for a seven-month period on a hospitalization claim amounted to bad faith, absent proof of a bad faith refusal or lack of a reasonable basis to withhold payment. Pierce v. Combined Ins. Co., 531 So. 2d 654 (Ala.1988).
[4] In United Services Auto. Ass'n v. Allen, 519 So. 2d 506 (Ala.1988), the insured sought an injunction to prevent his carrier of underinsured motorist coverage from withholding its consent to the insured's settlement with the underinsured tort-feasor's insurer. The trial court granted the injunction, and this Court affirmed. This Court found that "there was nothing in the record ... to show that USAA had a reasonable basis for withholding its consent." The Court held that a refusal of a carrier of underinsured motorist coverage to consent to settle must be reasonable, and that it was not reasonable in that case.
[5] The only proof offered as to the amount the insured would be entitled to recover was the affidavit of Mr. Adams (an attorney), offered in opposition to the motion for summary judgment filed by the defendants. That affidavit was filed over one year after State Farm had tendered the policy limits, and it merely indicated that the "value" of the claim in February 1989 was two to three times the medical expenses, or somewhere between $24,000 and $42,000. | July 26, 1991 |
02e9c67b-4af9-4f71-b235-2c52ed09ef16 | Principal Financial Group v. Thomas | 585 So. 2d 816 | 1900294 | Alabama | Alabama Supreme Court | 585 So. 2d 816 (1991)
PRINCIPAL FINANCIAL GROUP, etc.
v.
Barbara Caroline THOMAS.
1900294.
Supreme Court of Alabama.
July 26, 1991.
*817 Lynn Etheridge Hare of Barker & Janecky, Birmingham, and Forrest S. Latta of Pierce, Carr & Alford, Mobile, for appellant.
Andrew T. Citrin and John T. Crowder, Jr. of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellee.
PER CURIAM.
See Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala.1990), in which we remanded and held that any consideration of the post-judgment motion filed by Principal Financial Group, d/b/a Principal Mutual Life Insurance Company ("Principal Mutual"), alleging that the $750,000 punitive damages award was excessive should be in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989).
Judge Douglas Johnstone conducted a thorough hearing pursuant to Hammond on the issue of punitive damages; and, in determining whether $750,000 exceeded an amount necessary to punish Principal Mutual and to deter it and others similarly situated from committing similar acts in the future, he considered the seven factors listed in Green Oil, 539 So. 2d at 223-24, and compared the verdict with other jury verdicts in similar cases before concluding, in his thorough and scholarly opinion, that "the jury's verdict accomplishes the purposes and goals of punitive damages under Alabama law and is not excessive when viewed in light of the decisions of our Supreme Court in Hammond and Green Oil."
From a review of the trial court's findings and from our independent review of the evidence, applying the Green Oil standards, we conclude that the $750,000 punitive damages award in this case does not exceed an amount necessary to punish Principal Mutual for its action and to deter it and others similarly situated from committing similar acts in the future.
The amount of punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred. If the actual or likely harm is slight, the damages should be relatively small; if grievous, the damages should be much greater.
Time and order is reversed; parents should not have to bury their children. But sometimes they have to. Against that day, that evil day, that a mother hopes will never come, she pays her mite to an insurance company. In the event that evil day comes, that mother's mite will provide the means with which to bury that child. That day does come, but the insurance company does not pay the amount of money that the mite was supposed to secure. Why? To determine why, 12 good jurors and true, men and women from the judicial circuit in which the event happened, were chosen as triers of the fact. After evaluating all of the evidence, these impartial jurors found that this amount was not paid because the insurance company's claims examiners intentionally and recklessly failed to subject the results of their investigation of the mother's claim to cognitive evaluation and review and found that the insurance company had no lawful basis for denying the mother's claim.
Is the actual harm slight or grievous? Grievous.
But the amount of life insurance was only $1,000. Yes, and the evidence shows that the out of pocket expenses incurred by the mother's lawyersnot their fees, but their out-of-pocket expenseswere $9,330.33 at the time of the Hammond hearing. The insurance company retains the $1,000; the insurance company refuses to pay this. How many lawyers will take this mother's case, knowing that they will have to pay more in out-of-pocket expenses *818 to recover this $1,000 than they will be paid if they recover the entire $1,000? How many mothers will forgo litigation because they will have nothing even if they are successful? How many mothers, with this dependent life insurance coverage, have buried their children and not received this coverage?
A lack of a means of litigating because the contract amount involved is too small to obtain lawyers who can afford to file suit to recover only the contract amount would potentially deprive an insured, who thinks her case is just, of her day in court. This may free insurance adjusters from fairly investigating and reviewing small claims and may result in a loss of faith in the judicial system. Is this likely harm slight or grievous? Grievous.
The amount of punitive damages should reflect the degree of reprehensibility of the defendant's conduct. The refusal to pay a claim that the finders of the fact determined was not paid because the insurance company's claims examiners intentionally and recklessly failed to properly investigate and evaluate that claim is at least moderately reprehensible. Although there is no evidence of it in this case, if there is evidence that an insurance company engages in a pattern or practice of refusing to pay any borderline claims involving small amounts (so small that it would be difficult for the insured to obtain an attorney to properly evaluate or handle the collection of those claims), that would be very reprehensible conduct.
The amount of punitive damages should be in excess of the profit made by the defendant through its wrongful conduct. From every indication, the award much more than removes the profit in this case.
In determining the excessiveness vel non of punitive damages, the Court must consider the financial condition of the defendant. The following appears in Judge Johnstone's excellent order:
Clearly, all of the costs of litigation would be more than adequately covered by the punitive damages awarded in this case.
No criminal sanctions or other punitive damages have been imposed upon Principal Mutual for the conduct made the basis of this action. Therefore, factors (6) and (7) listed in Green Oil do not mitigate the punitive damages award in this case.
We concur with Judge Johnstone in the holding that the $750,000 punitive damages award in this case is not excessive.
The other issues raised by Principal Mutual have been resolved by Pacific Mutual Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), and United American Insurance Co. v. Brumley, 542 So. 2d 1231 (Ala.1989).
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS and INGRAM, JJ., concur.
ALMON and KENNEDY, JJ., concur in the result.
SHORES, HOUSTON and STEAGALL, JJ., concur specially.
MADDOX, J., dissents.
*819 HOUSTON, Justice (concurring specially).
I concur fully in the per curiam opinion; however, I write specially because I do not believe that Ms. Thomas should be entitled to receive the full award of punitive damages in this case.
The jury awarded Ms. Thomas only $1,000 as compensatory damages. This is clear from a thorough review of the record in this case, including the trial court's oral charge to the jury. Is Ms. Thomas entitled to receive the entire $750,000 in punitive damages awarded to her by the jury?
Justice Shores, in her special concurrence in Fuller v. Preferred Risk Life Insurance Co., 577 So. 2d 878, 886 (Ala. 1991), wrote:
Under the circumstances of this case, I think that Ms. Thomas should receive $250,000 of the punitive damages award; and that the general fund of the state should receive $500,000, the balance of the punitive damages award. It is due to the efforts of Ms. Thomas's attorneys that the public interest has been served. Therefore, I would hold that 1/3 of the expenses incurred in the litigation and 1/3 of the attorney fees in accordance with the contract with Ms. Thomas should be paid to Ms. Thomas's attorneys out of the $250,000 of the punitive damages allocated to Ms. Thomas. The balance of the $250,000 and all compensatory damages, in my opinion, should be paid to Ms. Thomas. Furthermore, I would hold that 2/3 of the expenses incurred in the litigation and 2/3 of the attorney fees based upon the employment contract between Ms. Thomas and her attorneys (a copy of the contract would need to be filed with the trial court) should be deducted from the $500,000 and paid to Ms. Thomas's attorneys; and the balance should be forwarded to the treasurer of the State of Alabama to be deposited in the general fund of the state.
The compensatory damages and the out-of-pocket expenses awarded to Ms. Thomas in this case were $1,000. The punitive damages were $750,000. A 750 to 1 ratio *820 of punitive damages to compensatory damages and out-of-pocket expenses.
With regard to the amount of punitive damages that may be awarded, I do not know where the line was drawn by the majority opinion in Pacific Mutual Life Insurance Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), between "the constitutionally acceptable and the constitutionally unacceptable" in a given case. ___ U.S. at ___; 111 S. Ct. at 1043. Before concluding, the majority in Haslip wrote:
___ U.S. at ___; 111 S. Ct. at 1046.
I do not know whether this indicates that there must be some kind of proportionality between compensatory damages and punitive damages. I would trust that it does not, if the jury is charged as it was in Haslip and if the trial court conducts a hearing in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), and evaluates the case by the seven factors listed in Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), and if this Court conducts an appropriate review. In the majority opinion in Haslip (___ U.S. at ___, 111 S.Ct. at 1040-45), the terms "windfall recovery" and "windfall" are used; the use of those terms indicates a concern that the amount received by the plaintiff as a result of the punishment of the defendant may be too great. Justice Shores aptly expressed this concern in Fuller. Therefore, I would reduce the amount the plaintiff is to receive to some figure more closely corresponding to the 200 to 1 punitive damages to out-of-pocket expenses ratio that existed in Haslip, and direct that the remainder of the punitive damages after expenses and attorney fees be paid to the State of Alabama general fund to be used for the public good.
SHORES and STEAGALL, JJ., concur.
MADDOX, Justice (dissenting).
On original deliverance, I expressed in a dissenting opinion (566 So.2d at 750) why I thought the trial judge was correct in granting the insurer's motion for a judgment notwithstanding the verdict on the bad faith claim. As I pointed out then, and point out again, the insurer is being fined for failing to win the legal debate over whether the policy language was ambiguous, a legal issue the record in this case shows was involved in this case from the beginning. The statement of the facts in the original opinion (Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala. 1990)) shows, without dispute, that the company and the person entitled to the benefits were debating the question of whether the deceased young lady was a "dependent" within the meaning of the policy.
The issue of whether the deceased young lady was "attending school on a full-time basis," the policy language defining a covered dependent, continued to be debated. The issue was tried to a jury, and the trial judge, finding that the policy language, at least under the facts of this case, was ambiguous, allowed the coverage issue to go to a jury. The coverage issue was debated by the parties at oral argument of the case, in the parties' briefs, and in the written opinion issued by this Court, and as I pointed out in a special concurrence on the question, it was a close question whether the company was entitled to a directed verdict on the contract claim.[1]
*821 It would be neither helpful nor persuasive to restate what I have already said in my original dissent concerning the question of whether the bad faith claim should have gone to a jury. The trial judge, applying the law of bad faith extant at the time, thought that it should not have. He granted the company's motion for a judgment notwithstanding the verdict. I thought he was right. See my dissent, 566 So. 2d at 750.
The law of bad faith refusal to pay first-party insurance claims has been troubling. I expressed some of the concerns that I had in a lengthy dissent in Continental Assur. Co. v. Kountz, 461 So. 2d 802 (Ala. 1984), in which I noted that this Court should probably consider expanding the rule of law relating to the recovery of contractual damages in noncommercial insurance contract cases. In a footnote to that case, I suggested that the legislature might wish to address the problem.
Mr. Justice Jones, in a special concurrence in the Kountz case said, "I think it appropriate, here, to caution the reader that neither [Aetna Life Ins. Co. v. Lavoie, 505 So. 2d 1050 (Ala. 1987)] nor the instant case should be read as weakening the application of the directed verdict test in a bad faith claim context." 461 So. 2d at 810. The opinion released today, it appears to me, does great violence to that test. In one portion of the opinion, the majority states: "After evaluating all of the evidence, these impartial jurors ... found that the insurance company had no lawful basis for denying the mother's claim." This statement implies, if it does not hold, that an insurance company had better win any legal debate it has with its policyholder or suffer a penalty in such a size as the jury may impose. Whether this company had a "lawful basis" to deny the claim was not determined until this Court held in its first opinion in this case that a jury question was presented on the breach of contract claim. See Thomas v. Principal Financial Group, 566 So. 2d 735, 739 (Ala.1990), in which the majority stated that "[t]he words `attending school on a full-time basis' are not patently ambiguous" (emphasis added).
The majority also refers to the "mother's mite," "lack of a means of litigating because the contract amount is too small to obtain lawyers," and "borderline claims." These statements, while arguably relevant to a determination of the reasonable expectancies of the parties in this insurance contract setting, seem to suggest that a jury's award of punitive damages can be sustained by a showing that these facts are present. When the tort of bad faith was first adopted, this Court seemed to stress the importance of the "directed verdict" test. It appears to me that the "directed verdict" test has been modified.
*822 This Court is frequently asked to review disputes between a policyholder and an insurer over such terms as "resident of the same household" and other terms in a policy. Although I agreed that the company was not entitled to a directed verdict on the contract claim in this case, I still believe that the trial judge was eminently correct in granting the insurer's motion for a judgment notwithstanding the verdict on the bad faith claim, because that was what the law of bad faith required, as I understood it at the time. That is why I suggest that this opinion changes the rules. For this Court to authorize the recovery of $750,000 against this company because it did not pay this claim, when this Court itself says that the words of the policy"attending school on a full-time basis"are not "patently ambiguous," and the obligation to pay was not established until this Court heard the case on appeal, shows that the "directed verdict" test has been substantially weakened, and I think that this Court's consideration of such factors as the "mother's mite" and the "lack of a means of litigating because the contract amount is too small to obtain lawyers,"[2] is inappropriate in the context of the legal question whether the deceased child was "attending school on a full-time basis," a term this Court found was not "patently ambiguous." Whether the child was covered or not covered was a legal question, and the wealth of the policyholder and the size of the policy should have been irrelevant in answering that legal question, which was not answered until long after the jury had made its award. What if the policyholder was a billionaire and the policy was in the sum of $1 million? Would that change the nature of the legal question whether the deceased child was "attending school as a full-time student," or whether the issue was a debatable one? Clearly the answer is "no."
Although I concurred in resolving another bad faith case, Aetna Life Ins. Co. v. Lavoie, 505 So. 2d 1050 (Ala.1987), in which this Court required the insurer to pay extra contractual damages, I cannot agree that this case is similar to Aetna. In that case, this Court had previously refused to uphold a summary judgment issued in favor of the company on the bad faith claim, and noted that "this court has not foreclosed the possibility of recovery in tort for the bad faith refusal of an insurer to pay legitimate benefits due under an insurance policy." Lavoie v. Aetna Life & Cas. Co., 374 So. 2d 310, 312 (Ala.1979). Here, it seems clear to me that there was a debatable issue from the very start.
Based on the foregoing, I think that the opinion issued today, on return to remand, is wrong; consequently, I must dissent.
Having expressed the reasons why I disagree with the majority opinion, I also am compelled to state my disagreement with Mr. Justice Houston's special concurrence, in which he states that this Court has the power to direct that a portion of the punitive damages should "be forwarded to the treasurer of the State of Alabama to be deposited in the general fund of the state." While I do not necessarily disagree with the principle that the legislature might enact legislation to have a portion of punitive damages awards in civil cases paid to the state, I do not believe this Court, by judicial decree, can accomplish it.
[1] There is no question that the deceased was not "attending school on a full-time basis," at the time of her death, and that she had not done so for many months prior to her death. The majority discussed this question in its opinion initially:
"The words `attending school on a full-time basis' are not patently ambiguous; that is, on their face they are clear and intelligible and suggest but a single meaning. `Attending' is the present participle of `attend.' `Attend' is defined in The American Heritage Dictionary of the English Language (1969) as `to be present at: attend class.' `Full-time,' used in the policy as an adjective, defined in The Random House Dictionary of the English Language (1971) as `working or operating the customary number of hours in each day, week, or month.' Thus, the words `attending school on a full-time basis,' at least on their face, envision presence in school for the normal or standard period of time required. If this were the end of our inquiry, we would be compelled to hold the trial court in error for denying Principal Mutual's motions for a directed verdict and judgment notwithstanding the verdict, because the undisputed evidence showed that Ms. Warren was not attending school at the Mobile Academy at the time of her death and had not been doing so for approximately 18 months prior thereto....
"The record in this present case reveals that the policy in question was a life insurance policy that was payable upon the death of a `dependent,' whether death was the result of an accident or of an illness.... [A] manual used by Principal Mutual's claims examiner stated: `All policy provisions shall be interpreted in accordance with the common understanding of their language. The spirit or intent of the provision as distinguished from a narrow interpretation of the language shall be given effect;' [and the record reveals] that Edward Kahalley, Jr., an insurance consultant and administrator with over 20 years of experience in interpreting group insurance policies, and with knowledge of the practices and customs of the insurance industry, gave undisputed testimony as an expert that Ms. Warren would have been considered a `dependent' within the meaning of the policy by all other insurers within the industry because she was rendered physically incapable of attending school by a debilitating illness that eventually caused her death...."
566 So. 2d at 739.
[2] This Court has provided a simplified procedure for persons to prosecute small claims such as this in the district court. See, Rule 21, A.R.J.A. | July 26, 1991 |
84998b2a-872c-459c-9b2e-c2831208ba3f | Malb's Associates, Inc. v. Phillips | 589 So. 2d 164 | 1900727 | Alabama | Alabama Supreme Court | 589 So. 2d 164 (1991)
MALB'S ASSOCIATES, INC., and William Rodopoulos
v.
John R. PHILLIPS, et al.
1900727.
Supreme Court of Alabama.
August 9, 1991.
Rehearing Denied October 11, 1991.
John Martin Galese of Galese and Moore, Birmingham, for appellants.
John M. Laney, Jr. and Rhonda K. Pitts of Rives & Peterson, Birmingham, for appellees.
KENNEDY, Justice.
The plaintiffs appeal from a summary judgment in favor of the defendants. We affirm.
The issue is whether the complaint was barred by the statute of limitations.
On August 15, 1984, the plaintiffs, Malb's Associates, Inc., and William Rodopoulos employed attorneys John R. Phillips and Bruce Rice of Phillips and Rice, a partnership, to prepare certain legal documents relative to the plaintiffs' desire to franchise a restaurant business.
On July 31, 1990, the plaintiffs sued their former attorneys, alleging that they committed legal malpractice during their 1984 representation.
The defendants specifically pleaded the statute of limitations. The defendants then filed a motion for summary judgment, claiming that the action was barred by the statute of limitations provided in the Alabama Legal Services Liability Act ("LSLA"), Ala.Code 1975, § 6-5-570 et seq. The trial court granted the motion for summary *165 judgment in favor of the defendants on January 16, 1991.
The plaintiffs point out that the LSLA was enacted after their cause of action accrued and they therefore argue that it does not apply in their case. They contend that the limitations period applicable to their cause of action is six years, pursuant to § 6-2-34(8), Ala.Code 1975. We disagree.
In Michael v. Beasley, 583 So. 2d 245 (1991), this Court held that the statute of limitations in effect at the time suit is filed is applicable as opposed to the one in effect at the time the cause of action accrued. In that case, the Court stated:
Michael, 583 So. 2d at 251.
A cause of action accrues when a plaintiff suffers an injury that entitles him to maintain an action. Michael, supra. In the instant case, the cause of action accrued on or about August 15, 1984, when the defendants were allegedly negligent in providing legal services. Therefore, the plaintiffs' cause of action accrued before the April 12, 1988, effective date of the LSLA. Thus, under § 6-5-574(a), the plaintiffs had one year from April 12, 1988, to file their action. See Michael. Therefore, their action, filed on July 31, 1990, was time-barred.
The summary judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | August 9, 1991 |
cfa89bad-0be5-432a-9630-a7a95971de8b | Grant v. Butler | 590 So. 2d 254 | 1901592 | Alabama | Alabama Supreme Court | 590 So. 2d 254 (1991)
James N. GRANT and Barbara A. Grant
v.
Howard BUTLER, et al.
1901592.
Supreme Court of Alabama.
November 22, 1991.
*255 John A. Wilmer and Walter A. Kelley of Wilmer & Shepard, P.A., Huntsville, for appellants.
Julian D. Butler and R. David Proctor of Sirote & Permutt, P.C., Huntsville, for appellees.
John Richard Carrigan of Balch & Bingham, Birmingham, for amicus curiae Birmingham Area Chamber of Commerce.
HOUSTON, Justice.
The plaintiffs, James N. Grant and his wife, Barbara A. Grant, appeal from the dismissal of those portions of their complaint claiming damages for an alleged wrongful termination of employment. We affirm.
The plaintiffs alleged in their complaint that the defendants, Howard Butler, Mary Jane Butler, Jack Butler, and Butler Imports, Inc. (all hereintogether referred to as "the company"), wrongfully terminated their employment because they had reported certain hazardous conditions that existed in the company's Huntsville warehouse to the Huntsville Fire Department and to the Occupational Safety and Health Administration ("OSHA"). The plaintiffs sought to recover both compensatory and punitive damages in tort for the alleged bad faith breach of an implied "covenant of good faith and fair dealing" (count three) and for the alleged denial "of [their] right to act in the interest of public health, safety, and welfare" (count four).[1] In essence, the plaintiffs sought to recover damages in tort under the theory that the defendants had acted in bad faith in terminating their employment or, in the alternative, under the theory that the termination of their employment was in contravention of the public policy of this state. As to counts three and four, the trial court granted the defendants' Rule 12(b)(6), Ala.R.Civ.P., motion to dismiss, ruling that those counts failed to state claims that were cognizable under Alabama law. This appeal followed.
The standard by which the plaintiffs' complaint in this case must be reviewed is well established:
Greene County Board of Education v. Bailey, 586 So. 2d 893 (Ala.1991), quoting *256 Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985). (Emphasis added.)
Although every contract contains either an express or an implied covenant that the parties will act in good faith in performing the contract, in Alabama only insurance contracts give rise to a duty imposed by law on which a tort claim for bad faith performance can be based. We have consistently declined in the past, and we decline again today, to extend to the area of general contract law the tort of bad faith that we have recognized in the context of insurance contract cases. See Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1388 (Ala.1986). Because the plaintiffs in this case sought to recover in tort under Alabama law for the bad faith breach of their employment contract, the trial court properly dismissed count three.
The employee-at-will doctrine, first recognized in this state 100 years ago in Howard v. East Tennessee, V. & G. Ry., 91 Ala. 268, 8 So. 868 (1891), provides that an employment contract terminable at the will of either the employer or the employee may be terminated by either party at any time with or without cause. Through the years, this Court has steadfastly declined to modify the employee-at-will doctrine by recognizing a cause of action sounding in tort for the wrongful termination of an employment contract when the employer's actions were in contravention of this state's public policy, but has chosen, instead, to rely upon legislative action to ameliorate some of the harshness of the employee-at-will doctrine. See, e.g., McClain v. Birmingham Coca-Cola Bottling Co., 578 So. 2d 1299 (Ala. 1991); Salter v. Alfa Ins. Co., 561 So. 2d 1050 (Ala.1990), and the cases cited therein. Concurring specially in Salter, Chief Justice Hornsby, joined by Justice Shores, most eloquently made the case for the judicial creation of a public-policy-based remedy for employees who may be subjected to "employment blackmail" for doing or not doing certain acts. He aptly noted that "[i]t is beyond question that the employment-at-will rule allows employers to effectively pressure employees to commit wrongful or illegal acts through the threat of dismissal for not complying with the employee's demands." 561 So. 2d at 1055. However, all of the Justices who voted in Salter recognized that Salter did not present facts that would justify the creation of a "public policy exception" to the employee-at-will doctrine.
The plaintiffs insist that the facts of the present case would support the creation of a public-policy-based remedy, such as the one discussed by Chief Justice Hornsby in Salter. Although we recognize that it may become necessary for this Court to adopt a limited public-policy-based tort remedy for wrongfully terminated employees, this case, like Salter, does not present facts that would justify the judicial creation of such a remedy. Faced with the question whether it should create a new tort remedy for employees who were terminated by their employers for reporting hazardous conditions in the workplace, the Supreme Court of Oregon, in Walsh v. Consolidated Freightways, Inc., 278 Or. 347, 563 P.2d 1205, 1208-09 (1977), held:
We find the rationale of the Supreme Court of Oregon to be persuasive. In the present case, the plaintiffs had an adequate remedy under the anti-retaliation provision of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), which provides:
This remedy is adequate to protect both the public's interest in maintaining safe conditions in the workplace (i.e., the protections afforded employees under the statute encourage employees to report safety and health violations to OSHA, which is charged with the responsibility of investigating those reports, eliminating any violations, and, if necessary, punishing employers for those violations in accordance with federal law) and the interests of employees who are discharged for complaining to OSHA about safety and health problems in the workplace (i.e., the statute provides for "all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay"). Therefore, we find it unnecessary to create a new tort remedy to cover this kind of situation. Accordingly, we conclude that the trial court properly dismissed count four.
For the foregoing reasons, the judgment dismissing counts three and four is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur.
MADDOX, J., concurs in the result.
[1] The plaintiffs' complaint also claimed damages for breach of contract, and that claim remains pending below. The trial court certified its judgment dismissing counts three and four as final pursuant to Rule 54(b), Ala.R.Civ.P.
[2] The record does not indicate whether the plaintiffs sought a remedy under this federal statute. | November 22, 1991 |
b78d77a7-0546-4031-a000-3ae5641423d3 | Ex Parte Riley | 583 So. 2d 1356 | 1901404 | Alabama | Alabama Supreme Court | 583 So. 2d 1356 (1991)
Ex parte Randall RILEY.
(Re Randall Riley v. State).
1901404.
Supreme Court of Alabama.
August 2, 1991.
John S. Waddell, Birmingham, for appellant.
James H. Evans, Atty. Gen., for appellee.
Prior report: Ala.Cr.App., 583 So. 2d 1353.
ALMON, Justice.
The petition for writ of certiorari is denied.
In denying the petition for writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | August 2, 1991 |
35065272-713f-408e-b765-6cfe4b2e1cfd | GMAC v. Covington | 586 So. 2d 178 | N/A | Alabama | Alabama Supreme Court | 586 So. 2d 178 (1991)
GENERAL MOTORS ACCEPTANCE CORPORATION, INC.
v.
Gerald COVINGTON.
89-1790.
Supreme Court of Alabama.
August 9, 1991.
*179 J. Mason Davis and Susan B. Anderson of Sirote & Permutt, Birmingham, for appellant.
John A. Tinney, Roanoke, for appellee.
ADAMS, Justice.
General Motors Acceptance Corporation (hereinafter "GMAC") appeals from the trial court's judgment on a jury verdict in favor of Gerald Covington on his counterclaim alleging misrepresentation. The jury assessed compensatory damages in the amount of $25,000 and punitive damages in the amount of $50,000. We affirm.
This case arises out of the following facts:
On November 12, 1985, Gerald Covington purchased a 1986 Pontiac Trans Am automobile from Frank Lawrence Pontiac-Cadillac Company. At the time he purchased the vehicle, Covington executed a "retail installment sales contract," by which he financed the purchase price of the automobile. Frank Lawrence Pontiac-Cadillac assigned the retail installment sales contract to GMAC. Covington thereby became indebted directly to GMAC under the contract. Both parties were aware at the time of purchase that GMAC would actually finance the purchase of the car, and that the installment sales contract would be assigned to GMAC. Covington was also advised that it would be necessary for him to obtain and keep insurance coverage on the car.
The car was apparently purchased for Covington's son, who intended to take the car to Kansas, where he attended college. Shortly after the purchase, Covington obtained insurance on the car from the Johnson Agency. Within three months, Covington allowed the insurance to lapse for nonpayment of premiums. Covington testified that he could not afford the $2,300 premium. The portion of the sales contract concerning insurance provided in part:
In January 1986, GMAC notified Covington that his insurance had been canceled and advised him that it was necessary for him to purchase additional insurance as required by the sales contract. At that time, Covington requested assistance from GMAC in obtaining insurance through Motors *180 Insurance Corporation. On February 25, 1986, Covington was notified by GMAC that it would be unable to purchase insurance for him through Motors Insurance Corporation. Covington then telephoned Mrs. Margaret Oliver at GMAC's office in Gadsden, and inquired about purchasing "single interest" insurance. At the time he purchased the car, the concept of single interest insurance was explained to Covington by the salesman. According to Covington, Ms. Oliver stated that she would "take care of it." Ms. Oliver was not an insurance agent and did not sell insurance, but simply would forward the application to the insurance company. The single interest insurance is designed to protect the creditor, not the owner of the vehicle, in the event of loss or damage. GMAC's practice was that the customer paid for the single interest insurance in one of three ways; a cash payment for the entire premium, increased monthly payments extended over the life of the car loan, or collecting the premiums plus any interest due at the end of the debtor's loan. GMAC, as a practice, did not automatically add or purchase single interest insurance. However, the customer could request that it be added. Furthermore, as provided in the sales contract, GMAC retained the right to purchase the single interest insurance if it so desired. This alleged conversation with Ms. Oliver was the only conversation Covington had with any GMAC representative concerning the single interest insurance, or any other insurance for that matter.
Although Covington was aware that his car payments could increase if the single interest insurance were added, his payments never increased. Covington never received a policy for the single interest insurance, made no payments, and received no notices regarding the insurance. Nevertheless, Covington did not contact any GMAC representative concerning the status of his insurance coverage.
Ms. Oliver testified that it was the practice of GMAC not to purchase single interest insurance unless GMAC received a written request from the customer. According to Ms. Oliver, because no written request was ever received from Covington, no single interest insurance was purchased.
Covington continued to make the payments on the automobile until April 1987, when the car was stolen from the college campus in Kansas. When he learned of the theft, Covington reported it to Mr. Estis of GMAC. Shortly thereafter, Covington learned that there was no single interest coverage on the car. As a result, he made no further payments on the car after the theft. Covington's reason for making no further payments on the car was that he intended to go to Kansas and investigate the theft.
On September 15, 1987, GMAC sued Covington for a deficiency balance owed on the installment sales contract. On November 6, 1987, Covington filed an answer and a counterclaim, alleging that GMAC, through Ms. Oliver, had misrepresented to him that single interest insurance would be purchased for him. GMAC subsequently filed a motion to dismiss the counterclaim and a motion for a summary judgment. On August 15, 1988, the circuit court entered a judgment granting GMAC's motion to dismiss Covington's counterclaim and its motion for a summary judgment on the deficiency balance owed on the installment contract, entering a judgment against Covington in the amount of $13,974.88, plus costs.
On September 8, 1988, Covington filed a pro se motion for "reconsideration" and/or "rehearing." Covington contended that he had not been adequately represented during the summary judgment hearing. On December 8, 1988, the court entered an order setting aside the order dismissing Covington's counterclaim. The court left intact the judgment in favor of GMAC on the original deficiency claim.
In his counterclaim, Covington sought $7,855.68 in actual damages and $65,000 in punitive damages. The case proceeded to trial, essentially on the sole issue of whether the misrepresentation was made. At the close of the evidence, the case was submitted to the jury after the judge had denied GMAC's motion for a directed verdict. Upon the denial of the directed verdict, Covington sought to amend his complaint *181 in order to withdraw his request for a specific amount of punitive damages and to substitute an amount that the jury might award. The court allowed the amendment. Covington made no request to change the amount of compensatory damages he sought.
The jury found in favor of Covington on his claim of misrepresentation and assessed compensatory damages in the amount of $25,000 and punitive damages in the amount of $50,000. The court thereafter entered a judgment on this verdict. GMAC's motion for a JNOV and its alternative motion for a new trial were denied.
On appeal, GMAC raises the following issues: (1) whether the trial court erred in failing to direct a verdict in its favor on Covington's fraud countin that regard, GMAC contends that Covington presented no evidence of the elements of promissory fraud sufficient to go to the jury, and that there was no evidence of justifiable reliance or of intent to deceive at the time of the alleged misrepresentation; (2) whether the jury's verdict awarding compensatory damages of $25,000 was supported by the evidence, was excessive, and exceeded the amount requested by Covington in his counterclaim and the amount set forth in the court's pretrial order; and (3) whether the jury's award of punitive damages in the amount of $50,000 was supported by the evidence presented at trialin this regard, GMAC contends that there was no evidence of gross, malicious, or oppressive conduct on the part of GMAC to support an award of punitive damages.
GMAC first argues that Covington did not present sufficient evidence of promissory fraud for that claim to be submitted to the jury. Specifically, GMAC argues that because the alleged misrepresentation made by Ms. Oliver that she "would take care of it" was a promise to do some act in the future, Covington not only must establish the elements of fraud, but also must prove that the promisor, at the time of the alleged misrepresentation, did not intend to do the act promised and had an intent to deceive. GMAC also argues that Covington did not establish the element of reliance. GMAC argues that Covington did not prove the required elements of fraud or promissory fraud and therefore that GMAC was entitled to a directed verdict. We disagree.
At the outset, we point out that in order for Covington's claim of misrepresentation to be submitted to the jury, he must present "substantial evidence." Ala.Code 1975, § 12-21-12(a). Substantial evidence is defined as:
West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
We note that the alleged misrepresentation made by Ms. Oliver was clearly a promise to do some future act, to purchase single interest insurance, because Covington said she stated that she "would take care of it." Therefore, in order for Covington to have his claim submitted to the jury, he must present substantial evidence of all of the elements of fraud, as well as the two added requirements of promissory fraud.
In order to prove a claim of fraud, the plaintiff must present substantial evidence that there was: (1) a false representation; (2) of a material existing fact; (3) that he justifiably relied upon it; and (4) that he was damaged as a proximate result. If a fraud claim is based upon a promise to do some act in the future, as it is here, then Covington has the added burden of proving the additional elements that; (1) the promisor, at the time of the alleged misrepresentation, did not intend to do the act promised; and (2) that the promisor, at that time, had an intent to deceive. Benetton Services Corp. v. Benedot, Inc., 551 So. 2d 295 (Ala.1989). See also Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983).
With respect to the basic elements of fraud, GMAC argues that Covington has not established the element of reliance. In proving fraud, the plaintiff must establish that he "justifiably" relied on the alleged *182 misrepresentation, under the new standard set out in Hickox v. Stover, 551 So. 2d 259 (Ala.1989), in which this Court stated:
GMAC argues that because Covington made no inquiries as to the single interest insurance after the alleged conversation with Ms. Oliver, and the fact that he knew his monthly payments did not increase, he cannot be said to have justifiably relied on Ms. Oliver's alleged representation. We disagree. An examination of the record reveals that there was substantial evidence to support a finding that Covington justifiably relied on Ms. Oliver's alleged representation.
Although it may be true that Covington made no further inquiries into the purchase of single interest insurance after his conversation with Ms. Oliver, it appears that he had no reason to question whether the single interest insurance was purchased, because he never received notice from GMAC that the vehicle did not have adequate insurance. Furthermore, it was the policy of GMAC not to send a policy or a copy of a policy to the customer, because the single interest insurance was primarily for the benefit of GMAC. Last, the fact that Covington's monthly payments did not increase is not dispositive of the question whether the single interest insurance was purchased. An increase in the monthly payments was only one way GMAC could charge the customer for the insurance. Covington could justifiably have assumed that GMAC had decided to use one of the other methods of payment, namely, charging him for the entire premium or collecting the premiums, plus interest, at the end of the loan. The evidence presented indicates that the misrepresentation in this case is not one so patently and obviously false that Covington had to close his eyes to avoid the discovery of the truth. We hold, therefore, that there was sufficient evidence presented to create a jury question as to whether Covington justifiably relied on the alleged representation, and the trial court properly submitted the case to the jury.
GMAC argues further, assuming, arguendo, that Covington has established the element of reliance, that he failed to establish the two added elements of promissory fraud, namely, that the misrepresentation was made with the present intent to deceive, and that at the time of the misrepresentation the promisor intended not to perform. To the contrary, the record again reveals that Covington presented substantial evidence that Ms. Oliver intended to deceive him and intended not to perform the promise to purchase single interest insurance.
With respect to the element of promissory fraud requiring that the promisor must have acted with the present intent to deceive, Ms. Oliver testified that the only way she could apply for single interest insurance was for a customer to make a written request. Thus, when she made the alleged statement that she "would take care of it" she knew, in fact, that she could not apply for the insurance at that time. Nevertheless, Ms. Oliver apparently did not inform Covington of the GMAC policy of requiring a written request for single interest insurance and there was evidence that she stated that she "would take care of it" when, in actuality, she could not "take care of it."
With respect to the second element of promissory fraud, that the promisor have, *183 at the time the representation is made, a present intent not to perform, the record again reflects that Covington presented sufficient evidence to warrant submission to the jury. Contrary to GMAC's argument that this case involves a mere failure to perform, Ms. Oliver's testimony reflects that she never intended to perform the promise to "take care of" the purchase of single interest insurance. Ms. Oliver testified:
Ms. Oliver's testimony indicates that, although there was evidence that she stated that she would take care of the purchase of single interest insurance, at the time she made the promise she had no intent to actually purchase the insurance for Covington's car. We conclude, therefore, that Covington presented sufficient evidence that Ms. Oliver intended, at the time of the alleged statement, to deceive him, and intended not to perform the promise to purchase the insurance. That evidence warranted submission of Covington's claim of promissory fraud to the jury.
GMAC also argues that the compensatory damages award of $25,000 is excessive and is not supported by the record, and that the punitive damages award of $50,000 was improper because, it says, there was no evidence of gross, willful, or oppressive conduct by GMAC that would justify such an award. With respect to the compensatory damages award, GMAC bases its argument primarily on the fact that Covington sought in his pleadings to recover only $7,855.68. The verdict forms given to the jury in the trial court's oral charge read as follows:
Contrary to GMAC's argument, an amount of recovery requested in the pleadings does not prohibit the jury from awarding the plaintiff what it views as an appropriate award based on the facts and evidence presented. The jury is entitled to award an amount that it sees fit to award based on what is proved at trial, rather than what is pleaded. Rule 54(c).
Furthermore, after the court's charge was read to the jury, GMAC made no objection to the charge on compensatory damages. Thus, in that regard, GMAC has not preserved any error for the record, as it made no objection to the charge before the jury retired to deliberate the case. As stated in Rule 51, A.R.Civ.P.:
See Cooper v. Bishop Freeman Co., 495 So. 2d 559 (Ala.1986).
With respect to the trial court's charge regarding punitive damages, GMAC made the following objection:
As mentioned above, Rule 51 requires parties, in objecting to the court's charge, to state the matter to which they object and the grounds for the objection. GMAC, in its general objection to the portion of the court's charge concerning punitive damages, stated no grounds for the objection and, thus, did not properly preserve the question for appellate review. Furthermore, we disagree with GMAC's argument that the evidence presented does not support the punitive damages award.
As discussed above, an examination of the record reveals that Covington presented sufficient evidence of the elements of promissory fraud to create a jury question, and it was such that the jury could reasonably infer that Covington was defrauded by Ms. Oliver's representation. Given the fact that there was sufficient evidence of both elements of promissory frauda present intent to deceive and an intent not to perform the promisethe question of punitive damages was properly submitted to the jury. Carnival Cruise Lines, Inc. v. Goodin, 535 So. 2d 98 (Ala.1988). Therefore, the jury, in finding in favor of Covington on his claim of misrepresentation, was justified in awarding punitive damages in an amount that it saw fit to award.
For the reasons set out in this opinion, the judgment entered on the jury verdict awarding damages to Covington on his claim of misrepresentation is affirmed.
AFFIRMED.
HORNSBY, C.J., and INGRAM, J., concur.
ALMON and STEAGALL, JJ., concur in the result. | August 9, 1991 |
d6840a00-836e-4aa8-92c2-9386be5d0368 | Harris v. Gill | 585 So. 2d 831 | 1900519 | Alabama | Alabama Supreme Court | 585 So. 2d 831 (1991)
Michael L. HARRIS
v.
Nelson GILL and K.D. Moore.
1900519.
Supreme Court of Alabama.
July 26, 1991.
*832 R. Wayne Wolfe of Wolfe, Jones & Boswell, Huntsville, for appellant.
Jerry Kronenberg and Kenneth A. Jenero of McBride, Baker & Coles, Chicago, Ill., and Benjamin R. Rice of Spurrier, Rice & Henderson, Huntsville, for appellees.
HOUSTON, Justice.
Michael L. Harris appeals from the trial court's summary judgment in favor of Nelson Gill and K.D. Moore in this action to recover damages for personal injury to Harris. This action was brought under Ala.Code 1975, § 25-5-11 (part of the Alabama Workmen's Compensation Act). We reverse and remand.
The summary judgment was proper in this case if there was no genuine issue of material fact and the defendants were entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the defendants to make a prima facie showing that no genuine issue of material fact existed and that they were entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to the plaintiff to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. In determining whether there was a genuine issue of material fact, this Court must view the evidence in the light most favorable to the plaintiff and must resolve all reasonable doubts against the defendants. Wakefield v. State Farm Mutual Automobile Ins. Co., 572 So. 2d 1220 (Ala. 1990). Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989); § 12-21-12.
After reviewing the evidence before us, we find that the following material facts are not in dispute: At the time of the on-the-job accident made the basis of this suit, from which accident Harris suffered injuries, he had been employed by Coyne Cylinder Company ("Coyne")[1] at its plant in *833 Huntsville, Alabama, for approximately four months. He worked as a material handler on the second shift in the pressing department, and his duties consisted primarily of material handling and press operation. Harris reported directly to Bill Henderson, the second shift supervisor in the pressing department. Henderson reported to K.D. Moore (a superior of Harris and manager of fabrication operations); and Moore, in turn, reported to Gill (a superior of Harris and vice-president of manufacturing). Gill and Moore generally were responsible for maintaining in a reasonably safe condition the punch press at which Harris was working and generally were responsible for supervising and providing all safety practices and procedures utilized by Coyne.
The punch press on which Harris was injured was originally manufactured by the Hydraulic Press Manufacturing Company of Mount Gilead, Ohio. Coyne had purchased the press from a used equipment dealer in June 1985. It was approximately 40 years old at that time, and it was purchased for use in processing metal footings and collars for cylinders. When the press arrived at Coyne, it was basically unusable. It was neither equipped with nor accompanied by any safety buttons, guards, or devices. Coyne's engineering department had to rewire and rework the press in order to get it operational. In June 1985, when the press first was put into operation at Coyne, it had a panel across the front that had been installed by the engineering department. The panel contained, among other things, palm control buttons to activate the press and an emergency stop button. At that time, the palm control buttons were the only activating device on the press. Sometime thereafter, Coyne began making a new kind of collar for the gas cylinders; the new collars were longer or taller than before. Because of their size, weight, and configuration, these collars would fall off the die when the operator removed his hands to depress the palm control buttons. As a result, in order to keep the collars in place on the die and to punch holes in the collars with the exactness and precision necessary for their eventual use, the operator had to hold the collar firmly in place throughout the operating cycle. The operator could not use his hands to activate the press with the palm control buttons, because it physically was not possible for him to hold the collar in place and depress the palm control buttons at the same time. Subsequently, at some point between June 1985 and early 1987, a foot control pedal (which was equipped with a cover and an elevated pedal to prevent accidental depression) was added to the press as an alternative activating device to enable the operator to activate the press with his foot while holding the collar in place with his hands. Thereafter, either the foot control or the pre-existing palm control buttons could be used to activate the press.
During the five-year period preceding Harris's accident, which occurred on February 27, 1989, safety-related inspections of the press site were conducted by both Coyne's insurance carriers and the Birmingham area office of the Occupational Safety and Health Administration ("OSHA"). Coyne's insurance carriers conducted at least 16 comprehensive loss control surveys during this period, but none of the corresponding reports identified any unsafe conditions concerning the press. The OSHA inspection was conducted at Coyne in January 1988, and Gill personally accompanied the OSHA inspector during that inspection. At Gill's request, Moore ran collars on the press for the OSHA inspector, specifically demonstrating the two-handed nature of the operation and utilizing the foot control pedal to activate the press. During the OSHA inspection, as was true at the time of Harris's injury, there were no barrier guards or other devices to physically prevent the operator's hand from entering the point of operation. Although the OSHA inspector cited Coyne for violations elsewhere in the plant, he issued no citations in connection with the safeguarding or general safety of the press.
Prior to the accident, on at least one occasion, Harris had run the press after Henderson had provided Harris with general *834 orientation and instruction on the pressHenderson showed Harris the press; explained the press and its operation; advised that there was an on-off switch on the left side of the press; showed the parts (i.e., collars) to be run; showed where to make the cuts; and showed how to cut the parts, by demonstrating the operation, using the foot control pedal to activate the press.
Similarly, on the day of the accident, Henderson assigned Harris to the press, took him to the press, and instructed him how and where to hold and cut the parts, with both hands on the collar to ensure accurate cuts, while activating the press with the foot control pedal. On that day, Coyne was using a new die on the press, which was designed to make rectangular cuts rather than half-moon shaped cuts on the collar, and Henderson had demonstrated the operation to Harris. Thus, on that day, Harris was running collars on the press, using the foot control pedal as the activating device. While standing at the press, Harris would reach into a metal basket to his left to get an unprocessed collar. He then would load the collar onto the die with his hands; hold the collar in place; make a first cut by activating the press with the foot control; align the collar with his hands; hold the collar in place; make a second cut with the foot control pedal; and repeat the process to make a third cut. After completing the process, Harris would remove the collar from the die and drop it into a basket of processed parts to his right. The operation Harris was performing required him to load the collar onto the die with his hands, hold it in place and rotate it on the die during the operating cycle, and then remove it with his hands. Because the particular collar being run by Harris had a curled edge, which threw it off balance so that it would not lie flat on the die set, he had to hold the collar in place against the back of the die set in order to ensure accurate cuts. If he did not follow this procedure, the collars would be mispunched. Because he could not both hold the collar in place and use his hands to activate the press with the palm control buttons, he used the foot control pedal as the activating device. When Harris had made the last cut on the collar he was running, he removed it from the die and threw it into the basket of finished parts to his right. Noticing that a piece that had been cut from the collar had not fallen into the scrap box below the die set, but was lodged inside the die, Harris tried to dislodge the piece from the die set with his right hand while reaching left to pick up an uncut collar. While his fingers were inside the die set at the point of operation, dislodging the piece of scrap, Harris depressed the foot pedal, which activated the press and, as a result, the index and middle fingers of his right hand were amputated.
Following the accident, Harris filed a workmen's compensation claim against Coyne. He received a lump sum settlement for his injury in the amount of $16,906. Coyne's workmen's compensation insurance carrier also paid all of Harris's related medical bills, in the amount of $10,933, as well as temporary total disability benefits in the amount of $1,403. Harris subsequently filed this suit against Gill and Moore personally, seeking damages under Ala.Code 1975, § 25-5-11(c)(1) and (c)(2). The complaint alleged that, as his supervisors, Gill and Moore had caused Harris's injury by failing to provide a safe place to work, by failing to properly supervise Harris's work, by removing proper safeguards with which the press previously had been equipped, and by failing to install a proper safeguard that was designed and available for the press. Gill and Moore filed a motion for summary judgment, asserting in their supporting brief that Harris had failed to establish a genuine issue of material fact under either § 25-5-11(c)(1) (which generally defines "willful conduct" as conduct consciously pursued with a "design, intent and purpose of inflicting injury") or (c)(2) (which specifically defines "willful conduct" as "the willful and intentional removal from a machine of a safety guard or device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from such removal"). The trial court granted their motion. Harris appealed. Although *835 Harris asserted claims under § 25-5-11(c)(1) and (c)(2), on appeal he fails to argue § 25-5-11(c)(1). "[The] failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal." Ex parte Riley, 464 So. 2d 92 (Ala.1985). Therefore, the propriety of the summary judgment in favor of Gill and Moore as it relates to § 25-5-11(c)(1) is not before us. The only issue for our review is whether the trial court erred in entering a summary judgment in favor of Gill and Moore based on its finding that Harris had failed to present a genuine issue of material fact as to his claim under § 25-5-11(c)(2).
Section 25-5-11(c)(2) reads as follows:
"(c) As used herein, `willful conduct' means:
"....
The safety guard allegedly removed in violation of § 25-5-11(c)(2) was the palm control buttons on the punch press. Pursuant to the provisions of § 25-5-11(c)(2) and based on the well-settled law in Alabama, it was incumbent upon Harris to present substantial evidence that Gill and Moore willfully and intentionally removed from the machine the safety guard or device provided by the manufacturer of the machine and did so with knowledge that injury would likely or probably result from the removal. Thus, the specific statutory provision, § 25-5-11(c)(2), upon which Harris bases his claim and which defines "willful conduct," sets forth the following four elements that Harris must establish in order for him to make out a prima facie case:
1. The safety guard or device must have been provided by the manufacturer of the machine;
2. The safety guard or device must have been removed from the machine;
3. The removal of the safety guard or device must have occurred with knowledge that injury would probably or likely result from that removal; and
4. The removal of the safety guard or device must not have been part of a modification or an improvement that rendered the safety guard or device unneccessary or ineffective.
Harris contends that because Coyne reconstructed and/or modified the 40-year-old punch press into a new form or with new qualities in order to make it workable and usable, Coyne qualified as a "manufacturer" for purposes of § 25-5-11(c)(2). He argues that this construction of the Act would be consistent with the well-established rule that the Workmen's Compensation Act is to be construed liberally to effect the beneficent purpose of the Actto require industry to bear part of the burden of disability and death resulting from the hazards of industry, Ford v. Mitcham, 53 Ala.App. 102, 298 So. 2d 34 (1974)and that all reasonable doubts are to be resolved in favor of the claimant. Tiger Motor Co. v. Winslett, 278 Ala. 108, 176 So. 2d 39 (1965). He bases his contention on the fact that the American National Standard Institute ("ANSI") defines "manufacturer" as "one who manufactures, reconstructs, or modifies" hydraulic presses; on the fact that both his expert and Gill and Moore's expert recognized ANSI as an authority on the care and maintenance of hydraulic presses such as the one on which Harris was injured; and on the fact that Gill and Moore's expert stated that "individuals who have a duty to supervise the safe operation of the hydraulic press [have] to follow [ANSI] standards."
Gill and Moore contend that Harris's claim should fail because Coyne was not the original manufacturer of the punch *836 press. They contend that this Court should ignore the specialized definition of the term "manufacturer" as set forth by ANSI; that in the absence of a clear legislative intent mandating that result it would be inappropriate to define the term "manufacturer" in § 25-5-11(c)(2), a provision that is applicable to all employers regardless of their industry, by reference to a nonbinding industry standard, such as that adopted by ANSI, which by its terms is limited to the construction, care, and use of hydraulic power presses. Rather, they contend that this Court should recognize the ordinary and generally accepted definition of "manufacturer"one who is in the business of manufacturing the machine as a finished product or article of trade for use or sale and, therefore, that this Court should hold that a company that merely reconstructs or modifies a machine for a use incidental to its business, but not for sale in the ordinary course of its business, is not "the manufacturer of the machine" within the meaning of § 25-5-11(c)(2).
The legislature did not define the term "manufacturer" in the Act, and we have found no Alabama cases defining "manufacturer" for the purpose of our analysis under § 25-5-11(c)(2) that are directly on point. Therefore, we exhaustively researched the law of other jurisdictions (specifically that of the State of Minnesota, on whose statutes our workmen's compensation laws are based), but we found nothing definitive to aid in resolving this matter. Therefore, ever mindful of the purpose of § 25-5-11 of the Actto provide employees with a cause of action against co-employees for their willful conduct in the workplacewe thoroughly reviewed the facts before us, thoroughly considered the arguments in the parties' briefs, and concluded that, under the facts of this case, to hold that Coyne was not a manufacturer, when it purchased a 40-year-old punch press that was unusable and unworkable when purchased, and reconstructed and/or modified it into a usable, workable machine, would be contrary to the Act's beneficent purpose. Thus, in construing the facts of this case under § 25-5-11(c)(2), we hold that the term "manufacturer" may include not only the original manufacturer (one who produces articles for use or trade), but also a subsequent entity that substantially modifies or materially alters the product through the use of different components and/or methods of assembly.
Having determined that, under the facts of this case, Coyne qualifies as a "manufacturer" under § 25-5-11(c)(2), we must now determine whether Harris presented sufficient evidence that Gill and Moore removed a safety device or guard from the machine.
It is undisputed that the palm control buttons were not physically removed from the machine, but that they remained on the machine after the foot control was added as an alternative activating device so that either the palm control buttons or the foot control could be used to activate the press. It is also undisputed that only one of the controlseither the foot control or the palm control buttonscould be used at one time. Therefore, if Harris was using the foot control at the time of his injury (and the undisputed evidence shows he was), he could not have been using the palm control buttons.
Gill and Moore contend that the "removal" of a safety device or guard from a machine requires more than disabling a control or using an alternative control that makes the other control ineffective. They contend that "removal" requires a physical separation from the machine.
Harris contends that the act of bypassing the palm control buttons, which were the safety device that would have prevented his injury, constituted the "removal" of a safety device or guard.
Thus, the question becomes whether the use of the alternative foot control instead of the palm control buttons constituted a "removal from the machine of a safety guard" within the meaning of § 25-5-11(c)(2)in other words, even though there was no physical removal of the palm control buttons, but rather an installation of a system designed to bypass the palm control buttons, did such action constitute "removal" within the meaning of § 25-5-11(c)(2)?
The concept of removalthat is, the physical separationwas extended by this Court in Bailey v. Hogg, 547 So. 2d 498 *837 (Ala.1989),[2] to include the "failure to install" a safety device provided by the manufacturer. The Court found the same dangers present in both situations:
547 So. 2d at 500. See, also, Williams v. Price, 564 So. 2d 408 (Ala.1990) (a case in which we refused to extend the concept of "removal" under § 25-5-11(c)(2) to include instructions pertaining to safety procedures, whether given or not given).
Applying the rationale of Bailey, we hold that the act of "bypassing" a safety device of a particular machine that would prevent an injuryspecifically, in the instant case, the act of bypassing the palm control buttons, the safety device on the press that would have prevented Harris from inserting his hand at the point of operation during operation and, thereby, would have prevented the loss of his fingersis encompassed within the word "removal." As we found in Bailey, supra, to hold otherwise would contravene public policy; it would allow supervisory employees to instruct their employees to perform a certain operation after a safety device related to that operation had been removedit would allow a supervisor in this case to instruct an operator to cut a particular material on a press by holding the material with both hands and utilizing the foot control, thus requiring the operator to bypass the palm control buttons that constituted the safety device that would have prevented the injury that occurred.
Having determined that the act of bypassing a safety device may constitute "removal", we turn to the question whether Gill and Moore had knowledge that Harris's injury would likely or probably result from such "removal."
In Creel v. Bridewell, 535 So. 2d 95, 97 (Ala.1988), this Court held that "[a] duty to provide co-employees with a safe workplace naturally encompasses a duty to provide co-employees with machines that function properly and safely." Although it is undisputed that neither Moore nor Gill was present in the plant at the time of the accident, the record in this case contains evidence that Gill and Moore's relationship with Harris was in a supervisory capacity; that they were familiar with the punch press, the palm control buttons, and the alternative foot control; that they had observed the press in operation at the plant; that they were aware that when the alternative foot control was being used, the palm control buttons could not be activated; and that they knew or should have known that the safety device had been bypassed and, therefore, posed a safety risk for co-employees, such as Harris, who used it.
Harris presented the following testimony of Gill and Moore concerning their knowledge of the placement of the foot control as an alternative device to the palm control buttons; concerning the claim that when the alternative foot control was operational, it made unavailable the use of the palm control buttons that constituted the safety device to prevent one from placing his hands into the point of operation; and concerning the question whether the proximate cause of Harris's injury was the absence of a safety guard or device from the machine:
"A. Well, it ensures that both of your hands are out of the press.
"Q. [You] realize that workers are going to put their hands in presses from time to time, and you knew that based upon your training and background, didn't you?
"Q. I understand. But you were aware that prior to this incident that these types of accidents do occur and have been known to occur in an industrial plant with an hydraulic press?
"Q. You commented again on the palm buttons as being the best safety device available to keep the hands away from the punch press.
"A. No, they are a very good safety device. There are other safety devices.
"Q. What other safety devices are there that could be utilized, or could have been utilized, on this machine to keep hands or fingers away from the press when it may be activated?
"Q. And having his hands free and his foot on the foot pedal, he could activate it with his hands near the press; is that correct?
"Q. And you knew that could happen beforehand, didn't you? That was already discussed, that if you get your hands near the pinch area, they are not on the palm button or on some metal, there is the possibility that a finger can get amputated. You are aware of that?
Harris also presented the following sworn testimony of his expert witness as to the "removal" of the palm buttons, as to the probability of injury, and as to the question whether such "removal" was done for the purpose of repairing the machine or as a modification of the machine that rendered the safety device ineffective or unnecessary:
"....
(Emphasis added.)
Based on the foregoing, after reviewing the record in the light most favorable to Harris and resolving all doubts in his favor, we hold that the trial court erroneously entered the summary judgment in favor of Gill and Moore on Harris's claim under § 25-5-11(c)(2). Therefore, we reverse and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, KENNEDY and INGRAM, JJ., concur.
[1] Coyne Cylinder Company, a wholly owned subsidiary of Thermadyne Industries, Inc., manufactured metal cylinders for gaseous substances used primarily for welding purposes.
[2] Although the author of this opinion dissented in Bailey v. Hogg, 547 So. 2d 498 (Ala.1989), disagreeing with the rationale of the Court in its holding, that holding is the law, and the author is bound by stare decisis to follow that law and is bound to follow any rational and logical extension thereof. | July 26, 1991 |
d1c60911-1606-4b13-ac4c-8669a3124357 | Blane v. Alabama Commercial College | 585 So. 2d 866 | 1900582 | Alabama | Alabama Supreme Court | 585 So. 2d 866 (1991)
Geraldine BLANE
v.
ALABAMA COMMERCIAL COLLEGE, INC., d/b/a Riley Business College.
1900582.
Supreme Court of Alabama.
August 2, 1991.
Malcolm R. Newman of Newman & Newman, Dothan, for appellant.
Rufus R. Smith, Jr. of Farmer, Price, Smith, Hornsby & Weatherford, Dothan, for appellee.
STEAGALL, Justice.
The plaintiff, Geraldine Blane, appeals from a summary judgment entered in favor of the defendant, Alabama Commercial College, Inc., d/b/a Riley Business College, in Blane's lawsuit alleging breach of contract, fraud, and "educational malpractice" and claiming $703,695. The trial court found that the evidence before the court on the summary judgment motion presented no genuine issue of material fact. We agree.
In 1988, Blane was a 34-year-old housewife and part-time cook with a ninth grade education.[1] She wanted to change the status of her life and was interested in returning to school. After discovering Riley Business College through a television advertisement, Blane was urged by a friend to contact the college to learn more about it. Blane spoke with a representative, Linda Brown, who explained to her the computer/clerical program, as well as the tuition costs and the financial aid that was available. Blane expressed concern to Brown about her inability to type, but Brown assured Blane of her ability to learn, explaining that the course was 26 weeks long and that 13 weeks were devoted solely to typing instruction. Brown told Blane that the policy of Riley Business College was to require each student to pass a typing proficiency test at 35 words per minute before he or she could receive a diploma. According to Brown, the test is designed to qualify students to compete in the job market.
Based upon this information, Blane entered into an agreement with Riley Business College to enroll in the 26-week computer/clerical course beginning in the fall of 1988. Blane applied for financial aid to *867 cover the $3,695 tuition cost; she was awarded $2,200 under the Pell Student Grant Program and $2,493 in guaranteed student loans. After payment of tuition and fees, Blane was awarded a residual amount of $998.75 to cover other costs related to education.
During the 26-week course, Blane attended every class session, with the exception of a two-week excused absence. Her progress was monitored by a computer, which timed her typing lessons and graded her assignments for errors. According to the electronically graded assignments, in March 1989 Blane had achieved a typing proficiency of between 33 and 36 words per minute. Blane worked on her assignment daily after class to improve her skills; however, she concedes that she did not specifically request additional instruction from her instructors. At the completion of the course, Blane passed the final typing proficiency examination with a score of 46 words per minute with 9 errors. Blane graduated from the course in May 1989.
Upon graduation, Blane was unable to find employment in the computer/clerical field. She was told by one employment agency that it was difficult to place Riley Business College graduates in employment. After applying for approximately 15 clerical positions to no avail, Blane sued Riley Business College, alleging breach of contact, fraud, and educational malpractice. After the trial court entered a summary judgment in favor of Riley Business College, Blane appealed to this Court.
Initially, we point out that a summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. Once the moving party has made a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to provide "substantial evidence" in support of his position. Ala.Code 1975, § 12-21-12; Rule 56, A.R.Civ.P.; Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990); Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). The trial court is required to view all of the evidence offered by the moving party in support of its motion in the light most favorable to the nonmovant. Hanners, supra, and Bass, supra. With this standard in mind, we now address the merits of Blane's contentions.
Blane contends that Riley Business College represented to her that it would provide her with the necessary training to compete in the job market and that before she graduated she would have the minimum skills necessary to do so. Blane claims that these representations were fraudulent and that she relied on them prior to entering into a contract with the college. Riley Business College argues that its representations to Blane were in no way fraudulent, because Brown had explained to Blane prior to entering into the contract that the college's view of minimum skills for clerical positions is the ability to type 35 words per minute.
The essential elements of a fraud claim have been stated many times by this Court. For example, in Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 749 (Ala.1990), we said:
560 So. 2d at 749 (citation omitted). See Ala.Code 1975, § 6-5-101.[2] See, also, Harris v. M & S Toyota, Inc., 575 So. 2d 74 (Ala.1991). We have also stated that evidence that a defendant made mere statements of opinion will not suffice as evidence of fraud inducing the signing of a contract. Gadsden Paper & Supply v. Washburn, 554 So. 2d 983 (Ala.1989). There must be a false assertion of fact that is relied on by the other party. Keller v. Security Federal Sav. & Loan Ass'n, 555 So. 2d 151 (Ala.1989). The standard by *868 which reliance is assessed in fraud cases is "justifiable reliance." Hickox v. Stover, 551 So. 2d 259 (Ala.1989).
The record before us does not contain sufficient evidence to support an action for fraud. At the time Blane and Riley Business College entered into their agreement, the college promised to provide Blane with minimum clerical skills for her to compete in jobs in the clerical field. Prior to Blane's entering into a contact with Riley Business College, the college disclosed that its view of minimum skills was a typing proficiency of 35 words per minute. Blane agreed to pay Riley Business College $3,625 for a 26-week course that would enable her to obtain the minimum skills. At the end of the 26-week course, Blane was able to type at least 35 words per minute, as promised. Blane clearly received what she bargained for with Riley Business College.
The essence of Blane's claim is that she was unable to find employment in the computer/clerical field despite the training she received from Riley Business College. However, we find no cause of action for breach of contract or fraud stemming from such a claim, because there is no evidence that anyone from Riley Business College guaranteed Blane a job or gave her the assurance that she would find a job upon completing the 26-week course. Cf. Joyner v. Albert Merrill School, 97 Misc.2d 568, 411 N.Y.S.2d 988 (N.Y.City Civ.Ct. 1978) (A student was successful in his breach of contract and fraud claims against a college that "promised" him a $10,000-a-year job upon completion of a particular course of study). Thus, the summary judgment was proper as to the breach of contract and fraud claims.
As to Blane's claim of "educational malpractice," we find no case establishing such a cause of action, and we will not recognize such a cause of action based on the facts of this case. See generally W. Valente, 2 Education Law, Public and Private § 19.71-72 (1985). See generally Annot., "Tort LiabilityEducational Malpractice," 1 A.L.R. 4th 1339 (1980). Thus, the summary judgment was also proper as to Blane's educational malpractice claim.
Based on the foregoing, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] The record shows that Blane received her G.E.D. certificate from the State of Alabama on March 9, 1979.
[2] Section 6-5-101 recognizes a "fraud" claim based on innocent misrepresentation; the element of willfulness or recklessness need not be proven on such a claim. | August 2, 1991 |
597c2030-fa1d-4599-8abf-7cd5110beadf | Salser v. KIWI, SA | 591 So. 2d 454 | 1900434 | Alabama | Alabama Supreme Court | 591 So. 2d 454 (1991)
Phyllis SALSER, as Administratrix of the Estate of Kenneth B. Glaze, Deceased
v.
K.I.W.I., S.A., and Dyna Tour Corporation.
1900434.
Supreme Court of Alabama.
October 25, 1991.
Rehearing Denied December 20, 1991.
*455 David Cromwell Johnson and J. Steven Mobley of Johnson & Cory, Birmingham, for appellant.
John W. Clark, Jr. of Clark & Scott, P.C., Birmingham, and Henry Anderson of Anderson, Cox, Collier & Ennis, Wrightsville Beach, N.C., for appellees.
INGRAM, Justice.
Kenneth B. Glaze ("the deceased") suffered a massive head injury in a motorcycle accident and subsequently died as a result of the injury. The deceased was wearing a model K-14 motorcycle helmet at the time of the accident. The plaintiff, Phyllis Salser, brought this action on behalf of her deceased son against K.I.W.I., S.A., and Dyna Tour Corporation pursuant to the Alabama Extended Manufacturer's Liability *456 Doctrine, contending that the defendants either manufactured, supplied, sold, or marketed a motorcycle helmet that was defective and that was not fit for its particular purpose.
The jury returned a verdict for the defendants, and the trial court entered a judgment on that verdict. The trial court denied the plaintiff's motion for a new trial, and she appeals to this Court.
The plaintiff contends that the trial court abused its discretion in denying her pretrial motion for a default judgment against the defendants. She contends that the defendants' disassembly of the helmet involved in the accident seriously hampered her case and that a severe sanction, i.e., default judgment pursuant to Rule 37, A.R.Civ.P., was in order.
The record reveals that approximately one year after the accident, the plaintiff contacted Dr. Joseph Ryan, a helmet expert, concerning the inspection of the motorcycle helmet worn by the deceased at the time of the accident. After Dr. Ryan received the helmet intact at his laboratory, he photographed it and conducted an examination of the helmet. He then conducted research in the field of "helmet release" and submitted a report concerning his opinions and conclusions, that, in part, reads: "Pursuant to your request of September 30, 1987, we have completed our investigation of the above captioned case." The helmet was returned to the plaintiff nine months after Dr. Ryan had received it.
In June 1990, over two years after the plaintiff's expert had examined the helmet, the defendants' motion to compel production of the helmet was granted in order that they might perform nondestructive testing on it. The defendants' expert removed the neck roll and the inner lining from the helmet. Further disassembly was conducted in California at the California Head Protection Research Laboratory. Ultimately, the helmet was returned to the plaintiff's expert in the disassembled condition, whereupon the plaintiff moved for sanctions, i.e., a default judgment.
The trial court has broad and considerable discretion in controlling the discovery process and has the power to manage its affairs in order to ensure the orderly and expeditious disposition of cases. Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala.1989). It is within the trial court's discretion to choose appropriate discovery sanctions, and its decision will not be disturbed on appeal absent an abuse of that discretion. Iverson, supra. Even if such an abuse of discretion is found, there must also be a showing that it resulted in substantial harm to the appellant. Iverson, supra.
We further point out that the sanction of dismissal, as granted in Iverson, supra, is the most severe sanction that a court may apply. A default judgment for a plaintiff is likewise severe. In either case judicial discretion must be carefully exercised.
As set out in Iverson, 553 So. 2d at 89, "[t]he trial court is the more suitable arbiter for determining with accuracy the culpability of the failure to produce or of the spoliation, and, for that reason, we will show great deference toward a trial court's decision with respect to such culpability." In view of the facts here, we cannot say that the trial court abused its discretion in not entering a default judgment for the plaintiff. We agree with the trial court and hold that the defendants' action in disassembling the helmet over two years after the plaintiff's expert had examined it does not mandate a default judgment for the plaintiff.
The plaintiff contends that the trial court erred in denying her motion for a new trial because, she says, certain remarks made by defense counsel in the opening and closing arguments were improper. She contends, however, that defense counsel's remarks were so highly prejudicial and improper that they did not require an objection.
*457 At the outset, we note that counsel may comment on all proper inferences to be drawn from the evidence and may draw conclusions by way of argument based on the evidence. Seaboard Coast Line R.R. v. Moore, 479 So. 2d 1131 (Ala.1985). This Court's standard of review on claims of improper argument requires substantial prejudice before we will reverse. Seaboard Coast Line, supra. Furthermore, there is a presumption of correctness in favor of the trial court's rulings. Seaboard Coast Line, supra.
Here, we note that the plaintiff did object to the following statement made by defense counsel in closing arguments: "Ms. Salser [the plaintiff] testified that she had been told that the boy, her son, had gone to the girlfriend's house, had left and gone to Eckerd's [drug store] and was on his way back to the girlfriend's house." The trial court sustained the objection and issued the following curative instruction: "And, ladies and gentlemen, you are to disregard this because I'm not sure that there was any evidence of this." There was no objection to this curative instruction or any request for a mistrial. Nevertheless, the plaintiff raises the impropriety of this remark on appeal and, as noted above, contends that no objection to this instruction was required because, she says, the remark was highly prejudicial and improper.
It is well settled that "`[a] party cannot sit silently as error is committed, speculating upon the verdict being in his favor, and then put the trial judge in error.'" Lawrence v. Alabama Power Co., 385 So. 2d 986, 987 (Ala.1980) (quoting Rule 46, A.R.Civ.P., Committee Comments). However, there is an exception to this general rule if the remark or argument of counsel is so grossly improper and highly prejudicial to the opposing party that neither a retraction nor rebuke by the trial court would have "destroyed its sinister influence." Lawrence, 385 So. 2d at 987.
We have reviewed the record here and cannot say that defense counsel's remark comes within the above exception. In fact, it appears that the following evidence was admitted at trial without any objection: (1) The deceased had been at his girlfriend's house on the night of the accident; (2) the police told the plaintiff that they assumed that the deceased had left his girlfriend's house to go to Eckerd's Drug Store prior to the accident; and (3) the deceased was returning to his girlfriend's house when the collision occurred.
As noted above, defense counsel may comment on all proper inferences from the evidence and may draw conclusions based on that evidence. Seaboard Coast Line, supra. Furthermore, counsel is given great latitude in making arguments, and the trial court is afforded considerable discretion in its rulings on such matters. Ott v. Fox, 362 So. 2d 836 (Ala.1978). Suffice it to say that we have reviewed the record and cannot find that counsel's remarks had such a prejudicial impact as to serve as a basis for reversal.
The plaintiff also contends that defense counsel made other inappropriate comments concerning whom the plaintiff did or did not call as a witness. However, plaintiff failed to object to any of these statements. Improper arguments by an attorney are not sufficient grounds for a new trial without a timely objection and a ruling by the trial court or a refusal by the trial court to make a ruling, Isbell v. Smith, 558 So. 2d 877 (Ala.1989), unless they come within the exception discussed above.
The plaintiff argues that the trial court erred in not allowing her to call Officer Vic Zannis as an adverse or hostile witness. However, after a review of the record, we cannot find that the plaintiff specifically objected to this at trial. We do note that there was some discussion between the plaintiff and the trial court concerning what line of questions that the plaintiff could ask Zannis if he was called to testify. In fact, the trial judge specifically informed the plaintiff that she could call Zannis as a witness, but that he could not be considered an adverse or hostile witness until the judge heard his testimony and determined that he was an adverse *458 witness. There was no objection to this action of the trial court, nor did the plaintiff call Zannis as a witness.
This Court has held that where the trial record does not reflect a timely objection at trial on an issue, the reviewing court is unable to reach the issue. Stephens v. Central of Georgia R.R., 367 So. 2d 192 (Ala.1978). Even, however, if we were to reach this issue, we would find no error. Clearly, the determination of whether a party is an unwilling or hostile witness is within the sound discretion of the trial judge. Anderton v. State, 390 So. 2d 1083 (Ala.Crim.App.1980).
The plaintiff contends that the trial court abused its discretion by not excluding the testimony of Dr. Robert P. Bauman, the defendants' expert accident reconstructionist. She contends that Dr. Bauman made assumptions that were not based upon the evidence or that were not supported by any competent evidence. However, we find that any such objection was waived by the plaintiff. The trial court determined that these objections came too late and therefore were waived.
The plaintiff's final argument is that the jury verdict was against the great weight and preponderance of the evidence. However, this Court has held on numerous occasions that the trial court's denial of a motion for a new trial based on this ground will not be disturbed on appeal when there is evidence presented, which, if believed, would support the verdict. Stokes v. Long-Lewis Ford, Inc., 549 So. 2d 51 (Ala. 1989).
Here, there was ample evidence to support the jury verdict. In fact, the jury could have concluded that, based on the testimony of a neurosurgeon, Dr. Richard Morawetz, the deceased's accident would not have been a survivable impact with or without the helmet. Therefore, the jury could have concluded that the requisite proximate causation between the alleged negligence and the deceased's death was not established.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | October 25, 1991 |
942ec329-95cf-49c6-99bc-5f3e7464ac8a | McDonald v. US DIE CASTING AND DEV. | 585 So. 2d 853 | 1900026 | Alabama | Alabama Supreme Court | 585 So. 2d 853 (1991)
John W. McDONALD
v.
U.S. DIE CASTING AND DEVELOPMENT COMPANY and David J. Slyman.
1900026.
Supreme Court of Alabama.
August 2, 1991.
*854 Robert H. McKenzie of Holt, McKenzie, Holt & Mussleman, Florence, for appellant.
Steve A. Baccus and Larry B. Moore of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellees.
INGRAM, Justice.
John W. McDonald appeals from a summary judgment entered in favor of the defendants, David J. Slyman and U.S. Die Casting and Development Company (hereinafter the defendants, when possible, will be collectively referred to as "USDC"), in his action based upon an alleged breach of an employment contract and failure to pay relocation expenses. That summary judgment was made final pursuant to Rule 54(b), A.R.Civ.P.
On May 6, 1985, McDonald and Slyman entered into a pre-incorporation agreement wherein McDonald was to be hired as president of a corporation to be formed by Slyman, with its principal office to be located in Sheffield, Alabama. The corporation, USDC, was incorporated as an Ohio corporation on July 12, 1985.
On August 20, 1985, three separate written agreements were executed, as follows: an "agreement" entered into by McDonald, Slyman, and USDC; a "stock purchase agreement" entered into by McDonald, Slyman, and USDC; and an "employment agreement" entered into by USDC and McDonald.[1]
On August 25, 1985, the shareholders of USDC, by unanimous written consent, elected McDonald to serve on the corporation's board of directors for a term beginning on that date and expiring July 14, 1986. In March 1986, Slyman received a letter from McDonald, stating that he would resign from the board of directors of USDC, effective May 1, 1986, unless USDC provided him with $3,000,000 in liability insurance coverage. By letter dated May 13, 1986, Slyman, as chairman of the board of directors of USDC, informed McDonald that his letter of resignation would be respectfully accepted. McDonald never returned to work after July 31, 1986, when he was allegedly instructed by Slyman to "clean out [his] desk and go home." By letter dated August 14, 1986, Slyman, as chairman of the board of directors of USDC, informed McDonald that, because he had materially breached the "employment agreement," he was being terminated for cause as president of the corporation. The letter provided the following reasons for McDonald's termination:
*855 "(d) ... [B]reach of Paragraph 6(b) of the Employment Agreement pursuant to which you agreed not to engage in other business pursuits except as specified in that Paragraph."
The first issue presented is whether USDC breached the terms of the employment agreement by terminating McDonald's employment without just cause prior to the expiration of the terms of the employment agreement.
If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court and, when appropriate, may be decided by a summary judgment. Dill v. Blakeney, 568 So. 2d 774 (Ala.1990). However, if the terms within the contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact to be resolved by a jury. Id. The question whether a contract is ambiguous is a question of law for the courts. Id.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering summary judgment. That rule requires the trial court to determine (1) that there is no genuine issue of material fact and (2) that the moving party is entitled to a judgment as a matter of law. The burdens placed on the moving party by this rule have often been discussed by this Court:
"`The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Woodham v. Nationwide Life Ins. Co., 349 So. 2d 1110 (Ala.1977); Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So. 2d 601 (Ala.1980); Fulton v. Advertiser Co., 388 So. 2d 533 (Ala.1980).'"
Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989) (quoting from Schoen v. Gulledge, 481 So. 2d 1094, 1096-97 (Ala.1985)). In determining whether there was a genuine issue of material fact, this Court must view the evidence in a light most favorable to the nonmoving party, McDonald, and must resolve all reasonable doubts against the moving party, USDC. Id. Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12.
Essentially, USDC devotes its entire argument to supporting its contention that McDonald breached the employment agreement when he unilaterally resigned from the board of directors in May 1986 and that the trial court therefore properly entered a summary judgment against him on his breach of contract action, which was based on facts occurring three months later. In other words, USDC argues that, because of McDonald's earlier breach of the employment agreement, he is precluded from enforcing that agreement.
A review of the August 20, 1985, employment agreement reveals, however, that that agreement did not provide, with any degree of specificity, whether McDonald was obligated to serve on the USDC board of directors. To the contrary, the agreement provided that McDonald would serve as an officer and would also serve as a director of USDC if he was requested to do so. The agreement did provide, however, that McDonald would hold the office of president and chief operating officer of the corporation for a term of five years. It was not until five days after McDonald had entered into the employment agreement that the shareholders elected him to serve on the USDC board of directors. In other words, based on the plain wording of the employment agreement, we must conclude that McDonald's obligation to serve as a director was, at best, incidental to his primary obligation to serve as president and chief operating officer of the corporation. Hence, USDC's contention that McDonald is barred from suing to enforce the employment agreement because of an alleged breach of that agreement three months earlier is without merit.
In light of the foregoing discussion and because everything filed on behalf of *856 USDC in support of its motion for summary judgment revolved around the aforementioned assertions, we are compelled to the conclusion that the trial court erred in entering the summary judgment in USDC's favor, because USDC never made a prima facie showing that there was no genuine issue of material fact for a jury's consideration. See Berner v. Caldwell, supra.
The second issue presented is whether the trial court correctly entered summary judgment in USDC's favor regarding McDonald's claim for relocation expenses.
The question of relocation and moving expenses was first addressed by the parties in the May 6, 1985, "pre-incorporation agreement," wherein USDC agreed to pay McDonald's "relocation and moving expenses to Sheffield, Alabama."
However, on August 20, 1985, the parties entered into an agreement that provided that USDC was responsible only for paying the expense of moving McDonald's "household goods and belongings."
Additionally, the employment agreement contained the following two provisions:
"....
McDonald argues that, because of a mutual mistake, the employment agreement does not reflect the true intentions of the parties and that, therefore, the agreement is due to be reformed. We disagree.
Pursuant to Ala.Code 1975, § 8-1-2, McDonald requested the trial court to reform the employment agreement. That Code section provides as follows:
It is well established that courts should exercise great caution and require a high degree of proof in cases of reformation of written instruments. Clemons v. Mallett, 445 So. 2d 276 (Ala.1984). Moreover, "[a]t the trial level, the party opposing the instrument to be reformed [here McDonald] must produce evidence that is clear, convincing, and satisfactory, which proves that the [instrument] does not truly express the intentions of the parties." Id. at 279 (emphasis added). If the averments are
Gayle v. Hudson, 10 Ala. 116, 128 (1846).
We conclude from a review of the record that, in light of the principles stated above, this is not a case for equitable reformation. Specifically, the record is devoid of any "clear, convincing, and satisfactory" evidence, that the August 20, 1985, employment agreement deviates from the intention and understanding of both parties at the time of its execution. Therefore, the trial court correctly entered the summary judgment in USDC's favor on this issue.
Last, McDonald argues that the trial court erred to reversal in failing to apply the law of the State of Ohio, in accordance with the employment agreement. However, because McDonald has not provided *857 any showing of how the trial court's ruling was in error, we pretermit discussion of this issue.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Only those issues arising out of the May 6, 1985, "pre-incorporation agreement" and the August 20, 1985, "employment agreement" are germane to this appeal. With respect to those issues arising out of the stock purchase agreement, see McDonald v. U.S. Die Casting & Development Co., 541 So. 2d 1064 (Ala.1989). | August 2, 1991 |
5d565acb-7632-46b2-a705-4b0c8e2ca4de | Ws by Cs v. Tw | 585 So. 2d 26 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 26 (1991)
W.S., a minor, who sues by his mother and next friend, C.S.
v.
T.W.
89-1218.
Supreme Court of Alabama.
August 9, 1991.
*27 John H. England, Jr. and Phyliss C. Wimberly of England & Bivens, Tuscaloosa, for appellant.
Robert B. Harwood, Jr. of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellee.
PER CURIAM.
The plaintiff appeals from a judgment based on a jury verdict in favor of the defendant. We affirm.
The issue is whether the trial court properly excluded testimony from the plaintiff's expert witness.
In October 1987, the defendant, T.W., complained to the police about obscene telephone calls that he was receiving. The telephone calls were traced to the plaintiff's home. On December 9, 1987, the police asked the plaintiff, 13-year-old W.S., and his parents, to come to the police station in regard to the phone calls. W.S. later admitted that he had made the telephone calls to T.W.
On December 10, 1987, W.S. was taken to a medical doctor by his parents. During the examination W.S. alleged that T.W., a physical education instructor at W.S.'s school, had sexually abused him and that T.W. had told him to make the telephone calls. This doctor found no physical evidence of sexual abuse. The Department of Human Resources (DHR) investigated the allegations and required W.S. to undergo psychological evaluations. From January 1988 until July 1988, a social worker from DHR interviewed W.S. A licensed psychologist, Dr. Richard L. Craig, interviewed W.S. for approximately one hour. Based on the reports from the DHR social worker and the one interview, Dr. Craig formed the opinion that W.S. had been sexually abused. On March 3, 1989, the plaintiff sued T.W. for $500,000, alleging sexual misconduct.
At trial, W.S. offered the testimony of Dr. Craig. Dr. Craig testified that in determining whether a 13-year-old child had been sexually abused, it was common practice to use open-ended questions so that the victim could describe what happened. He stated that the reliability of the child's answers depended upon the type of approach used by the interviewer. However, Dr. Craig did not testify as to the type of questions that he used in interviewing W.S. Dr. Craig testified that his conclusions about W.S. were based on his one interview with W.S. and the reports and opinions of the DHR social worker. There was no testimony as to the type of questions or approach used by the social worker. W.S.'s counsel then made an offer of proof of Dr. Craig's opinion, which was that W.S. had been sexually abused by an adult. The trial court sustained T.W.'s objection to the admission of Dr. Craig's testimony.
The jury returned a verdict in favor of the defendant, T.W.
Section 12-21-160, Ala.Code 1975, provides:
Even though expert testimony is always admissible, "the question of whether a particular witness will be allowed to testify and the scope of that expert testimony, are largely discretionary with the trial court, and that decision will not be disturbed on appeal without a showing of palpable abuse." Ellingwood v. Stevens, 564 So. 2d 932, 935 (Ala.1990), citing Maslankowsky v. Beam, 288 Ala. 254, 259 So. 2d 804 (1972). The party seeking to introduce the expert testimony must lay the proper predicate.
First, the expert testimony must be beyond the ken of the average juror. Ex parte Hill, 553 So. 2d 1138 (Ala.1989). That is, "where expert testimony will enable the lay juror to appropriately draw *28 conclusions from evidence that it is beyond his or her normal experience, that testimony is admissible." Ex parte Hill, 553 So. 2d at 1139. This Court has determined that "expert testimony should be allowed to explain the emotional effects of sexual abuse upon an adolescent, so that the triers of fact may appropriately draw conclusions from the testimony." Id. Clearly, sexual abuse of a child is a subject where expert testimony would be proper.
Second, the person testifying must be qualified as an expert. The competency and qualifications of a person offered as an expert witness are largely left to the trial court's discretion. In the instant case, Dr. Craig had a doctoral degree in psychology and was director of the West Alabama Mental Health Center. He has also interviewed children who were sexually abused, and his background and experience in this area would qualify him as an expert.
Third, the expert witness must base his or her opinion upon either (1) facts of which the witness has firsthand knowledge or (2) facts that are assumed in a hypothetical question asked of the expert. Ex parte McAllister, 541 So. 2d 1104, 1107 (Ala.1989). Again, the question of whether a particular witness will be allowed to testify as an expert and the scope of an expert's testimony are largely discretionary with the trial court, and its rulings in this regard will not be disturbed on appeal without a showing of palpable abuse.
In the instant case, Dr. Craig had had only one interview with W.S. Dr. Craig testified that certain types of questions should be asked of sexually abused teenagers, because reliability of the child's answers depends upon the approach used by the interviewer. However, no testimony was given as to the type of questions or approach Dr. Craig used with W.S. Dr. Craig relied heavily on the reports and opinions of a social worker involved in the case. No testimony was given as to the approach used by the social worker, and the social worker's reports were not offered into evidence. No properly formulated hypothetical question was asked of Dr. Craig.
We find that the trial court properly excluded the opinion testimony of Dr. Craig, because the plaintiff failed to lay a proper foundation for the expert testimony.
Based on the foregoing reasons, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs in the judgment.
HOUSTON, Justice (concurring in the judgment).
This Court has been sending mixed signals to the Bench and Bar about the standard to be applied in determining whether an expert witness will be allowed to give opinion testimony. For that, as the author of Ex parte Wesley, 575 So. 2d 127 (Ala. 1990), I am somewhat responsible, so I write to clarify what I understand the present rule to be. An expert can give opinion testimony based in part on the opinions of others when those opinions are customarily relied upon by the expert in the practice of his profession and when those opinions are in evidence. Ex parte Wesley, 575 So. 2d 127 (Ala.1990). In Nash v. Cosby, 574 So. 2d 700 (Ala.1990), we broke this new ground, departing from the rule formerly followed in Brackin v. State, 417 So. 2d 602, 606 (Ala.Crim.App.1982), and Chinevere v. Cullman County, 503 So. 2d 841, 843 (Ala.1987). In Nash, the records or opinions on which the expert based his opinion were in evidence. Chief Justice Hornsby noted in Nash that "the recent trend has been toward allowing expert testimony that is based upon medical or hospital or psychological records, even in some cases where those records are not in evidence," 574 So. 2d at 704, as Judge Bowen had noted when he wrote in Brackin: "There is a trend toward the admission of an expert's opinion based partly on medical, psychological, or hospital records not in evidence if the reports are of a type customarily relied upon by the expert in the practice of his profession," 417 So.2d at *29 606. In Brackin, the Court of Criminal Appeals unanimously stated that this trend had not been followed in the courts of this State. In Nash, the majority opinion, in which I concurred, did not make this disclaimer. Therefore, Justices Maddox and Steagall dissented in Nash, assuming that the majority of this Court had departed from stare decisis on this rule as well as the rule previously discussed (opinion based upon opinion). See, Ex parte Wesley, 575 So. 2d at 130-31 (Maddox, J., concurring specially).
The defendant in Wesley had been sentenced to death. Did this fact cause us not to take that next step and allow expert testimony based upon records that are not in evidence? It would be difficult for me to change a rule, standard, or principle of law to execute a person. However, with the ease with which hospital records, business records, and learned treatises can be admitted into evidence in this State, it is perhaps wise to carefully consider whether we should now follow the trend not heretofore followed and no longer abide by "the general and traditional rule." Brackin, 417 So. 2d at 606, citing 31 Am.Jur.2d Expert and Opinion Evidence, § 86 (1967).
It is my understanding that an expert witness may give opinion testimony based upon facts of which he has personal knowledge; based upon opinions of others, if these are opinions of a type customarily relied upon by the expert in the practice of his profession; or based upon facts that are assumed in a hypothetical question. In any event, the facts known to the expert, the opinions of others of a type customarily relied upon by the expert in the practice of his profession, and the hypothesized facts must all be facts in evidence. | August 9, 1991 |
15495291-6663-4f14-8fdc-1da8ab590631 | McLaughlin v. Pannell Kerr Forster | 589 So. 2d 143 | 1900411 | Alabama | Alabama Supreme Court | 589 So. 2d 143 (1991)
Dr. M.V. McLAUGHLIN, et al.
v.
PANNELL KERR FORSTER, et al.
1900411.
Supreme Court of Alabama.
July 26, 1991.
Rehearing Denied October 11, 1991.
James J. Duffy, Jr. of Inge, Twitty & Duffy and Richard Bounds of Cunningham, Bounds, Yance, Crowder & Brown and Dennis P. McKenna of Prince, McKean, McKenna & Broughton, Mobile, for appellants.
Broox G. Holmes and David A. Bagwell of Armbrecht, Jackson, DeMouy, Crow, Holmes & Reeves, Mobile, for appellees.
HOUSTON, Justice.
This action was filed by a group of stockholders of Ono Development Company, Inc., and Ono East, Inc. ("the corporations"), on behalf of themselves and the other stockholders of the corporations, and, derivatively, on behalf of the corporations, against Pannell Kerr Forster, an independent certified public accounting firm and two of its CPA employees, to recover damages for breach of contract and fraud. The trial court entered a summary judgment for the defendants, and the plaintiffs appealed.[1] We affirm.
The plaintiffs, all of whom voluntarily sold their stock back to the corporations while this action was pending, alleged that the defendants had failed to disclose in annual audits of the corporations that certain commissions were being improperly paid to and by three of the corporations' principal officers and directors; that, as a result of the defendants' actions, the corporations had been "deprived of the use of large sums of money over an approximate *144 10-year period"; and that the suit had been filed only after each corporation's board of directors had rejected a request that the corporation file suit to recover damages from the defendants.[2] The defendants, relying primarily on Shelton v. Thompson, 544 So. 2d 845 (Ala.1989), contend that the summary judgment was proper. They argue, among other things, that the plaintiffs lacked standing to sue on their own behalf because the alleged wrongs were to the corporations, and that the plaintiffs lacked standing to sue on behalf of the corporations because they had voluntarily sold their stock. The plaintiffs contend that they had standing to sue on their own behalf because one of the two remaining stockholders in the corporations "assigned" to them all of "his right, title and interest to and all of the monies now due or which may hereafter become due him" in this suit, "together with all of the rights of action accruing or which may hereafter accrue thereunder," and "empowered" the plaintiffs "in their own name and capacity, to do and perform all acts, matters and things touching the premises in like manner to all interests and purposes and, if necessary, to sue for the recovery of such damages as may be awarded" in the suit. The plaintiffs contend that they also had standing to sue on behalf of the corporations because, they argue, they retained equitable interests in the stock of the corporations by virtue of the assignment.
In Shelton v. Thompson, supra, as in the present case, the plaintiffs filed both derivative and personal claims. In Shelton, as here, the individual damages sought to be recovered by the plaintiffs were incident to their status as stockholders. In Shelton, this Court held:
544 So. 2d at 847. Based on the rule enunciated in Shelton, we conclude that the summary judgment on the plaintiffs' individual claims in the present case was also proper.[3] The "assignment" in no way altered the primary nature of the damages sought to be recovered by the plaintiffs damages for the loss of corporate funds.
This Court in Shelton also stated as follows:
544 So. 2d at 848. The plaintiffs point out that this rule is not without exception, as evidenced by the holding in Shelton itself that the merger of the Bank of Lexington and Colonial Bank of Northwest Alabama did not deprive the stockholders of the Bank of Lexington of standing to challenge alleged wrongdoing by that bank's former officers and directors. However, the "merger" exception recognized and applied in Shelton is not applicable in the present case. Here, the plaintiffs made informed decisions to sell their stock while this action was pending. By voluntarily divesting themselves of their interests in the corporations, the plaintiffs lost their standing to prosecute the derivative action. The "assignment" did not vest in the plaintiffs any ownership interests in the stock of the corporations and, contrary to the plaintiffs' assertions, it did not provide them with a basis for maintaining the derivative action.
For the foregoing reasons, we hold that the summary judgment was proper, and, therefore, that it is due to be affirmed. Because of our resolution of this question, we find it unnecessary to consider the defendants' argument that the summary judgment was proper based on the "business judgment rule," the application of which allows for deference to be given, under proper circumstances, to a decision of the board of directors of a corporation not to have the corporation file suit. See Roberts v. Alabama Power Co., 404 So. 2d 629 (Ala.1981). We do note, however, that the defendants' argument in this respect was persuasive on its face.
AFFIRMED.
HORNSBY, C.J., and KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs in the result.
[1] This is the second time that these parties have been before this Court. The trial court had previously entered a summary judgment for the defendants on the ground that the plaintiffs' action was time-barred. We reversed that judgment, holding that the applicability of the statute of limitations defense could not be determined as a matter of law, but, instead, had to be resolved by the trier of fact. See McLaughlin v. Pannell Kerr Forster, 504 So. 2d 264 (Ala.1987).
[2] The record indicates that the officers and directors involved in the questionable transactions paid $100,000 to the corporations as compensation for the corporations' loss of use of their funds. This payment was made pursuant to the terms of a settlement agreement in a previous derivative action against those officers and directors.
[3] We note that it is conceivable that the defendants owed the plaintiffs a duty not to make false representations, inasmuch as the plaintiffs were "members of a group or class [stockholders] that the [defendants had] special reason to expect to be influenced by" the defendants' representations. See Colonial Bank of Alabama v. Ridley & Schweigert, 551 So. 2d 390, 396 (Ala. 1989). However, as previously stated, the plaintiffs did not allege that any wrong had been done to them personally. Instead, they alleged that the defendants' actions with respect to the corporations had resulted in the corporations' losing the use of certain funds. We also note that the plaintiffs did not seek to recover from the defendants under a third-party beneficiary contract theory. | July 26, 1991 |
a5045d15-21bc-4809-b81f-3f4b24309282 | Underwood v. SOUTH CENT. BELL TELEPHONE | 590 So. 2d 170 | 1900507 | Alabama | Alabama Supreme Court | 590 So. 2d 170 (1991)
George W. UNDERWOOD, et al.
v.
SOUTH CENTRAL BELL TELEPHONE COMPANY and L.M. Berry & Company.
1900507.
Supreme Court of Alabama.
August 2, 1991.
Rehearing Denied November 1, 1991.
*171 Joe T. Booth IV, Montgomery, for appellant.
Walter R. Byars of Steiner, Byars, Montgomery, for appellee.
HORNSBY, Chief Justice.
George W. Underwood owned and operated Underwood Roofing and Contracting, Inc., an Alabama corporation. Underwood ran his business from his residence in Montgomery, Alabama. In 1988 Underwood contacted South Central Bell Telephone Company ("South Central Bell") to have his roofing company advertised in South Central Bell's business telephone directory (the "Yellow Pages") for the June 1989 issue.
Underwood spoke with Lynn Griffin, a Yellow Pages representative, and they agreed to meet in December 1988. Griffin was an employee of L.M. Berry & Company ("L.M. Berry"), which sold advertisements and listings in the Yellow Pages.[1]*172 Griffin first met with George Underwood to discuss the requirements for having an advertisement in the Yellow Pages and to make a sketch of the layout of the proposed advertisement for the roofing company. Griffin told Underwood that, in order to have a listing in the Yellow Pages, he would have to have proof of incorporation, a business license, and a business telephone. At that time, Underwood was using his residential telephone for the roofing company.
On February 6, 1989, Griffin met with George Underwood's wife, May Underwood, to complete a Yellow Pages advertising order and to have her approve the layout for the advertisement. May Underwood signed the printing order, which also contained the terms and conditions of the Yellow Pages advertising agreement.[2] As of February 6, 1989, George Underwood was still using his residential telephone for the roofing company business. While Griffin was at the Underwood residence, he telephoned South Central Bell to arrange to have the roofing company's residential telephone converted to a business telephone. In her deposition, May Underwood stated that Griffin had her speak to a South Central Bell employee so that she could give the information required for the conversion. May testified that she told the South Central Bell employee that she would have to talk to George Underwood before agreeing to convert the telephone service from residential to business, and that she would have George call South Central Bell later. George Underwood did not contact South Central Bell about converting his telephone service until April 18, 1989.
The advertising order that May Underwood signed contained a small section labelled "close date" under which was written the date of March 17, 1989. Griffin testified in his deposition that he had explained to both George and May Underwood that the "close date" was the deadline by which everything must be completed in order to have the roofing company's advertisement printed in the Yellow Pages. The Underwoods, however, say that they were never informed that if they did not convert their residential telephone to a business telephone by the March 17, 1989, "close date" their advertisement would not be included in the June 1989 issue of the Yellow Pages.
When the Underwoods received their copy of the June 1989 issue of the Yellow Pages, they discovered that the roofing company's advertisement had been omitted. Griffin testified that the reason the roofing company advertisement was omitted from the Yellow Pages was that the Underwoods had not converted their residential telephone to a business telephone until April 18, 1989, over one month after the March 17, 1989, "close date."
On August 17, 1989, the Underwoods sued South Central Bell and L.M. Berry, alleging legal fraud, breach of contract, negligence and wantonness, and intentional interference with business relations.[3] On December 5, 1989, the trial court ordered that the complaint be amended to allege the fraud with particularity, and ordered that the Underwoods allege promissory fraud, i.e., that at the time South Central Bell and L.M. Berry promised to include the roofing company's advertisement in the June 1989 Yellow Pages, they had a present intent not to perform their promise. The Underwoods amended the roofing company's complaint to allege legal fraud with *173 particularity, but they did not amend the complaint to allege promissory fraud.
On September 6, 1990, South Central Bell and L.M. Berry moved for a summary judgment on all of the counts, supporting their motion by depositions, affidavits, and the pleadings in the case. On October 4, 1990, the trial court entered a summary judgment in favor of South Central Bell and L.M. Berry. In its order the trial court stated:
The Underwoods appeal, arguing that the trial court erred in characterizing the fraud claim as promissory fraud and arguing that they presented substantial evidence to support the contract, negligence, and intentional interference with business relations claims. We affirm in part; reverse in part; and remand.
A summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Kizziah v. Golden Rule Insurance Co., 536 So. 2d 943 (Ala.1988).
Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the nonmoving party must rebut the moving party's prima facie showing by presenting evidence of a genuine issue of material fact. Rule 56, A.R.Civ.P.; Wimberly v. K-Mart, Inc., 522 So. 2d 260, 261 (Ala.1988).
Because this action was filed after June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovant meet his burden by offering "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Fla., 547 So. 2d 870, 871 (Ala.1989).
The Underwoods argue that the trial court erred in holding that the fraud alleged in this case was "promissory fraud." The Underwoods alleged that South Central Bell and L.M. Berry represented that the roofing company's advertisement would be included in the June 1989 issue of the Yellow Pages, but that in fact it was omitted from the publication. The Underwoods argue that their complaint states a fraud claim under Ala.Code 1975, § 6-5-101, which provides that statements of fact "made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud."
The elements of fraud are (1) a false representation (2) of a material existing fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result of the misrepresentation. McAlister v. Deatherage, 523 So. 2d 387 (Ala.1988). If the fraud is based upon a promise to perform some act in the future, the plaintiff must prove two additional elements: (1) the defendant's intention, at the time of the alleged misrepresentation, not to do the act promised, and (2) an intent to deceive. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928, 930 (Ala. 1985).
The Underwoods say that the trial court erred in holding that they must meet the *174 burden of proof imposed in a promissory fraud action. In P & S Business, we held that a mere promise to print an advertisement in a future issue of the Yellow Pages was a promise to perform an act in the future and that, therefore, a plaintiff alleging fraud because of an omission must prove that South Central Bell had an intent to deceive at the time the alleged misrepresentation was made.
In P & S Business the plaintiffs alleged that South Central Bell had represented that an additional listing, which P & S Business had requested, would be added to its Yellow Pages advertisement for the coming year. The additional listing, however, was omitted because P & S Business could not obtain permission to use an IBM trademark. South Central Bell had written P & S Business, informing it that unless it obtained permission to use the IBM trademark, South Central Bell would have to omit that portion of P & S Business's advertisement. This Court affirmed the summary judgment in favor of South Central Bell because the plaintiffs had merely alleged that South Central Bell had failed to print the listing in a future copy of the Yellow Pages.
However, in Morgan v. South Central Bell Telephone Co., 466 So. 2d 107 (Ala. 1985), this Court sustained a jury verdict based on legal fraud for an omission of the plaintiff's advertisement from the Yellow Pages; the verdict was upheld under Ala. Code 1975, § 6-5-101, which addresses "legal fraud" and not promissory fraud. In Morgan the plaintiffs alleged that South Central Bell had failed to inform them that a written contract was needed in order for a listing to be included in the Yellow Pages, when in fact one was required, and that they were assured that they needed to take no further action in order to be properly listed. However, the plaintiffs' advertisement was omitted from the Yellow Pages for three years because they had not completed a contract for the Yellow Pages advertisement.
In this case, the record shows that the Underwoods presented substantial evidence of legal fraud. See, e.g., Morgan, supra, at 113. George and May Underwood both alleged that they were not told about the March 17, 1989 deadline or that their application and the telephone conversion had to be completed by that date. In addition, George Underwood testified in his deposition that in March 1989, he telephoned South Central Bell and spoke with one of its employees. He stated that in that conversation he asked the South Central Bell employee whether his application was complete and whether the roofing company's advertisement would appear in the June 1989 issue of the Yellow Pages. George Underwood said that the employee assured him that his application was complete and that the roofing company's advertisement would appear in the Yellow Pages.
Viewing the facts in a light most favorable to the Underwoods, as we must do, we hold that, in this case, Morgan is controlling and that the Underwoods' evidence constitutes substantial evidence to support an action alleging legal fraud. Therefore, the trial court's judgment that the plaintiffs were required to prove promissory fraud due to be reversed.
We also note that in this case, as in Morgan, the plaintiffs have failed to allege facts that would support their claim for punitive damages. In actions alleging legal fraud, a false representation, even if made by mistake or innocently, is sufficient to prove a legal fraud and upon such proof, § 6-5-101 entitles the plaintiff to compensatory damages. Punitive damages, however, may not be recovered in such an action unless the fraud is gross, malicious, and oppressive, and is made with knowledge of its falseness, or is so recklessly made as to amount to the same thing, and is made with the purpose of injuring the plaintiff. Morgan, supra, at 113-14; Gulf Shores, LTD. v. Powrzanos, 442 So. 2d 71 (Ala.1983). In this case, George Underwood stated in his deposition that he believed that at the time Griffin took the order for the advertisement he intended that it be included in the Yellow Pages. Thus, the Underwoods presented no evidence that would support their claim for punitive damages on the fraud claim.
The Underwoods argue that the trial court erred in entering the summary judgment as to the breach of contract claim. The trial court held that there had been no breach of contract because Underwood had not performed a condition precedent to the contract, i.e., that he had not converted his residential telephone to a business telephone within the time required by the contract.
Both George and May Underwood testified that they knew that the roofing company's telephone had to be converted from residential to business. However, they say that they were not told that the conversion had to be completed by March 17, 1989, in order for the advertisement to appear in the Yellow Pages. The advertising order that May Underwood signed contains a small section labeled "close date" and the date March 17, 1989, was written within the space provided. Nowhere on the advertising order does it state what the "close date" is or that if all of the conditions for the advertisement are not met by the "close date," then the requested advertisement will not be printed in the Yellow Pages.
Whether a contract is ambiguous is a question of law for the trial court to determine. Haddox v. First Alabama Bank of Montgomery, 449 So. 2d 1226 (Ala. 1984). It is the duty of the court to analyze and determine the meaning of a contract when its terms are clear and certain, but when the terms of the contract are doubtful of meaning or the language is ambiguous, precontract negotiations and the conduct of the parties may be looked to by the jury as an aid in interpreting the contract. C.F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So. 2d 657 (1975).
In this case, the parties dispute the meaning of the term "close date." There is nothing in the advertising order that defines or states the significance of the term "close date." The Underwoods allege that they were never told that if they did not convert their telephone by the "close date," then their advertisement would not appear in the June 1989 issue of the Yellow Pages. Griffin, however, testified that he made it clear to both George and May Underwood that they had to convert their telephone by the "close date" because that date was the deadline for their advertisement to be included in the June 1989 issue of the Yellow Pages.
Thus, we find that the terms of the contract regarding the meaning of "close date" are not clear and certain and that there is a genuine issue of material fact regarding the term's meaning. Accordingly, we reverse the summary judgment insofar as it held in favor of South Central Bell and L.M. Berry on the breach of contract claim.
Although it is not necessary for our determination of this case, we note, in the interest of judicial economy, that the advertising order contained a clause entitled "Limitation of Liability." Under the terms of that clause, South Central Bell attempted to limit its liability in cases of error or omission to the amount of the advertising charges. In Morgan v. South Central Bell Telephone Co., 466 So. 2d 107, 116-18, we held that such a clause in a Yellow Pages contract was unenforceable as contrary to public policy. Likewise, the limitation of liability provision in this contract is also unenforceable.
The Underwoods alleged that South Central Bell and L.M. Berry were negligent in the preparation, publication, and distribution of the Yellow Pages by omitting the roofing company's advertisement. The trial court's summary judgment held for the defendants on the grounds that the defendants had breached no duty owed the Underwoods.
In Morgan, supra, we held that in some cases South Central Bell's omission of an advertisement in the Yellow Pages might amount to misfeasance, instead of nonfeasance, and, therefore, support an action in tort based on negligence. In Morgan we explained when a legal duty, sufficient to *176 support an action in negligence, would arise:
466 So. 2d at 114 (citations omitted).
This Court has frequently observed that summary judgment is seldom appropriate in negligence cases. Wimberly v. K-Mart, Inc., 522 So. 2d 260 (Ala.1988); Searight v. Cummings Trucking Co., 439 So. 2d 81 (Ala.1983); Allen v. Mobile Infirmary, 413 So. 2d 1051 (Ala.1982). "A party is not required to prove his entire case to defeat a motion for summary judgment. He is only required to demonstrate that a factual dispute exists that requires resolution by the jury." Wimberly, supra, at 261. Viewing the evidence in a light most favorable to the Underwoods, as we must, Kizziah, supra, we hold that the Underwoods presented substantial evidence that South Central Bell and L.M. Berry had a duty to print the roofing company's advertisement in the Yellow Pages and that they breached that duty.
In its brief, South Central Bell recognizes that as a part of its service to the public, it is responsible for furnishing a telephone directory to its subscribers. The record shows that the roofing company was a new business, and the Underwoods said that they were relying on the Yellow Pages as a main source of advertising. Indeed, South Central Bell promotes the Yellow Pages as a unique form of "directional medium" advertising. South Central Bell indicates that "directional medium" advertising serves as an informational guide to consumers in need of a service that is unlike creative advertising, which induces a perceived need in the mind of the user for a particular product or service.
George and May Underwood testified that Griffin failed to explain to them that they were required to convert their telephone service by the "close date." George Underwood testified that he telephoned South Central Bell before the June 1989 Yellow Pages directory was published and was assured that everything was in order and that the roofing company's advertisement would be published. Mr. Underwood also said that he telephoned South Central Bell about having his telephone service converted and that he was assured that South Central Bell would take care of the matter. Nonetheless, the roofing company's advertisement was omitted from the June 1989 issue of the Yellow Pages.
Viewing these facts in a light most favorable to the Underwoods, Kizziah, supra, we hold that there is a genuine issue of material fact as to whether the actions of South Central Bell and L.M. Berry were sufficient to create a duty, the breach of which would support a finding of tort liability in negligence. Accordingly, the summary judgment is reversed insofar as it held in favor of South Central Bell and L.M. Berry on the negligence claim.
The Underwoods argue that they presented substantial evidence to support their claim against South Central Bell and *177 L.M. Berry based on an alleged intentional interference with contractual or business relations. In Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala. 1986), this Court stated the elements of a prima facie case of intentional interference with contractual or business relations:
494 So. 2d at 597 (emphasis added).
Our review of the record in this case shows that the Underwoods failed to rebut the defendants' prima facie showing as to this issue by presenting evidence that South Central Bell or L.M. Berry intentionally omitted the roofing company's advertisement from the June 1989 issue of the Yellow Pages. To the contrary, the Underwoods testified in their depositions that they believed that Griffin had intended for their advertisement to appear in the Yellow Pages. Therefore, we affirm the trial court's judgment insofar as it held for to South Central Bell and L.M. Berry on the claim of intentional interference with business or contractual relations.
This cause is remanded for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] In its brief, South Central Bell states that South Central Bell, BellSouth Advertising & Publishing Corporation ("BAPCO"), and L.M. Berry are corporations owned directly or indirectly by a parent corporation, BellSouth Corporation. South Central Bell says that as part of its service to the public it is responsible for periodically furnishing subscribers a telephone directory, which includes an alphabetical listing of its residential customers (the "White Pages") and a business directory that contains an alphabetical listing of business subscribers as well as advertisements (the "Yellow Pages"). South Central Bell states that it licenses BAPCO to publish and deliver the White Pages and the Yellow Pages. BAPCO contracted with L.M. Berry to sell advertising and listings for the Yellow Pages. Underwood does not dispute these facts.
[2] George Underwood stated in his deposition that May Underwood was not an officer of the roofing company, but that she signed the advertising order as his agent. There is no dispute regarding May Underwood's authority to sign the advertising order on behalf of the roofing company.
[3] The Underwoods sued as individuals and on behalf of Underwood Roofing and Contracting, Inc. The trial court dismissed the Underwoods' individual claims on the grounds that the injury, if any, was done to the corporation. The Underwoods have not argued the dismissal of their individual claims; thus any issue regarding those claims is waived. Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987). Although only the claims of Underwood Roofing and Construction, Inc., remain, for the purposes of this opinion we will refer to George and May Underwood in regard to action taken on behalf of the corporation.
[4] This Court has recently recognized that the "element" of justification is in fact an affirmative defense that must be pleaded and proved by the defendant. Century 21 Academy Realty, Inc. v. Breland, 571 So. 2d 296 (Ala.1990). | August 2, 1991 |
49236448-db14-4730-9050-790dffa02f7f | Cone Builders, Inc. v. Kulesus | 585 So. 2d 1284 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 1284 (1991)
CONE BUILDERS, INC.
v.
Linda J. KULESUS and Gary G. Kulesus.
89-1589.
Supreme Court of Alabama.
August 9, 1991.
*1285 George Huddleston, Spanish Fort, for appellant.
*1286 Norborne C. Stone, Jr. and Samuel N. Crosby of Stone, Granade, Crosby & Blackburn, Bay Minette, for appellees.
ADAMS, Justice.
Cone Builders, Inc., appeals from a judgment entered on a jury verdict assessing damages of $33,268.99 for Gary and Linda Kulesus on their claims of breach of contract and breach of warranty in a building contract case. We affirm.
The facts relevant to this appeal are as follows:
On June 10, 1986, the Kulesuses entered into a contract with Cone Builders. Cone Builders agreed to build a house in Daphne, Alabama, according to plans and specifications drawn up by the Kulesuses, and to supply all the necessary labor and material for the construction of the house, for $76,500.
In February 1987, the area received a large amount of rain. The house was one-third complete, and as a result of the rain, the plasterboard, rafters, and plywood used in the construction of the house were substantially damaged. A large portion of the flooring in the house was also damaged, as were the insulation and the heating and air conditioning systems. Gary Kulesus reported the damage to Edward Earl Cone, Sr., an officer and director of the corporation, who assured him that the house would be "as good [as] or better than it was before."
Cone Builders attempted the necessary repairs and completed the construction of the house. Prior to the closing on the house, the Kulesuses pointed out continuous problems to Edward Earl Cone, Sr., and expressed their dissatisfaction with the progress of the construction.
On March 27, 1987, the closing took place. As provided by the terms of the contract, Gary and Linda Kulesus inspected the completed house, and they then moved in. At the closing, Cone Builders presented the Kulesuses with a written "Uniform Builders Warranty." The warranty was good for a period of one year following the date of occupancy or the closing date, whichever occurred first, and warranted against latent defects. The warranty document also set out the proper procedure for requesting the necessary repairs. The Kulesuses also pointed out additional defects to Cone Builders at the closing and later submitted several "punch lists" to Cone Builders, indicating other defects.
Although Cone Builders sent out subcontractors in response to the submitted "punch lists," the defects were not adequately corrected, according to the Kulesuses. The Kulesuses hired an appraiser to inspect their house and to prepare a report based on his inspection. Concerned about noticeable cracks in the ceiling of the master bedroom, joist problems in the kitchen and dining room that caused sags in both ceilings, and foundation cracks evident in the carport, the Kulesuses hired several building inspectors and engineers to inspect the house and to determine the cause of their continuing problems. Although the problems were continuously pointed out to Cone Builders, it was unable to substantially correct the defects.
On March 23, 1988, the Kulesuses sued Cone Builders, as well as Edward Earl Cone, Sr., and Edward Earl Cone, Jr., the two officers and directors of the corporation, individually. Count one of the complaint alleged breach of contract. Count two alleged breach of the Uniform Builders Warranty, fraud, and failure to construct the house in a workmanlike manner.
Edward Earl Cone, Sr., and Edward Earl Cone, Jr., as individual defendants, were granted directed verdicts on the ground that no contract existed between them and the Kulesuses. At the close of the presentation of evidence on both sides, the court directed a verdict for Cone Builders on the Kulesuses' claim alleging breach of the Uniform Builders Warranty. The court denied Cone Builders' motion for a directed verdict as to the other claims. On March 28, 1990, the case went to the jury on the issues of breach of contract and breach of implied warranty. The jury returned a verdict in favor of the Kulesuses, assessing damages in the amount of $33,268.99.
*1287 Cone Builders timely filed a motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial, both of which were denied. On July 10, 1990, Cone Builders filed its notice of appeal.
In the "statement of issues" section of its brief, Cone Builders raises the following issues: (1) whether the trial court abused its discretion by permitting Gary and Linda Kulesus to present evidence in the form of photographs and testimony that, Cone Builders argues, had been concealed from it during the discovery; (2) whether the trial court erroneously denied its motion for a directed verdict; (3) whether the trial court erroneously refused to give Cone Builders' requested jury instructions; and (4) whether the trial court erroneously omitted to swear in the jury.
In addition to these issues, Cone Builders raises many other issues concerning discovery. In the interest of clarity, they have been consolidated for discussion here.
Cone Builders contends, with respect to discovery, that the trial court abused its discretion when it permitted the Kulesuses to present evidence that, it says, had been concealed from it during the discovery process. And, further, it contends that the Kulesuses, in every aspect, "stonewalled" and hindered its attempts to pursue legitimate discovery. Specifically, Cone Builders points out that during the discovery process, which occurred over a two-year period, it attempted to obtain answers to the Kulesuses' claims, and received what it calls untimely, conclusory, and fairly insubstantial answers. Cone Builders maintains that by their actions, the Kulesuses deliberately concealed information that would later be pertinent at trial.
Cone Builders, on October 12, 1988, filed a timely "Request for Entry Upon Land," but, because of the Kulesuses' failure to allow the on-site inspection, it was forced to move for an order compelling discovery. This order was granted on March 28, 1989, over the Kulesuses' objection. While Cone Builders insists that the refusal of the Kulesuses to allow the on-site inspection greatly harmed its discovery pursuit, there is ample evidence that the trial court took note of this attempted interference by the Kulesuses, properly compelled them to allow an on-site inspection of the house, and determined that no harm was done to Cone Builders by this delay in inspection. In discovery matters such as this, the trial judge is in a better position to assess harm than this Court is.
Cone Builders further argues that the Kulesuses failed to timely answer interrogatories and that they provided answers that were largely unresponsive. Cone Builders also asserts that the deposition of Gary Kulesus was unsatisfactory because it incorporated the "punch lists" previously received by Cone Builders and failed to specifically list any defects in the construction.
In Deaton, Inc. v. Burroughs, 456 So. 2d 771 (Ala.1984), a party had filed interrogatories requesting that the defendants provide the names of expert witnesses to be called at trial. Seven months later, a response was submitted that indicated that one nonmoving party did not know whether an expert would be called; no supplement to this response was filed. The other nonmoving party did not provide an answer to the interrogatories, despite an order compelling a response. The trial court responded to the party's failure to comply with the order by providing for a partial exclusion of the expert's testimony. This Court stated that the choice of sanctions to be imposed was largely within the discretion of the trial court and that this choice would not be disturbed on appeal absent a gross abuse of discretion. Id. at 778; Tucker v. Tucker, 416 So. 2d 1053 (Ala.Civ. App.1982).
Rule 37(b)(2)(B) A.R.Civ.P., reads, in pertinent part:
"....
In the present case, after the Kulesuses' failure to provide answers to the interrogatories, the trial court entered an order compelling compliance by the Kulesuses. There is no indication that the trial judge's decision to compel compliance as a form of sanctions constituted an abuse of discretion.
Cone Builders further argues that the trial court erred by allowing evidence to be admitted at trial that was specifically prohibited by the motion in limine granted to Cone Builders. The purpose of the motion was to limit the scope of the evidentiary matters to be presented by the Kulesuses at trial. More specifically, the motion prohibited the introduction of evidence of "(a) any expert testimony or opinion regarding perceived defects in construction; (b) any defects perceived by the plaintiffs which were not specifically discussed in the deposition of Gary Kulesus; and (c) any testimony from any non-expert or lay witness regarding factual matters pertinent to the action." Cone Builders argues that despite the trial court's issuance of the motion in limine, which provided for the exclusion of certain evidence, it permitted the introduction of evidence that was the subject matter of the motion, specifically testimony and photographs regarding alleged defects that, it contends, had been concealed from it during discovery. We do not agree with Cone Builders that this indicated an abuse of discretion by the trial court.
No rule prevents the trial judge from amending a pretrial order. Whether to amend such an order is within the sound discretion of the trial court. Hughes v. Arlando's Style Shop, 399 So. 2d 830 (Ala. 1981); Currie v. Great Central Insurance Co., 374 So. 2d 1330 (Ala.1979). We will not interfere with the exercise of that discretion unless there has been a clear abuse of discretion. Arlando's Style Shop, at 831. Cone Builders' allegation of abuse of discretion is unfounded in that it failed to demonstrate any prejudice resulting from the introduction of the evidence.
Cone Builders next argues that the allegations pertaining to defects in the foundation of the house, as well as the allegation of insufficient thickness of the foundation, were not disclosed during the discovery process, but were introduced at trial and constituted a surprise. The trial judge, however, over Cone Builders' objection, ruled that the foundation problems were a part of the original complaint. Additionally, Cone Builders argues that it was not notified during discovery that the flooring or plywood in the house was defective. The record indicates that Cone Builders received notification of the allegedly defective flooring and plywood prior to the trial, through an affidavit filed in response to Cone Builders' motion for summary judgment.
Cone Builders also contends that the trial court admitted photographs that were not related to the issues framed by the pleadings or revealed in the discovery process. However, the record indicates that no request for photographs was made by the defendants during the discovery period, and that the photographs did relate to the issues in the case. In Monaghan v. Berry, 495 So. 2d 1127, 1129 (Ala.Civ.App. 1986), the Court of Civil Appeals held:
Cone Builders also argues that the trial court erred in allowing the deposition testimony of Edmund deCelle, a deceased building appraiser, to be admitted at trial. Cone Builders contends that at the time of his deposition, Mr. Kulesus admitted no opinion as to the value of the residence, as *1289 constructed. It further asserts that the Kulesuses' answer mentioned Henry Seawell, an engineer who inspected the Kulesuses' house, and Charles J. Woodson, a licensed general building contractor, but failed to mention an appraisal by Edmund deCelle. A review of the record indicates, however, that Cone Builders did receive notice of the appraisal of the house by Edmund deCelle in a report prepared by Mr. deCelle.
The final argument Cone Builders raises with respect to discovery is that the trial court allowed the introduction of expert testimony that was not disclosed during the discovery process. The trial judge pointed out that the pre-trial affidavit of Gary Kulesus, as well as the complaint, fully informed Cone Builders of the defects that the expert testified about. The record also indicates that Woodson, as well as the other experts, was deposed by Cone Builders prior to the trial. While the deposition of Woodson was not available to this Court, the record does indicate that Cone Builders failed to fully question Mr. Woodson during the deposition as to the problems that he testified to at trial. Additionally, counsel for the Kulesuses mailed Cone Builders' counsel a letter informing him of a change in Woodson's testimony as to the alleged defects.
While Cone Builders insists that this letter was misleading, it admits that it had time to re-depose Woodson and to ascertain the full nature of the changes in his testimony. This admission indicates a failure by Cone Builders to adequately use the discovery process, not an error by the trial judge, nor an improper action on the part of the Kulesuses. Cone Builders asks this Court to reverse the decision of the trial court, alleging reversible error on the part of the trial court in allowing an "unequivocal trial by ambush" to occur. We disagree with its allegations. Undeniably, the purpose of the discovery process is to avoid unfair surprise at the trial; however, a party cannot ask for permission to undo damage that has been caused by its failure to adequately use the discovery process.
Although Cone Builders has cited a number of alleged errors in the trial court's response to the discovery process, the record does not support any allegations of abuse by the trial judge. It is clear from the record that Cone Builders was able to obtain the necessary information during the discovery process, and that it was not prejudiced at trial by any admitted evidence.
The next issue raised by Cone Builders is whether the trial court erred when it failed to grant a directed verdict. Cone Builders argues that the evidence indicated undisputedly that the Kulesuses failed to put Cone Builders on notice of the breach and that they frustrated Cone Builders' performance of the contract. This contention is not supported by the evidence. A review of the record confirms that Cone Builders was adequately informed of its lack of performance of the contract and that it was given many opportunities to correct these failures and that it did not fully do so.
Cone Builders contends that there is no dispute as to whether the Kulesuses fully notified it of the alleged defects in the construction. While Cone Builders maintains that it was not notified, the testimony of Gary Kulesus indicates otherwise:
Additionally, the evidence fails to support Cone Builders' contention that there is no dispute as to whether the Kulesuses frustrated the performance of Cone Builders. Evidence presented at trial tends to show that the Kulesuses provided Cone Builders with a new "punch list" after each attempted correction. Moreover, there is *1290 no rule of law that requires a party to allow the performing party an unlimited opportunity to correct defects.
The movant seeking a directed verdict must demonstrate that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Brazzel v. Pine Plaza Joint Venture, 491 So. 2d 910 (Ala.1986). See also Rule 50(e), A.R.Civ.P. Cone Builders has failed to prove that it was wrongfully denied a directed verdict, because we conclude that there were genuine issues of material fact in dispute.
Further review of the record indicates that Cone Builders' initial motion for a directed verdict did not properly preserve the issue of notice or of frustration of performance of the building contract. The evidence reveals that Cone Builders' motion was made in the following way:
There is no indication of any specific request for a motion for a directed verdict as to the issue of notice or frustration of performance of the building contract.
While Cone Builders correctly moved for a directed verdict at the close of all the evidence, it failed to specifically request a directed verdict as to the notice question and the question of frustration of performance of the building contract, although it did specifically request a directed verdict on the builder's warranty claim, and the directed verdict was granted. Cone Builders' request at the close of the presentation of its evidence was as follows:
"... [And] count four, the breach of implied warranty of habitability....
(Emphasis added.) Similarly, at the close of the presentation of all evidence, Cone Builders made the following request.
Neither motion specifically addressed the issue of notice of breach or frustration of performance of the building contract. This Court held in Housing Authority of the City of Prichard v. Malloy, 341 So. 2d 708 (Ala. 1977):
Cone Builders next argues that the trial court erred in refusing to give its requested instructions to the jury. The requested instructions pertained to damages; notice; substantial performance; and the defendant's standing ready, willing, and able to complete the contract. The oral charge given to the jury indicates that the judge substantially covered Cone Builders' requested instructions pertaining to substantial performance; damages; and the defendant's standing ready, willing, and able to complete the contract. The refusal of the requested charge is not error where the court's oral charge substantially covered the same principles as the requested charge. State Farm Mutual Automobile Ins. Co. v. Humphres, 293 Ala. 413, 304 So. 2d 573 (1974). See, also, Rountree v. Jefferson Mortgage Co., 284 Ala. 454, 225 So. 2d 859 (1969).
The last argument made by Cone Builders is that the trial judge failed to *1291 swear in the jury. The record does not reflect whether the judge swore in the jury; however, this issue was not raised at trial by Cone Builders. It is well settled in Alabama that an issue not raised in the trial court cannot be raised for the first time on appeal. McDuffie v. Hooper, 294 Ala. 293, 315 So. 2d 573 (1975). Because the record fails to reflect any objections raised by Cone Builders as to this issue, no further consideration of this issue is warranted.
Based on the foregoing, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | August 9, 1991 |
dcdd227d-a77c-4de4-859e-1d9d247f79b6 | Preferred Risk Mut. Ins. Co. v. Ryan | 589 So. 2d 165 | 1900067 | Alabama | Alabama Supreme Court | 589 So. 2d 165 (1991)
PREFERRED RISK MUTUAL INSURANCE COMPANY
v.
Vivian G. RYAN.
1900067.
Supreme Court of Alabama.
August 9, 1991.
Rehearing Denied October 18, 1991.
*166 W. Michael Atchison and Jeffrey E. Friedman of Starnes & Atchison, Birmingham, for appellant.
Harry M. Renfroe, Jr., Mountain & Mountain, Tuscaloosa, for appellee.
ALMON, Justice.
Preferred Risk Mutual Insurance Company ("Preferred Risk") appeals from a judgment rendered on a jury verdict against it and codefendant Arthur Lee Blackman in an action by Preferred Risk's insured, Vivian J. Ryan, to recover uninsured motorist insurance benefits. The question presented is whether the trial court committed reversible error by admitting evidence of the limits of Ryan's uninsured motorist insurance policy.
Ryan and Blackman had a collision on a dirt road in rural Tuscaloosa County. As a result of the accident, Ryan suffered an injury to her larynx. She filed a complaint against Blackman, alleging both negligence and wantonness. She later withdrew her wantonness claim. Because Blackman was uninsured, Ryan also named her uninsured motorist insurance carrier, Preferred Risk, as a defendant, pursuant to the procedure set out by this Court in Lowe v. Nationwide Insurance Co., 521 So. 2d 1309 (Ala. 1988). Preferred Risk opted to participate in the trial and filed a cross-claim against Blackman.
During the trial, the judge allowed Ryan to admit, over Preferred Risk's objection, evidence of the policy limits of her uninsured motorist coverage. Under that policy, Ryan's recovery was limited to $20,000. At the close of the evidence, Preferred Risk moved for a mistrial. It argued, inter alia, that the trial court's admission of the policy limits evidence was reversible error. That motion was denied. The jury then returned a verdict for Ryan and assessed damages at $20,000, and prejudgment interest in the amount of $1,900. The jury also returned a verdict for the same amount in Preferred Risk's favor on its cross-claim against Blackman. Preferred Risk's subsequent motion for j.n.o.v. or a new trial was denied by operation of law, pursuant to Rule 59.1, Ala.R.Civ.P., and it appeals.[1]
Preferred Risk contends that the trial court's judgment is due to be reversed because: (1) evidence of insurance policy limits is, it argues, inadmissible as a matter of law; (2) there was no legal justification, it says, for admitting such evidence in this case; and (3) the admission of that evidence, it says, unduly influenced the jury's decision on the amount of damages to award. Therefore, it contends that it is entitled to a new trial.
Generally, rulings on the admissibility of evidence are within the discretion of the trial judge and will not be disturbed absent an abuse of that discretion. Ryan v. Acuff, 435 So. 2d 1244 (Ala.1983). Notwithstanding that broad discretion, this Court has held that evidence of insurance coverage, or of the limits of a policy of insurance, is usually not relevant in tort cases, and, thus, that admission of such evidence is error. See Harvey v. Mitchell, 522 So. 2d 771 (Ala.1988); Otwell v. Bryant, 497 So. 2d 111 (Ala.1986); and Keown v. Monks, 491 So. 2d 914 (Ala.1986). The rationale underlying the general prohibition against such evidence is based on the possibility that injecting evidence of insurance coverage would unduly influence the jury's determination regarding liability and its assessment of damages. Robins Engineering, Inc. v. Cockrell, 354 So. 2d 1 (Ala. 1977).
The trial judge's decision to admit the policy limits evidence in this case appears to have been based on the unusual *167 nature of actions by insureds against their insurers for uninsured motorist benefits. Such actions, though based on contractual agreements, have their underpinnings in tort law. In order to recover, the insured must show (1) that he is covered under an uninsured motorist policy; (2) that an uninsured motorist was at fault; and (3) that he suffered damage. Harvey v. Mitchell, supra. The uncertainty caused by the dual nature of this type of action is evidenced by the fact that the trial judge initially held that the policy limits evidence was not admissible, then subsequently allowed it. The court stated:
Because of our disposition of this appeal, it is not necessary for this Court to determine whether the conclusions contained in the trial judge's statement are correct statements of the law. However, we do point out that this Court has refrained from classifying actions for uninsured motorist benefits either as actions sounding in contract or as actions sounding in tort. Instead, we have recognized that such actions are unique and contain elements from both categories of actions. See, e.g., State Farm Mut. Auto. Ins. Co. v. Cahoon, 287 Ala. 462, 468, 252 So. 2d 619, 624 (1971).[2]
It is the policy of this State to uphold verdicts returned by juries. Warner v. Elliot, 573 So. 2d 275 (Ala.1990). Therefore, this Court will not reverse a judgment rendered on a jury verdict, even in the face of an erroneous ruling by the trial court, unless the appellant demonstrates that he was substantially prejudiced by the error. Costarides v. Miller, 374 So. 2d 1335 (Ala.1979); Rule 45, Ala. R.App.P. This Court will not presume that an error was prejudicial. Bryson v. State, 264 Ala. 111, 84 So. 2d 785 (1955). Nor have we held that the erroneous injection of evidence regarding insurance is, in every instance, prejudicial error requiring reversal. Thompson-Weinman & Co. v. Robinson, 386 So. 2d 409, 411 (Ala.1980). The burden of establishing that an erroneous ruling was prejudicial is on the appellant. Dinmark v. Farrier, 510 So. 2d 819 (Ala. 1987).
In the instant case, Preferred Risk contends that a prejudicial effect is clearly demonstrated by the fact that the jury's verdict, not counting the award of prejudgment interest, was for $20,000, the amount of Ryan's policy limits. Despite its argument that the policy limits evidence unduly influenced the jury's assessment of damages, Preferred Risk does not argue that Ryan did not sustain, or failed to prove, damage in the amount of $20,000. In response, Ryan points out that $20,000 was the amount of damages requested by her lawyer during his closing argument. Although the parties' closing arguments are not in the record, Preferred Risk concedes this fact in its brief.
In addition, Ryan submitted the affidavit of the jury foreman in opposition to Preferred Risk's post-judgment motion. That affidavit tends to support Ryan's contention that the jury's assessment of damages was based on the amount of damages proved and requested by her lawyer, and contains the following relevant statements:
Because the foreman's affidavit supported the verdict, rather than impeached it, it was properly considered by the court. Warner, supra.
In order to accept Preferred Risk's argument, this Court would be required to infer prejudice merely because the jury's verdict equaled the policy limits. After reviewing the record, we conclude that such an inference would not be valid. Because Preferred Risk was a party to this action, present before the jury throughout the trial, the possibility that the jurors were unduly influenced by the admission of the policy limits evidence is not as great as it would have been in an action against a private individual who carried insurance coverage. In addition, the fact that the jury's verdict was for $20,000 in damages appears to be explained by the fact that Ryan's lawyer requested that amount in closing argument. That conclusion is borne out by the jury foreman's affidavit. Furthermore, Preferred Risk does not argue that Ryan's evidence fails to support an award of $20,000 in damages. Therefore, Preferred Risk's argument that the trial court's error requires a reversal is without merit.
This opinion should not be read as a retreat from the general prohibition against the admission of policy limits evidence. The rationale for that prohibition was ably expressed by Maryland's highest court in Allstate Ins. Co. v. Miller, 315 Md. 182, 191-92, 553 A.2d 1268, 1272-73 (1989):
(Citations omitted.) The rationale expressed by this Court in Harvey v. Mitchell, supra, is not inconsistent with the principles set out by the Maryland court in Miller. Harvey was a wrongful death action and on that basis is factually distinguishable from both Miller and the instant case.
By affirming the judgment of the trial court, we work no change on existing law. Instead, we hold that even though the ruling admitting the evidence of the policy limits was error, Preferred Risk has not met its burden of showing that it was prejudiced by that ruling. Dinmark, supra; Rule 45, Ala.R.App.P. Therefore, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Blackman has not appealed from the judgment against him.
[2] In Cline v. Aetna Ins. Co., 317 F. Supp. 1229, 1231 (S.D.Ala.1970), the district court held that under Alabama law, such actions are ex contractu, and, therefore, are governed by the six-year statute of limitations. Decisions of federal courts other than the United States Supreme Court, though persuasive, are not binding authority on this Court. Ballew v. State, 292 Ala. 460, 296 So. 2d 206 (1974), cert. denied, Ballew v. Alabama, 419 U.S. 1130, 95 S. Ct. 816, 42 L. Ed. 2d 830 (1975). | August 9, 1991 |
d8765314-b568-4d99-974f-ba2f99175a82 | POWER EQUIPMENT v. First Alabama Bank | 585 So. 2d 1291 | 1900126 | Alabama | Alabama Supreme Court | 585 So. 2d 1291 (1991)
POWER EQUIPMENT COMPANY, INC.
v.
FIRST ALABAMA BANK, et al.
1900126.
Supreme Court of Alabama.
August 9, 1991.
*1293 James Harvey Tipler of Tipler and Tipler, Andalusia, for appellant.
Christopher Lyle McIlwain of Hubbard, Waldrop, Reynolds, Davis & McIlwain, Tuscaloosa, for appellees.
INGRAM, Justice.
The Commercial Bank sued Power Equipment Company, Inc., claiming that Power Equipment had defaulted on two promissory notes. The first note, which The Commercial Bank claimed had an outstanding balance of $20,250 when the suit was filed, evidenced a loan made to Power Equipment in June 1985 to enable it to purchase a forklift to be used in its business operations. The second note, executed in August 1985, represented a $900,000 line of credit that was to be used by Power Equipment to purchase an inventory of heavy equipment.
In addition to filing an answer to The Commercial Bank's complaint, Power Equipment filed a counterclaim against The Commercial Bank and filed a third-party complaint against First Alabama Bank (The Commercial Bank's successor following a merger) and First Alabama Bancshares, the sole shareholder of the successor bank. (We will refer to The Commercial Bank, First Alabama Bank, and First Alabama Bancshares collectively as "the Bank.") In its counterclaim and third-party complaint, Power Equipment alleged that the Bank was liable to it on the following theories: breach of contract; breach of duty of good faith; breach of fiduciary duty; fraud; conversion; wrongful disclosure of financial information; and racketeering.
The Bank filed a motion for summary judgment on its claims against Power Equipment and on Power Equipment's counterclaim and third-party complaint against the Bank. The trial court entered a summary judgment for the Bank in the amount of $1,117,886.84. The trial court also dismissed Power Equipment's counterclaim and third-party complaint with prejudice. Power Equipment appealed.
The record in this case reveals the following pertinent details: In 1981, Power Equipment, a business involved in the retail sale of heavy equipment used in the timber industry, began a banking relationship with the Bank. The Bank extended a line of credit to Power Equipment, which was secured by Power Equipment's inventory. The line of credit enabled Power Equipment to purchase pieces of heavy equipment for eventual sale to the public. When a piece of equipment was purchased, the amount borrowed was put on an individual note at the Bank and was added to the total amount owed under the line of credit. As Power Equipment sold each individual piece of equipment, the proceeds from the sale were paid to the Bank, the individual note corresponding to that piece of equipment was marked as having been "satisfied," and the balance on the line of credit was reduced accordingly.
In the summer of 1985, there was a change in the ownership and management of the Bank. Thereafter, Robert Ferguson, Power Equipment's president, met with Lynn Mosley, a loan officer in the new management at the Bank, to discuss the reorganization of Power Equipment's debts. The new management of the Bank preferred to carry one master "floor plan" financing agreement rather than individual notes on each piece of Power Equipment's inventory. The talks culminated in August 1985, with Power Equipment's execution of a promissory note in the amount of $900,000. The note gave the Bank a security interest in all of Power Equipment's then-existing and after-acquired inventory, machinery, and equipment. In addition to consolidating Power Equipment's individual notes, the $900,000 line of credit allowed Power Equipment to purchase new inventory. *1294 By January 1986, Power Equipment's debt on the line of credit was approximately $846,000.
In January 1986, Ferguson met with officials of the Bank regarding Power Equipment's debt. At that time, the Bank requested that Power Equipment begin making payments of approximately $48,000 per month toward repayment of the debt owed on the line of credit. According to this plan, Power Equipment's debts would be fully paid by July 1987. Power Equipment paid the $48,000 monthly payments for two or three months and then became unable to continue making those payments. The Bank then sued Power Equipment, contending that Power Equipment had defaulted both on the note securing the $900,000 line of credit and on the note securing a $20,000 loan that the Bank had made to Power Equipment for the purpose of purchasing the forklift that Power Equipment used in its business operations.
The issues raised in this appeal are whether Power Equipment's counterclaim and third-party complaint were properly dismissed and whether the summary judgment for the Bank was proper on its original complaint against Power Equipment. After carefully considering Power Equipment's counterclaim and third-party complaint against the Bank and the claims made by the Bank against Power Equipment, we conclude that the trial court correctly entered the summary judgment and dismissal in this case.
Initially, we note that although the trial court characterized its ruling on Power Equipment's counterclaim and third-party complaint as a dismissal, the court considered matters outside the pleadings; therefore, we will consider the ruling on the counterclaim and third-party complaint to be a summary judgment. Rules 12(c) and 56, A.R.Civ.P.; George v. Federal Land Bank of Jackson, 501 So. 2d 432 (Ala. 1986).
Summary judgment is proper only in cases where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Southern Guar. Ins. Co. v. First Alabama Bank, 540 So. 2d 732 (Ala.1989). The burden is upon the moving party to clearly show that there is no material fact in dispute, and all reasonable inferences from the evidence are to be viewed most favorably to the nonmovant. Southern Guar. Ins. Co., supra.
Furthermore, because this case was pending on June 11, 1987, see § 12-21-12, Ala.Code 1975, the "scintilla rule" applies, requiring that summary judgment not be granted if there exists a scintilla of evidence to support the position of the nonmovant. Browning v. Birmingham News, 348 So. 2d 455 (Ala.1977). The scintilla rule requires only that the record furnish a mere gleam, glimmer, spark, i.e., the least bit or the smallest trace of evidence in support of the nonmovant to defeat a summary judgment motion. Watkins v. St. Paul Fire & Marine Ins. Co., 376 So. 2d 660 (Ala.1979).
The first issue raised is whether the trial court erred in dismissing Power Equipment's counterclaim and third-party complaint against the Bank. The first argument by Power Equipment is that the Bank breached the terms of the loan contract that it had entered into with Power Equipment. Specifically, Power Equipment argues that the Bank promised to extend up to $900,000 to Power Equipment for use in purchasing inventory for as long as Power Equipment properly performed under the agreement and that the Bank promised to renew the note on a yearly basis when the note matured on August 28, 1986. Power Equipment contends that the Bank breached this alleged promise in January 1986 by refusing to continue the line of credit as promised and by imposing the requirement that Power Equipment reduce the balance on its line of credit by $48,000 per month. In opposition to the Bank's summary judgment motion, Power Equipment submitted the affidavit and deposition of its president, Robert Ferguson, which it contends provide more than a scintilla of evidence that the Bank breached the loan contract.
*1295 Arguing that the trial court properly entered summary judgment as to the breach of contract claim, the Bank initially contends that the affidavit and deposition statements of Ferguson, to the extent that they refer to conversations with loan officer Lynn Mosley, violate § 12-21-163, Ala. Code 1975, the so-called "Dead Man's Statute," because Mosley was deceased when the summary judgment motion and the supporting affidavit and deposition were filed. The Bank objected to and moved to strike the portions of the affidavit and deposition referring to conversations between Ferguson and Mosley.
Section 12-21-163 provides in pertinent part:
It is well-established that the Dead Man's Statute operates to exclude testimony regarding statements by deceased officers of defendant business entities. See Richter v. Central Bank of Alabama, N.A., 451 So. 2d 239 (Ala.1984). In reiterating this point, Justice Almon recently stated:
"`[T]he statute ... makes such testimony incompetent, though the estate of the deceased person is not interested in the result of the suit, if he acted in a representative or fiduciary relation to the party against whom such testimony is offered.'
Moseley v. Lewis & Brackin, 583 So. 2d 1297, 1299 (Ala.1991).
Power Equipment does not dispute the assertion that Mosley was acting in his capacity as a loan officer with the Bank when he allegedly made the statements referred to by Ferguson. Rather, Power Equipment contends that the Dead Man's Statute is inapplicable because, it argues, the Bank did not introduce sufficient evidence to prove that Mosley was deceased. Power Equipment also contends, citing Melvin v. Parker, 472 So. 2d 1024 (Ala. 1985), that the statements should have been considered by the trial court, because, it argues, the statements fall within the "associate" exception to the Dead Man's Statute.
In the affidavit of Guy H. Wilkes, Jr., a vice president of the Bank, which was filed by the Bank in support of its summary judgment motion, Wilkes specifically states that "Lynn Mosley ... is now deceased." Although Power Equipment presented no evidence to the contrary, it contends in its brief on appeal that "[t]his assertion by Wilkes was undoubtedly secondhand knowledge based on hearsay." We note however: "The general reputation among friends or acquaintances of a person, claimed to be dead, that he is dead is admissible as tending to prove his death...." C. Gamble, McElroy's Alabama Evidence § 250.04(2) (4th ed.1991). Furthermore, the record reveals neither a motion to strike Wilkes's affidavit nor any evidence suggesting that Wilkes lacked firsthand knowledge of Mosley's death. Therefore, we find no merit in Power Equipment's argument that the Dead Man's Statute is inapplicable.
Power Equipment's second argument with regard to the Dead Man's Statute is that Ferguson's statements should have been admitted as an "associate" exception to the general rule of exclusion. Power Equipment argues that Wilkes was *1296 an associate of Mosley and that the alleged promises were made in Wilkes's presence. However, Wilkes stated in his affidavit that Mosley handled all of the negotiations with Power Equipment regarding the loan at issue and that he was not present during all of their discussions. He also stated that he was not present during any discussion wherein Mosley told Ferguson that loans or credit would be advanced under the note past December 31, 1985. Furthermore, in his deposition, Wilkes testified that although he was present for some time during each of Mosley's meetings with Ferguson, he was not there every minute of the time.
In order for the "associate" exception to the Dead Man's Statute to be applicable, Wilkes would have to have been associated with Mosley in one of the capacities set forth in Melvin v. Parker, supra, e.g., joint owner, partner, spouse, son-in-law, or agent. Here, there is no evidence that Wilkes was associated with Mosley in any of those capacities. Furthermore, in Melvin, this Court made it clear that for the associate exception to apply, the person allegedly present and "associated" with the decedent must be someone whom "we may safely rely upon to give the decedent's version of the transaction." 472 So. 2d at 1030.
Here, Power Equipment has presented no evidence that Wilkes was present during all of the alleged discussions upon which Power Equipment bases its breach of contract claim. Because Wilkes was not present during all of the alleged discussions, he cannot safely be relied upon to give the decedent's version of the transaction. Therefore, we conclude that the "associate" exception to the Dead Man's Statute does not apply.
Disregarding the references in Ferguson's deposition and affidavit to statements allegedly made by Mosley to Ferguson, we find that Power Equipment failed to present the scintilla of evidence needed to defeat the Bank's motion for summary judgment with regard to Power Equipment's breach of contract counterclaim. Even if the promises alleged by Power Equipment had been made, the Bank's January 1986 request that payments be made on the indebtedness would not constitute a breach, because the evidence shows that the promissory note contained a clause that allowed the bank to demand the entire payment of the debt at any time. See Pavco Industries, Inc. v. First National Bank of Mobile, 534 So. 2d 572 (Ala.1988). Obviously, if a promissory note contains a demand provision, the creditor has the right to request or allow incremental payments.
Although Power Equipment in its brief disputes the assertion that the note evidencing the $900,000 line of credit contained a demand provision, it attached a copy of the note to its counterclaim and third-party complaint and alleged that the copy was a true and correct copy of the note in question. That copy contains a demand provision. Moreover, in its answers to interrogatories, Power Equipment stated that the line of credit "was evidenced by a $900,000 one (1) year demand note." Therefore, Power Equipment may not, on appeal, dispute the validity of the demand provision in the note.
Power Equipment also argues that the demand feature in the note should have been specifically brought to Ferguson's attention before he signed the note. However, Ferguson, who is on the board of directors of another bank and is a member of that bank's loan committee, admits that he had the opportunity to read the note in question before he signed it, but that he failed to do so. The law is clear that in the absence of fraud or misrepresentation a party is bound by the terms of a contract, even if he fails to read it. See Medley v. SouthTrust Bank of the Quad Cities, 500 So. 2d 1075 (Ala. 1986). The law is equally clear that ordinarily 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. Massey v. Ingram, 567 So. 2d 1272 (Ala.1990); Norman v. Amoco Oil Co., 558 So. 2d 903 (Ala.1990).
In light of the above, we conclude that the trial court properly entered the summary *1297 judgment as to Power Equipment's allegation of breach of contract by the Bank.
Power Equipment, in the second allegation of its counterclaim and third-party complaint, contends that the Bank "breached the obligation of good faith owed by [the bank] under the Uniform Commercial Code" by failing to comply with the terms of the note.
Section 7-1-203, Ala.Code 1975, provides that "[e]very contract or duty within this title imposes an obligation of good faith in its performance or enforcement." However, in Pavco Industries, Inc. v. First National Bank of Mobile, 534 So. 2d 572 (Ala. 1988), this Court concluded that this provision does not apply to demand instruments, holding that § 7-1-208 superseded any general good faith duty imposed under § 7-1-203, and, thus, that the U.C.C. does not impose a good faith requirement on the right to demand payment under a note.
Power Equipment, in its brief on appeal, also contends that the bank breached an obligation of good faith imposed by the "common law." However, this claim was foreclosed by Government Street Lumber Co. v. AmSouth Bank, 553 So. 2d 68 (Ala. 1989), in which this Court refused to allow an action based on such a theory in tort or in contract. Furthermore, a "bad faith" cause of action, except in the context of a contract for insurance, is not a cognizable cause of action. Keeton v. Bank of Red Bay, 466 So. 2d 937 (Ala. 1985). Therefore, we hold that the summary judgment was proper as to Power Equipment's claim of a breach of a duty of good faith.
The third allegation in Power Equipment's counterclaim and third-party complaint is that the Bank failed to comply with the terms of the note and thereby breached a fiduciary duty owed by the Bank to Power Equipment.
Power Equipment concedes that ordinarily no fiduciary or confidential relationship exists between a debtor and a creditor. Courts have traditionally viewed the relationship between a bank and its customer as a creditor-debtor relationship that does not impose a fiduciary duty on the bank. See Faith, Hope & Love, Inc. v. First Alabama Bank of Talladega County, N.A., 496 So. 2d 708 (Ala.1986). However, a fiduciary duty may arise when the customer reposes trust in a bank and relies on the bank for financial advice, or in other special circumstances. Bank of Red Bay v. King, 482 So. 2d 274 (Ala. 1985); Baylor v. Jordan, 445 So. 2d 254 (Ala.1984).
Here, Power Equipment does not allege that it relied on the Bank for financial advice, so as to create a fiduciary duty. Rather, Power Equipment argues that "other special circumstances" exist that operated to create a fiduciary relationship between the Bank and Power Equipment. The act that Power Equipment alleges created a fiduciary relationship in this case is the wrongful diversion by a former officer of the Bank, using the names of Ferguson and Power Equipment, of $700,000 to himself and others. Power Equipment states that
In Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985), a fiduciary or confidential relationship was defined:
"`[Such a relationship is one in which] one person occupies toward another such a position of adviser or counselor as reasonably to inspire confidence that he will act in good faith for the other's interests, or when one person has gained the confidence of another and purports to act or advise with the other's interest in mind; where trust and confidence are reposed by one person in another who, as a result, gains an influence or superiority over the other; and it appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side, there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible. It *1298 arises in cases in which confidence is reposed and accepted, or influence acquired, and in all the variety of relations in which dominion may be exercised by one person over another.'
"15 C.J.S. Confidential (1967)."
482 So. 2d at 284. Although this Court has previously held that "other special circumstances" may create a fiduciary relationship, those circumstances have never been defined. However, the factors asserted by Power Equipment as having created a fiduciary relationship in this case are clearly not sufficient to support the inference that a fiduciary relationship existed.
In essence, Power Equipment argues that one of the Bank's former officers was guilty of wrongdoing and that that fact gave rise to a fiduciary relationship. However, it is undisputed that Ferguson knew of the wrongful acts by the Bank's officer before he signed the note evidencing the $900,000 line of credit. If anything, this prior knowledge of wrongdoing should have caused distrust on the part of Power Equipment, not the confidence and reliance that is the cornerstone of a fiduciary relationship. Furthermore, Power Equipment's allegation that the FDIC had come in and "cleaned house" and that the Bank was under new management would certainly not have the effect of elevating the Bank to the level of a fiduciary in its relationship with Power Equipment. Therefore, we hold that the trial court properly entered summary judgment as to Power Equipment's claim of breach of a fiduciary relationship by the Bank.
The fourth claim asserted by Power Equipment in its counterclaim and its third-party complaint is that the Bank made fraudulent misrepresentations and fraudulently suppressed material information. In its claims of fraudulent misrepresentation, Power Equipment argues that the Bank represented to Ferguson, before he signed the note securing the $900,000 line of credit, that the Bank wanted to continue "floor planning" Power Equipment's business and that it would allow Power Equipment to keep a line of credit of up to $900,000 at the Bank so long as Power Equipment continued to perform under the note evidencing the line of credit as it had on other notes in the past.
Initially, we note that, as discussed above, the admission of the references in Ferguson's affidavit and depositions to statements made to him by loan officer Lynn Mosley would violate the Dead Man's Statute and therefore those references could not properly be used by Power Equipment in its attempts to defeat the Bank's summary judgment motion.
However, even if those statements were taken into consideration, the trial court could have properly dismissed Power Equipment's misrepresentation claim, because Power Equipment's allegations of misrepresentation are contradicted by Ferguson's own deposition testimony, wherein he admitted that no one ever told him how long the line of credit would be extended. Therefore, we conclude that Power Equipment failed to rebut the Bank's prima facie showing that it did not misrepresent facts related to the line of credit loan to Power Equipment. Because there was no evidence of misrepresentation, the summary judgment was due. See Bice v. Indurall Chemical Coating Systems, Inc., 544 So. 2d 948 (Ala.1989).
In addition to alleging fraudulent misrepresentation, Power Equipment also claims fraudulent suppression by the Bank, contending that the Bank failed to inform Power Equipment of its intention to cancel the line of credit at the end of 1985. Power Equipment acknowledges that in order to succeed on its fraudulent suppression claim, it must show that the Bank intentionally suppressed facts that it was under a duty to disclose. However, after reviewing the record, we find that Power Equipment, in its attempt to defeat the Bank's summary judgment motion, failed to present sufficient evidence of a suppression of facts.
In his affidavit in opposition to the Bank's summary judgment motion, Ferguson stated emphatically: "At no time prior to my signing the $900,000 note was it ever discussed, mentioned or hinted that the Commercial Bank no longer wanted to do *1299 business with Power Equipment." However, this statement in Ferguson's affidavit contradicted his prior deposition testimony, wherein he stated that he did not recall whether any discussions about moving the line of credit to another bank took place prior to his signing of the note in question. A party may not create an issue of fact with an affidavit that merely contradicts that party's previous testimony without explanation. Enoch v. Firestone Tire & Rubber Co., 534 So. 2d 266 (Ala.1988). Therefore, even if the Bank intended to discontinue Power Equipment's line of credit at the end of 1985 and even if the Bank was under a duty to disclose that fact, Power Equipment has failed to offer proper evidence that the Bank did not disclose that fact to Power Equipment.
In its fifth claim against the Bank, Power Equipment alleges wrongful disclosure of confidential financial information. Power Equipment cites two instances of allegedly wrongful disclosure. First, Power Equipment cites the affidavit of Emmett Travis, a Power Equipment customer, wherein he states that he was told by an officer of the Bank that the officer and other bank officials thought that "Bob Ferguson, and other people at Power Equipment were directly involved with John Earl Duggan in the wrongdoing at The Commercial Bank." However, even if this statement from Travis's affidavit is regarded as a fact, it would not give Power Equipment a cause of action.
A corporation is a distinct entity, to be considered separate and apart from the individuals who compose it. Messick v. Moring, 514 So. 2d 892 (Ala.1987). Furthermore, a corporation, just as an individual, must enforce its own rights and privileges. Russell v. Birmingham Oxygen Service, Inc., 408 So. 2d 90 (Ala.1981). Here, the information that Power Equipment alleges was wrongfully disclosed to Travis does not relate to Power Equipment, but rather to Ferguson and others affiliated with Power Equipment in their individual capacities. Therefore, the disclosure of that information cannot properly serve as the basis of a wrongful disclosure claim by Power Equipment against the Bank.
Second, Power Equipment refers in its brief to two memoranda from Credit Alliance Company that supposedly reflect disclosures by the Bank to Credit Alliance in February 1986. However, in submitting the documents to the trial court, Power Equipment did not attempt to comply with Rule 56(e), A.R.Civ.P., which requires that written documents submitted in connection with a summary judgment motion be certified or otherwise authenticated. The documents, therefore, constitute inadmissible hearsay and could not properly be considered on summary judgment. See Murray v. Timberlake, 564 So. 2d 885 (Ala. 1990).
Because Power Equipment failed to present any admissible evidence that the Bank disclosed confidential financial information regarding Power Equipment, we conclude that the summary judgment was proper as to this claim.
Power Equipment, in its sixth claim against the Bank alleges that the Bank's seizure of certain pieces of Power Equipment's inventory securing the Bank's loans to Power Equipment constituted conversion. The August 28, 1985, promissory note securing the $900,000 line of credit gave the bank a security interest in Power Equipment's inventory. Pursuant to § 7-9-503, Ala.Code 1975, a secured party, such as the Bank in this case, has, on default, the right to take possession of the collateral and to do so without judicial process.
Ferguson admitted in his deposition that the note was in default on August 28, 1986. Therefore, the seizure of the inventory after the default was not wrongful and cannot support an action for conversion. See Ash v. Peoples Bank of Greensboro, 500 So. 2d 5 (Ala.1986). Although Power Equipment contends that its default was induced by an earlier breach of the loan contract by the Bank, we have concluded above that there had been no breach by the Bank. Therefore, we hold that the summary judgment was proper as to Power Equipment's claim of conversion.
*1300 The seventh claim made by Power Equipment in its counterclaim and third-party complaint is racketeering, as defined by the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. RICO provides a civil right of action for damages suffered as a result of "racketeering activity," which is defined, in pertinent part, as an act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in narcotic or other dangerous drugs chargeable under state criminal laws and punishable by imprisonment for more than one year, or an act indictable under specific federal criminal provisions, including mail fraud and wire fraud. 18 U.S.C. § 1961(1). Thus, in order to establish liability, a claimant must prove that the defendant committed one of these "predicate acts." See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).
With regard to the RICO claim, the Bank, citing Chivas Products Ltd. v. Owen, 864 F.2d 1280 (6th Cir.1988), argued in its brief in support of its motion for summary judgment that the federal courts have exclusive jurisdiction over such claims. Power Equipment, on the other hand, cites Lou v. Belzberg, 834 F.2d 730 (9th Cir.1987), cert. denied, 485 U.S. 993, 108 S. Ct. 1302, 99 L. Ed. 2d 512 (1988), for the proposition that state and federal courts have concurrent jurisdiction in RICO cases. However, assuming, without deciding, that jurisdiction on the RICO claim was proper with the trial court, we still find no error by the trial court in entering a summary judgment as to that claim.
In its brief, the only act cited by Power Equipment that could be considered a predicate act is that the Bank "used telephonic communications to disseminate false and misleading information about Power Equipment to Credit Alliance." However, to constitute wire fraud, RICO requires that the wire communications cross state lines. See 18 U.S.C. § 1343; Smith v. Ayres, 845 F.2d 1360 (5th Cir. 1988). Here, Power Equipment, in response to the Bank's motion for summary judgment, presented no evidence showing that interstate telephone communications took place. Therefore, we hold that the trial court properly entered the summary judgment for the Bank on Power Equipment's RICO claim.
The second issue raised on appeal is whether the court properly entered the summary judgment in favor of the Bank on its claims against Power Equipment asserted in its original complaint. The first count of the complaint was for recovery on the June 1985 promissory note, while the second count was for recovery on the August 1985 promissory note evidencing the $900,000 line of credit.
With regard to both the June 1985 note and the August 1985 note, Power Equipment admits executing the notes. However, Power Equipment sets out the affirmative defenses of breach of contract, payment, accord and satisfaction, fraud, duress, failure of consideration, waiver, statute of limitations, and laches. Power Equipment contends that the same evidence that supports its counterclaim and third-party complaint also supports its defenses to the Bank's original complaint.
As discussed in Part I of this opinion, Power Equipment failed to offer evidence that the Bank breached any of the terms of the August 1985 promissory note, and there is no evidence that a breach was committed by the Bank with regard to the June 1985 note. Also, there is no evidence that the Bank committed fraud relating to the notes, that the consideration for the notes failed, or that the debt evidenced by either of the notes has been fully paid. Furthermore, there is no evidence of accord and satisfaction, waiver, or laches, and it is clear that the lawsuit was filed within the statutory period of limitations. Finally, there is no evidence of fraud or duress in connection with the execution of either of the notes. Power Equipment has failed to rebut the Bank's prima facie showing that it was entitled to a judgment on the notes. Therefore, we hold that the summary judgment was properly entered for the Bank on *1301 its original complaint against Power Equipment.
Therefore, the judgment is due to be affirmed, both as to the Bank's original complaint against Power Equipment and as to Power Equipment's counterclaim and third-party complaint against the Bank.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | August 9, 1991 |
52c6adcd-dc27-4ba0-a0f0-9a4229d49fe8 | Killingsworth v. Crittenden | 585 So. 2d 903 | 1900635 | Alabama | Alabama Supreme Court | 585 So. 2d 903 (1991)
Randall KILLINGSWORTH
v.
Jeanette CRITTENDEN.
1900635.
Supreme Court of Alabama.
August 9, 1991.
*904 Barre C. Dumas, Mobile, for appellant.
Richard L. Watters of Howell, Johnston, Langford & Watters, Mobile, for appellee.
KENNEDY, Justice.
Randall Killingsworth appeals from a denial of his Rule 60(b)(6), A.R.Civ.P., motion to vacate a judgment entered by the trial court in favor of Jeanette Crittenden.
On October 28, 1985, Jeanette Crittenden filed an action against Killingsworth Pest Control, Inc. On November 18, 1986, the Mobile Circuit Court entered a judgment in that action in the amount of $8,393 for Crittenden and against Killingsworth Pest Control, Inc. Killingsworth Pest Control, Inc., moved to set aside that judgment, and while that motion was pending Randall Killingsworth supposedly transferred two vehicles belonging to Killingsworth Pest Control, Inc. Killingsworth Pest Control's motion to set aside the judgment was denied.
On July 8, 1988, Crittenden filed a complaint in relation to the November 18, 1986, judgment. That complaint alleged that Randall Killingsworth (hereinafter "Killingsworth"), had conducted and controlled the business of Killingsworth Pest Control, Inc., so as to "make it merely his instrumentality" (and thus his alter ego) and that he therefore should be responsible for payment of the judgment. Crittenden alleged that Killingsworth, acting thus, had defrauded her (1) when he attempted to transfer, supposedly for $3,000, a vehicle of the corporation to his brother's sister, who signed for the vehicle under the fictitious name "Contractors Equipment, Inc.", and (2) when he attempted to transfer, supposedly for $4,000, another vehicle of the corporation to a fictitious individual. Killingsworth was served with the summons and complaint on July 18, 1988.
The trial court set aside the transfers as fraudulent. Later, on August 24, 1988, the trial court entered a default judgment against Killingsworth for failing to answer the complaint, and on September 23, 1988, the trial court entered a final judgment for Crittenden for $100,000 and court costs.
Killingsworth filed a motion for relief from judgment, alleging that he had not been served with the complaint. The trial court granted Killingsworth's motion and set aside the judgment on December 16, 1988.
From February through April 1989, Crittenden filed two motions to compel Killingsworth to answer two sets of interrogatories, and the trial court granted one of those motions in part and the other completely. When Killingsworth failed to respond to either order of the trial court, Crittenden moved for sanctions against Killingsworth in the form of a summary judgment, and an oral hearing was set for that motion on May 8, 1989.
On May 3, 1989, Killingsworth's lawyer filed a motion to withdraw as counsel because of Killingsworth's nonpayment of attorney fees. Crittenden, in her words, "out of an abundance of caution," then attempted service both by the sheriff and through certified mail of both the "Notice to Show Cause," which was the notice concerning the oral motion the trial court had originally set for May 8, 1989, and the "Motion for Sanctions." The sheriff returned the notices on May 26, 1989, marked "Not found." A certified letter, which provided notice of the "Motion for Sanctions" and "Notice to Show Cause," was returned on May 24 as "refused"; a second certified letter was returned on June 16, 1989, as unclaimed.
*905 On June 16, 1989, the trial court authorized Crittenden to serve Killingsworth by publication, and proof of publication was filed on August 11, 1989. On that same day, the trial court entered a summary judgment for Crittenden with leave to prove damages. On September 1, 1989, the trial court entered the judgment against Killingsworth for $100,000 and court costs.
In August 1990, Crittenden found Killingsworth living and working in Virginia. Crittenden initiated proceedings to get Virginia to recognize the judgment, which Virginia did, and Crittenden then obtained a writ of garnishment against Killingsworth's employer. Killingsworth then, on September 28, 1990, filed a Rule 60(b)(6), A.R.Civ.P., motion to set aside the default judgment, because, among other reasons, he had allegedly not been served. After hearing oral testimony and argument by counsel, the trial court denied that motion, and Killingsworth appeals.
Rule 60(b)(6) provides: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment."
The Court discussed relief pursuant to Rule 60(b)(6) in Ex parte Hartford Insurance Co., 394 So. 2d 933 (Ala.1981):
"....
394 So. 2d at 936.
Killingsworth contends that the Rule 60(b)(6) motion should have been granted, arguing 1) that Crittenden's complaint in the July 8, 1988, action does not state a claim on which relief can be granted; 2) that Killingsworth did not defraud Crittenden; 3) that the judgment is excessive; and 4) that he was never served with the "Notice to Show Cause" or the "Motion for Sanctions."
The first two reasons for granting the Rule 60(b)(6) motion offered by Killingsworth are defenses to the merits of the action, which Killingsworth might have advanced had he defended the action on the merits. Killingsworth presented no evidence or excuse as to why he did not present these arguments in a motion to dismiss or in a summary judgment motion. The trial court did not abuse its discretion in determining that in relation to these arguments Killingsworth did not prove exceptional circumstances sufficient to entitle him to relief. Ex parte Hartford Insurance Co., at 936.
Killingsworth claims that the amount awarded is excessive. He presents no convincing legal argument for that claim: he merely concludes that because the purported "sales" value of the two vehicles in the transactions set aside as fraudulent was only $7,000, the trial court could not properly award $100,000 on Crittenden's fraud claim. A plaintiff may recover punitive damages in a fraud action, see, e.g., Beautilite Co. v. Anthony, 554 So. 2d 946 (Ala.1989). Killingsworth has *906 not presented any evidence to this Court that suggests the award is excessive. See Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989). The trial court did not abuse its discretion in denying Killingsworth's Rule 60(b)(6) motion on the ground that the award is excessive.
As to Killingsworth's claim that he was never served with the "Notice to Show Cause" or the "Motion for Sanctions," the trial court considered Killingsworth's ore tenus testimony that the first notice he received of the judgment was when his wages were garnished; that he never refused any certified mail; that the address to which Crittenden sent the certified mail was an industrial site where 25 contractors have offices; that he does not receive mail at that address; and that the evidence does not show who refused the mail. To rule for Killingsworth on this point, we would have to overrule the trial court's factual determination against Killingsworth, which was based upon ore tenus evidence, and then hold that Killingsworth had proved exceptional circumstances sufficient to entitle him to relief. Ex parte Hartford Insurance Co., at 936. The evidence Killingsworth presented falls far short of providing a basis for either ruling, much less both. Id.
The judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and INGRAM, JJ., concur. | August 9, 1991 |
b917c082-5dee-4fd2-9432-e26135d1f1c9 | Shows v. NCNB NAT. BANK OF NC | 585 So. 2d 880 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 880 (1991)
Cecil R. SHOWS; and Ottis J. Shows, non compos mentis, by her husband and next friend Cecil R. Shows
v.
NCNB NATIONAL BANK OF NORTH CAROLINA, et al.
89-1762.
Supreme Court of Alabama.
August 9, 1991.
*881 Cecil R. Shows, pro se.
Roger L. Bates and Thomas B. Miller of Tingle, Sexton, Murvin, Watson & Bates, Birmingham, for appellee NCNB Nat. Bank of N.C.
B. Stephen Sansom, pro se.
B. Stephen Sansom, Florala, for James Raley and Kenneth Raley.
KENNEDY, Justice.
On November 25, 1985, Cecil Shows and his wife Ottis J. Shows executed a real estate mortgage to Freedlander, Inc. The Freedlander mortgage was to secure a promissory note executed by Cecil Shows to Freedlander. Subsequently, the note and mortgage were assigned to NCNB National Bank of North Carolina ("NCNB"). Cecil Shows defaulted on his note; NCNB foreclosed on the mortgage and held a foreclosure sale on March 17, 1988. James P. Raley and Kenneth R. Raley purchased the property at the foreclosure sale.
For all that appears in the Showses' complaint, it seems that they alleged that NCNB had negligently and fraudulently foreclosed on their property and that, after the foreclosure sale the Raleys took possession of their property and destroyed some of the Showses' personal belongings. The trial court entered a judgment on the pleadings for the defendants.
This action was filed in the Russell Circuit Court and was transferred to the Covington Circuit Court. This is the sixth action filed by the Showses concerning the foreclosure sale. In all six actions, Cecil Shows has acted pro se. The Showses admit that they have twice previously filed actions in the Covington Circuit Court, and that they have filed actions in the United States District Court for the Middle District of Alabama, in the United States District Court for the Western District of North Carolina, and in the United States District Court for the Eastern District of Virginia.
NCNB and the Raleys argue, among other things, that the Showses' claims are barred by the doctrine of res judicata.
*882 In order for the doctrine of res judicata to apply, (1) the question or fact must have been litigated and determined by a court of competent jurisdiction; (2) a final judgment must have been rendered on the merits; (3) the parties in the first action, or those in privity with them, must be so related to the parties in the subsequent action as to entitle those in the subsequent action to the benefitsand/or subject them to the burdensof the prior litigation; and (4) the same cause of action must be involved in both suits. Waters v. Jolly, 582 So. 2d 1048 (Ala.1991); Hughes v. Martin, 533 So. 2d 188 (Ala.1988); Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir.1975).
Having reviewed the record in this case, which includes relevant portions of the record in the action filed in the United States District Court for the Middle District of Alabama and portions of the records in the other previous actions, we find that the elements of res judicata are satisfied. These elements being present, any issue that was, or could have been, adjudicated in the prior actions cannot be litigated in the present action. Waters v. Jolly, supra; Hughes v. Martin, supra; Trimble v. Bramco Products, Inc., 351 So. 2d 1357 (Ala.1977); McGruder v. B & L Construction Co., 331 So. 2d 257 (Ala. 1976). The issues raised in this action that concerned NCNB and the Raleys were adjudicated in the previous actions. Therefore, we hold that, as to NCNB and the Raleys, the trial court did not err in entering the judgment on the pleadings.
In this action, the Showses also named an attorney, Benton S. Sansom, as a defendant. They alleged that, by drawing up the deed of conveyance between NCNB and the Raleys, Sansom committed legal malpractice.
In order to recover damages for legal malpractice, a plaintiff must prove the same elements that must be proven in a negligence action:
"`To recover, the [plaintiff] must prove a duty, a breach of the duty, that the breach was the proximate cause of the injury, and damages.' Herston v. Whitesell, 348 So. 2d 1054, 1057 (Ala.1977). (Citations omitted.) `A claim for malpractice requires a showing that in the absence of the alleged negligence the outcome of the case would have been different.' Hall v. Thomas, 456 So. 2d 67, 68 (Ala.1984). (Citations omitted.)"
Moseley v. Lewis & Brackin, 533 So. 2d 513 (Ala.1988).
Sansom argues that he owed no duty to the Showses. A person authorized to practice law owes no duty except that arising from contract or from a gratuitous undertaking. Williams v. Jackson Co., 359 So. 2d 798 (Ala.Civ.App.), cert. denied, 359 So. 2d 801 (Ala.1978). In support of his argument, Sansom notes that he filed an affidavit with the trial court in which he stated that at no time did he directly or indirectly represent the Showses. The Showses did not present any evidence to the contrary. Therefore, we hold that the trial court's judgment was also proper as to Sansom.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and INGRAM, JJ., concur. | August 9, 1991 |
f46a0b14-9a9b-4775-9136-c8c8efa7d21f | Ex Parte Tubbs | 585 So. 2d 1301 | 1901071 | Alabama | Alabama Supreme Court | 585 So. 2d 1301 (1991)
Ex parte Cecil TUBBS.
(In re STATE BOARD OF ADJUSTMENT, Claim No. 88-1213).
1901071.
Supreme Court of Alabama.
August 9, 1991.
James C. King, Garve Ivey, Jr. and Earl H. Lawson, Jr., Jasper, for Cecil Tubbs.
Jack F. Norton, Chief Counsel, and Janie Baker Clarke, Counsel, State of Ala. Highway Dept., Montgomery, for State of Ala. Highway Dept.
INGRAM, Justice.
Cecil Tubbs petitions this Court for a writ of mandamus directed to Perry Hand in his capacity as director of the Alabama Highway Department ("Department"). Tubbs seeks to compel Hand to direct the state comptroller to pay a sum awarded to Tubbs by the Alabama Board of Adjustment ("Board").
Tubbs's claim against the Department stems from a traffic accident that occurred on Christmas Eve 1987 and that claimed the life of his daughter, Karen Lee. Tubbs alleged that his daughter's death was caused by the Department's failure to install guardrails along certain portions of Alabama Highway 18. Following an evidentiary hearing in November 1989, the Board ordered the Department to pay Tubbs $130,000. The Department refused to comply with the Board's order and filed with the Board a "motion to set aside award." However, because the rules of the Board do not provide for such a remedy, the Board formally dismissed the Department's motion. The Department still refuses to pay Tubbs, and he has filed this petition.
Obviously, the primary issue raised in the petition is whether a writ of mandamus should issue to compel Hand to direct the comptroller to pay the amount of the claim. However, because we find that original jurisdiction *1302 for Tubbs's petition is not proper with this Court, we do not reach the merits of the issue raised in the petition.
Initially, we note that the question of jurisdiction is always fundamental. State v. Albritton, 251 Ala. 422, 37 So. 2d 640 (1948).
Albritton, 251 Ala. at 424-25, 37 So. 2d at 642-43, quoting Wilkinson v. Henry, 221 Ala. 254, 128 So. 362, 364 (1930). (Citations omitted.)
Article IV, § 140, Ala. Const. of 1901, mandates that this Court shall have
See also Ala. Const. of 1901, amend. 328; § 12-2-7, Ala.Code 1975. This Court can act only within the jurisdiction conferred by law, and that jurisdiction cannot be enlarged by waiver or by the consent of the parties. Ex parte Alabama Textile Prod. Corp., 242 Ala. 609, 7 So. 2d 303 (1942).
Our research on the question whether this Court may exercise jurisdiction over an original petition for a writ of mandamus has revealed few cases to guide us in our analysis. However, one case that we find instructive is Ex parte Giles, 133 Ala. 211, 32 So. 167 (1902). In that case, the Court was faced with the issue of whether it had proper jurisdiction to issue a writ of mandamus to the board of registrars of a county to compel the board to register the petitioner as an elector. The petition in Giles was filed originally in the Supreme Court. In denying the petition, the Giles Court held:
133 Ala. at 212, 32 So. at 167.
In a later case, Ex parte Barger, 243 Ala. 627, 11 So. 2d 359 (1942), this Court held that where a petition for the writ of mandamus can be made to a lower court, this Court will not take jurisdiction of an original application unless, for special reasons, complete justice cannot otherwise be done. See also Ex parte Alabama Textile Prod. Corp., supra. Here, however, there are no special circumstances that warrant our taking jurisdiction of this original petition.
Although Tubbs argues that because of our recent decision in Ex parte Houston County Bd. of Educ., 562 So. 2d 513 (Ala.1990), the Montgomery Circuit Court is without jurisdiction to entertain his petition, a close reading of Houston County Bd. of Educ., reveals that that case has no bearing on the issue of where jurisdiction for Tubbs's petition properly resides. In that case, the issue presented was whether a circuit court has subject matter jurisdiction to review cases in which the Alabama Board of Adjustment has made a determination regarding the State's liability. This Court concluded that the circuit court was without jurisdiction to hear such cases because decisions by the Board of Adjustment are not subject to judicial review. Ex parte Houston County Bd. of Educ., supra.
*1303 In the present case, Tubbs is not seeking judicial review of the Board's decision; rather, he is seeking to compel the Department to comply with the Board's finding. Therefore, we conclude that the Houston County Bd. of Educ. holding does not function to divest the circuit court of jurisdiction over Tubbs's mandamus proceeding. Because we hold that original jurisdiction for Tubbs's petition for the writ of mandamus is proper in the circuit court rather than in this Court, we conclude that his petition is due to be dismissed.
WRIT DISMISSED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | August 9, 1991 |
3af168b4-4a1a-42be-9d21-caebb8e3d778 | Greene County Bd. of Educ. v. Bailey | 586 So. 2d 893 | 1901316 | Alabama | Alabama Supreme Court | 586 So. 2d 893 (1991)
GREENE COUNTY BOARD OF EDUCATION
v.
Roland S. BAILEY, et al.
1901316.
Supreme Court of Alabama.
August 23, 1991.
*894 Carlos A. Williams of Chestnut, Sanders, Sanders, Turner, Williams & Pettaway, Selma, for appellant.
Ray Ward and Thomas W. Powe, Jr. of Ray, Oliver & Ward, Tuscaloosa, for appellees.
HOUSTON, Justice.
The plaintiff, Greene County Board of Education, appeals from the dismissal of its complaint alleging conversion on the part of the defendants, Roland S. Bailey; Sarah N. Bailey; Pelham E. Brittain; Alabama Institutional Foods, Inc.; Joseph L. Wilson; Shelia G. Holland; and First National Bank of Tuskaloosa d/b/a AmSouth Bank of Tuscaloosa. We reverse and remand.
The plaintiff's complaint reads, in pertinent part, as follows:
The defendants moved to dismiss the complaint under Rule 12(b)(6), Ala.R.Civ.P., on the ground that it failed to state a claim upon which relief could be granted. Specifically, the defendants argued that the plaintiff had failed to allege that specific money capable of identification had been converted. The trial court granted the defendants' motion, stating, in pertinent part, as follows:
We disagree.
The standard by which the plaintiff's complaint in this case must be reviewed is well established:
Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985). (Emphasis in original.)
To constitute conversion, there must be a wrongful taking or wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse of another's property. The gist of the action is the wrongful exercise of dominion over property to the exclusion or in defiance of a plaintiff's rights, where the plaintiff has a general or special title to the property or the immediate right to possession. Ex parte SouthTrust Bank of Alabama, N.A., 523 So. 2d 407 (Ala.1988).
Generally, an action will not lie for the conversion of money. However, if the money at issue is capable of identification, then a claim of conversion may be appropriate. In Lewis v. Fowler, 479 So. 2d 725, 726 (Ala.1985), this Court discussed at length the circumstances under which an action for conversion will lie to recover a sum of money:
(Emphasis added.)
As this Court recognized in Lewis, the evolution of our economic system has resulted in courts' today being asked more often than not to determine whether money traceable to identified or segregated sources or accounts can be the subject of a conversion action. Although Lewis did not involve money that was traceable to a special account,[2] this Court, citing Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 732 F.2d 859 (11th Cir.1984), recognized that money directly traceable to a special account is sufficiently identifiable to support an action for conversion. More recently, in Covington v. Exxon Co., U.S.A., 551 So. 2d 935 (Ala.1989), this Court, discussing Lewis, again recognized that money traceable to a special account is sufficiently identifiable to support an action for conversion. In addition, this Court in Covington cited with approval Estate of Jackson v. Phillips Petroleum Co., 676 F. Supp. 1142 (S.D.Ala.1987):
551 So. 2d at 938-39. This Court went on to hold in Covington, as it had in Lewis, that, under the particular facts of that case, the money at issue was not sufficiently identifiable to support a conversion action:
551 So. 2d at 939.
Applying the applicable standard of review to the present case, we are not persuaded that the plaintiff has failed to state a claim for conversion. The allegations of the complaint suggest that the plaintiff may be able to prove that the defendants, through an intricate scheme involving bogus invoices and checks and money orders, converted to their own use funds that had been specifically deposited in the "[Paramount *900 High School] lunchroom account" to pay for the high school's breakfast and lunch programs. Although the defendants cite us to a number of cases in which this Court held that conversion would not lie to recover certain funds, those cases are distinguishable in that they did not involve funds that were directly traceable to a special account.
Based on the foregoing, we hold that the plaintiff has stated a claim for conversion and, therefore, that the trial court's order dismissing the plaintiff's complaint is due to be reversed and the case remanded for further proceedings.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] The Merchants and Farmers Bank of Greene County was dismissed by a stipulation of the parties and is not a party to this appeal.
[2] Lewis involved a debtor-creditor relationship between the plaintiff and the defendant. That relationship formed the alternative basis for this Court's holding that the plaintiff's conversion action would not lie. | August 23, 1991 |
3a63ffc6-da0c-4bba-a6b1-c5c246ffcd7c | Cincinnati Ins. Co. v. Synergy Gas, Inc. | 585 So. 2d 822 | 1900443 | Alabama | Alabama Supreme Court | 585 So. 2d 822 (1991)
CINCINNATI INSURANCE COMPANY, Tolbert Shelby, and Mildred Shelby
v.
SYNERGY GAS, INC.
1900443.
Supreme Court of Alabama.
July 26, 1991.
*823 William A. Mudd and Edward E. Angwin of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellants.
Richard L. Wyatt of Wallace, Wyatt & Davenport, Birmingham, for appellee.
HOUSTON, Justice.
The plaintiffs, Cincinnati Insurance Company ("Cincinnati") and Tolbert and Mildred Shelby appeal from the dismissal of their complaint against defendant, Synergy Gas, Inc. ("Synergy"), for their failure to comply with a request for production. We affirm in part, reverse in part, and remand.
The trial court entered the following order:
"Certain facts are undisputed:
"3. Subsequent to the fire, after ... Cincinnati Insurance Company's experts had examined the premises and during the rebuilding of the ... Shelbys' home, all of the fire debris, including appliances, pipes, and all of the LP gas system (with the exception of the regulator) was removed from the premises and either *824 destroyed or taken to places unknown. The removal of the debris was allowed by the Shelbys and done at their direction. The regulator had previously been removed from the LP tank by the Alabama LP Gas Board representative.
"The precise question of what sanctions, if any, are appropriate where the plaintiff permits or allows the apparatus made the subject of a lawsuit to be lost or destroyed prior to the filing of the *825 complaint, has not been addressed by Alabama Courts.
"The closest Alabama case is Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala. 1989). In that case, the Supreme Court of Alabama affirmed a trial judge's dismissal of a lawsuit for failure of the plaintiff to produce an alleged faulty fuel pump made [the] basis of the complaint. In Iverson, the plaintiff permitted the fuel pump to be lost or destroyed after a request for production had been filed by the defendant.
"However, the Illinois case of Graves v. Daley, [172 Ill.App.3d 35, 122 Ill.Dec. 420, 526 N.E.2d 679 (1988),] bears a striking resemblance to the facts of this case. That case involved a house fire; an insurance company investigation of the cause; a report by the insurance company that a defective furnace was a suspected cause; and the homeowner allowing the heating system to be lost or destroyed ... prior to the filing of the complaint.
"`Although it is correct that the plaintiffs did not violate court orders, the fact remains that the furnace was destroyed by plaintiffs at Western State's suggestion. The plaintiffs are not free to destroy crucial evidence simply because a court order was not issued to preserve the evidence. Further, the furnace was destroyed by the plaintiffs after their expert had examined it and before the suit was filed, thus, the court could not have issued a preservation order.'
(Emphasis in original.)
Rule 37, A.R.Civ.P., provides the method for dealing with a party's failure to comply with discovery. That rule provides, in pertinent part, as follows:
Rule 37(b)(2)(C) states that the trial court, under the appropriate circumstances, may enter "[a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party." An *826 order to compel discovery is not required in order to bring Rule 37(d) into play. It is enough that a request for inspection or production has been properly served on the party. Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala.1989).
In Iverson, this Court discussed the standard of review applicable to a dismissal under Rule 37 for failure to comply with a discovery request:
"....
"... The trial court is the more suitable arbiter for determining with accuracy the culpability of the failure to produce or of the spoliation, and, for that reason, we will show great deference toward a trial court's decision with respect *827 to such culpability.... [T]rial courts, when confronting litigants who have manifested willfulness and bad faith in failing to produce or in allowing spoliation, must not be unduly hampered in granting the ultimate sanction of a denial of an opportunity to prosecute or defend the claim."
553 So. 2d at 87-89.
In the present case, the trial court found that the plaintiffs had deliberately disposed of the items that were later the subject of the request for production. Although the trial court noted that there had been no "allegation" of malicious intent on the part of the plaintiffs in destroying the items and that the Shelbys' conduct "might be excusable" because of their lack of knowledge of the importance of preserving evidence for future litigation, the trial court, understandably, could find no justification for Cincinnati's conduct. As we read its order, the trial court found that Cincinnati had willfully allowed the destruction of the items in question, with full knowledge of the importance of those items as evidence in any future litigation. Our conclusion in this regard is based on the trial court's findings that Cincinnati had fire investigators on the scene within three days after the fire; that those investigators had quickly concluded that the gas system allegedly installed by Synergy was the cause of the fire; and that Cincinnati, as subrogee under the Shelbys' policy, was aware of the importance of preserving the evidence for future litigation. We also find it to be significant that the plaintiffs' complaint states that Cincinnati paid the Shelbys over $291,000 under the terms of the policy. Because such a large sum of money was involved, it is certainly not difficult to understand why the trial court apparently believed that Cincinnati was aware soon after the fire that future litigation was likely.
The plaintiffs argue that the trial court's finding of "willfulness" on the part of Cincinnati is not supported by the evidence. We hasten to point out, however, that the record presented to us in this case does not contain any of the affidavits, depositions, etc., on which the trial court based its judgment. Where all of the evidence is not in the record, we presume that the evidence was sufficient to sustain the judgment. See Berryhill v. Mutual of Omaha Insurance Co., 479 So. 2d 1250 (Ala.1985).
We can find no abuse of discretion on the trial court's part in dismissing the plaintiffs' claims that were based on the alleged malfunction of those components of the gas system that were destroyed by the plaintiffs. However, the plaintiffs urge us to allow them to proceed with their claims that are based on the alleged malfunction of the gas regulator, which is still available for further inspection by Synergy's experts. The plaintiffs, who alleged in their complaint that the fire had resulted from a malfunction of "the LP Gas tank, gas furnace and/or gas regulator, component parts thereof, and/or any attending equipment used therewith," apparently have taken the position that they are willing to pursue a recovery under a single theory that the gas regulator was defective and that that defect alone caused the fire. This Court has a long-established and compelling policy objective of affording litigants a trial on the merits whenever possible. Iverson; see, also, Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala.1988), and Jones v. Hydro-Wave of Alabama, Inc., 524 So. 2d 610 (Ala.1988). Although we do not condone the plaintiffs' willful destruction of the most crucial pieces of the evidentiary puzzle in this case, after careful review we are persuaded that, in keeping with this policy objective, the plaintiffs should be allowed to proceed to trial, but solely on the theory that the gas regulator was defective and that that defect alone caused the fire. By allowing the plaintiffs to proceed to trial solely on this theory, all of the applicable policy objectives will be furthered in this case. The plaintiffs will be afforded the opportunity to have a trial on the merits; the restriction of the plaintiffs' case to the single theory based on the allegedly defective regulator will serve to punish them for their willful destruction of crucial evidence and, therefore, to preserve the integrity of the discovery process; and Synergy will be assured *828 of an opportunity to present an adequate defense.
For the foregoing reasons, we affirm the dismissal of the plaintiffs' claims that were based on the destroyed components of the gas system. However, in keeping with our policy objective of affording litigants a trial on the merits whenever possible, we reverse the dismissal of the plaintiffs' claims that are based on the allegedly defective regulator, and we remand the case for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, KENNEDY and INGRAM, JJ., concur. | July 26, 1991 |
83233ae3-66b9-403e-8c58-e653485ffa25 | Baker v. Blue Circle, Inc. | 585 So. 2d 868 | 1900721 | Alabama | Alabama Supreme Court | 585 So. 2d 868 (1991)
Guy M. BAKER, Jr.
v.
BLUE CIRCLE, INC.
1900721.
Supreme Court of Alabama.
August 2, 1991.
*869 John T. Alley, Jr. of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for appellant.
Jimmy S. Calton, Eufaula, for appellee.
ALMON, Justice.
Guy M. Baker, Jr., appeals from the trial court's summary judgment in favor of the defendant, Blue Circle, Inc., in his action to compel Blue Circle, Inc., to reclaim certain land.
In 1980 Guy M. Baker, Jr., and his wife, Laura K. Baker, entered into a lease with Eufaula Concrete Company, Inc. ("Eufaula Concrete"), wherein Eufaula Concrete was given the right to "mine, process and remove sand, gravel and/or field dirt" from land owned by the Bakers in Barbour County in exchange for paying royalties to the Bakers. The following nonassignment clause was also contained in the lease: "The Grantee [Eufaula Concrete] agrees not to assign or sub-let this lease, without the permission of the Grantors [the Bakers]." From 1980 through 1986 Eufaula Concrete mined the land and paid the appropriate royalties according to the lease.
However, in 1987, Eufaula Concrete conveyed all of its assets to Williams Brothers, Inc., a subsidiary of Blue Circle. A dispute then arose over the nonassignment clause in the lease, and the Bakers[1] brought the present action against Williams Brothers, Eufaula Concrete, and two officers of Eufaula Concrete, Hugh Stephenson and Kenneth D. Stephenson, alleging wrongful assignment of the contract, trespass, conversion, fraud and deceit, and wrongful use and occupation of Baker's land. Blue Circle, as the corporate successor to Williams Brothers, answered the complaint filed by Baker and was thereafter named as a defendant.[2] The court entered a summary judgment in favor of Williams Brothers. Subsequently, the trial court also entered a summary judgment in favor of Blue Circle as to all of Baker's claims against it.
Following the entry of summary judgment in favor of Blue Circle, Baker and Blue Circle executed a release in which Baker waived his right to appeal the summary judgment in favor of Blue Circle, and Blue Circle waived its right to proceed for court costs or attorney fees against Baker. The release specifically provided that "the parties hereto do expressly warrant and agree that this written agreement is in lieu of either party proceeding with litigation on their respective claims ... and the parties intend merely by this agreement to avoid further litigation and expense arising out of the above styled action."
The case was tried before a jury against Eufaula Concrete and the Stephensons. At the close of Baker's evidence, the trial court directed a verdict in favor of all three defendants. Baker appealed from the judgment based on the directed verdict, and this Court, in Baker v. Eufaula Concrete Co., 557 So. 2d 1228 (Ala.1990), reversed and remanded for a trial on all of the issues.
*870 After remand, but before trial, Baker amended his complaint by adding a claim against Blue Circle, Eufaula Concrete, and the Stephensons alleging a failure to comply with a provision in the lease that required the reclamation of the land. Blue Circle filed a motion for summary judgment based on the release executed between it and Baker. The trial court granted Blue Circle's motion and entered a summary judgment, making it final pursuant to Rule 54(b), Ala.R.Civ.P. It is from that final judgment that Baker now appeals.
The threshold question of whether the release is ambiguous is a question of law to be decided by the court. Alabama Power Co. v. Blount Bros. Corp., 445 So. 2d 250 (Ala. 1983); Jehle-Slauson Const. Co. v. Hood-Rich Architects & Consulting Engineers, 435 So. 2d 716 (Ala. 1983). If the release is unambiguous, its construction and legal effect is a question of law, which, under appropriate circumstances, may be decided on a motion for summary judgment. Jehle-Slauson Const., supra. In determining whether a release is ambiguous, the court must give the written words their plain and ordinary meaning. Alabama Power Co., supra.
We see no ambiguity in the release executed by Blue Circle and Baker. Thus, parol evidence is inadmissible to impeach the terms of the release, and the release will be given effect according to the intention of the parties, as adjudged by the court from what appears on the face of the document. Johnson v. Asphalt Hot Mix, 565 So. 2d 219 (Ala.1990); Carnival Cruise Lines, Inc. v. Goodin, 535 So. 2d 98 (Ala. 1988).
The plain and ordinary meaning of the words quoted above from the subject release is to relieve Baker and Blue Circle from further litigation arising out of the action brought by Baker. The complaint in that action was styled "Petition for Declaratory Judgment, Complaint for Damages, Accounting, and Other Relief." Because that action sought "other relief," including "an order declaring the respective legal positions of the parties in regard to the lease," we reject Baker's contention that the release was not intended to release Blue Circle from any future claim arising from the requirement in the lease that the land be reclaimed. "If the parties had intended to limit the release to prior contract litigation, they could have specifically stated their intention in the release." Jehle-Slauson Const., supra, at 720. Having not so limited the release, Baker cannot now assert a restriction on the scope of the release that is not found within the four corners of that document. Johnson, supra.
Based on the foregoing, the summary judgment entered by the trial court in favor of Blue Circle is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Mrs. Baker later transferred her rights and interest in the subject land to Mr. Baker and was dismissed as a party to this action.
[2] On July 1, 1987, Williams Brothers, Inc., merged with its parent corporation, Blue Circle, Inc. As a result of that merger, Blue Circle, Inc., owned 100% of the issued and outstanding stock of Williams Brothers, Inc. | August 2, 1991 |
480e9060-2887-4506-b88a-2a42cb0dfd07 | Arzonico v. Wells | 589 So. 2d 152 | 1900516 | Alabama | Alabama Supreme Court | 589 So. 2d 152 (1991)
Jeanne ARZONICO
v.
Loretta WELLS.
1900516.
Supreme Court of Alabama.
August 2, 1991.
Rehearing Denied October 18, 1991.
Julia L. Christie, Mobile, for appellant.
William L. Howell, Mobile, for appellee.
*153 INGRAM, Justice.
Loretta Wells sued Jeanne Arzonico, seeking, among other things, the dissolution of a general partnership. The partnership, known as Fashion Flair Jewelry, consisted of Wells and Arzonico, and it operated a wholesale jewelry business.
Pursuant to Wells's complaint, the trial court, by agreement of the parties, appointed Wells as the partner solely responsible for winding up the affairs of the partnership. Wells filed her verified petition for final settlement of the partnership, asking that the trial court approve the accounting that she submitted, dissolve the partnership, and award all remaining partnership assets to her. In support of her verified petition, Wells filed bank statements, deposit tickets, checks, and other written evidence.
Wells also sought a judgment against Arzonico for $19,545.08, which was the amount owed to Wells by Arzonico, according to the final accounting. Finally, Wells requested payment of attorney fees incurred by the partnership and by her as the sole winding-up partner. Wells asked that these fees be charged equally to Wells and Arzonico, even though Wells had paid a part of the fees earlier from her personal funds.
Following an ore tenus proceeding, the trial court entered an order dissolving the partnership and rendered a judgment for $3,301.00 against both Wells and Arzonico for attorney fees incurred by the partnership and by Wells as sole winding-up partner. The trial court awarded Wells sole ownership of the partnership's accounts receivable and granted Arzonico an option to purchase all partnership inventory for $3,000. The trial court awarded Wells sole ownership of the inventory upon Arzonico's failure to exercise that option. The trial court then rendered judgment in favor of Wells and against Arzonico for $17,894.58. Arzonico appealed.
The only issue raised in this appeal is whether the trial court's judgment holding Arzonico liable for one-half of the outstanding partnership liabilities and valuing the remaining inventory of the partnership at $3,000 is plainly and palpably wrong.
At the outset, we note that where ore tenus evidence is presented to the trial court in a nonjury case, a judgment based on that evidence is presumed to be correct and will not be disturbed on appeal unless a consideration of the evidence and all reasonable inferences therefrom reveals that the judgment is plainly and palpably erroneous or manifestly unjust. McInnis v. Lay, 533 So. 2d 581 (Ala.1988); Fouts v. Beall, 518 So. 2d 1236 (Ala.1987).
After reviewing the record and the briefs of the parties, we hold that the trial court's judgment is supported by the evidence. The record reveals that Wells and Arzonico entered into a written partnership agreement in June 1988. Wells, who owned a 51% interest in the partnership, was to have the recordkeeping responsibilities for the partnership, while Arzonico, who owned a 49% interest, was to select and sell the jewelry.
Wells testified that the partners intended that proceeds from sales of jewelry inventory be turned over to Wells for her to deposit them into the partnership checking account. However, Wells indicated that Arzonico had ceased complying with this agreement in January or February 1990. Wells testified that Arzonico, without Wells's consent, approval, ratification, or acquiescence, opened another checking account into which she deposited partnership assets. Further, Wells alleged that she had never authorized, approved, or ratified any withdrawals or disbursements from the checking account that Arzonico had opened. Wells stated that by March 1990 the balance in the partnership account had reached zero and that from March 1990 through October 1990 she paid all partnership obligations from her personal funds. As of October 1990, the end of the accounting period covered by Wells's petition for final settlement, the debts owed by the partnership totalled over $40,000, including specified liabilities owed by the partnership to Wells. In view of this evidence in the record, we find no error by the trial court *154 in holding Arzonico liable for one-half of the partnership liabilities.
The evidence in this case also supports the trial court's valuation of the remaining inventory of the partnership. While Arzonico contends that the trial court should have valued the partnership inventory at not less than $10,000, the trial court's judgment valuing the inventory at $3,000 is clearly supported by the record. Wells testified that although the remaining inventory cost the partnership approximately $10,000, it was presently worth no more than $3,000. Wells indicated that the remaining inventory consists of costume jewelry, for which there is little demand. Wells's testimony as to the value of the jewelry is bolstered by evidence indicating that attempts by several other individuals to sell the jewelry have proven unsuccessful.
In light of the evidence from the record set out above and the attendant presumptions of correctness accompanying that evidence, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | August 2, 1991 |
3e8e5cc4-fabf-455a-ba26-e19b4e0d9a9a | Dardess v. Blasingame | 585 So. 2d 8 | 1900070, 1900071 | Alabama | Alabama Supreme Court | 585 So. 2d 8 (1991)
James A. DARDESS
v.
Ernest N. BLASINGAME, Jr., and SouthTrust Bank of the Quad Cities.
Elizabeth DARDESS
v.
Ernest N. BLASINGAME, Jr., and SouthTrust Bank of the Quad Cities.
1900070, 1900071.
Supreme Court of Alabama.
June 28, 1991.
Rehearing Denied August 23, 1991.
*9 Arlene V. Robbins, Sheffield, for appellants.
Ralph M. Young and John B. Baugh of Gonce, Young & Westbrook, Florence, for appellees.
STEAGALL, Justice.
James A. Dardess and Elizabeth Dardess filed separate lawsuits against Ernest N. Blasingame, Jr., and SouthTrust Bank of the Quad Cities ("SouthTrust Bank"). James alleged malicious prosecution and abuse of process; Elizabeth alleged conversion and abuse of process. The trial court entered summary judgments for Blasingame and SouthTrust Bank, and the Dardesses filed separate notices of appeal.
In a prior proceeding, SouthTrust Bank had sued James A. Dardess on a promissory note and had obtained a judgment against him; SouthTrust Bank was represented in that proceeding by attorney Blasingame. Blasingame stated in his affidavit submitted in support of the motions for summary judgment in the instant cases that, after the judgment was obtained in the prior proceeding, he filed an "execution request form" in the Colbert Circuit Court, seeking seizure of a 1985 Nissan Pulsar automobile licensed in the name of James Dardess. Rose Roper, an employee of the Colbert County Sheriff's Department, stated in an affidavit that the sheriff's office received an execution order from the Colbert County circuit clerk on March 6, 1989, and that she subsequently telephoned James Dardess's secretary and told her that the sheriff's office had a writ of execution for the automobile. Roper stated that Dardess's secretary told her that the certificate of title to the automobile was in the name of James Dardess's daughter, Elizabeth Dardess, but that James would "turn in" the automobile to the sheriff's office. Roper further stated that on March 10, 1989, James Dardess drove the automobile to the sheriff's office and delivered the keys to her. Roper stated that the automobile was impounded on March 13 and that, on March 20, she telephoned Blasingame's office and told his secretary that the automobile had been impounded, but that James Dardess was claiming that the automobile was owned by Elizabeth Dardess. Roper also stated that on March 22, 1989, the automobile was released to James Dardess's secretary after a copy of the certificate of title to the automobile was presented to the sheriff's office.
The Dardesses allege that SouthTrust Bank and Blasingame abused the process of the court so as to wrongfully seize the automobile owned by Elizabeth Dardess; they argue that SouthTrust Bank and Blasingame did not properly support their summary judgment motion.
Summary judgment is appropriate only where the moving party has made a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; RNH, Inc. v. Beatty, 571 So. 2d 1039 (Ala.1990). Once a moving party makes this prima facie showing, the burden shifts to the nonmoving party to present substantial evidence in support of his position in order to defeat the summary judgment motion. Betts v. McDonald's *10 Corp., 567 So. 2d 1252 (Ala.1990).[1] In determining the propriety of summary judgment in these cases, we must test the elements of each cause of action against the materials before the trial court, to determine whether any genuine issue of material fact exists. Higgins v. Wal-Mart Stores, Inc., 512 So. 2d 766 (Ala.1987).
To recover on an action for malicious prosecution, the plaintiff must prove the following elements: 1) the institution of a judicial proceeding by the defendant; 2) lack of probable cause; 3) malice in instituting the proceeding; 4) termination of the proceeding in the plaintiff's favor; and 5) injury or damage to the plaintiff as a result of the proceeding. Hornbuckle v. Berry, 575 So. 2d 1103 (Ala.1991).
The elements of an action for abuse of process are: 1) malice; 2) the existence of an ulterior purpose; 3) an act in the use of process not proper in the regular prosecution of the proceedings; and 4) lack of probable cause. Caine v. American Life Assur. Corp., 554 So. 2d 962 (Ala.1989).
To maintain an action for conversion, the plaintiff must prove "that the defendant converted specific personal property to his own use and beneficial enjoyment, or that the defendant destroyed or exercised dominion over property to which, at the time of the [alleged] conversion, the plaintiff had a general or specific title and of which the plaintiff was in actual possession or to which he was entitled to immediate possession." Wilder v. Charles Bell Pontiac-Buick, Cadillac-GMC, Inc., 565 So. 2d 205, 206 (Ala.1990).
During the pendency of the suit on the promissory note by SouthTrust Bank against James Dardess, the title to the 1985 Nissan Pulsar automobile was transferred from James Dardess to Elizabeth Dardess. In his affidavit, Blasingame stated that after the judgment was entered against Dardess he went to the office of the Colbert County judge of probate to review the alphabetized computer printout of the names of purchasers of automobile license plates in Colbert County. He stated that the computer printout listed the 1985 Nissan automobile as licensed in the name of James Dardess and that there were no other documents indicating that any other person had purchased a tag for the automobile. Blasingame further stated that he had the execution issued under the belief that James Dardess had an ownership interest or claim to the automobile. Based on this evidence and the evidence that James Dardess drove the automobile to the sheriff's office and delivered the keys to Rose Roper, we conclude that SouthTrust Bank and Blasingame have made a prima facie showing that the elements of the plaintiffs' causes of action against them were not present.
In response to the motions for summary judgment, the Dardesses submitted the affidavits of several attorneys who stated that Blasingame should not have relied on the records in the office of the Colbert County probate judge to establish ownership. This evidence, however, is insufficient to create a genuine issue of material fact in these cases.
The trial court correctly entered the summary judgments for SouthTrust Bank and Blasingame.
AFFIRMED.
HORNSBY, C.J., and ADAMS, KENNEDY and INGRAM, JJ., concur.
[1] This case was filed after June 11, 1987. Accordingly, the "substantial evidence rule" applies to the ruling on the motion for summary judgment. Ala.Code 1975, § 12-21-12. | June 28, 1991 |
cbcb7fc7-4cab-46fa-8955-a66c50ef1161 | Phillips v. Alamed Co., Inc. | 588 So. 2d 463 | 1900031 | Alabama | Alabama Supreme Court | 588 So. 2d 463 (1991)
Samuel PHILLIPS, as administrator of the Estate of Coy Phillips, deceased
v.
ALAMED COMPANY, INC.
1900031.
Supreme Court of Alabama.
July 19, 1991.
Rehearing Denied October 4, 1991.
Charles A. Dauphin of Baxley, Dillard & Dauphin, Birmingham, for appellant.
Steadman S. Shealy, Jr. of Buntin, Cobb & Shealy, P.A., Dothan, for appellee.
ALMON, Justice.
Samuel Phillips, in his capacity as the administrator of the estate of Coy Phillips, appeals from a judgment entered in favor of the defendant, Alamed Company, Inc. ("Alamed"), in a negligence action. The questions presented are: (1) whether the court erred by directing a verdict in Alamed's favor, based on its holding that Phillips had failed to produce evidence of proximate cause; and (2) whether the court erred by sustaining Alamed's objection to testimony by a registered nurse on the issue of proximate cause.
Coy Phillips was involved in a motor vehicle accident in March 1982. She suffered relatively severe injuries to her legs and, as a result, was partially immobilized for a period after her discharge from the hospital. Upon discharge, her physician recommended that she obtain the services of a home health care service to monitor her vital signs and for assistance with her grooming and hygiene needs. Ms. Phillips's family retained Alamed to provide those services.
Alamed sent home health care aides to Ms. Phillips's house three days a week. Those aides would assist her with her bath and check her vital signs and then report to a registered nurse, who acted as their supervisor. If the registered nurse determined that Ms. Phillips's vital signs were not within acceptable limits, she would contact Ms. Phillips's physician.
*464 On April 5, 1982, Ms. Phillips complained to the aide that she was experiencing shortness of breath. The aide reported Ms. Phillips's complaint to Martha Holley, the supervising registered nurse. Ms. Holley did not report Ms. Phillips's complaint of shortness of breath to her physician, but did send an aide to Ms. Phillips's house for an unscheduled visit on the morning of April 6, 1982. The aide found Ms. Phillips to be less short of breath than she had been the previous day.
On the afternoon of April 6, Ms. Phillips's son, Samuel Phillips, came by her house to take her to her doctor's office for a scheduled appointment. On the way to the doctor's office, Ms. Phillips had a seizure and slumped in the car. She could not be resuscitated. An autopsy revealed that Ms. Phillips's death had been caused by a pulmonary embolus.
Samuel Phillips, in his capacity as the administrator of his mother's estate, filed an action against Alamed, alleging that its employees had been negligent in failing to properly assess Ms. Phillips's condition and in failing to report her complaint of shortness of breath on April 5 to her physician, and that their negligence was a proximate cause of her death. Phillips also named his mother's physician as a defendant. He alleged that the physician's failure to recognize his mother's shortness of breath as a symptom of a pulmonary embolus and to provide her with the appropriate treatment was a proximate cause of her death. However, before trial, Phillips filed a motion to dismiss his complaint as to the physician. The trial court granted his motion and entered an order of pro tanto dismissal. The record does not indicate why the physician was dismissed.
At the close of the evidence, Alamed moved for a directed verdict, arguing that Phillips had failed to offer any evidence showing that the alleged negligence of Alamed's employees was the proximate cause of Ms. Phillips death. The court granted Alamed's motion and Phillips appeals from the resulting judgment.
Phillips's first argument is that he presented evidence of proximate cause to defeat Alamed's motion for a directed verdict. Because Phillips's complaint was filed before June 11, 1987, it was governed by the "scintilla of evidence" rule. Ala. Code 1975, § 12-21-12. Phillips argues that he presented evidence that addressed the issue of proximate cause in the form of medical treatises and the testimony of Dr. Stewart Battle, a physician. He also contends that the proffered testimony of Anne Bailey-Allen, a registered nurse, would have provided evidence that Alamed's alleged negligence proximately caused Ms. Phillips's death.[1]
The treatise excerpts offered by Phillips were admitted into evidence without objection. Those excerpts described the type of pulmonary embolus that caused Ms. Phillips's death and also discussed the treatment of such an embolus. According to those treatises, that type of embolus is rarely fatal and usually responds favorably to prompt treatment.
However, those treatise excerpts speak in general terms. Phillips did not ask Dr. Battle to interpret those treatises, to apply them to the facts constituting Alamed's alleged breach of the applicable standard of care, or to apply them to the question of the proximate cause of Ms. Phillips's death. In order to establish liability, a plaintiff is required to present evidence showing both that the defendant was negligent and that the negligence was the proximate cause of the injury complained of. Hall v. Booth, 423 So. 2d 184 (Ala. 1982). Because Phillips failed to pose hypothetical questions to the physician-witness regarding those treatises, or to otherwise apply the general principles set out in them to the circumstances surrounding Ms. Phillips's death, they do not constitute evidence of proximate cause. Similarly, after reviewing Dr. Battle's testimony, this Court concludes that Dr. Battle stated only that Alamed's employees breached the applicable standard of care. He did not testify that their alleged negligence caused Ms. Phillips's death.
*465 Our recent case of Brillant v. Royal, 582 So. 2d 512 (Ala.1991), involved a somewhat similar situation. In Brillant, the trial court directed a verdict for the defendantphysician, holding that the plaintiff had failed to present substantial evidence of proximate cause. 582 So. 2d at 515. This Court reversed, holding that the testimony of two expert witnesses, when combined with the interpretation by one of those witnesses of articles in medical journals, constituted substantial evidence of proximate cause. 582 So. 2d at 518.
In the instant case, there was no competent testimony that Alamed's alleged negligence was a proximate cause of Ms. Phillips's death, nor were the medical treatise excerpts applied specifically to the circumstances of her death. As a result, there was no evidence of proximate cause.
Phillips also argues that the court erred by sustaining Alamed's objection to testimony by Anne Bailey-Allen, a registered nurse, on the issue of proximate cause. The trial court held that testimony on the issue of proximate cause could be provided only by a physician. As a general rule, decisions as to a witness's competency to testify as an expert on a particular subject are within the discretion of the trial court. Ward v. Dale County Farmers Coop., 472 So. 2d 978 (Ala.1985). Those decisions will not be reversed by this Court absent an abuse of discretion. Bell v. Hart, 516 So. 2d 562 (Ala.1987); Byars v. Mixon, 292 Ala. 661, 299 So. 2d 262 (1974).
The question of whether Alamed's failure to report Ms. Phillips's complaint of shortness of breath to her physician proximately caused her death is clearly a question involving complex medical issues. Therefore, we cannot say that the trial judge abused his discretion by requiring the testimony of a physician and, implicitly, holding that a registered nurse was not competent to testify as an expert on the issue of proximate cause. Bell, supra; Byars, supra.
Finally, Phillips contends that the trial court's ruling was error because, he contends, this Court has previously approved of testimony by nonphysician witnesses regarding causes of death. He directs this Court's attention to our opinions in Police & Firemen's Ins. Ass'n v. Mullins, 260 Ala. 173, 69 So. 2d 261 (1953); Hicks v. State, 247 Ala. 439, 25 So. 2d 139 (1946); and Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16 (1931), as support for his argument.
In response, Alamed points out that the medical cause of Ms. Phillips's death, i.e., a pulmonary embolus, was never in dispute. Therefore, it argues, the cases relied on by Phillips are not relevant to the issue of whether the trial judge abused his discretion by holding that Ms. Bailey-Allen was not competent to testify regarding proximate cause. We agree. Phillips's argument fails to recognize the important distinction between the question of what ailment or organic failure caused Ms. Phillips's death and the question of whether Alamed's alleged negligence was the proximate cause of her death.
For the reasons set out above, the directed verdict was proper, and the judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The issue of Ms. Bailey-Allen's testimony will be discussed separately. | July 19, 1991 |
e6e2582e-02c0-4375-857b-6223b7a9fa44 | Lightfoot v. McDonald | 587 So. 2d 936 | 1900599 | Alabama | Alabama Supreme Court | 587 So. 2d 936 (1991)
Thomas Jimmie LIGHTFOOT
v.
Thomas D. McDONALD.
1900599.
Supreme Court of Alabama.
August 2, 1991.
Rehearing Denied August 30, 1991.
Thomas Jimmie Lightfoot, pro se.
William W. Sanderson, Jr. and M. Ann Wagner of Lanier, Ford, Shaver & Payne, Huntsville, for appellee.
STEAGALL, Justice.
The plaintiff, Thomas Jimmie Lightfoot, appeals from a summary judgment entered in favor of the defendant, Thomas D. McDonald, in a legal malpractice suit. Lightfoot's claim stems out of McDonald's representation of Lightfoot in a 1984 criminal prosecution for rape.
The facts leading up to this appeal are as follows: In 1983, in Madison County, Alabama, Lightfoot was indicted for rape in the first degree. A trial ensued, in which the State provided physical evidence of Lightfoot's hair, semen, and clothing fibers found on the victim's body. There was testimony placing Lightfoot at the scene of the rape, and he was identified by the victim in a line-up, and that identification was corroborated by another witness. Based on this evidence, Lightfoot was convicted by a Madison County jury of rape in the first degree. On February 3, 1984, Lightfoot appealed his conviction to the Alabama Court of Criminal Appeals. That court affirmed the judgment of the trial court, without issuing an opinion. On November 30, 1984, this Court denied Lightfoot's petition for certiorari, without issuing an opinion.
*937 On October 31, 1989, Lightfoot sued McDonald in this legal malpractice action, alleging that McDonald had failed to act with ordinary skill, prudence, and diligence in representing him during his 1984 rape trial. More specifically, Lightfoot contends that McDonald breached his duty when he failed to order an independent forensic analysis of the physical evidence offered by the State against him. Lightfoot also asserts that McDonald was negligent in failing to have performed on him a deoxyribonucleic acid (DNA) test, which Lightfoot contends would have produced conclusive proof of his innocence. In addition, Lightfoot raises two other issues: He contends that in the present action he should have been allowed to complete his process of discovery prior to the trial court's ruling on the defendant's summary judgment motion, and he argues that the trial court abused its discretion in denying his request that he be allowed to attend the proceedings in this civil case.
Initially, we point out that a summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. Once the moving party has made a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to provide "substantial evidence" in support of his position. Ala.Code 1975, § 12-21-12; Rule 56, A.R.Civ.P.; Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990); Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). The trial court is required to view all of the evidence offered by the moving party in support of its motion in the light most favorable to the nonmovant. Hanners, supra, and Bass, supra. With this standard in mind, we now address the merits of Lightfoot's contentions.
We have stated before that in a legal malpractice case a plaintiff must prove, basically, the same that must be proven in an ordinary negligence suit. Moseley v. Lewis & Brackin, 533 So. 2d 513 (Ala.1988); Tyree v. Hendrix, 480 So. 2d 1176 (Ala.1985). Thus, the elements Lightfoot must prove to succeed on his claim of legal malpractice are a duty, a breach of that duty, an injury, and that the breach was the proximate cause of the injury. Moseley v. Lewis & Brackin, supra; Tyree v. Hendrix, supra; and Herston v. Whitesell, 348 So. 2d 1054 (Ala.1977). In a legal malpractice case concerning a plaintiff's criminal conviction, the plaintiff must show that but for the defendant's negligence he would have been acquitted, id., or must offer proof that at least the outcome of the case would have been different. Hall v. Thomas, 456 So. 2d 67 (Ala.1984).
Lightfoot's legal malpractice claim rests on McDonald's statement to Lightfoot that an examination of the State's physical evidence by an independent forensic expert would not aid his defense, because of the State's evidence against him. Lightfoot claims that McDonald fraudulently misrepresented the ineffectiveness of the independent analysis and cites a 1989 Huntsville Times newspaper article about a case in which charges were dismissed against a man accused of rape because of a negative DNA comparison. Lightfoot relies solely on the newspaper article as support of his claim and does not offer any evidence regarding an independent analysis of the State's physical evidence.
We find no merit to Lightfoot's claim that McDonald was negligent in not ordering DNA testing prior to Lightfoot's 1984 trial. Our research reveals that the process of DNA testing was first used in a criminal trial for the charge of rape in 1985, in England. See Thompson, DNA's Troubled Debut, 8 Cal.Law., June 1988 at 36, 40. See, also, Kennedy v. State, 545 So. 2d 214 (Ala.Cr.App.1989). We decline to declare McDonald negligent by failing to request or obtain a test that had never been used as evidence in a criminal trial anywhere in the world, must less in the United States, at the time of Lightfoot's 1984 trial. DNA testing is a recent scientific development, and it is doubtful that any licensed attorney in the United States was familiar with the process in 1984.
*938 Thus, Lightfoot has failed to provide substantial evidence to support his claim of legal malpractice.
Lightfoot next contends that the trial court erred in entering a summary judgment in favor of McDonald before he had the opportunity to complete discovery. More specifically, Lightfoot alleges that the "rape kit," which contains certain physical evidence introduced at the 1984 rape trial, was crucial to his legal malpractice claim and that the trial court prematurely ruled on McDonald's summary judgment motion before he could obtain the rape kit evidence. We disagree with Lightfoot's contention.
"The mere pendency of discovery does not bar summary judgment." Reeves v. Porter, 521 So. 2d 963, 965 (Ala.1988). The burden of showing that certain items of evidence are crucial to a case is upon the nonmoving party, in this case Lightfoot. Id. See Rule 56(f), A.R.Civ.P. Lightfoot filed an affidavit pursuant to Rule 56(f) and stated that the rape kit contained evidence crucial to his case. However, Lightfoot's affidavit does not demonstrate that the rape kit contains crucial evidence or any evidence that would support his claim against McDonald. Thus, Lightfoot failed to prove that the matter sought by discovery was, or could have been, crucial to his case. Based on the evidence before us we find no error by the trial court regarding this issue.
Finally, Lightfoot claims that the trial court abused its discretion in denying his request to be present during the trial proceedings on his legal malpractice claim. We disagree.
Initially, we point out that there was no trial in this case; thus, Lightfoot has not been prejudiced in any way by the denial of the request to be present. Moreover, this Court has previously stated that prisoners do not have a right to attend proceedings in civil actions initiated by them that are unrelated to their confinement. Hubbard v. Montgomery, 372 So. 2d 315 (Ala.1979); Whitehead v. Baranco Color Labs, Inc., 353 So. 2d 793 (Ala.1977). Lightfoot's contention is without merit.
Therefore, the judgment of the trial court is due to be, it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur. | August 2, 1991 |
5477e4cb-c924-4fac-835b-381ba8fdf919 | Livingston v. Tapscott | 585 So. 2d 839 | 1900522 | Alabama | Alabama Supreme Court | 585 So. 2d 839 (1991)
Jerry L. LIVINGSTON
v.
Doris TAPSCOTT.
1900522.
Supreme Court of Alabama.
July 26, 1991.
*840 Steven E. Haddock of Hardwick, Knight & Haddock, Decatur, for appellant.
Robert Straub and Cynthia Lee Almond of Russell, Straub & Kyle, Decatur, for appellee.
MADDOX, Justice.
The basic issue in this case is whether there was sufficient evidence presented to show that monies received by a man from a woman during the time the two were living in an adulterous relationship created an indebtedness between the two, as she claims and as the trial judge apparently found. The man claims the money was a gift. Also presented is the question whether the trial court awarded Tapscott, the woman, an amount in excess of the damages proven at trial.
In May 1988, Doris Tapscott and Jerry Livingston began a relationship. Tapscott was married at the time. In July 1988, Tapscott left her husband and filed for divorce. Although Tapscott began living with Livingston at this time, her divorce was not made final until January 1989. Between July 1988 and May 1989, Tapscott says, she allowed Livingston to borrow from her amounts totaling $17,000. Livingston did not repay any of the money Tapscott says she lent to him.
On March 20, 1990, Tapscott sued Livingston in the Morgan Circuit Court for money due on an open account. The case was tried before the court without a jury, and the court, after hearing the evidence, entered a final judgment in favor of Tapscott for $18,396.10, plus costs. Livingston appealed.
The evidence presented by Tapscott reveals that she often gave money to Livingston, at his request, to pay his business debts. Tapscott attested to the amounts of money that she furnished to Livingston, and she produced bank statements, canceled *841 checks, and deposit slips to support her claim. Livingston acknowledged that he benefited from these payments, and Tapscott also testified that Livingston promised to repay her.
Our scope of review, of course, is well settled. The trial judge's findings of fact, in an ore tenus case, are entitled to a presumption of correctness, and a judgment based on those findings will be affirmed unless it is palpably wrong, without supporting evidence, or manifestly unjust. Davis v. Genuine Parts Co., 567 So. 2d 1275, 1276 (Ala.1990); Johnson v. Langley, 495 So. 2d 1061, 1066 (Ala.1986).
Livingston presents three issues on appeal. He initially argues that the alleged implied contract requiring him to repay money given to him by Tapscott is in violation of public policy. He contends that the money he got from Tapscott was received from her while she was involved with him in an adulterous relationship; thus, he says, any implied contract between them is unenforceable because it contravenes public policy. We disagree. The "public policy" principle cited by Livingston must be applied with caution and only in cases in which the public interest would be injured to a degree that private rights should yield to the public interest. Colston v. Gulf States Paper Corp., 291 Ala. 423, 282 So. 2d 251 (1973). The facts in this case do not warrant the application of this principle.
Livingston next contends that Tapscott failed to satisfy her burden of proving the existence of a contract that would enable her to recover from him. A plaintiff establishes a prima facie case in an action for money due on open account by presenting evidence that money was delivered to the defendant, that it was a loan, and that it has not been repaid. 58 C.J.S. Money Lent § 7 (1948). "Ordinarily, an unexplained payment of money will be presumed to be made in payment of debt, or as a loan, rather than as a gift." Bowline v. Cox, 248 Ala. 55, 26 So. 2d 574 (1946). This presumption arises in relationships between parties in which the payor naturally places confidence in the payee that the money will be repaid. Furthermore, we recognize the general rule that if no time is stipulated, a loan is "presently payable." Lindsey v. Hamlet, 235 Ala. 335, 179 So. 234 (1938). We hold that there was sufficient evidence upon which the trial court could find that a debtor-creditor relationship existed in this case between the two parties.
Livingston's final claim is that the trial court awarded Tapscott an amount in excess of the damages actually proven at trial. Tapscott alleged in her complaint that Livingston owed her $17,000. The trial court, after weighing the evidence, awarded her $18,396.10. Livingston maintains that this sum is excessive and is unsupported by the evidence.
A party claiming damages has the burden of establishing by competent evidence that he or she is entitled to damages and the amount of those damages. Segars v. Reaves, 567 So. 2d 249 (Ala.1990); Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965). The plaintiff further has the burden of producing sufficient evidence to allow the factfinder to calculate damages without basing its award on guesswork. Aldridge v. Dolbeer, 567 So. 2d 1267 (Ala.1990). We hold that the exhibits submitted by Tapscott adequately support the judgment of the trial court. Rule 54(c), A.R.Civ.P., provided that the court shall award the relief the evidence shows the party is entitled to, even if the party has not requested that relief. The trial court's judgment is not palpably wrong, without supporting evidence, or manifestly unjust, nor is it against the great weight of the evidence. Therefore, the judgment of the trial court awarding Tapscott the amount of $18,396.10 is affirmed.
AFFIRMED.
HORNSBY, C.J., and HOUSTON, KENNEDY and INGRAM, JJ., concur. | July 26, 1991 |
93789619-0582-4e38-9f6d-9d1adc7e4605 | Fraser v. Reynolds | 588 So. 2d 448 | N/A | Alabama | Alabama Supreme Court | 588 So. 2d 448 (1991)
Russell M. FRASER
v.
R. Scott REYNOLDS, et al.
Bobby R. LEWIS
v.
R. Scott REYNOLDS, et al.
88-1466, 88-1522.
Supreme Court of Alabama.
July 26, 1991.
Rehearing Denied August 30, 1991.
*449 H. Harold Stephens of Lanier Ford Shaver & Payne, Huntsville, for appellant Bobby R. Lewis.
F.A. Flowers III and Paul P. Bolus of Burr & Forman, Birmingham, for appellant Russell M. Fraser.
Gary L. Rigney of Rigney, Garvin & Webster, Huntsville, for appellees R. Scott Reynolds, et al.
HOUSTON, Justice.
This case is before us once again for a final determination as to whether the jury's verdict was excessive. See Fraser v. Reynolds, 588 So. 2d 442 (Ala.1990), wherein we affirmed the judgment with respect to the liability issues that were raised by the defendants, Bobby R. Lewis and Russell M. Fraser, but remanded the case for a determination by the trial court as to whether the damages were excessive, in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989). For the following reasons, we hold that the punitive damages awarded were not excessive, but that the compensatory damages awarded to two of the plaintiffs, R. Scott Reynolds and Gregory S. Windham, were excessive.
The defendants filed post-judgment motions challenging the verdict as being excessive. The trial court denied those motions, without comment. With regard to the compensatory damages award, the defendants argued on original submission of these appeals that the jury had failed to take into consideration certain tax benefits that, they said, the evidence showed had been enjoyed by the plaintiffs as a result of their investments in the partnership. At trial, the court instructed the jury to take any proven tax benefits into account, and our review of the record caused us to question why the jury had apparently not taken any tax benefits into consideration. In addition, Lewis argued that the evidence did not support an award against him of twice the amount of compensatory damages awarded against Fraser. Finally, with regard to the punitive damages awards, both defendants argued that the evidence did not support the amount awarded by the jury, and Lewis argued, in particular, that the evidence did not support the award against him of twice the amount of punitive damages awarded against Fraser. Concerned that the verdict might be excessive, we remanded the case for a hearing on the excessiveness issue.
After holding an evidentiary hearing and upon considering arguments of counsel, the trial court declined to reduce the verdict, stating in pertinent part:
In Green Oil Co. v. Hornsby, supra, this Court, discussing the circumstances *450 under which a jury's verdict loses its constitutional protection and, thus, may be set aside, stated in pertinent part as follows:
"`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 A.R.Civ.P. 59(f), and this Court, pursuant to Code 1975, § 12-22-71, may interfere with it. At what point, however, will a damages award require a finding of a flawed jury verdict?
"`"First, it may include or exclude a sum which is clearly recoverable or not as a matter of law, or which is totally unsupported by the evidence, where there is an exact standard or rule of law that makes the damages legally and mathematically ascertainable at a precise figure. In these situations, a trial court may, and should, reduce or increase the amount of the verdict to reflect the amount to which the parties are entitled as a matter of law. Second, a jury verdict may be flawed because it results, not from the evidence and applicable law, but from bias, passion, prejudice, corruption, or other improper motive...."
"`Hammond v. City of Gadsden, 493 So. 2d 1374, 1378 (Ala.1986).' [Quoting City Bank of Alabama v. Eskridge, 521 So. 2d 931, 932-33 (Ala.1988).]
539 So. 2d at 221-22.
The Court in Green Oil went on to expound on the factors to be considered when reviewing an award of punitive damages:
"`(1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred. If the actual or likely harm is slight, the damages should be relatively small. If grievous, the damages should be much greater.
"`(2) The degree of reprehensibility of the defendant's conduct should be considered. The duration of this conduct, the degree of the defendant's awareness of any hazard which his conduct has caused or is likely to cause, and any concealment or "coverup" of that hazard, and the existence and frequency of similar past conduct should all be relevant in determining this degree of reprehensibility.
"`(3) If the wrongful conduct was profitable to the defendant, the punitive damages should remove the profit and should be in excess of the profit, *451 so that the defendant recognizes a loss.
"`(4) The financial position of the defendant would be relevant.
"`(5) All the costs of litigation should be included, so as to encourage plaintiffs to bring wrongdoers to trial.
"`(6) If criminal sanctions have been imposed on the defendant for his conduct, this should be taken into account in mitigation of the punitive damages award.
"`(7) If there have been other civil actions against the same defendant, based on the same conduct, this should be taken into account in mitigation of the punitive damages award.'
539 So. 2d at 222-24.
Because the right to trial by jury in civil cases is guaranteed by Article I, § 11, of the Alabama Constitution, neither the trial court, nor this Court, can interfere with a jury's verdict unless it is constitutionally flawed. As previously noted, a verdict is constitutionally flawed if it includes a sum that is clearly not recoverable as a matter of law, or if there is an exact standard or rule of law that makes the damages legally and mathematically ascertainable at a precise figure and the damages are set at something other than that precisely ascertainable figure. When a verdict is unconstitutionally excessive, the trial court, or this Court, if the trial court refuses to act, must reduce the amount of the verdict to reflect the amount to which the party in whose favor it is returned is entitled as a matter of law.
Our review of the record indicates that the defendants proved, through testimony and documentary evidence, that the maximum amount of compensatory damages due to Reynolds was $5,671.66, representing his $14,100 investment in the partnership less $8,428.34 in tax benefits that he enjoyed by virtue of his investment losses. Likewise, our review of the record indicates that the defendants proved that the maximum amount of compensatory damages due to Windham was $10,410.25, representing his $28,200 investment in the partnership less $17,789.75 in tax benefits that he enjoyed by virtue of his investment losses. Although the record shows that the defendants also proved that Kenneth Tichansky and Teresa Scholz enjoyed certain tax benefits as a result of their investments in the partnership, the record does not show that the jury was presented with sufficient evidence from which to determine the actual amount of those benefits. Furthermore, our review of the record convinces us that the jury's apportionment of the compensatory damages, under the law of this case, was supported by the evidence.[1] Therefore, we conclude that the compensatory damages awards in favor of Reynolds against Fraser and Lewis should have been reduced by the trial court to $1,890.55 and $3,781.11 respectively, and that the compensatory damages awards in favor of Windham against Fraser and Lewis should have been reduced to $3,470.08 and $6,940.17 respectively.
As previously noted, a jury's assessment of punitive damages also loses its constitutional protection if it is flawed. An assessment of punitive damages is constitutionally flawed, and, thus, must be reduced by the court, if it is either the result of bias, passion, prejudice, corruption, or other improper motive, or, although the result of a properly functioning jury, is nonetheless excessive because it exceeds an amount that will accomplish society's goals of punishment and deterrence. The court's duty to reduce an unconstitutionally excessive punitive damages award was recently cited by the United States Supreme Court as a major reason for that Court's rejecting a due process challenge to Alabama's system of post-judgment review of punitive damages awards. See Pacific Mutual *452 Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
The trial court found that the jury's assessment of punitive damages in this case was not the result of bias, passion, prejudice, corruption, or other improper motive, and our review of the record convinces us that the trial court's finding in this regard was not erroneous. Furthermore, after carefully reviewing the evidence in light of the factors set out in Green Oil Co. v. Hornsby, supra, for determining whether an award of punitive damages is excessive, we cannot say that the amount of punitive damages assessed by the jury exceeded an amount that will accomplish society's goals of punishment and deterrence.
The evidence was sufficient to warrant submitting the question of punitive damages to the jury, and the record reveals that the defendants' culpability was probably found by the jury to stem from their recklessness in involving themselves in the business ventures, or, characterized more appropriately, the misadventures, of Joe Mitchell,[2] and from allowing Mitchell to jeopardize the plaintiffs' interests in the partnership. The potential for harm here was great, in that each of the plaintiffs could have conceivably had a greater economic loss as a result of his or her investments in the partnership. Likewise, the actual economic loss to each of the plaintiffs was not insignificant. The jury awarded Tichansky $7,050, the amount of his investment in the partnership; it awarded Scholz $10,525, the amount of her investment in the partnership;[3] Reynolds's loss, when adjusted by subtracting the amount of tax benefits that he enjoyed by virtue of his investment, was $5,671.66; and Windham's loss, when adjusted by subtracting the amount of tax benefits that he enjoyed by virtue of his investment, was $10,410.25. Finally, the evidence, as developed at the post-judgment hearing, shows that both of the defendants are doctors, each earning in excess of $200,000 per year and each owning equity in certain assets, which in Fraser's case amounts to approximately $213,600 and in Lewis's case amounts to approximately $48,000.
A verdict awarding punitive damages is not considered to be unconstitutionally excessive until the defendant against whom it has been rendered produces evidence that the amount is greater than a sum necessary to accomplish society's goals of punishment and deterrence. Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1986), is an example of a case where the verdict was shown to be excessive. In the present case, however, the trial court, considering the culpability of the defendants, the potential for harm, the actual harm that resulted from the defendants' actions, and the defendants' individual earnings and assets, found from conflicting evidence that the punitive damages assessed against the defendants did not exceed an amount necessary to punish them for their actions and to deter them and others similarly situated from engaging in similar conduct in the future. After a thorough review of the evidence, we are not convinced that the trial court was wrong.
Accordingly, we affirm the judgment pertaining to the assessment of punitive damages. However, unless, within 30 days from this date, Reynolds accepts and files a remittitur, pursuant to Ala.Code 1975, § 12-22-71, of $2,808.45 of his compensatory damages award against Fraser and $5,618.89 of his compensatory damages award against Lewis, the judgment for Reynolds pertaining to the award of compensatory damages will be reversed and the case remanded. Likewise, unless, within 30 days from this date, Windham accepts and files a remittitur of $5,929.92 of his compensatory damages award against Fraser and $11,859.83 of his compensatory *453 damages award against Lewis, the judgment for Windham pertaining to the award of compensatory damages will be reversed and the case remanded. On acceptance and filing of the remittiturs specified above, the judgment will stand affirmed for the reduced amount.
AFFIRMED IN PART AND AFFIRMED CONDITIONALLY IN PART.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
MADDOX, J., concurs in part and dissents in part.
MADDOX, Justice (concurring in part and dissenting in part).
I concur in that portion of the opinion relating to compensatory damages, but I would not affirm the judgment awarding punitive damages in the sum of $375,000. Instead, I would condition any affirmance of that judgment on the filing of a remittitur.
On remand, the trial court, in refusing to reduce the award of punitive damages, stated:
The trial court used boilerplate language in stating that it applied the Green Oil factors. I cannot tell which factors it used and what conclusions it reached in that regard.[4] In any event, the trial court refused to reduce the award. This Court also states, among other things, that it has conducted an independent review of the award in light of the Green Oil factors; it also gives as one of its reasons for affirming that the defendants are "doctors, each earning a salary in excess of $200,000 per year and each owning equity in certain assets, which in Fraser's case amounts to approximately $213,600 and in Lewis's case amounts to approximately $48,000." Assuming those facts are true, do they show that it was necessary to sustain the awards in order to accomplish society's goals of punishment and deterrence? I think not, especially here, because another jury did not think such a stiff penalty was appropriate. This case was tried twice, and the record shows that the first jury that tried this case set the total penalty at $30,000, and these plaintiffs made no claim on the original appeal that the award of $30,000 as a penalty was inadequate. How can the trial court and this Court approve this higher award without at least some statement of the reasons?
The result that has been reached in this casethe awarding to the plaintiffs of a total of $375,000 in punitive damages, when the first jury that heard this case awarded only $30,000shows why this Court should very carefully scrutinize awards of punitive damages by juries: Juries are given a standardless discretion in imposing such penalties in civil cases.
The role of the court and the jury in the awarding of punitive damages has received increased attention by the Alabama legislature, the trial courts, this Court, and the United States Supreme Court. One of the first cases to address the issue of burgeoning punitive damages was Shiloh Const. Co. v. Mercury Const. Corp., 392 So. 2d 809 (Ala.1980) (Torbert, C.J., and Maddox, J., dissenting), in which a jury had awarded damages totalling $559,966.61, and the trial judge had granted a remittitur. A majority of this Court reversed the judgment and *454 reinstated the verdict, even though the trial judge had found that the verdict was against the great weight and preponderance of the evidence. The Shiloh Court, even though embarking on what I thought was new territory and ignoring what I believed to be clear legal authority to the contrary, did not establish any standards for either a jury or reviewing courts to use in determining whether a particular award should or should not be set aside or a remittitur required. After Shiloh, this Court continued to review awards without establishing any specific guidelines for review. As author of the opinion in General Motors Corp. v. Edwards, 482 So. 2d 1176, 1199 (Ala.1985), I noted that this Court had not adopted any standards to govern such reviews of jury verdicts, stating the following:
482 So. 2d at 1199. (Emphasis original). This Court, in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1986), adopted some factors for reviewing courts to use in deciding whether to interfere with a jury award of punitive damages, after litigants had levelled attacks on the Alabama practice as violating the United States Constitution.
As I stated in my special concurring opinion in Green Oil Co., 539 So. 2d 218, 224, the factors set out in that case are legitimate factors that a trial judge may consider in reviewing a claim that a jury has awarded an excessive amount in punitive damages. I stated then, however, and I restate now, that "[Green Oil] does not address the question of what a jury can consider when determining the proper amount to award."
The latest expression on the constitutional question relating to the excessiveness of punitive damages awards is contained in the landmark decision of the Supreme Court of the United States in Pacific Mutual Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), a case appealed from this Court. In Haslip, this Court had affirmed an award of punitive damages against an insurance company whose agent had taken a policyholder's premiums and had not remitted them to the company; the company refused to accept responsibility for the conduct of its agent and refused to pay policy benefits to Ms. Haslip. The Supreme Court of the United States affirmed the judgment of this Court, but I believe it affirmed only because that Court thought that Alabama's review procedures were sufficient to sustain the award made in that case. If Pacific Mutual says anything, it says that each case must be approached on a case-by-case basis, and it is clear to me that if the trial courts and the appellate courts do not, in fact, conduct an adequate and meaningful review of awards of punitive damages that are alleged to be disproportionate to the actual damages, then a defendant's due process rights can be seriously jeopardized. Even though the trial court and this Court have conducted a review, I will explain why I believe that the review was neither adequate nor meaningful in this particular case a case in which the reviews gave no consideration to the fact that another jury, hearing the same evidence, and being given the same instructions on the law relating to the award of punitive damages, made an award that was $345,000 less than the amount awarded by the jury in this case.
The majority sustains the award on the following ground:
"The evidence was sufficient to warrant submitting the question of punitive *455 damages to the jury, and the record reveals that the defendants' culpability was probably found by the jury to stem from their recklessness in involving themselves in the business ventures.... The potential for harm here was great, in that each of the plaintiffs could have conceivably had a greater economic loss as a result of their investments...." (Emphasis added.)
The Court classifies the conduct here as "recklessness in involving themselves in the business ventures." Is "reckless" conduct so culpable as to require the imposition of a penalty in the total sum of $375,000? I think not. "Recklessly" is defined in our criminal statutes at § 13A-2-2(3), Ala.Code 1975, as follows:
I accept the fact that the Supreme Court of the United States has essentially said, in Haslip, that juries can, based on the type of instruction given in this case, make awards of punitive damages, but, as I read the Haslip case, the Supreme Court allows such jury awards only if there is an adequate and meaningful review by the trial and appellate courts.
I cannot accept the proposition that the culpable conduct in this case merits punishment in the sum of $375,000 and I cannot find such an award to be consistent with the first jury's finding of culpability, that jury awarding only $30,000. Clearly, the facts surrounding the culpable conduct in this case can in no way compare with the culpable conduct in Haslip. The culpable conduct there was certainly more than "recklessness in involving [oneself] in the business ventures," the culpable conduct found to justify the award in this case. Comparing the facts of this case against the facts of Haslip, or to some of the facts of other cases that have been reviewed by this Court, I cannot find any semblance of similarity insofar as the culpability of conduct is concerned.
What particularly bothers me, as I have already indicated, is the fact that a previous jury, hearing the same evidence, being instructed the same on the law of the case with regard to punitive damages, found that the amount needed to accomplish society's goals of punishment and deterrence was the total sum of $30,000. The jury in this case sets the punishment at $375,000.
If this were a criminal case rather than a civil case, there would be a serious question whether these defendants could be punished more than they were punished initially. In North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), the Supreme Court of the United States held that a defendant who had been successful in a post-conviction proceeding in getting his conviction set aside, could not be given a higher sentence on retrial if the higher sentence was based on vindictiveness.[5]
I mention the North Carolina v. Pearce principle because there is authority for the proposition that the imposition of a civil penalty for the same conduct that has been punished criminally can present double jeopardy problems. Punitive damages serve punitive goals, Day v. Woodworth, 54 U.S. (13 How.) 363, 14 L. Ed. 181 (1851), and "the labels `criminal' and `civil' are not of paramount importance." United States v. Halper, 490 U.S. 435, 447, 109 S. Ct. 1892, 1901, 104 L. Ed. 2d 487 (1989) (imposition of a statutory civil fine on a defendant who had previously been convicted and *456 fined in a criminal case for the same conduct violated the Double Jeopardy Clause).
In Halper, the Court, in determining whether the civil fine imposed in that case constituted punishment, said the following:
"We cast no shadow on these timehonored judgments. What we announce now is a rule for the rare case, the case such as the one before us, where a fixedpenalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the *457 civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as `punishment' in the plain meaning of the word, then the defendant is entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment. We must leave to the trial court the discretion to determine on the basis of such an accounting, the size of the civil sanction the Government may receive without crossing the line between remedy and punishment. Cf. Morris v. Mathews, 475 U.S. 237, 106 S. Ct. 1032, 89 L. Ed. 2d 187 (1986) (reducing criminal conviction to lesser included offense in order to avoid double jeopardy bar); see also Peterson v. Richardson, 370 F. Supp. 1259, 1267 (N.D.Tex 1973), aff'd sub nom. Peterson v. Weinberger, 508 F.2d 45 (C.A.5), cert. denied sub nom. Peterson v. Mathews, 423 U.S. 830, 96 S. Ct. 50, 46 L. Ed. 2d 47 (1975) (imposing less than full civil sanction authorized by False Claims Act when the full sanction would be unreasonable and not remotely related to actual loss). While the trial court's judgment in these matters often may amount to no more than an approximation, even an approximation will go far towards ensuring both that the Government is fully compensated for the costs of corruption and that, as required by the Double Jeopardy Clause, that defendant is protected from a sanction so disproportionate to the damages caused that it constitutes a second punishment.
490 U.S. at 447-451, 109 S. Ct. at 1901-1903.
As I read Halper, the Court holds that the imposition of a civil penalty can have constitutional implications, and clearly the Haslip case recognizes this same principle. As I view the matter, the question becomes: Should a court reviewing an award of punitive damages in a civil case give any consideration to the fact that a prior jury had awarded a sum substantially less than the sum awarded by a second jury and that in the first appeal the plaintiffs made no challenge to the adequacy of the initial award? I think that the answer to that question, of course, is in the affirmative.
Although I do not suggest that an award of punitive damages is res judicata as to amount of damages, I would suggest that if the facts of a case show that the jury in an earlier trial of the case has assessed punitive damages in an amount substantially different from the amount assessed by a *458 subsequent jury, as is true in this case, then the fact of that disparity in amounts should, at least, be considered by the reviewing trial court, and by this Court, in determining whether the second award is excessive.[6]
The issue presented by this case, of course, as the Supreme Court of the United States said in Haslip, will not go away.[7] I believe that this Court, although conducting a review of the award, has failed to take into consideration some of the principles that I think are applicable in this case. Consequently, I would order a remittitur as a condition of affirmance, and I must dissent as to that particular aspect of the majority opinion.
[1] We pointed out in our original opinion in this case that the apportioned verdict "would be illegal and, thus, would have to be set aside but for the fact that the record shows the issue to have been waived by the defendants at trial," 588 So. 2d at 445, by their failure to object to the court's charge allowing apportionment.
[2] As we noted in our original opinion, Mitchell failed to appear at trial and a default judgment was entered against him. Mitchell did not appeal from that judgment.
[3] As previously noted, the defendants proved that Tichansky and Scholz also enjoyed certain tax benefits as a result of their investments, but failed to present to the jury sufficient proof of the amount of those benefits. Had that proof been provided, the jury's award of compensatory damages to Tichansky and Scholz would have to be reduced accordingly.
[4] In other cases, trial judges have detailed their reasons for refusing to reduce an award.
[5] In a subsequent case, arising out of an appeal from this Court, the Supreme Court of the United States did approve the imposition of a higher sentence upon a retrial of the case, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), but only because sentence concessions had been made regarding the defendant's earlier plea of guilty upon which the first sentence was imposed.
[6] I recognize that this Court has affirmed a punitive damages award when, on retrial, a subsequent jury has awarded more in punitive damages than did a prior jury. See, Winn-Dixie Montgomery, Inc. v. Henderson, 395 So. 2d 475 (Ala.1981) ($14,000 awarded by first jury (353 So.2d 1380) and $45,000 awarded on retrial). I dissented in that case because I did not think the conduct there shown was so culpable as to justify any award of punitive damages, believing as I do in this case, that punitive damages should bear some relationship to the culpability of the defendant's conduct.
[7] In Haslip, Justice Blackmun, authoring the majority opinion, said:
"[W]e cannot say that the common-law method for assessing punitive damages is so inherently unfair as to deny due process and to be per se unconstitutional...."
"This, however, is not the end of the matter. It would be just as inappropriate to say that, because punitive damages have been recognized for so long, their imposition is never unconstitutional [citation omitted].... We note once again our concern about punitive damages that `run wild.' Having said that, we conclude that our task today is to determine whether the Due Process Clause renders the punitive damages award in this case constitutionally unacceptable."
__ U.S. at ___, 111 S. Ct. at 1043. | July 26, 1991 |
a8616771-3f34-4937-ba66-290736ce5f3d | Hollis v. Tomlinson | 585 So. 2d 862 | 1900504 | Alabama | Alabama Supreme Court | 585 So. 2d 862 (1991)
Dewey R. HOLLIS and Nadine Hollis
v.
B.S. TOMLINSON and Lois N. Tomlinson.
1900504.
Supreme Court of Alabama.
August 2, 1991.
*863 John O. Morrow, Jr., Florence, for appellants.
William Musgrove, Florence, for appellees.
STEAGALL, Justice.
B.S. and Lois N. Tomlinson sued Dewey R. and Nadine Hollis and Ruth Hollis Gifford on July 17, 1987, alleging that they had acquired an easement by prescription across property owned by the Hollises and Gifford, specifically an old log road on unimproved land, called "Ridge Road." The Hollises and Gifford filed a counterclaim, alleging trespass, conversion, and intentional and willful cutting and destroying of trees. See Ala.Code 1975, § 35-14-1. Ruth Gifford died on October 9, 1988, and Joe Gifford, to whom she had conveyed the property at issue on March 2, 1988, was substituted as a defendant on October 14, 1988. After an ore tenus hearing, the trial court held that the Tomlinsons had obtained an easement 10 feet wide.
The Hollises and Gifford appealed, arguing that they were entitled to a jury trial on the Tomlinsons' complaint. This Court agreed, and reversed and remanded the case for a jury trial on the issue of whether the Tomlinsons were entitled to an easement by prescription. See Hollis v. Tomlinson, 540 So. 2d 51 (Ala.1989).
On remand, the jury awarded the Tomlinsons a 12-foot easement, but also found that the Tomlinsons had trespassed on the Hollises' and Gifford's property and awarded the Hollises $750 and Gifford $3,000 in compensatory damages. The Tomlinsons moved for a J.N.O.V. with regard to the damages awarded to Gifford, based on the fact that the damage to the trees had occurred before Ruth Gifford conveyed the property to Joe Gifford. The Hollises and Gifford filed a similar motion alleging insufficiency of the evidence to establish an easement by prescription in the Tomlinsons' favor. The trial court granted the Tomlinsons' motion, but denied the Hollises' and Gifford's motion.
Only the Hollises appeal. They argue that the Tomlinsons failed to produce sufficient evidence that their use of the property was adverse and that it was under a claim of right. Specifically, the Hollises contend that the Tomlinsons' use of Ridge Road was merely permissive and that it was pursuant to an implied license.
This Court recently restated the elements necessary to prove an easement by prescription:
"`To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use is adverse to the owner.'"
Apley v. Tagert, 584 So. 2d 816, 818 (Ala. 1991) (citation omitted) (emphasis added). If the evidence is insufficient as to any of these elements, and the party seeking the J.N.O.V. moved for a directed verdict on that ground, then a J.N.O.V. is proper. King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So. 2d 714 (Ala. 1987). Stated differently, the denial of a J.N.O.V. is sustainable only if there is sufficient evidence to support the challenged theory.
The record discloses that, prior to the present controversy, the Hollises and the Tomlinsons had enjoyed an amicable, pleasant relationship. It is undisputed that the Tomlinsons used Ridge Road to haul such things as hay and timber and to move cattle between their north farm and their south farm and that the Hollises were aware of such use. The record does not disclose, however, that that use was anything other than permissive. In fact, Mr. Tomlinson himself admitted on two occasions that he had asked the Hollises' son, John, for permission to "work the road":
*864 "Q. Now in the year 1972, did you have any conversation with John Hollis about doing some work on that Ridge Road?
"A. We were in agreement on it. I told him I would mark it out, everywhere I could see through there, and we would improve the road.
"Q. Okay, and did he make any offer to you of use of equipment or anything?
"A. No. I talked it over with my employee. He had been having some trouble with that bulldozer. And we decided it might be expensive to use it. And it was a very big bulldozer, and so we never did use it.
"Q. Isn't it true that shortly before this lawsuit was filed, that you talked to Mr. John Hollis, who is the son of Dewey Hollis, asking him to ask his father to allow you to haul timber out this old log road that we have got marked in red?
"A. I asked him for permission to work the road so I could haul timber out. I didn't ask him permission to haul timber out.
"Q. The road had been unused for so long that it wasn't in any shape for you to cross over it, isn't that right?
"A. It hadn't been used as much in the last two or three years as it had previously to that.
"Q. And you asked Mrs. Ruth Gifford about it too, didn't you?
"Q. How many conversations did you have with John Hollis about doing this before they gave you permission, as you say, to work the road?
"A. I asked him the first time. I went back a week or two later and asked him had he talked to his dad about it. He said he hadn't got around to it. So I went back the next time and talked with him. It would be three times all told.
"A. She agreed to it rather reluctantly. And she didn't want me damaging things back there. I could work the road, but she wanted it to stay as near like it was as it could stay."
We held in a recent case based on the ore tenus rule, Carr v. Turner, 575 So. 2d 1066 (Ala.1991), that the trial court was not plainly and palpably wrong in finding that the use of a driveway by a neighbor had been permissive only and that there was no easement by prescription, where the evidence was conflicting regarding whether the neighbor himself or his father had asked permission to use the driveway. Thus, we find the instant case even more lacking as to proof of adverseness, in light of Mr. Tomlinson's own admission that he first sought the Hollises' permission before "working the road."
It is also clear that the Tomlinsons did not use the road under a claim of right but, rather, recognized a superior right of ownership in the Hollises. The reason Mr. Tomlinson did not clear the road in 1972 is that Dewey Hollis asked him not to work on it:
"A. Well, it wasn't. I didn't start on it right then, even though Mr. John Hollis offered me the use of his bulldozer to clean the right-of-way out. My employ[ee] himself decided it might be more expensive to keep that bulldozer going than we wanted to get involved in.
"Then Mr. John Hollis came to me after some events. He came to me *865 and said, `Let's hold up on that road work.'
"A. Well, Mr. Roy Patterson that owned land in Section Bottoms had passed away. He [Hollis] made the statement to me that if there was not a good road down there, not a good access down there, that the land was going to have to sell for taxes, and he was interested in buying it.
"And he didn't want the road worked right then, because it would go cheaper if it wasn't worked at that time."
The employee with whom Mr. Tomlinson discussed using the Hollises' bulldozer, Donald Butler, confirmed Mr. Tomlinson's acquiescence to Mr. Hollis's request:
"Q. Were you present during any conversations between Mr. B.S. Tomlinson and John Hollis?
"A. Before it ever came down to building the road, Mr. Hollis had changed his mind a little bit on it, didn't want us to start on the road yet.
"A. He mentioned something about some landowner in the bottoms passed away, and they thought they was going to sell his place. And he was wanting to wait until after he received his soil before they built the road in there."
Although we look more to actions rather than words in determining whether a party has asserted a claim of right, Bearden v. Ellison, 560 So. 2d 1042 (Ala.1990), and Robertson v. Fincher, 348 So. 2d 466 (Ala.1977), we find the following testimony by Mr. Tomlinson illuminating:
"Q. Prior to the lawsuit being filed, you never told Dewey Hollis or Ruth Gifford that you claimed a right over their property, whether they liked it or not, did you?
"Q. And you never did anything by your action or verbally that would have put them on notice that you claimed the right to cross over their property, whether they liked it or not?
As stated earlier, mere use alone, without any attendant conduct showing that such use is adverse to the owner or is pursuant to a claim of right, does not establish an easement. Apley v. Tagert, supra. We have carefully searched the record and we find no evidence of any conduct by the Tomlinsons indicating that their use of Ridge Road was under a claim of right, except that conduct that precipitated the present lawsuit: Mr. Tomlinson's cutting and destroying of the trees in 1986 when he widened Ridge Road to between 60 and 80 feet. See Hollis v. Tomlinson, supra.
We are mindful of the general rule that a jury verdict is strengthened by the denial of a motion for new trial, Christiansen v. Hall, 567 So. 2d 1338 (Ala.1990). However, in the instant case, there simply is no substantial evidence of all of the elements necessary to establish an easement by prescription.[1] Thus, the trial court's judgment denying the Hollises' J.N.O.V. motion is reversed and the case is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] The complaint in this case was filed after June 11, 1987; thus, the "substantial evidence rule" applies. See Ala.Code 1975, § 12-21-12. | August 2, 1991 |
a93ea17c-25ef-4d62-8581-0a2eb6d0c525 | Corson v. Universal Door Systems, Inc. | 596 So. 2d 565 | 1900053 | Alabama | Alabama Supreme Court | 596 So. 2d 565 (1991)
Timothy CORSON
v.
UNIVERSAL DOOR SYSTEMS, INC.
1900053.
Supreme Court of Alabama.
August 9, 1991.
Rehearing Denied March 27, 1992.
*566 E. Martin Bloom of Starnes & Atchison, Birmingham, for appellant.
W. Wheeler Smith of Smith, Hynds, Blocker & Lowther, Birmingham, for appellee.
ADAMS, Justice.
Timothy Corson appeals from a judgment entered against him and in favor of Universal Door Systems, Inc. ("Universal"), in Universal's action alleging that Corson had violated a nonsolicitation covenant contained in his employment contract with Universal. We reverse and remand.
In August or September 1985, Corson accepted employment with Universal, a company engaged in selling, installing, and servicing automatic doors. At Universal, Corson served as a service and installation technician. His position not only offered him "hands-on" experience with door installation and repair, but required him to engage in some measure of public relations work with owners and managers of establishments utilizing automatic doors. While he was employed by Universal, the company's *567 customers included Handy Dan, Delchamps, Sam's Wholesale Club, Service Merchandise, St. Vincent's Hospital, Druid City Hospital, and the divisions of Bruno's.
Corson, during the course of his employment, signed a number of agreements placing various restrictions on his post-employment activities. On September 26, 1985, he signed an employment contract prohibiting the solicitation of Universal's customers within Alabama and the panhandle of Florida for one year following the termination of his employment. On January 13, 1989, after more than three years of employment with Universal, Corson signed a second "employment contract." The relevant portions of that contract provided:
On April 6, 1989, Corson resigned and accepted comparable employment as a "service manager" with Alabama Door Systems, Inc. ("Alabama Door"), one of Universal's competitors. On June 23, 1989, Universal sued Corson, seeking a preliminary and permanent injunction, as well as damages, for his alleged solicitation of Universal's customers in violation of the nonsolicitation covenant. At a hearing on September 6, 1989, the trial court denied Universal's request for a preliminary injunction. However, on May 8, 1990, after a second hearing, the trial court permanently enjoined Corson from "calling upon any customers of Universal ... on behalf of himself or any other person ... for the purpose of soliciting sales to such customer of any product or service provided by the business of Universal," in an area "covered by the states of Alabama, Georgia, Tennessee, Florida and Mississippi." The trial court also assessed damages in the amount of $7,935, and awarded Universal $8,427 in attorney's fees. On appeal, Corson contends *568 that the trial court erred in (1) finding that the contract was supported by consideration, (2) granting Universal's request for a permanent injunction covering an area more restricted than that stated in the agreement, in effect, reforming the contract, (3) restricting the defendant in the performance of his trade, (4) awarding damages in an amount for which, he argues, no evidence was produced, and (5) holding that Corson had misappropriated confidential information.
Corson contends that the employment contracts containing the nonsolicitation clauses, and especially the contract executed after three years of employment, were unsupported by consideration. This Court has previously held that continued employment and compensation in return for a promise not to compete constitutes consideration. Thus, in Daughtry v. Capital Gas Co., 285 Ala. 89, 229 So. 2d 480 (1969), where Daughtry signed, after nearly five months of employment, a contract containing a noncompetition covenant, this Court said:
Id. at 92-93, 229 So. 2d at 483. See also Affiliated Paper Companies v. Hughes, 667 F. Supp. 1436 (N.D.Ala.1987). We here reaffirm that principle.
The parties agree that the nonsolicitation covenant involved in this case represents only a partial restraint on trade and they, therefore, correctly observe that it does not implicate Ala.Code 1975, § 8-1-1. See Hoppe v. Preferred Risk Mut. Ins. Co., 470 So. 2d 1161 (Ala.1985); Famex Inc. v. Century Ins. Services, Inc., 425 So. 2d 1053 (Ala.1982). Corson contends, nevertheless, that the nonsolicitation provision was unreasonably restrictive, both as to territory and as to persons restricted.
Regarding territorial restrictions, the 1989 contract prohibited solicitation of Universal's customers in Alabama, Georgia, Tennessee, Kentucky, Florida, North Carolina, South Carolina, and Mississippi. It is undisputed that Universal did no business in Kentucky, North Carolina, or South Carolina during the term of its affiliation with Corson. Consequently, Corson insists, the territorial restrictions are "glaringly" unreasonable.
Corson's contention would be far more compelling if the contract had contained a covenant not to compete, rather than the less onerous restriction on customer solicitation. We fail to understand how a covenant prohibiting only the solicitation of the employer's customers amounted to any restriction at all on the employee's right to practice his trade in those states in which the employer had no customers. Universal's customer list, moreover, while including some prominent businesses, is relatively small in relation to the total number of Alabama establishments using automatic doors. Consequently, we are unable to conclude that the contract's territorial restrictions rendered the covenant unenforceable.
Corson also contends that Universal had no protectable interest in his employment. We disagree. An "employer has a legitimate interest in restraining the employee from appropriating valuable ... customer relationships to which he has had access in the course of his employment." Restatement (Second) of Contracts § 188 comment b (1981), quoted in Sheffield v. Stoudenmire, 553 So. 2d 125 (Ala.1989), Calhoun v. Brendle, Inc., 502 So. 2d 689 (Ala.1986), and James S. Kemper & Co. Southeast, Inc. v. Cox & Assoc., Inc., 434 So. 2d 1380 (Ala.1983).
In this case, there was evidence that Corson's responsibility for the development of lasting customer relationships constituted a material component of his job description. *569 There was also evidence that Universal expended a measure of resources in training Corson for that purpose. Jerry Bess, president of Universal, testified:
(Emphasis added.)
Moreover, Alabama Door's manager, Jack Cherry, testified that Corson was employed by Alabama Door with the expectation that Corson's personality would "generate new business in the service department" through personal customer contact. We thus conclude that Universal had a bona fide interest in preventing the subversion of the special customer relationships that it employed Corson to build. See James S. Kemper & Co. Southeast, Inc., 434 So. 2d at 1384 ("clientele acquaintance involved clearly constitute[d] a protectable interest"). Calhoun v. Brendle, Inc., 502 So. 2d 689 (Ala.1986), is clearly distinguishable on its facts and does not support Corson's contention that Universal had no protectable interest in his employment.
Corson contends that the trial court evidently found the covenant in the 1989 contract to be unreasonable and so "reformed" it by narrowing the scope of the area covered by the injunction. He further contends that because the covenant at issue does not implicate Ala.Code 1975, § 8-1-1, the trial court was without the power to "reform" the contract. Once the trial court determined that the covenant was unreasonable as to territory, so the argument goes, the covenant was void, absolutely, and the court was without power to enforce it to any extent. Corson argues, in effect, that the only power to reform a covenant involving post-employment restraint derives from § 8-1-1. Although we agree that the covenant does not implicate § 8-1-1, we disagree with Corson's contention that the trial court was without the power to reform the contract.
Assuming, arguendo, that the trial court's actions did have the effect of reforming the contract,[1] such action is consistent with the broad power vested in the courts of this state "to mould relief to meet the equities developed in the trial." Winslett v. Rice, 272 Ala. 25, 31, 128 So. 2d 94, 99 (1960); Tyler v. Eufaula Tribune Publishing Co., 500 So. 2d 1005, 1008 (Ala. 1986); see also Hoppe v. Preferred Risk Mut. Ins. Co., 470 So. 2d 1161 (Ala.1985) (affirming action of the trial court in narrowing the class of persons whom defendant could not solicit); cf. Ala.R.Civ.P. 54(c) ("final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings").
We come now to the most troubling aspect of this case, that is, the amount of damages awarded. The trial court found *570 that Corson had violated the nonsolicitation covenant by "soliciting and selling installation, service, and maintenance contracts" to those companies that had been customers of Universal during the course of his employment with Universal. Evidence produced at trial supports that finding. Based on remarks made by the trial judge, however, we conclude that the burden of proof as to damages was placed on the wrong party.
The covenant at issue prevented Corson only from "call[ing] upon any customer of [Universal] for the purpose of soliciting sales to such customer [of] any product or services associated [sic] or provided by [the] business of [Universal]." Consequently, Corson was liable only for business that he personally, directly or indirectly, diverted from companies dealing with Universal during the time of his employment. Corson was not liable for business flowing to Alabama Door from Universal's customers because of the efforts of others, or for other reasons unrelated to Corson's efforts.
Universal would be entitled to nominal damages for breach of the nonsolicitation covenant upon mere proof that Corson successfully solicited a Universal customer. James S. Kemper & Co. v. Cox & Associates, Inc., 434 So. 2d 1380, 1385 (Ala. 1983). However, in order to collect more than nominal damages, Universal must also prove that it actually lost money because of Corson's breach, that is, that it would have gotten the business that went to Alabama Door. It follows that if Corson could demonstrate other reasons that might have accounted for Universal's alleged loss of business since Corson's termination, Universal's burden of proof on the issues of causation and damages would become more substantial.
At trial, Corson's counsel introduced evidence that Universal shared the market for its products and services with a number of other companies, including Alabama Door and its close affiliate, Columbus Automatic Door. During cross-examination of Universal's president, Mr. Jerry Bess, in which Corson's counsel attempted to establish whether Universal had an exclusive business relationship with any of the companies on its customer list, he was interrupted by the trial judge. The record reveals the following discourse:
(Emphasis added.)
The line of questioning pursued by Corson's counsel was material and highly relevant *571 on the issues of causation and damages, that is, in determining whether Universal actually lost revenue because of Corson's breach of the nonsolicitation covenant. Only if Universal had an exclusive relationship with a customer is it reasonably inferable, in the absence of other evidence, that any revenue brought to Alabama Door by Corson would have gone to Universal. The trial judge, therefore, misperceived the purpose and the relevancy of the inquiry into the nature of Universal's relationships with its customers.
In addition, the plaintiff, not the defendant, bears the burden of proof as to the amount of damages to which it is entitled. James S. Kemper & Co. v. Cox & Associates, Inc., 434 So. 2d 1380, 1385 (Ala. 1983). Consequently, the trial judge also erred in requiring Corson to prove that Universal would not, in any event, have gotten the business solicited by Corson.
The trial court awarded $7,935 in damages. That figure was apparently derived from the sum of Mr. Bess's estimations of the value of work performed by Alabama Door for Handy Dan, Delchamps, Sam's Wholesale Warehouse, and Huntsville Food World store number 13 (one of the Bruno's stores) as a result of Corson's solicitation. Plaintiff's Exhibits 1 and 4 through 6. Mr. Bess's estimations of the fair value of the four jobs were $825, $310, $2,100, and $4,700, respectively.
Although the record supports a finding that Corson successfully solicited jobs performed by Alabama Door at Handy Dan, Delchamp's, Sam's Wholesale Warehouse, and Foodworld number 13, Universal produced no evidence that it would have received the revenue for the work done at Handy Dan, Delchamp's, or Sam's Wholesale Warehouse, but for Corson's breach of contract. On the contrary, testimony revealed that they, and nearly all the companies on Universal's customer list, periodically contracted for products and service with Alabama Door and other competitors of Universal before, during, and after Corson's employment with Universal. Indeed, the only company on Universal's customer list whose business was not regularly shared by Alabama Door or its affiliate was Bruno's, of which Food World is a division. Similarly, there was evidence that before Handy Dan left the market entirely in 1989, it had been sued by a customer for injuries allegedly suffered as a result of a malfunction of doors sold or serviced by Universal.[2] Because Universal thus failed to meet its burden of proof on the issues of causation and damage, the trial court erred in awarding more than nominal damages for work performed by Alabama Door at Handy Dan, Delchamp's, and Sam's Wholesale Warehouse. The judgment of the trial court, to the extent its award exceeded nominal damages for work done at those locations, is reversed.
Of work performed by Alabama Door in alleged violation of the nonsolicitation covenant, only the revenue lost as a result of a job done at Food World number 13 was reasonably attributable to Corson's breach of contract. The manager of Alabama Door testified that the work conducted at Food World resulted from the solicitation efforts of Corson and another Alabama Door employee. The work was performed on April 13, 1989, three days after Corson began work for Alabama Door.
A few days later, according to testimony by personnel of Huntsville Food World number 23, Mr. Seelbinder, of the Bruno's maintenance department, telephoned Food World number 23 and asked if Corson had been soliciting its business. Upon learning that he had, Mr. Seelbinder stated that Universal was the only company "authorized" to service doors at Food World. These facts reasonably imply a loss of revenue to Universal as a proximate result of Corson's breach of the nonsolicitation covenant.
The correct measure of damages is the amount of the loss suffered by Universal due to Corson's breach. James S. Kemper & Co. Southeast, Inc., v. Cox & Assoc., Inc., 434 So. 2d 1380, 1385 (Ala. *572 1983); see also P. Walter, Employee Restrictive Covenants: to Restrain or not Restrain?, 91 Com.L.J. 321, 349 (1986). The objective is to restore Universal to the position it would have occupied had it performed the work. B & M Homes, Inc., v. Hogan, 376 So. 2d 667, 675 (Ala.1979). The $4,700 awarded by the trial court apparently represented Mr. Bess's estimate of the total value of work performed by Alabama Door for Food World number 13 and, consequently, significantly overcompensated Universal for its loss.
Universal contends that the award properly contains an amount attributable to punitive damages. We reject that contention. The trial court awarded damages based on its determination that Corson had breached his employment contract. Ordinarily, "[p]unitive damages are not recoverable for breach of contract." Geohagan v. General Motors Corp., 291 Ala. 167, 279 So. 2d 436 (1973); see also Nolin v. Dismukes, 554 So. 2d 1019 (Ala.1989); John Deere Indus. Equipment Co. v. Keller, 431 So. 2d 1155 (Ala.1983). Nothing appears in this case to take it out of that general rule.
The trial court, therefore, erred in its assessment of the damages to which Universal was entitled for the work performed at Food World number 13, and its judgment is reversed as to that issue. On remand, the trial court is instructed to determine the amount of damages based on the net profit lost by Universal for work done at that location.
The trial court also found that Corson had misappropriated and misused a list of "confidential" phone numbers of Universal's customers and personnel. Corson contends that the information contained in the documents was widely circulated and was not held in confidence by Universal. We need not determine whether the information was protectable, because, in any case, Universal failed to produce any evidence of misuse of the information or of damage or loss proximately caused by such misuse, in addition to that which it produced in connection with the work done at the locations previously discussed. Because the award may have been based on the claim of misappropriation of confidential information, the judgment of the trial court is reversed.
Pursuant to the contract provision for an award of attorney fees to the "prevailing party" in the event of litigation "to enforce or interpret the terms" of the contract, the trial court awarded Universal $8,427. That portion of the judgment of the trial court awarding attorney fees is reversed and the cause is remanded for a further determination in light of our disposition of the issues in this case.
The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with the directions set forth in this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur.
[1] Because the time period covered by the injunction has expired, and because we have determined that the covenant was not unreasonable as written, we offer no opinion as to the propriety of the action of the trial court in defining the scope of the injunction.
[2] Universal was added as a defendant in that suit. | August 9, 1991 |
df3e3289-6db6-44b4-a677-2188833fe11f | Ex Parte Weeks | 591 So. 2d 439 | 1900943 | Alabama | Alabama Supreme Court | 591 So. 2d 439 (1991)
Ex parte Donna Othella WEEKS.
(Re Donna Othella Weeks v. State.)
1900943.
Supreme Court of Alabama.
July 26, 1991.
Rehearing Denied October 11, 1991.
Douglas H. Scofield of Scofield, West & French, Birmingham, for appellant.
James H. Evans, Atty. Gen., and Stephen N. Dodd, Asst. Atty. Gen., for appellee.
KENNEDY, Justice.
We granted certiorari review in this case in order to determine whether the trial court erred in resentencing the defendant to a harsher sentence, where the first sentence was based on a guilty plea and the second sentence followed a trial.
The facts are as follows: On March 6, 1989, the defendant, Donna Othella Weeks, entered a plea of guilty to trafficking in cocaine in violation of § 20-2-80, Ala.Code 1975. The trial court accepted a plea bargain whereby Weeks was sentenced to a term of 12 years, with 3 years to be served in prison and the remainder of the sentence suspended pending Weeks's good behavior on probation for 5 years.[1] On May 25, 1989, Weeks filed a motion to withdraw the guilty plea, claiming that her attorney had had a conflict of interest and that the guilty plea had not been made knowingly and voluntarily. The trial court granted the motion and ordered a new trial.
The jury found Weeks guilty of trafficking in cocaine. The trial court sentenced Weeks to a term of 21 years, 7 months in prison. At the sentencing hearing, the trial judge stated as follows:
(R.T. 657-63.)
The Court of Criminal Appeals affirmed, without an opinion 579 So. 2d 718.
In Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), the Supreme Court addressed the question whether a presumption of vindictiveness applies when a sentence imposed after trial is greater than the sentence previously imposed after a guilty plea. In Smith, the defendant agreed to plead guilty to burglary and rape charges in exchange for the State's dismissing a sodomy charge. The trial court accepted the plea bargain and sentenced the defendant to 30 years' imprisonment on each charge. The defendant later succeeded in having his guilty pleas vacated and was tried on rape, burglary, and sodomy charges. The jury returned a guilty verdict on all three charges and the trial court sentenced him to life imprisonment on the burglary conviction, a concurrent term of life imprisonment on the sodomy conviction, and a consecutive term of 150 years on the rape conviction.
The Supreme Court held that a presumption of vindictiveness does not apply in every case where the defendant receives a harsher sentence on retrial. Only in such circumstances where there is a "reasonable likelihood" that the increased sentence is a product of vindictiveness will the presumption *441 of vindictiveness apply. Smith, 490 U.S. at 799, 109 S. Ct. at 2205. "Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness." Id.
The Supreme Court specifically held that when a greater penalty is imposed after trial than was imposed after a guilty plea, there is no automatic presumption of vindictiveness. "Even when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial." Id. "[I]n the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant's conduct during trial may give the judge insights into his moral character and suitability for rehabilitation." Smith, 490 U.S. at 801, 109 S. Ct. at 2206.
In the instant case, no evidence was presented by the defendant that indicates actual vindictiveness on the trial judge's part. In fact, the reasons given by the trial judge, stated earlier in this opinion, explain why the sentence was harsher.
All other issues presented are without merit. We affirm.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and INGRAM, JJ., concur.
[1] Some parts of the record indicate that the sentence called for four years to be served. | July 26, 1991 |
c83c2afd-f99d-40ab-9847-fd1fe459f09d | Brantley v. State Farm Mut. Auto. Ins. Co. | 586 So. 2d 184 | 1900441 | Alabama | Alabama Supreme Court | 586 So. 2d 184 (1991)
Joe Nathan BRANTLEY
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
1900441.
Supreme Court of Alabama.
August 9, 1991.
James Harvey Tipler of Tipler and Tipler, Andalusia, for appellant.
C. Grant Baldwin of Powell & Baldwin, Andalusia, for appellee.
STEAGALL, Justice.
Joe Nathan Brantley appeals from a summary judgment in favor of State Farm Mutual Automobile Insurance Company ("State Farm") regarding uninsured/underinsured *185 motorist benefits.[1] The trial court held, as a matter of law, that Brantley's settlement of his claim with Alfa Mutual Insurance Company ("Alfa") without the consent of State Farm was a violation of the "Uninsured Motor VehicleCoverage U" provision of the applicable policy. The court, relying on Lowe v. Nationwide Insurance Co., 521 So. 2d 1309 (Ala.1988), stated that Brantley's failure to give State Farm notice of his claim impaired State Farm's subrogation rights. We agree.
The facts in this case are essentially undisputed. On November 21, 1985, Brantley and Willie D. Griffin were passengers in a State of Alabama Highway Department vehicle driven by Rodney Taylor. On U.S. Highway 31 in Conecuh County, Alabama, a vehicle driven by Frances Phillipa Brown struck the vehicle driven by Taylor. Griffin and Brantley suffered injuries. Brown was insured by Alfa, and Taylor was insured by State Farm. After the accident occurred, State Farm had an adjuster investigate the circumstances of the accident, in which its policyholder, Taylor, was involved. Brantley did not give a statement to the State Farm adjuster; however, he was present when Taylor gave a statement to the adjuster.
On February 16, 1987, Griffin, in accordance with the provisions of Taylor's policy, notified State Farm of his intent to file an underinsured motorist claim under Taylor's policy with State Farm. On March 10, 1987, he filed a complaint in the Conecuh Circuit Court to recover damages under the uninsured/underinsured motorist provision of that policy.[2]
On June 8, 1987, Brantley sued Brown only, seeking $100,000 in damages for injuries sustained in the accident. On or before January 8, 1988, Brantley agreed to settle with Alfa his claim against Brown; he agreed to settle for $20,000, the limit of liability coverage under Brown's policy with Alfa.
Immediately after the settlement, Brantley attempted to collect against Taylor's policy with State Farm. Along with counsel, Brantley drafted and mailed by certified mail, return receipt requested, a letter dated January 8, 1988, to the local State Farm agent, Max Williams; that letter reads, in pertinent part:
The letter incorrectly referred to the number of a policy that had once belonged to Brantley, rather than Taylor, but that policy had lapsed prior to the November 21, 1985, accident. Williams received the letter on January 12, 1988, the same day Brantley's suit against Brown was dismissed with prejudice. Then, on January 18, 1988, Brantley executed with Brown and Alfa a general release of all claims against them arising out of the November 21, 1985, automobile accident.
After receiving no response from Williams or State Farm, Brantley and counsel, on March 28, 1988, sent a second letter to Williams, advising him that the $20,000 settlement with Brown and Alfa had been paid. Williams also demanded payment from State Farm of the limits of the underinsured motorist provision of Taylor's policy. On this occasion, the letter correctly referred to Taylor's policy number. However, neither Williams nor State Farm responded to the letter.
On November 13, 1989, Brantley sued State Farm for underinsured motorist benefits under Taylor's policy. On October 1, 1990, State Farm filed a motion for summary judgment, alleging that Brantley's failure to give State Farm notice of his uninsured motorist claim before settling his claim with Alfa had impaired its subrogation rights under Lowe v. Nationwide Insurance Co., supra, and had violated the *186 uninsured motor vehicle provision of Taylor's policy. After a hearing on the matter, the trial court ruled in favor of State Farm. Brantley appeals.
Initially, we point out that a summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. Once the moving party has made a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to provide "substantial evidence" in support of his position. Ala.Code 1975, § 12-21-12; Rule 56, A.R.Civ.P.; Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990); Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). The trial court is required to view all of the evidence offered by the moving party in support of its motion in the light most favorable to the nonmovant. Hanners, supra, and Bass, supra. With this standard in mind, we now address the merits of Brantley's contentions.
Brantley contends that the January 8, 1988, letter mailed to Williams, Taylor's insurance agent, served as adequate notice to State Farm that he, Brantley, was making an underinsured motorist claim under Taylor's policy for $20,000. State Farm does not dispute the fact that it received the certified letter on January 12, 1988, as indicated on the returned receipt.
State Farm contends that Brantley's settlement with Brown and Alfa was final before it even received notice of the settlement or notice of Brantley's claim for underinsured motorist benefits under Taylor's policy. More specifically, State Farm asserts that because Brantley settled his claim with Brown and Alfa before it was notified of his intent to make a claim, State Farm was denied its subrogation rights. Additionally, State Farm asserts that Brantley failed to comply with the terms of Taylor's policy. The provision State Farm relies on for this argument reads:
Recently, in Lambert v. State Farm Mutual Insurance Co., 576 So. 2d 160 (Ala. 1991), this Court established procedures to be followed in every case involving the rights of an insured and the underinsured motorist insurance carrier. We are mindful of the fact that each case presents different facts and circumstances and must be treated accordingly; however, the following general rules provide a guideline in analyzing these cases:
576 So. 2d at 167. The Lambert Court also made the following suggestion in applying these rules:
576 So. 2d at 167.
The rules established in Lambert v. State Farm Mutual Insurance Co., supra, are consistent with our earlier declaration in Lowe v. Nationwide Insurance Co., supra, that there are three primary concerns with insurance claims involving underinsured motorist insurance coverage:
521 So. 2d at 1309.
Under these guidelines, we make the following observations: On June 8, 1987, Brantley sued Brown and Alfa, seeking $100,000 in damages. Brantley did not notify State Farm of his intent to file a claim under Taylor's policy until January 8, 1988; the January 8 letter was the first indication to State Farm that Brantley was intending to file a claim. That same letter contained the statement that the "lawsuit [between Brantley and Brown] has been settled for policy limits of $20,000.00." This was also the first indication to State Farm that settlement negotiations were taking place. On January 18, 1988, 10 days after the settlement agreement, Brantley executed a general release of all claims against Brown and Alfa arising out of the November 21, 1985, automobile accident. On February 8, 1988, Brantley received the $20,000 settlement. On March 28, 1988, Brantley made a second demand to State Farm for the limits of underinsured motorist coverage under Taylor's policy. When State Farm failed to respond, Brantley sued. The action resulted in a summary judgment in favor of State Farm.
Based on the facts before us, we hold that the trial court correctly entered the summary judgment in favor of State Farm. Lambert v. State Farm Mutual Insurance Co., supra, clearly established that, before any settlement was final, reasonable notice must have been given to State Farm by Brantley of his intent to file a claim for underinsured motorist benefits. Brantley simply did not give State Farm adequate notice of his claim under Taylor's policy for underinsured motorist insurance benefits in *188 order for State Farm to adequately protect its subrogation rights. State Farm never had the opportunity to even consent to, or refuse to consent to, the settlement agreement between Brantley and Brown and Alfa. State Farm was clearly denied its opportunity to protect its subrogation rights.
Therefore, based on the foregoing, the judgment in favor of State Farm is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] As statutorily defined, "uninsured motorist" includes "underinsured motorist." Ala.Code 1975, § 32-7-23(b).
[2] The record does not reveal whether Griffin was successful with his claim for underinsured motorist benefits under Taylor's policy with State Farm or whether he collected any benefits from Brown's insurance policy with Alfa. We point out that under the facts in the instant case, Brantley's claim against State Farm does not rest on the success or failure of Griffin's claim. | August 9, 1991 |
f87ecc14-7b22-44f7-9e20-4f362959b2e8 | Harris v. Simmons | 585 So. 2d 906 | 1900706 | Alabama | Alabama Supreme Court | 585 So. 2d 906 (1991)
Jacqueline HARRIS
v.
Tommy SIMMONS and Mark Bernard.
1900706.
Supreme Court of Alabama.
August 9, 1991.
John S. Thrower, Jr., Opelika, for appellant.
William A. Cleveland of Haygood, Cleveland & Pierce, Auburn, for appellees.
INGRAM, Justice.
This is a suit against co-employees arising out of a work-related accident involving a power press. The appellant, Jacqueline Harris, was employed by Temporary Alternatives, Inc., and was assigned to the third shift at SMC South, a division of Somer *907 Metalcraft Corporation. Tommy Simmons was the foreman on the third shift, and Mark Bernard was the plant manager.
On March 12, 1990, the plant received several citations for violations of the Occupational Safety and Health Act of 1970. One of the citations concerned a particular power press; it noted that the power press was not equipped with a single-stroke mechanism and that the press was unguarded. On April 19, 1990, while working on that particular power press, Harris was injured when her hand came into contact with the power press. As a result of the injury, three fingers on her right hand were amputated. She had worked at the SMC South plant for approximately 14 days prior to the accident.
Harris filed a complaint pursuant to § 25-5-11, alleging that her supervisors, Simmons and Bernard, had failed to provide her a safe place to work and/or a reasonably safe work environment and that her supervisors had failed to install safety devices on the press. The court entered a summary judgment for the defendants. Harris appeals.
Section § 25-5-14 states that the intent of the workers' compensation legislation is to provide immunity to co-employees from all civil liability, except that based upon willful conduct. "Willful conduct," for purposes of co-employee liability, means one of four limited things:
Section 25-5-11(c).
Harris argues that the failure to add a guard to the power press constitutes actionable conduct under § 25-5-11(c)(1) and (c)(2). Each subsection will be discussed separately, but in reverse order.
I. Section 25-5-11(c)(2)
Harris argues that the legal effect of the failure to add a safety device in this case should be the same as the legal effect of a willful removal of a safety device provided by the manufacturer of the machine. We disagree.
There is no evidence that any type of guard was provided by the manufacturer. Our cases have stated that the failure to add a guard provided by the manufacturer can constitute willful conduct under § 25-5-11(c)(2). See Bailey v. Hogg, 547 So. 2d 498, 500 (Ala.1989). In Burkett v. Loma Machine Mfg., Inc., 552 So. 2d 134 (Ala.1989), this Court stated that "there is no duty under § 25-5-11(c)(2) ... on co-employees to add safety guards that the manufacturer fails to provide." Id. at 138. Under the facts of this case, we hold that summary judgment as to the claim under § 25-5-11(c)(2) was correct.
II. Section 25-5-11(c)(1)
Harris argues that Simmons and Bernard intentionally injured her by not installing the safety guard. Under § 25-5-11(c)(1), Harris can recover from her co-employees if she can prove that she was injured by their willful conduct.
In order to meet this burden, Harris must show that, from the evidence presented, it was reasonably inferable that Simmons *908 and Bernard acted with "a purpose or intent or design to injure." See Reed v. Brunson, 527 So. 2d 102, 120 (Ala.1988). Whether there was intent is generally recognized to be a question peculiarly within the province of the jury, and intent may be shown by any condition or circumstance from which it may be reasonably inferred. Williams v. Price, 564 So. 2d 408, 410-11 (Ala.1990) (citing Walker v. Woodall, 288 Ala. 510, 262 So. 2d 756 (1972)). In Williams, this Court stated:
Id. at 411.
This Court went on to hold that, without evidence that the defendant had reason to injure the plaintiff or someone else or evidence that the plaintiff's injury was substantially certain to follow, summary judgment for the defendant was proper.
In Burkett, supra, this Court held that the failure to add a splash guard was not "willful conduct" within the meaning of § 25-5-11(c)(1). Burkett, 552 So. 2d at 138-39. We found no evidence that any of the co-employee defendants in Burkett intended, or had a purpose, to injure anyone by their failure to add a splash guard. Also, this Court stated that perception of a risk of injury does not amount to a purpose to injure or amount to knowledge that injury is substantially certain to follow. Id. at 138. Because the saw in Burkett had been operated without a splash guard for an extended period of time without an injury, this Court stated that "it cannot be said that any co-employee defendant had knowledge that injury was substantially certain to follow from the failure to add a splash guard." Id. at 139 (emphasis added).
Bernard testified in his deposition that the press had been operated without incident for three and one-half years prior to Harris's accident. Simmons testified that, in the time he had been employed by SMC, he had never known of an accident involving a press. Both men testified that they knew of OSHA citations concerning the lack of a guard on the press. However, there is no evidence that Simmons and Bernard knew to a substantial certainty that injury was likely to occur. As in Burkett, the machinery had been operated without a guard for a substantial period of time without an injury. Harris made no showing otherwise.
Harris testified, through affidavit, that Simmons was aware that she was operating the press and was aware that she had not been trained to operate the press. In accordance with our standard for reviewing a summary judgment, we resolve all factual issues in favor of the nonmovant; therefore, we assume Harris's statement to be true. Even given the truth of it, however, her statement does not indicate either that Simmons intended to injure Harris or someone else, or that Simmons knew to a substantial certainty that someone would be injured while operating the press. Harris simply has not shown any proof to rebut the defendants' prima facie showing that her injury was not caused by the "willful conduct" of Simmons or Bernard. Therefore, the summary judgment was also proper as to the claim based on § 25-5-11(c)(1).
For the reasons stated above, we affirm the summary judgment in favor of Simmons and Bernard.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | August 9, 1991 |
3441da31-b6c7-49bc-8196-4324dccbafee | Kirkpatrick v. Jones | 585 So. 2d 828 | 1900506 | Alabama | Alabama Supreme Court | 585 So. 2d 828 (1991)
C.L. KIRKPATRICK
v.
Rosia Lee JONES.
1900506.
Supreme Court of Alabama.
July 26, 1991.
*829 W. Harold Albritton III and William B. Alverson, Jr. of Albrittons, Givhan & Clifton, Andalusia, for appellant.
Charles W. Edmondson of Azar & Azar, Montgomery, for appellee.
MADDOX, Justice.
This appeal arises from an action to set aside a deed that allegedly had as its consideration the grantee's promise to support the grantor during her life. A jury rendered a verdict in favor of the grantor, and the trial court set the deed aside.
The primary issue on this appeal is whether the grantor was entitled to have the deed declared void pursuant to Code 1975, § 8-9-12, on the basis that a material part of the consideration was an agreement to support her during her life. A second issue is whether the grantee was entitled to a new trial on the ground that the verdict of the jury was inconsistent.
Code 1975, § 8-9-12, states:
In 1975, Rosia Lee Jones ("Rosia Lee") became acquainted with C.L. Kirkpatrick when he assisted her in various matters after her son had died. Kirkpatrick assisted Jones in obtaining the assets of her son's estate. In addition, Kirkpatrick assisted Jones in building a house. From 1975 until 1984 Kirkpatrick made various repairs to the house.
In 1984, at the age of 74, Rosia Lee conveyed her house to Kirkpatrick, while reserving to herself a life estate. In 1989, Rosia Lee sought to have this conveyance set aside under Code 1975, § 8-9-12, on the basis that a material part of the consideration was a promise of support. The deed does not contain any provision stating that Kirkpatrick is to support Rosia Lee during her lifetime. However, Rosia Lee testified that Kirkpatrick agreed to take care of her if she needed help and that she had agreed that, in exchange for his help, he could have the property at her death. Further, she testified that the deed was to contain a provision that her heirs could purchase the property at her death if they wished to do so. The jury returned a verdict in favor of Rosia Lee. The trial court denied Kirkpatrick's post-trial motion for new trial or, in the alternative, a judgment notwithstanding the verdict. Kirkpatrick appeals from the judgment for Rosia Lee.
In Alabama, a jury verdict is presumed correct and will not be disturbed on appeal unless it is plainly erroneous or manifestly unjust. Sanders v. Roberts, 563 So. 2d 1022 (Ala.1990); Kabel v. Brady, 519 So. 2d 912 (Ala.1987). This presumption is further strengthened by the trial court's denial of a motion for a new trial. Davis v. Ulin, 545 So. 2d 14 (Ala.1989); Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala. 1988). Thus, our review of this case is limited to whether the jury verdict was plainly erroneous or manifestly unjust.
The deed does not contain a provision that states that Kirkpatrick was to provide support and maintenance for Rosia Lee during her lifetime. It merely shows that Rosia Lee conveyed the property to Kirkpatrick while reserving a life estate for *830 herself and an option to purchase for her heirs and that the conveyance was in exchange for "Ten dollars and other good and valuable consideration." However, parol evidence is admissible to show that the actual consideration for the execution of the deed was the promise on the part of the grantee to support the grantor during her life. Stewart v. Dickerson, 455 So. 2d 809 (Ala.1984); Entrekin v. Entrekin, 388 So. 2d 931 (Ala.1980); and Walker v. Walker, 256 Ala. 195, 54 So. 2d 281 (1951). This is true in cases such as this one, where the parol evidence will not contradict a written statement purporting to set the full consideration. Posey v. Posey, 545 So. 2d 1329 (Ala.1989); Vaughn v. Carter, 488 So. 2d 1348 (Ala.1986), citing Isenhower v. Finch, 278 Ala. 684, 180 So. 2d 448 (1965); Grady v. Williams, 260 Ala. 285, 70 So. 2d 267 (1953); and Dennis v. West, 248 Ala. 90, 26 So. 2d 263 (1946). Ordinarily, the evidence that the agreement to provide support was a material part of the consideration for the deed must be clear, satisfactory, and convincing. Mullinax v. Mullinax, 495 So. 2d 646 (Ala.1986). The appropriate standard to be applied here, however, is the "plainly erroneous/manifestly unjust" criteria we apply in reviewing jury verdicts.
Kirkpatrick testified that he gave Rosia Lee $2,300 for the house and promised to make any necessary repairs to the house during the time that Rosia Lee lived there. However, Rosia Lee testified:
Rosia Lee went on to testify that in 1984 she signed a paper that she thought evidenced this agreement between her and Kirkpatrick. She testified that she did not know that the paper she signed was a deed conveying her property to Kirkpatrick until she went to get a copy of her deed from the probate office and saw that it contained Kirkpatrick's name. She further testified that she asked Kirkpatrick to reconvey the land to her, but that he refused to do so. She said that it was upon his refusal that she decided she wished to have the deed conveying her house to Kirkpatrick revoked.
On review of a motion for a new trial, we must view the evidence in the light most favorable to the nonmovant; viewing the evidence in that light, we can not say that the jury was plainly erroneous or manifestly unjust in finding that the deed to Kirkpatrick was subject to being voided under the statute. There is evidence from which the jury could have found that an agreement for support was a major part of the consideration for the deed. Therefore, we affirm the judgment as to this issue.
Kirkpatrick also contends that the trial court erred in denying his motion for new trial based on his claim that the jury rendered an inconsistent verdict. The jury revoked the deed conveying Rosia Lee's property to Kirkpatrick; however, the jury declined to award Kirkpatrick any damages for his expenditures made on the behalf of Rosia Lee. Kirkpatrick asserts that, if the deed was correctly revoked under the statute, the jury should have reimbursed him for the expenditures he made on the behalf of Rosia Lee. In support of his argument he cites Cornelius v. Walker, 248 Ala. 154, 27 So. 2d 17 (1946), which, he argues, stands for the proposition that a grantee is always entitled to be reimbursed for expenditures made on the behalf of the grantor, if the grantor has the deed revoked. That case states, however, that, where a counterclaim for these expenditures has been filed, an equity court can not prevent the grantee *831 from introducing evidence of the expenditures. Cornelius further stated that, once a claim for reimbursement has been filed, the trial court should determine if the reimbursement of expenditures is to be allowed, and in what amount. Cornelius does not stand for the proposition that all expenditures made on the behalf of a grantor by the grantee should be reimbursed.
Even if Cornelius stood for what Kirkpatrick contends, he is barred from presenting this issue for our review. This issue was not raised in Kirkpatrick's motion for new trial. It is axiomatic that the trial court may not be put in error for failure to rule on a matter not presented to it or decided by it. Johnston v. Frost, 547 So. 2d 528 (Ala.1989); City of Rainbow City v. Ramsey, 417 So. 2d 172 (Ala.1982). Therefore, this issue has been waived.
Based on the foregoing, we affirm the judgment in this case.
AFFIRMED.
HORNSBY, C.J., and HOUSTON, KENNEDY and INGRAM, JJ., concur. | July 26, 1991 |
692250fc-dbb8-4696-ab01-3468e806f6a1 | Ex Parte AmSouth Bank, NA | 589 So. 2d 715 | 1901490 | Alabama | Alabama Supreme Court | 589 So. 2d 715 (1991)
Ex parte AmSOUTH BANK, N.A., as Trustee, et al.
(In re John H. MARTIN, et al.
v.
DRUMMOND COMPANY, INC., Drummond Coal Sales, Inc., Charles W. Adair, Elbert A. Drummond, Garry N. Drummond, Joseph E. Nicholls, Jr., and R. Weaver Self).
1901490.
Supreme Court of Alabama.
October 4, 1991.
*716 Alton B. Parker, Jr., Kenneth O. Simon and Steve R. Burford of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for AmSouth Bank, N.A.
Oakley Melton, Jr. of Melton, Espy, Williams & Hayes, Montgomery, and Michael L. Edwards of Balch & Bingham, Birmingham, for respondents Drummond Co., Inc. and Drummond Coal Sales, Inc.
J. Mark White, Birmingham, for respondents Charles W. Adair and R. Weaver Self.
William Anthony Davis III and W. Stancil Starnes of Starnes & Atchison, Birmingham, for respondents Elbert A. Drummond and Garry N. Drummond.
HOUSTON, Justice.
The plaintiff, AmSouth Bank, N.A., has petitioned this Court for a writ of mandamus directing the Honorable William J. Wynn, judge of the Jefferson County Circuit Court, to disqualify the law firm of Arnold & Porter from representing the defendants, Drummond Company, Inc.; Drummond Coal Sales, Inc.; Elbert A. Drummond; Garry N. Drummond; Joseph E. Nicholls, Jr.; Charles W. Adair; and R. Weaver Self, in this suit alleging breach of fiduciary duties and fraud on the part of the defendants in effectuating the merger of Alabama By-Products Corporation ("ABC") and Drummond Holding Corporation. (The defendants are hereinafter collectively referred to as "Drummond.")[1] The writ is denied.
The pertinent facts are as follows: On or about December 3, 1990, AmSouth retained the New York law firm of Arnold & Porter to represent it in connection with certain banking and corporate matters, including certain transactions known as "interest rate swaps." On March 13, 1991, Drummond retained Arnold & Porter to assist its Alabama counsel, the law firm of Maynard, Cooper, Frierson & Gale, P.C. ("Maynard, Cooper"), in defending it against a suit that had been filed by John H. Martin, a minority stockholder of ABC, challenging the manner in which Drummond had effectuated the merger with ABC. On May 6, 1991, AmSouth, as trustee of a number of trusts that had also owned stock in ABC prior to the merger, sued Drummond, alleging breach of fiduciary duties and fraud on the *717 part of Drummond in purchasing the ABC stock that had been owned by the trusts. AmSouth's suit was consolidated with Martin's suit for trial. Because AmSouth was a client of Maynard, Cooper, that firm withdrew from representing Drummond after AmSouth refused to waive the apparent conflict of interest. Shortly thereafter, realizing that it, too, had a conflict of interest (i.e., that it was defending one of its clients, Drummond, against a suit filed by another of its clients, AmSouth), Arnold & Porter requested that AmSouth and Drummond waive the conflict. Drummond agreed to waive the conflict, but AmSouth refused, stating that its fiduciary responsibilities to the trusts prohibited it from consenting to Arnold & Porter's continued representation of Drummond. AmSouth filed a motion to disqualify Arnold & Porter. Arnold & Porter promptly withdrew from its representation of AmSouth, but continued to represent Drummond. On June 5, 1991, Judge Wynn held a hearing on AmSouth's motion to disqualify Arnold & Porter and, after considering the evidence, denied the motion, stating, in part, as follows:
The parties have stipulated that the corporate work that Arnold & Porter did for AmSouth is not related to its representation of Drummond. The parties have also stipulated that Arnold & Porter was not privy to any confidential information while it was retained by AmSouth that could be used against AmSouth in the present suit. Furthermore, it appears that Arnold & Porter had worked approximately 19½ hours for AmSouth at the time it withdrew from its representation and that it had completed all of its pending work for AmSouth before it withdrew. It also appears that at the time Arnold & Porter discovered it had a conflict of interest, it had done approximately 300 hours of work toward the preparation of Drummond's defense.
The sole issue before this Court is whether AmSouth was entitled to have Arnold & Porter disqualified from continuing to represent Drummond in the present suit.
It is well established that mandamus is a drastic and extraordinary writ to be issued only where there is 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court. Ex parte Alfab, Inc., 586 So. 2d 889 (Ala.1991).
Relying primarily on an unpublished opinion of the Alabama State Bar Disciplinary Commission, RO-91-08, AmSouth contends that Judge Wynn should have disqualified Arnold & Porter under Rule 1.7 of the new Alabama Rules of Professional Conduct, which became effective January 1, 1991. Rule 1.7 provides, in pertinent part, as follows:
Drummond contends that Arnold & Porter acted properly under the circumstances by withdrawing from its representation of AmSouth and continuing with its representation of Drummond. Drummond argues that Arnold & Porter owed a duty of loyalty to Drummond, as well as to AmSouth; that Arnold & Porter made a difficult, but proper, decision to withdraw from its representation of AmSouth, in that Drummond would have suffered more prejudice than AmSouth suffered had Arnold & Porter withdrawn from its representation of Drummond and continued to represent AmSouth; and that, because the corporate *718 work that Arnold & Porter had done for AmSouth is not related to its representation of Drummond, and, further, because Arnold & Porter was not privy to any confidential information while it was retained by AmSouth that could be used against AmSouth in the present suit, it was proper to permit Arnold & Porter to continue its representation of Drummond under Rule 1.9, supra, which provides:
As a threshold matter, we note that mandamus will lie to review Judge Wynn's ruling on AmSouth's motion. In Ex parte Taylor Coal Co., 401 So. 2d 1 (Ala.1981), this Court recognized that a first impression issue arising under the Rules of Professional Conduct that could taint the trial of the case below, such as the issue presented in this case, is too important to await resolution on appeal. See, also, Ex parte America's First Credit Union, 519 So. 2d 1325, 1326 (Ala.1988).
We also note at this point that Judge Wynn had the authority to rule on the merits of AmSouth's disqualification motion. In Ex parte Taylor Coal Co., this Court, quoting Jones v. Alabama State Bar, 353 So. 2d 508, 509 (Ala.1977), quoting In re Evans, 42 Utah 282, 130 P. 217 (1913), stated:
401 So. 2d at 3. See, also, Roberts v. Hutchins, 572 So. 2d 1231 (Ala.1990), wherein this Court held that the trial court should have disqualified the law firm representing the plaintiff because of the previous involvement of one of the law firm's attorneys as counsel for the defendants.
We proceed now to review the merits of AmSouth's motion. As previously noted, AmSouth does not take the position that Arnold & Porter should have been disqualified because Arnold & Porter had access to confidential information that could be used against AmSouth in the present suit. AmSouth concedes that the corporate work that Arnold & Porter did for it is not related in any way to Arnold & Porter's representation of Drummond. Therefore, unless Arnold & Porter was required under the new Rules of Professional Conduct to withdraw from its representation of Drummond, as AmSouth contends it was, Arnold & Porter's continued representation of Drummond was proper under Rule 1.9.
Although a client has a strong interest in retaining the counsel of its choice, Rule 1.7, with certain exceptions not applicable here, prohibits a lawyer from representing two or more clients with conflicting interests. Under Rule 1.7, a lawyer ordinarily may not act as an advocate against a client in another matter even if the other matter is wholly unrelated. See the Comment to Rule 1.7, which states:
Rule 1.16(a)(1) requires a lawyer to withdraw from representing a client if the continued representation of that client would result in a violation of the Rules of Professional Conduct. Although Arnold & Porter was prohibited under Rule 1.7 from representing both Drummond and AmSouth, neither Rule 1.7 nor Rule 1.16(a)(1) required Arnold & Porter to withdraw from representing AmSouth under the circumstances presented here. Nothing in the Rules of Professional Conduct would have prohibited Arnold & Porter from withdrawing from its representation of Drummond and continuing to represent AmSouth in connection with AmSouth's unrelated banking and corporate matters, subject, of course, to the confidentiality requirements of Rules 1.6 and 1.9(b) (i.e., Arnold & Porter could not disclose to AmSouth any of the confidential information to which it had been privy during its representation of Drummond). The question presented, however, is not whether Arnold & Porter was required to withdraw from representing AmSouth, but whether Arnold & Porter was required to withdraw from representing Drummond. In approaching this question, we must keep in mind that the Rules of Professional Conduct are rules of reason. The rules do not exhaust the moral and ethical considerations that should inform a lawyer as to the proper course to take under any given set of circumstances. "The rules simply provide a framework for the ethical practice of law." See Scope, Alabama Rules of Professional Conduct; see, also, Roberts v. Hutchins, supra, at 1233, noting that this Court has adopted a "common sense" approach to questions concerning the professional conduct of lawyers.
As previously noted, it would have been proper under Rule 1.7 and Rule 1.16(a)(1) for Arnold & Porter to withdraw from its representation of Drummond. Drummond takes the position, however, that, under the particular facts of this case, it would defy common sense to require Arnold & Porter to withdraw from its representation of Drummond. Drummond's argument, which we find persuasive, is that Arnold & Porter did not by its own actions create the conflict of interest and that, by requiring Arnold & Porter to withdraw from representing Drummond, Drummond would be prejudiced more than AmSouth was prejudiced by its loss of Arnold and Porter's services. The record shows that shortly after it realized that a conflict of interest had been created when AmSouth sued Drummond, Arnold & Porter sought a waiver of the conflict from AmSouth and that when that waiver could not be provided, it withdrew from representing AmSouth the client that it thought would be the least prejudiced by losing its services. It appears that Arnold & Porter made its decision to withdraw from representing AmSouth after carefully considering the duties of loyalty that it owed to both Drummond and AmSouth. As far as we can tell from the record, Arnold & Porter did not act improperly in withdrawing from its representation of AmSouth. Certainly, Arnold & Porter did nothing to potentially undermine public confidence in the legal profession and the judicial process.
In reaching this conclusion, we are aware that the State Bar Disciplinary Commission has ruled that lawyers ordinarily should *720 not be permitted to avoid disqualification under Rule 1.7 simply by dropping one client for another and then relying on the provisions of Rule 1.9. The unpublished opinion of the Disciplinary Commission relied on by AmSouth, RO-91-08, reads, in pertinent part, as follows:
We believe, however, that the facts of the present case are materially distinguishable from the facts that were presented to the Disciplinary Commission in RO-91-08. The Disciplinary Commission's decision was based, in large part, on the premise that a law firm should not be allowed to abandon its absolute duty of loyalty to one of its clients so that it can benefit from a conflict of interest that it has created. Other courts have recognized that the manipulation *722 of client relationships could be the potential result if law firms were allowed to discard one attorney-client relationship in contemplation of pursuing a more beneficial, conflicting representation. See, e.g., Florida Insurance Guaranty Association, Inc. v. Carey Canada, Inc., 749 F. Supp. 255 (S.D.Fla.1990); Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121 (N.D.Ohio 1990); see, also, Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491 (11th Cir.1989); and Chateau De Ville Productions, Inc. v. Tams-Witmark Music Library, Inc., 474 F. Supp. 223 (S.D.N.Y.1979). However, these courts have either held, or indicated, that, under circumstances similar to those in the present case, a law firm may avoid disqualification by moving swiftly to withdraw from its representation of a client, so as to minimize the prejudice to each client concerned, provided that the law firm did not play a role originally in creating the conflict of interest. In our view, this approach, which we adopt today, is consistent with the "common sense" approach that has been adopted by this Court for resolving questions under the Rules of Professional Conduct. See, e.g., Chateau De Ville Productions, Inc., supra, where the court made the following observation:
474 F. Supp. at 225-26.
Therefore, after careful review of the Rules of Professional Conduct, the applicable case law, and the particular facts of this case, and after considering the duties of loyalty that Arnold & Porter owed to both Drummond and AmSouth, as well as the fact that Arnold & Porter did not by its own actions create the conflict of interest, we hold that Arnold & Porter did not act improperly in withdrawing from its representation of AmSouth and continuing its representation of Drummond. We do point out, however, that the record indicates that Arnold & Porter has not yet made a formal appearance in Jefferson Circuit Court on behalf of Drummond. Our holding in this case should in no way be interpreted as an indication by this Court that Arnold & Porter should be permitted to appear in Jefferson Circuit Court in the absence of the proper introduction and recommendation by a member of the Board of Commissioners of the Alabama State Bar. See Rule 7 ("Admission of Non-resident Attorneys Pro Hac Vice"), Rules Governing Admission to the Alabama State Bar.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] AmSouth's complaint identifies the defendants as follows: Drummond Company, Inc., is an Alabama corporation and its subsidiary, Drummond Coal Sales, Inc., is a Delaware corporation. Both corporations engage in the business of mining, purchasing, and selling coal. Elbert A. Drummond is on the board of directors of both Drummond Company, Inc., and Drummond Coal Sales, Inc., and serves as president of both of those corporations. Elbert A. Drummond is also vice-chairman of the board of directors of ABC. Garry N. Drummond is chairman of the board of directors of Drummond Company, Inc., and serves as its chief executive officer. Garry N. Drummond is also on the board of directors of Drummond Coal Sales, Inc., and is chairman of the board of directors of ABC. Joseph E. Nicholls, Jr., is on the board of directors of Drummond Company, Inc., and Drummond Coal Sales, Inc., and serves as a senior vice-president of both corporations. Nicholls is also a member of the board of directors of ABC. R. Weaver Self is on the board of directors of ABC and serves as one of its senior vice-presidents and as its controller and treasurer. Charles W. Adair is on the board of directors of ABC and serves as its chief executive officer. | October 4, 1991 |
675a5018-d866-448d-b89d-78e56c07071a | Streeter v. Young | 583 So. 2d 1339 | 1901300 | Alabama | Alabama Supreme Court | 583 So. 2d 1339 (1991)
Samuel C. STREETER
v.
Gary C. YOUNG.
1901300.
Supreme Court of Alabama.
July 26, 1991.
Samuel C. Streeter, pro se.
Sam Maples, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment entered in favor of the defendant, Gary C. Young, in a civil action brought by Samuel C. Streeter, who contends that Young was guilty of legal malpractice in his representation of Streeter in Streeter's criminal case. We affirm.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter summary judgment. 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. Rule 56; RNH, Inc. v. Beatty, 571 So. 2d 1039 (Ala.1990). In determining if summary judgment is proper, the trial court must view the motion in the light most favorable to the nonmovant, and, in reviewing a summary judgment, this Court is limited to reviewing the factors and evidence considered by the trial court when it granted the motion. Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala.1985).
Rule 56 is to be read in conjunction with the "substantial evidence rule" for actions filed after June 11, 1987. See § 12-21-12, Alabama Code 1975; Bass v. *1340 SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Therefore, in order to defeat a properly supported motion for summary judgment, Streeter 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).
Streeter has not presented substantial evidence of malpractice on the part of Young in defending Streeter.
This case is indistinguishable from Hines v. Davidson, 489 So. 2d 572 (Ala. 1986). In Hines, we noted that a legal malpractice complaint filed by a criminal defendant against trial counsel "will not support a claim for relief in the absence of an averment that the conviction of the defendant was proximately caused by the alleged negligence of the lawyer and that, but for that negligence, he would have been acquitted." Hines, 489 So. 2d at 573, citing Herston v. Whitesell, 374 So. 2d 267 (Ala.1979). Streeter failed to offer substantial evidence that his conviction was the proximate result of Young's alleged negligence, and that, but for Young's negligence, he would have been acquitted.
On the basis of Hines, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | July 26, 1991 |
8e388f60-1b09-476d-aeaa-6796e6112f29 | Ex Parte Bui | 627 So. 2d 848 | N/A | Alabama | Alabama Supreme Court | 627 So. 2d 848 (1991)
Ex parte Quang Ngoc BUI.
(Re Quang Ngoc Bui
v.
State).
87-1423.
Supreme Court of Alabama.
July 12, 1991.
Bryan A. Stevenson and Oliver W. Loewy, Montgomery, for petitioner.
James H. Evans, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
PER CURIAM.
On June 12, 1986, Quang Ngoc Bui, a South Vietnamese immigrant, was convicted in the Montgomery Circuit Court of the murder of his three children, an offense made capital by Alabama Code 1975, § 13A-5-40(a)(10). After a sentencing hearing in accordance with §§ 13A-5-45 and -46, the jury recommended that his penalty be death. The trial judge held a second sentencing hearing, in accordance with §§ 13A-5-47 through -52, and sentenced Bui to death.
Bui's conviction and death sentence were affirmed by the Alabama Court of Criminal Appeals and by this Court. Bui v. State, 551 So. 2d 1094 (Ala.Cr.App.1988), aff'd, 551 So. 2d 1125 (Ala.1989). On April 22, 1991, the United States Supreme Court vacated this Court's judgment and remanded the case for further consideration in light of Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). Bui v. Alabama, 449 U.S. 971, 111 S. Ct. 1613, 113 L. Ed. 2d 712 (1991).
In Powers, the United States Supreme Court held that a criminal defendant, regardless of race, has standing to raise a Batson[1] challenge to the State's exercise of peremptory strikes against black prospective jurors based on race. The Supreme Court in Powers noted that not to allow a Batson challenge simply because the defendant and the excluded jurors are not of the same race "would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury service." Powers, 499 U.S. at 415, 111 S. Ct. at 1373, 113 L. Ed. 2d at 428.
In this case, counsel for Bui challenged the State's use of 6 of its 13 strikes to remove blacks from the jury. In response, the district attorney made a mere denial of discriminatory motive and an affirmation of his good faith. In light of the Supreme Court's holding in Powers, Bui's case is remanded to the Montgomery Circuit Court for a hearing on the State's use of its peremptory strikes. The trial court shall make a due return within *849 90 days to this Court indicating its action on remand.
REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). | July 12, 1991 |
94d4fb7b-08dc-40e3-8192-26382b0ca702 | Olympia Produce v. Associates Fin. Serv. | 584 So. 2d 477 | 1900036 | Alabama | Alabama Supreme Court | 584 So. 2d 477 (1991)
OLYMPIA PRODUCE COMPANY, INC.
v.
ASSOCIATES FINANCIAL SERVICES OF ALABAMA, INC.
1900036.
Supreme Court of Alabama.
June 28, 1991.
*478 William M. Hawkins and Robert D. McWhorter of Buttram & McWhorter, Centre, for appellant.
James A. Bradford and Michael D. Freeman of Balch & Bingham, Birmingham, for appellee.
HORNSBY, Chief Justice.
Olympia Produce Company ("Olympia") filed a two-count complaint in the Circuit Court of Cherokee County against Marc Fobbus, Cheryl Fobbus, Helen Fobbus Oyler, and Associates Financial Services of Alabama, Inc. ("Associates"). In its first count, Olympia sought a judgment against defendants Marc Fobbus, Cheryl Fobbus, and Helen Fobbus Oyler for the unpaid balance of a promissory note executed by them. Olympia further asked that the mortgage on property located in Cherokee County, Alabama (this property had been mortgaged to Olympia by defendant Helen Fobbus Oyler, who owned a one-half interest, as security for the payment of the promissory note) be judicially foreclosed. In its second count, Olympia asked for money damages against the individual defendants, alleging that they intentionally, willfully, maliciously, and/or recklessly added certain language to a document by which Olympia had released the DeKalb County property (this property had been mortgaged to Olympia by defendants Marc Fobbus and Cheryl Fobbus as security for the payment of the promissory note). Olympia further asserted that its mortgage on the property located in Cherokee County was superior to a mortgage later given to Associates on the same property. Associates answered, saying that Olympia's mortgage was subordinate to that of Associates.
Olympia moved for a partial summary judgment on its first count, which the trial court denied. However, the trial court granted Associates' motion for summary judgment, holding that Associates' mortgage on the Cherokee County property was superior to and had priority over Olympia's mortgage on that same property.[1] Olympia appeals from the summary judgment. We reverse and remand.
On December 22, 1987, Marc Fobbus, Cheryl Fobbus, and Helen Fobbus Oyler executed a promissory note in favor of Olympia in the principal amount of $50,000. As security for payment of that obligation, Marc and Cheryl Fobbus executed a mortgage in favor of Olympia on real property they owned in DeKalb County, Alabama. As further security for the same obligation, Helen Fobbus Oyler executed a mortgage in favor of Olympia on real property in which she had a one-half ownership interest in Cherokee County, Alabama.
On June 9, 1988, Marc and Cheryl Fobbus borrowed $97,849.17 from Associates. Mortgages on the same DeKalb and Cherokee County properties were executed in Associates' favor to secure this obligation. Associates issued a check for $13,000 to Marc and Cheryl Fobbus and Olympia for the satisfaction of Olympia's mortgage and the release of the DeKalb County property.
Associates claimed that it did not seek a release of the land subject to Olympia's Cherokee County mortgage because it was unaware of that mortgage. It is undisputed that when preparing the Cherokee County mortgage, Olympia incorrectly identified the mortgagor as Helen Fobbus Ogler. The correct spelling of her name is O-y-l-e-r. As a result of this misspelling, the mortgage was improperly indexed in the property records of Cherokee County. A title search performed by an abstractor employed by TRW Real Estate Loan Services *479 failed to reveal Olympia's mortgage on the Cherokee County property.
Olympia sued, alleging that there was a question as to the superiority and priority of its mortgage on the Cherokee County property. It requested that the trial court enter a judgment for the unpaid balance of the debt owed by Marc Fobbus, Cheryl Fobbus, and Helen Fobbus Oyler. Olympia claimed that the release affected only the DeKalb County property and that Marc and Cheryl Fobbus and Helen Fobbus Oyler remained liable on the promissory note executed in favor of Olympia.
Associates maintained that its interest in the Cherokee County property was superior to Olympia's interest in that property. Associates moved for a summary judgment on the ground that it had taken its mortgage without actual or constructive knowledge of Olympia's prior mortgage on the Cherokee County property. Olympia argued in opposition to Associates' motion for summary judgment that Associates had had actual knowledge of Olympia's prior mortgage. Olympia claimed that Mr. Charles C. Collins, its president and sole stockholder, had informed Mr. Dave Tarbox, a manager of Associates, of the existence of Olympia's Cherokee County mortgage. Associates disputed the assertion that Collins had informed Tarbox of the mortgage. The trial court granted Associates' motion for summary judgment.[2]
A person taking a real property interest can have either actual or constructive knowledge of a prior interest in the property, or can have both kinds of knowledge. Either gives the holder of the prior interest priority over the person taking the subsequent interest. Ala.Code 1975, § 35-4-90, provides:
(Emphasis added.) The parties do not dispute that Olympia's mortgage on the Cherokee County property was incorrectly indexed and that constructive knowledge was thereby precluded. An instrument that is outside the chain of title does not give constructive notice of the contents of that instrument. Rolling "R" Constr., Inc. v. Dodd, 477 So. 2d 330 (Ala.1985). Therefore, the sole issue before this Court is whether the trial court erred in finding that there was no genuine issue of material fact concerning whether Associates had taken its mortgage on the Cherokee County property with actual knowledge of Olympia's prior mortgage on that property.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering summary judgment. The rule requires the trial court to determine: (1) that there is no genuine issue of material fact; and (2) that the moving party is entitled to a judgment as a matter of law. 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 the light most favorable to the nonmovant and resolve all reasonable doubts against the movant. 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).
Because this action was filed after June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that, once the movant makes his prima facie showing, the nonmovant meet his burden by "substantial evidence." 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) (citing Rowden v. Tomlinson, 538 So. 2d 15, 19 (Ala.1988) (Jones, J., concurring)). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
Our review of the evidence presented to the trial court on Associates' motion for summary judgment leads us to conclude that the court erred in finding that there was no material issue of fact with regard to whether Associates had had actual knowledge of Olympia's prior mortgage.
Although the parties strongly disagree as to whether Mr. Collins expressly informed Mr. Tarbox of the existence of the prior Olympia mortgage, we find that there is a genuine issue of material fact as to whether the circumstances were such that Associates was under an obligation to inquire into the existence of a prior mortgage on property on which it was also taking a mortgage. In White v. Boggs, 455 So. 2d 820 (Ala.1984), we stated that "`[w]hatever is sufficient to excite attention and put the party on his guard and call for inquiry is notice of everything to which the inquiry would have led.'" Id. at 821 (quoting Jefferson County v. Mosley, 284 Ala. 593, 599, 226 So. 2d 652, 656 (1969)).
First Alabama Bank of Tuscaloosa v. Brooker, 418 So. 2d 851, 856 (Ala.1982); see also First Alabama Bank of Huntsville v. Key, 394 So. 2d 67, 68 (Ala.Civ.App.1981) ("[w]hatever is sufficient to put one on guard, and call for inquiry, is notice of everything to which inquiry would lead").
Mr. Collins stated in his deposition that Mr. Tarbox understood that there were two pieces of property and that Olympia was willing to release only the DeKalb County property. In response to questioning about whether he told Mr. Tarbox about the mortgage on the Cherokee County property, Mr. Collins stated in his deposition that he was sure that the existence of *481 the mortgage was discussed in a conversation between him and Mr. Tarbox. Conversely, Mr. Tarbox stated in an affidavit that Mr. Collins never told him about the mortgage on the Cherokee County property. "The trial court may consider pleadings, answers to interrogatories, depositions, and affidavits in determining whether there is a genuine issue of material fact." Greene v. Thompson, 554 So. 2d 376, 379 (Ala.1989) (citing Rule 56(c), A.R.Civ.P.) (emphasis added).
Further, Olympia raised a question regarding a notation made on the $13,000 check that Associates had issued to the Fobbuses and Olympia. The notation indicated that the check was for the release of Olympia's mortgage on the DeKalb County property. We believe that the jury could draw from this notation an inference in determining whether Associates had actual knowledge of Olympia's prior mortgage on the Cherokee County property. In this case, it is plausible that the notation on the face of the check relating to the DeKalb County mortgage could suggest that the person making the notation was aware of other existing mortgages. Evidence was presented in the deposition testimony of Mr. Collins that Olympia would not release its mortgage on the DeKalb County property without a notation on the check from Associates indicating that the release pertained only to the DeKalb County property and not the Cherokee County property.
Finally, we note, in agreement with Olympia, that "the plaintiff, to counter the defendant's evidence in support of [its] motion for summary judgment, need not show to a mathematical certainty that [the nonmovant] would prevail on [its] claims; [the nonmovant] need only place before the court genuine issues of material fact." Berner v. Caldwell, 543 So. 2d 686, 690 (Ala.1989). We believe that "reasonable and fair-minded persons in the exercise of impartial judgment" might conclude that Associates had taken its mortgage with actual knowledge of, or such knowledge as to put it on inquiry as to, the existence of Olympia's prior mortgage. Ala.Code 1975, § 12-21-12. Because there exists a genuine issue of material fact as to whether the mortgage of Associates is superior to and has priority over the mortgage held by Olympia, the summary judgment was improper.
REVERSED AND REMANDED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The trial court subsequently entered a Rule 54(b) judgment as to Associates on both counts alleged in Olympia's complaint. On this appeal, we are not presented with any issue pertaining to the individual defendants.
[2] In its order the trial court stated:
"The Defendant, Associates Financial Services, seeks a summary judgment against the Plaintiff establishing the priority and superiority of the Associates mortgage to that of the Plaintiff.
"It is undisputed that the Plaintiff's mortgage was misindexed in the records of the Probate Court of Cherokee County, due to the misspelling of the mortgagor's name, and that the misspelling thereof was caused by the Plaintiff. The Court further finds that it is substantially undisputed that the Defendant, Associates Financial Services, did not have either constructive or actual knowledge of the mortgage of the Plaintiff.
"There being no material issue of fact, and the Defendant, Associates Financial Services, being entitled to a judgment as a matter of law, it is,
"ORDERED, ADJUDGED AND DECREED that the mortgage of the Defendant, Associates Financial Services, Inc., is superior to and has priority over, that mortgage of the Plaintiff on property in Cherokee County, Alabama, made the subject of this suit." | June 28, 1991 |
3fd6d673-286b-4a16-b7be-a959f89cc104 | WLO v. Smith | 585 So. 2d 22 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 22 (1991)
W.L.O., as the mother and NEXT FRIEND OF A.O., a minor
v.
Hazel SMITH, et al.
89-1765.
Supreme Court of Alabama.
July 19, 1991.
*23 J. Gusty Yearout, Deborah S. Braden and P. Mark Petro of Yearout, Myers & Traylor, P.C., Birmingham, for appellant.
Joe L. Tucker, Jr. of Hardin & Tucker and David S. Hassinger of Porter, Porter & Hassinger, Birmingham, for appellees.
ALMON, Justice.
The plaintiff, W.L.O., as the mother and next friend of A.O., a minor,[1] appeals from a summary judgment entered in favor of the City of Bessemer Board of Education ("the Board"); members of the Board; Hazel Smith, the principal of A.O.'s school; and Mary Blankenship, A.O.'s kindergarten teacher.[2] She also appeals from the dismissal of one of the claims in the complaint. The plaintiff's claims against each of the defendants arose out of a sexual assault that she alleges occurred on the school grounds.
On January 11, 1985, the child was a kindergarten student at Abrams Primary School in Bessemer. That morning she followed her routine in preparing for school and was given a ride to school by a neighbor. Upon arriving at school, the child ate breakfast at the cafeteria with her older sister. The sister then walked with the child to her classroom.
At approximately 10:00 that morning, the child used a restroom that was located inside the classroom. According to Blankenship's deposition, a teacher's aide entered the restroom after the child left and found splotches of blood on the floor and blood-stained tissue in the toilet. The aide reported her findings to the teacher, who asked the students if anyone had been hurt. Again according to Blankenship's deposition, the child raised her hand and said that she had a nosebleed. Blankenship was unable to find any evidence of a nosebleed and notified the principal, Smith. Smith took the child into the restroom and lowered the child's pants, whereupon she discovered blood on her underpants. She asked the child how she had been hurt, and, according to Smith's deposition, the child said she had fallen against a table.
The school notified the child's mother, who came to pick up the child. She then took the child home where, according to her deposition, she and the child's grandmother examined the child and discovered that her vaginal opening had been lacerated. Smith was called to the house. She also examined the child and then called the school janitor to come and drive the child and her mother to Children's Hospital in Birmingham. At the hospital, according to the mother's deposition, the child said she had been attacked on the school grounds during "play" by a white man and a black man whom she called "Salt" and "Pepper."
The child denied having any recollection of being assaulted. Therefore, the mother's deposition provides the only account of what the plaintiffs allege to be their version of how and when the assault against the child occurred. According to that testimony, the child told her mother that as she was going from the playground to a restroom, "Salt" and "Pepper" grabbed her, threw her to the ground, and assaulted her. After the attack, the child said, she ran to the school door where a janitor named David opened the locked door for her and let her into the school.[3]
The child's grandmother, who at the time was her legal guardian, filed an action in her individual capacity and on the child's behalf against the City of Bessemer, the Board, its members, Blankenship, and Smith. Count one of that complaint alleged *24 that the defendants had negligently or wantonly left the child unattended on the playground, thus allowing her to be assaulted. Count two of the complaint alleged that the defendants had breached an implied contract to provide the child with a safe place to attend school. In count three of the complaint, the plaintiff alleged that Smith and Blankenship were aware, or should have been aware, that "Salt" and "Pepper" were in the vicinity of the school and had been harassing children. She also alleged that the defendants' failure to protect the child from the assault deprived her of due process of law in violation of the Fourteenth Amendment and subjected the defendants to damages pursuant to 42 U.S.C. §§ 1983 and 1985. Count three was later amended to include allegations that the defendants had acted in bad faith by failing to properly supervise the child. It also contained allegations that the defendants had conspired to conceal the "true facts concerning the ... attack on [the child]."
After the complaint was filed, the child's grandmother died and the child's mother was substituted as the plaintiff.[4] The trial court later dismissed the breach of implied contract claim on the authority of this Court's decisions in Brown v. Calhoun County Board of Education, 432 So. 2d 1230 (Ala.1983); and Sims v. Etowah County Board of Education, 337 So. 2d 1310 (Ala.1976). It also granted the defendants' motion for summary judgment on the remaining counts in the complaint. The plaintiff appeals.[5]
The trial court entered a summary judgment on the negligence count based on its determination that, even assuming that the assault on the child occurred on school grounds, there was no evidence that Smith or Blankenship had acted negligently so as to allow the assault to occur. We agree. After reviewing the depositions of the child, various members of her family, Smith, and Blankenship, this Court concludes that none of those depositions contains any testimony that would indicate that the child was negligently supervised on the day that she was assaulted. Instead, those depositions indicate the existence of a serious dispute as to whether the attack took place, or indeed, could have taken place, at the child's school. Even viewing the evidence in the light most favorable to the nonmovant, as this Court is required to do, Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala.1985), we agree with the trial court that the plaintiff failed to present any evidence of negligence.
The plaintiff seeks to overcome her failure of proof by arguing that negligence can be shown in this case by circumstantial evidence. However, as the trial court noted in its summary judgment, such a finding would necessarily be based on multiple inferences. Assuming that from the evidence one could draw an inference that the child was assaulted on school grounds, could one draw an additional inference that the attack occurred as a result of a faculty member's negligence? If so, would that second inference provide the evidence of negligence necessary to defeat the motion for summary judgment?
As to the first query, in Stevens v. Chesteen, 561 So. 2d 1100 (Ala.1990), a case that also involved allegations of negligent supervision, this Court held that the mere fact that an injury has "occurred is not evidence of negligence and that negligence in [negligent supervision cases] will not be found `by inference.'" 561 So. 2d at 1103 (citing Banks v. Terrebonne Parish School *25 Board, 339 So. 2d 1295, 1297 (La.App.1976). Because any finding of negligence would necessarily be the product of inference, our inquiry could end here. However, as stated earlier, the evidence before the trial court would not have supported an inference of negligence.
Notwithstanding the plaintiff's failure of proof, there are a number of policy reasons that argue against exposing the defendants to potential liability. In Stevens, supra, this Court recognized the impracticality of exposing teachers to liability for alleged negligent supervision: "[I]t must always be remembered that the reality of school life is such that a teacher cannot possibly be expected to personally supervise each student in his charge at every moment of the school day." 561 So. 2d at 1103. Also, this Court has been exceedingly reluctant to hold defendants liable for the criminal acts of third parties. See, e.g., Bailey v. Bruno's, Inc., 561 So. 2d 509 (Ala.1990). In Henley v. Pizitz Realty Co., 456 So. 2d 272, 277 (Ala.1984), this Court held that defendants could not be held liable for the criminal acts of third parties unless they knew or had reason to know that a criminal act was about to occur on the defendants' premises. Finally, this Court has held that municipal boards of education, as agencies of the State empowered to administer public education in cities, are immune from tort liability. Enterprise City Board of Education v. Miller, 348 So. 2d 782 (Ala.1977).
For the reasons set out above, the summary judgment on the claim of negligence was appropriate.
The trial court dismissed that portion of the plaintiff's complaint alleging an implied contract between her and the Board to provide the child with a safe place to attend school. As this Court noted in Brown v. Calhoun County Board of Education, 432 So. 2d 1230, 1231 (Ala.1983), there are no Alabama cases holding that a school board is "impliedly obligated to furnish a safe atmosphere to students under its jurisdiction." The dismissal of that count was not error.
The plaintiff alleges that the failure of the child's teacher and principal to protect her from the assault deprived her of due process of law, as that right is guaranteed by the Fourteenth Amendment, and that she is therefore entitled to damages under 42 U.S.C. § 1983. She also alleges that the defendants conspired to conceal the "true facts" surrounding the child's assault, again depriving her of due process of law and violating 42 U.S.C. § 1985.[6]
The trial court entered summary judgment on the § 1983 claim pursuant to the United States Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). In DeShaney, the Court held that the Due Process Clause of the Fourteenth Amendment serves as a limitation on the States' power to act, and cannot be read as a guarantee of protection from the criminal acts of third parties. 489 U.S. at 196-97, 109 S. Ct. at 1003-04. However, the Court did recognize that in cases where the State has imprisoned, institutionalized, or otherwise deprived an individual of his personal liberty against his will, a "special relationship" arises and the Constitution will impose a duty on the State to assume some responsibility for the individual's safety and well-being. 489 U.S. at 198-99, 109 S. Ct. at 1005. In construing the Fourteenth Amendment's Due Process Clause, this Court must look to decisions of the United States Supreme Court for guidance. Because the child was not incarcerated or otherwise institutionalized, the Due Process Clause of the Fourteenth Amendment is not implicated in this case. DeShaney, supra. The summary judgment was proper as to that claim.
Finally, the plaintiff argues that the court erred by refusing to strike the depositions of Mitzi Green, a social worker for *26 the Department of Human Resources, and Leigh Turner Noel, the head of the rape response division at a private counseling center. Both Ms. Green and Ms. Noel investigated the assault and interviewed the child at the request of the Bessemer police department. They testified that, based on their interviews with the child, they had concluded that she had been assaulted at her home rather than at her school.
The plaintiffs argue that Ms. Green and Ms. Noel were not competent to give the testimony contained in their depositions, and that their conclusions invaded the province of the jury. However, determinations regarding the competency of witnesses to testify are within the discretion of the trial court, Pugh v. State Farm Fire & Casualty Ins. Co., 474 So. 2d 629 (Ala. 1985); Maslankowski v. Beam, 288 Ala. 254, 259 So. 2d 804 (1972), and such determinations will not serve as grounds for reversal absent an abuse of that discretion. Brackett v. Coleman, 525 So. 2d 1372 (Ala. 1988).
For the reasons set out above, the judgment of the trial court is affirmed.
MOTION TO DISMISS PORTION OF APPEAL DENIED.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Because this case involves allegations of sexual abuse against a minor, and because disclosure of that child's name would not serve any purpose, this Court will refer to the child either by the initials "A.O." or as "the child." The plaintiff-mother will be referred to by the initials" "W.L.O." or as "the mother." Rule 52, Ala.R.App.P.
[2] A separate final summary judgment was entered in favor of the defendant City of Bessemer. The propriety of that judgment is not an issue in this appeal.
[3] A number of the allegations in the mother's version of the child's story, including whether A.O., or any other child, ever left the school building that morning and whether a janitor let her back into the school, are refuted by the depositions of Smith, Blankenship, and both janitors at the school.
[4] The mother was substituted solely in her capacity as mother and next friend.
[5] The trial court entered a summary judgment as to the negligence and wantonness counts on January 26, 1990. On July 24, 1990, the court entered a second summary judgment as to the § 1983 and § 1985 claims. The defendants have asked this Court to dismiss the plaintiff's appeal except for the portion concerning the summary judgment on the § 1983 and § 1985 claims. They contend that the plaintiffs' notice of appeal makes reference only to the July 24, 1990, order. However, because that order made final the rulings as to all of the plaintiff's claims, the defendants' motion to dismiss is denied. The plaintiff does not appeal the summary judgment on her claim of wantonness.
[6] The plaintiff has not appealed the summary judgment as to her § 1985 claim. | July 19, 1991 |
4a6c7d09-3abc-40a4-a962-b95abf0a45d4 | Cove Creek Development Corp. v. APAC-Alabama, Inc. | 588 So. 2d 458 | 1900253 | Alabama | Alabama Supreme Court | 588 So. 2d 458 (1991)
COVE CREEK DEVELOPMENT CORPORATION
v.
APAC-ALABAMA, INC.
1900253.
Supreme Court of Alabama.
June 28, 1991.
*459 Joseph M. Cloud of Morris, Smith, Siniard, Cloud and Fees, Huntsville, for appellant.
Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
HORNSBY, Chief Justice.
APAC-Alabama, Inc. ("APAC"), brought a breach of contract action against Cove Creek Development Corporation ("Cove Creek"). APAC alleged that Cove Creek had wrongfully withheld $81,509.12 from payment for work APAC had performed for Cove Creek as a contractor. Cove Creek argued that under the terms of the construction contract it was entitled to withhold $300 per day as liquidated damages for each day that APAC was late in completing its contract. After an ore tenus hearing, the trial court held in favor of APAC and awarded it $81,509.12 in damages. We reverse and render a judgment in favor of Cove Creek.
The parties entered into a construction contract on May 20, 1988. The contract called for the work to be completed by a deadline of October 20, 1988. The work consisted primarily of site grading, installing storm sewers and a drainage system, and construction of curbs, gutters, and roads. Cove Creek also awarded a contract to R & M Construction Company ("R & M") for utilities work to be completed by August 20, 1988. APAC claimed that it was forced to abandon the construction site from August 19, 1988, until September 19, 1988, because of R & M's work. Because of the delay that R & M had caused, Cove Creek moved the deadline back 45 days to December 4, 1988. APAC, however, did not complete construction until September 15, 1989. Consequently, Cove Creek withheld $81,509.12 pursuant to the terms of a liquidated damages clause in the contract. According to the provisions of the liquidated damages clause, APAC would pay Cove Creek $300 for every day past the deadline (adjusted to December 4, 1988). This clause also provided that Cove Creek would pay $300 to APAC for each day that APAC completed the work before the deadline.
When APAC completed construction on September 15, 1989, Cove Creek withheld $81,509.12 on the grounds that APAC had finished construction 285 days late.[1] APAC sued Cove Creek for breach of contract, claiming that no money should have been withheld under the liquidated damages clause because, it said, all of the delays were either caused by R & M, changes in the specifications, or an excessive amount of rain at the construction site during the contract period. The trial court held in favor of APAC, holding that APAC's delay was excused for the following reasons:
"[Cove Creek] was issuing change orders to the plans and specifications into August of 1989, well after the completion date [of October 20, 1988] called for in the contract. Evidence showed that while rainfall for the months of May 1988 to October 1988 averaged approximately 3.73 inches below the ten (10) year average for the affected area, rainfall *460 for the months of November 1988 to September 1989 was approximately 20.32 inches above average. Evidence was further offered to show that this amount caused the soil used to construct the road bed to pump and yield,[2] and did not allow the sub-grade to stabilize. Testimony reflected that [APAC] continued attempts to stabilize the sub-grade well into 1989. Written evidence documented that [APAC] was instructed in late April of 1989 not to lay the final layer of paving until so authorized by the project engineers.
Cove Creek argues on appeal that the trial court erred because, it says, portions of the contract specifically govern any excusable delay. Cove Creek first points out that this construction contract stated that time was of the essence and then contained a liquidated damages clause applicable to any delays:
The contract also provided for adjustments to the completion date made necessary by unavoidable delays, overruns, or additions to the contract:
"In arriving at any credit due the contractor [APAC] for an extension of time on the contract, the owner [Cove Creek], upon the recommendation of the engineer, *461 may allow such credit as in his judgment is deemed equitable and just for all delays occasioned by any act, or failure to act, on the part of the contractor or caused by forces beyond the contractor's control. Additional time will also be allowed the contractor to cover approved overruns or additions to the contract in the same proportion that the said over-runs or additions in monetary value bears to the original contract amount.
The above provisions were the sole remedy provided in the contract for any delay in the construction. The contract also provided:
(Emphasis added.)
As the above-quoted portion of the contract shows, all of the allegedly unavoidable delays were covered by the contract. APAC was apparently aware of these provisions regarding completion date extensions, because it took advantage of those provisions in obtaining a 45-day extension on the grounds that R & M's utility work had caused it to abandon the construction site. Even with this extension, however, APAC completed its work under the contract 285 days late. Further, in spite of the fact that APAC was aware of the lengthening delay, APAC never sought any other extension under the contract. As a result of this delay Cove Creek alleges that it incurred damages in interest payments alone of over $176,000.
The trial court heard ore tenus evidence on June 14, 1990. Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court's findings of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So. 2d 877, 878 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala.1981). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Gaston, supra; Smith v. Style Advertising, Inc., 470 So. 2d 1194 (Ala.1985); League v. McDonald, 355 So. 2d 695 (Ala. 1978).
The record in this case shows that the trial court improperly applied the law to the facts presented. The trial court held that the 285-day delay was "totally excused" because of (1) interference by R & M, (2) changes to the plans and specifications initiated by Cove Creek, and (3) unanticipated adverse weather conditions. Although all of those conditions may have indeed caused APAC not to complete its work by the deadline, we can not agree that under Alabama law these conditions constituted excusable delay so as to nullify the liquidated damages provision in the contract.
Alabama has consistently enforced building contracts that contain liquidated damages provisions that specify that for each day's delay in completion beyond a fixed date the contractor will be liable for a fixed sum. The sole caveat in this enforcement is that the liquidated damages provision must not be a penalty. See, e.g., Ray Sumlin Construction Co. v. City of Mobile, 519 So. 2d 511 (Ala.1988); Alpine Construction *462 Co. v. Water Works Board of the City of Birmingham, 377 So. 2d 954 (Ala.1979).
In this case, the trial court did not hold that the liquidated damages provision was void as a penalty. Rather, it held that APAC's delay was excusable. All of the reasons the trial court cited for the delay were specifically addressed in the contract. In Alpine Construction Co. v. Water Works Board of the City of Birmingham, 377 So. 2d 954 (Ala.1979), Alpine Construction had entered into a building contract with the Water Works Board of the City of Birmingham ("Water Works Board"). The construction contract in that case contained a liquidated damages provision and a provision for extensions, both of which are remarkably similar to the corresponding provisions in the Cove Creek contract.
The liquidated damages provision at issue in Alpine Construction provided that Alpine Construction would pay $100 per day for each day of delay in completing the construction beyond the specified time. The contract also provided for extensions of time to be granted within the discretion of the Water Works Board's engineer for delays caused by weather conditions, changes in construction orders, and any delay caused by another contractor. The contractor had five days after the occurrence of the delay in which to notify the engineer in writing and to request an extension.
Alpine Construction was 401 days late in completing the construction and the Water Works Board withheld $30,000 from its final payment. Alpine Construction sued the Water Works Board to recover the $30,000, claiming that it had been wrongfully withheld pursuant to the liquidated damages provision. Alpine Construction argued that it was entitled to be excused for its late performance under the doctrine of impossibility of performance, because of the difficulty in obtaining certain material, and it claimed that the Water Works Board had itself caused much of the delay.
This Court held that the liquidated damages provision in that contract was enforceable and that Alpine Construction's delay was not excusable:
Alpine Construction, 377 So. 2d at 956 (citations omitted).
Likewise, in this case, the Cove Creek contract provided that time was of the essence and then went on to specify liquidated damages for delays. The contract also contained a provision for extensions, and APAC availed itself of that provision on at least one occasion and received a 45day extension because of delays caused by R & M. We hold that APAC's delays were not excusable and that it is bound by the contract and subject to the liquidated damages provision. Therefore, we hold that Cove Creek was within its rights under the liquidated damages provision to withhold $81,509.12 for the 285-day delay. Accordingly, the judgment of the trial court is reversed and a judgment is rendered in favor of Cove Creek.
REVERSED AND JUDGMENT RENDERED.
ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Based on 285 days' delay, Cove Creek actually withheld $85,500, but it reimbursed APAC $3,990.88 for testing costs. Therefore, the amount that Cove Creek withheld from payment was $81,509.12.
[2] This condition in the road surface is caused when there is excessive moisture in the soil upon which the road is built. | June 28, 1991 |
4c1871d3-2403-4bd8-9405-41af624c4a11 | Murdoch v. Knollwood Park Hosp. | 585 So. 2d 873 | 1901297 | Alabama | Alabama Supreme Court | 585 So. 2d 873 (1991)
Donald J. MURDOCH
v.
KNOLLWOOD PARK HOSPITAL.
1901297.
Supreme Court of Alabama.
August 2, 1991.
*874 Michael J. Harbin, Mobile, for appellant.
Reggie Copeland, Jr. and Robert S. McAnnally of Lyons, Pipes & Cook, Mobile, for appellee.
STEAGALL, Justice.
Donald J. Murdoch, M.D., appeals from a summary judgment entered in favor of Knollwood Park Hospital in a case stemming out of his termination from Knollwood Park Hospital.
The undisputed facts of this case are as follows: Dr. Murdoch, a licensed physician, was appointed to the Associate Medical Staff, Department of Medicine, by the board of trustees of Knollwood Park Hospital, on October 6, 1982. In early 1983, the hospital formed the Department of Family Practice/General Practice and assigned Dr. Murdoch to that department.
On June 24, 1983, the Family Practice/General Practice Committee held its regularly scheduled meeting to evaluate the progress of the department. Because of requests from the hospital's Nursing Service Department and Administration Department, the committee conducted a review of 10 patient charts of patients that had been admitted to Knollwood Park Hospital by Dr. Murdoch. After reviewing the charts, the committee determined that the chairman of the department, Dr. Frank Hall, should meet with Dr. Murdoch and discuss the care rendered in each of the 10 cases reviewed.
On June 29, 1983, a meeting was held with Dr. Hall, Dr. Murdoch, and Harvey Fishero, the hospital administrator. The following four incidents were discussed at the meeting: 1) two incidents in which Dr. Murdoch failed to properly facilitate the transfer of the care of a patient from himself to another physician; 2) an incident concerning a patient classified as "no code" by Dr. Murdoch; 3) several incidents of pediatric patients being admitted to the hospital when, in fact, Dr. Murdoch had no "pediatric privileges"; and 4) numerous unsuccessful attempts by the nursing staff to contact Dr. Murdoch at the telephone numbers provided by him in the event of an emergency. As a follow-up to the June 29 meeting, a letter dated July 7, 1983, listing these incidents as having been discussed at the meeting, was sent to Dr. Murdoch.
On August 31, 1983, the hospital mailed an application for reappointment to Dr. Murdoch and requested that he designate the staff category to which he was seeking appointment. Dr. Murdoch responded on September 11, 1983, designating "Active Medical Staff."
On November 2, 1983, the Family Practice/General Practice Committee held a regularly scheduled meeting; at that meeting, it reviewed Dr. Murdoch's application for reappointment. After a discussion on the matter, the committee determined that it would recommend to the Quality Assurance Committee that Dr. Murdoch not be *875 reappointed, for reasons of "general attitude towards patients, the hospital, the public; cooperation with hospital personnel; ethics and conduct; and professional competence and clinical judgment."
On November 28, 1983, the Quality Assurance Committee also reviewed Dr. Murdoch's application for reappointment and determined that certain aspects of Dr. Murdoch's practice of medicine did not meet the standard of care required of physicians at Knollwood Park Hospital. However, this committee made the following recommendation to the Medical Executive Committee:
"1. Consultation be required of all patients admitted to the hospital.
"2. Letters of evaluation to be obtained from all consulted physicians at the end of the provisional appointed period.
"3. The Family Practice/General Practice Committee review all patient charts of Dr. Murdoch upon the patient's discharge."
On December 19, 1983, the Medical Executive Committee accepted that recommendation and notified Dr. Murdoch of its decision in a letter dated December 20, 1983. In that letter, Dr. Murdoch was informed of his right to request a hearing before the Medical Executive Committee. On January 3, 1984, Dr. Murdoch requested a hearing. After several postponements, the hearing was scheduled for February 9, 1984.
The February 9 hearing was attended by Dr. Murdoch, his legal counsel, seven physician members of the committee, Fishero, and legal counsel for Knollwood Park Hospital. The hearing consisted of an in-depth examination of the four previously discussed incidents involving Dr. Murdoch. The committee presented Dr. Murdoch with several hypothetical clinical situations and quizzed him on the appropriate treatment in each situation. After a lengthy discussion, the committee then adjourned, agreeing to allow the record to remain open until 9:00 a.m., February 17, 1984, to enable Dr. Murdoch to introduce any additional documentation to support his position.
On February 17, the Medical Executive Committee met to formulate a final recommendation to the board of trustees on the reappointment of Dr. Murdoch. After an examination of all the evidence, the board unanimously voted to recommend the following:
On March 9, 1984, the board of trustees informed Dr. Murdoch that it had accepted the recommendation of the Medical Executive Committee and that his membership on the medical staff of Knollwood Park Hospital was terminated effective March 9, 1984.
Nearly six years later, on March 6, 1990, Dr. Murdoch sued Knollwood Park Hospital and numerous fictitiously named defendants, alleging breach of contract, deprivation of procedural due process, and deprivation of substantive due process. On October 2, 1990, the trial court granted the hospital's motion for summary judgment as to both of Dr. Murdoch's due process claims, but denied summary judgment as to Dr. Murdoch's breach of contract claim. On that same day, the hospital filed a motion for reconsideration of the denial of its motion as to Murdoch's breach of contract claim. On November 30, 1990, the trial court granted the hospital's motion for reconsideration and entered a summary judgment in favor of Knollwood Park Hospital on Dr. Murdoch's breach of contract claim. Dr. Murdoch appeals from both the October 2 judgment and the November 30 judgment.[1]
Initially, we point out that a summary judgment is appropriate where there *876 is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. Once the moving party has made a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to provide "substantial evidence" in support of his position. Ala.Code 1975, § 12-21-12; Rule 56, A.R.Civ.P.; Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990); Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). The trial court is required to view all of the evidence offered by the moving party in support of its motion in the light most favorable to the nonmovant. Hanners, supra, and Bass, supra. In addition, our review is governed by a previous case, Moore v. Andalusia Hospital, Inc., 284 Ala. 259, 224 So. 2d 617 (1969), in which we held that appointment of members to the medical staff of a private hospital is an action solely within the discretion of the hospital's governing board and that a board's refusal to appoint a particular physician to a medical staff is not a proper subject for judicial review. With these standards in mind, we now address the merits of Dr. Murdoch's claims.
Dr. Murdoch contends that the Knollwood Park Hospital Medical Executive Committee terminated his hospital privileges without complying with the procedures set forth in the hospital by-laws and that its doing so caused the hospital to breach its employment contract with him. Dr. Murdoch's claim is predicated on the theory that a contract existed between him and the hospital. He asserts that "the by-laws are binding on all of the parties involved [in this case] and that any breach of the by-laws gives [rise] to a cause of action [in contract]." However, Dr. Murdoch fails to state what by-laws he says have been violated or what breach has occurred. He asserts that he was denied procedural and substantive due process, but fails to designate just what incident constitutes such a constitutional violation.
Dr. Murdoch's claimed due process right is a right found under the Fourteenth Amendment to the United States Constitution. However, "[t]he Fourteenth Amendment does not apply to private parties unless those parties are engaged in activities deemed to be `state action.'" Langston v. ACT, 890 F.2d 380, 384 (11th Cir.1989). Knollwood Park Hospital is, undisputedly, a private institution. Nonetheless, we have reviewed the by-laws of Knollwood Park Hospital as they apply to the facts of this case, and we conclude that Dr. Murdoch was provided a fair and adequate process in that he was afforded a hearing, he was represented by legal counsel, he had ample opportunity to prepare for the hearing, he was promptly given notice prior to the hearing, and each committee timely notified Dr. Murdoch as to the results of its meetings. From our review of the record, we find it clear that Knollwood Park Hospital took every measure possible under the hospital by-laws to ensure that Dr. Murdoch received a fair hearing. Dr. Murdoch has failed to provide substantial evidence to support his claim of misconduct by the hospital's management.
In addition, we are not convinced that the hospital by-laws created a binding contract between Dr. Murdoch and Knollwood Park Hospital. However, we do not address that issue, because of Dr. Murdoch's failure to produce a meritorious claim regarding the hospital's alleged noncompliance with its by-laws. We acknowledge the conflicts involving the statute of limitations, property rights, and contract rights related to the contract issue, but the resolution of that issue would not cause us to depart from our present holding.
Therefore, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] Because the trial court's October 2 order disposed of fewer than all claims and failed to include the language necessary to render the judgment final, that order was not final until the trial court issued its November 30 order of judgment disposing of all claims. See Rule 54(b), A.R.Civ.P. | August 2, 1991 |
3b088ada-eb9a-437f-9c33-fdc2eef63204 | Clark v. America's First Credit Union | 585 So. 2d 1367 | 1900976 | Alabama | Alabama Supreme Court | 585 So. 2d 1367 (1991)
Phillip E. CLARK
v.
AMERICA'S FIRST CREDIT UNION.
1900976.
Supreme Court of Alabama.
August 23, 1991.
*1368 Phillip E. Clark, pro se.
James N. Nolan and Carey W. Spencer, Jr. of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
SHORES, Justice.
Phillip E. Clark appeals from a summary judgment for America's First Credit Union ("AFCU") on his claim of breach of contract and defamation. We affirm.
In February 1984, Clark was hired by AFCU as a collections clerk in its Anniston branch office. Upon his employment, Clark received an employment manual that outlined AFCU's employment policies and procedures on such matters as working *1369 hours, work etiquette, job appraisals, termination of employment, and fringe benefits. The preface to the manual stated: "The Credit Union reserves the right to modify, alter or discontinue any policies which no longer serve the best interests of our Credit Union or our employees." Clark signed an acknowledgement of receipt that stated, "I agree as a condition of my employment with the ... Credit Union to abide by these policies and any others as they may change from time to time."
In October 1984, Clark was promoted to manager of the Anniston branch office. AFCU, in 1986, revised its employment manual; one of the changes was the addition of the following provision: "This manual should not be construed to be a binding contract." Copies of the revised manual were issued to all AFCU branch managers, and Clark does not deny receipt of the 1986 manual. Clark was demoted from branch manager in March 1987 and was transferred to AFCU's Talladega branch office as a loan officer. During Clark's term of employment, AFCU representatives told him that as long as he did his job he should not have any problems, and that as long as he continued to do what he was told to do there should not be any problems. AFCU terminated Clark's employment on December 31, 1987.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter 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. Rule 56; RNH, Inc. v. Beatty, 571 So. 2d 1039 (Ala.1990). In determining if summary judgment is proper, the trial court must view the motion in a light most favorable to the nonmovant, and, in reviewing a summary judgment, this Court is limited to reviewing the factors and evidence considered by the trial court when it granted the motion. Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala. 1985).
Rule 56 is to be read in conjunction with the "substantial evidence rule" for actions filed after June 11, 1987. See Alabama Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Therefore, in order to defeat AFCU's properly supported motion for summary judgment, Clark 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, 971 (Ala.1989). Clark has failed to present substantial evidence in support of either his breach of contract claim or his defamation claim.
Clark argues that the trial court erred in entering summary judgment for AFCU on his breach of contract claim, because, he says, the manual he received in 1983 from AFCU created an employment contract between him and AFCU. The record is devoid of any evidence of a written or oral agreement on a definite term; absent an agreement on a definite term, any employment is considered to be "at will," and may be terminated by either party, with or without cause or justification. Bell v. South Central Bell, 564 So. 2d 46, 48 (Ala.1990). However, as was noted in Bell,
"`[T]he language contained in a handbook can be sufficient to constitute an offer to create a binding unilateral contract. The existence of such a contract is determined by applying the following analysis to the facts of each case: First, the language contained in the handbook must be examined to see if it is specific enough to constitute an offer. Second, the offer must have been communicated to the employee by issuance of the handbook, or otherwise. Third, the employee must have accepted the offer by retaining employment *1370 after he has become generally aware of the offer. His actual performance supplies the necessary consideration.'"
Bell, supra, quoting Hoffman-LaRoche, Inc. v. Campbell, 512 So. 2d 725, 735 (Ala. 1987).
In Hoffman-LaRoche, this Court also noted that an employer may, if it so desires, state within the handbook that its policies are not an offer for a unilateral contract, and that an employer is free to modify prospectively the policies of the handbook. Hoffman-LaRoche, 512 So. 2d at 734, 735 (Ala.1987). The manual Clark received when he began his employment with AFCU provided for potential modification, alteration, or discontinuation of policies found within the manual. In 1986, AFCU modified the manual by adding the following: "This manual should not be construed to be a binding contract." Through this amendment, AFCU was exercising its privilege, under Hoffman-LaRoche, not to have the manual's provisions considered as a unilateral contract for employment. Therefore, the manual Clark was issued cannot serve as an employment contract, under Hoffman-LaRoche analysis. Clark was an employee at will, and his employment was subject to termination by AFCU or Clark, with or without cause. Bell, supra.
Clark contends that it was error for the trial court to enter the summary judgment on his defamation claim. Clark insists that certain statements made by AFCU representatives to his present employer (Federal Bureau of Prisons) were defamatory. The statements were made in response to an inquiry from the United States Office of Personnel Management ("OPM") regarding Clark's employment with AFCU; the inquiry was coincident with Clark's employment application with the Federal Bureau of Prisons.
For a communication to be considered defamatory, it must tend to "[so] harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Harris v. School Annual Pub. Co., 466 So. 2d 963, 964 (Ala. 1985), citing Restatement (Second) or Torts § 559 (1976). Whether a communication is defamatory is, in the first instance, a question for the court; if the communication is not reasonably capable of a defamatory meaning, then there is no issue of fact and a summary judgment is proper. Harris, 466 So. 2d at 964-65.
The trial court correctly entered the summary judgment as to the defamation claim. The statements made by AFCU representatives were privileged, because they were made by AFCU representatives in response to an inquiry from a prospective employer of Clark concerning Clark's former employment with AFCU. Gore v. Health-Tex, Inc., 567 So. 2d 1307 (Ala. 1990). In Gore, this Court held that any publication made between a previous employer and a prospective employer is protected by a conditional privilege, pursuant to the following test:
"`"Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is social or moral in its nature and defendant in good faith believes he is acting in pursuance thereof, although in fact he is mistaken."'"
567 So. 2d at 1308 (quoting Willis v. Demopolis Nursing Home, Inc., 336 So. 2d 1117, 1120 (Ala.1976), quoting Berry v. City of New York Ins. Co., 210 Ala. 369, 371, 98 So. 290, 292 (1923)). Further, "[i]t is well established that, absent a showing of malice, an action alleging slander will not lie where there is a conditional or qualified privilege." Gore, Id.
There is nothing in the record to indicate actual malice on the part of AFCU in its communications with OPM and the *1371 Federal Bureau of Prisons concerning Clark. OPM and the Federal Bureau of Prisons clearly had an interest in Clark's past performance with AFCU, and, thus, the privilege is applicable. The evidence indicates that AFCU acted in good faith in complying with the request of OPM and in doing so exhibited no actual malice, which could have been shown "by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like, emanating from the defendant [AFCU], or by the violence of the defendant's language, the mode and extent of publication, and the like." Willis v. Demopolis Nursing Home, Inc., 336 So. 2d 1117 (Ala.1976). See also, Brown v. Chem Haulers, Inc., 402 So. 2d 887, 891 (Ala.1981) (plaintiff employee was precluded from recovering for alleged statement made by former employer to prospective employer concerning an accident that involved plaintiff).
In the absence of language that is defamatory per se, a plaintiff must allege and prove special damages resulting from the defamation. Myers v. Mobile Press-Register, Inc., 266 Ala. 508, 97 So. 2d 819, 821 (1957). Even assuming that the statements in question were defamatory to Clark, he has neither alleged nor proven any special economic damages sustained as the result of AFCU's actions. In fact, subsequent to the alleged defamation, Clark applied for and was hired for his present position, and since then he has received three promotions; the record shows Clark has suffered no economic loss by reason of AFCU's allegedly defamatory statements.
For the reasons stated above, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | August 23, 1991 |
638250c8-5140-461d-a337-3485d59c98e8 | IMAC Energy, Inc. v. Tittle | 590 So. 2d 163 | N/A | Alabama | Alabama Supreme Court | 590 So. 2d 163 (1991)
IMAC ENERGY, INC.
v.
Ronnie TITTLE and Donna Tittle.
Ronnie TITTLE and Donna Tittle
v.
IMAC ENERGY, INC.
89-1226, 89-1281.
Supreme Court of Alabama.
August 2, 1991.
Rehearing Denied November 22, 1991.
*165 Harvey Jackson, Jr. and Richard E. Fikes of Tweedy, Jackson and Beech, Jasper, for appellants.
William R. Murray, Northport, for appellee.
MADDOX, Justice.
These appeals, consolidated here because they arise out of the same transactions or occurrences, present two issues: the sufficiency of the evidence to support the homeowners' allegations that they suffered damage as a result of the defendant's blasting operations in strip-mining coal, and the sufficiency of the evidence to support the defendant's counterclaim against the plaintiffs for trespass on its property.
In 1978, the plaintiffs, Ronnie and Donna Tittle, purchased 3.1 acres of land in Walker County near the Town of Eldridge, Alabama. In January 1983, they completed building a house on this land, at a cost of $41,300. Sometime between August and October 1985, defendant IMAC Energy, Inc. (hereinafter referred to as "IMAC"), began blasting operations approximately 300 feet from the Tittles' house. During the next several months, IMAC's blasting operations allegedly caused the following problems with their house: cracks in the plasterboard, cabinets pulling away from the walls, buckling in the floor, and nail heads emerging through the plasterboard. In addition, the Tittles say that during this time they found that their drinking water began tasting as though it contained copper or iron and that the dust or debris from IMAC's blasting constantly fell on their property.
The Tittles further alleged that they experienced unannounced detonations conducted by IMAC; that the polluted water caused their daughter's hair to turn orange and caused their toilet bowls to turn black; that they were forced to purchase a water purification system; and that they were forced to endure, for over two years, the constant anxiety of unannounced detonations.
On December 20, 1985, the Tittles sued IMAC, Tim McCoy (an officer of IMAC), and others, stating six separate counts, consisting of alleged negligence or wantonness allegedly causing personal injury; intentional infliction of emotional distress; trespass by sonic and earth-borne shocks; negligence or wantonness allegedly causing property damage; trespass by dirt, rock, persons, and vehicles; and trespass by mining beyond legal limits. IMAC counterclaimed against the Tittles, alleging trespass, negligence, and wantonness. The Tittles entered into a pro tanto settlement with the other defendants, except McCoy, and the trial court directed a verdict in favor of him on all counts except trespass. Thus, only the Tittles' claims against IMAC, IMAC's counterclaim against the Tittles, and the Tittles' trespass claim against McCoy proceeded to trial.
At trial, the jury returned a verdict in favor of the Tittles and against IMAC on count four of the Tittles' complaint alleging *166 IMAC's negligence and wantonness in causing damage to their real property and awarded the Tittles $60,000 in compensatory damages based on damage to real property, $0 in compensatory damages to personal property and $100,000 in punitive damages. The jury also returned a verdict in favor of the Tittles' as to count five of their complaint alleging IMAC's trespass by dirt, rock, persons, and vehicles and awarded the Tittles $750 in compensatory damages and $10,000 in punitive damages. The jury awarded IMAC $15,000 in compensatory damages and $5,000 in punitive damages on its counterclaim alleging trespass by the Tittles. The jury further found in favor of Tim McCoy on the Tittles' allegation of trespass. Both IMAC and the Tittles appealed the respective judgments entered pursuant to the jury verdicts.
IMAC argues on appeal that the evidence is insufficient to support the jury's finding that IMAC was negligent and to justify the amount of damages awarded to compensate for property damage. IMAC basically argues that the jury award was based on count four of the Tittles' complaint, which alleged real property damage resulting from alleged negligence or wantonness on the part of IMAC in conducting blasting operations, and it argues that "[n]o claim for abnormally dangerous activity was stated in the complaint and no evidence of abnormally dangerous activity was proven." IMAC states that it is aware of this Court's decision in Harper v. Regency Development Co., 399 So. 2d 248 (Ala.1981), which adopted the doctrine set out in the Restatement (Second) of Torts § 519 (1977), relating to abnormally dangerous activity, but argues that in this case, the Harper rule does not apply, "because abnormally dangerous activity was not pled, proven or even instructed to the jury."
IMAC also maintains that there was insufficient evidence of wantonness to warrant an award of punitive damages and further argues that the jury's award of compensatory damages to the Tittles on their trespass claim is in error because it exceeds the amount asked for by the Tittles in their complaint.
The Tittles contend, on their appeal from the judgment entered against them, that the jury's award of compensatory and punitive damages to IMAC for the Tittles' alleged trespass is palpably wrong and manifestly unjust.
Because the legal issues presented in both appeals question the sufficiency of the evidence to support the findings made by the jury, we believe it is appropriate to first state the rule of law applicable to our review. A jury verdict is presumed correct and will not be set aside unless it is without supporting evidence or is so contrary to the evidence as to render it wrong and unjust. Harris v. Meadows, 477 So. 2d 374 (Ala.1985). Only if the findings below are against the great weight of the evidence will this Court change the jury verdict. Jackie Fine Arts, Inc. v. Berkowitz, 448 So. 2d 318, 321 (Ala.1984). See Pierce v. Rummell, 535 So. 2d 594, 598 (Ala.1988). Furthermore, the determination of damages, when they are established by competent evidence, is within the sound discretion of the jury, and once assessed, are presumed to be correct. See Hollis v. Wyrosdick, 508 So. 2d 704 (Ala.1987).
We first address IMAC's contention that the evidence is insufficient to warrant a finding by the jury that it negligently or wantonly performed blasting activities that proximately resulted in the damage claimed by the Tittles.
IMAC correctly recognizes that this Court has adopted the Restatement section relating to "abnormally dangerous" activities and recognizes that the use of explosives under abnormally dangerous conditions is negligence and is thus actionable if such conduct proximately causes damage to another, but IMAC claims that no proof of such negligence was offered in this case. See Harper v. Regency Development Co., 399 So. 2d 248 (Ala.1981), which sets out the rule. IMAC asserts that the Tittles cannot benefit from the Harper rule because they failed to claim that IMAC's blasting operations constituted an abnormally dangerous *167 activity and did not prove any set of facts showing that IMAC's blasting was negligently performed.
In Harper, this Court stated the rule, as follows:
399 So. 2d at 253.
In Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812, 831 (Ala. 1988), this Court reiterated the long-standing rule that "the amount of care required by the standard of reasonable conduct is commensurate with the apparent risk or danger." See McClusky v. Duncan, 216 Ala. 388, 113 So. 250 (1927). This Court stated:
547 So. 2d at 831.
In this case, the Tittles alleged in their complaint that IMAC's mining activities were unlawful, negligent, reckless, wanton, willful, and inherently dangerous and that these activities proximately caused damage to the Tittles' real property.
At trial, the Tittles presented evidence from which the jury could have concluded that IMAC violated Alabama Surface Mining Commission regulations on a number of occasions, and there is substantial evidence of the number of cracks that developed throughout the Tittles' house, according to *168 testimony, after the blasting activity began.
The evidence demonstrated that IMAC was aware of the Tittles' residence, and the Tittles presented testimony that IMAC had been informed that its blasting activities were damaging the Tittles' residence. We hold, based on the evidence in the record, that the jury's finding that IMAC negligently damaged the Tittles' property is adequately supported by the evidence.
The proper measure of compensatory damages in a tort action based on damage to real property is the difference between the fair market value of the property immediately before the damage and the fair market value immediately after the damage. Nelson Brothers, Inc. v. Busby, 513 So. 2d 1015, 1017 (Ala.1987); Dooley v. Ard Oil Co., 444 So. 2d 847, 848 (Ala.1984). Although mathematical certainty is not required, a jury cannot be left to speculate as to the amount of damages, but "`[t]his does not mean that the plaintiff must prove damages to a mathematical certainty or measure them by a money standard. Rather, he must produce evidence tending to show the extent of damages as a matter of just and reasonable inference.' C. Gamble, Alabama Law of Damages § 7-1 (2d ed. 1988)." Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812, 820 (Ala.1988). (Emphasis added.)
In Dooley, the jury awarded the property owners $70,000 in compensatory damages after the owners presented evidence that the purchase price for the property and its contents had been $45,000 and that the building and its contents were insured for $40,000. The owners presented further evidence showing that the "repair or replacement value" of the property was between $120,000 and $174,000. This Court affirmed a judgment based on the jury's damages award of $70,000.
In this case, the jury found "in favor of the plaintiffs Ronnie and Donna Tittle, and against the defendant IMAC Energy, Inc. on the issue of negligence or wantonness resulting in damage to real property as alleged in count four of plaintiff's complaint and assess[ed] plaintiffs' damages at $60,000."
The Tittles claimed in count four of their complaint that they endured IMAC's blasting and resulting damage to their dwelling for over two years. They alleged that they suffered mental and emotional stress and anguish as a result of the past and present physical damage to their dwelling and that they also feared future damage to their dwelling. In count four, the Tittles claimed $35,000 in compensatory damages for the diminution in value and the cost of restoring their residence; $10,000 in compensatory damages for the destruction of their peaceful use and enjoyment of their residence; and $25,000 for their past, present, and future emotional and mental anguish and anxiety.
In support of these allegations, the Tittles produced evidence that in January 1983, they paid $41,300 for the construction of their residence and that on August 3, 1988, after the blasting had ceased, the Tittles obtained a repair estimate of $8,500. Although the Tittles presented no evidence indicating the difference in the fair market value of their property before the blasting and its fair market value after the blasting, they testified that they were unable to obtain an appraisal of their residence after litigation had begun. They introduced evidence that they experienced unannounced detonations conducted by IMAC; that they had to suffer the bad smell and foul taste of their formerly clear well water; that their daughter's hair turned orange as a result of the polluted water; that the polluted water caused their toilet bowls to turn black; that the poor water quality forced them to purchase a water purification system at a cost of $2,495; and that they had to endure, for over a two-year period, the constant anxiety of unannounced detonations by IMAC. We hold that this evidence sufficiently supports the jury's verdict of $60,000 in compensatory damages as a just and reasonable inference *169 from the evidence presented to support count four of the Tittles complaint.
The jury also awarded the Tittles $100,000 in punitive damages on this count of alleged negligence and wantonness. Punitive damages may be awarded when the actions complained of are willfully or wantonly committed in disregard of the rights of others. The issue of whether the defendant's conduct was committed willfully, wantonly, or intentionally is a question for the jury on the issue of punitive damages, and prior and subsequent acts may be considered for the purpose of determining the defendant's intent. Surrency v. Harbison, 489 So. 2d 1097 (Ala.1986). Wantonness is the doing of some act or the omission to do some act with reckless indifference that such act or omission will likely or probably result in injury. Wantonness may arise from knowledge that persons are likely to be in a position of danger. This knowledge need not be shown by direct proof, but, like any other fact, may be shown by circumstances from which the fact of actual knowledge is a legitimate inference. Bishop v. Poore, 475 So. 2d 486 (Ala.1985).
In considering the question whether the evidence of wantonness was sufficient to be submitted to the jury, this Court must accept as true the evidence most favorable to the plaintiff, and must indulge such reasonable inferences as the jury was free to draw from that evidence. Jackson v. Cook, 275 Ala. 151, 153 So. 2d 229 (1963). A wantonness count should go to the jury if there is any evidence to support a finding of wantonness. Kilcrease v. Harris, 288 Ala. 245, 259 So. 2d 797 (1972). See Bishop, 475 So. 2d at 487.
The Tittles presented evidence that IMAC was well aware of the Tittles' complaints, yet continued its blasting operations for another two years. Ronnie Tittle testified that on several occasions he personally went to IMAC's mine site to complain about the blasting. After a review of the record, we hold that the Tittles presented sufficient evidence of wantonness to support the jury's award of punitive damages for IMAC's damage to the Tittles' real property.
The Tittles claimed compensatory damages for IMAC's trespass by dirt, rock, persons, and vehicles in the amount of $1 plus $50,000 in punitive damages. The jury returned a verdict in favor of the Tittles and awarded the Tittles $750 in compensatory damages and $10,000 in punitive damages. IMAC contends that a jury cannot award an amount exceeding the amount actually claimed in the plaintiff's complaint. Southern Ry. v. McGowan, 149 Ala. 440, 43 So. 378 (1907). However, this Court has more recently held that a party need not claim a specific amount of damages unless that party also claims "special damages," Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So. 2d 388 (1961). See Rule 54(c), Ala.R.Civ.P.
The evidence presented to the jury reveals that IMAC's blasting caused dirt, rock, and dust to be thrown onto the Tittles' property; that IMAC trespassed onto the Tittles' property with its bulldozers, removing several survey stakes, and that IMAC caused the removal of a power pole from its previous location on the Tittles' property. We hold that this evidence was sufficient to support the jury's verdict against IMAC of $750 in compensatory damages.
Punitive damages in a trespass claim are awarded only where the trespass is accompanied by "rudeness, wantonness, recklessness, or an insulting manner, or accompanied by circumstances of fraud and malice, oppression, aggravation, or gross negligence." First National Bank of Pulaski, Tenn. v. Thomas, 453 So. 2d 1313, 1320 (Ala.1984). We hold that the jury had before it sufficient evidence from which it could return a verdict against IMAC for punitive damages on the Tittles' trespass claim.
The jury also awarded IMAC $15,000 in compensatory and $5,000 in punitive damages for the Tittles' trespass on IMAC's property. IMAC presented evidence that the Tittles had trespassed on the mine site with their "four-wheelers" (i.e., four-wheeled recreational vehicles) and that, as a result, IMAC was forced to spend $15,000 to revegetate 24 acres. Like the evidence presented by the Tittles in supporting their claims, the evidence presented by IMAC in support of its claim of trespass was sufficient to support the jury's award.
For the foregoing reasons, the judgments of the trial court, entered upon the jury verdicts, are hereby affirmed.
89-1226 AFFIRMED.
89-1281 AFFIRMED.
HORNSBY, C.J., and HOUSTON, KENNEDY and INGRAM, JJ., concur. | August 2, 1991 |
cd748917-9a38-4282-a85f-9cec95868403 | Ex Parte Coastal Training Institute | 583 So. 2d 979 | 1900850 | Alabama | Alabama Supreme Court | 583 So. 2d 979 (1991)
Ex parte COASTAL TRAINING INSTITUTE, Elizabeth Kammer, and Joe Cameron.
(Re Leslie SAWYER v. COASTAL TRAINING INSTITUTE, et al.)
1900850.
Supreme Court of Alabama.
July 26, 1991.
David A. Hamby, Jr. and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, for appellants.
Marc E. Bradley, Mobile, for appellees.
MADDOX, Justice.
The issue presented in this petition for a writ of mandamus is whether, given the principles of the Fifth Amendment privilege against self-incrimination, the trial court abused its discretion in denying the petitioners' motion for a stay of civil proceedings while there is a possibility of a criminal action being brought against them arising out of an ongoing investigation.
In February 1990, Leslie Sawyer was employed by Coastal Training Institute ("Coastal"). Elizabeth Kammer, a petitioner in this case, was the owner of Coastal and its president. Joe Cameron, another petitioner, was also an officer of Coastal.
Sawyer's complaint includes allegations that Coastal improperly withheld Pell grant refunds that belonged to the students. He allegedly notified the F.B.I., the inspector general of the Department of Education, SouthTrust Bank, and First American Savings of Longmont, Colorado, of these alleged improprieties. According to Sawyer, the petitioners engaged in various kinds of tortious conduct towards him when they learned that he had reported them to the authorities for the alleged improprieties in handling the Pell grant refunds.
Sawyer filed a civil action against the petitioners, alleging outrageous conduct, trespass, false imprisonment, and defamation, all arising out of an incident that allegedly occurred on the premises of *980 Coastal in 1989. He sued Kammer individually and as agent of Coastal. He sued Cameron only as the agent of Coastal.
In October 1990, when Sawyer noticed the deposition of Kammer and Cameron, they filed a motion to quash the depositions and to stay the proceedings, asserting their Fifth Amendment privilege against self-incrimination. See U.S. Const., amend. V; Ala. Const.1901, art. I, § 6. They maintained that they were the target of an F.B.I. investigation, presumably based upon the report by Sawyer. The judge denied the motion. Two months later, Sawyer proceeded to take their depositions. Upon the advice of counsel, both Kammer and Cameron invoked the Fifth Amendment and refused to answer any questions concerning the substance of the case.
The attorney for the petitioners then filed a motion to reconsider the denial of the stay of proceedings. In that motion, the attorney contended that he could not present a defense to Sawyer's claims against his clients because his clients would be unable to testify at trial because of the alleged ongoing criminal investigation. The judge also denied this motion. The petitioners state that the trial judge indicated that his reason for denying their motion for a stay was that no actual criminal charges had been filed against them. This petition followed.
By order of this Court entered March 30, 1991, all proceedings in the trial court have been stayed pending a disposition of this petition.
The petitioners request a stay of discovery and all proceedings before the circuit judge in the civil action in which they are defendants. They contend that they cannot defend themselves against Sawyer's claims without surrendering their constitutionally protected privilege against self-incrimination. They contend that their privilege against self-incrimination will be violated unless this Court grants the relief requested.
In answer to the petitioners' arguments that the trial court's refusal to stay the proceedings violates their privilege against self-incrimination, Sawyer argues that the writ of mandamus should not issue because the trial court has not abused its discretion. He says:
The Fifth Amendment to the Constitution of the United States provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." We recognize that cases hold that the Fifth Amendment privilege also applies in civil proceedings, including depositions. See Ex parte Baugh, 530 So. 2d 238 (Ala. 1988) (citing Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1086 (5th Cir.1979), citing with approval Lefkowitz v. Cunningham, 431 U.S. 801, 97 S. Ct. 2132, 53 L. Ed. 2d 1 (1977); McCarthy v. Arndstein, 266 U.S. 34, 45 S. Ct. 16, 69 L. Ed. 158 (1924)). Years ago, Justice Brandeis wrote:
McCarthy v. Arndstein, 266 U.S. at 40, 45 S. Ct. at 17.
While the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil *981 discovery when "justice requires" that it do so "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Rule 26(c), Ala.R.Civ.P. The scope of discovery in a civil case is broad and requires nearly total mutual disclosure of each party's evidence before trial. See Rule 26. In contrast, criminal "discovery" is highly restricted. "The broad scope of civil discovery may present to both the prosecution, and at times the criminal defendant, an irresistible temptation to use that discovery to one's advantage in a criminal case." Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1203 (Fed.Cir.1987). In Afro-Lecon, the court pointed out some of the dangers presented by this situation:
In contrast to the opinion of the trial court and to Sawyer's contentions, the pendency of criminal charges is not necessary to the assertion of the privilege. It is a general rule that the petitioner need not be indicted to properly claim the Fifth Amendment privilege. Ex parte Baugh, 530 So. 2d 238; Wehling, 608 F.2d 1084; Lefkowitz, 431 U.S. 801, 97 S. Ct. 2132; McCarthy, 266 U.S. 34, 45 S. Ct. 16; Savannah Sur. Associates, Inc. v. Master, 240 Ga. 438, 439, 241 S.E.2d 192, 193 (1978); In re Master Key Litigation, 507 F.2d 292, 293 (9th Cir.1974).
This Court has adopted this general rule in several recent cases. In Baugh, Deborah Baugh failed to appear for her deposition and, instead, invoked her privilege against self-incrimination in light of a possible grand jury investigation against her. This Court held that the trial court abused its discretion by denying Baugh's motion for a protective order until the resolution of the potential criminal proceedings against her. The Court expressed the rule as follows:
Baugh at 240, n. 2, citing Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979).
In Ex parte White, 551 So. 2d 923 (Ala. 1989), this Court followed Baugh and again held that the privilege against self-incrimination required that the petitioner's civil action be stayed until the criminal process against him was completed. The Court noted that in balancing the interests of the parties, we must favor the constitutional privilege against self-incrimination over the interest in avoiding the delay of a civil proceeding.
In urging us to hold that the trial court did not abuse its discretion by the terms of its order dated February 19, 1991, Sawyer correctly points out that under the rules of civil procedure, broad power is vested in the trial court to control the use of the discovery process. However, as we noted in Baugh, "[t]hese state-court procedural considerations must at all times yield ... to relevant federal constitutional principles. Baugh at 242.
Weighing the petitioners' interest in postponing the civil action against the prejudice that might result to Sawyer because of the delay, we are compelled to postpone it. From the facts presented on this petition, there is no doubt that most of the material facts in this civil action would also be material and potentially incriminating in the criminal action. As we stated in Ex parte White, "This solution is the only method of guaranteeing [the petitioners'] Fifth Amendment privilege." Ex parte White at 925.
*982 Sawyer argues that "utter chaos would ensue" if we adhered to the position taken by the petitioners in this case. He says:
This particular concern was expressly addressed in Hoffman v. United States, 341 U.S. 479, 486-87, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951). Clearly, it is not for the witness, but for the court to determine whether the fear of incrimination is well founded:
341 U.S. at 486-87, 71 S. Ct. at 818.
What were the circumstances that the trial court should have considered in ruling upon the petitioners' claim of privilege? As indicated by the petition, although the trial judge indicated that his reason for denying the petitioners' motion was that no actual criminal charges had been filed, the trial judge had sufficient evidence before him to clearly reveal that a criminal investigation was ongoing. Attached to the petitioners' motion to quash the depositions and to stay the proceedings were the affidavits of attorney Richard D. Horne, who represents Coastal and Kammer in the federal investigation, and attorney David A. Hamby, Jr., who represents the petitioners in the civil action.
Horne's affidavit stated that representatives of the Department of Education and the F.B.I. seized "most if not all documents of Coastal Training Institute including computers and memory" as a part of their criminal investigation "into certain activities of Elizabeth Kammer and Coastal Training Institute." Hamby's affidavit stated:
The information supplied in the affidavits regarding the seizure of records and the ability to defend the civil lawsuit was undisputed. A reading of the affidavits and other portions of the record makes it obvious that the material facts in this civil action would also be material and potentially incriminating in the criminal action. Certainly, there is the possibility that the information sought in the civil action may provide a "link in the chain of evidence" against the petitioners in a subsequent criminal action. See Hoffman, 341 U.S. at 486, 71 S. Ct. at 818.
We hold that it was an abuse of discretion for the trial court to deny the petitioners' motion to stay the proceedings. Accordingly, we grant the writ of mandamus and instruct Judge Edward McDermott to vacate his February 19, 1991, order and to enter an appropriate protective order consistent with this opinion.
WRIT GRANTED.
HORNSBY, C.J., and HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] Sawyer's notice of deposition provided in pertinent part that he would take a pre-trial discovery deposition with regard to the following matters:
"1. The policies and procedures of Coastal Training Institute with respect to refunding to students at Coastal Training Institute any monies received from said students pursuant to Pell Grants and not exhausted by said students for tuition, books, fees, supplies and related lawful expenses.
"2. The policies and procedures of Coastal Training Institute with respect to the retention of Pell Grant monies received from students but not exhausted by said student for lawful purposes such as tuition, books, fees and supplies.
"3. The policies and procedures of Coastal Training Institute with respect to the disposition of the excess funds described in Paragraphs One (1) and Two (2), supra.
"....
"5. The status of any governmental investigation of Coastal Training Institute with respect to the handling of Pell Grant monies by Coastal Training Institute." | July 26, 1991 |
1601ac79-193a-489c-bd55-7a83da63600c | Country Side Roofing v. Mut. Ben. Life | 587 So. 2d 987 | 1900278 | Alabama | Alabama Supreme Court | 587 So. 2d 987 (1991)
COUNTRY SIDE ROOFING AND SHEET METAL, INC., et al.
v.
The MUTUAL BENEFIT LIFE INSURANCE COMPANY and Carter Smith.
1900278.
Supreme Court of Alabama.
September 13, 1991.
*988 Jimmy Alexander and Linda B. Lloyd of Alexander, Corder & Plunk, P.C., Athens, for appellants.
James A. Bradford and Daniel M. Wilson of Balch & Bingham, Birmingham, for appellee Mut. Benefit Life Ins. Co.
H.L. Ferguson, Jr., Terry McElheny and Jane Emily Crosswhite of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for appellee Carter Smith.
MADDOX, Justice.
Country Side Roofing and Sheet Metal, Inc.; Marjorie I. Lewis, as executrix of the estate of Donald L. Lewis; and Marjorie I. Lewis, individually (collectively referred to as "Country Side"), appeal from a summary judgment entered in favor of the *989 defendants, Mutual Benefit Life Insurance Company ("Mutual Benefit") and Carter Smith. Country Side filed an action seeking $50,000 on a life insurance policy issued by Mutual Benefit to Donald L. Lewis. The action was filed two days after Mutual Benefit had issued, and one day after it had mailed, its check in the amount of $52,023.55 in payment of the claim on the policy. Country Side sought a recovery against the defendants on six theories: 1) an alleged fraud on the part of both defendants in representing that the Mutual Benefit policy "was a lot better" than a $50,000 policy on Lewis's life that had been issued by another company; 2) an alleged fraud on the part of both defendants in suppressing material facts, "including all relevant facts as to the disadvantages of replacing the then existing $50,000 life insurance policy"; 3) a contract claim by the beneficiary, Country Side, for insurance proceeds; 4) an alleged bad faith refusal to pay the claim; 5) alleged negligence on the part of both defendants in causing or allowing "the [earlier] policy of insurance with Midland National on the life of Donald L. Lewis to lapse"; and 6) alleged wantonness arising out of the same facts as the negligence claim.[1]
In November 1987, Donald L. Lewis applied for a life insurance policy with Mutual Benefit. The application listed Donald L. Lewis as the proposed insured and Country Side as the owner of the policy. Lewis was president of Country Side. The application listed the initial premium as $2,604, payable in monthly installments of $217.
At the time Lewis filed the application, he also executed a document entitled "Important Notice Regarding Replacement of Life Insurance." That document is attached to this opinion as an Appendix. That document contains the following language:
(Emphasis added.)
On January 18, 1988, Mutual Benefit issued an "Adjustable Life Policy" to Lewis. The policy was on the life of Lewis, with Country Side being named as the beneficiary.
On December 30, 1989, Lewis died as a result of a "gunshot wound to the head."[2] Gayle Acton, an employee of Country Side, notified Smith within three or four days of Lewis's death, and on February 1, 1990, Country Side executed an "Individual *990 Death Claim Form." Mutual Benefit received the death claim form on February 21, 1990. On March 16, 1990, Country Side provided Mutual Benefit with an authorization to obtain information. On April 27, 1990, Country Side contacted Mutual Benefit concerning any action that Country Side needed to perform in order to be able to obtain the insurance proceeds. On May 2, 1990, Mutual Benefit sent Country Side a letter in which it stated: "Since the insured died within the contestable period of the policy, we are conducting our customary investigation. Until this investigation is completed we will not be able to determine the extent of our liability...." Mutual Benefit also asked for a signed statement from Mrs. Marjorie I. Lewis, Lewis's wife, regarding the deceased's health history. Mutual Benefit again requested a signed statement from Ms. Lewis regarding the deceased's health history on June 1, 1990. On July 11, 1990, Country Side wrote Mutual Benefit and demanded to know why the insurance proceeds had not been paid.
On July 13, 1990, Country Side sued Mutual Benefit and Smith. On the day before, July 12, 1990, Mutual Benefit had informed Smith that it had completed its investigation of Country Side's claim, had approved payment of the proceeds, and was sending a check for the proceeds to Smith to give to Country Side. On July 19, 1990, Smith delivered a check for the insurance proceeds to Country Side.
On August 6, 1990, Country Side moved to dismiss the contract count of its complaint. Mutual Benefit filed a motion to dismiss the remaining claims, and, in the alternative, a motion for summary judgment, on August 10, 1990. Smith filed a motion to dismiss or, in the alternative, a motion for more definite statement, on August 17, 1990. The trial court granted Mutual Benefit's motion for summary judgment and Smith's motion to dismiss on October 31, 1990. Although the trial court specifically granted Smith's motion to dismiss, it is apparent from the record that the trial court treated the motion as one for summary judgment. The order states: "After consideration of the matters presented, this Court concludes that there is no genuine issue of material fact and that the defendants are entitled to a judgment as a matter of law on all claims." We shall likewise treat the motion to dismiss as a motion for summary judgment.
A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Roper v. Associates Financial Services, 533 So. 2d 206 (Ala.1988), citing Fountain v. Phillips, 404 So. 2d 614 (Ala. 1981); Autrey v. Blue Cross & Blue Shield of Alabama, 481 So. 2d 345 (Ala. 1985). We now address Country Side's claims that the summary judgment was inappropriate.
Country Side asserted two fraud claims against Smith and Mutual Benefit in its original complaint. These counts alleged that Smith and Mutual Benefit committed fraud by 1) stating that the life insurance policy offered by Mutual Benefit was "better" than the policy that Lewis had with Midland National Insurance Company and 2) failing to inform Lewis of the disadvantages of replacing his then existing life insurance policy with a policy with Mutual Benefit. Country Side filed an additional fraud count against Smith and Mutual Benefit in an amended complaint. This count alleged that on the first payment Mutual Benefit and Smith had fraudulently failed to pay all of the proceeds due under the insurance policy; the count alleged that Mutual Benefit had represented that all the proceeds had been paid, but later sent a check for an additional sum representing unearned premiums.[3]
*991 The first fraud issue presented concerns whether Smith and Mutual Benefit's "better" statement concerning the life insurance policy is an actionable misrepresentation.
Ala.Code 1975, § 6-5-101, provides:
In order to come under the purview of this statute, four elements must be present: (1) There must be a false representation; (2) the false representation must concern a material existing fact; (3) the plaintiff must rely upon the false representation; and (4) the plaintiff must be damaged as a proximate result. Harmon v. Motors Ins. Corp., 493 So. 2d 1370, 1373 (Ala.1986).
It is undisputed that any representation regarding the policy was made to the insured, Lewis, and that Lewis filed no action with regard to that claim; it is also undisputed that the representee, Lewis, and the plaintiff, Country Side, are not one and the same. The law considers "it fundamental that the representee who has relied on the defendant's alleged misstatements and the plaintiff who was injured must be one and the same." Hutchins v. State Farm Mut. Auto. Ins. Co., 436 So. 2d 819 (Ala.1983). In Georgia Casualty & Surety Co. v. White, 582 So. 2d 487 (Ala. 1991), the executrix of the will of Mr. White sought to maintain an action based on representations concerning an "offer to settle" made to Mr. White prior to his death. The executrix alleged that that was a "bad faith" offer. In that case the insurer argued, and we held, that the "bad faith offer to settle" claim was a "cause of action," rather than an "action," and, therefore, that it did not survive the death of Mr. White. See Gillian v. Federated Guaranty Ins. Co., 447 So. 2d 668 (Ala. 1984), cited in Georgia Casualty. We conclude, therefore, in this case that the first fraud claim, i.e., "cause of action," did not survive Lewis's death.
There is another reason, however, that will support the summary judgment on the first fraud count.
Country Side alleges that Smith told Lewis that Mutual Benefit's policy was "better" than his existing policy when, in reality, the policies provided the same benefits. However, Smith and Mutual Benefit contend that Smith's statement that the insurance policy was "better" referred to the fact that the same benefits would be provided by Mutual Benefit that were provided by Midland National, but for half the cost. In support of this contention, Mutual Benefit and Smith refer to Lewis's application for insurance, which provides for an annual premium of $2,604, or $217 per month. This is exactly half the premium amount charged by Midland National. In addition, Gayle Acton, the secretary/treasurer of Country Side, submitted an affidavit to the trial court that stated:
(Emphasis added.)
In Jarrard v. Nationwide Mutual Ins. Co., 495 So. 2d 584 (Ala.1986), this Court held that an insurance agent's statement that his policy would provide an insured with better coverage could constitute an actionable misrepresentation, but that if the representation was not false, then, of course, it would not be actionable. Here, the plaintiffs' own evidence indicates that Smith's statement that the policy offered by Mutual Benefit was "better" than the policy offered by Midland National was a reference to the premium amounts due under each policy. Furthermore, Lewis executed a document styled "Important Notice Regarding Replacement of Life Insurance," which speaks for itself.
*992 Based on the foregoing, we cannot say that the trial court erred in entering the summary judgment on the first fraud count.
In its second fraud count, Country Side contends that Mutual Benefit and Smith fraudulently failed to disclose to Lewis the disadvantages of replacing Lewis's existing policy with a policy issued by Mutual Benefit. The primary disadvantage of replacing the policy was the fact that the period in which the policy could be contested would begin to run anew, therefore losing the one-year advantage that Lewis had with Midland National.
Smith and Mutual Benefit argue that they informed Lewis of the fact that the contestability period of the policy would begin anew. In support of this contention, Mutual Benefit and Smith offered into evidence the document styled "Important Notice Regarding Replacement of Life Insurance." This "notice" provides, in part:
This notice was signed by Lewis on November 24, 1987. See Appendix.
The notice that Lewis signed, which indicated that he had read the notice, clearly stated that the applicant for insurance might be disadvantaged by obtaining a new insurance policy and specifically discussed the fact that the contestability period might be affected. We have examined the record and we hold that the trial court did not err in entering the summary judgment on this fraud count, because there is no evidence to show that Mutual Benefit suppressed any facts it was under a duty to disclose. In fact, the evidence is to the contrary. It shows that Lewis was notified that there could be disadvantages in switching policies. See Appendix. The record contains no evidence indicating that Lewis was incapable, mentally or physically, of examining the notice or inquiring as to its terms before signing it. Under these circumstances, we hold that the summary judgment was proper as to the second fraud claim.
As its third fraud claim, Country Side contends that the defendants fraudulently failed to pay all of the proceeds of the policy. The record shows that on August 31, 1990, less than six weeks after Country Side's attorney received the $52,023.55 check from Smith, Mutual Benefit issued a second check in the amount of $217.11, as a refund of the January 18, 1990, premium on the policy. This check was transmitted to Country Side's attorney on September 17, 1990; the attorney refused to accept the check, returned it, and amended the complaint to allege that the failure to include this refund of premium in the check originally sent was a misrepresentation that authorized the maintenance of a third fraud claim.
Country Side fails to show that Mutual Benefit and Smith fraudulently failed to provide it with the unearned premium payment. Therefore, the trial court did not err in granting Mutual Benefit and Smith's motions for summary judgment on this count.
Country Side contends that the defendants negligently failed to warn Lewis of the disadvantages of replacing his then existing insurance policy with a policy issued by Mutual Benefit. This negligence claim is the same as one of the fraud claims asserted by Country Side. This claim is without merit, for the same reasons already stated with regard to the fraud claim. Lewis was clearly warned of the dangers of replacing his existing policy with a policy issued by Mutual Benefit. Therefore, the trial court did not err in entering the summary judgment in favor of the defendants on this issue.
Finally, Country Side contends that the defendants acted in bad faith in refusing to pay the proceeds due under the policy before July 1990.
The elements of a bad faith claim were summarized in National Security Fire & Cas. Co. v. Bowen, All 417 So. 2d 179, 183 (Ala.1982), as follows:
(Emphasis in original.)
After Lewis's death, Mutual Benefit investigated to determine whether the gunshot wound was the result of a homicide or was self-inflicted. Mutual Benefit was also conducting a general investigation of the insurance policy because Lewis's death occurred in the contestable period. After Mutual Benefit completed its investigation, it sent Country Side the benefits owed under the policy. Applying the test set out by this Court for the maintenance of a bad-faith-failure-to-pay claim, we hold that the trial court properly entered the summary judgment on the bad faith claim. The record supports the defendants' argument that Country Side failed to overcome the defendants' prima facie showing that there was no actionable bad faith failure to pay the policy benefits or to repay the one month's unearned premium.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
*994
[1] Country Side has waived the issue of wantonness on appeal.
[2] The policy contained a suicide exclusion. There was evidence that the death may have been self-inflicted. In fact, on February 1, 1990, a death claim form was filed with Mutual Benefit by Country Side. The claim form was executed by Gayle Acton as corporate secretary. The cause of death on this claim form was listed as "suicide or homicide."
[3] On September 14, 1990, trial counsel for Mutual Benefit sent a letter to Country Side's attorney enclosing a check from Mutual Benefit, payable to Country Side, in the amount of $217.11. This check represented a refund of the January 18, 1990, premium paid on the policy insuring Donald Lewis, which had been automatically paid by bank draft before Mutual Benefit received notice of the death of Donald Lewis, which occurred in late December 1989. | September 13, 1991 |
5246ccfe-855e-409b-b68a-6269804e77b5 | Wright v. Mills | 590 So. 2d 177 | 1900824 | Alabama | Alabama Supreme Court | 590 So. 2d 177 (1991)
Barbara WRIGHT and Charles Wright
v.
Dr. Major C. MILLS.
1900824.
Supreme Court of Alabama.
August 2, 1991.
Rehearing Denied November 8, 1991.
Richard H. Ramsey IV, Dothan, for appellants.
Charles A. Stakely of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
HORNSBY, Chief Justice.
This is a dental malpractice suit. Barbara and Charles Wright sued Dr. Major C. *178 Mills, alleging that he had been negligent in treating Mrs. Wright. Dr. Mills filed a motion for summary judgment, which the trial court granted. The Wrights appeal.
Dr. Mills began seeing Mrs. Wright as a patient in January 1965, and he continued to see her as a patient until October 6, 1987. She developed chronic gum disease during the 1970s, which Dr. Mills treated.[1] Dr. Mills attributed the chronic gum disease to poor dental care at home.
After Dr. Mills's last treatment of Mrs. Wright, the Wrights began to study various dental literature. In March 1989 the Wrights contacted an attorney to discuss legal action against Dr. Mills.
In June 1989, the Wrights also contacted the Alabama Dental Association to lodge a complaint against Dr. Mills. On June 26, 1989, the Alabama Dental Association mailed the Wrights various complaint forms, and on July 10, 1989, the Wrights completed, signed, and returned these forms. In the forms submitted, the Wrights indicated that their complaint against Dr. Mills was based upon "improper treatment for gingivitis, which later developed into periodontitis," and that "the periodontal disease wasn't treated professionally, resulting in loss of many teeth." In the mediation request form submitted by the Wrights they stated:
The Alabama Dental Association forwarded a copy of the complaint to Dr. Mills, but he never responded. However, Mr. Wright indicated that a member of the peer review board stated that the peer review board could do nothing because Dr. Mills had retired. Mr. Wright stated that the board member intimated that the only action available would be a legal claim against Dr. Mills.
In November 1989, Mrs. Wright visited Dr. John Miller, a periodontist, whereupon she says she discovered that Dr. Mills had acted negligently in treating her. Thereafter, the Wrights filed their claim against Dr. Mills on February 28, 1990.
Dr. Mills moved for summary judgment, which the trial court granted. In its order the trial court stated:
(Emphasis added.)
In her affidavit opposing Dr. Mills's motion for summary judgment, Mrs. Wright stated in part:
The Wrights contend that prior to November 1989 they only suspected that Mills had committed dental malpractice and that it was not until November 1989, when Barbara consulted Dr. John Miller, a periodontist, that they discovered facts sufficient to indicate that they had a claim against Dr. Mills. The Wrights further contend that a genuine issue of fact exists as to when they discovered the alleged malpractice of Dr. Mills; thus, they conclude that the trial court improperly granted Mills's motion for summary judgment because, they say, they *180 "discovered" their claim against Mills within the six-month discovery period.
Mills contends that the trial court correctly ruled on his motion because, he says, the Wrights had already discovered, or could have discovered during 1989, all the elements of their cause of action. Mills further contends that because the Wrights discovered their cause of action within the two-year period of limitations they are not entitled to any additional time provided under the discovery provision of § 6-5-482.
The issue for our consideration is whether the trial court erred in granting Mills's motion for summary judgment on the ground that the Wrights' cause of action was barred under Ala.Code 1975, § 6-5-482. Specifically, the issue concerns whether the Wrights discovered or should have discovered their cause of action in June 1989.[2] We reverse and remand.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering summary judgment. The rule requires that the trial court, in order to enter a summary judgment, 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. We further note that all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990). Once the moving party makes a prima facie showing that no genuine issue of material facts exist, then the nonmovant has the burden of going forward with evidence demonstrating the existence of a genuine issue of material fact. Grider v. Grider, 555 So. 2d 104 (Ala.1989).
Because this action was filed after June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovant meet his burden by "substantial evidence." Bass v. South-Trust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence standard, 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." W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
Ala.Code 1975, § 6-5-482(a), provides:
In this case, Barbara Wright last saw Mills on October 6, 1987. It was at that time that the Wrights' cause of action accrued. Subsequently, the Wrights began to read and study dental literature. Mrs. Wright stated in her deposition:
Also in her deposition, Mrs. Wright testified as follows:
In the case of Carmichael v. Finkel, 508 So. 2d 228 (Ala.1987), a case very similar to the one before us, the plaintiff brought a malpractice action against her dentist. The trial court granted the defendant dentist's motion for summary judgment and the plaintiff appealed. The plaintiff had been improperly fitted with crowns on May 4, 1982, and she experienced discomfort until another dentist discovered the improper fit and replaced the crowns on April 24, 1985. The defendant had last treated the plaintiff on October 24, 1984. At that time, the plaintiff informed the defendant that she felt that the problem with her teeth was caused by something done at the time the crowns were originally fitted and that the defendant should replace the crowns. The defendant, however, did not admit that that was the cause of the plaintiff's problem, and he informed her that he could do nothing. The plaintiff filed her action against the defendant on October 24, 1985more than two years after the fitting of her crowns but within six months of the date she claimed to have discovered the alleged malpractice. In reversing the judgment of the trial court, this Court stated:
508 So. 2d at 229-30.
Similarly, the evidence before us on this appeal raises a factual question. This Court stated in Papastefan v. B & L Constr. Co. of Mobile, 356 So. 2d 158, 161 (Ala.1978) that "there [was] evidence from which the jury could find that the plaintiffs discovered the fraud more than a year before bringing suit," but added:
356 So. 2d at 161-62. See also Herring v. Shirah, 542 So. 2d 271 (Ala.1988) (question of when a cause of action was or should have been discovered is a question of fact for the jury); McLaughlin v. Pannell Kerr Forster, 504 So. 2d 264 (Ala.1987) (dispute over when plaintiff should have discovered cause of action is for the jury to decide); Marks Fitzgerald Furniture Co. v. Clarklift of Alabama, Inc., 494 So. 2d 614 (Ala. 1986) (jury must determine when plaintiff discovered facts sufficient to show the existence of a cause of action). Although Mrs. Wright stated in her deposition testimony that she knew at the time when she and her husband filed a complaint with the Alabama Dental Association that Dr. Mills had committed malpractice, there is also evidence that at that time she was only gathering information that would allow her to determine whether she had a cause of action against Dr. Mills for medical negligence. Because of that conflict in the evidence, the summary judgment was not appropriate; the disputed fact question must be decided by the trier of fact. Consequently, we reverse the summary judgment and remand the case for a determination by the factfinder of whether the Wrights discovered their cause of action in June 1989 or November 1989.
REVERSED AND REMANDED.
SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX, ALMON, HOUSTON and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
I recognize that the question of when a person discovered or reasonably should have discovered that a cause of action existed can be a question of fact for a jury to resolve, but the facts of this case show, without any question, that the plaintiffs here did not file their action within the time allowed by law.
The record shows, without dispute, that in June 1989, twenty months after Mrs. Wright had seen Dr. Mills and within the statutory period for filing a malpractice action, Mr. and Mrs. Wright contacted the Alabama Dental Association to make a complaint against Dr. Mills. By that time, both had read dental literature on the subject and, in March 1989, had consulted an attorney in order to begin legal proceedings.
They sent a handwritten letter to the Dental Association in which they outlined their complaint against Dr. Mills. The Dental Association sent them forms to complete, and the Wrights completed the forms and mailed them back to the Association.
It is undisputed that during the two-year period of limitations, and by July 10, 1989, the date on which Mrs. Wright made the written complaint to the Dental Association, *183 she already had learned how to file a complaint and knew that the procedures used by Dr. Mills were questionable, without a doubt. She knew, according to her own testimony, that Dr. Mills was guilty of malpractice, because she had telephoned Dr. Mills within the two-year period of limitations, and had accused him of having "committed mutilation in her mouth," of giving "treatment which was all wrong," and of "slaughtering her mouth." During that telephone conversation, Dr. Mills himself admitted fault and admitted that he should have referred her to a specialist.
Ala.Code 1975, § 6-5-482(a), provides, in part, that "[a]ll actions against ... dentists,... for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years next after the act or omission or failure giving rise to the claim, and not afterwards; 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 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...."
If there was ever a case in which the facts show, as a matter of law, that the suit was not filed within the prescribed time, this is the case. The trial judge was right to enter the summary judgment.
ALMON, Justice (dissenting).
I respectfully dissent. I would affirm on the authority of Robinson v. Hank Roberts, Inc., 514 So. 2d 958 (Ala.1987). Mrs. Wright's deposition clearly shows that she discovered her cause of action prior to July 28, 1989, and her affidavit to the contrary should not be allowed to defeat the motion for summary judgment.
HOUSTON, Justice (dissenting).
The record clearly shows that the plaintiffs' causes of action against Dr. Mills based on dental malpractice had accrued more than two years before they filed their complaint; therefore, the plaintiffs' claims were time-barred as a matter of law, unless the evidence showed that they did not discover, or could not reasonably have discovered, those causes of action more than six months before they filed their action. From my review of the record, I cannot see how we can hold that the plaintiffs did not discover more than six months before they filed suit in this case that they had causes of action against Dr. Mills. Likewise, I cannot see how we can hold that the plaintiffs could not reasonably have discovered more than six months before they filed their suit that they had causes of action against Dr. Mills. I would affirm the summary judgment.
STEAGALL, Justice (dissenting).
I respectfully dissent. It is undisputed that Mrs. Wright was last treated by Dr. Mills on October 6, 1987. I agree with the learned trial judge that between January and July 1989 Mrs. Wright discovered or reasonably could have discovered any cause of action she might have had against Dr. Mills. She did not file suit until February 28, 1990. Therefore, this claim is barred by the statute of limitations in the Alabama Medical Liability Act, Code of Ala.1975, § 6-5-482. I would affirm the summary judgment.
[1] Dr. Mills retired on August 26, 1987, but he continued to treat the Wrights until October 6, 1987.
[2] The Wrights concede that they brought their action more than two years after Mrs. Wright was treated by Dr. Mills; thus, their contention that their cause of action is not barred is based upon the argument that they did not discover until November 1989 that they had a cause of action against Dr. Mills. | August 2, 1991 |
6300e505-1394-42be-9545-1d886d09186e | Ex Parte Longmire | 584 So. 2d 503 | 1900643 | Alabama | Alabama Supreme Court | 584 So. 2d 503 (1991)
Ex parte Nicholas LONGMIRE.
(Re Willie Joe Tubbs and Nicholas Longmire v. State).
1900643.
Supreme Court of Alabama.
June 28, 1991.
*504 Tommie W. Fletcher, Pell City, for petitioner.
James H. Evans, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for respondent.
INGRAM, Justice.
The petitioner, Nicholas Longmire, was convicted of third degree assault. The assault occurred at the St. Clair County Correctional Facility, which is located in the northern judicial division of St. Clair County. St. Clair County is divided into two judicial divisions(1) the northern division, which holds court at the St. Clair County Courthouse in Ashville, and (2) the southern division, which holds court at the St. Clair County Courthouse in Pell City. The indictment against Longmire was returned in Ashville, and the jury was summoned to, and struck in, the St. Clair County Courthouse at Ashville. However, over the objection of Longmire, the court moved the trial to the courthouse at Pell City.
Longmire was convicted of third degree assault and was sentenced to 12 months at the county correctional facility. He appealed his conviction to the Court of Criminal Appeals, arguing that, under the Alabama Constitution of 1901, § 6, he had the right to be tried in the county or district where the offense was committed, and that this right had been violated by the trial court's changing the place of the trial to Pell City. The Court of Criminal Appeals affirmed, without an opinion. 575 So. 2d 1255.
Longmire filed a petition for writ of certiorari with this Court. We issued the writ to examine the issue of whether the trial court violated Longmire's right to trial in the county or district where the offense was committed by changing the place of his trial from Ashville to Pell City.[1]
Longmire argues that Act No. 53, 1907 Ala. Local Acts 61, divides St. Clair County into two judicial divisions, similar to the effect of the 1919 Bessemer court legislation, Act No. 213, 1919 Ala. Local Acts 62 (hereinafter "the Bessemer Act"), which divided Jefferson County into two divisions, each with exclusive jurisdiction over matters that occur within the respective boundaries. The Bessemer Act has been interpreted as "venue legislation," making venue proper in the division in which the offense occurred. See Agee v. State, 465 So. 2d 1196, 1204 (Ala.Crim.App.1984). Therefore, Longmire argues that he was denied his constitutional right to trial in the proper venue when the trial court moved his trial to Pell City.
The State argues that, under Rule 45, A.R.App.P., Longmire must show that he was prejudiced by the trial court's actions before he is entitled to a reversal. Because the jury was struck in Ashville before the trial was moved, the State argues that Longmire cannot show injury because he was "tried" by a jury struck in the northern district. Therefore, the only difference between a trial in Ashville and a trial in Pell City is a distance of less than 20 miles, and that, the State contends, is insufficient to show prejudice.
Over the objections of Longmire, the trial court moved Longmire's trial to Pell City because another trial was scheduled to begin in the courthouse at Ashville, which would cause Longmire's trial to be delayed. The issue for purposes of this appeal is whether moving the trial from Ashville to Pell City constituted a change of venue, as Longmire argues. If so, the judgment of the trial court is due to be reversed.
Contrary to the State's argument, if the move constituted a change of venue, Rule 45 would not bar this appeal. Rule 45, A.R.App.P, provides that "[n]o judgment may be reversed or set aside, nor new trial granted in any ... criminal case ..., unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties." Ala.R.App.P. 45 (emphasis supplied). The right to be tried in the place where the offense occurred is a substantial constitutional right. When a defendant objects to the change of venue, and the court upon its own motion proceeds to change venue, the result is a certain, not probable, injury to the defendant's substantial right to be tried in the county or district where the offense was alleged to have been committed.
The Code of Alabama allows a defendant to move for a change of venue. Ala.Code 1975, § 15-2-20. Also, the Code provides:
Id. § 15-2-21 (emphasis supplied). In this case, the trial court moved Longmire's trial, not because of some anticipation of violence, but because "the Court [felt] it [was] the Court's prerogative to use the facilities in this County to benefit the people of St. Clair County." Therefore, it is apparent that if the move from Ashville to Pell City constitutes a change of venue, the trial court committed reversible error.
The question of whether the two divisions of St. Clair County are two separate venues can be answered by examining the legislation that created the two judicial divisions of St. Clair County and by comparing that legislation to the legislation that created the Bessemer Division in Jefferson County, which division has been held to be treated as a separate county for purposes of establishing venue. See Agee, 465 So. 2d at 1204.
The Bessemer Act created a circuit court to be held at Bessemer, or the Bessemer Division, and its "jurisdiction and powers [were to be] exclusive in, limited to, and [to] extend over" certain territorial portions of Jefferson County. Act No. 213, § 2, 1919 Ala. Local Acts 62. The act creating separate judicial divisions in St. Clair County, Act No. 53, 1907 Ala. Local Acts 61, on the other hand, states that the county was to be divided into two divisions and that criminal defendants "shall be indicted and tried in the judicial division where the offense with which they are charged was committed." Id. § 5. Notably absent is the "exclusive" language found in the Bessemer Act. Also, § 3 of the St. Clair County Act provides that the clerk's office is "required to open a branch office." Id. § 3 (emphasis supplied). It does not establish a new, separate clerk's office, as would be expected if the two divisions were to be treated as two separate counties. Section 11 provides that
Id. § 11. Again, the implication is that the two divisions are but part of one court, the Circuit Court of St. Clair County. Based upon the language of the 1907 St. Clair County Act, it is the opinion of this Court that the Act does not create two separate judicial districts for purposes of venue. The Act divides St. Clair County into two judicial divisions, apparently for purposes of economy and convenience. The language of the Act is not restrictive and exclusive, as is the language of the Bessemer Act. Because the two judicial divisions of St. Clair County are not the equivalent of two counties for purposes of venue, we hold that the trial court has the *506 discretion to change the place of the trial to another division without offending a defendant's constitutional right to trial in the proper venue. However, this opinion does not hold that such a move cannot result in reversible error when the defendant can show that the trial court abused its discretion and that the defendant was thereby prejudiced.
Longmire has failed to state how he was prejudiced by the trial court's decision to move his trial to Pell City. He made no showing of any injury he suffered as a result of the move. Therefore, we hold that under Rule 45, A.R.App.P., he is not entitled to relief from this Court.
Therefore, we affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Longmire also raises the issue of whether the State proved venue as part of its burden of proof. We pretermit discussion of this issue because of our decision on the issue of whether the move from Ashville to Pell City was a change of venue. | June 28, 1991 |
e8e49d18-0626-4319-bdc9-08d431a1d988 | Hall v. Hall | 587 So. 2d 1198 | N/A | Alabama | Alabama Supreme Court | 587 So. 2d 1198 (1991)
Robert Lee HALL and Jessie Mae Hall
v.
Willie Jane HALL and Tommy G. Hall, as co-administrators of the Estate of L.C. Hall, Sr., deceased.
89-1825.
Supreme Court of Alabama.
July 26, 1991.
Rehearing Denied August 30, 1991.
James W. Cameron of Cameron & Cameron, Montgomery, for appellants.
Robert Eugene Ely, Montgomery, for appellees.
PER CURIAM.
Robert Lee Hall and his wife, Jessie Mae Hall, appeal from the denial of their Rule 60(b), A.R.Civ.P., motion to set aside the default judgment entered against them and in favor of Willie Jane Hall and her son, Tommy G. Hall.[1]
Willie Jane, as administratrix of the estate of her ex-husband, L.C. Hall, Sr., and Tommy G. Hall, as co-administrator, sued Robert (who is also Willie Jane's son) and Jessie Mae, seeking a constructive trust covering the home that Robert and Jessie Mae allegedly purchased with funds provided by another of Robert's brothers, Barnett Hall, who is now deceased. Willie Jane and Tommy alleged in their complaint that, on February 15, 1979, Barnett came to Montgomery from Chicago with $35,000 in cash, which he gave to Robert to buy a home for their father, L.C. They alleged that title was initially to be in Robert's name but later was to be put in L.C.'s name, because L.C. could not read or write. On February 21, 1979, Robert and Jessie Mae bought the house in which L.C. lived until he died in 1987. Title to the house, however, remained in Robert's name.
On March 30, 1988, Willie Jane and Tommy filed their complaint seeking a constructive trust, as well as $50,000 in punitive damages, and attorney fees. After no response whatever from the defendants (this is undisputed), the trial court entered a default judgment for Willie Jane and Tommy on December 8, 1988, awarding them $50,000 in punitive damages and $8,000 in attorney fees, and ordering that a general *1199 warranty deed concerning the disputed property be issued to them as the personal representatives of L.C.'s estate.[2]
On December 1, 1989, Robert and Jessie Mae filed their independent action, which is the subject of this appeal, in which they alleged fraud on the court as a basis for setting aside the default judgment. Specifically, they argued that Willie Jane had fraudulently represented to the court that she was L.C.'s widow when she, in fact, had been divorced from him on October 20, 1975. On July 31, 1990, the trial court issued the following findings of fact and conclusions of law:
In reviewing the denial of a Rule 60(b) motion, we look to see whether the trial court abused its discretion. DaLee v. Crosby Lumber Co., 561 So. 2d 1086 (Ala. 1990). To prevail on a Rule 60(b) motion, "[a] defaulting party seeking to have a default judgment set aside must prove one of the grounds for relief set out in the rule, and must allege and prove a meritorious defense to the action." Surette v. Brantley, 484 So. 2d 435, 435-36 (Ala.1986) (citation omitted). In addition to the six enumerated grounds, Rule 60(b) also provides, "This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three years after the entry of the judgment... to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court."
"Fraud on the court" has been defined as "fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." 7 J. Moore, Moore's Federal Practice § 60.33 (2nd ed. 1990). Such fraud must be "extrinsic," that is, perpetrated to obtain the judgment, rather than "intrinsic." Brown v. Kingsberry Mortgage Co., 349 So. 2d 564 (Ala.1977). In discussing "fraud on the court," the Eleventh Circuit Court of Appeals stated:
Travelers Indemnity Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir.1985).
We find that the fraud alleged to have been exercised here, that Willie Mae characterized herself as L.C.'s widow when in fact she was not, is intrinsic rather than extrinsic and that it could have been brought out in the original action to which Robert and Jessie Mae chose not to respond. Thus, we hold that the trial court did not abuse its discretion in denying the Rule 60(b) motion.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON, STEAGALL and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
ADAMS, J., dissents.
ADAMS, Justice (dissenting).
I respectfully dissent. The circumstances in this case demand equitable relief under Ala.R.Civ.P. 60(b)(6). Therefore, I would reverse the order refusing to set aside the default judgment, and I would remand the case for the entry of an order setting aside the default judgment and allowing the case to proceed to trial.
Rule 60(b)(6) authorizes the trial court to set aside a default judgment within a "reasonable time" after the entry of the judgment, for "any other reason justifying relief." (Emphasis added.) Although Rule 60(b)(6) is an extraordinary remedy, where it is available it provides a "`grand reservoir of equitable power to do justice.'"
Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538, 542 (2d Cir. 1963) (quoting 7 Moore, Federal Practice at 308 (1950)); see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2864, at 211-12 (1973). In this regard, Rule 60(b)(6) "has been construed as intending to `make available those grounds which equity has long recognized as a basis for relief.'" Laguna Royalty Co. v. Marsh, 350 F.2d 817, 823 (5th Cir.1965) (emphasis added); see also Reese v. Robinson, 523 So. 2d 398, 400 (Ala.1988) (relief permitted "in exceptional circumstances when the party can show the court sufficient equitable grounds for relief").
Traditional equitable principles recognized a number of factors to be considered in ruling on a motion to set aside a judgment, such as, whether "the respondent was in a superior economic position to the complainant, as where he was the complainant's creditor or employer," or whether "the complainant could not secure proper advice or ... was ignorant and did not understand his rights." Restatement of Judgments § 129 comment e (1942). Subsection (6) thus authorizes relief from a judgment where the circumstances are "compelling" and the facts reveal "`something more'" than the grounds enumerated in subsections (1) through (5). 11 C. Wright & A. Miller, supra, § 2864, at 220 (quoting Bros Inc. v. W.E. Grace Mfg. Co., 320 F.2d 594, 609 (5th Cir.1963)); see also Glasscock v. Wallace, 488 So. 2d 1346, 1348 (Ala.1986) (relief permitted in "unusual cases"). Because of a number of peculiarities presented by the facts of this case, I would hold that such equitable relief is warranted.
During the August 10, 1990, hearing on damages, Robert Hall, who, according to testimony, attended school through the eighth grade and who was unable to read, explained his reasons for the delay in his response to the representatives' claims as follows:
(Emphasis added.)
Jessie Hall testified in a similar manner:
Although equity traditionally recognized the absence of education and legal sophistication as factors to be considered in ruling on a motion for relief from judgment, those factors take on even greater significance in view of the manner in which the representatives' claims were presented in this case.
The complaint was framed in three counts. Count one requested the imposition of a "constructive trust on the residential property and contents of the house... for the benefit of the estate." Count two requested the imposition of a "purchase money resulting trust in favor of the deceased L.C. Hall, Sr." Count three requested a "purchase money resulting trust in favor of the deceased Barnett Hall." The complaint thus expressly set forth counts sounding only in equity. Although the complaint alleged facts that, if proven, would support an action for fraud or conversion, with the consequent possibility of punitive damages, some considerable degree of education and legal sophistication is required to discern such claims from the language employed in the complaint.
Furthermore, although the representatives rely on the trial judge's conclusion that the "result would be the same even if the default had not been issued," it is evident that, in this case, the evidentiary hearings could not cure the mischief of an untimely judgment. It is well settled that a motion for relief from judgment under Rule 60(b) is not a substitute for appeal. City of Daphne v. Caffey, 410 So. 2d 8 (Ala.1981); Harper Plastics, Inc. v. Replex Corp., 382 So. 2d 556 (Ala.1980); McLeod v. McLeod, 473 So. 2d 1097 (Ala.Civ.App.1985). The only reviewable issue is whether the trial judge abused his discretion in refusing to reopen the case. Ex parte Dowling, 477 So. 2d 400 (Ala.1985); Ex parte Morton, 403 So. 2d 235 (Ala.1981); Marsh v. Marsh, 338 So. 2d 422 (Ala.Civ.App.1976). Consequently, issues such as the sufficiency of the evidence or the excessiveness of the verdict are not presented for substantive appellate review. Menefee v. Veal, 484 So. 2d 437 (Ala.1986); American Home Assurance Co. v. Hardy, 378 So. 2d 710 (Ala. 1979). This factor is particularly significant in a case such as this, which involves a substantial award of punitive damages.
The right to a review by this Court of a punitive damages award is an important one, as was acknowledged in Pacific Mut. Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991). In that case, the United States Supreme Court expressly recognized the potential for "extreme results" as a consequence of "unlimited judicial discretion ... in the fixing of punitive damages." Id. at ___, 111 S. Ct. at 1043 (emphasis added). The Court stated that "[b]y its review of punitive awards, the Alabama Supreme Court provides an additional check on the jury's or trial *1203 court's discretion." Id. at ___, 111 S. Ct. at 1045 (emphasis added). After reviewing the standards and safeguards we discussed and applied in Aetna Life Insurance Co. v. Lavoie, 505 So. 2d 1050 (Ala.1987), and Central Alabama Electric Cooperative v. Tapley, 546 So. 2d 371 (Ala.1989), the Court stated:
Id. ___ U.S. at ___, 111 S. Ct. at 1045 (emphasis added).
The review that the United States Supreme Court found "sufficiently definite and meaningful" is nonexistent, however, in cases such as the one under consideration. That fact was apparently ignored by the majority in its consideration of the propriety of the trial judge's refusal to set aside the default judgment.
In reviewing the judgment of the trial court denying the requested relief, moreover, this Court must "attempt to balance the desire to remedy injustice against the need for finality of judgments." Raine v. First Western Bank, 362 So. 2d 846 (Ala. 1978). In my opinion, the majority failed to consider adequately the level of sophistication of the defaulting parties, the nature of the claims and the manner in which they were prosecuted, the conflict in the evidence and testimony, the time that elapsed between the entry of the judgment and the response of the defaulting parties, the amount and nature of the judgment, and the unavailability of appellate review. Therefore, I respectfully dissent.
[1] Although styled a "Bill in the Nature of a Bill of Review or in the Alternative a Bill of Review," the trial court treated Robert and Jessie Mae Hall's pleading as an independent action under Rule 60(b), and we are treating it as such on appeal. Therefore, our review of this case is limited to the propriety, vel non, of the denial of the Rule 60(b) motion and does not concern the merits of the underlying judgment Robert and Jessie Mae sought to have set aside. Satterfield v. Winston Industries, Inc., 553 So. 2d 61 (Ala. 1989).
[2] On March 17, 1989, the trial court amended that order to provide for a register's deed instead of a general warranty deed.
[3] After the damages hearing, the trial court, on September 7, 1990, set aside the award of attorney fees and reduced the amount of damages previously awarded to $25,000. We note that, although the July 31 order dismissed Robert and Jessie Mae's complaint in all respects, except as to damages, the September 7 order was the final judgment for purposes of appeal. | July 26, 1991 |
cc971dbe-0a09-44ff-8daf-2ae8451575b7 | English v. State Ex Rel. Purvis | 585 So. 2d 910 | 1901299 | Alabama | Alabama Supreme Court | 585 So. 2d 910 (1991)
Sharon ENGLISH, d/b/a English Pub
v.
STATE of Alabama ex rel. Thomas J. PURVIS.
1901299.
Supreme Court of Alabama.
August 9, 1991.
*911 Pete J. Vallas, Mobile, for appellant.
Thomas E. Harrison, Mobile, for appellee.
ADAMS, Justice.
This is an expedited appeal filed by Sharon English, d/b/a English Pub (hereinafter referred to as "The Pub"), after the trial court granted a permanent injunction against the operation of The Pub, and after the trial court denied The Pub's motion to alter, amend, or vacate the injunction. The injunction was granted because the trial court found that The Pub was a known "drug hangout" and that its operation constituted a nuisance. The Pub appeals, contending that the action, which was brought pursuant to § 6-5-122, Code of Alabama 1975, was not filed by the appropriate parties and, therefore, that the judgment cannot stand. Section 6-5-122 states:
(Emphasis added.) Because the cause of action was filed by the district attorney for the Thirteenth Judicial Circuit of Alabama, "in the name of the State on the relation of the Sheriff," instead of being filed by the municipality, The Pub contends that the trial court erred in granting the injunction. The Pub further argues that the trial court did not err in refusing to grant the plaintiff leave to amend its complaint to add the municipality as a party plaintiff after judgment had already been entered in favor of the plaintiff. The State argues that the refusal was error.
First, we must consider whether the trial court erred in refusing to allow the amendment to the complaint. We have held that the decision whether to allow an amendment is within the sound discretion of the trial court and that that court's ruling will not be reversed except for an abuse of discretion. See Pruitt v. Meadows, 393 So. 2d 986 (Ala.1981). In the present case, the amendment was not proposed until after a judgment in the case had been entered; however, The Pub already had notice of the complaint against it and would not have been prejudiced by the court's allowing the amendment.
Among other things, Rules 15(b) and (c), Ala.R.Civ.P., provide as follows:
The Court of Civil Appeals said in Manning v. Zapata, 350 So. 2d 1045, 1046-47 (Ala.Civ.App.1977):
"Rule 15(c) was obviously written to protect defendants. It is to that extent that the criteria of Rule 15(c), as relied on by appellees, [apply] since the rule was adopted to protect potential defendants. The rule was designed to cover the situation where a defendant is attempted to be added. It is at that point that the inquiry as to the defendant's knowledge that he should be added is made. In this instance, his knowledge as to whether Standard [the additional plaintiff] should have been added as the plaintiff is irrelevant. Therefore, it is not necessary for the defendants, in this *912 case, to have known that Standard was the proper party plaintiff.
"`Although Rule 15(c) does not expressly apply to a new pleading adding or dropping plaintiffs, the Advisory Committee Note to the 1966 amendment of the rule indicates that the problem of relation back generally is easier to resolve in this context than when it is presented by a change in defendants and that the approach adopted in Rule 15(c) toward amendments affecting defendants extends by analogy to amendments changing plaintiffs. As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action against him, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoice a limitations defense. This seems particularly sound, inasmuch as the court will require the scope of the amended pleading to stay within the ambit of the conduct, transaction, or occurrence set forth in the original pleading.
"`The courts seem to concentrate on the notice and identity of interest factors as they do in the case of amendments changing defendants. Thus, an amendment substituting a new plaintiff has been held to relate back if the added plaintiff is the real party in interest....'
(Emphasis in original.) We hold that the amendment adding the City of Mobile as a party plaintiff to the case at bar should have been allowed, because The Pub had notice of the claims against it and the allowance of the amendment in no way would have prejudiced The Pub. In holding that the amendment should have been allowed, we hold that the argument set forth by The Pub, i.e., that the judgment against it cannot stand because the cause of action was brought by an improper party, is without merit. We note that prior to the release of this opinion, the parties had filed a joint motion to dismiss. That motion is denied, and the judgment is hereby affirmed.
MOTION TO DISMISS DENIED; AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | August 9, 1991 |
65604d67-fe8d-412e-9c2d-5819bc9e6d24 | Orkin Exterminating Co. v. Etheridge | 582 So. 2d 1102 | 1900178 | Alabama | Alabama Supreme Court | 582 So. 2d 1102 (1991)
ORKIN EXTERMINATING COMPANY, INC.
v.
Tim ETHERIDGE.
1900178.
Supreme Court of Alabama.
June 21, 1991.
*1103 C. Winston Sheehan, Jr. and Joana S. Ellis of Ball, Ball, Matthews & Novak, Montgomery, for appellant.
R. Bruce Hall and John Maddox of Carter, Hall & Sherrer, Dothan, for appellee.
MADDOX, Justice.
Orkin Exterminating Company, Inc., appeals from a judgment of the trial court holding that a noncompetition covenant in an employment contract entered into between Orkin and Tim Etheridge was void under Ala.Code 1975, § 8-1-1.
Orkin is engaged in the business of pest control. It has numerous residential and commercial customer accounts in central and south Alabama.
In December 1988, Orkin hired Etheridge as a technician to service Orkin's clients in central and south Alabama. Etheridge's duties included servicing the pest control needs of existing customers. There was conflicting testimony regarding whether Etheridge also solicited new accounts for Orkin or merely serviced new accounts for Orkin once Orkin had obtained the accounts. Etheridge testified that each month he received lists of the customers that he was to service that month. Etheridge further testified that he returned these lists to Orkin when he left its employment.
In January 1989, Etheridge signed an employment contract that contained the following provisions:
Etheridge left Orkin's employ in September 1989, after working for Orkin for approximately nine months. He moved to Montgomery to work at a Delchamps supermarket. Etheridge lived in Montgomery for approximately three months and then returned to Dothan. Upon his return, Etheridge worked for Rollins Bakery for a short time. After leaving Rollins Bakery, *1104 Etheridge began working for Southeastern Pest Control, a competitor of Orkin's.
Ricky Chilton, an employee of Orkin's, testified that he had personally seen Etheridge soliciting customers away from Orkin. He further testified that Orkin had received phone calls from several Orkin customers concerning attempts made by Etheridge to persuade them to employ Southeastern Pest Control. However, Etheridge testified that he had never intentionally tried to solicit any of Orkin's customers.
Orkin brought this suit, seeking to enforce the covenant not to compete. The trial court entered a judgment stating:
When a trial court has heard ore tenus evidence, as in this case, its judgment based upon that evidence is presumed correct and will be reversed only if, after consideration of the evidence and all reasonable inferences to be drawn therefrom, the judgment is found to be plainly and palpably wrong. Knox Kershaw, Inc. v. Kershaw, 552 So. 2d 126 (Ala.1989); Copeland v. Richardson, 551 So. 2d 353 (Ala. 1989); and Pilalas v. Baldwin County Sav. & Loan Ass'n, 549 So. 2d 92 (Ala. 1989). Keeping this standard in mind, we must now consider the law applicable to noncompetition clauses in employment contracts.
Ala.Code 1975, § 8-1-1, expresses the public policy of Alabama concerning contracts restraining employment:
Although a covenant not to compete fits literally within the exception of § 8-1-1, the courts will enforce its terms only if:
Calhoun v. Brendle, Inc., 502 So. 2d 689, 691 (Ala.1986), and the cases cited therein.
Orkin contends that it has a protectable interest in its customer lists. It makes no other claim of a protectable interest. In Greenlee v. Tuscaloosa Office Products & Supply, Inc., 474 So. 2d 669, 671 (Ala.1985), we cited Cullman Broadcasting Co. v. Bosley, 373 So. 2d 830, 836 (Ala.1979), and held:
See Calhoun v. Brendle, Inc., at 691.
The burden is upon the person or entity seeking to enforce a contract that restrains the exercise of a lawful trade or business to show that it is not void under *1105 § 8-1-1. As pointed out above, the trial court, applying the law of this state regarding the enforceability of noncompetition clauses in employment contracts, specifically held that Orkin had failed to carry its burden of showing that the agreement was valid.
Because we hold that the trial court could have reasonably found that Orkin did not have a protectable interest in its customer lists and, therefore, could have found the agreement invalid on this ground, we decline to discuss Orkin's other arguments.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | June 21, 1991 |
6dc8defb-0437-4981-86bb-88ad6e15892e | Hill v. Toyota Motor Corp. | 585 So. 2d 19 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 19 (1991)
Gary Robert HILL, Jr., et al.
v.
TOYOTA MOTOR CORPORATION, et al.
89-1755.
Supreme Court of Alabama.
July 5, 1991.
Rehearing Denied August 9, 1991.
*20 David Cromwell Johnson and J. Steven Mobley, Birmingham, for appellants.
De Martenson, D. Alan Thomas and Prisca M. DeLeonardo of Huie, Fernambucq & Stewart, Birmingham, for appellees.
ALMON, Justice.
Gary Robert Hill, Jr., and his parents, Gary Robert Hill, Sr., and Paulette Hill, appeal from a partial summary judgment entered in favor of the defendants, Toyota Motor Corporation; Toyota Motor Sales, U.S.A., Inc.; Toyota Motor Distributors; Southeast Toyota Distributors; and Hoover Toyota, Inc. (hereinafter collectively referred to as "Toyota" or, when appropriate, by their individual corporate names), in a personal injury action. The judgment as to those defendants was made final pursuant to Rule 54(b), Ala.R.Civ.P.[1] The question presented is whether an affidavit filed by the Toyota defendants, in support of their motion for summary judgment, complied with Rule 56, Ala.R.Civ.P.
Gary Robert Hill, Jr., was injured on November 22, 1986, when the 1981 Toyota SR5 pickup truck that he was driving left the road and struck a guardrail in Sumter County, Alabama. He and his parents filed an action against Toyota, alleging liability under the Alabama Extended Manufacturer's Liability Doctrine, breach of implied and express warranties, and negligence and wantonness. The Hills included the Sumter County Commission as a defendant, alleging negligence and wantonness. Gary Robert Hill, Sr., and Paulette Hill claimed damages against Toyota and Sumter County for loss of services and companionship of their son, for medical expenses they had incurred and will incur for their son, and for emotional and mental distress.
Toyota filed a motion for summary judgment, wherein it alleged that the truck was not defective in design or manufacture. That motion was granted. The Hills filed a motion to alter, amend, or vacate the summary judgment pursuant to Rule 59(e), Ala. R.Civ.P. Their motion was denied, and they appeal.[2]
On a motion for summary judgment, the trial court is required to view the evidence, and all reasonable inferences available therefrom, in the light most favorable to the nonmoving party. Legg v. Kelly, 412 So. 2d 1202 (Ala. 1982). When determining whether the trial court's ruling on the motion was proper, this Court must view the evidence in the same manner. *21 Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala.1985).
In discussing the burdens placed on the parties by Rule 56, this Court has stated:
Schoen v. Gulledge, 481 So. 2d 1094, 1096 (Ala.1985).
The Hills argue that the affidavit of Toyota's expert witness, Michael E. Klima, submitted in support of Toyota's motion for summary judgment, did not satisfy the requirements of Rule 56(e) and did not demonstrate that there was no genuine issue of material fact left for the jury's consideration. That affidavit reads:
The Hills contend that because Klima's affidavit was not based on personal knowledge of the truck involved in this case, but was instead based on generic conclusions pertaining to the 1981 Toyota SR5 pickup truck line, it did not comply with Rule 56(e) or establish that there was an absence of genuine issues of material fact. We agree.
The statements in Klima's affidavit concerned an entire product line, and did not address the Hills' specific allegations regarding the allegedly defective manufacture of the truck. Therefore, it did not rebut those allegations. Even accepting each of Klima's statements as true, they only establish that, as a general rule, 1981 Toyota SR5 pickup trucks were properly designed and manufactured. Those statements do not show that the truck in question was manufactured without any defects. Such a determination could be made only after examining that particular truck.
Viewing the evidence in the light most favorable to the Hills, as this Court must do, Turner, supra, we conclude that Klima's affidavit did not comply with the personal knowledge requirement of Rule 56(e) and did not establish that there were no genuine issues of material fact. Therefore, the burden never shifted to the Hills, and the entry of summary judgment was error. Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989); Schoen, supra.
For the reasons set out above, the judgment of the trial court is reversed, and the cause is remanded.
MOTION TO DISMISS APPEAL DENIED.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, KENNEDY and INGRAM, JJ., concur.
[1] The Hills also named the Sumter County Commission as a defendant. The summary judgment did not relate to that defendant, and the case remains pending as to that defendant.
[2] Toyota has filed a motion asking this Court to dismiss the Hills' appeal as being untimely filed. Toyota contends that the Hills' post-judgment motion, although denominated a Rule 59(e) motion, was in fact a Rule 60(b) motion and did not toll the time for filing an appeal. However, the trial court treated the motion as one filed pursuant to Rule 59(e). We agree that the motion substantially complied with Rule 59(e), and we deny Toyota's motion to dismiss the appeal. | July 5, 1991 |
7fc25dcb-c1d3-4c0e-9fab-1b9ff9a30f37 | Ex Parte Etowah County Bd. of Educ. | 584 So. 2d 528 | 1900685 | Alabama | Alabama Supreme Court | 584 So. 2d 528 (1991)
Ex parte ETOWAH COUNTY BOARD OF EDUCATION.
(Re ETOWAH COUNTY BOARD OF EDUCATION v. Christine SMITH).
1900685.
Supreme Court of Alabama.
July 12, 1991.
Rehearing Denied August 9, 1991.
*529 James E. Turnbach of Turnbach & Warren, Gadsden, for petitioner.
Larry H. Keener of Floyd, Keener, Cusimano & Roberts, Gadsden, for respondent.
MADDOX, Justice.
The issue in this case is whether a 7.5% pay increase for public education support workers should be based upon the workers' base salary or upon the workers' base salary and local supplements and bonuses. Resolution of the issue requires us to determine the intent of the legislature when it adopted Act. No. 88-691, Alabama Acts 1988, which provided for the 7.5% pay raise.
Christine Smith had been employed by the Etowah County Board of Education (hereinafter referred as the "school board") for 25 years, 3 years as a lunchroom worker and 22 years as a lunchroom manager.
On February 2, 1988, the school board adopted a pay schedule for lunchroom managers that established an annual base salary based upon years of experience. In addition, the school board adopted a "manager's supplement" based upon years as a manager, and a "manager's bonus" based upon the number of meals served each day.
Later in 1988, the Alabama legislature adopted Act No. 88-691 which provided a 7.5% pay increase for certain public education employees, the pay increase to be effective with the beginning of the 1988-89 fiscal year.
Pertinent provisions of the Act state that "[t]he seven and one-half percent (7.5%) pay increase shall be paid to each support worker," and that "[t]he salary increases contained throughout this Act shall be exclusive of all local increments due." Act No. 88-691, § 2(a)(3) and § 3(c), respectively.
For the school year 1988-89, the school board calculated Ms. Smith's salary at $13,981.50. The school board calculated the salary as follows: base salary, $8,820, plus 7.5% increase mandated by the Act ($661.50), plus the $2,000 "manager's supplement" and the $2,500 "manager's bonus."
Ms. Smith filed a complaint in the Etowah Circuit Court, maintaining that she was not receiving her proper salary as provided for by the school board's pay schedule and by Act No. 88-691. Her position essentially was that her salary for the 1987-88 school year was $11,473.19, and that the 7.5% pay increase authorized by the legislature would be added to that sum, and then the $2,000 supplement and the $2,500 bonus would each be added to make a total of $16,833.68.
Following a hearing on her complaint, the trial court established Ms. Smith's salary for the 1988-89 school year at $16,833.68, the amount she contended was due. The school board appealed that judgment to the Court of Civil Appeals, 584 So. 2d 526 which affirmed, and the school board then petitioned this Court for a writ of certiorari, which we granted.
After a thorough review of the briefs and the record, we conclude that the judgment of the Court of Civil Appeals should be affirmed.
It is undisputed that Ms. Smith's annual salary for the 1987-88 school year was $11,473.19[1] We recognize, of course, that on February 2, 1988, the school board adopted a pay plan that provided that Ms. Smith would have a base salary of $8,820, *530 but would be entitled to receive a supplement of $2,000 and a bonus of $2,500, making a total salary package of $13,320 ($8,820 base pay; plus $2,000 manager's supplement; plus $2,500 manager's bonus). This formula was used in calculating employee salaries, and the pay plan adopted by the school board resulted in a pay raise for Ms. Smith of $1,846, a 16% increase over her 1987-88 salary.
On September 13, 1988, the Alabama Legislature adopted 1988 Ala. Acts, No. 88-691, which mandated a 7.5% pay increase for public education employees, "effective immediately upon its passage." This Act stated that "[t]he salary increases contained throughout this Act shall be exclusive of all local increments due." The Act further provided that the 7.5% increase should be calculated on salaries of public education employees for the 1987-88 fiscal year.
The school board admittedly did not use Ms. Smith's 1987-88 salary ($11,473.19) as the base for the calculation of the 7.5% pay increase, but instead used the $8,820 base salary it had adopted on February 2, 1988.
The trial court found that Ms. Smith was entitled to an annual salary of $16,833.68. The trial court reached this amount by increasing Ms. Smith's 1987-88 salary of $11,473.19 by 7.5% to $12,333.68 and then adding to that sum Ms. Smith's $2,000 "supplement" and $2,500 "bonus." The result, of course, was an increase in Ms. Smith's 1987-88 salary of $5,360, or a 46% increase.
The school board argues that it adopted the new pay schedule on February 2, 1988, "in order to attempt to alleviate the inequities which existed among the lunchroom workers within the Etowah County Board of Education," and that "[t]he Board did not feel that it was mandated by the Act to provide a 7.5% raise to Smith as under the new schedule she had already been given a 16% raise over what she received the previous year."
We do not question the fact that the school board may have been trying to eliminate some inequities when it adopted its new pay policy on February 2, 1988, when it set Ms. Smith's base salary at $8,820.00, but provided supplements and bonuses. The fact remains, however, and is conceded, that Ms. Smith's actual salary in 1987-88 was $11,473.19. The Act of the legislature is quite specific that the 7.5% increase was to be computed "on the salaries paid to all public education support workers during the 1987-88 fiscal year." (Emphasis added.) Act No. 88-691, § 2(a)(3).
It is well recognized that the School Board is bound to follow its adopted policies. Baker v. Oneonta City Board of Education, 519 So. 2d 1350 (Ala.1987); Belcher v. Jefferson County Board of Education, 474 So. 2d 1063 (Ala.1985); Walker County Board of Education v. Walker County Education Association, 431 So. 2d 948 (Ala.1983). It is also well accepted that this Court will give words used in a statute their "natural, plain, ordinary, and commonly understood meaning." Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219 (Ala.1984).
The trial court correctly found that the computation of the 7.5% increase should be based upon the salary of Ms. Smith during the 1987-88 fiscal year.
We recognize that our holding will result in a substantial increase in the amount Ms. Smith is entitled to receive, but we feel, as did a majority of the Court of Civil Appeals, that the legislative mandate is plain.
Based on the foregoing, the judgment of the Court of Civil Appeals is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The superintendent of education for Etowah County testified:
"Q. And then the next column says $11,473.19. Would you please tell the Court what that figure represents?
"A. That was the annual salary for Mrs. Smith for the '87-88 school year." (Emphasis added.) | July 12, 1991 |
8a487523-9dd1-49de-801c-573c47bf4c44 | White v. Birchfield | 582 So. 2d 1085 | 1900440 | Alabama | Alabama Supreme Court | 582 So. 2d 1085 (1991)
William E. WHITE
v.
Tim BIRCHFIELD, individually and in his official capacity as a deputy sheriff of Chambers County, et al.
1900440.
Supreme Court of Alabama.
June 14, 1991.
Russell T. Duraski and David L. Hirsch, Phenix City, for appellant.
Kendrick E. Webb and Daryl L. Masters of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for appellees.
INGRAM, Justice.
The plaintiff, William E. White, was arrested by the defendant, Tim Birchfield, on a warrant charging harassing communications. Birchfield placed White in the front seat of his patrol car and proceeded to take him to the Chambers County jail. En route, a call came over Birchfield's radio, reporting a suicide in progress. Birchfield responded to the call.
White alleges that, in responding to the call, Birchfield drove at excessive speeds over some railroad tracks across a road. White alleges that the car became airborne and that he hit the roof of the car, causing injury to his spine. He sued Birchfield, alleging that Birchfield had negligently injured him. He also joined Chambers County; Doss D. Leak, Chambers County Commission chairman; and the Chambers County Sheriff's Department, alleging that they were liable to him under the theory of respondeat superior.
*1086 The defendants filed motions to dismiss, which were initially denied by the trial court. The defendants filed motions to reconsider their motions to dismiss, and in response the trial court held a hearing and considered deposition testimony. The defendants asked the trial court to treat the motions to dismiss as motions for summary judgment. The trial court entered summary judgment on all counts as to all defendants. White appealed.
This appeal presents two issues: (1) Whether Birchfield is entitled to immunity, as a matter of law, under the facts as presented; and (2) whether the remaining defendantsLeak, Chambers County, and the Chambers County Sheriff's Departmentcan be held liable under the doctrine of respondeat superior for Birchfield's actions.
The first issue to be examined is whether Birchfield is entitled to the immunity provided by Article I, § 14, Alabama Constitution of 1901, the sovereign immunity clause. Article I, § 14, states: "[T]he State of Alabama shall never be made a defendant in any court of law or equity."
In 1989, this Court decided that questions regarding immunity of state officers should be addressed with regard to two issues:
Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989).
In determining whether Birchfield has absolute immunity in this case, this Court should consider "such factors as the nature of the action and the relief sought." Id. We have consistently held that a state employee is not entitled to absolute immunity from claims based on personal injury allegedly caused by the employee's negligent conduct. See id. (quoting Barnes v. Dale, 530 So. 2d 770, 783 (Ala.1988) (quoting DeStafney v. University of Alabama, 413 So. 2d 391, 395 (Ala.1981))). Therefore, we now hold that Birchfield is not entitled to absolute immunity in this action brought by White alleging that Birchfield negligently caused personal injury.
In DeStafney v. University of Alabama, 413 So. 2d 391 (Ala.1981) (opinion on rehearing), this Court adopted the Restatement (Second) of Torts § 895D, which established immunity from tort liability for a public officer based upon his conduct in performance of a discretionary function. Id. at 393 (adopting Restatement (Second) of Torts, § 895D(3)(a) (1977)). In determining whether the public officer was performing a discretionary function, the Restatement suggests certain factors to consider:
Restatement (Second) of Torts § 895D, comment f.
Because this case was decided on a motion for summary judgment, we will consider the facts in the light most favorable to the nonmoving party. White was arrested on a warrant alleging harassing communications. En route to the jail, a call came over Birchfield's police radio indicating a suicide in progress. Birchfield decided to *1087 proceed to the site of the suicide with White in the patrol car. White claims that Birchfield drove at excessive speeds and that, because of the excessive speed, the patrol car became airborne as it crossed the railroad tracks.
Questions of whether a public officer is entitled to immunity are questions of law to be arrived at based on the facts of the situation. We hold as a matter of law that Birchfield is immune from tort liability based upon his decision to answer the call regarding the suicide in progress. While we recognize that White has alleged that the call was not directed specifically to Birchfield and that White has further alleged that Birchfield drove at an excessive speed, Birchfield's decision to answer the call in a life-threatening situation was within the boundaries of his discretion in performing his duties as a deputy sheriff.
The Mississippi Supreme Court has held that, under the distinction between ministerial and discretionary functions, "the official is immune only where that which he does in the performance of his lawful duties requires `personal deliberation, decision and judgment.'" Davis v. Little, 362 So. 2d 642, 643 (Miss.1978) (quoting Prosser, Law of Torts § 132 (4th ed. 1971)). The decision to respond to the radio call and the manner in which Birchfield responded required Birchfield to exercise his own judgment. To hold that his decision to respond to the call was not discretionary, but ministerial, and, thus, to expose Birchfield to liability for exercising his judgment, is to add unto the deputy sheriff the responsibility to ponder and ruminate over decisions that should be made in a split second. Therefore, however unwise in hindsight Birchfield's actions may seem, we hold that his decision to respond to the call regarding the suicide in progress and to drive at what is alleged to have been an excessive speed, was, in the context of the situation, within the scope of his discretionary functions as a deputy sheriff.
We hold that Birchfield is entitled to qualified immunity; therefore, the judgment of the trial court is affirmed as to Birchfield.
White alleges only one ground for recovery against the remaining defendants, that of respondeat superior.
This Court has established that "[a] sheriff is not an employee of a county for purposes of imposing liability on the county under a theory of respondeat superior." Parker v. Amerson, 519 So. 2d 442 (Ala. 1987). The only ground of liability asserted against Chambers County and Leak is the theory of respondeat superior; therefore, the trial court correctly entered summary judgment in favor of Chambers County and Leak.
The Chambers County Sheriff's Department is not a legal entity subject to suit. Therefore, a cause of action may not be maintained against the Chambers County Sheriff's Department.
The pleadings of both parties seem to indicate that the party meant to be named was Sheriff James C. Morgan. Sheriff Morgan was never properly added as a party to this action. In his brief in support of the motion to dismiss the Chambers County Sheriff's Department, Sheriff Morgan requested that "for purposes of final disposition of this matter," the suit be viewed as one against not only the Sheriff's Department, but also against the sheriff. Because the pleadings were not amended before appeal, Sheriff Morgan is not properly before this Court. However, in the interest of complete justice, we will address his potential liability.
The sole claim of liability against the Sheriff's Department and, allegedly Sheriff Morgan, is respondeat superior. White alleges no personal involvement of Sheriff Morgan. In Parker, this Court held that a sheriff was a state officer and, therefore, was immune from suit based upon alleged negligence in executing his discretionary duties of hiring a jailer. Parker, 519 So. 2d at 446.
*1088 In Montiel v. Holcombe, 240 Ala. 352, 199 So. 245 (1940), a suit brought against the sheriff of Mobile County to enjoin a prosecution, the defendant sheriff argued that "the suit was one essentially against the state, in that it [was] brought against the named officers whose official duties required them to perform the acts which the bill sought to enjoin." Id. at 354, 199 So. at 246. In affirming the trial court's dismissal of the action, this court stated:
Id. (quoting Ex parte State ex rel. Martin, 200 Ala. 15, 75 So. 327 (1917)).
We hold that Parker stands for the proposition that the sheriff cannot be held liable under the theory of respondeat superior for the actions of his jailer because he is an officer of the state and the hiring of the jailer is one of his official duties. Thus, he is immune from this type of suit under Article I, § 14, Alabama Constitution of 1901. It follows that Sheriff Morgan is immune from liability based upon a theory of respondeat superior for the actions of his deputy, Birchfield. However, by this opinion, we are not to be understood as granting absolute immunity to a sheriff in all situations.
Our caselaw has established several exceptions to the rule of absolute immunity:
Phillips, 555 So. 2d at 83.
A claim of respondeat superior does not fit into any of these special exceptions to the absolute immunity afforded to state officials when the action is, in essence, one against the state. White's claim against Sheriff Morgan, based not upon the sheriff's actions as an individual, but upon his official position as "employer" of Birchfield, is, in essence, a claim against the state; therefore, that claim is barred by the absolute immunity of Article I, § 14, of the Alabama Constitution of 1901.
We hold that Birchfield is entitled to substantive immunity, and that the remaining defendants, Leak, Chambers County, and the Chambers County Sheriff's Department, the various "alleged employers" of Birchfield, have absolute immunity in this case. The judgment of the trial court is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | June 14, 1991 |
ff3d8eeb-fd40-430a-a52a-c21b86b186bf | CENT. BANCSHARES OF THE SOUTH v. Puckett | 584 So. 2d 829 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 829 (1991)
CENTRAL BANCSHARES OF THE SOUTH, INC., and Central Bank of the South
v.
W. Dan PUCKETT and Terence C. Brannon.
89-1850.
Supreme Court of Alabama.
July 12, 1991.
Michael L. Edwards, John P. Scott, Jr. and Michael D. Freeman of Balch & Bingham, Birmingham, for appellants.
James W. Gewin and John E. Goodman of Bradley, Arant, Rose & White, Birmingham, for appellees.
STEAGALL, Justice.
W. Dan Puckett and Terence C. Brannon are former executive officers of Central Bancshares of the South, Inc., and Central Bank of the South (hereinafter referred to collectively as "Central Bank"); they were two of the bank's top five officers. Both men were considered, along with Paul Jones, for the position of chief executive officer in 1988. In early 1989, Harry Brock, a founder of Central Bank and its only C.E.O. up until that time, chose Paul Jones to succeed him as C.E.O.
Having been passed over for C.E.O., Puckett and Brannon began to discuss the possibility of owning their own bank. They contend that they wished to continue in Central Bank's employ; Brock and Jones recall that they wished to terminate their employment as soon as possible. On June 27, 1989, they were told that they must resign their offices with Central Bank. By letters dated July 7, 1989, Puckett and Brannon resigned.
On August 4, 1989, Puckett and Brannon sought a declaration of their rights and obligations under certain covenants not to compete that they had signed in connection with exercising stock options while employed by Central Bank. They challenged the validity of the covenants not to compete, claiming they were overbroad and unreasonable. Central Bank filed a counterclaim, seeking restitution of the profits Puckett and Brannon had realized from exercising stock options and seeking to enforce the covenants not to compete in the banking business.
Puckett and Brannon offered evidence at trial that in previous dealings Central Bank had defined its protectable interest as limited to a discreet number of identifiable customers. On June 5, 1990, the trial judge entered an order enjoining Puckett and *830 Brannon from soliciting business from any of Central Bank's customers and from soliciting any employees of Central Bank for the remainder of the two-year period ending July 7, 1991. The judge did not prohibit Puckett and Brannon from competing in the banking business within the state of Alabama, nor did he order them to pay restitution.
Subsequently, Puckett and Brannon filed a "Motion to Confirm Understanding of the Trial Judge's Order." The trial judge replied with an "Amendment to Order" in which he explained that Puckett and Brannon were enjoined from soliciting or causing any bank with which they may be associated to do business with any persons, firms, or corporations who were customers of Central Bank for the remainder of the two-year period ending July 7, 1991. The judge further explained that the word "customer" in his order was intended to include all customers of Central Bank as of July 7, 1989, not just those persons for whom Puckett and Brannon had had account responsibility. Central Bank appeals from the denial of its motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial, contending that the court also should have enjoined the employees from competing in the banking business anywhere in Alabama.
The covenants not to compete entered into by Puckett and Brannon with Central Bancshares on January 21, 1985, read, in pertinent part:
(Emphasis added.)
The enforceability of agreements by former employees not to compete is governed by Alabama Code 1975, § 8-1-1, which provides, in pertinent part:
Contracts in restraint of trade are generally disfavored in Alabama as being against public policy, unless the contract comes within the exceptions set out in § 8-1-1(b) above:
Robinson v. Computer Servicenters, Inc., 346 So. 2d 940, 943 (Ala.1977) (citations omitted; emphasis added). See, also, Devoe v. Cheatham, 413 So. 2d 1141 (Ala.1982) *831 and James S. Kemper & Co. v. Cox & Associates, 434 So. 2d 1380 (Ala.1983).
Nevertheless, the terms of a covenant not to compete will be enforced if:
James S. Kemper & Co. v. Cox & Associates, 434 So. 2d at 1384 (citation omitted). See, also, Booth v. WPMI Television Co., 533 So. 2d 209 (Ala.1988).
The trial court specifically found:
While we agree with the trial judge that Central Bank has a protectable interest in its customer relations and relations with its employees, we do not agree that that protectable interest is limited to its customers and employees. As the trial judge indicated, Central Bank has a prominent position in the banking industry in the state of Alabama. Moreover, Brannon and Puckett, as key employees of Central Bank, had peculiar access to all of the techniques and strategies of the bank responsible for that position. "`[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.'" James S. Kemper & Co. v. Cox & Associates, 434 So. 2d at 1384, quoting Devoe v. Cheatham, 413 So. 2d at 1143.
We find that the restriction regarding competition in the banking business is reasonably related to Central Bank's protectable interest, because the restriction is designed to protect Central Bank only in the area in which it has a legitimate interest: the banking industry. The agreement specifically prohibits Brannon and Puckett from competing in the banking business; it does not preclude Brannon and Puckett from pursuing work outside of banking. As this Court stated in Cullman Broadcasting Co. v. Bosley, 373 So. 2d 830, 835 (Ala.1979):
Similarly, in the context of the present case, we do not find the limitation on competing in the banking business to be unreasonable. Indeed, in Central Bank of the South v. Beasley, 439 So. 2d 70 (Ala.1983), and First Alabama Bancshares, Inc. v. McGahey, 355 So. 2d 681 (Ala.1977), this Court enforced restrictions on competition within the banking business with regard to two former bank branch officers. Those restrictions were for periods of two years and five years. A two-year restriction period was also held to be reasonable in James S. Kemper & Co. v. Cox & Associates, supra.
Here, the very nature of the positions Brannon and Puckett held at Central Bank warrants the same conclusion as in the above-cited cases. If a two-year limitation is reasonable as applied to branch officers, it is certainly reasonable with regard to two of the bank's top five officers. To hold otherwise would be inconsistent.
Likewise, even though the agreement here restricts competition "in any territory in which the Corporation or any of its subsidiaries has been conducting business," Central Bank argues in its brief that Brannon and Puckett should be restricted from *832 competing with it only in Alabama. Such a statewide limitation was held to be reasonable in James S. Kemper & Co. v. Cox & Associates with regard to an insurance agent:
434 So. 2d at 1385 (citations omitted).
Finally, the record establishes that Brannon and Puckett were more than adequately compensated for agreeing not to compete, because they received $1,808,767.97 and $814,550.98, respectively, through the exercise of their stock options. We find language in Central Bank of the South v. Beasley, 439 So. 2d at 74, concerning the element of undue hardship, particularly instructive:
Although this was a nonjury case and the evidence was presented ore tenus, we conclude, after reviewing the record, as well as the applicable law, that the trial judge erred in failing to enforce the covenant not to compete in its entirety and, consequently, that the judgment entered was clearly erroneous. We hold that the restrictions contained in the agreement regarding customer and employee relations, as well as the agreement not to carry on or engage in a similar business, are valid and enforceable within the state of Alabama.[1] We pretermit any consideration of the other issues raised on appeal. Thus, Central Bank was entitled to the relief it sought.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS and KENNEDY, JJ., concur.
SHORES and INGRAM, JJ., dissent.
HOUSTON, J., recused.
SHORES, Justice (dissenting).
I dissent. I would affirm the trial judge's order, because it protects the legitimate interest that Central Bank possesses in its customer and employee relationships and does not illegally restrain Brannon and Puckett from exercising their lawful business endeavors.
The trial judge found that Central Bank has a protectable interest in this case, limited to protection against interference with the bank's customers and employees. He said:
The majority has held that Central Bank has a protectable interest beyond its employees and customers. The majority finds that "the restriction regarding competition in the banking business is reasonably related to Central Bank's protectable interest, because the restriction is designed to protect Central Bank only in the area in which it has a legitimate interest: the banking industry." The majority believes Central Bank's claim that Brannon and Puckett have an intimate knowledge of Central Bank's techniques and strategies, and that they agreed, by signing the covenant not to compete, not to use this particular expertise by going into the banking business.
The trial judge, who heard the ore tenus testimony, determined that this claim is not borne out by the record:
I have carefully reviewed the record in this case, and I agree with the trial court's findings that none of the services developed and offered by Central Bank is unique to it, because every service offered by Central Bank is also offered by a number of other banks and institutions. Thus, there is no protectable interest in these employees' knowledge of those services. The testimony of various witnesses, including those called by Central Bank, established that new programs and products are routinely advertised to the public and that the advertising reveals the marketing strategy. Eleanor Strickland, Central Bank's vice president for marketing research and advertising, testified that a bank's advertising about its products reveals the bank's marketing strategy as of the time the product is introduced. The testimony revealed that it is common practice for Central Bank employees to "shop" at competitive banks in order to gain information about products and that the regulators of the banking industry and others publish information that describes banking practices of all banks in the country. Bankers from different banks (including Central Bank) meet *834 periodically and exchange information. The testimony supports the decision of the trial court, not that of the majority.
This case was tried ore tenus.
Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 12-13 (Ala.1989). It is clear that there was credible evidence to support the judgment of the trial court.
The majority states that the contract "does not preclude Brannon and Puckett from pursuing work outside of banking." However, banking is the work they know, and to restrict them from competing in the banking business clearly imposes an undue hardship upon them, in violation of our holding in James S. Kemper & Co. v. Cox & Associates, 434 So. 2d at 1384.
For the reasons stated above, I respectfully dissent.
INGRAM, J., concurs.
[1] As noted earlier, Central Bank seeks to enforce the agreement only statewide. | July 12, 1991 |
5d7368aa-f771-4fa2-8826-cd1b07476993 | State Highway Dept. v. Morgan | 584 So. 2d 499 | 1900920, 1900921, 1900922 | Alabama | Alabama Supreme Court | 584 So. 2d 499 (1991)
STATE HIGHWAY DEPARTMENT
v.
Bert MORGAN and Morgan Oil Company.
Bert MORGAN and Morgan Oil Company
v.
STATE HIGHWAY DEPARTMENT.
STATE HIGHWAY DEPARTMENT
v.
Bert MORGAN, et al.
1900920, 1900921 and 1900922.
Supreme Court of Alabama.
June 28, 1991.
Jack F. Norton, Chief Counsel, and Jerry L. Weidler and Janie Baker Clarke, Counsel, Alabama Highway Dept., for appellant.
Hayden R. Battles of Bland, Battles, Harris & McClellan, Cullman, for appellee.
PER CURIAM.
The State of Alabama Highway Department appeals the judgments of the Circuit Court of Cullman County requiring the Highway Department to pay "just compensation" to Bert Morgan and Morgan Oil Company (hereinafter collectively referred to as "Morgan"), pursuant to Ala.Code 1975, § 23-1-278, and denying relief to the Highway Department, stipulating that it must join other defendants in the action before being able to obtain relief.[1] The *500 orders were in response to the Highway Department's actions for declaratory judgments and injunctive relief regarding two commercial billboards alongside the Cullman exit off Interstate Highway 65. The Highway Department claims the outdoor advertising signs are illegal and need to be removed by Morgan.[2]
The trial court granted the Highway Department's request as to one sign and ordered that the sign be removed by either the Highway Department or Morgan. However, the court ordered the Highway Department to pay Morgan just compensation before the removal of the sign. As to the second sign, the trial court's order denied the Highway Department any relief and suggested that the Highway Department join other defendants who were not parties to the present suit as a condition to obtaining any future relief against Morgan and Paul Duke, Jr.[3] The Highway Department appeals the trial court's order regarding the stated conditions.
The evidence at an ore tenus hearing indicated that a sign located on northbound Interstate 65 at the intersection of State Highway 157 had been erected by Morgan sometime after April 11, 1978; that that sign contained an advertisement for an Econo Lodge motel; and that it had been erected without a permit. The evidence also revealed that a second sign, located on northbound Interstate 65 at State Highway 69 had been erected by Morgan, but the actual date of construction is unknown; nonetheless, the second sign was also erected without a permit. Morgan concedes that both signs were erected without the necessary permits. After the hearing regarding both signs, the trial court issued a separate order regarding each sign. We will address each order separately.
Initially, we point out that our review of the trial court's judgment in this matter is governed by the familiar standard of the ore tenus rule. By that rule, the judgment of the trial judge, sitting without a jury, based upon factual findings arrived at from disputed evidence presented orally to the court, is presumed to be correct and will be affirmed on appeal as long as "`it is fairly supported by credible evidence under any reasonable aspect and is not palpably wrong or manifestly unjust.'" Charles Israel Chevrolet, Inc. v. Walter E. Heller & Co., 476 So. 2d 71, 73 (Ala.1985) (quoting Whitt v. McConnell, 360 So. 2d 336, 337 (Ala.1978). With this standard in mind, we address the trial court's findings.
As to the first sign, the trial court's order reads:
The Highway Department argues that the Econo Lodge sign is an illegal sign, not a nonconforming sign, and that it is not required to pay compensation to Morgan for the removal of the illegal sign. The Highway Department relies on the language of §§ 23-1-278 and -279, which read, in pertinent part:
Essentially, § 23-1-279 sets forth a grandfather provision whereby owners of outdoor advertising signs are entitled to compensation for removal of those signs, but they must have been lawfully erected prior to February 10, 1972. Although the statute provides exceptions to this rule for signs erected prior to April 11, 1978, the trial court ruled that the Econo Lodge sign *502 was erected "on or after April 11, 1978," a fact not disputed by Morgan. Furthermore, the record supports the trial court's finding that the sign was erected "on or after April 11, 1978." Nonetheless, based on the record and the trial court's order, § 23-1-279 has no application to the facts surrounding the Econo Lodge sign. Rather, § 23-1-278 applies, which gives the director of the State of Alabama Highway Department the authority to remove illegal signs without just compensation to the owners, provided there is adequate notice. Thus, the trial court erroneously concluded that the Econo Lodge sign was nonconforming and erroneously ordered the Highway Department to pay Morgan just compensation.
The trial court's order regarding the second sign reads:
We acknowledge that a trial court has the broad discretion to add or drop parties on its own motion in order to serve the ends of justice. Wood v. City of Huntsville, 384 So. 2d 1081 (Ala.1980). The trial court also has the discretion to order the dismissal of a complaint with leave to amend to add a party or parties if such parties are necessary and indispensable to the action. Withington v. Cloud, 522 So. 2d 263 (Ala.1988). See, also, Rule 19(b), A.R.Civ.P. However, in the instant case, the trial court's findings of fact are inconsistent with its final ruling. The court stated that there are two other signs located in the general area of the sign the *503 Highway Department seeks to remove: the Quality Inn sign, which the court declares is a permitted sign, and the Holiday Inn sign, which is a nonconforming sign. There was also a structure where a sign once was but, without dispute, has been removed. Therefore, it appears from the record that the Highway Department sought only the removal of illegal signs and not the removal of permitted or nonconforming signs. Thus, because Morgan was the only owner of an illegal sign and Duke was the only owner of land on which an illegal sign was placed, the court had before it all of the parties necessary to resolve the illegal-sign dispute. The trial court erred in denying the Highway Department's petition for declaratory judgment and injunctive relief regarding the sign designated in the Highway Department's exhibit 8 and Morgan's exhibits I and J.
In closing, we note that because of our ruling in this case, we need not address Morgan's issue regarding alleged discriminatory enforcement of the laws by the Highway Department.
Based on the foregoing, we reverse the judgments of the trial court and remand these causes for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Morgan filed a cross-appeal (case number 1900921), but failed to file a brief or to present any argument regarding the cross-appeal. Thus, the cross-appeal is not properly before this Court for review.
[2] Paul Duke, Jr., who is named as a party in one suit, is the owner of the property on which the signs are located. He leases the property to Bert Morgan, but has no other interest in the signs.
[3] See footnote two. | June 28, 1991 |
5b431fe3-2737-4485-9511-0ada08cc8606 | King v. WA Brown & Sons, Inc. | 585 So. 2d 10 | 1900407 | Alabama | Alabama Supreme Court | 585 So. 2d 10 (1991)
Mildred KING and Bobby Lee King
v.
W.A. BROWN & SONS, INC.
1900407.
Supreme Court of Alabama.
June 28, 1991.
*11 Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for appellants.
John S. Morgan, James C. Stivender and F. Michael Haney of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
HORNSBY, Chief Justice.
On November 30, 1987, Mildred King and her husband Bobby Lee King sued Spartan Food Systems, Inc. ("Hardee's"),[1] and W.A. Brown & Sons, Inc. ("Brown & Sons"). Mildred King sought damages for injuries she claimed to have received when she slipped and fell in a walk-in cooler manufactured by Brown & Sons, while she was working at a Hardee's restaurant. Bobby Lee King alleged the loss of his wife's consortium. The Kings claimed that the cooler was defective and unreasonably dangerous to the user or consumer because, they alleged, water accumulated on the metal floor and caused the floor to become wet and extremely slippery. They said that Brown & Sons negligently designed the cooler and failed to warn the user of the potentially dangerous floor.
This case was tried before a jury, and on March 1, 1990, the jury returned a verdict in favor of Brown & Sons. The court denied the Kings' motion for new trial, and they appealed the judgment entered on the verdict. We affirm.
Mildred King was employed at a Hardee's restaurant located in Rainsville, Alabama. She testified that on December 5, 1985, she arrived for work at 4:00 a.m. and that shortly thereafter she entered the walk-in cooler to get some supplies. She said that as she was leaving the cooler she *12 slipped and fell, and she alleged that as a result of the fall, she suffered a spinal injury, which caused a 21% permanent disability.
At trial, the Kings offered the testimony of O.L. Vance as an expert to testify as to the defective condition of the cooler floor. Vance testified on direct examination that on January 19, 1990, he visited the Hardee's restaurant where Mrs. King was allegedly injured. While there, he conducted a "coefficient of friction test" (using the same shoe that King was wearing when she fell on December 5, 1985) in the area where the injury was said to have occurred.
Vance testified that the purpose of the test was to get a numerical measure of the "slip resistance" between the floor and the shoe. To obtain this measurement he placed a 25-pound weight on the shoe and then used a scale to measure the amount of force required to cause the shoe to slip.
Vance testified that a numerical coefficient of .50 was required for the floor to pass the test and be considered safe. Using this test, Vance arrived at .30 as the numerical coefficient of friction for the cooler floor and .38 for the cooler's floor mat.[2] Based on these numbers, Vance testified that the cooler floor was the "most treacherous floor surface that [he had] ever measured with the exception of a wet bathtub," and he said, "It was very dangerous." Based on his test results, Vance concluded that the cooler was manufactured in a defective condition. He further testified that the floor would not have been as dangerous if a skid strip had been used. Although Brown & Sons cross-examined Vance, Brown & Sons offered no expert testimony regarding the "slip resistance" of the cooler floor.
At the close of all the evidence, the Kings requested the following jury instruction:
The trial court refused to charge the jury as the Kings had requested and they properly objected, pursuant to Rule 51, A.R.Civ.P. On appeal, the Kings argue that the trial court erred to reversal; because Vance was the only expert to testify as to the defective condition of the cooler floor, they argue that his testimony was binding on the jury because, they say, it was uncontroverted and exclusively within the knowledge of an expert. We disagree.
The Kings' requested jury charge is a correct statement of Alabama law. See, e.g., Allen v. Turpin, 533 So. 2d 515 (Ala.1988); Jefferson County v. Sulzby, 468 So. 2d 112 (Ala. 1985); Ex parte Blue Cross-Blue Shield of Alabama, 401 So. 2d 783 (Ala. 1981). It is also the law in Alabama that "[a] party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis for the granting of a new trial." Nunn v. Whitworth, 545 So. 2d 766, 767 (Ala.1989). If an objection to a jury charge is properly preserved for review on appeal, this Court will "look to the entirety of the trial court's charge to see if there was reversible error." Nelms v. Allied Mills Co., 387 So. 2d 152, 155 (Ala.1980). Reversal is warranted only when the error is considered to be prejudicial. Underwriters Nat'I Assurance Co. v. Posey, 333 So. 2d 815, 818 (Ala.1976).
The strength of the jury verdict is based upon the right to trial by jury, White v. Fridge, 461 So. 2d 793 (Ala. 1984), and a jury verdict is presumed to be correct. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988). This presumption is strengthened by the trial court's denial of a motion for a new trial.
Campbell v. Burns, 512 So. 2d 1341, 1343 (Ala.1987) (citation omitted). See also Ashbee v. Brock, 510 So. 2d 214 (Ala.1987); Jawad v. Granade, 497 So. 2d 471 (Ala.1986); White v. Fridge, supra.
The Kings argue on appeal that Vance's testimony was uncontroverted. However, the mere fact that Brown & Sons did not offer an expert of its own does not render Vance's testimony uncontroverted, because an expert's testimony on direct examination can be controverted on cross-examination. See, e.g., Police & Firemen's Ins. Ass'n v. Mullins, 260 Ala. 173, 69 So. 2d 261 (1953); First Nat'l Bank of Birmingham v. Lowery, 263 Ala. 36, 81 So. 2d 284 (1955); Union Central Life Insurance Co. v. Scott, 286 Ala. 10, 236 So. 2d 328 (1970).
The record in this case shows that Vance's testimony was far from uncontroverted. Vance's testimony on cross-examination cast doubts on the reliability and accuracy of the numerical coefficient test that he had performed on the cooler floor and which was the basis of his opinion that the cooler was defective. On direct examination he testified that the test he performed on the cooler floor was reliable and that it accurately measured the slippery nature of the floor and the floor mat. Based on the results of that test, Vance gave the opinion that the cooler was defective and unreasonably dangerous.
However, on cross-examination he testified that the test was conducted between 1:15 and 2:00 p.m. instead of shortly after 4:00 a.m., the time when Mrs. King allegedly fell. The cooler floor was cleaned at night; thus, it would have been dirtier in the afternoon when Vance conducted his test than in the early morning when Mrs. King fell. Vance also testified that he did not have any published standards to guide him in making a decision as to the "slipperiness" of the floor and that he had never tested a floor before. Vance also admitted that the shoe he used in the test was five years old and that its slip resistance would decrease with time. Furthermore, Vance could not establish any relative meaning for the numerical values he assigned to the cooler floor:
This testimony called into question the accuracy and reliability of the test that Vance performed and upon which he based his opinion that the cooler floor was defective. Because the basis of Vance's opinion and his testimony on direct examination were disputed on cross-examination, "the weight of such testimony is subject to all the rules appertaining to the testimony of other witnesses within the realm of their knowledge." Union Central Life Ins. Co., 286 Ala. at 17, 236 So. 2d at 335. Consequently, it was the jury's prerogative to evaluate Vance's testimony on direct examination in light of his testimony on cross-examination.
Likewise, we note that the slippery nature of a floor is not a subject that is necessarily within the exclusive knowledge of experts. See, e.g., First Nat'l Bank of Birmingham v. Lowery, 263 Ala. 36, 81 So. 2d 284 (1955). In light of these facts, we find that the trial court did not err in refusing the Kings' requested jury charge. Accordingly, we affirm the trial court's judgment.
AFFIRMED.
ALMON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Spartan Food Systems, Inc., is the parent company of the Hardee's restaurant chain. The trial court granted a motion, by Hardee's for dismissal; the Kings do not appeal that dismissal.
[2] The record shows that the cooler had a large rubber mat covering a portion of the floor. Mrs. King alleged that she fell when she stepped off the mat and onto an exposed area of the cooler's galvanized steel floor. | June 28, 1991 |
880ffc92-dfe9-4e04-b53d-aac8c931864c | Ex Parte Presley | 587 So. 2d 1022 | 1900485 | Alabama | Alabama Supreme Court | 587 So. 2d 1022 (1991)
Ex parte Earl PRESLEY.
(Re Earl Presley v. State).
1900485.
Supreme Court of Alabama.
July 19, 1991.
*1023 Paul M. Harden and Anthony J. Bishop, Evergreen, and Hugh Rozelle, Atmore, for petitioner.
James H. Evans, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for respondent.
ALMON, Justice.
Earl Presley was convicted of trafficking in marijuana, in violation of Ala.Code 1975, § 20-2-80.[1] He received a sentence of life imprisonment without the possibility of parole and was ordered to pay a $25,000 fine. The Court of Criminal Appeals affirmed Presley's conviction, Presley v. State, 587 So. 2d 1016 (Ala.Crim.App.1990), and this Court granted Presley's petition for the writ of certiorari to review the following issue: Whether the Court of Criminal Appeals' affirmance of Presley's conviction conflicts with this Court's opinion in Ex parte Bohannon, 564 So. 2d 854 (Ala.1988), and the Court of Criminal Appeals' opinion in Ray v. State, 549 So. 2d 518 (Ala.Crim. App.1989).
During Presley's trial, the State's toxicologist, Deborah Sennett, testified that she performed a gross examination of the material seized from Presley. She also performed chemical and microscopic analyses on portions of the material. She stated that, in her opinion, the material was "marijuana," and that it weighed 2080 grams or 4.59 pounds. During cross-examination, Sennett acknowledged that the material contained "a reasonable amount" of seeds and that all of those seeds were included in the material that she weighed. Sennett also testified that she did not perform any tests on the seeds to determine if they were fertile, sterile, or sterilized, and that she never weighed the seeds separately. Following Sennett's testimony, Presley moved for a judgment of acquittal, arguing that Sennett's failure to determine if the seeds met the statutory definition of marijuana rendered their inclusion in the material weighed improper, and that, as a result, there was insufficient evidence to support a conviction for trafficking in marijuana. The court denied Presley's motion.
In order to secure a conviction for trafficking in marijuana, the State must show that the defendant was in possession of more than 2.2 pounds of that substance, as it is defined in Ala.Code 1975, § 20-2-2(15):
(Emphasis added.)
In Dickerson v. State, 414 So. 2d 998 (Ala.Crim.App.1982), the Court of Criminal Appeals recognized that sterilized seeds are not within the definition of marijuana set out in § 20-2-2(15), but held that the "burden" of establishing that seeds that had been weighed by the State had been sterilized, and were therefore excludable, was on the defendant. 414 So. 2d at 1003. Under the procedure set out in Dickerson, the State could weigh the plant material that it seized, including all seeds, without testing them to ensure that they met the statutory definition of marijuana. This procedure of placing a "burden" on the defendant to bring himself within an exclusion set out in § 20-2-2(15) was followed in other opinions by the Court of Criminal Appeals. See, e.g., Sterling v. State, 421 So. 2d 1375 (Ala.Crim.App.1982); and Weaver v. State, 418 So. 2d 202 (Ala.Crim.App. 1982).
However, in Ex parte Bohannon, 564 So. 2d 854 (Ala.1988), this Court did away with the "burden-shifting" analysis set out in Dickerson and its progeny. In Bohannon, the toxicologist testified that the plant material he weighed was marijuana, and that it weighed 3.5 pounds. The toxicologist also testified that the material he weighed contained seeds and that he had not tested those seeds before weighing the plant material to determine if they had been sterilized. 564 So. 2d at 858. This Court reversed Bohannon's conviction, holding that the toxicologist's failure to test or weigh the seeds rendered improper their inclusion in the material that was weighed. Id. In doing so, we made a clear departure from the procedure that had been adopted by the Court of Criminal Appeals in Dickerson and its progeny. Instead of allowing the State to establish a prima facie case by weighing all of the plant material that it seizes, thereby shifting the "burden" to the defendant, this Court held that the State must prove that all of the material that it relies on to equal 2.2 pounds was marijuana, as the term "marijuana" is defined by statute:
Id.
The Court of Criminal Appeals followed Bohannon in Ray v. State, 549 So. 2d 518 (Ala.Crim.App.1989). In Ray, Deborah Sennett also testified as the State's expert. She testified that she analyzed the seized material and that, in her opinion, it was 4.9 pounds of marijuana. 549 So. 2d at 518. On appeal, Ray argued that the State's burden was not simply to prove that the aggregate of seized plant material and seeds containing marijuana weighed in excess of 2.2 pounds, but that all of the material actually weighed, including the seeds, satisfied the statutory definition of marijuana. 549 So. 2d at 519.
The Court of Criminal Appeals, citing Bohannon, agreed with Ray's argument and reversed his conviction:
549 So. 2d at 519-20 (emphasis added).
The relevant facts in this case are virtually indistinguishable from those in Bohannon and in Ray.[2] In each case, the State's toxicologist testified that the plant material weighed was marijuana and was in excess of 2.2 pounds. In each case, the toxicologist testified that seeds were weighed with the other plant material and that those seeds were never tested to see if they met the statutory definition of marijuana. Because the State failed to establish that the seeds it weighed were "marijuana," as that term has been defined by our legislature, the trafficking convictions in Bohannon and Ray were reversed due to insufficient evidence. This Court is bound by the definitions that our legislature adopts, as are district attorneys and defendants in criminal cases. Therefore, Presley's conviction is also due to be reversed.
This Court hopes that this opinion, when read in conjunction with the opinions in Bohannon and Ray, will clarify any confusion regarding the State's burden in marijuana trafficking cases. In that vein, we feel compelled to address the improper use of language by both the bench and bar that implies that the "burden of proof" shifts to the defendant in these cases. The burden of proof, as that term is properly used, does not shift to the defendant. It remains on the State to prove every element of the offense charged in order to establish the defendant's guilt beyond a reasonable doubt. If the State puts on a prima facie case, the defendant can then do one of two things: (1) he can rest and risk conviction; or (2) he can come forward with exculpatory evidence or evidence of defensive matters. At any rate, it can not be properly said that the burden of proof shifts to the defendant. Buckles v. State, 291 Ala. 359, 280 So. 2d 823 (1973), setting aside Buckles v. State, 291 Ala. 352, 280 So. 2d 814 (1972); Eldridge v. State, 415 So. 2d 1190, 1194 (Ala.Crim.App.1982).
This may seem like a very narrow or subtle distinction, but it is not:
22A C.J.S. Criminal Law, § 688 at 325 (1989) (emphasis added). There are, of course, situations where a defendant is required to assume the burden of proof, such as when a defendant offers the defense of insanity. Ala.Code 1975, § 13A-3-1; Hill v. State, 507 So. 2d 554 (Ala.Crim.App. 1986), cert. denied, Ex parte Hill, 507 So. 2d 558 (Ala.1987). Usually these situations, e.g., the offer of an insanity defense, arise where the defendant has a burden of establishing a special plea. In the insanity situation, the issue is the defendant's mental competency to commit the crime, rather than whether he actually committed the act or acts charged by the State.
For the reasons set out above, the Court of Criminal Appeals' judgment affirming Presley's conviction is reversed, and this case is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
*1026 MADDOX, Justice (dissenting).
The following facts seem to be uncontroverted. On September 23, 1988, there was a fire at a house in Atmore, Escambia County, Alabama. The appellant identified the house as his and had a key, which he used to admit the fire chief to the front door. While the firemen were in the process of putting out the fire, they noticed the appellant removing green plants[3] from the roof of the house, carrying them to the back of the lot and covering them with a piece of carpet. The firemen called the police.
Detective Sergeant Charles Ellaird and Investigator Darrel Ledkins investigated and took custody of the appellant. Detective Ellaird testified that a couple of firemen helped him to bundle the green plants, later identified as marijuana. He said he then placed the bundle in the trunk of the squad car.
The marijuana was locked in the evidence room at the Atmore Police Department. On September 27, 1988, Ellaird and Ledkins stripped the leaves from "exactly 84 stalks" in the bundle, and delivered the leaves to Chief Glenn Carlee. At this time, the stalks were in the exact same position in the evidence room that they had been placed in immediately after seizure. They were in the exact same condition except that they were a little drier. After stripping the leaves, the investigators put them in a plastic bag, which they sealed. The sealed bag was delivered to the chief, who took it to the Department of Forensic Sciences.
The sealed bag was transported by Chief Carlee to the Department of Forensic Sciences in Mobile and was turned over, still sealed, to Forensic Scientist Debra Sennett. The material was stored sealed in a safe until it could be tested.
Ms. Sennett examined the material submitted to her by observation and microscopic examination of the whole mass and by chemical testing of a randomly selected representative sample. Based on this, Ms. Sennett concluded that the entire mass was marijuana and that it weighed 4.59 pounds.
The evidence bag was then resealed and placed in a box, which was itself sealed. The sealed box was returned to Investigator Ledkins and was stored under lock and key until the day of trial.
According to the opinion of the Court of Criminal Appeals, the following represents what was contained in the exhibit admitted into evidence that the state's toxicologist testified weighed 4.59 pounds:
The burden of proof is on the State, of course, to prove that petitioner did, in fact, possess more than 2.2 pounds, but if there ever was a case in which the state met its *1027 burden of proving that a person possessed more than 2.2 pounds of marijuana, it was this case.
The marijuana was on the petitioner's roof; it had roots and was "green"; petitioner attempted to secure and secrete the plant material. The evidence unquestionably shows that the leaves were stripped from 84 stalks, identified and later transported to the lab. According to the opinion of the Court of Criminal Appeals, there were admittedly some seeds included in the material. I have not examined the exhibit, but is there any reasonable doubt that the material in the exhibit was prohibited material, although there is no evidence that the state actually tested the seeds to see if they had been artificially sterilized, the only obvious exception included in the statute? Of course not.
Does the majority hold that the state must prove a negativethat the seeds have not been artificially sterilized? Clearly, the exception in the statute refers to seeds that have been sterilized. The plants here still had their roots, they were green, there were 84 of them, 5 to 6 feet tall. Even if the State were required to prove the negativethat the seeds were not sterilizedthe State proved the negative by proving the positiveExhibit 1 contained green leafy marijuana with some seeds and twigs (not excludable stalks) in it.
During oral arguments, counsel for the petitioner admitted that there could be legitimate uses for "stalks" and seeds that had been artificially sterilized. That is the purpose of the exception. There is no doubt in my mind that the State proved that the material contained in Exhibit 1 was a prohibited substance. Consequently, I must disagree with the opinion that concludes otherwise.
STEAGALL, J., concurs.
[1] Section 20-2-80, the Code section setting out the elements of the offense of trafficking in marijuana, was transferred to § 13A-12-231 by Acts 1988, No. 88-918, p. 512, § 2.
[2] We note that the instant case, Bohannon, and Ray, are clearly distinguishable from Ex parte McCall, 541 So. 2d 1075 (Ala.1989). The opinion in McCall made no mention of seeds or other excludable material, and therefore does not conflict with Bohannon or Ray.
[3] Testimony offered at trial gave the following descriptions of the green plants: "plants that still had roots," "some bushes ... green and approximately 4 to 5 feet," "bunch of plants," "a bundle like, green plants, leafy ... it was a bunch of them." | July 19, 1991 |
9aa00516-ddb5-4c48-b675-b1c60b59b73e | NORTHEAST ALA. REG. MED. CTR. v. Owens | 584 So. 2d 1360 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 1360 (1991)
NORTHEAST ALABAMA REGIONAL MEDICAL CENTER
v.
Betty OWENS.
James OWENS
v.
NORTHEAST ALABAMA REGIONAL MEDICAL CENTER.
89-1590, 89-1635.
Supreme Court of Alabama.
June 28, 1991.
*1361 Robert C. Dillon of Merrill, Porch, Dillon & Fite, Anniston, for appellant, cross-appellee Northeast Ala. Regional Medical Center.
Shay Samples and Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellee Betty Owens and appellant James Owens.
MADDOX, Justice.
This Court's opinion of May 17, 1991, is withdrawn and the following is substituted therefor.
These are consolidated appeals. A hospital appeals from a judgment entered upon a jury verdict awarding a plaintiff wife $350,000 in compensatory damages for negligence in treating her while she was a patient in the hospital. The hospital makes several claims of error: 1) that the trial judge should have reduced the judgment against it to $100,000, the statutory "cap";[1] 2) that the trial court erred in instructing the jury; and 3) that the verdict *1362 was excessive and against the weight and preponderance of the evidence.
The plaintiff husband, who had filed a derivative claim for the loss of his wife's services and consortium, also appeals, claiming that the verdict of the jury that found in his favor but awarded him zero damages was inconsistent and that he is entitled to a new trial to establish his damages.
In October 1984 Betty Owens was admitted to Northeast Alabama Regional Medical Center ("the Medical Center") by Dr. A.N. Taylor for a closed shoulder manipulation on her left shoulder. Dr. Taylor placed Mrs. Owens under general anesthesia and, using force, loosened the adhesions in the shoulder that were limiting her shoulder movement. After surgery, her arm was placed in traction above and behind her head. After she returned to her room she began to experience numbness in her hand and a tingling sensation in her fingers.
Nurses visited Mrs. Owens over 34 times in the first 24 hours following surgery, performing various tests and neurovascular assessments, including looking at the hand and checking her wrist and finger movement, motor function, pulse, the appearance of the hand, and feeling in her fingers. Mrs. Owens immediately complained to the nurses of the numbness in her hand and tingling in her fingers and continued to relate the worsening of that condition to the nurses throughout the day and night. At eight o'clock in the morning on the day after surgery, Dr. Taylor checked Mrs. Owens's arm, checked her fingers, and talked to her and, finding nothing unusual, put the arm back in traction. It was not until two hours later that the physical therapist removed Betty Owens's arm from traction and discovered that it was paralyzed. Dr. Taylor diagnosed her injury as a brachial plexus stretch injury caused by a stretching of the nerves in her left arm while her arm was in traction.
Mrs. Owens and her husband, James Owens, sued the Medical Center, Dr. Taylor, and Anniston Orthopedic Associates. Mrs. Owens claimed permanent neurological injuries to her arm and shoulder as a result of the "frozen shoulder" operation performed at the Medical Center by Dr. Taylor, a partner of Anniston Orthopedic Associates. James Owens sought damages for loss of his wife's services and consortium.
The jury returned a verdict in favor of Dr. Taylor and Anniston Orthopedic Association. It found in favor of Betty Owens against the Medical Center and assessed her damages at $350,000. The jury also returned a verdict in favor of James Owens against the Medical Center, but assessed his damages at zero dollars.
The Medical Center's motions for JNOV and new trial and its motion to reduce the verdict were denied. The trial court also denied James Owens's motion for new trial and, in regard to his claim, entered a judgment in favor of the Medical Center. Both the Medical Center and James Owens appeal.
The Medical Center presents several issues on appeal:
(1) Whether the trial court committed reversible error in denying the Medical Center's motion to reduce the verdict of the jury in accordance with the provisions of Ala.Code 1975, § 11-93-2.[2]
(2) Whether the trial court committed reversible error in refusing the Medical Center's written requested jury charge regarding proximate causation.
(3) Whether the Medical Center is entitled to a judgment notwithstanding the verdict *1363 or a new trial on the ground that the verdict was the result of bias or prejudice on the part of the jury.
(4) Whether the Medical Center is entitled to a judgment notwithstanding the verdict or a new trial on the ground that the verdict was against the weight and preponderance of the evidence.
James Owens contends that the trial court committed reversible error in entering judgment in favor of the Medical Center based upon a holding that a verdict in the amount of $0.00 is the same as a determination that Mr. Owens suffered no damages. Because his claim for loss of services and loss of consortium is derivative, we will first address the issues presented by the Medical Center.
What effect does § 11-93-2 have upon the plaintiff's judgment of $350,000 against the Medical Center? Stated differently, does the $100,000 statutory cap on the judgment creditor's right of recovery against the Medical Center actually reduce the judgment to $100,000?
The Medical Center asked the trial court to reduce the judgment to $100,000, but the trial court, although indicating that he thought the Medical Center was a governmental entity within the meaning of § 11-93-1,[3] declined to accept evidence of its status as a governmental entity because, it held, the statutory cap would not be operative until there was an execution on the judgment. The trial court cited Nowlin v. Druid City Hospital Bd., 475 So. 2d 469 (Ala.1985) ("Nowlin I") as authority for its holding that the motion of the Medical Center was premature because no attempt had been made by the plaintiff to execute on the judgment. We conclude that the trial court failed to give effect to the latest expression of this Court regarding the Nowlin I case. After reviewing this court's holding in Nowlin I and its progeny, we hold that the trial court erred in its determination that the application of the statutory cap was not operative until there was an execution on the judgment.
In Nowlin I, this Court reinstated a jury award of $500,000 in a wrongful death action against a governmental entity, holding as follows:
Id. at 471. It is apparent that the learned trial judge gave full force to this statement in Nowlin I and did not consider this statement in light of this Court's decision in St. Paul Fire & Marine Insurance Co. v. Nowlin, 542 So. 2d 1190 (Ala.1988) ("Nowlin II").
After the administrator of the decedent's estate in Nowlin I instituted garnishment proceedings against the hospital board's insurer for the additional $400,000, this Court clarified Nowlin I and held that the hospital board could not be indebted for more than it was statutorily obligated to pay, and held that the hospital's liability insurance carrier, St. Paul Fire & Marine Insurance Company, was not obligated to pay more than $100,000. Nowlin II. Although Nowlin II did not specifically overrule Nowlin I, Nowlin II specifically holds that a judgment against a governmental entity, by virtue of § 11-93-2, was effectively *1364 reduced from $500,000 to $100,000. In practicality, Nowlin II sets a cap on the amount of a judgment, because one cannot execute on a judgment in an amount greater than $100,000. In fact, the statute specifically provides that "[n]o governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth." Section 11-93-2.
We hold that the trial court erred in its determination that the application of the statutory cap was not operative until there was an execution on the judgment. Because we so hold, we must remand the case for the trial court to determine whether the Medical Center was a governmental entity according to the provisions of § 11-93-1. If the trial court finds that the Medical Center is a governmental entity within the meaning of the statute, then the trial court must reduce the verdict to a sum not exceeding $100,000, plus interest, in conformance with § 11-93-2.
The Medical Center argues that the trial court erred in refusing the following requested jury charge:
In order for a party to preserve for review an error in the court's failing to give a certain jury instruction, it must make a timely objection and must state the grounds with sufficient clarity and specificity to call the error to the court's attention. Ala.R.Civ.P. 51; Coleman v. Taber, 572 So. 2d 399 (Ala.1990); McElmurry v. Uniroyal, Inc., 531 So. 2d 859 (Ala.1988). At the close of the trial court's instructions to the jury, the Medical Center's lawyer said:
While we recognize that the rule does not require undue technical specificity, this "[reservation of] an exception" to the trial court's oral instructions was too general to give the trial court an opportunity to correct any errors that it may have made. See Coleman, 572 So. 2d 399; McElmurry, 531 So. 2d 859. The Medical Center had requested 25 written instructions. Its "exception" refers to all of the refused instructions as a whole. Indeed, the trial court could have reasonably believed that the exception was based upon the fact that the trial court refused to give any of the individual instructions rather than the failure to give one specific instruction. Because the Medical Center did not state with sufficient clarity and specificity its objections to the trial court's failure to give the requested charge, we cannot reverse because of this alleged error. Ala.R.Civ.P. 51.
Even assuming that the Medical Center properly preserved its objection to the denial of the requested jury instruction, the trial court did not err in refusing that instruction, because the subject was substantially and fairly given to the jury in other instructions. See Herrington v. Central Soya Co., 420 So. 2d 1 (Ala.1982). During its instructions to the jury, the trial court stated:
After the trial court defined proximate cause to the jury, the court further explained:
A comparison of the refused instruction with the trial court's oral charge reveals that the trial court gave the jury substantially the same instruction that the Medical Center had requested. Consequently, the hospital has failed to show that the oral charge was either incorrect, incomplete, or misleading. Based on these facts and circumstances, we hold that the hospital is not entitled to a new trial on that ground. Herrington, 420 So. 2d 1. Even if the alleged error had been properly preserved, we would still hold that the trial court did not err in refusing to give the requested instruction.
The Medical Center argues that the jury "verdict [in favor of Betty Owens] was against the weight and preponderance of the evidence" and therefore that the trial court committed reversible error by denying the Medical Center's motion for JNOV, motion for new trial, and motion to reduce the jury's verdict.
The thrust of Mrs. Owens's charge against the Medical Center was as follows:
The evidence was significantly disputed as to what constituted a satisfactory neurovascular test and whether the nurses performed enough neurovascular tests on Betty Owens during the 24 hours following surgery and whether those tests were complete.
The Owenses' expert witness, Dr. Byron A. Genner III, M.D., testified that placing the arm in traction and Dr. Taylor's failure to prescribe regular neurovascular tests and his failure to check her condition amounted to treatment below the applicable standard of care. He further testified that the nurses should have performed the neurovascular tests more completely. Nurse Ann Bailey-Allen, testifying as an expert, stated that the nurses should do regular neurovascular tests whether the doctor orders them to or not, and that the failure to perform these tests completely fell below the required standard of care.
Experts for the defendant testified that tingling and numbness are not uncommon after surgery, and that there was nothing in the hospital records to indicate negligence in the nursing care of Mrs. Owens.
When the evidence is in dispute, the general rule is that a jury verdict is entitled to a strong presumption of correctness. Hickox v. Vester Morgan, Inc., 439 So. 2d 95 (Ala.1980). Only if the findings before the jury were against the great weight of the evidence should the trial court grant a motion for a new trial. Jackie Fine Arts, Inc. v. Berkowitz, 448 So. 2d 318 (Ala.1984). In determining the propriety of a JNOV or a new trial order, we must review the entire evidence and indulge every reasonable inference in favor of the nonmoving party, here Betty Owens. Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala.1981).
*1366 When viewed in the light most favorable to Betty Owens, we hold that the jury could have reasonably determined that the Medical Center breached its duty of care and that its breach was the proximate cause of her injuries. Furthermore, the trial court's denial of the Medical Center's motion for a new trial strengthens the presumption that the jury verdict was correct. See Pierce v. Rummel, 535 So. 2d 594 (Ala. 1988).
We find no error or abuse of discretion by the trial court in denying the motion for JNOV or new trial. The jury resolved any conflict in the evidence in favor of Betty Owens, and we will not disturb that determination.
In its fourth and final argument, the Medical Center argues in the alternative that, even if we should not agree with it on its other arguments, the $350,000 verdict was excessive, and it argues that a new trial should be granted unless the Owenses agree to a remittitur of all amounts in excess of $150,000. We disagree with the hospital on that argument.
"It has long been the rule in Alabama that jury verdicts carry with them a presumption of correctness, and that this presumption is strengthened when the trial court denies a motion for new trial." Alfa Mut. Ins. Co. v. Northington, 561 So. 2d 1041, 1048 (Ala.1990). The appellate courts of this state do not favor setting aside a verdict for damages if doing so can be avoided. Stinson v. Acme Propane Gas Co., 391 So. 2d 659 (Ala.1980). The invocation of our statutory authority to determine the proper amount of recovery[4] is dependent upon a clear showing that the jury verdict is the product of bias, passion, prejudice, corruption, or other improper motive. City Bank of Alabama v. Eskridge, 521 So. 2d 931 (Ala.1988). There is no evidence before this Court of any misconduct, bias, passion, prejudice, corruption, improper motive, or cause not consistent with the truth and the facts. Therefore, we have no statutory authority to invade the province of the jury in this case to set aside the verdict. Because the hospital has failed to overcome the presumption of correctness attached to the jury verdict, we hold that the trial court did not err in refusing to order a remittitur on the ground that the verdict was excessive.
The jury returned a verdict in favor of James Owens, but assessed no damages. The trial court held that a verdict for the amount of $0.00 is the same as a determination that Mr. Owens suffered no damagesa finding of damage or injury is a prerequisite to a verdict in his favorand entered judgment in favor of the Medical Center. The trial court then denied Mr. Owens's motion for new trial on the issue of damages. We hold that the trial court erred in denying his motion for new trial, for the law is clear that an award of no compensation to the plaintiff is not, in fact, a verdict for the defendant. See Moore v. Clark, 548 So. 2d 1352 (Ala.1989); Stinson, 391 So. 2d 659. Such an inconsistent verdict cannot stand. Therefore, we reverse that portion of the trial court's judgment in favor of the Medical Center on James Owens's derivative claim and remand the cause for further proceedings consistent with this opinion.
In summary, we hold that the trial court erred in its determination that the application of the statutory cap was not operative until there was an execution on the judgment, and we remand the case for the trial court to determine whether the Medical Center is a governmental entity according to the provisions of § 11-93-1. However, we also hold that the trial court did not err in refusing the Medical Center's written requested jury instruction regarding proximate *1367 causation. In addition, we uphold the jury verdict for the wife, finding no bias or prejudice on the part of the jury, and we hold that that verdict was not against the weight and preponderance of the evidence and that a judgment could be entered upon it but for the provisions of § 11-93-2. Finally, we hold that the trial court erred in entering a judgment in favor of the Medical Center on the husband's derivative claim.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED.
89-1590 AFFIRMED IN PART, AND REMANDED.
89-1635 REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Ala.Code 1975, § 11-93-2.
[2] Ala.Code 1975, § 11-93-2:
"The recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence.... Recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for damage or loss of property arising out of any single occurrence. No governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth."
[3] Section 11-93-1 defines "governmental entity" as follows:
"(1) GOVERNMENTAL ENTITY. Any incorporated municipality, any county and any department, agency, board or commission of any municipality or county, municipal or county public corporations and any such instrumentality or instrumentalities acting jointly. `Governmental entity' shall also include county public school boards, municipal public school boards, and city-county school boards when such boards do not operate as functions of the state of Alabama. `Governmental entity' shall also mean county or city hospital boards when such boards are instrumentalities of the municipality or county or organized pursuant to authority from a municipality or county."
[4] Upon finding a jury verdict to be excessive, the trial court, pursuant to Ala.R.Civ.P. 59(f), and this Court, pursuant to Ala.Code 1975, § 12-22-71, may interfere with it. | June 28, 1991 |
06466530-d745-4a45-b668-ed984f4a38eb | SOUTHERN LIFE AND HEALTH v. Turner | 586 So. 2d 854 | N/A | Alabama | Alabama Supreme Court | 586 So. 2d 854 (1991)
SOUTHERN LIFE AND HEALTH INSURANCE COMPANY and Richard Perry
v.
Lucy R. TURNER.
88-1289.
Supreme Court of Alabama.
August 23, 1991.
*855 Ollie L. Blan, Jr. and J. Mark Hart of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, and Theodore B. Olson, Larry L. Sims and Theodore J. Boutrous, Jr. of Gibson, Dunn & Crutcher, Washington, D.C., for appellants.
Delores R. Boyd of Mandell & Boyd, Montgomery, and Jock M. Smith, Tuskegee, for appellee.
HORNSBY, Chief Justice.
This case has been remanded to this Court by the mandate of the United States Supreme Court, ___ U.S. ___, 111 S. Ct. 1678, 114 L. Ed. 2d 73 (1991), vacating this Court's judgment. This Court's earlier opinion is published at 571 So. 2d 1015 (Ala. 1990). The Supreme Court remanded the case to us for further consideration in light of its decision in Pacific Mutual Life Insurance *856 Co. v. Haslip, 499 U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
In Haslip, the Supreme Court held that punitive damages assessed against Pacific Mutual under Alabama procedures did not violate the constitutional guarantee of due process because (1) the trial court had instructed the jury on the nature and purpose of punitive damages and when such damages could be imposed, (2) the post-trial procedures set out in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), ensured adequate review of the jury award by the trial court in light of the purpose and nature of punitive damages, and (3) this Court evaluates awards of punitive damages on appeal in light of detailed substantive standards designed to ensure that the award does "not exceed an amount that will accomplish society's goals of punishment and deterrence." Green Oil Co. v. Hornsby, 539 So. 2d 218, 222 (Ala.1989).
The facts in this case are presented in our earlier opinion and need not be repeated here. However, in light of Haslip, we must reconsider our affirmance of the trial court's $500,000 judgment against Perry and Southern Life and Health. The trial court entered this judgment after extensive post-trial briefing and argument pursuant to our guidelines in Hammond, supra, and the trial court's final determination resulted in a remittitur of $4,500,000 of the original $5,000,000 jury verdict. Thus, the issue is whether, given the factors set out in Haslip, our affirmance of the $500,000 judgment was proper. We hold that it was.
Under the criteria set out in Haslip, we first consider whether the oral charge by the trial court sufficiently constrained the jury's determination with respect to the nature and purpose of punitive damages. The trial court's charge on punitive damages was as follows:
This instruction makes clear that the purpose of punitive damages is punishment of the wrongdoer and deterrence of similar wrongful conduct. Even though the instruction vests considerable discretion in the jury for determining punitive damages, the instruction also limits that determination by giving three factors for consideration: (1) the enormity of the wrong, (2) the culpability of the wrongdoer, and (3) the necessity of preventing similar wrongs. In Haslip, a similar instruction was held to have "reasonably accommodated Pacific Mutual's interest in rational decisionmaking and Alabama's interest in meaningful individualized assessment of appropriate deterrence and retribution." 499 U.S. at ___, 111 S. Ct. at 1044.
The instruction also explicitly requires that the jury, in order to award punitive damages in a fraud case, find that malice has been proven by clear and convincing evidence. This approach was noted with approval in Haslip, 499 U.S. ___, at n. 11, 111 S. Ct. at 1046 n. 11. Accordingly, we hold that this punitive damages instruction meets the first requirement of the test in Haslip.
The second consideration by the Court in Haslip concerned an evaluation of the post-trial procedures established in our case of Hammond v. City of Gadsden, supra. The record indicates that the post-trial Hammond-type hearing in this case was preceded by extensive briefing by the parties. There is no doubt that the trial court considered the factors enumerated in Green Oil Co., supra, at 223-24: (1) the relationship between the punitive damages and the harm that could result from the defendant's conduct and the actual harm that resulted, (2) the degree of reprehensibility of the defendant's conduct, (3) the profit to the defendant by the wrongful conduct, (4) the financial position of the defendant, (5) the costs of litigation, (6) the imposition of criminal sanctions, and (7) the existence of other civil actions under similar circumstances. The record further indicates that the parties had the opportunity to present evidence with respect to these factors for the trial court's additional consideration, but there is no indication that any significant additional evidence was presented.
The record is plain that the trial court considered these factors in its review of the jury award from its own unique position of observer of all of the formal aspects of the case. Based on its view of the proceedings, the parties, and the jury, and in light of the factors set out in Hammond and Green Oil Co., the trial court determined that the jury verdict of $5,000,000 was excessive and required a remittitur to one-tenth of that amount. In its Hammond order, the trial court followed this basic guideline:
Central Alabama Elec. Co-Op. v. Tapley, 546 So. 2d 371, 377 (Ala.1989). Accordingly, we conclude that the Hammond hearing in the instant case satisfied the requirement in Haslip that the trial court conduct a meaningful and adequate review of the jury's award.
The final requirement to provide constitutional due process in the assessment of punitive damages under Haslip lies with this Court in its review of the trial court's judgment. Of course, this Court reviews each award of punitive damages under the standards articulated in Green Oil Co. and Central Alabama Elec. Co-Op., but this Court also reviews such *858 awards to "assure some degree of uniformity in the area of punitive damages." Burlington Northern R.R. v. Whitt, 575 So. 2d 1011, 1024 (Ala.1990). We note that the judgment in this case is not disproportionate when considered alongside other punitive damages verdicts in fraud cases. See, e.g., Massachusetts Mut. Life Ins. Co. v. Collins, 575 So. 2d 1005 (Ala.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 1306, 113 L. Ed. 2d 240 (1991) ($750,000 punitive damages award in insurance fraud case held not excessive); HealthAmerica v. Menton, 551 So. 2d 235 (Ala.1989), cert. denied, 493 U.S. 1093, 110 S. Ct. 1166, 107 L. Ed. 2d 1069 (1990) ($1,800,000 punitive damages award upheld in fraud action); Vintage Enterprises, Inc. v. Jaye, 547 So. 2d 1169 (Ala. 1989) ($500,000 punitive damages award in fraud action upheld); and State Farm Mut. Auto. Ins. Co. v. Robbins, 541 So. 2d 477 (Ala.1989) (remittitur of all but $500,000 of $5,000,000 verdict affirmed in fraud action).
Our review of the record and of the trial court's conclusions in its Hammond order reveals no significant point on which this Court would be warranted in reversing the judgment of the trial court. As the trial court noted in its Hammond order, this was a reprehensible fraud, mitigated only in part by agent Perry's attempt to pay back part of his theft. Southern Life and Health's liability under Alabama's law of respondeat superior was thoroughly discussed in our earlier opinion on this case. 571 So. 2d at 1018-19. The State of Alabama has a strong interest in encouraging insurance companies and their agents not to misappropriate their policyholders' premiums. The record contains no evidence as to the defendants' financial position, other civil or criminal actions, or lack of profitability that would support setting aside the trial court's determination. In short, the amount of this judgment bears a reasonable relation to the reprehensibility of the conduct and the importance of encouraging other insurers to avoid similar conduct.
We note that Southern Life and Health Perry argue strongly that the judgment in this case is excessive because Turner's compensatory damages were only $1,000, while the total amount of the judgment was $500,000, meaning that the punitive damages were 499 times Turner's compensatory damages. Essentially, Southern Life and Health and Perry argue that there is an acceptable mathematical ratio between compensatory damages and the proper amount of punitive damages, and that in this case that ratio has been exceeded. We reject that argument, as we have rejected it in the past.
Nationwide Mut. Ins. Co. v. Clay, 525 So. 2d 1339, 1344 (Ala.1987).
The only means to ensure that punitive damages awards fall within the bounds of due process imposed by the Alabama and United States Constitutions is to evaluate the facts and merits of each case according to the factors set out in Green Oil Co. and Central Alabama Elec. Co-Op. A constitutionally permissible punitive damages award against a wealthy defendant, who engages in egregious conduct that fortuitously does little real harm but has the potential to do great harm, might involve a greater ratio of punitive damages to compensatory damages than that in this case. In contrast, a constitutionally permissible punitive damages award against a poor defendant, whose reckless conduct causes great actual harm but has little potential to cause other harm, might require a lower ratio of punitive to compensatory damages than that in this case. We find no compelling reason to set an arbitrary mathematical relationship between compensatory and punitive damages. Imposing such a relationship would inevitably result in injustice, and we decline to impose it.
*859 Accordingly, we conclude that the trial court's remittitur of the jury verdict properly followed our guidelines in Hammond, Green Oil Co., and Central Alabama Elec. Co-Op. and resulted in an award of punitive damages that was rationally related to punishing the wrongdoers and to deterring similar conduct in the future. It follows that the trial court's judgment complies with the due process requirements articulated in Haslip. That judgment is therefore due to be affirmed upon our reconsideration on remand.
AFFIRMED.
ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
MADDOX, J., concurs in the result.
HOUSTON, Justice (concurring specially).
I concur with Chief Justice Hornsby's opinion; however, I write specially because I do not believe that Ms. Turner should be entitled to receive the full award of punitive damages in this case.
The jury awarded Ms. Turner only $1,000 as compensatory damages. This is clear from a thorough review of the record in this case, including the trial court's oral charge to the jury. Is Ms. Turner entitled to receive the entire $499,000 in punitive damages awarded to her by the judgment?
Justice Shores, in her special concurrence in Fuller v. Preferred Risk Life Insurance Co., 577 So. 2d 878, 886 (Ala.1991), and I in my special concurrence in Principal Financial Group v. Thomas, 585 So. 2d 816 (Ala.1991) (which relied on Justice Shores's special concurrence in Fuller), concluded that a punitive damages award does sometimes constitute an undeserved windfall to a plaintiff, but that this has no bearing on the question of whether the award exceeds an amount appropriate to punish the defendant for the wrong committed, or to deter others from similar conduct in the future. Justice Shores in Fuller, and I in Thomas, suggested that the Court divert some of the punitive damages award to the public good when a plaintiff would otherwise enjoy an undeserved windfall.
I would reduce the amount that the plaintiff is to receive to an amount closely corresponding to the 200 to 1 ratio of punitive damages to out-of-pocket expenses that existed and was approved by the United States Supreme Court in Pacific Mutual Life Insurance Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
Under the circumstances of this case, I think that Ms. Turner must receive the entire compensatory damages award of $1,000 and should receive $250,000 of the punitive damages award; and that the balance of $249,000 of the punitive damages award should be paid to the State of Alabama General Fund to be used for the public good. An amount equal to 251/500 of the expenses incurred in litigation and an amount equal to 251/500 of the plaintiff's attorney fees, determined in accordance with the contract between Ms. Turner and her attorney, should be paid to Ms. Turner's attorney out of the $251,000 of punitive and compensatory damages I would allot to Ms. Turner. The balance of the $251,000 should be paid to Ms. Turner. An amount equal to 249/500 of the expenses incurred in the litigation and an amount equal to 249/500 of the plaintiff's attorney fees, determined in accordance with the contract between Ms. Turner and her attorney (a copy of the contract would need to be filed with the trial court) should be deducted from the $249,000 remaining and should be paid to Ms. Turner's attorney; the balance of the $249,000 should be forwarded to the treasurer of the State of Alabama to be deposited in the General Fund of the State to be used for the public good.
MADDOX, Justice (concurring in the result).
In its brief, Southern Life argues that "[b]y remanding this case to this Court for further consideration in light of Pacific Mutual [v. Haslip, ___ U.S. ___, 111 S. Ct. 1032 (1991) ], the Supreme Court has clearly indicated its view that there is a substantial likelihood that the $499,000 punitive *860 damages award inflicted against Southern Life and Mr. Perry violates the new due process standards articulated in that case."
Lucy Turner views the issue differently. In her brief, she states that "Alabama's constitutionally acceptable procedures for scrutinizing punitive verdicts for excessiveness were applied properly in the trial court and on appellate review," and that "[p]ursuant to the United States Supreme Court's mandate, this Court should reaffirm the Judgment."
It is apparent, therefore, based on these opposing arguments, that the parties disagree on the scope of this Court's review in accordance with the Supreme Court's mandate. Frankly, I cannot tell at this point which party has the better argument, but it would appear that this Court was ordered to do more than merely reaffirm the judgment entered before without considering whether the $499,000 punitive damages award was excessive, especially in view of the fact that it was almost 500 times greater than the actual compensatory damages suffered by the plaintiff.
It would appear that the Supreme Court, in Haslip, did more than merely approve the Alabama procedure for review of punitive damages awards, because the Court, in Haslip, reviewed the $840,000 award made in that case to determine independently whether due process requirements were met. The Court stated:
___ U.S. at ___, 111 S. Ct. at 1046.
If the mandate of the Supreme Court requires this Court to apply the Haslip guidelines, i.e., to consider the size of the punitive damages award as compared to the amount of actual monetary loss suffered, and the size of the punitive award as compared to a penalty that could be imposed for insurance fraud, then this Court has not fully understood the scope of the mandate. On the other hand, if the Supreme Court was mandating that this Court review once again what this Court had already done, then Ms. Turner is correct and the judgment is due to be affirmed once again.
If the Supreme Court mandated that this Court consider the judgment again in view of what that Court said in Haslip about the necessity of comparing a punitive damages award with the amount of compensatory damages awarded, then there is a serious question of whether the $500,000 judgment can stand, because the punitive damages award by the jury in this case was 4,999 times larger than the monetary loss suffered, and even after remittitur was 499 times greater than the loss suffered. If the $840,000 punitive damages award in Haslip, which was "4 times the amount of compensatory damages," was "close to the line ... of constitutional impropriety," (Haslip, ___ U.S. at ___, 111 S.Ct. at 1046), then the award in this case, which is 499 times the amount of compensatory damages, must "cross the line," because the $499,000 punitive award has no "understandable relationship to compensatory damages." ___ U.S. at ___, 111 S. Ct. at 1045.
This Court, on remand, clearly has not reconsidered the judgment and addressed an issue the Supreme Court of the United States considers to be relevantthe size of the punitive damages award when compared to the actual loss suffered. On the contrary, this Court specifically states that it finds "no compelling reason to set an arbitrary mathematical relationship between compensatory and punitive damages," *861 and that "[s]uch a relationship would inevitably result in injustice, and we decline to impose it." If that holding says what it seems to say, then this Court believes that a comparison of the size of the punitive damages award to the amount of actual loss suffered is not relevant. Of course, the Supreme Court of the United States seems to say that such a comparison is relevant.
Based on these facts, I have reservations about concurring in this Court's affirmance of the judgment, and I would disagree with the result if I could be absolutely sure about what the Supreme Court of the United States meant when it mandated a reconsideration of this case in view of the Haslip case. The Supreme Court of the United States must have been aware that the original verdict in this case was for $5,000,000 and that the trial judge, after conducting a Hammond-type hearing, ordered a remittitur of all but $500,000 of that verdict. The Supreme Court also must have been aware that this Court had conducted a review of that trial court action on the original appeal. At that time, I concurred in the affirmance of the judgment, but specifically stated that I had dissented in the Haslip case, and that my dissent in Haslip would be adopted by the Supreme Court of the United States. It was not, of course; therefore, I must assume that the Supreme Court of the United States is of the opinion that the Hammond-Green Oil reviews are adequate and meaningful.
I stated in the dissent in Pacific Mutual Life Insurance Co. v. Haslip, 553 So. 2d 537, 545 (Ala.1989) that "[w]hile I applaud the procedure this Court has adopted to review and revise the jury's decision based on its `standardless discretion,' I cannot believe that procedure is sufficient to accord to litigants all the due process protection the Constitution envisions." The Supreme Court concluded otherwise, and held that those procedures were adequate and meaningful. Post-Haslip reviews by this Court, including this one, indicate that the procedures, when actually applied, are not adequate and meaningful, as I have pointed out in dissents. In Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414 (Ala. 1991), this Court overturned a trial court's judgment on review of a punitive damages award and held a state statute unconstitutional, even though the constitutionality of the statute had not been raised. In Principal Financial Group v. Thomas, 585 So. 2d 816 (Ala.1991), this Court upheld a $750,000 judgment, which was 750 times higher than the compensatory damages, even though the contractual issue of the liability of the company to pay was not finally determined until the jury resolved the issue in favor of the policyholder after a trial of the case.
I concurred in the judgment on our original review of this case on condition the Supreme Court affirm the Haslip decision of this Court. That Court not only has affirmed that decision, but has remanded this case for reconsideration in light of Haslip.
While I do not read Haslip as saying all that some other members of this Court apparently seem to think it says, I was wrong in my assessment of what the Supreme Court would decide in the Haslip case; therefore, I concur in the result only. | August 23, 1991 |
1ff76bda-bba3-49e8-8ead-8464f6ff00f3 | Burdeshaw v. White | 585 So. 2d 842 | 1900615 | Alabama | Alabama Supreme Court | 585 So. 2d 842 (1991)
Roy BURDESHAW
v.
James WHITE, et al.
1900615.
Supreme Court of Alabama.
July 26, 1991.
C. Knox McLaney III and J. Doyle Fuller, Montgomery, and William J. Baxley, Birmingham, for plaintiff.
Gary C. Sherrer and John Maddox of Carter, Hall & Sherrer, Dothan, for defendants.
HOUSTON, Justice.
The plaintiff, Roy Burdeshaw, individually and as the representative of a class composed of rural landowners in Houston County, Alabama, appeals from a summary judgment for the defendants, James Sizemore, in his official capacity as commissioner of revenue for the State of Alabama; John L. Napier, in his official capacity as revenue commissioner for Houston County; and Robert Crowder, in his official capacity as chairman of the Houston County Commission, in this action challenging the method used to determine the current use valuation of land for ad valorem tax purposes as being contrary to Act No. 135 of the Second Special Session of the Alabama Legislature of 1978, and further seeking a refund of excess taxes collected in the years 1979, 1980, and 1981. We affirm in part, reverse in part, and remand.
Burdeshaw filed his complaint in the Houston Circuit Court on June 22, 1989. On October 2, 1989, Burdeshaw filed a motion for a summary judgment, supported by the deposition of defendant Napier, and on October 3, 1989, the trial court scheduled that motion for a hearing on October *843 24, 1989. On October 18, 1989, the defendants filed a motion for a summary judgment, a motion to consolidate both summary judgment motions for disposition, and a motion to schedule a later hearing date to allow for additional discovery. The trial court granted the defendants' motion on October 19, 1989, rescheduling the hearing for December 4, 1989. On November 22, 1989, the defendants filed a copy of the record in Hollis v. White, CV-84-5061, in support of their summary judgment motion. In Hollis, another rural landowner in Houston County had filed an action in Houston Circuit Court, substantially similar to the present one, on behalf of himself and seeking to represent a class composed of other rural landowners similarly situated. Two of the attorneys representing Burdeshaw in the present action also represented the plaintiff in Hollis. Hollis, which the parties stipulate in their respective briefs was never certified as a class action, resulted in the plaintiff's complaint being dismissed with prejudice under Rule 25(a), A.R.Civ.P. No appeal was taken from that dismissal.
Burdeshaw's attorneys, after receiving proper notice, did not appear at the December 4, 1989, hearing, and no further action was taken in this case until September 20, 1990, when Burdeshaw filed a motion to schedule another hearing date. On September 28, 1990, the trial court entered separate orders certifying this action as a class action, denying Burdeshaw's motion for a summary judgment, and entering a summary judgment for the defendants. In its order granting the defendants' motion for a summary judgment, the trial court stated as follows:
The following issues were presented for our review:
1. Whether the summary judgment was proper based on the affirmative defense of res judicata;
2. Whether the summary judgment was proper based on the affirmative defense of the applicable statute of limitations; and,
3. Whether the summary judgment was proper under Rule 41(b), A.R.Civ.P., for want of prosecution.
With regard to the first issue, the defendants contend that the previous dismissal *844 of Hollis barred the present action under the doctrine of res judicata. Burdeshaw contends, however, that the doctrine of res judicata was not applicable. He argues that because Hollis was never certified as a class action, the "identity of parties" criterion of res judicata was not satisfied. We agree.
In Whisman v. Alabama Power Co., 512 So. 2d 78, 80-82 (Ala.1987), this Court discussed in-depth the identity of parties criterion of res judicata:
"....
"....
"`Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). Res judicata applies where the parties to both suits are "substantially identical." Wheeler v. First Alabama Bank of Birmingham, [364 So. 2d 1190 (Ala.1978)]; Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir.1968).
"`Judgments can bind persons not party (or privy) to the litigation in question where the nonparties' interests were represented adequately by a party in the original suit. Southwest Airlines Co. v. Texas International *845 Airlines, 546 F.2d 84, 94-95 (5th Cir. 1977). A person may be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative. Aerojet-General Corporation v. Askew, 511 F.2d 710, 719 (5th Cir.1975). Moreover, if a party has a "sufficient `laboring oar' in the conduct" of the litigation, then the principle of res judicata can be actuated. Montana v. United States, 440 U.S. 147, 155, 99 S. Ct. 970, 974, 59 L. Ed. 2d 210 (1979).'
"401 So. 2d at 770."
Burdeshaw was not a party in Hollis, and there is no evidence suggesting that he participated in any way in the prosecution of that case. Furthermore, Hollis was never certified as a class action; therefore, no judicial determination was ever made that the plaintiff in that case adequately represented the putative class of rural landowners in Houston County, of which Burdeshaw was a member. The constitutionally protected right to a remedy by due process of law that has been preserved inviolate to each of the citizens of this State, Art. I, §§ 13, 36, Alabama Constitution of 1901, prohibits this Court from holding that the doctrine of res judicata was a bar to Burdeshaw's action. We conclude, therefore, that the summary judgment for the defendants could not properly be based on the affirmative defense of res judicata.
As to the second issue, the defendants contend that the summary judgment was proper because, they argue, the two-year limitations period set out in Ala.Code 1975, § 40-10-160, had run at the time Burdeshaw filed his action. Burdeshaw contends that the statute was not a bar because, he says, the running of the two-year limitations period was tolled while the previous cases of Mangum v. Eagerton, CV-81-1592-G, and Hollis were pending in the Circuit Courts of Montgomery and Houston Counties respectively.
Section 40-10-160 provides:
Thus, the period for which refunds of ad valorem taxes may be recovered is the two-year period next preceding the filing of the action. See Thorn v. Jefferson County, 375 So. 2d 780 (Ala.1979).
In White v. Sims, 470 So. 2d 1191 (Ala. 1985), this Court held that, as a general principle of law, the commencement of a class action tolls the running of the applicable limitations period as to the putative class until such time as an independent action is filed, or until the denial of class certification, whichever may occur first. Of specific importance to the present case, the Court explained:
"After the Eagerton decision was rendered, the trial court on June 15, 1983, placed the Mangum case back on the active docket and an order was entered *846 certifying Mangum as a statewide plaintiffs' class.
"On June 7, 1984, the Covington County taxpayer class in Sims filed a motion for summary judgment, which was granted on September 19, 1984. The trial court found that the tax assessor in Covington County did not utilize values consistent with those set forth by this Court in Eagerton v. Williams, supra.
"`The principal function of the class actionto avoid multiplicity in filing suits, motions and paperswill be defeated if the statute of limitations is not tolled in favor of the plaintiffs. A putative class member could protect his or her interests only by filing an individual action or intervening before the statute of limitations runs.'"
470 So. 2d at 1192-93.
Burdeshaw alleged in his complaint that he, and the class he sought to represent, were entitled to recover for excess taxes that were paid in 1979, 1980, and 1981. The limitations period began to run when those taxes were paid; however, the running of the limitations period was tolled on November 25, 1981, when Mangum was filed. The period began to run again on May 2, 1984, when the Mangum class was decertified. The period ran for approximately 5 months and 3 days, until October 5, 1984, when it was again tolled by the filing of the action in Hollis. The period began to run again on April 11, 1989, when Hollis was dismissed, and it ran for approximately 2 months and 11 days, until the present action was filed on June 22, 1989. Thus, it is apparent that the statute was a bar to Burdeshaw's claim for a refund of any excess taxes that were paid in *847 1979. However, the statute was not a bar to Burdeshaw's claim for a refund of excess taxes that were paid in 1980 and 1981. Although the record is silent on the matter, payment for the taxable year 1979-80 would have been due on October 1, 1980, and payment would have been delinquent on January 1, 1981, see Ala.Code 1975, § 40-11-4; therefore, assuming that Burdeshaw, and the members of the class he sought to represent, paid their taxes on October 1, 1980, the earliest date on which they were legally obligated to pay them, only a little over 21 months of the limitations period would have run at the time this action was filed (i.e., October 1, 1980 (taxes paidlimitations period began to run), to November 25, 1981 (Mangum filedrunning of the limitations period tolled), equals 13 months and 24 days; May 2, 1984 (Mangum class decertifiedlimitations period began to run again), to October 5, 1984 (Hollis filedlimitations period tolled again), equals 5 months and 3 days; April 11, 1989 (Hollis dismissedlimitations period began to run again), to June 22, 1989 (present action filed), equals 2 months and 11 days).
Based on the foregoing, it is clear that although the summary judgment was proper as to Burdeshaw's claim for a refund of excess taxes that were paid in 1979, it was not proper as to his claim for a refund of excess taxes that were paid in 1980 and 1981.
Finally, with respect to the third issue, we find no merit in the defendants' contention that the summary judgment was proper under Rule 41(b) for want of prosecution. The entry of a judgment for a defendant as a matter of law for want of prosecution is a drastic sanction. The general rule, of course, is that a court has the inherent power to act sua sponte to dismiss an action for want of prosecution. However, because dismissal, or, as here, the entry of a summary judgment, is such a drastic sanction, it is to be used only in extreme situations. Accordingly, this Court carefully scrutinizes any order terminating an action for want of prosecution, and it does not hesitate to set one aside when an abuse of discretion is found. Selby v. Money, 403 So. 2d 218 (Ala. 1981); Smith v. Wilcox County Board of Education, 365 So. 2d 659 (Ala.1978). In Selby, this Court discussed the factors to be considered in reviewing the dismissal of an action for want of prosecution:
403 So. 2d at 220-21. In Smith, this Court wrote:
"The controlling issue here is whether, pursuant to Rule 41(b), ARCP, the trial judge abused his discretion in dismissing *848 the action with prejudice. Because the Alabama and Federal rules are virtually verbatim, `a presumption arises that cases construing the Federal Rules are authority for construction of the Alabama Rules.' Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So. 2d 228 (Ala.1978).
"....
365 So. 2d at 661-62 (emphasis in original).
The record in the present case does not show that Burdeshaw's conduct warranted the entry of a summary judgment for the defendants. It does not appear that there was a "clear record of delay," a "serious showing of willful default," or "contumacious conduct," on the part of Burdeshaw. Shortly after filing this action, Burdeshaw filed a motion for a summary judgment, *849 supported by the deposition of one of the defendants. Shortly thereafter, the defendants filed a cross-motion for summary judgment, and both motions were consolidated and scheduled for a hearing. Although, as the defendants point out, Burdeshaw's attorneys failed to appear at the December 4, 1989, hearing, and then waited approximately 10 months before attempting to have another hearing scheduled, we do not think that the drastic sanction imposed by the trial court was warranted. Under the rationale of Smith, supra, even though there was a lengthy period of inactivity in the present case, approximately 10 months, compared to approximately 7 years in Smith, that period of inactivity was not sufficient to support the entry of a judgment for the defendants. Here, as in Smith, there was activity on the part of the plaintiff within the approximately 11-month period prior to the entry of the judgment (during that period Burdeshaw filed a motion for a summary judgment and a motion to reschedule the hearing). Although we hasten to point out that we do not condone an attorney's unexcused failure to appear at a scheduled hearing, we do not think that the failure of Burdeshaw's attorneys to appear at the December 4, 1989, hearing, when considered with the other circumstances surrounding this case, was sufficient to show a failure to prosecute so as to warrant the entry of a judgment for the defendants as a matter of law. Furthermore, because the trial court certified this action as a class action, not only the vital interests of Burdeshaw but also those of the individual members of the class are at stake. As previously noted, the record shows that Burdeshaw moved to have another hearing scheduled to consider his motion for a summary judgment. Although there may come a point in an action when the interest of the court in controlling its calendar and the risk of prejudice to the defendant outweigh the interest in disposing of litigation on the merits, Selby, supra, that point was not reached in this case.
We note that we have fully considered Dillard v. Southern States Ford, Inc., 541 So. 2d 483 (Ala.1989), as well as other cases where judgments for the defendants were held to be proper on the ground of want of prosecution, and that we consider the plaintiffs' conduct in those cases to be distinguishable from the conduct exhibited by Burdeshaw in the present case.
For the foregoing reasons, we hold that the summary judgment, insofar as it relates to Burdeshaw's claim for a refund of excess taxes paid in 1979, was proper and, therefore, to that extent, it is due to be affirmed. We further hold, however, that insofar as the summary judgment relates to Burdeshaw's claim for a refund of excess taxes paid in 1980 and 1981 it was improper and, consequently, that it is due to be reversed and the case remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, KENNEDY and INGRAM, JJ., concur. | July 26, 1991 |
88ee233c-f929-4e17-8516-9bc55cd501ca | Ex Parte State | 583 So. 2d 997 | 1901146 | Alabama | Alabama Supreme Court | 583 So. 2d 997 (1991)
Ex parte State of Alabama.
(Re Bill Henry CARRAWAY v. STATE).
1901146.
Supreme Court of Alabama.
June 14, 1991.
James H. Evans, Atty. Gen., and Gilda Branch Williams, Asst. Atty. Gen., for petitioner.
David A. Simon, Bay Minette, for respondent.
Prior report: Ala.Cr.App., 583 So. 2d 993.
KENNEDY, Justice.
The petition for writ of certiorari is denied.
In denying the petition for writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | June 14, 1991 |
5b070e52-24b7-450e-a960-edb241813d65 | Hill v. Hawkins | 582 So. 2d 1105 | 1900185 | Alabama | Alabama Supreme Court | 582 So. 2d 1105 (1991)
Alsie Mae HILL
v.
Jerry L. HAWKINS, as executor of the Estate of Colleen M. Hawkins, deceased.
1900185.
Supreme Court of Alabama.
June 21, 1991.
William K. Abell, Montgomery, for appellant.
William S. Duke, Montgomery, for appellee.
MADDOX, Justice.
The issue in this case is whether the trial court erred in dismissing the plaintiff's personal injury action because she had failed to perfect service upon the defendant within a reasonable time.
The lawsuit arose out of an automobile accident that occurred in November 1987. In November 1989, Alsie Mae Hill timely filed suit against Colleen Hawkins and other fictitiously named defendants alleging negligence, willfulness, and wantonness. Her husband also sued, alleging a loss of consortium, but he is not involved in this appeal.
On December 20, 1989, the sheriff returned his certificate of service of the summons *1106 with a notation indicating that Colleen Hawkins was "not found" because she was deceased. The record shows that this action regarding service was duly noted on the trial court's case action summary sheet.
In May 1990, the trial judge wrote to Hill's attorney:
Three months later, having heard nothing from Hill or her attorney, the trial judge dismissed the matter, without prejudice, "due to lack of service upon the Defendant." Hill's attorney filed a motion to reinstate the case to the docket, and as grounds therefor, stated:
The trial judge denied the motion to reinstate, finding that Hill had been aware of Colleen Hawkins's death since 1989 and that she had had ample time to locate the executor. Hill appeals.
Hill contends that the trial court abused its discretion by dismissing her lawsuit. She bases this contention on the assertion that she was without fault in the failure to perfect service because, she said, "the death of Colleen M. Hawkins and the absence of the executor ... from this State were totally beyond [her] control."
Whether to dismiss an action under Rule 41(b), Ala.R.Civ.P., is within the discretion of the trial court, and a dismissal pursuant to that rule will be reversed only for an abuse of that discretion. State v. Horton, 373 So. 2d 1096 (Ala.1979). In reviewing such a dismissal, the appellate court need only determine whether the trial court's action was supported by the evidence. Id.
In the present case, despite the trial court's admonition that failure to act further on the matter within 10 days would result in a dismissal of the action, the record reveals that no action was taken. Contrary to Hill's contentions, there is no evidence in the record that service was ever attempted upon the executor of Colleen Hawkins's estate.
The failure of a plaintiff to attempt to serve the defendant within a reasonable time may amount to a failure to prosecute the action, warranting a dismissal of the case. Rule 41(b), Ala.R.Civ.P.; Crosby v. Avon Products, Inc., 474 So. 2d 642 (Ala. 1985).
Based upon the facts and circumstances of this case, we hold that the trial judge did not abuse his discretion by dismissing the plaintiff's action. There was sufficient evidence to justify the judge's decision. The trial court's dismissal of the plaintiff's action is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | June 21, 1991 |
44deb950-024a-46f9-a598-5315020f8471 | Blair v. Fullmer | 583 So. 2d 1307 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 1307 (1991)
Gary D. BLAIR
v.
Harold M. FULLMER.
89-1613.
Supreme Court of Alabama.
June 21, 1991.
*1308 George C. Douglas, Jr. of Gaines, Gaines & Gaines, Talladega, for appellant.
Ray F. Robbins II of Robbins, Owsley & Wilkins, Talladega, and Angela F. O'Connell, Rockville, Md., for appellee.
ALMON, Justice.
Gary Blair appeals from a summary judgment entered in favor of the defendant, Harold Fullmer, in an action seeking to enjoin Fullmer from obstructing a public road that Blair alleges exists on Fullmer's property.
In 1958, G.B. Caudle and Mary Sue Caudle sought to subdivide their property in Talladega County. The Caudles drafted a plat of the proposed Caudle Lake Subdivision and filed it in the office of the probate judge of Talladega County. The Caudles then held an auction to sell all of the subdivision lots. Four purchasers, including Gary Blair's parents, bought lots at the auction, receiving deeds in July 1958. The plat apparently[1] showed a road beginning at a public highway, crossing the Caudle Lake Subdivision, circling a lake on the property, and connecting to the two lots purchased by the Blairs. Gary Blair now seeks to have that platted road declared a public road. It appears that all of the lots sold were situated on the outer perimeter of the Caudles' property and that all had ingress to and egress from existing public highways by way of easements independent of the road shown on the recorded plat. Although Gary Blair stated in an affidavit that G.B. Caudle bulldozed a road around the lake at the time of the sale of the lots, he admitted that it was never maintained. Mary Sue Caudle and others gave affidavits stating that there was never a road circling the lake, and there was no evidence that any of the purchasers of the lots had ever used any road across the land retained by the Caudles for access to their lots.
Following the auction, the Caudles withdrew the remainder of the estate from sale and retained ownership of that acreage, approximately 384 acres, until 1973, when they conveyed their entire estate to Goodwin Realty and Investment Company. Goodwin Realty also acquired two lots, totalling 96.5 acres, that had been purchased by other parties in 1958. In 1977 Goodwin Realty conveyed these parcels, approximately 480 acres, to Harold and Marjorie Fullmer.
*1309 Gary Blair's parents were the owners of a large farm that was adjacent to the Caudles' original estate. At the 1958 auction, they purchased lots A and B, 37.25 and 27.3 acres respectively. These lots were contiguous to the Blair farm. Access to the land that comprised these lots has always been gained by way of an improved road that is situated on the Blairs' property.
In 1975, the Blair parents divided their farm and conveyed a portion to Gary Blair and a portion to his brother, Linder O. Blair. The land that comprised the Caudle Lake Subdivision lots is included in that portion now owned by Gary Blair. The Blairs divided their property in such a way that the improved road on the Blair property was located primarily on the land that was deeded to Linder Blair. Thus, Gary Blair had to travel across his brother's property to reach his own property. A dispute arose between the brothers concerning access to the road, and in 1982 Gary Blair filed an action against his brother and their parents in Talladega Circuit Court, seeking an easement by necessity across his brother's property. In 1989 the circuit court granted an easement to Gary Blair. Shortly thereafter, Gary Blair brought this action, alleging the existence of a public road, as shown in the recorded plat of the Caudle Lake Subdivision, and seeking to enjoin Harold Fullmer from interfering with his use of this road.
In entering a summary judgment for Fullmer, the trial court relied on CRW, Inc. v. Twin Lakes Property Owners Association, Inc., 521 So. 2d 939 (Ala.1988), and Cottage Hill Land Corp. v. City of Mobile, 443 So. 2d 1201 (Ala.1983), held that "[a]cceptance of a proffered dedication is necessary," and stated that it found "there was never an acceptance of this strip of land as a public road." Blair contends that the trial court erred in relying on these cases. He seeks to have this Court follow Gaston v. Ames, 514 So. 2d 877 (Ala.1987), and hold that there has been an irrevocable dedication of the road shown in the recorded plat for the Caudle Lake Subdivision and that such dedication, alone, makes the road shown on the plat a public road.
In Cottage Hill Land Corp. v. City of Mobile, supra, the Court said:
Cottage Hill, supra, at 1203 (emphasis added). The holding in Cottage Hill was followed in CRW, supra.
The language in Cottage Hill stating that acceptance is required is dictum in any event, because the city planning commission, as a condition of its approval of the subdivision plat, required a 100-foot right-of-way to be added at the southern end of the plat for a proposed thoroughfare that had been placed on the commission's master plan in the late 1940's. 443 So. 2d at 1202. Thus, the question of acceptance of the dedicated right-of-way was not even at issue. Moreover, the Court said:
443 So. 2d at 1203.
The following statement appears in CRW, Inc., supra:
521 So. 2d at 941. The Court then cited Cottage Hill for its statement that "Acceptance of a proposed dedication is necessary." The evidence in CRW would have supported a finding that by filing the plat for record the developers of the Twin Lakes Subdivision did not intend to dedicate the roads therein to public use, or that, if they had so dedicated them when the plat was filed in 1970, that dedication had been vacated by a consent judgment in 1977 by which a "Twin Lakes Trust" was established and the developer's interest in the Twin Lakes roads was transferred to the trust. Furthermore, when the Twin Lakes property was annexed into the City of Moody, the city council "approved a zoning ordinance allowing the Twin Lakes roads to remain private subsequent to the annexation." Id., at 940. Thus, the Court affirmed a judgment that CRW could not connect its subdivision to the Twin Lakes roads and thereby reach a public highway.
Alabama Code 1975, § 35-2-50, provides in pertinent part:
Section 35-2-51 provides in pertinent part:
Section 35-2-51(b) is identical to Code 1907, § 6030, referred to in Cottage Hill, supra, as "early Alabama statutory authority."
Section 35-2-52 prohibits a probate judge from accepting a plat of lands lying within a city having a population of more than 10,000 inhabitants unless the governing body or the city engineer has noted its approval on the plat; significantly, no such requirement is made regarding plats of rural land.[2] Section 35-2-53 provides for vacation of a plat before the sale of any lots or, after the sale of lots, by all the owners of lots. Fullmer purported to execute the latter type of vacation shortly before this action was filed but, without Blair's approval, that document obviously does not comply with § 35-2-53. Similarly, § 35-2-54 provides for the vacation of streets by abutting landowners, but Fullmer's document *1311 can have no effect under this section without Blair's participation. Compare § 35-2-55, which requires in some instances city or county approval of vacation of public roads, and § 35-2-58, which provides for a circuit court action for vacation of a plat or a street or road.
Tuxedo Homes, Inc. v. Green, 258 Ala. 494, 63 So. 2d 812 (1953), simply held that approval of a plat by a city engineer as provided in what is now § 35-2-52 is a ministerial duty to be performed if the offered plat conforms to all pertinent laws and regulations, and that such approval does not constitute acceptance by the city of a proposed dedication of the streets set out in the plat. Tuxedo Homes cites Ivey v. City of Birmingham, 190 Ala. 196, 67 So. 506 (1914), which held that recordation of a plat and subsequent annexation of the land by the city did not impose on the city a duty to maintain the streets shown therein and that, therefore, the city was not liable for injuries on such a street simply because the plat had been recorded. The Court there said that the owner, by platting the street and recording the plat, "thereby made it a way, irrevocable as to purchasers; but to devolve upon the public the duty of maintaining the way as a public road or street it was necessary that there should be an acceptance by the public of the dedication." 190 Ala. at 204, 67 So. at 509. The principle of Ivey can thus be traced through Tuxedo Homes and Cottage Hill to CRW, with the above-described changes in the effect of the holding.
Section 11-52-32(b), also relied on in Cottage Hill, reads:
The "commission" mentioned therein is a municipal planning commission or a county planning and zoning commission in a county having a population of 600,000 or more inhabitants. No such commission existed in 1958 with jurisdiction over this rural Talladega County land.
Blair seeks to have this Court follow Gaston v. Ames, 514 So. 2d 877 (Ala.1987); City of Fairfield v. Jemison, 283 Ala. 462, 218 So. 2d 273 (1969); Stack v. Tennessee Land Co., 209 Ala. 449, 96 So. 355 (1923); and other cases that, he says, do not require acceptance of roads dedicated in recorded plats. In Gaston, the county had approved a subdivision plat but had not otherwise accepted the roads shown thereon. The Court treated the recordation as sufficient, with no requirement of acceptance:
514 So. 2d at 879.
Whatever the effect of Cottage Hill and CRW on the other cases and the statutes on point, those two cases clearly do not deprive a purchaser of a lot in a subdivision of the right to the roads shown in the subdivision plat. It is certainly the case that a city or county must accept such a dedication (perhaps by the general public's use of the roads) before there arises a duty on the governing body to maintain the roads, and it may be that those two cases require an acceptance by a public body before the general public can be given the right to use the roads. We hold, however, that the trial court erred in relying on those two cases to enter summary judgment for Fullmer.
Fullmer does not challenge the compliance of the Caudle Lake Subdivision plat with the statutory requirements except to say that, because the plat showed only a "proposed" subdivision and roads, no clear *1312 intention to dedicate the roads to public use was shown. Such an argument would defeat any dedication through a plat, because the plat is recorded before the subdivided lots are sold. Thus, any plat shows a "proposed" subdivision. Furthermore, although the plat is not before us and there is no statement of the total size of the subdivided land, it appears from the deeds in the record that the Caudles sold 12 lots totalling 403.65 acres to four grantees and retained approximately 384 acres.
Fullmer cites §§ 11-3-10 and 23-1-80 as grounds for requiring acceptance by a county of a proposed dedication of a public road not within the jurisdiction of a municipal or county planning or zoning commission. Those sections, however, provide general authority of county commissions over roads and do not repeal the specific provision of § 35-2-51(b) by virtue of which recordation of a plat constitutes a dedication of the roads therein with no requirement of acceptance by any county governing authority.
Fullmer also argues that, if there was a proper dedication, any public road created thereby has been abandoned by the complete lack of use thereof for more than 20 years. He cites Barber v. Anderson, 527 So. 2d 1296 (Ala.1988); Walker v. Winston County Comm'n, 474 So. 2d 1116 (Ala. 1985); Floyd v. Industrial Dev. Bd. of the City of Dothan, 442 So. 2d 927 (Ala.1983); and Harbison v. Campbell, 178 Ala. 243, 59 So. 207 (1912).
None of those cases, however, involved the question of the effect of nonuse of a road or other land dedicated to the public. That very question was presented in Hebert v. Trinity Presbyterian Church of Montgomery, 289 Ala. 455, 458, 268 So. 2d 736, 738 (1972), involving a dedicated alley, in which it was said:
See also Hood v. Neil, 502 So. 2d 749 (Ala. 1987); City of Fairfield v. Jemison, 283 Ala. 462, 218 So. 2d 273 (1969); Garland v. Clark, 264 Ala. 402, 88 So. 2d 367 (1956); Talley v. Wallace, 252 Ala. 96, 98, 39 So. 2d 672, 674 (1949) ("The extent of its use as an alley in no manner affects the question of its dedication.... Nor was this unrestricted dedication lost to the public by the delay or entire failure of the county authorities to prepare it for the public use."); City of Florence v. Florence Land & Lumber Co., 204 Ala. 175, 85 So. 516 (1920); Smith v. City of Opelika, 165 Ala. 630, 51 So. 821 (1910).
For the foregoing reasons, the summary judgment cannot be affirmed on either the basis that a dedication of a public road must be accepted or the basis that any public road dedicated in the Caudle Lake Subdivision has been abandoned. Fullmer also argued at trial that Blair cannot now assert that there is a public road because, in his action against his brother, Blair obtained an easement by necessity by testifying that he had no access to his property by any public road. See, e.g., Russell v. Russell, 404 So. 2d 662, 665 (Ala.1981). Aside from the question of whether Fullmer has pleaded or is entitled to raise such an issue of estoppel,[3] we decline to affirm on this basis, because the trial court did not rule on it and Fullmer has not raised it on appeal.
Blair has filed a motion for the cause to be remanded for Talladega County to be added as a necessary party, citing Boles v. Autery, 554 So. 2d 959 (Ala.1989). In view of our reversal of the judgment, the motion is moot. If, on remand, Blair were to argue that the road should be accepted and maintained by the county, the county would obviously be a necessary party.
*1313 REVERSED AND REMANDED; MOTION TO REMAND DENIED AS MOOT.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Neither the plat nor any other map of the property is included in the record before us.
[2] The mere fact of dedication does not necessarily impose upon the county a duty to maintain the road. Cf. Lybrand v. Town of Pell City, 260 Ala. 534, 538, 71 So. 2d 797, 801 (1954), in which it was noted that a dedication of a street in a city "does not impose any duty upon the city until it has accepted the dedication."
[3] We note that the theory of dedication by plat recordation and sale pursuant thereto stems from the principle of estoppel by deed. See Stack, supra, 209 Ala. at 452, 96 So. at 358; City of Demopolis v. Webb, 87 Ala. 659, 6 So. 408 (1889). | June 21, 1991 |
cf629ecd-eba2-4b46-aa55-e946c17a463f | LEIGHTON AVE. OFFICE PLAZA v. Campbell | 584 So. 2d 1340 | 1900410, 1900418, 1900429 | Alabama | Alabama Supreme Court | 584 So. 2d 1340 (1991)
LEIGHTON AVENUE OFFICE PLAZA, LTD., and Julian Jenkins
v.
James M. CAMPBELL.
William J. DAVIS
v.
James M. CAMPBELL.
Gerald G. WOODRUFF, Jr., and Jack S. Wallach
v.
James M. CAMPBELL.
1900410, 1900418 and 1900429.
Supreme Court of Alabama.
June 14, 1991.
Rehearing Denied August 9, 1991.
*1342 Jack W. Torbert of Torbert and Torbert, Gadsden, for appellants Leighton Ave. Office Plaza, Ltd. and Julian Jenkins.
Clarence L. McDorman of Yearout, Myers & Traylor, Birmingham, for appellant William J. Davis.
Cleophus Thomas, Jr., Anniston, for appellants Gerald G. Woodruff, Jr., and Jack S. Wallach.
Ralph D. Gaines, Jr. of Gaines, Gaines & Gaines, P.C., Talladega, for appellee James M. Campbell.
HOUSTON, Justice.
On June 23, 1988, Gerald Woodruff and Jack Wallach sued Leighton Avenue Office Plaza, Ltd., an Alabama limited partnership ("the partnership"), Julian Jenkins, William Davis, and Ian McKenzie, seeking to recover damages for breach of contract, breach of fiduciary duty, fraud, and conversion. Jenkins, Davis, and the partnership were served with the complaint on June 29, 1988. Woodruff and Wallach alleged that the partnership had been formed by Gulf General Corporation, as the general partner, and McKenzie, as the sole limited partner; that Davis was the president of Gulf General Corporation when the partnership was formed; that Jenkins and Davis had later become limited partners in the partnership; that they (Woodruff and Wallach) had purchased limited partnership interests in the partnership, but that the certificate of limited partnership recorded in the probate court had never been amended to reflect their interests; and that on June 30, 1986, the sole asset of the partnership, an office building in Anniston, Alabama, known as "The Landmark," had been sold without their consent, in violation of the terms set out in the certificate of limited partnership. These allegations appear to be supported by the record.
On May 11, 1989, Davis filed a thirdparty complaint against James Campbell, the partnership's attorney, alleging negligence in connection with his handling of the partnership's business (i.e., in closing the sale of the office building in violation of the terms set out in the certificate of limited partnership). On December 28, 1989, Woodruff and Wallach amended their complaint to state claims against Campbell alleging negligence, breach of fiduciary duty, and fraud, in connection with his handling of the sale of the office building, and to state conspiracy to defraud claims against Campbell, Jenkins, Davis, and McKenzie. On February 20, 1990, the partnership and Jenkins filed a "third-party" complaint against Campbell, alleging negligence and breach of contract in connection with his handling of the sale of the office building. On September 4, 1990, the partnership and Jenkins filed a cross-claim against Campbell, making substantially the same allegations therein that they had made in their February 20 "third-party" complaint.
The trial court entered a summary judgment for Campbell on the ground that all of the claims against him were barred by the statute of limitations set out in Ala. Code 1975, § 6-5-574 (part of the Alabama Legal Services Liability Act, § 6-5-570 et seq.). The judgment was made final under Rule 54(b), A.R.Civ.P., and Woodruff, Wallach, Jenkins, Davis, and the partnership appealed.[1] We affirm in part, reverse in part, and remand.
Summary judgment was proper in this case if there was no genuine issue of material fact and Campbell was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Campbell to make a prima facie showing that no genuine issue of material fact existed and that he was entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to Woodruff, Wallach, Jenkins, Davis, and the partnership to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against them. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to Woodruff, Wallach, Jenkins, Davis, and the partnership and must resolve all reasonable doubts against *1343 Campbell. Knight v. Alabama Power Co., 580 So. 2d 576 (Ala.1991). Because this case was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala. Code 1975, § 12-21-12. "Substantial evidence" 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).
The applicable statute of limitations in this case is § 6-5-574, supra. See Michael v. Beasley, 583 So. 2d 245 (Ala.1991). See, also, Pearce v. Schrimsher, 583 So. 2d 253 (Ala.1991). It provides as follows:
Unless tolled by the existence of an undiscovered cause of action, the twoyear limitations period set out in § 6-5-574(a) begins to run on the date the cause of action accrues (i.e., when a person sustains damages upon which an action can be maintained). Michael v. Beasley, supra. The record shows that the office building in question was sold on June 30, 1986. Thus, it was on that date that Woodruff and Wallach's causes of action against Campbell accrued, for it was on that date that they first incurred damages upon which they could base legal claims against Campbell. Likewise, the record shows that Woodruff and Wallach filed their complaint against Jenkins, Davis, and the partnership on June 23, 1988. Thus, it was on that date that causes of action for Jenkins, Davis, and the partnership accrued against Campbell, for it was on that date that Woodruff and Wallach's claims against them, which included claims for fraud, were filed for public record in the county courthouse. Although they were not aware of Woodruff and Wallach's claims and, therefore, were not legally obligated to defend against them until June 29, 1988, when they were served with the complaint, Jenkins, Davis, and the partnership were damaged, at least nominally, upon the filing of the complaint against them.
Therefore, because Woodruff and Wallach filed their claims against Campbell on December 28, 1989, more than two years after their causes of action against him had accrued, Woodruff and Wallach's claims were barred as a matter of law unless, as they contend, a fact question existed as to whether the running of the statutory period of limitations was tolled. Specifically, they argue that it was tolled by a lack of knowledge on their part that Campbell was aware of their interests in the partnership at the time he closed the sale of the office building, and they claim that they timely filed their suit upon discovering Campbell's role in the sale. Jenkins, Davis, and the partnership also argue that their claims against Campbell were timely filed.
*1344 Woodruff and Wallach sought to recover damages from Campbell under theories of negligence, breach of fiduciary duty, fraud, and conspiracy to defraud. The record shows that on January 18, 1989, Woodruff and Wallach filed a motion for partial summary judgment against Jenkins, Davis, McKenzie, and the partnership and that on March 14, 1989, they filed the following exhibit, which purports to be an unsigned letter from Campbell to Jenkins dated June 19, 1986, in support of that motion:
The "saving provision" applicable in fraud actions generally, Ala. Code 1975, § 6-2-3, is also, under § 6-5-574(b), applicable in legal malpractice actions based on allegations of fraud. Section 6-2-3 provides:
Thus, under § 6-5-574(b), a legal malpractice action based on allegations of fraud must be commenced within two years after the discovery by the aggrieved party of the fact constituting the fraud; provided, however, that no action may be commenced more than four years after the act or acts constituting the fraud. The burden is on the plaintiff to show that he comes within the § 6-2-3 tolling provision. Lowe v. East End Memorial Hospital, 477 So. 2d 339 (Ala.1985); Russell v. Maxwell, 387 So. 2d 156 (Ala.1980); Amason v. First State Bank of Lineville, 369 So. 2d 547 (Ala.1979).
*1345 As previously noted, Woodruff and Wallach filed their fraud claims against Campbell on December 28, 1989, more than two years after their causes of action had accrued. However, after carefully reviewing the record in this case, including Woodruff and Wallach's depositions[3] and affidavits, we have found no evidence tending to support Woodruff and Wallach's assertions in their briefs that they come within the § 6-2-3 tolling provision (i.e., we have found no evidence tending to establish the period of time, if there was such a period, during which Woodruff and Wallach lacked knowledge that Campbell was aware of their interests in the partnership at the time he closed the sale of the office building). Without evidence of this nature, the question of the applicability of the § 6-2-3 tolling provision cannot be determined in this case. Consequently, because Woodruff and Wallach did not present evidence tending to show that the tolling provision was applicable, we must conclude that Campbell was entitled to a judgment as a matter of law with respect to their fraud claims.[4]
As previously noted, Davis's cause of action against Campbell accrued on June 23, 1988, the date on which Woodruff and Wallach filed suit against Davis. Therefore, Davis's claim, which was filed on May 11, 1989, was timely under § 6-5-574(a). Likewise, the partnership and Jenkins's causes of action also accrued on June 23, 1988, the date on which Woodruff and Wallach filed suit against them. Accordingly, their claims against Campbell, which were filed initially on February 20, 1990, were within the time allowed by § 6-5-574(a).
Therefore, as to Woodruff and Wallach's claims of negligence, breach of fiduciary duty, and fraud, the summary judgment for Campbell was proper and is due to be affirmed. However, as to the claims of Davis, Jenkins, and the partnership, the summary judgment was improper and, accordingly, is due to be reversed.
For the foregoing reasons, the judgment is affirmed in part and reversed in part and the case is remanded for further proceedings consistent with this opinion.
MOTION TO DISMISS DENIED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES and ADAMS, JJ., concur.
[1] The appeals have been consolidated for disposition. McKenzie did not appeal.
[2] Wallach testified in his deposition that he contacted Jenkins shortly after learning of the sale of the office building. He stated that Jenkins told him that the transaction had been closed on the advice of Campbell. Wallach further testified that he then telephoned Campbell and complained about the way in which the sale had been handled and that Campbell told him that he had forgotten about the provision in the certificate of limited partnership requiring that the sale be approved by 75% of the limited partners. This testimony shows that Wallach probably had sufficient information shortly after the sale of the office building in 1986 to put him on notice that he had a potential negligence claim against Campbell.
[3] These depositions were not initially certified to us for review on these appeals. We received them only after extending a request through the clerk of this Court.
[4] We note that Woodruff and Wallach contend that all of their claims against Campbell were timely because, they argue, the addition of Campbell as a defendant related back to the time of the filing of their original complaint, under Rule 9(h), A.R.Civ.P., pursuant to Rule 15(c), A.R.Civ.P. However, Woodruff and Wallach did not state a cause of action in their original complaint for legal malpractice against a fictitious defendant. In fact, Woodruff and Wallach insist that they did not know until shortly before they amended their complaint to add Campbell that they had a cause of action for legal malpractice. Although Rule 9(h) was intended to excuse ignorance of the name of the party against whom a cause of action is stated, it was not intended to excuse ignorance of the identity of a cause of action. The doctrine of relation back is not applicable in this case. Alexander v. Scott, 529 So. 2d 951 (Ala.1988); Dannelley v. Guarino, 472 So. 2d 983 (Ala.1985). | June 14, 1991 |
c37deaaf-64e4-412b-b803-30ef37eebac6 | Poole v. HENDERSON, BLACK AND GREENE | 584 So. 2d 485 | 1900420 | Alabama | Alabama Supreme Court | 584 So. 2d 485 (1991)
Clifton W. POOLE, Jr.
v.
HENDERSON, BLACK AND GREENE, INC.
1900420.
Supreme Court of Alabama.
June 28, 1991.
Roy M. West of Manly and Manly, Birmingham, for appellant.
Allen C. Jones, Troy, for appellee.
STEAGALL, Justice.
The plaintiff, Clifton W. Poole, Jr., appeals from a summary judgment entered in favor of Henderson, Black and Greene, Inc. (hereinafter "HBG"), in an action alleging breach of an employment contract.
In his complaint, Poole alleged that in September 1978 he entered into a contract with HBG wherein HBG agreed to employ him as vice president and controller until his retirement and to pay him 3% of its net profit for the duration of his employment. Poole alleged that HBG breached the agreement by refusing to pay him 3% of its profits for fiscal years 1983 through 1987. Poole also alleged that in June 1985 HBG reduced his salary, removed him from his position of vice president and controller, and guaranteed his new position for only six months, and that in response, he submitted his resignation.
In support of its motion for summary judgment, HBG submitted a letter from its president, S. Kenneth Hendricks, to Poole dated October 6, 1978. The letter, which was also signed by Poole, reads:
The trial court found that this letter constituted the agreement between Poole and HBG and the court held:
Poole contends that this letter is not a complete expression of the agreement and that parol evidence is admissible to clarify the agreement.
In support of its motion for summary judgment, HBG submitted the affidavit of Hendricks, who stated:
Poole argues that because HBG concedes that the contract was oral, the parol evidence rule does not bar further testimony as to the terms of the agreement.
This case was filed after June 11, 1987; accordingly, the "substantial evidence rule" applies to the ruling on the motion for summary judgment. Ala.Code 1975, § 12-21-12. Once a movant makes a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law, the nonmovant must present substantial evidence *487 in support of his position in order to defeat the summary judgment motion. Betts v. McDonald's Corp., 567 So. 2d 1252 (Ala.1990).
In Rime-Shatten Development Co. v. Birmingham Cable Communications, Inc., 569 So. 2d 332, 334-35 (Ala.1990), this Court stated:
In the instant case, the "acceptance letter," signed by both parties, is a written contract. All the oral discussions, negotiations, and agreements made prior to the written contract are merged into the final written agreement. The terms of the contract are unambiguous and, therefore, parol evidence is inadmissible. The language in the contract indicates that HBG agreed to employ Poole for one year from November 6, 1978. Poole has failed to present substantial evidence to rebut the prima facie showing by HBG that it did not breach the employment contract.
Poole also contends that the trial court erred in refusing to enforce its discovery orders. After the complaint was filed, Poole filed a request for production of documents under Rule 34, A.R.Civ.P., wherein he requested that HBG produce its financial statements for fiscal years 1984 through 1988. The trial court granted Poole's motion to compel the production of these financial statements, but entered the summary judgment prior to HBG's compliance with the order.
In Reeves v. Porter, 521 So. 2d 963, 965 (Ala.1988), this Court stated:
(Citations omitted.) Poole has not shown that the financial statements were crucial to his case. The trial court did not err in entering the summary judgment before the statements were produced.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur. | June 28, 1991 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.