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122f9c11-86b2-4ed5-8004-84e4103ad768 | Amerisure Ins. Companies v. Allstate | 582 So. 2d 1100 | 1900120 | Alabama | Alabama Supreme Court | 582 So. 2d 1100 (1991)
AMERISURE INSURANCE COMPANIES
v.
ALLSTATE INSURANCE COMPANY.
1900120.
Supreme Court of Alabama.
June 21, 1991.
*1101 Ronald G. Davenport of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
Michael B. Beers of Beers, Anderson, Jackson & Smith, Montgomery, for appellee.
MADDOX, Justice.
Two questions are presented in this case: (1) whether a certain "utility trailer" is covered by the language of the driver's automobile insurance policy so that his insurer must provide primary coverage for an accident arising out of the use of the trailer; and, if it is not covered, then (2) whether the insured's insurer is estopped from denying primary coverage after having previously made payment to the injured plaintiff for property damage caused in the accident.
On October 5, 1988, the insured, Morris Sherrill, was driving his pickup truck and towing a trailer owned by his employer, Wadsworth Contractors, Inc. (hereinafter referred to as "Wadsworth"). The trailer was specially manufactured by Wadsworth to haul PVC pipe to and from job sites, and attached to the trailer was an Alabama license plate with the prefix "TR." Sherrill was driving on a public road when the trailer came unhitched from the vehicle and struck the vehicle of Fred Demo. It is undisputed that at the time of the accident, Sherrill was towing the trailer to a job site on behalf of his employer, Wadsworth, and that Wadsworth compensated Sherrill for the business-related use of his pickup truck.
Sherrill's insurer, Allstate Insurance Company ("Allstate") settled with Demo and paid him for his property damage claim against Sherrill by paying him $4,369.71 on March 6, 1989, and $223.60 on May 3, 1989. Allstate then sent Sherrill a reservation of rights letter on July 28, 1989. On August 7, 1989, Demo sued Wadsworth and Sherrill, alleging negligence and wantonness and seeking damages for his personal injuries. Allstate then filed a complaint against Wadsworth's insurer, Amerisure Insurance Companies ("Amerisure"), seeking a judgment declaring that it had no obligation to defend or indemnify Sherrill in Demo's personal injury suit.
Amerisure answered Allstate's complaint, admitting that it had primary coverage for Wadsworth but stating that any coverage for Sherrill was secondary and excess to Allstate's coverage for Sherrill. Amerisure also averred that Allstate had waived any defenses and was estopped from denying Sherrill a defense or denying him coverage because Allstate had already made payment to Demo for his property damage. On September 13, 1990, the trial court entered a summary judgment in favor of Allstate, holding that Allstate owed no coverage to Sherrill with regard to this accident. Amerisure appealed.
We initially address the question whether Allstate's policy covers the "utility trailer" towed by Sherrill. The Allstate policy includes, as part of its definition of "Insured Auto," the following:
"Utility auto" is defined by the Allstate policy as "an auto with a rated load capacity of 2,000 pounds or less of the pick-up body, sedan delivery or panel type truck."
Based on a reading of this policy language, it appears that the facts in this case would support a finding that the trailer towed by Sherrill is covered by the Allstate policy. Allstate argued to the trial court that the subject trailer was not included in this definition because the Registration Section of the Motor Vehicle Division of the Alabama Department of Revenue had issued a "TR" tag rather than a "UT" tag for the trailer, and that this classification *1102 removed the trailer from its coverage. Evidence presented by Allstate revealed that "TR" trailers are normally large trailers designed with no front wheels and having a combination gross vehicle weight of more than 12,000 pounds, and that "UT" trailers are personal utility trailers designed to be towed behind a private passenger or utility vehicle and having a combination gross weight of less than 12,000 pounds.
Allstate also presented evidence that the trailer towed by Sherrill was made with three axles from a mobile home, was 9 feet wide and 20 feet long, and required a special 2 5/16-inch ball hitch; and that on the day of the accident the trailer was being used to transport two pieces of equipment weighing 300 or 400 pounds each.
Amerisure argues that the trailer was obviously designed to be towed by a pickup truck and that Sherrill was clearly towing the trailer with a utility auto as defined by Allstate's policy. Amerisure also contends that the fact that the Motor Vehicle Division issued a "TR" tag for the trailer does not affect the fact that the trailer was designed for use with Sherrill's pickup truck.
It is well recognized that ambiguities in an insurance contract are to be resolved in favor of the insured and that exceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage to the insured. Altiere v. Blue Cross & Blue Shield of Alabama, 551 So. 2d 290 (Ala.1989); Jackson v. Prudential Ins. Co. of America, 474 So. 2d 1071 (Ala.1985). It is equally recognized that if the policy terms are plain and free from ambiguity, then there is no room for construction and it is the court's duty to enforce the policy as written. Id. at 1073.
We hold that the language of the policy is not ambiguous, and that the trailer is covered by its terms. Clearly, the trailer was designed to be towed by a "utility auto," as defined by the policy, because Sherrill had on numerous occasions towed the trailer with his personal pickup truck. The fact that the Alabama Motor Vehicle Division decided to assign a "TR" tag rather than a "UT" tag to the trailer does not work to modify the language of Allstate's policy, which plainly states that the trailer is covered if it is "designed for use with a private passenger auto or utility auto." It is apparent that this trailer was "designed for use" with Sherrill's pickup truck; thus, we hold that the trailer is necessarily covered by Allstate's policy.
Because of our holding on this issue, we need not address whether Allstate is estopped from denying coverage as to Demo's personal injury claim.
For the foregoing reasons, the judgment of the trial court is reversed and this cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | June 21, 1991 |
11b94ce1-bb60-4145-9437-74ad77041e2b | United Companies Fin. Corp. v. Brown | 584 So. 2d 470 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 470 (1991)
UNITED COMPANIES FINANCIAL CORPORATION, INC., and Joe Seale
v.
Abram BROWN, Jr., and Rosie Nell Holcombe.
89-1451.
Supreme Court of Alabama.
June 21, 1991.
*471 Warren B. Lightfoot, M. Christian King and Madeline H. Haikala of Lightfoot, Franklin, White & Lucas, Birmingham, for appellants.
John A. Taber of Hardin, Taber & Tucker, Birmingham, and Earl L. Dansby, Montgomery, for appellees.
ALMON, Justice.
This appeal is from a judgment on a jury verdict awarding the plaintiffs $250,000 in compensatory damages and $250,000 in punitive damages in an action alleging breach of contract and fraud. Abram Brown, Jr., and Rosie Nell Holcombe brought this action against United Companies Financial Corporation, Inc. ("United Companies"), and Joe Seale, alleging that the defendants had breached a contract to have the plaintiffs' home renovated and had fraudulently misrepresented "that they would assume the responsibility of having said renovation and repairs completed in a satisfactory and acceptable manner." The defendants argue[1] that the trial court erred in denying their motion for a directed verdict on the contract count based on the Statute of Frauds and on the fraud count based on the absence of proof of intent not to perform the alleged promise; in allowing punitive damages to be assessed against United Companies; in sustaining an objection to a question posed to Seale; and in overruling their motion for new trial based on improper closing argument.
Brown and Holcombe are apparently common law husband and wife. They own a house in Hayneville, Alabama, where they live with their two daughters and *472 three other family members. In the summer of 1987 they hired a contractor to add a kitchen, a den, a bedroom, a bathroom, and a carport to the house. They bought the materials and the contractor began work, but he left the job unfinished. They negotiated with another contractor, who agreed to finish the work for $12,000. Brown and Holcombe went to the Montgomery office of United Companies and talked to Seale, the manager of that office, about financing the remaining improvements. Seale told them that United Companies would not finance the work if it was done by the contractor Brown and Holcombe proposed, but that it would finance the work if they would hire Ed Holcomb, another contractor. After Holcomb agreed to perform the work for $12,000, Brown and Holcombe executed a note and mortgage to obtain the financing from United Companies.
United Companies placed the funds in escrow, with $4,000 to be paid to Ed Holcomb at the beginning of the work, $4,000 to be paid when it was half completed, and $4,000 to be paid after the work had been satisfactorily completed. Holcomb performed the work to the point where he received the second $4,000. He then approached Seale about obtaining the final $4,000 without first completing the work. Seale asked his supervisor if the final check could be issued and the supervisor agreed.
Ed Holcomb drove to the house with Seale, and the two men went inside and looked at the work in progress. They went outside, and Holcomb came back in to ask Mrs. Holcombe to endorse the check and a certificate of completion that Seale had prepared. She refused, stating that the work was not yet complete. Holcomb left the house and gave the documents to Seale, who returned with them. Mrs. Holcombe again refused to sign the documents because the work was not complete. She testified that Seale then promised that he would not give the check to Holcomb until the work was finished and that he would come from Montgomery and inspect the house before he gave the check to Holcomb. She testified that, based on that promise, she signed the check and the certificate of completion. Later in her testimony she said that Seale, in inducing her to sign the documents, promised that "he would make sure my house would be complete, would be fixed."
Seale and Holcomb then went to Brown's place of employment and obtained his signature on the documents. Brown testified that, when he objected to signing the check because the work was not complete, Seale told him that "he would see to it Mr. Holcomb would come back, you know, complete and finish the house." Holcomb negotiated the check that day.
Mrs. Holcombe testified that, after she signed the check, neither Holcomb nor any of his employees returned to continue the work. The first payment on the note was due November 5, 1987. Mrs. Holcombe testified that she made that payment and continued to make the monthly payments until July 1988. During that period, she said, she frequently telephoned Seale to ask him to get Holcomb back on the job, and Seale assured her that he would do so. She also testified that she went to Seale's office, that he told her, "Rosie, I know I'm giving you nothing but static," that he telephoned Holcomb, and that Holcomb promised to come finish the job, but did not. When Mrs. Holcombe did not make the July 1988 payment, Seale and Holcomb came to the house and promised to come finish the work if she would make the payment. She paid the July payment, a late charge, and the August payment. Seale and Holcomb left with the money and she never saw Holcomb again.
Mrs. Holcombe continued to ask Seale to send Holcomb to finish the work, and he continued to assure her that he would. She did not make any more payments and, in November 1988, United Companies sent Mrs. Holcombe notice that it was instituting foreclosure proceedings on the mortgage and it published in the Lowndes County newspaper a similar notice. The record does not disclose whether such proceedings were instituted, but Brown and Holcombe were still in the house at the time of trial.
*473 The first argument made by United Companies and Seale is that the alleged promise does not support a contract action because it is at most a "special promise to answer for the debt, default or miscarriage of another," Ala.Code 1975, § 8-9-2(3). They cite Danley v. Marshall Lumber & Mill Co., 277 Ala. 551, 173 So. 2d 94 (1965), for their argument that a contract such as that alleged here is a "collateral contract" and therefore governed by the provision of the Statute of Frauds just quoted. They also cite Herrington v. Central Soya Co., 420 So. 2d 1 (Ala.1982).
In response, Brown and Holcombe cite Brindley Construction Co. v. Byco Plastics, Inc., 456 So. 2d 269 (Ala.1984), for the proposition that, if credit is extended to both the promisor and the debtor, the agreement is an original undertaking, not a collateral one, and therefore not within the Statute of Frauds. They also cite Riteway Machine & Mfg. Co. v. First Nat'l Bank of Tuscumbia, 374 So. 2d 1361 (Ala.1979); and Landers v. Ramey, 245 Ala. 283, 16 So. 2d 785 (1944).
The jury could have found from the evidence that Seale promised that United Companies would undertake to complete the addition if Brown and Holcombe would accelerate their payment to Holcomb. Such an agreement would be an original undertaking and not within the Statute of Frauds. The cases cited above uniformly hold that it ordinarily is a question for the jury whether an agreement is an original undertaking by the promisor or a collateral promise to answer for the debt, default, or miscarriage of another. The trial court did not err in denying the motion for directed verdict on this ground.
United Companies and Seale next argue that there was no proof that Seale intended not to perform his promise at the time he made it. If a fraud action is based on a promise to perform an act in the future, the proof of the falsity of the representation requires proof that, at the time the promise was made, "the promisor had no intention of carrying out the promise[], but rather had a present intent to deceive." Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515, 519 (Ala.1983), appeal after remand, 451 So. 2d 801 (Ala.1984).
As our summary of the evidence shows, Mrs. Holcombe testified that Seale promised that he would not deliver the endorsed check to Holcomb until he personally ascertained that the work had been completed satisfactorily. Brown and Holcomb argue that the intent not to perform this promise is shown by the fact that, shortly after Seale obtained Brown's endorsement, Holcomb negotiated the check. We agree that the sequence of events is so clearly one transaction as to establish intent not to honor the promise at the time it was made. United Companies and Seale counter with the argument that the complaint's allegation of fraud did not include the aspect testified to by Mrs. Holcombe. However, no objection was made to Mrs. Holcombe's testimony, so the complaint may be deemed amended by consent, Rule 15(b), Ala.R.Civ.P., and trial court did not err in submitting the fraud claim to the jury.
Furthermore, Seale's intent not to perform the promise to ensure that the work would be completed may be inferred from the evidence that, while assuring Mrs. Holcombe that he would have the work completed, he never took any effective steps to do so, and that when Mrs. Holcombe fell behind on the mortgage payment he promptly arrived at the house with Holcomb to collect the payment but still did not take effective steps to have the repairs completed.
United Companies next argues that, pursuant to Ala.Code 1975, § 6-11-27, the trial court should not have submitted to the jury the claim for punitive damages against United Companies. Without addressing the question of whether Seale's authority as manager of the Montgomery office was sufficient to bind the company in this respect, we hold that the requirement of this Code section was satisfied by Seale's testimony that his supervisor approved the issuance of the check before the work had been completed. Therefore, this issue presents no ground for reversal.
*474 United Companies and Seale argue that the court erred in sustaining an objection to a question posed to Seale. After testifying that this was the first loan on which he had worked with Holcomb and that he had called United Companies' Birmingham office to find out about Holcomb, Seale was asked what the Birmingham office had told him. The trial court sustained the plaintiffs' objection over the defendants' argument that they were merely trying to prove Seale's intent, not the truth of anything said by the employee in the Birmingham office. Seale and United Companies renew that argument here. Because the question was at most only remotely related to Seale's intent at the time he induced Brown and Holcombe to endorse the check and the completion certificate prematurely, the trial court did not abuse its discretion in sustaining the objection. Questions of materiality, relevancy, and remoteness of evidence are within the trial court's discretion, and the court's rulings will not be disturbed unless that discretion is grossly abused. Ryan v. Acuff, 435 So. 2d 1244, 1250 (Ala.1983).
Finally, United Companies and Seale argue that the trial court erroneously allowed testimony regarding, and that the plaintiffs' attorney made improper reference in closing argument to, the wealth of United Companies. They cite Otis Elevator Co. v. Stallworth, 474 So. 2d 82 (Ala. 1985). The record discloses, however, that the question asked of Seale was merely how many offices United Companies had, and that the objection did not state any grounds. During closing argument, the plaintiffs' attorney made reference to Seale's answer that United Companies had 120 offices, and the defendant's attorney made a general objection that the argument was improper. The trial court overruled the objection. United Companies and Seale also point to two other statements made during the plaintiffs' closing argument, but no objection at all was made to those statements.
After reviewing the record, we cannot hold that the trial court erred in overruling the general objection to the question posed to Seale. See All American Life & Cas. Co. v. Dillard, 287 Ala. 673, 681, 255 So. 2d 17, 23 (1971). Also, the trial court has broad discretion in ruling on matters in argument of counsel. Ott v. Fox, 362 So. 2d 836 (Ala.1978). Given the generality of the objections that were made and the absence of objections at other points in the argument, we cannot say that the trial court erred in overruling the defendants' motion for new trial on this ground.
Although United Companies and Seale do not argue that the verdict was excessive, we note that the trial court issued a seven-page order, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), that reads as follows:
For the reasons stated, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The defendants' counsel on appeal were not their counsel at trial. | June 21, 1991 |
38dcd42c-2982-4eb9-b064-b391fe60e502 | Ex Parte RC | 592 So. 2d 589 | 1900532 | Alabama | Alabama Supreme Court | 592 So. 2d 589 (1991)
Ex parte R.C. and C.C.
(Re STATE DEPARTMENT OF HUMAN RESOURCES v. R.C. and C.C. (In the Matter of J.P., a Juvenile)).
1900532.
Supreme Court of Alabama.
June 14, 1991.
Rehearing Denied November 27, 1991.
*590 M. Roland Nachman, Jr. and W. Joseph McCorkle, Jr. of Balch & Bingham, Montgomery, for petitioners.
William Prendergast, Stephen K. Simpson and Coleman Campbell, Asst. Attys. Gen., for respondent.
ADAMS, Justice.
R.C. and C.C. petition this Court for a writ of certiorari to review a judgment of the Court of Civil Appeals reversing a judgment of the Circuit Court of Montgomery County, Juvenile Division, that awarded temporary legal custody of a minor child to the petitioners. 592 So. 2d 587. We reverse.
In 1982, the petitioners began employment as resident counselors at Group Homes for Children. The petitioners moved to their present place of residence in Elmore County when, two years later, R.C. began work at the Draper Correctional Institute. C.C., however, has continued to work for Group Homes for Children periodically since 1982. Since 1987, she has served as family service representative. Her employment with Group Homes for Children necessitated providing care and counseling for children and families. On November 16, 1987, the petitioners applied to the Department of Human Resources (DHR) for consideration as adoptive parents.
J.P. was born in March 1989. At that time, her mother was incarcerated in a facility of the Alabama Board of Corrections located in Elmore County. The identity of J.P.'s father was unknown. On March 24, 1989, the Circuit Court of Montgomery County, Juvenile Division, awarded temporary legal and physical custody of J.P. to the Montgomery County Department of Human Resources ("DHR").
Early in 1989, J.P. was placed in the foster care of L.R. and A.R. The petitioners, still seeking a child for adoption, met J.P. in August or September 1989 through their acquaintance with L.R. and A.R. The foster parents allowed the petitioners frequent contacts with J.P., which included overnight babysitting.
On January 12, 1990, the juvenile court terminated all parental rights, granted permanent legal custody of J.P. to the DHR, and directed the DHR to search for a "suitable adoptive placement." On February 9, 1990, R.C. and C.C., alleging that "deep emotional bonds" had formed with J.P., petitioned the juvenile court for custody. On February 27, 1990, the DHR filed a motion to dismiss the petition. The next day, the petitioners filed a "Motion for Temporary Restraining Order" against further efforts by the DHR to find adoptive parents for J.P. On March 1, 1990, the juvenile court granted the petitioners' motion and enjoined the DHR from proceeding with the search for adoptive parents pending resolution of the action.
On April 4, 1990, the juvenile court conducted a hearing during which the DHR and the petitioners presented witnesses and oral testimony. The DHR contended that R.C. and C.C. were unsuitable as adoptive parents because they resided within the county in which J.P. was born. The DHR also alleged that the petitioners had disseminated information regarding J.P.'s biological background. The character and fitness of the petitioners as prospective parents were otherwise uncontroverted and were the subject of considerable testimony. On April 19, 1990, the juvenile court, expressly finding "no lawful justification to deny the petitioners' request for custody," awarded the petitioners temporary legal and physical custody of J.P. It further ordered the DHR to conduct an investigation of the petitioners' home and reserved judgment on the issue of permanent custody pending results of the investigation.
*591 The Court of Civil Appeals, reasoning that the judgment of the trial court "effectively frustrate[d] a primary purpose for which DHR was designed to serve," reversed the judgment of the trial court. Pursuant to Ala.R.App.P. 39(k), R.C. and C.C. filed an application with the Court of Civil Appeals for a rehearing, in which they thoroughly supplemented the opinion of the Court of Civil Appeals with additional facts. Following a denial of the application for rehearing, we granted the petition for certiorari review to determine to what extent the refusal of the DHR to consent to the transfer of custody of J.P. to R.C. and C.C., the prospective adoptive couple, operates as a bar to the action taken by the juvenile court.
In Lankford v. Hollingsworth, 283 Ala. 559, 219 So. 2d 387 (1969), we addressed the circumstances under which agency consent to adoption was required. In that case, we said:
Lankford, 283 Ala. at 561, 219 So. 2d at 388. Title 27, § 3, was reenacted in the Code of 1975 as § 26-10-3.
Based on this Court's construction of the predecessor of § 26-10-3, the Court of Civil Appeals held that the consent of the state agency having permanent custody of the prospective adoptee was jurisdictional. Matter of Roberts, 349 So. 2d 1170, 1172 (Ala.Civ.App.1977). Thus, in the absence of the requisite consent the court was without authority "`to proceed to the paramount question of the child's welfare.'" Id. (quoting Davis v. Turner, 337 So. 2d 355, 361 (Ala.Civ.App.), cert. denied, 337 So. 2d 362 (Ala.1976)). See also Kinkead v. Lee, 509 So. 2d 247 (Ala.Civ.App.1987); Ex parte Department of Human Resources, 502 So. 2d 771 (Ala.Civ.App.1987); Matter of Roland, 483 So. 2d 1366 (Ala.Civ.App. 1985); Vice v. May, 441 So. 2d 942 (Ala.Civ. App.1983).
The Court of Civil Appeals concluded, however, that the DHR's discretion was not absolute, holding that the trial court was authorized to grant a petition for a decree of adoption over the objection of the agency if it found that the agency's refusal to consent to the adoption was "arbitrary or unreasonable." Matter of Roberts, 349 So. 2d at 1172 (citing Commonwealth, Dep't of Child Welfare v. Jarboe, 464 S.W.2d 287, 291 (Ky.1971)); see also State Dep't of Human Resources v. Smith, 567 So. 2d 333 (Ala.Civ.App.), cert. denied, 567 So. 2d 335 (Ala.1990); Alabama Dep't of Pensions & Sec. v. Johns, 441 So. 2d 947 (Ala.Civ.App.1983); Sanders v. Department of Pensions & Sec., 406 So. 2d 948 (Ala.Civ.App.1981); State Dep't of Pensions & Sec. v. Whitney, 359 So. 2d 810 (Ala.Civ.App.1978). Thus, in Ex parte Department of Pensions & Sec., 437 So. 2d 544 (Ala.Civ.App.1983), the Court of Civil Appeals denied a petition for writ of mandamus through which the Department of Pensions and Security sought to set aside an order of the trial court based on a finding that the Department had acted arbitrarily *592 in withholding its consent for adoption.
In that case, the agency was notified by the petitioner that she was getting a divorce and was seeking "the department's aid in proceeding with the adoption as a single parent." Id. at 547. Despite its expressed policy against single parent adoptions, the agency continued to investigate the petitioner's circumstances and to consider her as a prospective "adoptive resource." The agency subsequently refused to consent to the adoption on the ground of its policy against single-parent adoptions. The Court of Civil Appeals concluded that the agency's refusal supported a finding that it had abandoned its policies and was proceeding in an arbitrary or "ad hoc" manner. Id.
Although this action was procedurally postured as a "custody case," the adoption issue pervades every element of the case and ultimately controls the result. This is true, in part, because if R.C. and C.C. had petitioned the court for a judgment of adoption initially, they would have been confronted by the refusal of the DHR and the consequent burden to prove, as a threshold matter, that the consent was being arbitrarily or unreasonably withheld. They may not do indirectly what they could not do directly. We must, therefore, analyze this case as though a judgment of adoption had been sought at the outset.
The appropriateness of the standard propounded by the Court of Civil Appeals, which allows a trial court to grant a petition for adoption without the consent of the DHR only where its consent is arbitrarily or unreasonably withheld, has never been reviewed by this Court. Moreover, while this case was on appeal, the Alabama Legislature enacted the Alabama Adoption Code, Act No. 90-554, 1990 Ala.Acts (codified at Ala.Code 1975, § 26-10A-1 to -38 (Supp.1990), in which it expressly articulated the proper standard to be applied to final orders of adoption entered after December 31, 1990. Therefore, although the statute is not directly applicable to this case, we deem it appropriate to consider the legislative standard as a guide in our resolution of this particular case.[1]
The Alabama Adoption Code substantially alters the form and subject matter of § 26-10-3. Notice requirements formerly found in § 26-10-3 are now located in § 26-10A-17. While § 26-10-3 also addressed the necessity of consent and designated the parties from whom consent was required, those subjects are now covered in § 26-10A-7, which provides in pertinent part:
Id. (Emphasis added.)
The standard set forth in § 26-10A-7 appears to differ from that of the Court of Civil Appeals in two important respects. First, § 26-10A-7 omits any specific reference to "arbitrariness." Consequently, the existence of bona fide agency regulations would be only one factor to be considered by the trial court in its assessment of the reasonableness of the DHR's nonconsent. Second, unlike the judicial standard requiring the trial judge to make a finding regarding the rationality of the agency's consent before proceeding to the "paramount question of the child's welfare," the statute seems to authorize the trial judge to consider, together, the best interest of the child *593 and the reasonableness of the agency's refusal. Our consideration of these and other factors leads us to conclude that the judgment of the juvenile court should have been affirmed.
Alleging concerns for the child's anonymity, the DHR objects to the adoption of J.P. by the petitioners. In this regard, the Court of Civil Appeals stated:
The findings of the trial judge, however, did not support the DHR's contentions. In the order transferring custody to the petitioners, the trial judge stated:
The judge's findings were based on oral testimony, including that of Mary Greer, adoption consultant for the State Department of Human Resources, who testified that she had "reason to believe" that J.P. had no family or relatives in the area of the petitioners' residence. Andy Jackson, a social worker employed by the Montgomery County Department of Human Resources in the Child Protective Services Unit, testified that J.P.'s biological mother had apparently been released from confinement and was living in north Alabama.
The trial judge made no express finding that the consent of the DHR was arbitrarily withheld before he proceeded to consider the best interest of the child. He did find, however, that there were "reasons why the DHR policy need not be strictly followed in this case." Regarding the qualifications of the petitioners, the judge's order stated that "[t]heir suitability and fitness as adoptive parents is not in controversy nor is their character. The Petitioners appear to be an excellent resource for adoption." Indeed, there was ample testimony to that effect.
On cross-examination, Mary Greer conceded: "I have no reason to think that the [petitioners] are not fine folks ... and may be a good resource, you know, for another, for an adoptive child." Craig Spiro, a social worker employed by the Autauga County Department of Human Resources, opined that the petitioners would be "an *594 excellent [adoptive] resource." He also testified that the petitioners "would provide a loving home for the child." George Holy, executive director of Group Homes for Children, based on his observations as C.C.'s employer, described her as "great with kids, ... loving and caring." He testified that J.P. "would have a nurturing home if she went with C.C.]."
Although we agree with the principle that the DHR must be given a substantial field of operation in its decisions regarding adoptive resources, slavish adherence in every case to written policies does not necessarily serve the best interests of children. For all that appears, J.P.'s only claim to Elmore County as the county of her origin rests upon the mere fortuity of her mother's incarceration there. That the DHR had a bona fide policy against placing a child for adoption in the county of the child's origin was merely one fact to be considered by the juvenile court in determining the best interest of the child.
Furthermore, the court's factual findings based on testimony presented ore tenus regarding alleged threats to the adoptee's anonymity, upon which the DHR based its reasons for nonconsent, are "presumed to be correct and will not be disturbed on appeal unless palpably erroneous." Lankford v. Hollingsworth, 283 Ala. 559, 562, 219 So. 2d 387, 390 (1969); see also McCombs v. Shields, 497 So. 2d 149 (Ala. Civ.App.1986); In re Miller, 473 So. 2d 1069 (Ala.Civ.App.1985). The evidence supported a finding that the DHR's nonconsent was unreasonable in light of all the circumstances of this case.
The judgment of the juvenile court is not, as the DHR contends, inconsistent with Ala.Code 1975, § 26-18-8(1), which authorizes the DHR, pursuant to an order of the court transferring to that agency legal custody of a dependent child, "to make permanent plans for the child, including the authority to place for adoption and consent to adoption." Section 26-18-8(1) must be read in pari materia with § 26-10A-7(4), which sets the perimeters of the agency's authority to withhold its consent. For the foregoing reasons, the judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
INGRAM, J., recused.
[1] Not only did the judge's order predate the effective date of the statute, but, technically, there was no petition for adoption before the juvenile court. Therefore, because of the peculiar procedural posture of this case, our observations regarding the meaning and effect of § 26-10A-7 are restricted to this case only. | June 14, 1991 |
0d999251-d7ab-4c5b-ab6b-9ad0f69a75e0 | Utah Foam Products, Inc. v. Polytec, Inc. | 584 So. 2d 1345 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 1345 (1991)
UTAH FOAM PRODUCTS, INC.
v.
POLYTEC, INC., and Phil Cashion.
89-767.
Supreme Court of Alabama.
June 21, 1991.
Rehearing Denied August 23, 1991.
*1347 Steven G. Johnson of Richards, Bird & Kump, Salt Lake City, Utah, for appellant.
James L. Shores, Jr., Fairhope, for appellees.
ADAMS, Justice.
Utah Foam Products, Inc. (hereinafter "Utah Foam") appeals from a judgment entered on a jury verdict assessing damages in favor of Polytec, Inc., and Phil Cashion in the amount of $30,731 on their claims of unjust enrichment, and a total of $375,000 on their claims of tortious interference with a business relationship and misrepresentation. We affirm as to the award based on the claims of tortious interference with a business relationship and misrepresentation; but as to the claim of unjust enrichment we reverse the award and render a judgment for the defendants.
This is the fourth appeal to this Court in this case. The factual and procedural background of this case is well set out in this Court's prior opinions, Polytec, Inc. v. Utah Foam Products, Inc., 439 So. 2d 683 (Ala.1983), Polytec, Inc. v. Utah Foam Products, Inc., 477 So. 2d 295 (Ala.1985), and Polytec, Inc. v. Utah Foam Products, Inc., 540 So. 2d 700 (Ala.1989), and need not be repeated entirely here. The record in *1348 the present appeal reveals the following facts relevant to this appeal:
Several buildings located at the Brookley Industrial Complex, owned by the City of Mobile and leased to Teledyne, were damaged by Hurricane Frederic in September 1979. Teledyne elected to assume full responsibility for the repair of the damaged buildings. These repairs included substantial roofing work. Teledyne hired J.O. Lockridge General Contractors (hereinafter "Lockridge") as construction manager to oversee the repair project. Part of Lockridge's work entailed the preparation of scope of work projections for the development of bids and estimates for the cost of the repairs to Teledyne's buildings. Lockridge would present proposals and receive bids for the various repair projects and submit the bids to Teledyne for approval. Teledyne would then make the final decision on any given project.
In October 1979, Phil Cashion formed Polytec, Inc., in which he and his wife were shareholders. Cashion was interested in installing roofs consisting of urethane foam covered with Miracote. Cashion began to communicate with Utah Foam concerning the material it manufactured that was used to make urethane foam. In February 1980, Polytec ordered equipment and materials from Utah Foam. These materials were delivered to Polytec in Birmingham, and from March 23 through March 25, 1980, Gerald Chadbourne, a representative of Utah Foam, stayed in Birmingham in order to train Cashion and other Polytec employees in the method of applying urethane foam to roofs. At the same time, Taylor, a sales representative for Polytec, contacted Michael Guarino, the chief architect for the City of Mobile, in an effort to sell Miracote as a floor and wall covering for use by the city. As a result of this contact, Guarino requested that Polytec give a presentation to his staff concerning Miracote. The presentation took place on March 19, 1980. Lockridge, along with several Teledyne representatives, also attended this presentation. After the presentation, a Teledyne representative, John Binford, inquired into the use of foam for a roofing system and asked Polytech to provide some additional information. Teledyne had previous experience with foam roofing systems, one having been installed at its Muskegon, Michigan, plant.
Taylor later met with Binford and submitted a proposal on behalf of Polytec to install a foam roof on one of Teledyne's buildings. In order to provide Teledyne with more information on the use of foam roofing systems, specifically roofs where foam and Miracote had been installed, Taylor made arrangements for Binford to examine the Western Iron Works plant in Birmingham, where Polytec was installing such a roof. Around April 1, 1980, Binford and Taylor flew to Birmingham to examine the roofing system being installed by Polytec. Binford was also referred to Tim Kearns. Binford visited Mr. Kearns in Oklahoma, where Binford was shown some sidewall applications of Miracote. After returning from Oklahoma, Binford asked Taylor to prepare a proposal on one of the Teledyne buildings.
Binford later inquired of Taylor as to whether there was anyone who could assist Polytec in the Teledyne project, since there was apparently some concern on the part of Binford as to Polytec's application expertise and equipment. Binford also requested that Polytec submit a qualification summary, which was required by Teledyne of all prospective vendors. The summary consisted of resumes of the firm's principals, the length of the company's existence, financial data, bonding capabilities, insurance, and other like information necessary to evaluate the stability and ability of the company to handle the job. Apparently, Polytec never submitted this qualification summary. Binford also asked Taylor to get an expert on foam roofing systems to make a presentation to Teledyne. Taylor contacted Gerald Chadbourne, a representative of Utah Foam.
A meeting was held at Teledyne's offices on April 21, 1980. In attendance were a number of Teledyne representatives, including the vice president, Gene Engler; Binford; and Lockridge. During the meeting it was revealed that Utah Foam had not applied the Miracote as a coating of the *1349 urethane foam and that the warranty on the Miracote was not the same when diathon was applied as the coating over the urethane. Polytec distributed only Miracote; it did not distribute diathon. Cashion made known Polytec's intention to submit a bid to repair the Teledyne roofs using the urethane/Miracote system, which was later submitted.
Teledyne claims that after this meeting it had doubts about the urethane/Miracote system's ability to handle building stress and to alleviate water problems. Teledyne says that it considered turning to more conventional, "built-up" roofing systems unless some other system could be found that would handle the problems of stress and water. After the meeting, Engler asked Binford to have Chadbourne return alone the next day to meet and discuss alternatives available to Teledyne using the urethane foam with some other coating.
After the meeting, Chadbourne contacted Bruce Wilson, the vice president of Utah Foam, and informed him that it appeared that Teledyne was going to install a conventional, built-up roof, but that there was still "a ray of hope" that it would use the foam with diathon, a rubber coating sold by Utah Foam.
Prior to the meeting scheduled between Chadbourne and Teledyne, Chadbourne met with representatives from Polytec to discuss Polytec's proposed contract for the repair of one of Teledyne's roofs. The meeting with Chadbourne and the Teledyne representatives took place on April 22, 1980. Teledyne asked Chadbourne if he could supply a foam roofing system that would meet Teledyne's needs. He proposed, subject to approval by Utah Foam, applying urethane foam and diathon, as well as training Teledyne people to apply it. Chadbourne was eventually hired by Lockridge at $200 per day to train applicators of the foam and diathon, which was purchased by Teledyne through Lockridge. The applicators hired by Teledyne were paid, at Teledyne's request, through Lockridge's account, for which Lockridge was fully reimbursed.
Sometime in August or September 1980, Teledyne and Lockridge discontinued their practice of employing Chadbourne to train the applicators and paying the applicators through Lockridge's account and contracted with Monolithic Engineering to handle the job. Monolithic was owned by Chadbourne, whose relationship with Utah Foam had ended in September 1980.
After the roofing work had begun, Guarino inspected the work. Following his inspection sometime in June 1980, he invited Binford and John O. Lockridge, Jr., to his home. Sometime in July 1980, Chadbourne applied a urethane roof to Guarino's residence. The bill for that roof, totalling $1,460, was paid by Guarino 9 months later. This was 16 days after a third-party action had been filed against him in this litigation.
Utah Foam originally sued Polytec and Phil Cashion on Polytec's account due for the purchase of equipment and materials used in Polytec's roofing job in Birmingham. Polytec filed a permissive counterclaim, adding counterdefendants, alleging that Utah Foam, along with others, had wrongfully deprived Polytec of business. A summary judgment was entered in favor of Utah Foam on its suit against Polytec for accounts due and the court granted Utah Foam's motion to dismiss Polytech and Cashion's counterclaim. Polytec filed an amended counterclaim, of which the trial court dismissed two counts. Polytec's appeal from that dismissal was addressed in the first appeal to this Court. Polytec, Inc. v. Utah Foam Products, Inc., 439 So. 2d 683 (Ala.1983). Upon remand, the trial court entered a summary judgment in favor of various counterdefendants on various claims. That judgment was reversed by this Court in Polytec, Inc. v. Utah Foam Products, Inc., 477 So. 2d 295 (Ala. 1985).
The amended counterclaim named Utah Foam, J.O. Lockridge General Contractors, Binford, and Guarino as defendants. Polytec's amended complaint contained three counts, numbered 3 through 5. Count 3 was against Utah Foam only and alleged that Utah Foam had been unjustly enriched *1350 based on the efforts of Cashion and Polytec to secure the contract for the roofing job with Teledyne. Count 4 alleged that all named defendants, acting in concert, had interfered with Polytec and Cashion's roofing business. Count 5 alleged that all named defendants, acting in concert, had misrepresented to Polytec and Cashion that if they presented information on urethane foam roofs to Teledyne, and Teledyne decided to reroof its buildings with urethane roofs, then Polytec would be awarded the contract. After lengthy and complex procedural battles, rulings on which were appealed to this Court, as noted hereinabove, the case proceeded to trial.
The jury returned a verdict in favor of Polytec and Cashion against Utah Foam on their claim of unjust enrichment and assessed damages in the amount of $30,731. The jury returned a verdict in favor of Binford and Guarino, but against Utah Foam and Lockridge, on Cashion and Polytec's counts alleging interference with a business relationship and misrepresentation. The jury assessed damages against Utah Foam and Lockridge under both counts at a total of $375,000. It is from the judgment entered by the trial court on the jury verdict that Utah Foam now appeals.
Utah Foam raises the following issues on this appeal: (1) Whether the plaintiffs, in order to recover on a claim of unjust enrichment, must prove that work performed by them was done with an expectation that whoever benefited thereby would compensate them for their efforts and, further, that any benefit conferred as a result of their labor was not merely incidental; (2) whether a claimant seeking to recover under a quasi-contract theory must prove the reasonable value of its services; (3) whether the contract that Polytec says it was prevented from getting would have been illegal had it been obtained and, if so, whether interference with an illegal contract can serve as the basis for a tortious interference claim; (4) whether a cause of action for tortious interference with a business relationship can be maintained absent proof that the complainant would have received a contract but for the alleged wrongful interference by a competitor; (5) whether an action for fraud will lie when it affirmatively appears that no fact was verbally misrepresented to the plaintiff; and (6) whether a shareholder or employee of a corporation has an individual cause of action for torts committed against, or for moneys allegedly due, that corporation. In the interest of clarity, we have in our discussion consolidated several of the issues raised by Utah Foam.
Utah Foam first argues that in order for Polytec's claim of unjust enrichment to succeed, Polytec must prove that its efforts were undertaken with an expectation that whoever benefited thereby would compensate it for its efforts and also that any benefit conferred as a result of those efforts was not merely incidental. Utah Foam maintains that Polytec did not prove that it undertook the efforts to secure the contract with Teledyne with an expectation that it would be compensated for those efforts alone, and did not prove that any benefit it may have conferred was not incidental. We agree.
It is well settled in Alabama that in order to succeed on a claim of unjust enrichment, the plaintiff must show that it had a reasonable expectation that there would be compensation for the services. Burgess Min. & Const. Corp. v. Lees, 440 So. 2d 321 (Ala.1983). Furthermore, this Court has stated that the law implies a promise to pay for services rendered when they are knowingly accepted and there is an expectation of payment for those services. It is equally well established that there can be no recovery for services gratuitously rendered and where there is no expectation of payment. Opelika Production Credit Ass'n, Inc. v. Lamb, 361 So. 2d 95 (Ala.1978); Jacks v. Sullinger, 284 Ala. 223, 224 So. 2d 583 (1969).
Cashion and Polytec, along with other contractors, were attempting to secure a contract for the reroofing of Teledyne's buildings. They were seeking a benefit to themselves with the contract to repair the roofs. An examination of the record indicates to this Court that there was no evidence *1351 that Cashion or Polytec expected to be compensated for their efforts in attempting to secure the contract with Teledyne, if someone else got the contract. What Cashion and Polytec did expect was that they would be awarded the contract. Furthermore, any benefit conferred upon Utah Foam was purely incidental.
With respect to the amount of the damages awarded to Polytec and Cashion by the jury, no such restitutionary award may be had unless there has been some unjust enrichment, because the remedy of restitution is designed to remedy the detrimental effects caused by unjust enrichment. As we have stated above, because there is no evidence upon which the jury could have found unjust enrichment, there can be no restitutionary recovery by Polytec and Cashion. Furthermore, in order to recover, it is incumbent upon the plaintiff, not only to establish the existence of the unjust enrichment, but to establish also the reasonable value of the services rendered.
In the present case, the record reveals that Polytec and Cashion offered no proof as to the reasonable value of the services allegedly rendered. Polytec's argument that Utah Foam's receipt of $726,069.18 from Teledyne constituted sufficient evidence for the jury to find that Utah Foam was unjustly enriched in the amount of $30,731, is incorrect. The jury's award of damages may not rest on the pure speculation that because Utah Foam received $726,069.18 from Teledyne that Utah Foam must have been unjustly enriched by $30,731, when there was no evidence presented as to the value of Polytec and Cashion's services. Therefore, because there was no evidence presented to show that Polytec and Cashion expected to be paid for their efforts in attempting to get the roofing contract, even if someone else received the contract, and because there was no evidence as to the reasonable value of their services, the jury verdict awarding damages on this claim is unsupported and cannot stand.
The next argument advanced by Utah Foam deals with Cashion and Polytec's allegations of misrepresentation. Utah Foam argues that there can be no recovery for misrepresentation where there was no evidence indicating that a material fact was misrepresented. After carefully examining the record, we conclude that while there was no evidence that Lockridge or Utah Foam verbally misrepresented, or for that matter made any verbal representation of, any facts as to the award of the contract, there was sufficient evidence that Lockridge and Utah Foam's conduct constituted a representation that they, in concert, would do nothing to prevent Polytec from being awarded the contract if a foam roof were to be used by Teledyne.
We cannot limit our inquiry into misrepresentation, as Utah Foam would have us do, to a single fact or statement. Misrepresentation may take many forms, a verbal misrepresentation being just one form. The statements and conduct of the parties must be viewed in their entirety to adequately resolve the question of whether a misrepresentation has occurred. See Sharp Electronics Corp. v. Shaw, 524 So. 2d 586 (Ala.1987).
Polytec and Cashion argue that the conduct of the defendants induced them to act to their detriment in putting forth substantial effort and time in formulating data on foam roofing systems, knowing full well that they intended to prevent Polytec from being awarded the contract. Considering all of the evidence presented and viewing the statements and the conduct of the parties as a whole, we agree that the evidence presented was such that a jury could reasonably find that Utah Foam and Lockridge led Polytec to believe that they would do nothing to prevent its obtaining a contract with Teledyne.
The evidence, considered as a whole, tended to show that Lockridge exhibited a great degree of interest in Polytec's foam roofing system. Lockridge was so interested that he flew to Birmingham to view Polytec's work in progress and later flew to Oklahoma to observe other applications of Miracote. Lockridge, along with representatives of Teledyne, also requested that several presentations be given by Polytec *1352 on its roofing system, and requested that an expert on foam roofs be present at one such presentation. This evidence tends to show that Polytec reasonably believed that if Teledyne decided to use a foam roofing system it would be awarded the contract. Moreover, the evidence suggests that Lockridge's conduct induced Polytec to put an abnormally high amount of effort into its attempt to secure the contract.
The evidence showed further that Utah Foam, by its conduct, misrepresented to Polytec that it would assist Polytec in securing the contract, while secretly attempting to get the job itself through a combination of activities designed to discredit Polytec and ensure itself of getting the job. Utah Foam met with Polytec representatives on several occasions in order to plan how best to get the contract for Polytec. A jury could conclude that Utah Foam would then privately meet with Teledyne and Lockridge and engage in tactics designed to distance Teledyne and Lockridge from Polytec and present proposals for Utah Foam to do the work. From the facts presented at trial, a jury could decide that Utah Foam maintained an image of helpfulness toward Polytec, while doing behind its back whatever was necessary to prevent Polytec's success and to secure the contract itself.
We conclude, therefore, that, while there was no evidence of a verbal misrepresentation, the evidence, viewed as a whole, was sufficient to allow the jury to find that Lockridge and Utah Foam, through their conduct, misrepresented to Polytec that they would do nothing to prevent Polytec from obtaining the contract with Teledyne. The evidence in this regard is circumstantial, but the evidence of fraud in many cases is circumstantial.
With respect to Polytec and Cashion's claims of tortious interference with a business relationship, Utah Foam argues that there can be no recovery where, in order to prove the claim, the plaintiff must rely on what would be an illegal contract. Utah Foam argues that because the aggregate value of the contract in question would involve more than $20,000, under Ala.Code 1975, § 34-8-1, Polytec is required to have a general contractor's license. Because Polytec had no such license, Utah Foam argues, any contract it entered into with Teledyne for the repair of the roof would have been illegal. Ala.Code 1975, § 34-8-6.
Although it may be true that Polytec did not have a general contractor's license while soliciting the contract with Teledyne, this fact alone does not defeat its claim of tortious interference with a business relationship. Polytec was not awarded the contract with Teledyne, and we cannot say that if the contract had been awarded to Polytec that it would not have complied with § 34-8-1 by securing the required license.
The cases cited by Utah Foam on this point are all distinguishable. In each case a contract had been formed, and one party had failed to comply with Alabama law, thereby rendering the contract illegal. The noncomplying party then sought to enforce the contract, or to sue thereon. In those cases, the suit was barred because the contract was deemed illegal. In the present case, however, no contract had been formed and this Court cannot say that the contract would have been illegal, because Polytec could have complied with applicable Alabama law.
Utah Foam argues further that there can be no recovery for tortious interference with a business relationship unless the plaintiff proves that he was damaged by the interference. Specifically, Utah Foam argues that in order to prove damage, Polytec must prove that, but for the alleged interference by Utah Foam, it would have been awarded the contract with Teledyne. We conclude, however, that Utah Foam is incorrect in its argument that Polytec was not harmed by Utah Foam's interference, and that it has also misstated the burden placed on a plaintiff attempting to establish a claim of tortious interference with a business relationship.
A prima facie case of interference with a business relationship requires proof of the following elements: (1) The existence of a contract or business relation; *1353 (2) the defendant's knowledge of the contract or business relation; (3) intentional interference by the defendant with the contract or business relation; and (4) damage to the plaintiff as a result of the defendant's interference. As an affirmative defense, the defendant may prove that it was justified in the interference. Lowder Realty, Inc. v. Odom, 495 So. 2d 23 (Ala.1986). In the present case, we conclude that Polytec and Cashion proved each of the required elements and made out their case of interference with a business relationship. Furthermore, there was no evidence that Utah Foam was justified in interfering with that business relationship.
Utah Foam argues that the plaintiffs, in order to prove damages on their claim of interference with a business relationship, must establish that "but for" the interference they would have been awarded the contract. At the outset, we point out that this argument is wholly unsupported and is incorrect. Such a burden of proof would be too harsh on the plaintiff. The tort of interference with a business relationship is designed to protect property interests in businesses and to compensate for the damage caused by that interference. It is the right to do business in a fair setting that is protected. Sparks v. McCrary, 156 Ala. 382, 47 So. 332 (1908). See also Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala. 1986). Placing a "but for" burden on Polytec essentially would nullify and render useless the action for interference with a business relationship and destroy the protection it was designed to provide. Utah Foam, in essence, argues that the only damage from interference with a business relationship is the failure to be awarded the contract. This, however, is a far too narrow approach. Proof that a company would have been awarded a particular contract is not the sine qua non of the tort of interference with a contract or a business relationship. The tort has two aspects. The damage resulting from interference can occur regardless of the fact that the company would not have been awarded the contract, and it can also take other forms.
In the present case, a jury could conclude that, while outwardly operating in a role of assisting Polytec in making its presentations in an attempt to secure the contract with Teledyne, Utah Foam actually engaged in tactics behind Polytec's back to prevent Polytec from getting the contract, in order to secure the contract for itself. Utah Foam attended the meeting with Teledyne at the request of Polytec in order to assist in the marketing of Polytec's products and services. The evidence tends to show that Utah Foam, once in these meetings, attempted, and was eventually successful in its efforts, to discredit Polytec's products and services and to bolster its own. Utah Foam continually gave the outward appearance of playing a role of assistance toward Polytec, but the jury could conclude that Utah Foam at every opportunity sought to turn Teledyne away from Polytec and to secure the job for itself. Furthermore, Utah Foam's representative, Chadbourne, made the proposal to train Teledyne's applicators and to supply material and equipment, when neither Utah Foam, Teledyne, nor Lockridge was engaged in the roofing business. Last, shortly after inspection of Lockridge's work on Teledyne's roof and approval by the City of Mobile's chief architect, Guarino, Chadbourne applied a foam roof to Guarino's personal residence.
Regardless of the fact that Teledyne maintains that it would not have awarded the contract to Polytec, Utah Foam's conduct thwarted Polytec's ability to adequately present its products and services and virtually eliminated any remaining possibility that Polytec could have been awarded the contract. Thus, we conclude that the plaintiffs presented sufficient evidence for the jury to find that Utah Foam tortiously interfered with Polytec's business relationship and that Polytec was damaged as a result of that interference.
Utah Foam's final argument is that a shareholder or an employee of a corporation has no individual cause of action for torts committed against the corporation, a distinct legal entity, or for work performed by that corporation through its *1354 agents. Utah Foam argues that Cashion's claims against Utah Foam and the other defendants are totally derivative and may not properly be asserted by an individual, but must be asserted only by the corporation. We conclude, however, that this is not the case.
This issue was decided on the first appeal to this Court in Polytec, Inc. v. Utah Foam Products, Inc., 439 So. 2d 683 (Ala.1983). In reversing the trial court's dismissal of the action for failure to state a claim upon which relief could be granted, this Court thereby held that Cashion had stated a claim upon which relief could be granted. Therefore, Cashion does have standing to sue in this case.
For the reasons stated in this opinion, the judgment is reversed insofar as it awarded damages to Polytec and Cashion on their claim of unjust enrichment; it is affirmed insofar as it awarded damages to Polytec and Cashion on their claims of misrepresentation and tortious interference with a business relationship; and a judgment is rendered for the defendants on the claim of unjust enrichment.
AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | June 21, 1991 |
80706011-7ed3-475c-9262-98d1ce44d0ba | Lynch v. State | 587 So. 2d 306 | 1900551 | Alabama | Alabama Supreme Court | 587 So. 2d 306 (1991)
Ex parte State of Alabama.
Re Robert LYNCH
v.
STATE.
1900551.
Supreme Court of Alabama.
June 14, 1991.
*307 Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for the State.
John Bertolotti, Jr., Mobile, for Robert Lynch.
KENNEDY, Justice.
The issue in this case is whether the Court of Criminal Appeals, on remand, was required to follow the mandate of this Court. We hold that it was.
The facts are as follows: The defendant, Robert Lynch, grabbed the victim's purse. He then fled on foot, jumped over a fence, and got into an automobile driven by Arthur James Fantroy. Lynch and Fantroy were tried as codefendants, and both were found guilty of second degree robbery. § 13A-8-42, Ala.Code 1975. Lynch was sentenced to 10 years' imprisonment on the second degree robbery conviction. On appeal, the Court of Criminal Appeals affirmed the conviction, without an opinion, and subsequently denied rehearing.
This Court granted the petition for certiorari review. On August 17, 1990, we issued an opinion (Ex parte Lynch, 587 So. 2d 303 (Ala.1990)) remanding this case to the Court of Criminal Appeals in order for that court to comply with its decision in Fantroy v. State, 560 So. 2d 1143 (Ala.Cr. App.1989). In Fantroy, the Court of Criminal Appeals held that Fantroy, Lynch's codefendant, could not be guilty of second degree robbery, as a matter of law, because he was not "actually present" within the meaning of § 13A-8-42. Under the facts, Fantroy could be guilty only of robbery in the third degree. That court ordered that Fantroy's conviction for second degree robbery be set aside and that he be adjudged guilty of third degree robbery and be sentenced accordingly.
This Court ordered the Court of Criminal Appeals to comply with Fantroy, because Lynch also could not be convicted of second degree robbery, because § 13A-8-42 requires, for that crime, that at least two robbers be "actually present." Ex parte Lynch, supra. Instead, the Court of Criminal Appeals reversed Lynch's conviction and remanded the case for a new trial based on a different issue. (Lynch v. State, 587 So. 2d 305 (Ala.Crim.App.1990)). We find that the Court of Criminal Appeals' reversal goes beyond the mandate of this Court's order of remand. "On remand, the issues decided by the appellate court become law of the case and the trial court's duty is to comply with the appellate mandate `according to its true intent and meaning, as determined by the directions given by the reviewing court.'" Walker v. Carolina Mills Lumber Co., 441 So. 2d 980 (Ala.Civ.App.1983), citing Ex parte Alabama Power Co., 431 So. 2d 151 (Ala.1983). This principle also applies when a mandate *308 from a reviewing court is issued to a lower appellate court.
In the instant case, the directions given by this Court were clear. The Court of Criminal Appeals, after it affirmed this petitioner's conviction, considered the conviction of his codefendant, Arthur James Fantroy; it reversed Fantroy's conviction, discussing the identical issue presented in Ex parte Lynch, supra, of whether a defendant could be convicted of second degree robbery if his codefendant was not "actually present" for purposes of § 13A-8-42. Specifically, the Court stated:
Ex parte Lynch, 587 So. 2d at 304.
In Ex parte Lynch, the only issue addressed by this Court was whether Lynch should have been convicted of third degree robbery instead of second degree robbery. Because no other issues on appeal were addressed, arguably they were without merit. The Court of Criminal Appeals exceeded its authority by addressing another issue on remand. A lower appellate court is not free to reconsider issues finally decided in this Court's mandate. See Ex parte Ins. Co. of North America, 523 So. 2d 1064 (Ala.1988).
We reverse the judgment of the Court of Criminal Appeals and reinstate the mandate of Ex parte Lynch, 587 So. 2d 303. That is, Lynch's conviction for second degree robbery is due to be set aside and Lynch is to be adjudged guilty of third degree robbery and to be sentenced accordingly.
REVERSED AND REMANDED.
MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur. | June 14, 1991 |
e76a5931-ab6e-472d-96d5-97ab21577477 | Hunt v. Chemical Waste Management | 584 So. 2d 1367 | 1901043, 1901044, 1901106 | Alabama | Alabama Supreme Court | 584 So. 2d 1367 (1991)
Guy HUNT, as Governor of the State of Alabama
v.
CHEMICAL WASTE MANAGEMENT, INC.
James M. SIZEMORE, Jr., as Commissioner of the Alabama Department of Revenue; and the Alabama Department of Revenue
v.
CHEMICAL WASTE MANAGEMENT, INC.
CHEMICAL WASTE MANAGEMENT, INC.
v.
The ALABAMA DEPARTMENT OF REVENUE, et al.
1901043, 1901044 and 1901106.
Supreme Court of Alabama.
July 11, 1991.
*1369 Bert S. Nettles, Alton B. Parker, Jr. and Kenneth O. Simon of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, and H. William Wasden, Legal Advisor to the Governor, Montgomery, for appellant Governor Guy Hunt.
William D. Coleman and Jim B. Grant, Jr., of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant James M. Sizemore, Jr., Com'r of Revenue.
J. Wade Hope, Montgomery, for appellant Alabama Dept. of Revenue.
Fournier J. Gale III, H. Thomas Wells, Jr. and J. Alan Truitt of Maynard, Cooper, Frierson & Gale, Birmingham, and Oakley Melton of Melton, Espy, Williams and Hayes, Montgomery, for appellee/cross-appellant Chemical Waste Management, Inc.
SHORES, Justice.
In April 1990, the Alabama Legislature enacted Act No. 90-326 (the "Act"), effective July 15, 1990, Code of Ala. 1975, § 22-30B-1 et seq. (Supp.1990), which was signed into law by the Governor. The Act imposes two fees on the disposal of hazardous waste at commercial facilities in Alabama. A "Base Fee" of $25.60 per ton was imposed on all waste and substances disposed of at commercial facilities, regardless of the state of origin. An "Additional Fee" of $72.00 per ton was imposed on all waste and substances generated outside the State of Alabama and disposed of at Alabama facilities.
The Act also included a "Cap" provision, limiting the amount of hazardous waste that can be disposed of at any affected facility in any one-year period. Under the Cap provision, the amount of hazardous waste disposed of during the first year that the Act's new fees are in effect (the "benchmark period"), becomes the permanent ceiling in subsequent years. The Cap provision applies only to commercial facilities that dispose of over 100,000 tons of waste per year. The facility at Emelle, Alabama, is the only facility in this category.
On June 5, 1990, Chemical Waste Management, Inc. ("CWM"), filed suit for declaratory relief against the Alabama Department of Revenue, James M. Sizemore, Jr., as Commissioner, and Guy Hunt as Governor ("the State"). The suit challenged the constitutionality of Act No. 90-326, *1370 Code of Alabama 1975, § 22-30B-1 et seq. CWM alleged that the provisions of the Act violate the Commerce Clause of the United States Constitution; the Equal Protection Clause of the United States Constitution and its equivalents under the State Constitution; and the Due Process Clause of the State Constitution. CWM further contends that the Act is a "revenue bill" enacted during the last five days of the legislative session in violation of Article IV, § 70, of the Alabama Constitution. CWM further contends that the Cap provision violates the Commerce, Due Process, and Equal Protection Clauses of the United States Constitution and is preempted by various federal statutes.[1]
CWM also sought a preliminary and permanent injunction enjoining the State from enforcing, applying, or attempting to enforce the Act. Dr. Claude Earl Fox, state health officer, was allowed to intervene on behalf of the State Board of Health.
Governor Hunt filed a counterclaim for declaratory relief, asking that the trial court find and declare the Act constitutional. On February 28, 1991, the trial judge, the Honorable Joseph D. Phelps, declared the Base Fee and Cap provisions of the Act to be valid and constitutional. However, he declared the Additional Fee imposed on out-of-state generated waste to be impermissible and invalid as a violation of the Commerce Clause of the United States Constitution.
The State appeals only that aspect of the trial judge's order pertaining to the Additional Fee. CWM appeals from the trial judge's holding that the Base Fee and Cap are constitutional. We affirm the trial judge's holdings that the Base Fee and Cap provisions of the Act are valid and constitutional. We reverse the holding of the trial judge that the Additional Fee violates the Commerce Clause.
The legislative findings underlying Act No. 90-326, as quoted by the trial judge in his order of February 28, 1991, are as follows:
The pertinent provisions of Act No. 90-326 are as follows:
The trial judge made findings of fact in his order of February 28, 1991, which we quote below and approve:
We first consider whether the trial court erred in holding that the Base Fee of Act No. 90-326 is constitutional. CWM contends the trial court erred in finding the Base Fee constitutional and argues that it clearly discriminates against interstate commerce in violation of the Commerce Clause. CWM argues further that the Base Fee violates the Equal Protection Clause, because, it claims, the classifications are not rationally related to a legitimate state interest. CWM finally argues that the Base Fee violates the Due Process Clause.
We do not find CWM's arguments as to this issue to be persuasive. We adopt the conclusions of law stated by Judge Phelps in his order of February 28, 1991, as the decision of this Court as to this issue:
Next we must consider whether the trial court erred in holding that the Cap provision of Act No. 90-326 is constitutional and is not preempted by federal statutes.[5] We find the reasoning and the conclusions of law by the trial judge to be persuasive on this issue. We therefore adopt Judge Phelps's order of February 28, 1991, as to the issue of the Cap provision, as the decision of this Court:
We next consider whether Act No. 90-326 is a "revenue bill" enacted in violation of Article IV, § 70, of the Alabama Constitution. We again adopt the trial court's order as the decision of this Court as to this issue:
We next consider whether the trial court erred in holding that the Additional Fee of Act No. 90-326 discriminates against interstate commerce in violation of the Commerce Clause.
The Commerce Clause does not invalidate all state restrictions on commerce. "It has long been recognized that `in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.' Southern Pacific Co. v. Arizona, 325 U.S. 761, 767, 65 S. Ct. 1515, 1519, 89 L. Ed. 1915 (1945)." Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 670, 101 S. Ct. 1309, 1316, 67 L. Ed. 2d 580, 586 (1981). The constitutionality of a state regulation depends upon "a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce." Id., quoting Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429 at 441, 98 S. Ct. 787, at 794, 54 L. Ed. 2d 664, at 673 (1978).
In New Energy Co. v. Limbach, 486 U.S. 269, at 278, 108 S. Ct. 1803, at 1810, 100 L. Ed. 2d 302 (1988), the United States Supreme Court stated the test in which a facially discriminatory statute may be found to be valid under the Commerce Clause:
In holding that the Additional Fee violates the Commerce Clause, the trial judge relied upon City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S. Ct. 2531, 57 L. Ed. 2d 475 (1978), and National Solid Wastes Management Ass'n v. Alabama Dep't of Environmental Management, 910 F.2d 713 (11th Cir.1990), modified and reh'g denied, 924 F.2d 1001 (11th Cir.1991), reh'g en banc denied, 932 F.2d 979 (1991); cert. denied, ___ U.S. ___, 111 S. Ct. 2800, 115 L. Ed. 2d 973 (1991).
In National Solid Wastes Management Ass'n the 11th Circuit Court of Appeals held the "Holley Bill," Act No. 89-788, Code of Ala.1975, § 22-30-11 (Supp.1990), invalid under the Commerce Clause. The Holley Bill banned disposal of hazardous waste in Alabama from a number of states. The Court of Appeals stated:
Id., 910 F.2d at 721. Unlike the Holley bill, the Additional Fee provision of Act No. 90-326 has specifically been found by the legislature to be an effective way to deal with health and environmental hazards to Alabamians created by hazardous waste imported here from other states. We believe that Alabama has a legitimate local interest which this Act legitimately serves, and is one that is permissible under the Commerce Clause.
The Supreme Court of the United States has not said that hazardous waste is an article of commerce. Assuming that it is an article of commerce, as the 11th Circuit Court of Appeals assumed, we believe that a statute such as the one before us, which advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives, can be valid under the Commerce Clause.
The trial court concluded that City of Philadelphia v. New Jersey, supra, compelled the conclusion that the legislation involved here was foreclosed by the Commerce Clause. We believe that that case is distinguishable under the facts here. That case involved a New Jersey statute that banned the movement of liquid or solid waste (but not hazardous waste) into the state. The purpose of that legislation was found to be economic protectionism, which was in violation of the Commerce Clause. CWM argues that the holding in City of Philadelphia v. New Jersey precludes state and local governments from responding to real and substantial public health and environmental dangers by controlling the importation of wastes. However, the United States Supreme Court cases make a distinction between state measures that discriminate arbitrarily against out-of-state commerce in order to give in-state interests a commercial advantage, i.e., simple economic protectionism, and state measures that seek to protect public health or safety or the environment. Maine v. Taylor, 477 U.S. 131, 148 n. 19, 106 S. Ct. 2440, 2453 n. 19, 91 L. Ed. 2d 110 (1986).
In City of Philadelphia v. New Jersey, the Supreme Court made this distinction and decided that the New Jersey statute constituted economic protectionism, rather than a measure to protect the citizens of the state from menaces to their health or safety. City of Philadelphia v. New Jersey does not hold that a state may not limit importation of wastes to protect health and the environment; it holds that a state may not do so for "simple economic protectionism." The Supreme Court has characterized City of Philadelphia v. New Jersey as involving "a state law purporting to promote environmental purposes" but is "in reality `simple economic protectionism.'" Minnesota v. Clover Leaf Creamery Co., *1388 449 U.S. 456, 471, 101 S. Ct. 715, 727, 66 L. Ed. 2d 659 (1981).
Mr. Justice Rehnquist, in his dissent in City of Philadelphia v. New Jersey, discussed the growing problem in our nation in the disposal of solid waste and the health and safety hazards associated with its disposal. There, in speaking not of hazardous waste, as in the present case, but of garbage, he noted that the United States Supreme Court has recognized that the States can enact quarantine laws, which "have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce." Id., 437 U.S. at 631, 98 S. Ct. at 2539 (quoting the majority opinion, 437 U.S. at 628, 98 S.Ct. at 2537). Justice Rehnquist stated:
437 U.S. at 631, 98 S. Ct. at 2539. (Citations omitted.) Justice Rehnquist considered the quarantine law cases dispositive of the issue, and would have allowed a state to regulate solid wastes from out-of-state.
In Maine v. Taylor, 477 U.S. 131, 106 S. Ct. 2440, 91 L. Ed. 2d 110 (1986), the United States Supreme Court made it clear that environmental measures are entitled to greater deference than ordinary legislative acts. The Court upheld a facially discriminatory state statute that banned all importation of live baitfish. The Court stated:
477 U.S. at 151-52, 106 S. Ct. at 2454.
The Supreme Court in Maine v. Taylor cited City of Philadelphia v. New Jersey for the proposition that "[s]hielding in-state industries from out-of-state competition is almost never a legitimate local purpose, and state laws that amount to `simple economic protectionism' consequently have been subject to a `virtually per se rule of invalidity,'" while stating that, in contrast to City of Philadelphia v. New Jersey, "there is little reason in this case to believe that the legitimate justifications the State has put forward for its statute are merely a sham or a `post hoc rationalization.'" Maine v. Taylor, 477 U.S. at 148-49, 106 S. Ct. at 2453.
The Additional Fee provision in the Act advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. It has not been enacted for the purpose of economic protectionism. In enacting the Additional Fee, the Alabama legislature was not banning the collection and acceptance of hazardous waste; it was merely asking the states that are using Alabama as a dumping ground for their hazardous wastes to bear some of the costs for the increased risk they bring to the environment and the health and safety of the people of Alabama. As in Maine v. Taylor, the problem is already with us. Millions of tons of hazardous wastes have been buried at Emelle. The State of Alabama has a legitimate justification, apart from their origin, *1389 for treating the out-of-state wastes differently.
Because this waste is permanently stored in Alabama, the risk to the health and safety of the people of Alabama will continue in perpetuity. The costs to the state of regulation and monitoring of the facility will continue in perpetuity. A disproportionate share of these costs will be borne by the taxpayers of the State of Alabama for the wastes dumped by other states.
The Additional Fee serves these legitimate local purposes that cannot be adequately served by reasonable nondiscriminatory alternatives: (1) protection of the health and safety of the citizens of Alabama from toxic substances; (2) conservation of the environment and the state's natural resources; (3) provision for compensatory revenue for the costs and burdens that out-of-state waste generators impose by dumping their hazardous waste in Alabama; (4) reduction of the overall flow of wastes traveling on the state's highways, which flow creates a great risk to the health and safety of the state's citizens.
The testimony before the trial court showed that in 1985 some 341,000 tons of hazardous waste were buried in the Emelle facility. By 1989 the tonnage had grown to 788,000 tons per year. While CWM estimates that there is capacity for storage at Emelle for 100 years, the increase in tonnage has more than doubled in four years.
As the trial judge noted in his findings of fact:
Unlike the situation in City of Philadelphia v. New Jersey, where there was questionable environmental concern, there is legitimate concern here in Alabama. There is no dispute that the wastes dumped at Emelle include known carcinogens and materials that are extremely hazardous and can cause birth defects, genetic damage, blindness, crippling, and death. These wastes are far more dangerous to the people of Alabama than rags infected with small-pox or yellow fever.
This Court takes judicial notice of the fact that there is a finite capacity for storage of hazardous waste at the Emelle facility and that the capacity is rapidly being reached. The record reflects that 85% to 90% of the tonnage that is permanently buried at Emelle is from out-ofstate. There is nothing in the Commerce Clause that compels the State of Alabama to yield its total capacity for hazardous waste disposal to other states. To tax Alabama-generated hazardous waste at the same rate as out-of-state waste is not an available non-discriminatory alternative, because Alabama is bearing a grossly disproportionate share of the burdens of hazardous waste disposal for the entire country. Here, the statute that creates the Additional Fee does not needlessly obstruct interstate trade, nor does it constitute economic protectionism. It is a responsible exercise by the State of Alabama of its broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources.
The Commerce Clause is designed to promote national unity and discourage economic protectionism. However, as previously stated, statutes that are facially discriminatory can survive the strict scrutiny of Commerce Clause analysis. In Northeast Bancorp, Inc. v. Board of Governors of the Federal Reserve System, 472 U.S. 159, 105 S. Ct. 2545, 86 L. Ed. 2d 112 (1985), the Supreme Court examined Massachusetts and Connecticut statutes forbidding *1390 banks outside the New England region from taking over in-state banks, while allowing New England banks to do so. The Court held that this was a legitimate state purpose.
For the reasons stated above, we hold that the Additional Fee provision of Act No. 90-326 is not invalid under the Commerce Clause of the United States Constitution. The Additional Fee does not needlessly obstruct interstate trade or attempt to place Alabama in a position of economic isolation. It merely retains Alabama's broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources. The evidence in this case amply supports the conclusion that the Additional Fee serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives. This is not a case of arbitrary discrimination against interstate commerce; the record suggests that Alabama has legitimate reasons, apart from their origin, to treat out-of-state wastes differently. The judgment of the trial court is therefore reversed as to this issue.
The final issue before the Court is whether the trial court erred in holding that Governor Hunt had standing to raise the issue of the constitutionality of the Cap provision. CWM contends that the complaint it filed challenged the constitutionality of the Base Fee and the Additional Fee. Governor Hunt filed a counterclaim, seeking to have the trial court declare the Cap provision constitutional. CWM argues that the Governor lacked standing to raise that issue and cites Casey v. Travelers Ins. Co., 531 So. 2d 846, 849 (Ala.1988), wherein this Court stated: "`Where a particular litigant is not within the group of persons affected by the statute or portion thereof which is allegedly unconstitutional, such litigant lacks standing to raise such constitutional issue.'" (Quoting Fletcher v. Tuscaloosa Federal Savings & Loan Ass'n, 294 Ala. 173, 178, 314 So. 2d 51, 56 (1975).)
We find CWM's challenge to Governor Hunt's standing to be without merit. The Governor's counterclaim was filed only after CWM had sued him in a United States District Court, alleging that the Cap provision violated CWM's federally protected rights. Further, the trial court's jurisdiction over the question of the validity of the Cap provision was expressly invoked in CWM's original complaint alleging the invalidity of the entire Act. Thus, there existed a justiciable controversy that Governor Hunt, as a state official, had standing to raise in a counterclaim for a declaratory judgment. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So. 2d 479 (1942).
For the reasons stated above, the judgment of the trial court is due to be affirmed as to all issues save the Additional Fee and reversed and the cause remanded as to the issue of the Additional Fee.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
HOUSTON, J., concurs in the judgment.
HOUSTON, Justice (concurring in the judgment).
Until the United States Supreme Court holds that hazardous waste (waste that the trial court found contained poisonous chemicals that can cause cancer, birth defects, genetic damage, blindness, crippling, and death) is an article of commerce protected by the Commerce Clause of the United States Constitution, I refuse to declare the additional fee provision of Act No. 90-326, which was duly enacted by the Alabama Legislature and approved by the Governor of Alabama, unconstitutional as violative of the Commerce Clause of the United States Constitution.
If the United States Supreme Court holds that waste containing poisonous chemicals that can cause cancer, birth defects, genetic damage, blindness, crippling, and death is an article of commerce protected by the Commerce Clause of the Constitution, then I am bound by that ruling under the Supremacy Clause of Article VI of the United States Constitution. Alabama lost that battle over 125 years ago; however, I do not believe that such waste *1391 is an article of commerce protected by the Commerce Clause, and I do not believe that the Alabama Supreme Court is bound by the decision of any other federal court on this issue. United States ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir.1970), cert. denied sub nom, Lawrence v. Woods, 402 U.S. 983, 91 S. Ct. 1658, 29 L. Ed. 2d 148 (1971).
I can appreciate how Judge Phelps, a distinguished trial judge, could feel compelled to comply with a legal precedent of the 11th Circuit Court of Appeals, in the absence of an opinion on that point by this Court; however, "`there is a parallelism but not paramountcy'" between the 11th Circuit Court of Appeals and this Court, "`for both ... courts are governed by the same reviewing authority of the [United States] Supreme Court.'" United States ex rel. Lawrence v. Woods, 432 F.2d at 1075, quoting the Supreme Court of New Jersey in State v. Coleman, 46 N.J. 16, 214 A.2d 393, 403 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966).
[1] (1) The Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq.; (2) the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq.; (3) the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq.
[2] "The Court deems irrelevant any evidence attributing to any state officials any motive of discriminating against interstate commerce. It is well-established that `[i]nquiries into [lawmakers'] motives or purposes are a hazardous matter.... What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, ..." United States v. O'Brien, 391 U.S. 367, 383-84, 88 S. Ct. 1673, 1682-83, 20 L. Ed. 2d 672, 684 (1968), cited in, CECOS International, Inc. v. Jorling, 895 F.2d 66, 73 (2d Cir.1990)."
[3] "Similarly, in the forms which the EPA submits in connection with its waste reduction program, the agency asks states to list measures they are taking to reduce the generation of waste; the EPA lists fees as one example of such measure."
[4] "CWM's claim that the legislature was motivated by improper motivations is also irrelevant for equal protection purposes. `[N]o case in this Court has held that a legislative act may violate equal protection solely because of the motivations of those who voted for it.' Palmer v. Thompson, 403 U.S. 217, 224, 91 S. Ct. 1940, 1944, 29 L. Ed. 2d 438 (1971), cited in CECOS International v. Jorling, supra, 895 F.2d at 73."
[5] (1) The Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq.; (2) the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq.; (3) the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq.
[6] "The Court notes that the Cap provision contains the following language: `Provided, however, that the Governor or the Governor's designee may allow disposal of hazardous wastes or hazardous substances in excess of the tonnage disposed of during the benchmark period if such action is determined by the Governor or the Governor's designee to be necessary to protect human health or the environment in the state, or to allow the state to comply with its obligations to assure disposal capacity pursuant to applicable state or federal law as determined by the Governor or his designee.' Act 90-326, § 9." | July 11, 1991 |
c5643c25-117c-4fb3-8e34-9396b8f82731 | Padgett v. Neptune Water Meter Co., Inc. | 585 So. 2d 900 | 1900634 | Alabama | Alabama Supreme Court | 585 So. 2d 900 (1991)
Booker T. PADGETT
v.
NEPTUNE WATER METER COMPANY, INC., and Cleveland Jackson.
1900634.
Supreme Court of Alabama.
August 9, 1991.
*901 T. Dudley Perry, Jr. of Perry & Perry, Montgomery, for appellant.
Michael S. Jackson of Beers, Anderson, Jackson & Smith, Montgomery, for appellee Neptune Water Meter Co.
James W. Garrett, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee Cleveland Jackson.
INGRAM, Justice.
The appellant, Booker T. Padgett, was an employee of Neptune Water Meter Company. He filed a complaint in Macon County Circuit Court against Neptune and certain coemployees, alleging that the coemployees had intentionally injured him. Specifically, Padgett claimed that his supervisors at NeptuneClyde Mundy, Hank Golden, Charlie Trussel, and appellee Cleveland Jacksonhad intentionally caused him injury by forcing him to do work that he says the supervisors knew was against the orders of Padgett's doctor.
The trial court entered summary judgments in favor of Neptune and Jackson and made those judgments final pursuant to Rule 54(b), A.R.Civ.P. Padgett appealed.
Padgett argues that Neptune may be liable under the doctrine of respondeat superior for the actions of the coemployee supervisors and that the action against the coemployee supervisors may be maintained under § 25-5-11, Ala.Code 1975, which provides a cause of action for the willful conduct of a coemployee that results in injury. Neptune contends that claims based upon respondeat superior are barred by the doctrine of immunity set forth in § 25-5-52, Ala.Code 1975.
In the recent case of Johnson v. Asphalt Hot Mix, 565 So. 2d 219 (Ala.1990), this Court stated that § 25-5-11, Ala.Code 1975, does not provide an action against an employer. Section 25-5-11(a) provides that actions may be maintained against those parties that may be jointly liable with the employer, provided that if the other party is a coemployee, then his actions, in order to give rise to liability, must be willful. Section 25-5-11 does not affect the immunity provided by §§ 25-5-52 and 25-5-53.
Padgett filed two workers' compensation actions against Neptune, based upon the work-related injuries that form the basis of his complaint. His only claim against Neptune in this action is that his coemployee supervisors failed to comply with his medical restrictions and that Neptune is responsible for their actions. Padgett has pursued his claim for compensation from Neptune through a workers' compensation action; he cannot maintain a separate action based upon respondeat superior to impose civil liability upon the employer for injuries compensable under the workers' compensation act. Therefore, we affirm the summary judgment entered in favor of Neptune.
The trial court also entered a summary judgment in favor of Cleveland Jackson, one of Padgett's supervisors at Neptune. Padgett argues that he has shown evidence sufficient to defeat Jackson's motion for summary judgment.
Summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party 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. *902 1991). The present action was filed in October 1987; therefore, the applicable standard of review is the "substantial evidence" rule. See § 12-21-12, Ala.Code 1975. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Section 25-5-11 provides that an employee who receives benefits under the Alabama Workmen's Compensation Act can recover against an "officer, director, agent, servant or employee of the same employer" only "for [actions of] willful conduct which [result] in or proximately [cause] the injury or death." Therefore, we must determine whether there is substantial evidence that Padgett was injured as a result of Jackson's "willful conduct."
In order to meet this burden, Padgett must show that, from the evidence presented, it was reasonably inferable that Jackson acted with "a purpose or intent or design to injure." See Reed v. Brunson, 527 So. 2d 102, 120 (Ala.1988). Whether there was an "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, a summary judgment for the defendant was proper.
In the present action, Padgett testified in his deposition that his only complaint against Jackson was that he made Padgett do work that was contrary to his work restrictions. However, he testified that, when he gave his work restrictions to Jackson, Jackson would read them and discuss them with another supervisor. Padgett testified that Jackson had tried, at least on occasion, to assign him tasks that were within his restrictions. For example, Padgett testified that Jackson had cut down a broom so that it would be within his weight restrictions in order that Padgett could sweep up. Jackson's testimony, which is uncontroverted, also reveals that he had at one point assigned Padgett and another man to a job cleaning water meter parts. The other man lifted the heavy pieces into the machine, while Padgett pushed a button to operate the machine. Jackson testified that this job is usually performed by one man, but that he had assigned two men to operate the machine because at the time he had no other work for Padgett that he felt was within his restrictions.
Padgett, when asked whether he thought Jackson was intentionally trying to hurt him, stated, first, that he would rather not answer the question, and then, "I don't know. I'm not sure." Padgett has not provided in the record evidence of the work he was required to do with any certainty as to dates and times. The record also does not contain evidence of the medical restrictions. According to the testimony in the record, approximately five restrictions were given to Padgett during the applicable period. Apparently, he received restriction as to certain types of machinery and varying weight limitations. However, it is not shown in the record what restriction was given, when it was given, and how *903 soon after the restriction any job change occurred.
There is testimony, by Padgett, that Jackson would read the restriction and discuss it with his supervisor. Jackson avers, and Padgett does not contest, that Jackson did this in order to determine what type of work Padgett could perform. Padgett merely states that Jackson required him to work outside his restriction.
Under the facts, there appears to be no evidence that Jackson had a reason to injure Padgett or that Jackson was substantially certain that Padgett would be injured if he performed the jobs assigned to him by Jackson.
Therefore, the summary judgment entered in favor of Jackson is also affirmed.
Last, Padgett raises a change-of-venue question. The trial judge, after entering the summary judgments in favor of Neptune and Jackson, transferred the case from Macon County to Elmore County. Of the original defendants, only Neptune and Jackson had any arguable tie to Macon County. Padgett alleged that Neptune did business in Macon County, and Jackson was a resident of Macon County. With our affirmance of the summary judgments in favor of these two defendants, no basis for venue in Macon County remains; therefore, we are satisfied that the transfer to Elmore County was not improper.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and HOUSTON, JJ., concur. | August 9, 1991 |
df355cd9-9051-40b3-8fa9-1165b6742edd | RICHARD BROWN AUCTION v. Brown | 583 So. 2d 1313 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 1313 (1991)
RICHARD BROWN AUCTION & REAL ESTATE, INC., and Jimmy Parcus,
v.
Herman L. BROWN, et al.
89-1830.
Supreme Court of Alabama.
June 21, 1991.
Daniel C. Boswell of Wolfe, Jones & Boswell, Huntsville, for appellants.
Alphonso Beckles, Huntsville, for appellees.
HORNSBY, Chief Justice.
Richard Brown Auction & Real Estate, Inc. (hereinafter "Auction & Real Estate"), and Jimmy Parcus sued Herman L. Brown, alleging breach of a real estate sales contract. Parcus was the agent of Auction & Real Estate who negotiated the real estate contract at issue in this case. Parcus's claims are the same as those of Auction & Real Estate. Therefore, we will generally *1314 refer only to Auction & Real Estate. Auction & Real Estate also sued ERA Rosenblum Realty (hereinafter "ERA"), alleging fraud, misrepresentation and deceit, intentional or gross and reckless fraud, and fraudulent suppression of material fact. This case was tried without a jury, and the evidence was presented ore tenus; on July 23, 1990, the trial court entered a judgment in favor of Herman L. Brown and ERA. We affirm in part, reverse in part, and remand.
Herman L. Brown owned an interest in real property in Madison County, Alabama. In March 1988, he contacted William Shinault, a real estate agent with ERA, about selling that property. On April 1, 1988, Herman L. Brown entered into a real estate listing agreement with ERA. Under the terms of this agreement, ERA was given the exclusive right to sell the property and was to receive a 10% commission when it was sold. This agreement also stated that Herman L. Brown would "furnish the purchaser a good and merchantable title and warranty deed free from any and all encumbrances."
In April 1988, after a prospective purchaser had made an offer to buy the property, Shinault discovered that Herman L. Brown was not its sole owner. A tax notice that Shinault obtained listed Herman L. Brown, Loreane T. Brown (Herman L. Brown's ex-wife), Ethel Jenkins, and Hovis Turner as having ownership interests in the property.[1] Mr. Brown's divorce judgment ordered that he sell the property immediately and then divide the proceeds with his ex-wife. Herman L. Brown did not accept the first offer to purchase the property, and the prospective buyer did not accept Brown's counteroffer.
On April 28, 1988, Shinault published the listing agreement between Herman L. Brown and ERA in the publication of the Multiple Listing Service For Huntsville and Madison County ("MLS"). Although Shinault knew of the interests of Loreane Brown, Jenkins, and Turner in the property, he listed Herman L. Brown as the sole owner. Shinault received two responses to this listing. The first response was from Loreane Brown, who informed Shinault that she was upset that he had listed the property for sale and that she probably would not agree to sell it.
The second response Shinault received was from Auction & Real Estate. Auction & Real Estate subsequently entered into a contract with Herman L. Brown on April 29, 1988, to purchase the property for $121,589.20. In this contract, Herman L. Brown promised to "furnish [Auction & Real Estate] a good and merchantable title and warranty deed free from all encumbrances except ad valorem taxes, existing restrictions, easements of record and applicable zoning ordinances." This contract was prepared by Jimmy Parcus, an agent for Auction & Real Estate, based upon the information published in the MLS publication. Under the terms of this contract, ERA was the listing broker. In additional provisions to the contract, Auction & Real Estate and ERA agreed to "co-broker" the transaction, i.e., to split the 10% commission. Auction & Real Estate also agreed to pay for a survey of the property, and it paid $10,000 in earnest money.
On August 9, 1988, before completing the purchase of the Herman L. Brown property, Auction & Real Estate entered into a contract with Darwin Construction, Inc., to sell it the Herman L. Brown property. Under this contract, Darwin agreed to pay Auction & Real Estate $141,128 for the property, and it paid $10,000 in earnest money. Auction & Real Estate agreed to furnish Darwin Construction with "good and merchantable title and warranty deed free from all encumbrances."
Herman L. Brown was subsequently unable to provide Auction & Real Estate with a good and merchantable title and warranty deed, because Loreane Brown refused to consent to the sale of the property, and neither Ethel Jenkins nor Hovis Turner *1315 could be located. As a result, on February 10, 1989, Auction & Real Estate filed this action against Herman L. Brown, alleging breach of contract, fraud, misrepresentation and deceit, intentional or gross and reckless fraud, and fraudulent suppression of a material fact. Auction & Real Estate claimed as damages $1,150 for survey expenses, $20,690.80 in lost profits from the lost sale to Darwin, and $6,709.36 for the 5% in lost commission.[2] Herman L. Brown filed a third-party complaint against Shinault and ERA, alleging that they had been negligent in preparing the sales agreement and that they were liable for any damages that had resulted. His answer alleged that Auction & Real Estate had itself caused any loss it had suffered. Auction & Real Estate later amended its complaint to include Shinault and ERA as defendants and asserted against those defendants claims alleging fraud and suppression of material facts. All parties moved for summary judgment, and the trial court denied each party's motion.
After an ore tenus hearing, the trial court held in favor of the defendants, Herman L. Brown, Shinault, and ERA. The trial court also held in favor of the third-party defendants, Shinault, and ERA. The trial court made no findings of fact and gave no reason for its holding. Auction & Real Estate and Parcus appeal.
This case was heard by the trial court without a jury. Where the court has heard ore tenus evidence, its findings of fact based on that evidence are presumed correct and those findings will not be disturbed unless they are 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 shows that there was no dispute among the parties regarding the relevant facts of this case. Therefore, we must determine whether the trial court correctly applied the law to the facts in this case. We first address the breach of contract claim against Herman L. Brown.
The record shows that Auction & Real Estate contracted with Herman L. Brown to purchase approximately 50 acres of land. Herman L. Brown promised to furnish Auction & Real Estate with good and merchantable title, and Auction & Real Estate agreed to pay him $121,589.20. His inability to obtain the consent of his ex-wife, Jenkins, or Turner to sell the property prevented him from conveying title. Consequently, he breached his contract and Auction & Real Estate is entitled to sue for damages. Greenberg v. Ray, 214 Ala. 481, 108 So. 385 (1926).
Herman L. Brown argues that he should not be held liable for the breach because Auction & Real Estate and ERA were "co-brokers" and, therefore, he says, the knowledge that ERA had regarding the status of the property should be imputed to Auction & Real Estate. Although he has failed to cite any supporting authority, see, Rule 28(a)(5), A.R.App.P., and Stover v. Alabama Farm Bureau Ins. Co., 467 So. 2d 251 (Ala.1985), we conclude that this argument is without merit because the mere rendering of a commission does not create an agency relationship. Bay Shore Properties, Inc. v. Drew Corp., 565 So. 2d 32, 34 (Ala.1990). Therefore, we hold that Herman L. Brown's "co-broker" defense does not relieve him of liability for his breach of the contract when he failed to deliver good and merchantable title to the property as required under the contract.
We do not address the issue of damages, because the trial court made no findings in that regard. The judgment of the trial court is reversed insofar as it held in favor *1316 of Herman L. Brown on the breach of contract claim, and this case is remanded for an award of damages to Auction & Real Estate.
On appeal, Auction & Real Estate does not argue its claims of fraud, misrepresentation and deceit, and intentional or gross and reckless fraud; thus, those issues are waived. Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987). Auction & Real Estate does argue its claim of fraudulent suppression of a material fact, and that is the theory we may consider in the context of the original fraud claim. Auction & Real Estate says that it established all of the elements of an action based on fraudulent suppression of a material fact as defined under Ala.Code 1975, § 6-5-102. Section 6-5-102 states that "[s]uppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case."
Auction & Real Estate argues that ERA and Shinault had a duty to disclose to it, before the sales contract was signed, the fact that there were some potential title defects. We disagree. In support of this argument, Auction & Real Estate relies on this Court's decision in Jim Walter Homes, Inc. v. Waldrop, 448 So. 2d 301 (Ala.1983). In Jim Walter Homes we stated that in order for silence to be an actionable fraud, there must first be a duty to speak:
448 So. 2d at 306 (quoting Jim Short Ford Sales, Inc. v. Washington, 384 So. 2d 83, 87 (Ala.1980)) (citations omitted).
In Jim Walter Homes this Court affirmed a verdict in favor of a buyer against the seller based on the fraudulent suppression of a material fact. The seller, Jim Walter Homes, was a corporation in the business of buying real estate, building houses on it, and then selling it. The buyers, husband and wife, had purchased a house that Jim Walter had built. We held that it was a question for the jury whether Jim Walter had had a duty to disclose to the buyers that there was a pending lawsuit regarding ownership of the property. The Court found that the plaintiffs had presented evidence (1) that the branch manager and field representative of Jim Walter knew of pending litigation regarding ownership of the property, (2) that the field representative had told the salesman who dealt with the plaintiffs that there was no problem in selling the property, and (3) that the plaintiffs were possibly in an inferior bargaining position in their dealings with Jim Walter. Consequently, the Court held that the plaintiffs had presented enough evidence to create a jury question on the issue of fraud.
In this case, however, the trial court heard the evidence ore tenus and held that there was no fraudulent suppression on the part of ERA and Shinault. Although the trial court gave no reason for its judgment, this Court will assume that it made whatever findings would be necessary to support its judgment. Lakeview Townhomes v. Hunter, 567 So. 2d 1287 (Ala.1990). Therefore, we will not disturb the trial court's judgment unless it is clearly erroneous, *1317 without supporting evidence, manifestly unjust, or against the great weight of the evidence. Cougar Mining Co., supra.
The facts presented at trial show that ERA and Auction & Real Estate are both corporations in the real estate business, and that the incident in question involved an arm's length negotiation between the parties. Auction & Real Estate argued that ERA committed fraudulent suppression because ERA did not disclose that Herman L. Brown was not the sole owner of the property at the time Auction & Real Estate signed the contract to purchase the property.
This Court has held that in an arm's length transaction "[t]here is no duty to disclose facts when information is not requested, and mere silence does not constitute fraud in the absence of a confidential relationship." Ray v. Montgomery, 399 So. 2d 230, 232 (Ala.1980).
The transaction at issue in this case was plainly an arm's length negotiation for the sale of real estate involving two corporations in the business of buying and selling real estate. ERA and Shinault were acting in their capacity as real estate agents for the seller, Herman L. Brown. The relationship between Auction & Real Estate and ERA was neither confidential nor of such a nature that disclosure of material information was dictated. There is no evidence of unequal bargaining power. See Trio Broadcasters, Inc. v. Ward, 495 So. 2d 621 (Ala.1986).
Considering the relative knowledge of the parties, this Court has recognized that an obligation to disclose does not arise where the parties to a transaction are knowledgeable and capable of handling their affairs. See, Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985); Trio Broadcasters, supra; Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So. 2d 496 (Ala.1984); Webb v. Renfrow, 453 So. 2d 724 (Ala.1984); Collier v. Brown, 285 Ala. 40, 228 So. 2d 800 (1969); Mudd v. Lanier, 247 Ala. 363, 24 So. 2d 550 (1945).
In addition, the fact that Herman L. Brown was not the sole owner of the property was of public record and could have been easily discovered by Auction & Real Estate, had it sought the information. Based on the facts of this case, we find that there was sufficient evidence to support a finding that there was no fiduciary relationship between ERA and Auction & Real Estate and that there was no unequal bargaining power between the parties. Therefore, we conclude that the trial court could properly have found that there was no duty on the part of ERA to disclose to Auction & Real Estate that Herman L. Brown was not the sole owner of the property at the time the contract was signed. Accordingly, the judgment of the trial court is affirmed insofar as it held in favor of ERA and Shinault on the fraudulent suppression claim.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The record is not specific as to the type of ownership interest that each party had. Shinault testified that Brown told him that the deed to the property reflected that Brown and his ex-wife together owned a 13/18 interest in the property, that Ethel Jenkins owned a 1/6 interest, and that Hovis Turner owned a 1/9 interest in the property.
[2] We recognize that the amounts claimed do not appear completely consistent with the facts as stated in this opinion. No issue is made of that inconsistency. | June 21, 1991 |
be52be23-a8fb-48bc-9461-a6c6ddfff389 | Hairston v. Liberty Nat. Life Ins. Co. | 584 So. 2d 807 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 807 (1991)
Maggie J. HAIRSTON, a/k/a Maggie J. Lewis
v.
LIBERTY NATIONAL LIFE INSURANCE COMPANY.
89-1578.
Supreme Court of Alabama.
June 7, 1991.
Rehearing Denied August 2, 1991.
Guy Fullan of Fullan & Fullan, Birmingham, for appellant.
Charles D. Stewart and Pamela F. Colbert of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellee.
ALMON, Justice.
Maggie J. Hairston appeals from a summary judgment entered in favor of the defendant, Liberty National Life Insurance Company, in an action alleging breach of contract and bad faith failure to pay an insurance claim. The question presented is whether the trial court erred in holding that, as a matter of law, the death of Ms. Hairston's ex-husband, James L. Hairston, by acute ethanol poisoning, was not "accidental" within the terms of the insurance policy on Mr. Hairston's life.
The facts leading up to the death of Mr. Hairston are undisputed. On the night of his death, he and three companions went to several bars and there consumed a large amount of alcohol. The four also drank a half gallon of "Thunderbird" wine that they had purchased at a package store. After they had drunk the wine, Hairston stated that he was going home and "staggered across the street." Two days later Mr. Hairston's body was discovered in the backyard of a residence near where his drinking companions had last seen him. An autopsy was performed by the Jefferson County coroner, Dr. J.P. Garceau, who concluded that Hairston had died as a result of acute ethanol poisoning.
The trial court entered a summary judgment for Liberty National, holding that, as a matter of law, Mr. Hairston's death was not "accidental" within the meaning of that term as it was defined in the life insurance policy, and thus, that no accidental death benefits under the policy were due to be paid. It is from that judgment that Maggie Hairston appeals.
The parties do not dispute the fact that Mr. Hairston often drank excessively or that he voluntarily and intentionally drank alcohol on the night of his death. Thus, the only question for our review is whether *808 Mr. Hairston's death could have been "accidental" within the meaning of the life insurance policy issued by Liberty National.
The accidental death provisions in the insurance policy on Mr. Hairston's life provided, in pertinent part, as follows:
Liberty National argues that these policy provisions make this policy an "accidental means" policy as opposed to an "accidental results" policy. Thus, it contends that, although Mr. Hairston's death was accidental, the means by which the death occurred, i.e., the consumption of alcoholic beverages, was not accidental, and that, therefore, no coverage is afforded under this policy. On the other hand, Maggie Hairston contends that Alabama law does not recognize a distinction between "accidental means" and "accidental results."She contends, in the alternative, that, even if Alabama does recognize such a distinction, the circumstances surrounding Mr. Hairston's death fall within the "accidental means" provision.
In Emergency Aid Insurance Co. v. Dobbs, 263 Ala. 594, 83 So. 2d 335 (1955), this Court recognized a distinction between "accidental results" and "accidental means." However, we also set forth a broad definition of what constitutes a death or injury by accidental means:
Dobbs, 263 Ala. at 599, 83 So. 2d at 338. From this definition, it is clear that even a voluntary act that leads to an unforeseen, unusual, or unexpected result could invoke coverage under an "accidental means" policy.
In Hearn v. Southern Life & Health Insurance Co., 454 So. 2d 932 (Ala.1984), the insured's beneficiary brought an action against the insurer, alleging nonpayment of the benefits on three policies providing accidental death benefits. The insured was killed when, after a high-speed chase by a police officer, his vehicle left the road and crashed into a gully. The insured died of smoke inhalation while attempting to escape from the vehicle through a jammed door. This court, in reversing the trial court's judgment based on a directed verdict in favor of the defendant insurance company, recognized that "even where one voluntarily exposes himself to unnecessary danger, he may still die by accidental means if his death is the result of a miscalculation of speed, distance, or his driving *809 capabilities." Hearn, 454 So. 2d at 935. Further, we concluded that, for insurance contract purposes, an insured is not held to intend all the probable or foreseeable consequences of his actions, and we determined that recovery is precluded only where "there is a reasonable basis for his belief that his conduct makes serious injury or death a virtual certainty." Hearn, supra, quoting Dooley v. Metropolitan Life Insurance Co., 104 N.J.Super. 429, 250 A.2d 168 (1969). This Court has also held:
Northam v. Metropolitan Life Ins. Co., 231 Ala. 105, 107-08, 163 So. 635, 637 (1935), quoting Lewis v. Ocean Accident & Guarantee Corp., 224 N.Y. 18, 120 N.E. 56 (1918).
Our review of the insurance policy at issue and of the facts and circumstances surrounding Mr. Hairston's death leads us to the conclusion that the trial court erred in holding that, as a matter of law, this death was not an "accident" within the meaning of the policy. A jury could find that the death, while a result of the insured's voluntary actions, was something unforeseen, unexpected, and unusual, or that, as was the case in Hearn, supra, the insured died as the result of a miscalculation of his capabilities. Under the holdings of Dobbs and Hearn, we cannot say as a matter of law that the death was not an accident. Liberty National has not argued that any of the exclusions from coverage that Liberty National chose to insert in this policy barred Maggie Hairston's recovery under the additional indemnity provisions, see Hearn, supra, or that the judgment is due to be affirmed for any other reason.
The trial court erred in determining that, as a matter of law, James L. Hairston's death was not an "accident" under the terms of this life insurance policy. Maggie Hairston does not argue that the summary judgment on the bad faith claim is due to be reversed. Therefore, the judgment is affirmed as to the bad faith claim and reversed as to the breach of contract claim, and the cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur. | June 7, 1991 |
4b865550-b7c0-43ae-8a0b-419be7a1a025 | Ex Parte Day | 584 So. 2d 493 | 1900847 | Alabama | Alabama Supreme Court | 584 So. 2d 493 (1991)
Ex parte John Albert DeCastro DAY, a/k/a John Day, John Albert Day, and John A. Day.
(Re STATE of Alabama v. John Albert DeCastro DAY, a/k/a John Day, John Albert Day, and John A. Day).
1900847.
Supreme Court of Alabama.
June 28, 1991.
F. Timothy McAbee, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for respondent.
HORNSBY, Chief Justice.
In January 1990, the grand jury of Blount County, Alabama, indicted John Albert DeCastro Day on 58 counts of violating Ala.Code 1975, § 8-6-17. Day petitioned this Court for a writ of mandamus ordering the Circuit Court of Blount County *494 to vacate its November 27, 1990, order denying Day's motion to quash the indictment because of improper venue and to enter an order quashing it.
Section 8-6-17 reads:
The indictment alleged that Day bought stock options without naming the accounts for which they were purchased and then, after waiting to see whether the options rose or fell in value, charged the options that rose in value to his account or to William David East's account (see Ex parte East, 584 So. 2d 496 (Ala.1991)), and charged the options that fell in value to certain customers' accounts. The indictment alleged that he took all these actions without the consent or knowledge of the trustees of the accounts to which the fallen options were charged and that the trustees of those accounts were residents of Blount County. Day argues that venue in Blount County is improper because, he says, the purchase, sale, or posting of the options could have occurred only in Jefferson County, Alabama, or in New York City, New York. Therefore, Day says, venue is proper only in Jefferson County, Alabama, under Alabama Constitution of 1901, Art. I, § 6, and Ala.Code 1975, § 15-2-2; he argues that venue is proper only in the county where the alleged offense was committed and that "in a criminal prosecution venue must be properly laid to give the trial court jurisdiction." We disagree with Day's analysis.
On February 3, 1990, Day made a motion in the Circuit Court of Blount County to quash the indictment against him on the grounds that that court was without jurisdiction because, he claimed, none of the alleged acts could have occurred in Blount County. On November 27, 1990, after a hearing on the matter, the trial court denied Day's motion to quash the indictment.
In its order, the trial court stated:
On January 23, 1991, Day petitioned the Court of Criminal Appeals for a writ of mandamus ordering the trial court to vacate its November 27, 1990, order and to enter an order quashing the indictment against Day. The Court of Criminal Appeals denied Day's petition, and he now petitions this Court for a writ of mandamus on the same grounds and for the same relief.
Mandamus is an 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) lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. C & G Development v. Planning Comm'n of the City of Homewood, 548 So. 2d 451 (Ala.1989).
Day relies upon this Court's opinion in Ex parte Hunte, 436 So. 2d 806 (Ala.1983), for the proposition that the acts alleged under the indictment were completed once the options that fell in value were put into the customers' trust accounts. However, Hunte is distinguishable, because it involved an issue of venue under the Medicaid Fraud Act, Ala.Code 1975, § 22-1-11. In Hunte the defendant was indicted in Montgomery County, Alabama, for violating *495 § 22-1-11. The defendant petitioned the Court of Criminal Appeals for a writ of mandamus ordering the Montgomery Circuit Court to transfer the case to Mobile County, Alabama, on the grounds that the alleged fraudulent Medicaid application had been completed in Mobile County. The Court of Criminal Appeals granted the defendant's petition, and this Court granted the state's petition for a writ of certiorari to review that decision. We held that under § 22-1-11 the crime was complete once a false claim or statement was made in an application for payment from Medicaid. This Court held that the statute did not require that the Medicaid Agency receive or rely upon the application. The opinion in Hunte was careful to distinguish the Medicaid Fraud Act from the tort of misrepresentation and fraud, because in fraud actions the act or omission complained of may also occur in the county where the victim relied upon the false representation.
Section 8-6-17 is similar to statutes dealing with fraud, because it is intended to prohibit all fraudulent schemes in connection with the offer, sale, or purchase of securities. "This is true whether or not the artifices employed involve a garden-type variety of fraud, or present a unique form of deception. `Novel or atypical methods should not provide immunity from the securities law.'" Buffo v. State, 415 So. 2d 1158, 1165 (Ala.1982) (quoting A.T. Brod & Co. v. Perlow, 375 F.2d 393, 397 (2d Cir. 1967)).
In Buffo this Court affirmed the defendant's conviction for violating § 8-6-17. The defendant was a California real estate appraiser; the fraudulent documents were prepared in California and sent to an insurance company in Montgomery, Alabama. The Alabama Department of Insurance later relied on the fraudulent documents in determining the company's net worth. This Court upheld the defendant's conviction in Alabama for violating § 8-6-17. In deciding Buffo, this Court stated that federal cases should be reviewed to aid in the interpretation of the statute because § 8-6-17 is almost identical to Rule 10b-5 (15 U.S.C. § 78j (1983)) and there are relatively few Alabama cases construing § 8-6-17.
After this Court affirmed the defendant's conviction in Buffo, the defendant petitioned the federal courts for a writ of habeas corpus on the grounds that the State of Alabama had lacked jurisdiction and was not a proper venue because, he claimed, his activities in the securities fraud occurred only in California. Buffo v. Graddick, 742 F.2d 592 (11th Cir.1984). The 11th Circuit Court of Appeals upheld Alabama's assertion of jurisdiction and proper venue, recognizing:
Buffo, 742 F.2d at 598 (quoting Strassheim v. Daily, 221 U.S. 280, 285, 31 S. Ct. 558, 560, 55 L. Ed. 735 (1911)). Thus, under § 8-6-17, venue could be proper in Blount County, if the state can show that the alleged fraudulent scheme had a detrimental effect within that county. However, if the state cannot make such a showing, any conviction there could not be sustained on appeal. Lewis v. State, 461 So. 2d 9, 11 (Ala.1984).
In Hunte it was uncontested that the defendant had completed the alleged fraudulent applications in Mobile County; thus, Mobile County was the only county where venue could have been proper. In this case the state argues that venue is proper in Blount County because the victims were residents of Blount County when Day allegedly defrauded them and because as part of that fraudulent scheme Day communicated with and met with the victims in Blount County. Proof of venue is jurisdictional to the extent that without such proof, where the question is properly raised, a conviction cannot be sustained. Lewis, supra, at 11; compare Ala.Code 1975, § 12-11-30(2) (circuit courts have exclusive original jurisdiction over all felony prosecutions and lesser included misdemeanors) and § 15-2-2 (venue of all public offenses is in the county where the offense *496 was committed). The burden of proof regarding venue is on the state, and the state may establish venue by circumstantial evidence. Lewis, supra, Willcutt v. State, 284 Ala. 547, 226 So. 2d 328 (1969). When there is no evidence of venue or the evidence of venue is undisputed, it is a question for the court, but when there is conflicting evidence of venue, it is a question for the jury. Willcutt, supra: Stokes v. State, 373 So. 2d 1211, 1216-17 (Ala.Crim.App.1979).
In this case, we agree with the circuit court that there is a factual dispute as to venue. Therefore, the issue of venue is one for the jury. Consequently, Day has no clear right to have the indictment against him quashed, and the petition for the writ of mandamus is denied. C & G Development, supra.
WRIT DENIED.
ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur. | June 28, 1991 |
1726a8ac-587a-466d-81fd-79f2c96c5308 | Deere & Co. v. Grose | 586 So. 2d 196 | N/A | Alabama | Alabama Supreme Court | 586 So. 2d 196 (1991)
DEERE & COMPANY and John Deere Company
v.
Ruth Annette GROSE, as administratrix of the Estate of Derwood M. Grose, deceased.
89-1576.
Supreme Court of Alabama.
August 23, 1991.
*197 Michael D. Knight of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellants.
Forrest S. Latta of Barker & Janecky, and Dennis J. Knizley and Arthur T. Powell III of Knizley & Powell, P.C., Mobile, for appellee.
KENNEDY, Justice.
Ruth Annette Grose, as administratrix of the estate of her husband, Derwood M. Grose, filed an action against John Deere Company and Deere & Company (we refer to both of those defendants as "Deere") and Foley Implement Company ("Foley"). Derwood Grose died when his Deere Model 820 tractor, which he was operating on the bank of his fish pond, turned over sideways 180 degrees and landed on him. Pursuant to the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), Ms. Grose alleged, among other claims, that the tractor was not crashworthy and thus was designed defectively because of Deere's failure to provide as standard equipment a roll-over protective structure ("ROPS") for the tractor; she also alleged that Deere had wantonly or negligently failed to warn adequately of the dangers associated with the use of the tractor. She alleged various claims against Foley, which had sold Mr. Grose the tractor.
At the end of Ms. Grose's case, Deere moved for a directed verdict; the trial court granted that motion as to Ms. Grose's wantonness claims but denied it as to the other claims. Deere and Foley moved for a directed verdict at the close of all the evidence. The trial court submitted Ms. Grose's AEMLD claim and her negligent-failure-to-warn-adequately claim to the jury. The jury returned a verdict for Foley and entered a $500,000 general verdict against Deere. Deere moved for a judgment notwithstanding the verdict or, alternatively, for a new trial, which the trial court denied.
*198 We first address Ms. Grose's negligent-failure-to-warn-adequately claim. The necessary elements for recovery under a negligence theory are duty, breach of that duty, proximate causation, and injury/damage. Rutley v. Country Skillet Poultry Co., 549 So. 2d 82, 85 (Ala.1989). Accordingly, Ms. Grose must prove that Deere failed to warn adequately of the dangers associated with the use of the tractor and that its failure to do so proximately caused the injury of which she complains. Specifically, as concerns proximate cause, a negligent-failure-to-warn-adequately case should not be submitted to the jury unless there is substantial evidence that an adequate warning would have been read and heeded and would have prevented the accident. Gurley v. American Honda Motor Co., 505 So. 2d 358, 361 (Ala.1987); E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963, 970-71 (Ala.1985).
We have carefully reviewed the record of the evidence produced by Ms. Grose. She produced no evidence at all that an "adequate" warning would have been read and heeded and would have prevented the accident. Gurley; E.R. Squibb & Sons.
At most, Ms. Grose testified that Mr. Grose was not familiar with tractors and was not experienced with farm machinery or farming. An expert for Ms. Grose testified that the warning provided by Deere in the owner's manual was inadequate; the expert said:
Although the evidence presented by Ms. Grose and the expert may have established a duty and a breach of that duty, it fails even to address proximate cause, much less prove it by substantial evidence. Gurley; E.R. Squibb & Sons.
Deere's motion for directed verdict made at the close of Ms. Grose's case challenged her prima facie case of negligent-failure-to-warn-adequately. Because Ms. Grose failed to produce substantial evidence of proximate cause in her negligent-failure-to-warn-adequately claim, the trial court erred when it denied Deere's motion for a directed verdict on that claim at the end of Ms. Grose's case.
In order for Ms. Grose to prevail on her AEMLD claim, she must prove, among other things, that she "suffered injury or damages ... [caused] by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer." Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 855 (Ala.1981); Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976). The term "defective" means that the product fails to meet the reasonable safety expectations of an "ordinary consumer," that is, an objective "ordinary consumer," possessed of the ordinary knowledge common to the community. Ex parte Morrison's Cafeteria of Montgomery, Inc., 431 So. 2d 975, 978 (Ala. 1983); Casrell, at 133.
The evidence indicates that Mr. Grose was the third owner of the tractor, which was manufactured in 1972 and sold in 1973. Deere presents no defense concerning alteration of the tractor.
The evidence is undisputed that when the tractor was manufactured, Deere had considerable information concerning the likelihood that tractors of this model would turn over and the frequency of such accidents, that Deere was aware that the absence of a roll bar created an enhanced chance of serious injury or death in the event of a roll-over, that roll bars were technologically feasible when this tractor was manufactured, and that Deere had actually developed a roll bar for the Model 820 tractor in 1967 and sold that roll bar as an option instead of as a standard feature. Deere itself, as well as Ms. Grose, presented evidence indicating all of the above, and it also produced additional evidence from which it asks us to make several rulings as a matter of law, which would have the effect of preventing Ms. Grose's AEMLD claim from being submitted to the jury.
*199 First, Deere argues that, as a matter of law, the tractor, when it was sold with a ROPS as optional equipment, met the reasonable expectations concerning crashworthiness of an ordinary consumer who purchased the tractor with ordinary knowledge common to the community. Although some of the testimony Deere presented concerning the reasonable expectations of consumers in the community addressed such expectations at the time of the trial and was therefore inapposite, Deere also presented some evidence that the tractor met the reasonable expectations of ordinary consumers in 1972. Nevertheless, considering the evidence detailed above, in addition to Deere's testimony concerning reasonable expectations, we can not hold as a matter of law that the tractor met the reasonable expectations of the ordinary consumer possessed of the ordinary knowledge common to the community. Morrison's, at 978. That issue was due to be submitted to the jury, and the trial court did not err in so submitting it.
Deere argues that even if the tractor was unreasonably dangerous, the danger was obviated by adequate warning. Casrell, at 133. Deere presented evidence that the tractor's owner's manual contained this statement: "Do not operate without a roll guard"; that the salesman who sold Mr. Grose the tractor mentioned to Mr. Grose that a roll guard could save him if the tractor turned over and that Mr. Grose "seemed to understand what the system was for"; that community knowledge was that tractors would turn over if operated under certain conditions; and that Carl Ellison, a neighbor, who although he had not seen the bank of the fish pond had heard Mr. Grose describe it, told Mr. Grose that if he operated the tractor on the side or on the top of the fish pond's bank, the tractor would turn over and kill him.
On the other hand Ms. Grose presented evidence that indicated that Mr. Grose was not experienced with farm machinery. Ellison testified that Mr. Grose regarded the tractor as a "play-pretty" and that Mr. Grose "just didn't know what that thing would do to him."
The evidence does not support a holding that as a matter of law the alleged danger was obviated by the warning. The trial court did not err by submitting that issue to the jury.
In the process of making a third argument for reversal on the AEMLD claim, Deere argues that the following holding in Caterpillar Tractor Co. v. Ford, is inapplicable in this case:
406 So. 2d at 854. We do not determine whether that holding is distinguishable, because whether the holding is apposite has no effect on our resolution of Deere's argument.
Deere cites Nettles v. Electrolux Motor AB, 784 F.2d 1574 (11th Cir.1986), which states:
784 F.2d at 1580. We do not determine whether we agree with that statement. We note that the trial court allowed Deere to present to the jury evidence that it failed to install the ROPS as standard equipment because it was impractical to do so. Whether the trial court's admission of that evidence was proper is not an issue before us. To prove that it was impractical to install the ROPS as standard equipment, Deere presented evidence that customers were hesitant to buy tractors that were ROPS-equipped; that the ROPS got in the way of a person plowing in an orchard (Mr. Grose was not plowing in an orchard); and *200 that on a tractor equipped with a ROPS it was harder to change implements attached to the tractor than on a tractor not so equipped. The jury was allowed to consider that evidence, and, because of the general verdict, we cannot determine what the jury factually determined based on that evidence. However, the evidence will not support a holding that as a matter of law the installation of a ROPS was so impractical that the tractor cannot be considered defective.
Deere failed to prove that the trial court erred in submitting Ms. Grose's AEMLD claim to the jury; however, Deere proved that at the end of Ms. Grose's case it was entitled to a directed verdict on her claim of negligent failure to warn adequately. The jury returned a general verdict. In South Central Bell Tel. Co. v. Branum, 568 So. 2d 795 (Ala.1990), we addressed the effect of a general verdict when a case contains a "good" count (i.e., one properly submitted to the jury) and a "bad" count (i.e., one improperly submitted to the jury). In that case, we held that if a good count and a bad count go to the jury and the jury returns a general verdict, this Court cannot presume that the verdict was returned on the good count. 568 So. 2d at 798. Accordingly, the judgment is due to be reversed and the cause remanded for a new trial on Ms. Grose's AEMLD claim. South Central Bell Tel. Co. v. Branum; Aspinwall v. Gowens, 405 So. 2d 134 (Ala. 1981).
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
MADDOX and ALMON, JJ., concur in part and dissent in part.
MADDOX, Justice (concurring in part and dissenting in part).
I concur in that portion of the opinion that holds that "if a good count and a bad count go to the jury and the jury returns a general verdict, this Court cannot presume that the verdict was returned on the good count."
I cannot agree, however, that the plaintiff is entitled to a new trial on the AEMLD claim, and I cite the reader to my dissent in Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala.1981) (a 5-4 decision of this Court). This case is relied on heavily by the majority to support its decision. I still think that Caterpillar was incorrectly decided.
ALMON, J., concurs. | August 23, 1991 |
dad2d8ac-df71-41f4-b43e-dd30219688d4 | St. Paul Fire & Marine v. EDGE MEMORIAL | 584 So. 2d 1316 | 1900059 | Alabama | Alabama Supreme Court | 584 So. 2d 1316 (1991)
ST. PAUL FIRE & MARINE INSURANCE COMPANY
v.
EDGE MEMORIAL HOSPITAL, et al.
1900059.
Supreme Court of Alabama.
June 14, 1991.
Rehearing Denied August 9, 1991.
*1317 R. Stan Morris of Harris, Evans, Berg & Morris, Birmingham, for appellant.
W. Stancil Starnes and Laura Howard Peck of Starnes & Atchison, Birmingham, for appellees.
SHORES, Justice.
This case involves the question of whether St. Paul Fire & Marine Insurance Company must defend and pay certain malpractice claims against Edge Memorial Hospital and Holy Name of Jesus Medical Center under the terms and conditions of an expired malpractice policy issued by St. Paul. A second issue concerns whether St. Paul is entitled to collect a deductible amount from Holy Name.
On September 4, 1987, Edge Memorial and Jackson Hospital filed a complaint in the Circuit Court of Jefferson County, Alabama, for a declaratory judgment against St. Paul, seeking a determination that St. Paul must defend and pay certain claims. St. Paul filed a motion to dismiss and a counterclaim for declaratory judgment. The plaintiffs amended their complaint to add as parties plaintiff, Mutual Assurance Company of Alabama, Inc., and Holy Name of Jesus Medical Center. Subsequently, Jackson Hospital dismissed its claims against St. Paul because its claims had been compromised and settled.
Plaintiffs, Edge Memorial and Holy Name, and the defendant, St. Paul, then filed cross motions for summary judgment, alleging that there was no genuine issue as to any material fact and that the issues could be resolved as a matter of law. A *1318 hearing was held and briefs were submitted to the trial judge, the Honorable Marvin Cherner. On August 23, 1990, the trial judge entered a summary judgment for the hospitals on the issue of malpractice insurance coverage. The trial judge also entered a summary judgment for Holy Name in respect to St. Paul's counterclaim to collect a deductible amount from the hospital. St. Paul appeals. We affirm.
The facts are undisputed and are set forth by the trial judge in his order, which the appellant and the appellees have adopted by reference in their briefs to this Court.
"The letter concerning William Morrison is set out below:
"The letter concerning Lillie Mae Sumpter reads as follows:
The first question presented is whether the trial court erred in declaring that Edge Memorial and Holy Name properly submitted claims to St. Paul during their respective policy periods so as to be entitled to coverage under their claims-made policies.
We affirm the judgment of the trial judge and adopt his order as the opinion of this Court:
"St. Paul says that these letters are nothing more than `patient incident reports' which cannot serve as the hospital's report of a claim or potential claim under the terms of the insurance policy.
"However, it is this Court's opinion that each of the letters contains sufficient information to place St. Paul on notice of the relevant facts concerning why each particular incident could result in a liability claim. The letters are not merely `patient incident reports,' but are notices of potential claims made to comply with St. Paul's insurance policy requirements for making a claim for insurance.
"St. Paul also says that the provision of its policy requiring notice of a `claim' refers to a `claim' for damages made by the injured person to the insured (hereinafter `legal claim'), by making demand for damages by letter or in a complaint filed in a lawsuit; that claim does not refer to the notice of a potential claim made by the insured to the insurer, (hereinafter `insurance claim').
"St. Paul says that this is a `claims-made' policy, and the ordinary meaning of `claimsmade' is that a legal claim must be made by the injured against the insured during the effective dates of the insurance policy.
"However, the meaning of the terms `claims' and `claims-made' as those terms appear in St. Paul's insurance policy are in dispute.
"The word `claim' appears a number of times in St. Paul's policy. Sometimes the word `claim' appears to mean insurance claim; at other times it is used to mean `legal claim'.
"For example, under the `General Rules' section of the policy the following sentences contain the word `claim':
"Other sentences in the insurance policy which include the word `claim' read as follows:
"In St. Paul Fire & Marine Insurance Co. v. House, 315 Md. 328, 554 A.2d 404 (1989), the Court of Appeals of Maryland undertook to interpret ... `claims-made' as that term is used in connection with a professional liability insurance policy issued by St. Paul to Homer C. House, M.D. The provisions of St. Paul's insurance policy interpreted by the Maryland Court of Appeals are substantially similar to corresponding provisions in St. Paul's insurance policies which are the subject of dispute in the present case.
"St. Paul's position in House was that the insurance policy issued to Dr. House was a `claims-made' policy; that the policy defined when a claim is made as `the date you first report an incident or injury to us or our agent,' and that Dr. House did not report the incident to St. Paul and therefore did not make his claim, in accordance with the policy definition while the policy was in effect. St. Paul v. House, 554 A.2d at 406. Dr. House contended that the policy was ambiguous and that he reasonably interpreted the policy to mean that so long as the injured party made his claim against Dr. House during the term of the policy, Dr. House was afforded coverage even though Dr. House did not give notice to St. Paul during the term of the policy.
"In House, the `claims-made' provision in St. Paul's insurance policy reads:
"In the present case a substantially similar provision [appears] in St. Paul's insurance policies with Edge Memorial and Holy Name. It reads as follows:
"In House, St. Paul asserted that under its `claims-made' policy, by definition, an insurance claim is effectively made when the insured reports the potential legal claim to St. Paul. St. Paul said that it intended the term `claims-made' as used in its policy to apply to the insurance claim made by the insured to the insurer, not the legal claim made by the injured person to the insured.
"St. Paul Fire & Marine Insurance Co. v. House, supra, 554 A.2d at 407.
"The Maryland Court of Appeals held that the term `claims made,' as used by St. Paul was ambiguous, that it could be reasonably construed to refer to legal claims made by the injured to the insured (the ordinary meaning) as well as to insurance claims made by the insured to the insurer.
"Chief Judge Murphy, agreeing with St. Paul, filed a dissenting opinion, arguing that the policy at issue was not ambiguous, that the only meaning of `claims made' under St. Paul's policy was `insurance claims made by the insured to the insurer.'
A portion of his dissenting opinion reads as follows:
"St. Paul, in the present case before this Court, now takes the opposite position from the position asserted by it in House, supra. St. Paul now says that the same insurance policy provision construed in House, is not ambiguous and requires the injured person to make claim upon the insured during the term of the policy (the ordinary meaning of `claims made').
"In support of its position, St. Paul cites the case, Langley v. Mutual Fire, Marine and Inland Insurance Company, 512 So. 2d 752 (Ala.1987), overruled on other grounds, Hickox v. Stover, 551 So. 2d 259, 264 (Ala.1989). In Langley, the Alabama Supreme Court reviewed an ordinary *1322 `claims made' insurance policy issued by Mutual Fire, Marine and Inland Insurance Company:
"The Mutual Fire insurance policy clearly expresses that claims must be `made against the insured while the policy is in force.'
"However, the language in the Mutual Fire insurance policy is obviously not the same as the language in St. Paul's policies in the present case. Unlike the Mutual policy, St. Paul's insurance policies do not have language requiring claims to be made against the insured while the policy is in force.
"St. Paul says that this requirement is stated in the following provision of its insurance policy:
"Language in an insurance policy should be given the same meaning which a person of ordinary intelligence (not a lawyer) would reasonably conclude the language means. [National] Union Fire Insurance Co. v. Leeds, 530 So. 2d 205, 207 (Ala.1988).
"An attorney may know that the ordinary legal meaning of `claims-made' is that the injured must make a legal claim against the insured. However, St. Paul's policy defines `claims-made' to mean the insured must make a claim against the insurer. See, House, supra, 554 A.2d at 407, 411. A person of ordinary intelligence reading the St. Paul insurance policy would give great weight to St. Paul's definition of `claims-made' in its insurance policy, not knowing that the St. Paul definition differs from the ordinary legal meaning of `claimsmade.'
"Ambiguous language in an insurance policy must be construed by the courts liberally in favor of the insured and strictly against the insurance company. National Union Fire Insurance Co. v. Leeds, 530 So. 2d 205, 207 (Ala.1988).
"Insurance policies, typically, are carefully drafted to designate what is covered and what is excluded from coverage in order to avoid confusion. Possibly the single most important word in St. Paul's `claims-made' policy is the word claim. It is essential for the insured to know what constitutes a legal claim in order to ascertain what coverage the insured can expect to receive under the insurance policy. St. Paul failed to define the word claim in its insurance policy. St. Paul might easily have drafted the disputed provision to require `the injured person to make claim (by filing a lawsuit, etc.) against the insured' during the effective dates of the policy. See, e.g., Langley, supra, at 754. It failed to do so.
"Accordingly, this Court finds that the St. Paul policies only impose the following requirements on the insured in making an insurance claim:
"1. The incident for which the insured seeks coverage must occur within the effective dates of the policy;
"2. The incident for which the insured seeks coverage must be reported to St.
*1323 Paul within the effective dates of the policy; and
"3. The report concerning the incident for which the insured seeks coverage must contain more particular information designating an incident as a potential claim rather than a `Patient Incident Report.'
"The relevant portions of St. Paul's insurance policies read as follows:
"`We've designed this agreement to protect against liability claims resulting from professional services provided or which should have been provided by your hospital. Of course there are limitations which are explained later in this agreement.
"Edge Memorial and Holy Name have complied with the terms of their insurance policies with St. Paul and are entitled to coverage with respect to the three lawsuits filed against them. Summary judgment is therefore due to be granted in favor of Edge Memorial and Holy Name with respect to this issue."
The second question presented concerns St. Paul's counterclaim for the collection of a deductible amount from Holy Name in the matter of Claudia Childs. We must determine whether the trial judge erred in his holding that St. Paul breached *1324 its legal duty to Holy Name by failing to obtain the hospital's consent before settling the Childs claim and thus cannot collect a deductible from the hospital. The facts surrounding this issue are also set forth in the trial court's judgment. We affirm the judgment of the trial judge as to this issue and adopt his reasoning as the opinion of this Court:
"St. Paul has also asserted a counterclaim against Holy Name, the material facts of which are not in dispute. St. Paul and Holy Name have both filed motions for summary judgment with respect to this counterclaim.
"On October 8, 1986, Claudia Childs went to visit her daughter, a patient at Holy Name hospital. After visiting with her daughter, Claudia Childs left the hospital, and began walking toward her car down a dirt pathway adjacent to the hospital. The dirt pathway had been used as an alternative walkway from the hospital to the parking lot.
"Before Claudia Childs arrived at her car, she slipped on some gravel in the pathway and fell to the ground, injuring her right leg.
"Claudia Childs was subsequently admitted to Holy Name and treated by Dr. Rivard for the fracture of her right tibia and fibula. The medical expenses which she incurred for the treatment of the injuries sustained in the fall totalled approximately $7,000.00.
"On October 14, 1986, Ginger Woodard, Administrative Coordinator for Medical Affairs at Holy Name, sent a copy of Claudia Childs' patient incident report to St. Paul's Claim Representative, Dale Nellums.
"On November 21, 1986, Ginger Woodard received a letter from Mac Downs, an attorney representing Claudia Childs. In the letter, Mac Downs stated, `I wish to make a claim on ... behalf [of Claudia Childs] with your insurance carrier and if you wish to discuss this matter prior to litigation, please have your carrier contact me within fifteen days.' On the same day, Ginger Woodard forwarded a copy of Mac Downs's letter to Dale Nellums at St. Paul.
"On November 9, 1987, Dale Nellums of St. Paul submitted a request for payment of $10,000.00 to Holy Name. The request stated that the Claudia Childs case had been settled, and Holy Name was required to reimburse St. Paul in the amount of $10,000.00, representing the deductible amount under the terms of the insurance policy.
"On December 8, 1987, by letter, and on December 10, 1987, by telephone, Ginger Woodard of Holy Name contacted Dale Nellums of St. Paul objecting to the manner in which St. Paul handled the Claudia Childs matter. Ginger Woodard requested an explanation why no attorney was appointed to represent Holy Name, and why Holy Name was not contacted prior to settlement of the Claudia Childs case.
"On December 14, 1987, in response to these objections, Dale Nellums of St. Paul sent the following letter to Holy Name:
"Holy Name has not remitted the deductible in the Claudia Childs case to St. Paul. The failure of Holy Name to remit the deductible to St. Paul is the basis for St. Paul's counterclaim against Holy Name in this action.
"The `Health Care Facility Comprehensive General Liability Protection' portion of the St. Paul insurance policy applies to the insurance coverage of Holy Name in the Claudia Childs matter. That portion of the policy includes a provision for what is covered. It reads in pertinent part:
"It also contains the following provision for defending lawsuits:
"The insurance policy also contains a `Hospital Liability Protection Deductible Endorsement.' This endorsement provides for a $50,000.00 deductible for each accidental event involving bodily injury or personal injury, and a total deductible of $250,000.00.
"St. Paul says that under the terms of the insurance policy it had the legal right to settle the Claudia Childs case, and it is entitled to reimbursement of the applicable deductible amount from Holy Name.
"St. Paul says it is owed $9,000.00 of the amount of the applicable deductible. The original amount requested ($10,000.00) has been reduced by $1,000.00 under `Med Pay' provisions of the insurance policy which are not at issue here.
"Holy Name says that it is not liable to St. Paul for reimbursement of the deductible ($9,000.00) because (1) it was never `legally required' to pay Claudia Childs any amount; (2) it was not informed of the settlement offer prior to settlement; (3) it never consented to settlement; and (4) no attorney was provided to defend Holy Name against Claudia Childs' claim.
"Where there is a provision in an insurance policy which authorizes the insurer to settle any claim against the insured in its discretion, such a provision `vests the insurer with absolute authority to settle claims within the limits of the policy with the insured's having no power to compel the insurer to make settlements or to prevent it from so doing.' (Emphasis added.) Employers' Surplus Line Insurance Co. v. Baton Rouge, 362 So. 2d 561, 564 (La.1978); Mitchum v. Hudgens, 533 So. 2d 194, 197 (Ala.1988).
"However, where the insured has a direct financial stake in the litigation, the law generally requires that the insured have control over acceptance or rejection of settlement offers. Mitchum v. Hudgens, 533 So. 2d 194, 202 (Ala.1988) (for instance, where the insurer reserves the right to contest the existence of coverage); Employers' Surplus Line Insurance Co. v. Baton Rouge, 362 So. 2d 561, 564-565 (La. 1978) (where settlement prior to judgment requires the insured to pay a deductible). See also, L & S Roofing Supply Co. v. St. Paul Fire & Marine Insurance Co., 521 So. 2d 1298, 1303 (Ala.1987).
"The insured must make the ultimate choice regarding settlement since it is the insured who must eventually pay the settlement amount. See, L & S Roofing Supply Co. v. St. Paul Fire & Marine Insurance Co., 521 So. 2d 1298, 1303 (Ala.1987).
"In the present case, St. Paul did not inform Holy Name of its intent to settle the Claudia Childs matter. Holy Name had no opportunity to consent to or reject the option to settle. Under the insurance policy, Holy Name was required to reimburse St. Paul for any settlement up to $50,000.00. Holy Name, therefore, had a direct financial stake in any settlement under this portion of the insurance policy.
"Therefore, St. Paul breached its legal duty to Holy Name by failing to obtain Holy Name's consent before settling the Claudia Childs matter for $10,000.00.
"In addition, even in cases where the insured has no direct financial stake in the outcome, an attorney appointed by the insurer to handle a claim against the insured is under an ethical duty to make full disclosure of the progress of the litigation to the insured. Mitchum v. Hudgens, 533 So. 2d 194, 202 (Ala.1988). `[A]ppointed counsel should keep [the] client, the insured, apprised of all developments in the case, including settlement negotiations.' Mitchum, supra, at 202.
"Where, as in the present case, the insured has a direct financial stake in the outcome, the attorney's duty to keep the insured informed is greater, since the attorney may not settle the claim at the direction of the insurers over the objection of the insured. Cf., Mitchum, supra, at 202.
"In the present case, Dale Nellums, the St. Paul Claim Representative is also a licensed attorney. However, it does not appear that she, nor anyone else, was appointed to conduct a defense on behalf of the insured. And no attorney appointed by St. Paul advised Holy Name of the settlement negotiations.
*1327 "The provision of the insurance policy authorizing St. Paul the right to settle claims is included under the subheading: `Defending lawsuits.' St. Paul was required under the insurance policy to defend any suit against the insured even if the suit is `groundless.'
"Where the insured must ultimately pay the amount of a settlement as part of the deductible amount, a reasonable construction of the applicable provision of the insurance contract where it is also considered that the insured must itself pay the amount of the deductible is that the insurer cannot agree to pay money in a settlement which must be repaid by the insured without first obtaining the consent of the insured. See, Employers' Surplus Line Insurance Co. v. Baton Rouge, 362 So. 2d 561, 565 (La. 1978).
"It is undisputed that Holy Name did not consent to the settlement of this matter, though it had a direct financial stake in the outcome.
"Accordingly, summary judgment is due to be granted in favor of Holy Name with respect to this issue."
The judgment of the trial court that St. Paul is obligated to defend Edge Memorial and Holy Name against liability arising from the claims asserted against them[1] and to indemnify them against any judgment rendered against them with respect to such claims is due to be affirmed. The judgment of the trial court that, in failing to obtain Holy Name's consent before settling the Claudia Childs matter, St. Paul breached its legal duty to Holy Name and is thus not entitled to collect the deductible from Holy name is also due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Civil Actions numbered CV-87-553-PH; CV-87-825-WWC; and CV-89-124. | June 14, 1991 |
ffbd07cd-6473-4086-b9a7-1335bf82ae82 | Moseley v. Lewis & Brackin | 583 So. 2d 1297 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 1297 (1991)
Julius A. MOSELEY
v.
LEWIS & BRACKIN.
89-1642.
Supreme Court of Alabama.
June 14, 1991.
*1298 Rodney A. Max and Allan L. Armstrong of Najjar Denaburg, P.C., Birmingham, and Terry W. Bullard, Dothan, for appellant.
Ernest H. Hornsby of Farmer, Price, Smith, Hornsby & Weatherford, Dothan, for appellee.
ALMON, Justice.
Julius A. Moseley appeals from a judgment rendered on a jury verdict in favor of the plaintiff, Lewis & Brackin, a partnership, in an action to recover legal fees. Moseley contends that the trial judge made a number of erroneous rulings regarding the introduction of evidence and testimony and erred by failing to align Lewis & Brackin with a third-party defendant for the purpose of allocating jury strikes.
In 1981 Moseley became a partner in Southern Distilleries ("Southern"). Lewis & Brackin, a law firm in Dothan that had represented Moseley in other matters before he became a partner in Southern, performed legal work for Southern after Moseley became a partner. Lewis & Brackin sent bills for its services to two of Southern's partners, John Davis and Charles Moulthrop. It also sent copies of those bills to Moseley. In October 1984, Lewis & Brackin began sending Moseley originals of its bills. At least some of those bills were not paid, and by October 1985, Southern owed Lewis & Brackin a balance of $56,062.71.
Lewis & Brackin was apparently unable to collect those fees from Southern and, in October 1985, it filed a complaint against Moseley for the balance due. In his answer, Moseley alleged that he had entered *1299 into an oral agreement with Roy Lewis, a partner at Lewis & Brackin, wherein Lewis & Brackin agreed to hold Davis and Moulthrop responsible for all of Southern's debts for legal services performed by Lewis & Brackin.[1] Moseley also filed a motion to add Davis and Moulthrop as third-party defendants. That motion was granted. However, Davis later filed a suggestion of bankruptcy and, as a result, was dismissed from the action. At the conclusion of the trial, the jury returned a verdict in favor of Lewis & Brackin and against Moseley, assessing damages at $71,407. The jury also returned a verdict in Moseley's favor on his third-party complaint against Moulthrop, assessing damages at $52,733.81. Moseley then moved for a judgment notwithstanding the verdict, or in the alternative, a new trial. His motion was denied and he appeals.
Moseley's first argument is that the court erred by excluding testimony regarding the alleged oral agreement he had with Roy Lewis concerning the individual partners' liability for legal fees. The court held that because Lewis had died before trial, testimony regarding Moseley's alleged conversation with him would violate Ala.Code 1975, § 12-21-163, the so-called "Dead Man's Statute":
(Emphasis added.)
Moseley contends that there was no evidence that showed that Lewis's estate would be affected by the testimony he attempted to offer and, therefore, he argues, § 12-21-163 had no application. We do not agree. This Court has held that the Dead Man's Statute operates to exclude testimony regarding statements by deceased officers of defendant business entities. Richter v. Central Bank of Alabama, N.A., 451 So. 2d 239 (Ala.1984); Scott v. Southern Coach & Body Co., 280 Ala. 670, 197 So. 2d 775 (1967). In addition, this Court has recognized that the very language of the Dead Man's Statute requires the exclusion of testimony regarding an officer or representative's statements if that officer is now deceased and was acting in his representative capacity at the time the alleged statement was made, notwithstanding the fact that the officer's estate will not be affected by the suit:
Busby v. Truswal Systems Corp., [Ms. 89-1504, June 7, 1991] (Ala.1991); Benson & Co. v. Foreman, 241 Ala. 193, 195, 1 So. 2d 898, 899 (1941) (construing Ala.Code 1923, § 7721, a predecessor to § 12-21-163). Because Lewis was acting in his capacity as a partner in Lewis & Brackin when the alleged statement was made, Moseley's testimony was properly excluded.
*1300 Moseley also argues that if his testimony regarding Lewis's alleged statement falls within the ambit of § 12-21-163, Lewis & Brackin waived any objection to that testimony when it introduced business records that contained handwritten notes by Lewis. Moseley argues, in essence, that Lewis was allowed to "speak" through the introduction of those records, thus opening the door for his testimony.
That argument ignores the distinction between unsworn statements, such as the notes on Lewis's business records, and sworn testimony or statements. According to the language of the Dead Man's Statute, the introduction of "testimony" by the deceased person will open the door to further testimony regarding his statements. "Testimony," for the purposes of that exception, includes affidavits, depositions, and answers to interrogatories by the deceased person. Friar v. McCrary, 578 So. 2d 1249, 1250 (Ala.1991); Lavett v. Lavett, 414 So. 2d 907, 911 (Ala.1982), overruled on other grounds, McBride v. McBride, 548 So. 2d 155 (Ala.1989). In a factually similar case, Brett v. Dean, 239 Ala. 675, 196 So. 881 (1940), this Court noted that there is "a distinct difference between sworn testimony and book accounts," and held that the introduction of the deceased's business records did not open the door to testimony regarding his statements. 239 Ala. at 677, 196 So. at 883. We see no error in the court's ruling on this issue.
Moseley also argues that the court erred by not allowing him to introduce evidence that concerned other matters that Lewis & Brackin had handled for him and an affidavit drafted by Lewis & Brackin for the third-party defendant, Charles Moulthrop.
Rulings on the materiality, relevancy, and remoteness of evidence are matters resting within the discretion of the trial court. Such rulings will not be disturbed by this Court unless there is a showing that the court's ruling was a gross abuse of its discretion. AmSouth Bank, N.A. v. Spigener, 505 So. 2d 1030 (Ala.1986); Russellville Flower Craft, Inc. v. Searcy, 452 So. 2d 478 (Ala.1984).
Moseley attempted to offer exhibits and testimony regarding the payment of bills that Lewis & Brackin sent him for services in matters unrelated to Southern. He contended that those exhibits and testimony were relevant because they would show a course of conduct between him and Lewis & Brackin. Lewis & Brackin objected, arguing that the evidence and testimony were not relevant. The trial court sustained the objection.
We see no error in the court's ruling. The relevancy of exhibits and testimony are best determined by the trial judge, and Moseley has not demonstrated that the judge abused his discretion by sustaining the objection. Spigener, supra. In addition, we note that Moseley was allowed to present some testimony on these matters, and elicited further testimony regarding them during his cross-examination of Lewis & Brackin's bookkeeper. Therefore, any potential error occasioned by the court's ruling was harmless. Snow v. Boykin, 432 So. 2d 1210 (Ala.1983); Rosen v. Lawson, 281 Ala. 351, 202 So. 2d 716 (1967); Rule 45, Ala.R.App.P.
Moseley also attempted to introduce an affidavit that had been drafted by Lewis & Brackin for the third-party defendant, Charles Moulthrop.[2] It appears that Moulthrop's affidavit was prepared by Lewis & Brackin for its defense of a legal malpractice claim filed against it by Moseley. Moseley contends that the affidavit was relevant because, he argues, it explained Lewis & Brackin's "motive" for holding him liable for the services it had rendered to Southern.
We conclude that the affidavit was properly excluded. As a general rule, affidavits can be used for impeachment purposes but cannot be admitted as substantive evidence, because they are hearsay. *1301 Pickering v. Townsend, 118 Ala. 351, 23 So. 703 (1898); 6 Wigmore on Evidence § 1709, at 74 (Chadbourn rev. 1974). Moseley has not directed this Court's attention to any pertinent exception to that general rule or to any legal authority to support his argument that the affidavit should have been admitted. As a result, we find no abuse of discretion by the trial court.
Finally, Moseley argues that the judge improperly allocated jury strikes among the parties. It appears that Moseley asked the judge to align Lewis & Brackin and Moulthrop as a single party for this purpose, which would have given Moseley one-half of the strikes. The judge refused, stating that he could not "align the parties in any fashion in this suit." He then allocated one-half of the jury strikes to Lewis & Brackin, pursuant to Rule 47(c), Ala. R.Civ.P., which mandates that "in all events, the plaintiff shall be entitled to one-half of the total number of strikes allocated to all parties." The remaining jury strikes were divided evenly between Moseley and Moulthrop.
We agree with the trial judge's implicit finding that none of the parties in this case had sufficiently "similar interests" to allow them to be aligned as a single party. Rule 47(c). Because Rule 47(c) unambiguously requires that the plaintiff, in this case Lewis & Brackin, receive one-half of all strikes, the judge's ruling was appropriate.
For the reasons set out above, the judgment of the trial court is affirmed.
AFFIRMED.
ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Because of the nature of the issues raised, we make no comment on the possible enforceability of any such agreement.
[2] That affidavit is not in the record on appeal and this Court has not been apprised of its contents. | June 14, 1991 |
044af51a-f052-401e-8e1e-9f2831a9ed11 | Ex Parte Hergott | 588 So. 2d 911 | 1900486 | Alabama | Alabama Supreme Court | 588 So. 2d 911 (1991)
Ex parte Richard James HERGOTT.
(Re Richard James Hergott v. State).
1900486.
Supreme Court of Alabama.
June 14, 1991.
Rehearing Denied August 9, 1991.
*912 Sherry Collum-Butler of Potts & Young, Florence, for petitioner.
James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for respondent.
INGRAM, Justice.
The facts of this case are stated in greater detail in Hergott v. State, 554 So. 2d 1139 (Ala.Crim.App.1988). The facts essential to our disposition on this certiorari review are stated below.
Richard James Hergott, the petitioner, was arrested for trafficking in cannabis. The State's primary evidence against him was 40 potted marijuana plants seized from his residence in a warrantless search. The marijuana plants were found placed among growing corn in a garden behind a barn in back of his house. The house, in rural Winston County, sat on top of a hill, surrounded by four acres of land enclosed by a fence.
Hergott objected to the use of the potted marijuana plants as evidence against him, arguing that the plants had been seized incident to an illegal search. The trial court held a suppression hearing, at which the State offered the testimony of the officer who had seized the marijuana. In his testimony, which he had also given earlier before the grand jury, he stated that the plants were approximately 75 yards from the house, that they were obscured from view by their placement among growing corn, that there was a locked fence surrounding Hergott's property, and that two dogs, a German shepherd and a rottweiler, roamed the grounds.
Hergott argued that the garden where the plants were found was part of the curtilage of his home. The State claimed that the plants were found in an "open field" and that, therefore, they were not seized from inside the curtilage.
The trial court ruled against Hergott, based upon the "open field" exception. Therefore, Hergott entered a plea of guilty, reserving his right to appeal the trial court's ruling regarding the propriety of the search. After entry of the judgment and sentencing, Hergott appealed to the Court of Criminal Appeals. In an opinion released on July 19, 1988, that court held that it was unable to determine from the record whether the State had "overcome the presumption of unreasonableness that attaches to all warrantless searches and home entries." Hergott v. State, 554 So. 2d 1139, 1142 (Ala.Crim.App.1988) (hereinafter Hergott I). The case was remanded to the trial court with directions to "make a determination whether the garden and barn are within the curtilage of [petitioner's] home," and "to submit written findings of fact on the matter to this court." Id.
On remand, the trial court conducted a personal inspection of the property at issue. In its subsequent order, the trial court found that the barn and garden were over 100 yards from Hergott's home and, therefore, were not within the curtilage. Hergott appealed.
The Court of Criminal Appeals, on return to remand, Hergott v. State, 588 So. 2d 908 (Ala.Crim.App.1990) (hereinafter Hergott II), affirmed the trial court's finding that the location of the marijuana plants was beyond the curtilage of Hergott's home. 588 So. 2d at 910. Hergott asks this Court to examine two issues: (1) whether the Court of Criminal Appeals erred in remanding this cause to the trial court after finding that the State had failed to meet its burden as to the reasonableness of the warrantless search; and (2) whether it erred in failing to follow the criteria established by United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), for determining curtilage issues.
In his petition for writ of certiorari, Hergott argues that the remand and the subsequent acceptance of new evidence contradicts Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). The State, however, contends that the remand was *913 merely to "clarify" the evidence upon which the trial court had relied in overruling Hergott's motion to suppress.
The Court of Criminal Appeals in Hergott I remanded the case, stating:
Hergott I, 554 So. 2d at 1142.
The first issue to be decided is whether the remand was for the purpose of clarifying the evidence or whether it was to afford the trial court the opportunity to take new evidence. In the companion cases to Hergott I, Brodhead v. State, 554 So. 2d 1142 (Ala.Crim.App.1989), and Kaercher v. State, 554 So. 2d 1143 (Ala.Crim.App.), cert. denied, 554 So. 2d 1152 (Ala.1989), the Court of Criminal Appeals noted that "we remanded Hergott because the record was inadequate to determine the sole issue of whether the warrantless search of Hergott's property and the subsequent seizure of marijuana thereon were constitutional." Brodhead, 554 So. 2d at 1143; Kaercher, 554 So. 2d at 1145. However, on remand, the trial court took new evidence concerning the distance of the garden from the Hergott residence, and this evidence was the basis of the Court of Criminal Appeals' affirmance of the trial court's order overruling Hergott's motion to suppress. The Court of Criminal Appeals stated: "In the present case, the trial court notes that the location of the marijuana was more than 100 yards from the appellant's residence, clearly indicating that the area in which it was located was not to be treated as an adjunct of the house." Hergott II, 588 So. 2d at 910.
If the purpose of the remand, as the State contends, was merely to clarify the evidence, obviously new evidence should not have been admitted. The State contends that the trial court did not admit new evidence, but merely "clarified" the "highly uncertain and speculative" testimony of the officer. We disagree and find that the evidence, procured by the trial court, showing the distance from the house to the garden to be more than 100 yards, was new evidence.
The State and Hergott agree that the officer testified that the garden was approximately 75 yards from the house. Evidence that the garden was actually over 100 yards from the residence, procured by the trial court on a visit to Hergott's property after Hergott had been convicted and sentenced and after the Court of Criminal Appeals had remanded the case, contradicts the only testimony in the record as to the distancethe officer's testimony that the distance was approximately 75 yards. Because the Court of Criminal Appeals not only did not question the propriety of allowing new evidence but embraced the new evidence as the reason the warrantless search was valid, we hold that that court erred.
The acceptance of new evidence after Hergott had pleaded guilty violates the Double Jeopardy Clause of the fifth amendment. "Jeopardy attaches on a guilty plea when the plea is accepted and entered by a court with jurisdiction." Ex parte Wright, 477 So. 2d 492, 493 (Ala.1985) (citing Odoms v. State, 359 So. 2d 1162, 1164 (Ala.Crim. App.1978). Once jeopardy has attached, the State is not given a second chance to supply evidence that it failed to provide on the first opportunity. United States v. Burks, 437 U.S. 1, 11, 98 S. Ct. 2141, 2147, 57 L. Ed. 2d 1 (1978). The Double Jeopardy Clause is aimed at prosecutors and judges, United States v. Davis, 656 F.2d 153 (11th Cir.1981), cert. denied, 456 U.S. 930, 102 S. Ct. 1979, 72 L. Ed. 2d 446 (1982). Therefore, it was a violation of the fifth amendment for the trial court to procure new *914 evidence after Hergott's plea of guilty had been accepted by the court and he had been sentenced.
The State has the burden to prove that a warrantless search was reasonable. Although the testimony of the officer was speculative, it was uncontradicted. The State, at the time the motion to suppress was made, had the opportunity to prove distance by supplying other witnesses, but the State chose to rely upon the officer's prior testimony as to the proximity of the garden to the residence.
The next issue then is whether, under the standard established in Burks v. United States, supra, remand was proper once the Court of Criminal Appeals determined that the record was inadequate to allow the court to determine whether the barn and garden were within the curtilage. Hergott argues that the evidence was insufficient to prove that the State had overcome the presumption of unreasonableness that attaches to warrantless searches and that the case should have been reversed according to Burks. The State argues that Burks does not apply, because, it says, Burks concerned insufficient evidence at trial, whereas Hergott had pleaded guilty, thus, the State argues, waiving insufficiency of the evidence.
In Burks v. United States, Burks was charged with bank robbery. At his trial, he introduced testimony of three expert witnesses who supported his defense of insanity. Burks was convicted, and he appealed. The court of appeals held that the Government has the burden of proving sanity once a prima facie defense of insanity has been raised; however, the court went on to find that the Government did not carry this burden, noting in particular that the prosecution witnesses "failed to `express definite opinions on the precise questions [that the court] ... identified as critical in cases involving the issue of [in]sanity.'" Burks, 437 U.S. at 4, 98 S. Ct. at 2143, rev'g Burks v. United States, 547 F.2d 968, 970 (6th Cir.1976). The court of appeals remanded the case to the district court "for a determination of whether a directed verdict of acquittal should be entered or a new trial ordered."
The United States Supreme Court granted certiorari review to examine the question of "whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury." Id. at 5, 98 S. Ct. at 2144. In deciding that the court of appeals should have rendered a judgment in favor of Burks, the Supreme Court held:
Id. at 10, 98 S. Ct. at 2147.
The Court reasoned that "[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Id. at 11, 98 S. Ct. at 2147.
In the instant case, the Court of Criminal Appeals found that the State had failed to supply sufficient evidence on the record. Specifically, that court found that there was no testimony concerning the condition and purpose of the outbuildings and also that the officer's testimony regarding the distance of the garden from the house was speculative and uncertain. Hergott I, 554 So. 2d at 1142. Compare Burks, 437 U.S. at 4, 98 S. Ct. at 2143 (Government did not rebut petitioner's proof because witnesses failed to express definite opinions on the precise questions that were critical in cases involving insanity defenses). This case is like Burks; the intermediate appellate court, the Court of Criminal Appeals in this case, held that it was unable to hold that the State had met its burden of overcoming a substantive presumption in favor of the petitioner. We hold that the Double Jeopardy Clause prevents the Court of Criminal Appeals from sending the issue back to the trial court for a second chance to supply on the record evidence sufficient to prove that the warrantless search fell within the "open field" exception.
*915 Because the Court of Criminal Appeals held that the evidence produced in opposition to the petitioner's motion to suppress was insufficient to overcome the presumption that the warrantless search was unreasonable, we reverse, without addressing the issue of that court's determination that the search fell within the "open field" exception to the fourth amendment. However, this Court now does note that United States v. Dunn requires that questions of curtilage
United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326 (1987).
Therefore, it is insufficient to rely on one factor, such as proximity, to determine if the area searched was within the curtilage of the home. The decision of a trial court should be based upon an analysis of all four factors in regard to a particular fact situation. One factor alone is not determinative of the issue whether a given area is within the curtilage or is to be considered an "open field" for purposes of the fourth amendment.
Because we reverse the judgment of the Court of Criminal Appeals, which had affirmed the holding of the trial court for the State on Hergott's motion to suppress, we must next decide how to dispose of the case from this point. Hergott pleaded guilty but reserved his right to appeal the trial court's ruling on his motion to suppress. The caselaw of Alabama allows a criminal defendant to plead guilty and, with consent of the trial court, to reserve the right to appeal adverse pretrial rulings. Sawyer v. State, 456 So. 2d 110 (Ala.Crim.App.1982), rev'd on other grounds, 456 So. 2d 112 (Ala.1983). However, unlike the law in other jurisdictions that allow conditional guilty pleas, the law in Alabama is not clear as to the procedure to be followed when the defendant is successful on his "reserved" appeal.
For example, Rule 11(a)(2) of the Federal Rules of Criminal Procedure provides:
In Sawyer, the Court of Criminal Appeals stated that, although a guilty plea waives all nonjurisdictional defects, "[t]he waiver ... does not apply where the trial court has clearly assured the accused that he may still present a particular nonjurisdictional issue despite his guilty plea." Sawyer, 456 So. 2d at 110. However, the Court of Criminal Appeals held that the record failed to show that Sawyer had reserved her right to appeal. Id. at 111-12. The record was supplemented on application for rehearing before the Court of Criminal Appeals, which denied the application. This Court reversed the Court of Criminal Appeals' holding that Sawyer had not properly reserved her right to appeal regarding the legality of a warrantless search. Ex parte Sawyer, 456 So. 2d 112, 113 (Ala.1983).
Like the petitioner in the instant case, Sawyer, on appeal, argued that the State had not overcome the presumption of unreasonableness that attached to the warrantless search. However, on remand from this Court, the Court of Criminal Appeals, upon holding that "the search conducted of the appellant by the law enforcement officers cannot be justified and likewise, the `fruits' of the search should not be admitted into evidence," reversed and rendered a judgment for Sawyer. Sawyer v. State, 456 So. 2d 114, 117 (Ala.Crim. App.1984). We now overrule the implicit holding of Sawyer that when the State has failed to meet its evidentiary burden at a pretrial suppression hearing, the Court of Criminal Appeals is to render a judgment for the defendant when the defendant has *916 pleaded guilty but reserved his right to appeal the trial court's ruling. To allow such a result would give defendants who plead guilty and reserve the right to appeal the benefit of having judgments rendered in their favor, while defendants who proceed to trial can be retried, when the trial court's adverse ruling at a pretrial hearing is reversed on appeal. Therefore, we adopt that portion of Rule 11(a)(2), Fed.R.Crim.P., that states that upon a ruling by the appellate court for a defendant who has entered a conditional guilty plea, while reserving the right to appeal a particular pretrial ruling, the defendant may withdraw the guilty plea. The State may thereafter proceed to trial. This holding is in accord with the precedents of this Court and the United States Supreme Court that allow a new trial when the reversal on appeal is due to trial error, i.e., wrongful admission or nonadmission of evidence, even though the wrongfully admitted evidence is essential to the State's case.
For example, the Court of Criminal Appeals recently held:
Fortier v. State, 564 So. 2d 1041, 1042-43 (Ala.Crim.App.), cert. denied, 564 So. 2d 1043 (Ala.1990). (Emphasis in original.)
We now hold that the State failed to produce sufficient evidence in opposition to the motion to suppress to overcome the presumption of unreasonableness that attached to the warrantless search of Hergott's property. Therefore, the fruits of that search should not have been admitted. Hergott is allowed to withdraw his guilty plea, and the State may proceed to trial. However, the evidence seized incident to the warrantless search of his property may not be used against him, because the State, when presented with the opportunity to establish its case against him, failed to do so, and under the Double Jeopardy Clause, the State does not get a second chance. The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded for proceedings in accordance with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
STEAGALL, J., concurs in the result.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
This case involves a very important legal questionthe right of a defendant to enter a plea of guilty, reserve the right to appeal the trial court's overruling of his motion to suppress evidence, and then insist that the appellate court was powerless to permit the trial court to supplement the record so that the appellate court could decide the legal issue presented to it by the defendant, whether the seized marijuana was within the "curtilage."
It is undisputed that the petitioner entered a plea of guilty in this case. Ordinarily, a guilty plea waives all nonjurisdictional matters, including a trial court's refusal to suppress evidence, but this Court has, by case law, permitted an exception to that general rule when a defendant specifically reserves his or her right to appeal such a ruling on a motion to suppress, as this petitioner did. Ex parte Sawyer, 456 So. 2d 112 (Ala.1983) (defendant allowed to supplement record on appeal to show that search and seizure issue was reserved when the plea of guilty was entered).
It is undisputed from the record that the petitioner here wanted to follow the Sawyer rule, because the following occurred during the colloquy between the trial court and counsel for the petitioner:
*917 "MR. JAFFE: As I understand it in all of the negotiations that all of us have had with Al, this will be a plea of guilty in accordance with the Sawyer case. It is in fact a guilty plea; but that the motion to suppress that Your Honor will overrule today, all of which that motion to suppress will be overruled and the record on appeal will be the preliminary hearing transcript which we will submit today. And that will be the entire record on appeal factually in regards to the motion to suppress which has been filed and that we have all also talked about since we did not actually have a motion to suppress; so, therefore, we haven't got real specific as far as all of the motionsI think we have all filed.
"MR. MASDON: Yes."
The majority does not address the primary issue raised on the petitionwhether the marijuana plants were within the "curtilage" as a matter of law, but addresses a secondary issue raised by the petitioner, his claim that the prosecution had the burden of proof on his motion to suppress. On this issue, the majority concludes, as follows:
Each of those statements of law, in my opinion, is contrary to a decision of the United States Supreme Court on the burden of proof on a motion to suppress evidence and is contrary to cases from other jurisdictions. Furthermore, the decision frustrates what had been established by the Sawyer case as a convenient method for defendants to plead guilty, but still reserve a legal issue that the defendant thought the trial court had incorrectly decided. The holding that an appellate court cannot remand the cause to the trial court for the taking of additional evidence so that the appellate court can resolve the legal question on the merits, is most unfortunate, especially in this case, where the record on appeal in support of the petitioner's claim was introduced in the trial court by the petitioner, and where the petitioner gave permission to the trial court to view the premises personally, after the cause was remanded.
Today's decision also applies double jeopardy principles to this appeal, although it is clear from the record that the defendant took advantage of the Sawyer procedure that effectively allowed him to appeal from the trial court's ruling on a pre-trial motion to suppress evidence, even though he had entered a plea of guilty to the underlying charge. The Court cites Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), in support of its decision, but Burks involved an appeal after a trial. Here, there has been no trial; therefore, the Burks principle would appear to be totally inapplicable to this case.
Today's decision also states that "[t]he State has the burden to prove that a warrantless search was reasonable." That statement is obviously overbroad and clearly is not applicable to the facts of this case. My research indicates that the law is not settled on the question of whether the State or the defendant has the burden of proof on a motion to suppress evidence that is alleged to have been illegally seized. The subject is extensively treated by LaFave in his treatise Search and Seizure, § 11.2(b), pp. 217-233 (2d ed. 1987). As LaFave points out in that section of the treatise, the jurisdictions vary in their placement of the burden. On the specific question of the placement of the burden of proof involving a motion to suppress, LaFave, in another of his treatises, Criminal Procedure, § 10.3, p. 788 (1987), states:
"At a hearing on a motion to suppress, who has the burden of proof with respect to the matters at issue? To understand the full significance of this inquiry, it is first necessary to recall that the term `burden of proof' actually encompasses two separate burdens. One burden is *918 that of producing evidence, sometimes called the `burden of evidence' or the `burden of going forward.' If the party who has the burden of producing evidence does not meet that burden, the consequence is an adverse ruling on the matter at issue. The other burden is the burden of persuasion, which becomes crucial only if the parties have sustained their respective burdens of producing evidence and only when all the evidence has been introduced. It becomes significant if the trier of fact is in doubt; if he is, then the matter must be resolved against the party with the burden of persuasion.
The disagreements among courts and judges on the proper placement of the burden of proof is graphically shown in Florida v. Riley, 488 U.S. 445, 109 S. Ct. 693, 102 L. Ed. 2d 835 (1989), where the defendant moved to suppress marijuana plants seized pursuant to execution of a search warrant, which was based on aerial surveillance by a police officer in a helicopter 400 feet above the defendant's greenhouse. Five Justices said that the burden of proof was on the defendant to show that the use of helicopters at 400 feet was so rare as to produce a reasonable expectation of privacy. Although the dissenting Justices thought that the burden was on the Government, at least one of them, Justice Blackmun, spelled out his reasons for believing that the burden should have been on the Government. Justice Blackmun said the following:
Although four Justices believed in Riley that the burden of proving that private helicopters rarely fly over curtilages at an altitude of 400 feet was on the prosecution, at least one of them was of the opinion *919 that, on a motion to suppress, the case should be remanded to permit the prosecution to establish that proof. Here, the Court of Criminal Appeals essentially did what Justice Blackmun suggested in his dissenting opinion in Riley. He said that he would remand the case "to allow the prosecution an opportunity to meet this burden."
In my research of the question, I also found that the Supreme Court of Georgia, with one justice dissenting, followed the same procedure followed by the Court of Criminal Appeals in this case. In Atkins v. State, 254 Ga. 641, 331 S.E.2d 597 (1985), the Georgia court held that "two crucial elements of the test of a valid consent search were not established," but that a reversal was not required. The Court "remanded the case to [the intermediate court] with direction that it be remanded to the trial court for a hearing on the validity of the search." One justice vigorously dissented in Atkins and suggested, as the majority does here, that the principle of double jeopardy applied.
Based on the above, I do not believe that the burden of proof should have been on the State here to show that the petitioner did not have a reasonable expectation of privacy. See Riley, 488 U.S. 445, 109 S. Ct. 693.
Even assuming, however, that the burden was on the State in this case, the Court of Criminal Appeals did not err in remanding the cause to the trial court to allow the State to supplement the record to prove that the petitioner had no reasonable expectation of privacy here. The State, after remand, produced sufficient evidence to show that the marijuana plants were not located within the "curtilage" and thereby proved that the petitioner did not have any reasonable expectation of privacy at the place where the marijuana plants were seized. At most, I would allow the defendant to withdraw his plea of guilty and go to trial on the charge, if that were his desire. | June 14, 1991 |
a2dc0fd8-45f0-44dd-b922-828d9a643fcf | Ex Parte East | 584 So. 2d 496 | 1900849 | Alabama | Alabama Supreme Court | 584 So. 2d 496 (1991)
Ex parte William David EAST.
(Re STATE of Alabama v. William David EAST).
1900849.
Supreme Court of Alabama.
June 28, 1991.
*497 William N. Clark and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for respondent.
HORNSBY, Chief Justice.
This is a petition for a writ of mandamus to the Circuit Court of Blount County ordering it to vacate its November 27, 1990, order denying a motion to quash an indictment against the petitioner, William David East, and to enter an order quashing the indictment. We deny the writ.
East was indicted in Blount County, Alabama, on four counts of conspiring with John Albert DeCastro Day to violate the Alabama Securities Act, Ala.Code 1975, § 8-6-17(1) and (3). The indictment charged as follows:
On February 3, 1990, East made a motion in the Circuit Court of Blount County to quash the indictment against him on the grounds that that court was without jurisdiction in the case because, he argued, none of the alleged acts could have occurred in Blount County. East said that all of the alleged transactions could have occurred only in Jefferson County, Alabama, or in New York City, New York, where the options were actually traded. East cited Alabama Constitution of 1901, Art. I, § 6, and Ala.Code 1975, § 15-2-2, in support of his argument that the trial court, i.e., the *498 Blount Circuit Court, was without jurisdiction. East further argued that venue was improper because, he said, he had never been to Blount County and had never contacted any of the alleged victims of the fraud scheme in Blount County.
On November 27, 1990, after a hearing on the matter, the trial court denied East's motion to quash the indictment. On January 23, 1991, East petitioned the Court of Criminal Appeals for a writ of mandamus ordering the trial court to vacate its November 27, 1990, order and to enter an order quashing the indictment against East. The Court of Criminal appeals denied East's petition, and East now petitions this Court for a writ of mandamus on the same grounds seeking the same relief.
East argues that the trial court is without jurisdiction because, he says, none of the alleged acts could have occurred in Blount County. East says that under Alabama Constitution of 1901, Art. I, § 6, and Ala.Code 1975, § 15-2-2, venue is proper only in the county where the alleged offense was committed, and that "in a criminal prosecution venue must be properly laid to give the trial court jurisdiction."
In its order, the trial court stated:
Mandamus is an 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) lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. C & G Development v. Planning Comm'n of the City of Homewood, 548 So. 2d 451 (Ala.1989).
Proof of venue is jurisdictional to the extent that without such proof, where the question is properly raised, a conviction cannot be sustained on appeal. Lewis v. State, 461 So. 2d 9, 11 (Ala.1984); compare Ala.Code 1975, § 12-11-30(2) (circuit courts have exclusive original jurisdiction over all felony prosecutions and lesser included misdemeanors), and § 15-2-2 (venue of all public offenses is in the county where the offense was committed). The burden of proof regarding venue is on the state, and the state may establish venue by circumstantial evidence. Willcutt v. State, 284 Ala. 547, 226 So. 2d 328 (1969). When there is no evidence of venue or the evidence on the issue is undisputed, it is a question for the court, but when there is conflicting evidence of venue, it is a question for the jury. Willcutt, supra.
In this case, the record reveals a factual dispute as to venue. Therefore, the issue of venue is one for the jury. Consequently, East has no clear right to have the indictment against him quashed, and the petition for writ of mandamus is due to be denied. C & G Development, supra.
Furthermore, East was indicted for conspiring with Day to violate § 8-6-17 (see Ex parte Day, 584 So. 2d 493 (Ala.1991)). In Ex parte Day, this Court held that venue could be proper in Blount County as to defendant Day. The state argues that if venue is proper in Blount County in Day's trial, then venue is proper in Blount County for East's trial because Day and East were co-conspirators.
The law looks upon a conspirator, or one who aids an actual participant in the completed offense, as an actual participant in the completed offense. In other words, such a person is considered a principal; thus, venue for a conspirator's trial is proper where it is proper for the principal's trial. Ex parte Williams, 383 So. 2d 564, 565 (Ala.), cert. denied, 449 U.S. 995, 101 S. Ct. 534, 66 L. Ed. 2d 293 (1980); Buffo v. Graddick, 742 F.2d 592, 598 (11th Cir. 1984). It follows that because East was indicted for conspiring with Day (the principal), venue is proper for East's trial where it would be proper for Day's trial. Accordingly, *499 we deny East's petition for a writ of mandamus.
WRIT DENIED.
ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur. | June 28, 1991 |
29ddf24e-5202-495e-9dad-8821234681b3 | Gordon v. State | 587 So. 2d 434 | N/A | Alabama | Alabama Supreme Court | 587 So. 2d 434 (1991)
Ex parte Charles Wayne GORDON.
Re Charles Wayne Gordon
v.
State.
89-1562.
Supreme Court of Alabama.
June 14, 1991.
*435 Joe N. Lampley, Huntsville, for petitioner.
Don Siegelman, Atty. Gen., and Rosa Hamlett Davis, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
The Court of Criminal Appeals held, 587 So. 2d 427, that "Under Batson [v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),] and numerous Alabama decisions following Batson, a defendant, in order to establish a prima facie Equal Protection Clause violation, `must show that he is a member of a cognizable racial group... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race.' Batson, 476 U.S. at 96 [106 S. Ct. at 1723]. See also, e.g., Turner v. State, 521 So. 2d 93 (Ala.Cr.App.1987); Swain v. State, 504 So. 2d 347 (Ala.Cr.App.1986)." The court also held as follows:
587 So. 2d at 428.
The Supreme Court of the United States in Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), held that white defendants do have standing to challenge the state's use of peremptory challenges to remove black jurors from a petit jury.
The Court has today given a thorough examination of this issue in light of Powers and in light of Alabama law. See Ex parte Bird, [Ms. 89-1061, June 14, 1991], 1991 WL 114762 (Ala.1991).[*]
The judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court for further consideration in light of the holding in Powers v. Ohio and Ex parte Bird.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, STEAGALL and INGRAM, JJ., concurs.
[*] Reporter of Decisions' note: The June 14, 1991, opinion was withdrawn and a new opinion issued on December 6, 1991. | June 14, 1991 |
d64a83bf-5d22-498c-b630-4937dc99b38f | Harper v. Smith | 582 So. 2d 1089 | 1900573 | Alabama | Alabama Supreme Court | 582 So. 2d 1089 (1991)
Alice Earle HARPER
v.
James A. SMITH, Sr., et al.
1900573.
Supreme Court of Alabama.
June 14, 1991.
David F. Steele, Monroeville, for appellant.
J. Milton Coxwell, Jr., Monroeville, for appellees.
STEAGALL, Justice.
Alice Earle Harper appeals from a judgment of the Monroe Circuit Court declaring that James A. Smith, Sr., Daniel B. Smith, and David N. Smith and their predecessors had acquired title to certain property located in Monroe County by "adverse possession and prescription."
The following facts are undisputed: In November 1932, Julia S. Crist executed a conveyance of several properties to A.G. Smith, one of which was the northern half of the northwest quarter of section 26, township 7 north, range 8 east. The deed also specifies that this particular parcel includes that property "lying north of Walkers Creek." In February 1933, Julia S. Crist executed a conveyance of several properties to J.R. Eddins, one of which was the southern half of the northwest quarter *1090 of section 26, township 7 north, range 8 east. The deed specifies that this particular parcel includes that property "lying south of Walker's Creek." In 1941, an agreement was filed in the probate court of Monroe County which conveys properties owned by J.R. Eddins's estate to Bertha Lee Floyd and Charles Floyd, as trustees for Charles R. Floyd and Alice Earle Floyd (Alice Earle Harper). In 1962, an agreement was filed in the probate court of Monroe County which conveys properties held by Bertha Lee Floyd and Charles Floyd to Charles R. Floyd and Alice Earle Floyd.
A problem with A.G. Smith's property description was brought to his and Harper's attention in the early 1980s by a Sun Oil Company representative. In 1981, A.G. Smith filed an affidavit in the Monroe County Probate Court, claiming that because of a "mutual mistake" by him and Julia Crist in 1932, the following property description was omitted from the 1932 deed: "All that part of the S½ of the NW1/4 of Section 26, Township 7 North, Range 8 East, lying East and North of Walker's Creek." Smith went on to declare that he had been in continuous possession of this property since 1932 and that there had been no adverse claim of ownership by anyone. In 1982, A.G. Smith conveyed the property to his three sons, James, Daniel, and David by way of quitclaim deed. The 1982 deed contained the same property description as that contained in A.G. Smith's 1981 affidavit.
Walker's Creek appears to form the boundary between the Smiths' property and Harper's property, which is at the center of the dispute. The disputed parcel consists of a channel lying within a "wide, swampy area with beaver ponds and low areas." The disputed parcel consists of approximately 17 acres and contains about 6-8 acres of "merchantable timber."
In 1987, Harper filed an action to quiet title to the 17-acre parcel and sought to recover damages for trespass and for the cutting and removing of timber from the property. Harper contends that the original deed from Crist to Eddins included the disputed parcel and claims that on many occasions Eddins told her that the "property didn't stop at [Walker's] Creek. It goes all of the way to Barto Andress' land." Harper claims that although there is a fence on the southern side of Walker's Creek, it is only because of "the high waters washing the creek out and causing [her] to lose cattle." Harper also claims that she has pastured cattle on the property, maintained fences along the boundary lines of the property, and has been "generally on the land dating back to the 1950s."
In 1990, after commencing the action to quiet title, Harper obtained a quitclaim deed from all heirs of the J.R. Eddins estate by virtue of the conveyance from Julia Crist in 1933. The quitclaim deed contained no description of the property.
The Smiths deny Harper's claims and assert that they have superior title to the property acquired by "adverse possession and prescription." The Smiths support their claim with evidence that they have harvested timber off the disputed property on three occasions, once in the 1950s and twice in the 1980s. The Smiths allege that they have for years hunted game on the property and that they sold smilax plants, magnolia trees, and evergreen trees off the property in the 1940s, 1950s, and 1960s. They also state that they conducted land-clearing and tree-planting operations on the property in the 1980s. The Smiths also claim that neither Harper nor her predecessors had ever had the disputed property assessed for tax purposes but that A.G. Smith made the sole tax assessment of the disputed property in 1982.
After a hearing on the matter, the trial court ruled that the Smiths had acquired title to the disputed property by "adverse possession and prescription." The trial court's order contained the following findings of fact:
Our review of the trial court's ruling in this matter is governed by the familiar standard of the ore tenus rule. Thus, a judgment establishing a boundary line between coterminous landowners based on evidence submitted ore tenus is presumed correct and need only be fairly supported by credible evidence. Tidwell v. Strickler, 457 So. 2d 365 (Ala.1984). If so supported, the judgment of the trial court will not be disturbed on appeal unless it is palpably wrong or manifestly unjust. Charles Israel Chevrolet, Inc. v. Walter E. Heller & Co., 476 So. 2d 71, 73 (Ala.1985). See, also, Knox Kershaw, Inc. v. Kershaw, 552 So. 2d 126 (Ala.1989), and Tidwell v. Strickler, supra.
In Alabama there are basically two types of adverse possession: statutory adverse possession and adverse possession by prescription. Both require common elements of open, notorious, hostile, continuous, and exclusive possession under a claim of right. In addition, statutory adverse possession requires 10 years of actual possession and requires that the possessor have held under color of title, have paid the taxes on the property for 10 years, or have derived his title by descent or devise. Ala. Code 1975, § 6-5-200. Tidwell v. Strickler, supra; Downey v. North Alabama Mineral Development Co., 420 So. 2d 68 (Ala.1982). Adverse possession by prescription requires possession characterized by all five of the standard elements, i.e., *1092 that the possession be open, notorious, hostile, continuous, and exclusive, and that the possession be under a claim of right for a period of 20 years.
The record provides substantial evidence of adverse possession by prescription. However, we note that the trial court stated its ruling as "adverse possession and prescription," failing to designate which type of adverse possession upon which the Smiths' claim prevailed. Nonetheless, because the record provides substantial evidence to support a successful claim under the theory of adverse possession by prescription, we will not disturb the ruling of the trial court even if its reasons for arriving at that result are incorrect. Davison v. Lowery, 526 So. 2d 2 (Ala.1988), cert. denied, 488 U.S. 854, 109 S. Ct. 140, 102 L. Ed. 2d 113 (1988); City of Montgomery v. Couturier, 373 So. 2d 625 (Ala. 1979).
Therefore, based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
ALMON, ADAMS, KENNEDY and INGRAM, JJ., concur. | June 14, 1991 |
b63ce245-7664-4017-99e0-c4a16a3ef818 | RAY SUMLIN CONST. CO., INC. v. Moore | 583 So. 2d 1320 | 1900040 | Alabama | Alabama Supreme Court | 583 So. 2d 1320 (1991)
RAY SUMLIN CONSTRUCTION COMPANY, INC.
v.
Andy MOORE and Zeatherine Moore.
1900040.
Supreme Court of Alabama.
June 21, 1991.
*1321 Mack B. Binion and Donna L. Ward of Briskman & Binion, Mobile, for appellant.
Richard F. Pate and J. Wesley Sowell of Richard F. Pate, P.C., Mobile, for appellees.
KENNEDY, Justice.
Andy and Zeatherine Moore filed an action against Ray Sumlin Construction Company, Inc. ("Sumlin"), seeking damages for a personal injury sustained by Mr. Moore as a result of his being struck in the head by a piece of lumber. The jury returned a verdict for Sumlin, and the trial court entered judgment on the verdict. The Moores, in their motion for a judgment notwithstanding the verdict or in the alternative for a new trial, contended that they were entitled to a new trial because Sumlin had failed to provide race-neutral reasons for its peremptory strikes of blacks from the venire.
On appeal, pursuant to the holdings in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), Thomas v. Diversified Contractors, Inc., 551 So. 2d 343 (Ala.1989), and their progeny,[1] we remanded the cause for the trial court to conduct a hearing to determine whether Sumlin's strikes comported with the principles announced in Batson, Diversified Contractors, and their progeny. Moore v. Ray Sumlin Construction Co., 570 So. 2d 573 (Ala.1990). On that remand, the trial court granted the Moores' motion for new trial, based on their Batson objections. Sumlin now appeals the trial court's order granting the new trial.
Ex parte Branch, 526 So. 2d 609 (Ala. 1987), contains the most comprehensive discussion of how Alabama courts deal with Batson issues, and we refer the bench and bar to that case for a thorough explanation of those issues. See also Edmonson v. Leesville Concrete Co., ___ U.S. ___, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991) (Batson applies to civil cases); Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); Thomas v. Diversified Contractors, Inc., 578 So. 2d 1254 (Ala.1991) (this opinion gives our judgment after the order of remand stated in Thomas v. Diversified Contractors, Inc., 551 So. 2d 343 (Ala. 1989)); Harrell v. State, 555 So. 2d 263 (Ala.1989).
We note that when the Moores challenged Sumlin's peremptory strikes under Batson, they had the initial burden of persuasion as the moving party. Branch, at 622. If they established a prima facie case, then there arose a presumption that the peremptory challenges were used to discriminate against black veniremembers. See Branch, at 623. Sumlin then would have had the burden of articulating clear, specific, and legitimate reasons for the strikesreasons that related to the particular case to be tried and that were nondiscriminatory. Id. If Sumlin offered nondiscriminatory reasons for striking the black veniremembers, the Moores would have been entitled to offer evidence indicating that the reasons or explanations given were merely a sham or pretext. Branch, at 624. One example of evidence that can be used to show sham or pretext is "disparate treatment" of jurors; for example, the Moores could show that Sumlin did not strike white persons with characteristics that were the same as, or that were similar to, the characteristics of the black persons that Sumlin struck. Id.
In regard to proving their prima facie case, the Moores indicated that they were black. Furthermore, they pointed out that the venire consisted of 28 people, from which a 12-person jury was chosen. Nine of the 28 people were black. Each side was given 8 peremptory strikes. Sumlin used its 8 peremptory strikes to remove 8 of the nine black veniremembers. That is sufficient evidence to prove the Moores' prima facie case of discrimination, Branch, at 623-24; proof of that prima facie case imposed on Sumlin the burden to provide *1322 nondiscriminatory reasons for its strikes. Id.
Sumlin stated to the trial court that because of the "difficulty" of the case and because the Moores might not be entitled to recover any money, Sumlin, in using its strikes, was seeking a "mature" jury. To be sure, in certain cases, age may be a sufficient reason to defeat the prima facie case of discrimination. Harrell v. State, at 168, n. 1. Furthermore, Sumlin argues, in striking veniremembers it was seeking to exclude veniremembers employed in "unskilled positions," because, Sumlin says, as jurors such persons might unduly sympathize with Mr. Moore, who also had been so employed throughout his life. We do not determine whether these reasons were clear and specific reasons that were related to the particular case to be tried, Branch, at 623, because we resolve the case on other grounds.
Sumlin struck the following black veniremembers:
The following people served as jurors in the case:
For the most part, Sumlin's strikes of black veniremembers seem consistent with the purportedly race-neutral reasons given to justify those strikes. Even Sumlin's strike of Charles White, although he was certainly "mature" at 77 years of age, might be justified pursuant to its second allegedly race-neutral reason, because White was a laborer retired from an "unskilled position."
Nevertheless, Sumlin's argument that it struck the black veniremembers for legitimate race-neutral reasons does not withstand scrutiny, because of the disparate treatment that it accorded white veniremembers. Branch, at 623-24. Seven of *1323 the 8 black veniremembers that were struck were 21-42 years old; 7 of the 11 white jury members were between the same ages. Although at least 7 and possibly all 8 of the black veniremembers that were struck were employed in apparently "unskilled positions," Sumlin did not strike white veniremembers who also worked in apparently "unskilled positions"; for example, Sumlin did not strike a white person who was employed as a deckhand for a towboat operator, a white "signman" for a billboard company, a white driver for a laboratory company, a white employee in the receiving department of a packing company, a white newspaper deliverer, and a white student. No doubt, the student was 69 years old and thus "mature", but 77-year-old Charles White, a retired custodian, was struck.
The disparate treatment pointed out here provided the trial court a proper basis for holding that Sumlin had failed to provide legitimate race-neutral reasons, Branch, at 623, for its strikes of several black veniremembers and, accordingly, for ordering a new trial.
The new trial order is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] Batson holds, in general, that the Equal Protection Clause of the 14th Amendment to the United States Constitution forbids a prosecutor from striking jurors because of their race. Diversified Contractors applies that holding to civil cases in Alabama state courts. | June 21, 1991 |
166ec97e-cbf1-467b-b0a7-81be991dca73 | Gardner v. Cumis Ins. Soc., Inc. | 582 So. 2d 1094 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 1094 (1991)
Phillip Eugene GARDNER
v.
CUMIS INSURANCE SOCIETY, INC.
89-1756.
Supreme Court of Alabama.
June 21, 1991.
*1095 Richard W. Bell of Richard W. Bell & Associates, P.C., Pelham, for appellant.
Lewis W. Page and R. Alan Deer of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
KENNEDY, Justice.
This is an appeal from a summary judgment in favor of the defendant, Cumis Insurance Society, Inc.
The issue is whether the insurance policy issued to the plaintiff's employer covered attorney fees incurred by the plaintiff.
The plaintiff, Phillip Eugene Gardner, was employed as a collections officer for the Anniston Ordnance Depot Federal Credit Union (hereinafter "AOD Credit Union") from 1981 to 1984. Gardner collected money owed on past-due accounts, repossessed automobiles and mobile homes, and displayed the repossessed automobiles and mobile homes for sale.
On July 31, 1987, Gardner was indicted for violating 18 U.S.C. §§ 371 and 1006 (1948), involving conspiracy and defrauding a federal credit union, respectively. The indictment charged that Gardner, while he was an employee of the credit union, received money, or "kickbacks," on loans obtained from the credit union. Specifically, the prosecution alleged that a customer would come to the credit union to view repossessed mobile homes, Gardner would "steer" the customer to Beck's Mobile Homes. If the customer then purchased a mobile home from Beck's and financed it through the AOD Credit Union, Gardner received a monetary kickback from his immediate supervisor, who was also involved in the kickback scheme. Gardner was tried and acquitted of the criminal charges against him on October 7, 1987.
On December 9, 1987, Gardner's attorney requested information from the AOD Credit Union concerning any policies that would provide coverage for attorney fees and court costs for officers of the credit union. On December 30, 1987, Gardner made a claim for attorney fees to Cumis Insurance Society, which had issued a policy to the AOD Credit Union. Cumis denied coverage. Gardner filed a declaratory judgment action on October 27, 1988. Cumis filed a motion to dismiss, which was subsequently denied. Cumis then filed a motion for summary judgment on June 20, 1990. After a hearing, the trial court entered a summary judgment on July 13, 1990. The trial court stated that "the activities of [Gardner] were excluded from the coverage of the Cumis Insurance Society, Inc. policy." We agree with the trial court; therefore, we affirm.
The insurance policy provided in pertinent part as follows:
Absent public policy considerations that dictate a contrary result, courts *1096 will not, in order to create a new contract for the parties, ignore express provisions of a policy, including exclusionary clauses or terms limiting the insurance company's liability. Johnson v. Allstate Ins. Co., 505 So. 2d 362 (Ala.1987). Where there is no ambiguity in the terms of an insurance contract as written, express provisions of the policy, including any exclusions, cannot be defeated by making a new contract for the parties. Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548 (Ala.1985). Although insurance policies containing ambiguities are to be construed in favor of the insured, it is imperative that courts enforce unambiguous policies as written. Best v. Auto-Owners Ins. Co., 540 So. 2d 1381 (Ala.1989).
In applying these standards to the case at bar, we find the policy and the exclusions to be unambiguous. The exclusion clause in the policy clearly prohibits Cumis from paying Gardner's attorney fees. Exclusion clauses are desired to prevent the indemnification of a wrongdoer. Armstrong v. Security Ins. Group, 292 Ala. 27, 288 So. 2d 134 (1973). Gardner admitted that he accepted the kickbacks from his supervisor. We note that Gardner also admitted that he knew it was against the credit union's rules to take the kickbacks.
Gardner, as a credit union officer, violated established principal and agency law. Gardner received a personal profit to which he was not legally entitled, even though he was acquitted of the criminal charges.[1] The principal-agent relationship is fiduciary by nature and imposes a duty of loyalty, good faith, and fair dealing on the part of the agent. Naviera Despina, Inc. v. Cooper Shipping Co., 676 F. Supp. 1134 (S.D.Ala.1987). "[An] agent may not [t]raffic with the subject-matter of his agency, without the consent of his principal, so as to reap the profit for himself." American Armed Services Underwriters, Inc. v. Atlas Ins. Co., 268 Ala. 637, 645, 108 So. 2d 687 (1958) (citations omitted).
The summary judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] Gardner's supervisor and the owner of Beck's Mobile Homes were convicted in the kickback scheme. | June 21, 1991 |
3db0cb72-b3c3-4cf4-9a22-33c0ffd86894 | Bridges v. Clements | 580 So. 2d 1346 | 1900281 | Alabama | Alabama Supreme Court | 580 So. 2d 1346 (1991)
Michael BRIDGES, et al.
v.
Roger Keith CLEMENTS.
1900281.
Supreme Court of Alabama.
May 31, 1991.
*1347 Lynn Baxley Ault and James L. Clark of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
Nat Bryan of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellee.
HOUSTON, Justice.
This is the second time that these parties have been before this Court.
Roger Keith Clements sued the defendants, Michael Bridges, Ed Hornbuckle, and Marvin Walker, under Ala.Code 1975, § 25-5-11, for damages based on personal injuries sustained at work. He alleged that the defendants, who were supervisory employees of his employer, National Can Corporation, had negligently failed to provide him with a reasonably safe work environment, and he sought damages for lost wages, pain and suffering, and medical expenses. The defendants raised contributory negligence as an affirmative defense, but did not dispute the amount of medical expenses claimed by Clements.[1] The jury returned a verdict for Clements, but awarded "court costs only" against the defendants. Stating that the legal effect of the verdict was a decision against Clements, the trial court entered a judgment for the defendants. Clements appealed. We reversed the judgment on the ground that the verdict was inconsistent and remanded the case for a new trial. See Clements v. Lanley Heat Processing Equipment, 548 So. 2d 1345 (Ala.1989). On retrial, Clements again sought damages for lost wages, pain and suffering, and medical expenses. The defendants again raised contributory negligence as a defense. The jury rejected the contributory negligence defense and awarded Clements $71,535. The trial court entered a judgment on that verdict. The defendants appealed. We affirm.
The following issues were presented for our review:
With regard to the first issue, the defendants contend that the trial court erred in denying their motions for a directed verdict and judgment notwithstanding the verdict. They argue that the undisputed evidence shows that Clements was guilty of contributory negligence. Clements contends, however, that a fact question for the jury was presented as to whether his injury was the result of his own negligence. We agree.
Viewing the evidence in the light most favorable to Clements, as our standard of review requires us to view it, Lowder Realty Co. v. Sabry, 542 So. 2d 1240 (Ala.1989), we conclude that the jury could have found that while attempting to clean one of his employer's 11 large industrial ovens, which was 153 feet long, 45 inches wide, and 55 inches high, Clements stepped through an air vent in the oven floor and injured his leg; that Clements was aware of the air vent, having previously worked on his employer's ovens and having worked on the particular oven in which he was injured for several days preceding his injury; that cleaning ovens was not an everyday job at his employer's facility; that Clements's regular duties did not include cleaning ovens; that the inside of the oven in which Clements was injured was cramped, dusty, and dirty; that it was difficult for a man to maneuver inside the oven; that the inside of the oven, particularly the floor, was poorly illuminated; that Clements had never been required to actually walk on the floor of an oven because, on all previous occasions on which he had worked inside an oven, he had been allowed to work on a pallet suspended above the oven floor by chains, where he was not exposed to the danger created by the vents; and that Clements was given no warnings or instructions concerning the danger presented by the vent.
*1348 In order to establish contributory negligence, there must be a finding that the party charged had knowledge of the dangerous condition; that he appreciated the danger under the surrounding circumstances; and that, failing to exercise reasonable care, he placed himself in the way of danger. Knight v. Seale, 530 So. 2d 821 (Ala.1988). Although contributory negligence may be found to exist as a matter of law when the evidence is such that all reasonable men must reach the same conclusion, the question of the existence of contributory negligence is normally one for the jury. Knight v. Seale.
Although the undisputed evidence in the present case shows that Clements was aware of the vent in the oven floor and that he understood that he could be injured if he stepped through it, a fact question existed as to whether Clements's act of stepping through the vent was the result of a failure to exercise reasonable care under the circumstances. In Duffy v. Bel Air Corp., 481 So. 2d 872, 874 (Ala.1985), this Court, citing City of Birmingham v. Edwards, 201 Ala. 251, 255, 77 So. 841, 845 (1918), noted that "where a plaintiff is aware of a defect, contributory negligence in not remembering and avoiding the danger will be presumed in the absence of a satisfactory excuse for forgetting." Whether it was reasonable under the circumstances for Clements to forget about the vent in the oven floor and, thus, to fail to avoid the danger that it presented, was a question for the jury. The evidence shows that the oven was "cave-like" and poorly illuminated. The evidence also shows that cleaning ovens was not one of Clements's regular duties. The jury obviously found that Clements had a "satisfactory excuse for forgetting" about the vent.
With regard to the second issue, the defendants contend that the amount of the verdict, considered in light of the evidence presented, indicates that the jury's award was the result of "bias, passion, prejudice, corruption, or other improper motive ... or, at the least, that [it] was produced by a mistake, inadvertence, or failure to comprehend and appreciate the issues."[2] Conceding that Clements proved $8,682.36 in medical expenses and $12,000 in lost wages and that he had endured pain and suffering as a result of his injury, the defendants argue that the jury's award of $50,852.64 for Clements's pain and suffering was too much and, therefore, that the verdict was excessive. The defendants insist that the maximum amount that should have been awarded to Clements was $29,364.72, representing $8,682.36 in medical expenses, $12,000 in lost wages, and $8,682.36 for pain and suffering.
Clements argues that the evidence fully supports the jury's award for pain and suffering and, therefore, that the judgment is due to be affirmed. Again, we must agree.
Initially, we note that the defendants urge us to remand this case for a hearing in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), because the trial court failed to state its reasons for not finding the verdict excessive. However, as we noted in Lowder Realty Co. v. Sabry, supra, it was never our intention to automatically remand every case in which excessiveness is raised as an issue. Where the record on appeal is sufficiently clear for us to review the excessiveness issue, as the record is in this case, a Hammond remand is not necessary.
The evidence, viewed in the light most favorable to Clements, shows that, at the *1349 time of the trial, Clements was 33 years old; that he had undergone three arthroscopic procedures on his leg; that he had participated in a rehabilitation program; that his injury had resulted in a five percent permanent partial physical impairment to his leg; and that he probably would continue to experience some measure of pain or discomfort for the remainder of his life. A mortality table admitted into evidence showed that Clements had a life expectancy of 40.46 years. Clements's attorney suggested to the jury that $12,000 to $15,000 would be an appropriate award for Clements's past pain and suffering and that an award equal to $1,000 per year would be reasonable for Clements's future discomfort. It appears that the jury basically awarded Clements the amount he requested, which, we note, translates into an award of approximately $2.70 per day for future pain and suffering. Because the interest of the victim must always be kept foremost in mind when reviewing the propriety of a compensatory damages award, Wilson v. Dukona Corp., N.V., 547 So. 2d 70 (Ala.1989); Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), we cannot say that the jury's award for pain and suffering (past or future) exceeds an amount that will reasonably compensate Clements.
For the foregoing reasons, the judgment is affirmed.[3]
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] We note that Clements was injured on May 3, 1984. The applicability of the co-employee immunity defense under § 25-5-11 is not before us. See Code Commissioner's note to § 25-5-11 (1990 Cumulative Supplement).
[2] The defendants argue that the admission into evidence of a leg brace used by Clements had such an emotional impact on the jury as to suggest that the verdict was the result of "sympathy, bias, and prejudice." Prosthetic devices are admissible into evidence in the discretion of the trial court, provided that they are not unduly inflamatory or offensive, and that they do not unjustly arouse sympathy for or prejudice against a party. Brown v. Billy Marlar Chevrolet, Inc., 381 So. 2d 191 (Ala.1980). The record shows that two leg braces were actually admitted into evidence, but that the defendants objected to the admission of only one of them. From our review of the record, we find no abuse of discretion on the trial court's part in admitting into evidence the leg brace objected to.
[3] Footnote expressing the personal views of Justice Houston:
In my separate opinion on the first appeal of this case, in which I concurred in the judgment of reversal, but dissented from the grant of an unconditional new trial, I discussed the history of additur and concluded by saying:
"To paraphrase J. Hoffman and W. Schroeder, Burdens of Proof, 38 Ala.L.Rev. 31, 36 (1986), when all attempts to quantify or describe what is an excessive or an inadequate verdict fail, as they ultimately do, the court must depend upon its own life experiences and its willingness to uphold a verdict with which it disagrees, without conditionally granting a new trial unless the plaintiff accepts a lower verdict or conditionally granting a new trial unless the defendant accepts a higher verdict, if the jury's verdict is within the bounds of reason. If the jury verdict exceeds the bounds of reason by being too great or too small, and a defendant files a motion for a new trial on the ground of excessive damages or the plaintiff files a motion for a new trial on the ground of inadequate damages, then I would hold that the trial court may grant a new trial conditioned upon the refusal to accept a remittitur or an additur.
"In keeping with the right to a trial by jury, when there is an excessive verdict, the trial court should remit only that portion of the verdict that exceeds the maximum amount a reasonable jury could have awarded in the case, as perceived by the judicial mind; and, when there is an inadequate verdict, the trial court should add only that amount to the verdict that will bring it within the minimum bounds of reason as perceived by the judicial mind. I would hold that a new trial must be granted unless the remittitur is accepted by the plaintiff or plaintiffs in whose favor the jury assessed the damages; or unless the additur is accepted by the defendant or defendants against whom the damages were assessed.
"In this case, I find uncontroverted evidence of reasonable and necessary doctors' bills of $6,655.90 to treat Clements's injuries and that the reasonable and necessary hospital expenses incurred as a result of these injuries were $2,026.46. Therefore, the uncontroverted evidence of special damages was $8,682.36. I have read the testimony and am persuaded that Clements sustained pain and suffering. I am persuaded that the minimum amount that it would take to `impress [my] judicial mind' that the verdict was not inadequate to compensate for pain and suffering, under the facts in this case, is an amount equal to the amount of the reasonable and necessary doctors' bills and hospital expenses incurred as a result of these injuries $8,682.36."
548 So. 2d at 1351-52. (Emphasis added.)
Relying on the above language, the defendants have on this appeal urged the Court to adopt my "formula" and hold that $8,682.36 was the maximum amount of damages that Clements could recover for his pain and suffering. However, I made it very clear in my opinion on the first appeal that $8,682.36 was the minimum amount that I thought it would take to compensate Clements for his pain and suffering. In no way did I suggest that there should be a "cap" on damages for Clements's pain and suffering in this case (i.e., that the next jury would not be justified under the evidence in awarding more than $8,682.36 to Clements for his pain and suffering). | May 31, 1991 |
22a18347-d806-46a8-ab72-62df6eddc3c6 | Danford v. Arnold | 582 So. 2d 545 | 1900825 | Alabama | Alabama Supreme Court | 582 So. 2d 545 (1991)
Mary Alice DANFORD, et al.
v.
Doug ARNOLD and Howell Plywood Corporation.
1900825.
Supreme Court of Alabama.
May 31, 1991.
*546 Thomas D. Motley, Dothan, for appellants.
Peter A. McInish and Huey D. McInish of Lee & McInish, Dothan, for appellees.
INGRAM, Justice.
Mary Alice Danford and her daughter, Denise, sued Doug Arnold, William Nichols, and Howell Plywood Corporation, alleging that they had negligently or wantonly caused or allowed an accumulation of mud on a Houston County road during logging operations being conducted on property adjacent to the road. The Danfords alleged in their complaint that the mud on the roadway created a hazardous condition that caused them to have an automobile accident. The Danfords sought compensation for property damage and personal injuries that they allegedly sustained in the accident.
The logging operations were taking place on property owned by Arnold. Howell Plywood had purchased the timber from Arnold through a contract negotiated by Nichols, an employee of Howell Plywood. The timber was being cut for Howell Plywood by Jackie Smith, d/b/a Smith Pulpwood Company, which was not named as a party in the suit. Before trial, Nichols was dismissed as a defendant by stipulation of the parties. The suit, therefore, proceeded to trial with Arnold and Howell Plywood as the remaining defendants. At the close of the Danfords' evidence, the trial court granted Arnold's and Howell Plywood's motions for a directed verdict. The Danfords appealed from the judgment entered on the directed verdict.
The sole issue raised on appeal is whether the trial court erred in directing a verdict for Arnold and Howell Plywood. The Danfords contend that the directed verdict was improper, because, they argue, they offered substantial evidence to show negligence or wantonness by both Arnold and Howell Plywood.
The office of a directed verdict motion is to test the sufficiency of the opponent's evidence. Coburn v. American Liberty Ins. Co., 341 So. 2d 717 (Ala.1977). In ruling on a motion for a directed verdict, a trial court must view the entire evidence in the light most favorable to the nonmoving party. Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala.1981). The party seeking a directed verdict must demonstrate that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Bazzel v. Pine Plaza Joint Venture, 491 So. 2d 910 (Ala.1986).
Because this action was filed after June 11, 1987, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12; Watters v. Lawrence County, 551 So. 2d 1011 (Ala. 1989). Thus, a directed verdict is proper when the claimant has failed to present substantial evidence as to one or more elements of his cause of action. 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 (Ala.1989). Therefore, in order for the Danfords to defeat the motions for directed verdict filed by Arnold and Howell Plywood, the Danfords were required to present substantial evidence that there was a duty owed to them by the defendants, that that duty was breached, and that the breach of that duty was the proximate cause of their injury. See Jones v. Newton, 454 So. 2d 1345 (Ala.1984).
The record shows that Arnold's only involvement in the circumstances surrounding this case was that he sold the timber on his property to Howell Plywood, pursuant to a contract negotiated with Howell Plywood through Nichols. The undisputed testimony showed that Arnold could recall visiting the job site on one occasion and *547 that he never observed any mud on the road from the logging operations. There is no evidence in the record upon which a jury could find any duty owed by Arnold to the Danfords, much less a breach of any duty by Arnold that resulted in injury to the Danfords. We find no error by the trial court in directing a verdict for Arnold.
With regard to Howell Plywood, the Danfords contend that a directed verdict was improper because, they say, Howell Plywood is liable, under agency principles, for the negligent acts of the loggers removing the timber from Arnold's property. The Danfords argue that Smith was not an independent contractor, but that he and his employees were actually employees of Howell Plywood, and that Howell Plywood is, therefore, liable for Smith's negligent acts.
This Court has stated on numerous occasions that the test for determining whether one is an independent contractor or is an employee is whether the alleged employer has reserved the right to control the means and agencies by which the work is done, not whether the alleged employer has actually exercised such control. See, e.g., Pugh v. Butler Telephone Co., 512 So. 2d 1317 (Ala.1987). However, the right to control is not established by a showing that the alleged employer retains the right to supervise the alleged employee merely to determine if the employee performs in conformity with the contract. Williams v. Tennessee River Pulp & Paper Co., 442 So. 2d 20 (Ala.1983). The burden of proving agency rests upon the party asserting agency. Federal Land Bank of New Orleans v. Jones, 456 So. 2d 1 (Ala.1984).
In the instant case, the evidence, when viewed in a light most favorable to the Danfords, clearly shows that Smith was an independent contractor as to Howell Plywood. The evidence presented by the Danfords at trial established that Nichols visited the job site to determine if Smith was performing in conformity with his contract with Howell Plywood. Nichols testified that he showed Smith the location of the timber he had purchased from Arnold and told Smith where to cut and where to carry the logs. Nichols further stated that Smith did the logging according to his own specifications. Neither Nichols nor Howell Plywood cut any timber.
Smith testified that he was paid by Howell Plywood on a production-type basis to harvest the timber on Arnold's property. Smith and his employees cut the timber and loaded it onto a truck owned by Lawrence Armstrong to be delivered to Howell Plywood. Smith had contracted with Armstrong to haul the logs. Smith paid Armstrong on the basis of a per-mile rate or a minimum set rate to haul all the timber that was cut from the Arnold property.
While Smith was removing timber from the Arnold property, Smith had two or three employees working for him and he owned the equipment that was being used on the job. Smith maintained his own payroll for his employees and carried workmen's compensation insurance on them. According to Smith, neither Nichols nor anyone else from Howell Plywood came to the job site to tell him how to do his job, but employees of Howell Plywood visited the job site merely to check the progress of the work. The evidence indicated that the manner in which the operation was run was totally up to Smith.
In their brief, the Danfords direct our attention to certain evidence in the record that they assert indicates the existence of an agency relationship. However, after examining this evidence, we find nothing to show that Smith was an agent of Howell Plywood. While we recognize that whether an agency relationship exists is generally a question of fact for the jury to determine, Cheatham v. General Motors Corp., 456 So. 2d 1101 (Ala.Civ.App. 1984), even matters that are usually considered to be jury questions can be resolved on a motion for directed verdict when, as in the present case, the evidence clearly warrants it. Osborn v. Johns, 468 So. 2d 103 (Ala.1985). At best, the evidence in this case was sufficient to establish only that Howell Plywood employees appeared on the job site to monitor the progress of the work or to advise Smith as to what timber should be cut and where the logs were to *548 be hauled. There is no evidence that Howell retained or exercised any control over the method or means by which Smith was to cut or remove the timber.
The Danfords further contend, however, that even if Smith was an independent contractor of Howell Plywood, Howell Plywood is still liable to the Danfords under an exception outlined in Thomas v. Saulsbury & Co., 212 Ala. 245, 102 So. 115 (1924). In Thomas, this Court discussed an exception to the general rule concerning liability of a contractor for the negligence of a subcontractor. The rule of Thomas is that a contractor cannot transfer liability to a subcontractor where the work undertaken by the subcontractor creates an unreasonably dangerous condition, e.g., blasting operations.
The Danfords argue that the logging operations being conducted on Arnold's property created a dangerous condition in that mud was left on the roadway adjacent to the property, and that this falls within the exception to the general legal principles concerning independent contractors. We disagree with the Danfords' argument. This Court has previously held that, as a matter of law, the hauling of timber does not constitute a peculiar risk of physical harm that requires special precautions. Williams v. Tennessee River Pulp & Paper Co., supra, citing Thomas v. Saulsbury & Co., supra.
After considering the evidence in the record, we conclude that the Danfords failed to establish the requisite elements of their cause of action against Arnold and Howell Plywood. Therefore, the trial court correctly directed a verdict for the defendants. The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | May 31, 1991 |
81227a7e-dbb0-40af-ba93-9586cd337025 | Palomar Ins. Corp. v. Guthrie | 583 So. 2d 1304 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 1304 (1991)
PALOMAR INSURANCE CORPORATION
v.
Robert M. GUTHRIE.
89-1553.
Supreme Court of Alabama.
June 21, 1991.
*1305 Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
Randy Myers, Richard Jordan and Benjamin L. Locklar of Richard Jordan and Randy Myers, P.C., Montgomery, for appellee.
KENNEDY, Justice.
Robert M. Guthrie filed an action against Palomar Insurance Corporation and Brenda Reese, alleging negligent failure to provide insurance coverage on a vehicle of Mr. Guthrie's. The jury awarded Mr. Guthrie $40,000, and the trial court entered judgment on the verdict. Contending that Mr. Guthrie was required to prove Palomar's duty to obtain coverage by expert testimony and that Mr. Guthrie did not so prove that duty, Palomar and Ms. Reese made a motion for a judgment notwithstanding the verdict, which the trial court denied.
In 1985, Mr. Guthrie purchased a tractor-trailer, which he leased to Blue Star Ready Mix ("Blue Star") in Russellville. Blue Star is a business owned and operated by members of Mr. Guthrie's family, including his father J. Frank Guthrie and his brother Frank L. Guthrie. Blue Star owned several tractor-trailers, cement mixers, and other items of "heavy" equipment, which were insured through Palomar. During 1985 and 1986, Mr. Guthrie's tractor-trailer was insured through Palomar as part of Blue Star's fleet, and Blue Star paid for the insurance by deducting the cost of the premium from the revenues generated by the tractor-trailer.
In 1986, Mr. Guthrie married and moved to Montgomery. He started a construction company, which obtained its general liability and workmen's compensation insurance through Palomar. Brenda Reese was Mr. Guthrie's "customer sales representative" for Palomar, and she was who Mr. Guthrie talked to, obtained premium information from, and otherwise conducted his Palomar insurance transactions with.
In 1987, Mr. Guthrie and his brother, Frank L. Guthrie, discussed having the tractor-trailer insured under a policy other than Blue Star's fleet policy. Mr. Guthrie contacted Ms. Reese, who gave him a premium rate for insuring the tractor-trailer individually. That premium rate was much higher than the premium rate for the tractor-trailer as part of Blue Star's fleet. After talking to his father, Mr. Guthrie contacted Ms. Reese and told her to put the tractor-trailer on the fleet policy, to bill him for all the premiums, and to send all correspondence concerning the vehicle to him. Ms. Reese placed the tractor-trailer on the fleet policy and billed the insurance to Mr. Guthrie's construction company's insurance account. Still in 1987, Ms. Reese mailed him two premium notices for the tractor-trailer's insurance. She also noted in her file, which was kept at Palomar's office, that she was to bill Mr. Guthrie separately for the tractor-trailer, although the premium was being paid at the Blue Star fleet rate. Ms. Reese mailed notice of that arrangement *1306 to Blue Star. In the spring of 1987, Mr. Guthrie contacted Ms. Reese and obtained additional insurance on the tractor-trailer. Again, that insurance was billed to Mr. Guthrie's account; Mr. Guthrie's account number was placed on the policy under the phrase "named insured."
In both 1987 and 1988 Mr. Guthrie received premium renewal notices for his workmen's compensation and general liability insurance. In the previous years he had also automatically received the renewal notices and bills on vehicles he had insured with Palomar, including the tractor-trailer. He had not received a renewal notice for the tractor-trailer when he was informed on May 29, 1988, that it had been stolen. When Mr. Guthrie telephoned Ms. Reese to file a claim for the theft of the tractor-trailer, she notified him that the policy had lapsed in April 1988. When Mr. Guthrie asked Ms. Reese why he had not been notified that he needed to renew the policy, she said that she did not know why.
At trial, Mr. Guthrie had the deposition of Susan Gardner, the manager of Palomar's commercial insurance department, read into the record. She testified that Ms. Reese's job as a customer sales representative was to service and market accounts. She further testified that most of Palomar's commercial insurance policies provided coverage for one year; that on accounts where there was under $10,000 in premiums "we will automatically renew the coverages, send a letter to the insured and say this is expiring coverage" before the coverage expires (on accounts with $10,000 or more in premiums Palomar sends a person to contact the insured); that the reason Palomar sends the letter is to make sure that the customer "has proper coverages on the equipment ... to keep the business." Brenda Reese also testified that she commonly notifies customers of the day of expiration in order to inform them of what insurance they have and to attempt to keep their business. The record indicates that Mr. Guthrie's premium for the tractor-trailer was less than $10,000.
Mr. Guthrie claimed that Palomar and Ms. Reese negligently failed to provide coverage on the tractor-trailer. Mr. Guthrie must prove four elements to prove negligence: (1) a duty to a foreseeable plaintiff, (2) a breach of that duty, (3) proximate cause, and (4) injury/damage. Rutley v. Country Skillet Poultry Co., 549 So. 2d 82, 85 (Ala.1989). The issue before us, as raised in Palomar and Ms. Reese's motion for a judgment notwithstanding the verdict, is whether, in the absence of expert testimony to establish Palomar and Ms. Reese's duty to Mr. Guthrie, the trial court erred by submitting the case to the jury.
Citing Atwater Creamery v. Western National Mutual Insurance Co., 366 N.W.2d 271 (Minn.1985), Palomar and Ms. Reese argue that expert testimony was necessary to establish their duty to Mr. Guthrie. Mr. Guthrie argues that expert testimony is not necessary because, he says, the defendants voluntarily assumed a duty and the duty they assumed is understandable by laymen within their ordinary knowledge and experience. Palomar and Ms. Reese do not contend that expert testimony is required to prove assumption of a duty; instead, they argue that the evidence does not support a finding of a voluntary assumption of the alleged duty.
No doubt, as Mr. Guthrie argues, although a person may not owe a duty to another, a duty can arise when that person volunteers to act on behalf of another. Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So. 2d 496, 503 (Ala. 1983); Rudolph v. First Southern Federal Savings & Loan Association, 414 So. 2d 64, 67 (Ala.1982); Dailey v. City of Birmingham, 378 So. 2d 728, 729 (Ala.1979). This principle of law applies to insurance agents and insurance companies. See, e.g., Barnes v. Liberty Mutual Insurance Co., 472 So. 2d 1041, 1042 (Ala.1985); United States Fidelity & Guar. Co. v. Jones, 356 So. 2d 596, 597-98 (Ala.1978); Waldon v. Commercial Bank, 50 Ala.App. 567, 281 So. 2d 279 (1973).
Furthermore, expert testimony is not necessary, indeed should not be admitted, "`unless it is clear that the jurors themselves are not capable, from want of experience or knowledge of the subject, to draw *1307 correct conclusions from the facts.'" Wal-Mart Stores, Inc. v. White, 476 So. 2d 614, 617 (Ala.1985), quoting C. Gamble, McElroy's Alabama Evidence § 127.01(5) (3d ed 1977); Hagler v. Gilliland, 292 Ala. 262, 292 So. 2d 647 (1974).
Reviewing the evidence stated earlier in this opinion, we conclude that the jury could properly find that Palomar and Ms. Reese assumed a duty to notify Mr. Guthrie of the time for renewal and the time of the lapse of his insurance policy for the tractor-trailer. Ms. Reese handled all of Mr. Guthrie's commercial insurance for three years. The defendants provided Mr. Guthrie insurance policies for Mr. Guthrie's business and the tractor-trailer. Ms. Reese sent Mr. Guthrie policy renewal notices on his insurance policies from 1986 to 1988, except, however, she failed to send him the renewal notice for the 1988 coverage on the tractor-trailer. Neither Ms. Reese nor Palomar instructed Mr. Guthrie that they intended to treat the policy on the tractor-trailer differently than they did the other policies of insurance. Furthermore, Susan Gardner's testimony indicated that in the case of customers such as Mr. Guthrie, who had policies on which the premiums totalled less than $10,000, "we will automatically renew the coverage, send a letter to the insured and say this is expiring coverage."
Palomar and Ms. Reese did not show that it is "clear that the jurors themselves ... from want of experience or knowledge," Wal-Mart Stores, Inc. v. White, 476 So. 2d at 617, could not correctly deduce from the facts in this case that Palomar and Ms. Reese had a duty to notify Mr. Guthrie of the time for the renewal and the time of the lapse of his insurance policy. Id. Thus, under the facts in this case, expert testimony was not required to establish Palomar and Ms. Reese's duty. Id. See also Clary Insurance Agency v. Doyle, 620 P.2d 194, 200 (Alaska 1980) (where there is "abundant evidence" expert testimony is not necessary); Todd v. Malafronte, 3 Conn.App. 16, 484 A.2d 463, 466 (1984) (testimony by an insurance company's own agent regarding duty of the insurance company to make sure that customer is covered is sufficient evidence to establish a duty); Dimarino v. Wishkin, 195 N.J. Super. 390, 479 A.2d 444, 446 (1984) (an insurance agent must comply with certain "minimums," which need not be established by expert testimony).
Mr. Guthrie proved that Palomar and Ms. Reese assumed a duty to him. He did not have to prove the existence of that duty by expert testimony. Accordingly, the trial court did not err by submitting the case to the jury without expert testimony to prove the alleged duty. The judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | June 21, 1991 |
e1d5601f-2bc4-4831-a3df-d6090d29f2ab | Green v. Wedowee Hosp. | 584 So. 2d 1309 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 1309 (1991)
William GREEN
v.
WEDOWEE HOSPITAL and Surgidev Corporation.
89-1555.
Supreme Court of Alabama.
June 14, 1991.
Rehearing Denied August 9, 1991.
*1310 John A. Tinney, Roanoke, for appellant William Green.
George C. Douglas, Jr. of Gaines, Gaines & Gaines, Talladega, for appellee Wedowee Hosp.
A. Joe Peddy and Frank M. Cauthen, Jr. of Smith, Burgess, Spires & Peddy, Birmingham, for appellee Surgidev Corp.
HOUSTON, Justice.
The plaintiff, William Green, appeals from a summary judgment in favor of Wedowee Hospital ("Wedowee") and Surgidev Corporation.[1] We reverse and remand.
On December 21, 1985, Dr. Theodore A. Torsch performed cataract surgery on Green. Although he was scheduled to replace the lens in Green's right eye, Dr. Torsch performed the surgery on the left eye, leaving Green virtually blind. Green and his wife sued Dr. Torsch, alleging medical malpractice; on October 16, 1989, *1311 they settled the case for $500,000 and executed a release effectuating the settlement. (At the time of the settlement, Dr. Torsch had died, so St. Paul Fire & Marine Insurance Company ("St. Paul"), his medical malpractice insurance carrier, effectuated the settlement on behalf of the estate of Dr. Torsch.) On October 6, 1989, 10 days prior to settling the medical malpractice suit and signing the release, Green sued Wedowee and Surgidev for damages based on fraud and outrageous conduct,[2] alleging that Wedowee had committed fraud by failing to obtain Federal Drug Administration ("FDA") approval to conduct the experimental lens implantation on Green and by failing to inform Green of the experimental nature of the surgery and of its failure to obtain such FDA approval; that Wedowee was guilty of outrageous conduct for falsifying FDA documents in order to qualify for the experimental lens surgery and for failing to obtain Green's informed consent; and that Surgidev, through its alleged agent, Dr. Torsch, fraudulently suppressed material facts from Green when Dr. Torsch implanted an experimental lens in Green's eye without disclosing the experimental nature of the surgery. Wedowee and Surgidev filed motions for summary judgment,[3] raising the defenses of res judicata, the statute of limitations, and general release. Green filed an affidavit in opposition to the motion, stating that it was not until the deposition of Wedowee's administrator for purposes of Green's medical malpractice suit against Dr. Torsch that he discovered the experimental nature of the surgery. The trial court entered summary judgment as "to all defendants,"[4] based upon what it determined to be insufficient facts offered in opposition to the motion for summary judgment (which had been based upon the previous release, the claim that the statutory period of limitations had run, and res judicata. Green appeals. We reverse and remand.
Green contends that he did not learn of the alleged fraud, until April 1989 (when, he says, during the deposition of Kurlene Mitchell, Wedowee's administrator, in connection with Green's malpractice suit against Dr. Torsch, he became aware that Wedowee allegedly had allowed Dr. Torsch to perform "experimental" cataract surgery) and, therefore, that his claim was not barred by the applicable statute of limitations.
Wedowee contends that Green did not present any facts indicating why he could not have discovered the alleged fraud within two years from the time of the cataract surgery on December 21, 1985that Green's only evidence in opposition to its summary judgment motion was a one-page handwritten affidavit that he filed the day of the hearing on that motion, which affidavit stated that he did not know until April 1989 that the lens was experimental.
The trial court found Green's affidavit insufficient to defeat Wedowee's motion for summary judgment:
(Emphasis in original.) (Citations omitted.)
In Alabama, pursuant to Ala.Code 1975, § 6-2-38, an action for fraud is subject to a two-year statute of limitations. However, since its inception, Ala.Code 1975, § 6-2-3 ("the saving provision"), has extended the time period for a right of action until either the party discovered or should have discovered the fraud:
If it appears that the statutory period has expired, then the burden is on the party bringing the fraud action to show that he comes within the purview of this provision. See Hicks v. Globe Life & Accident Insurance Co., 584 So. 2d 458 (Ala.1991). In Hicks (and the cases cited therein), this Court reiterated the objective standard for determining when a party should have "discovered" fraud for the purpose of the statute of limitations, emphasizing that "the mere fact that the standard is an objective one does not foreclose a jury determination on the issue." Rather, as this Court stated in Hicks, quoting Thompson v. National Health Ins. Co., 549 So. 2d 12, 14 (Ala.1989) (quoting Vandegrift v. Lagrone, 477 So. 2d 292, 295 (Ala.1985)):
(Citations omitted.) (Emphasis in original and added.)
We have reviewed the record thoroughly and have found no evidence in this case that Green had "actual" knowledge of the alleged fraud before deposing Wedowee's administrator for purposes of prosecuting Green's medical malpractice suit against Dr. Torsch. Thus, the jury could have concluded that Green acted reasonably in not discovering the alleged fraud until that time. Therefore, the question of when Green should have discovered the fraud so as to begin the running of the statutory period of limitations should be decided by a jury. Accordingly, the trial court could not properly have based its summary judgment on the statute of limitations.
As to the issue of the effect of the release on Wedowee, the trial court found as follows:
(Emphasis added by trial court.)
In Ford Motor Co. v. Neese, 572 So. 2d 1255 (Ala.1990), "believe[ing] it [was] mandated by a fair reading of the legislative will as expressed in § 12-21-109, Ala.Code 1975," this Court reaffirmed the holding in Pierce v. Orr, 540 So. 2d 1364, 1367 (Ala. 1989) (a case in which the Court reevaluated and reconsidered its treatment of general releases):
572 So. 2d at 1256-57.
Based on the foregoing, Wedowee must prove by substantial evidence that it was a party intended to be released by Green (a named party in the release), unless Wedowee paid some part of the consideration for the release or was an agent, principal, heir of, assign of, or otherwise occupied a privity relationship with, Dr. Torsch and St. Paul (the named payors). After a careful review of the record, we conclude that, as a matter of law, Wedowee did not present substantial evidence that it was Green's intention to release it. Therefore, the trial court erroneously based its summary judgment in favor of Wedowee on the general release.[5]
The trial court, based on the authority of Green v. Manning, 529 So. 2d 973 (Ala. 1988), and the cases cited therein, also found Green's suit against Wedowee barred by res judicata:
*1315 As we emphasized in Whisman v. Alabama Power Co., 512 So. 2d 78, 81 (Ala. 1987), this Court has recognized the doctrine of res judicata in that "[t]he interest of society demands that there be an end to litigation, that multiple litigation be discouraged, not encouraged, and that the judicial system be used economically by promoting a comprehensive approach to the first case tried." See, also, Reed v. Farm Bureau Mut. Cas. Ins. Co., 549 So. 2d 3 (Ala.1989) (a case in which we said that the purpose of the doctrine of res judicata was to prohibit the relitigation of claims, so as not to unnecessarily subject a defendant to the expense and trouble of repeatedly defending himself).
Sanders v. First Bank of Grove Hill, 564 So. 2d 869, 872 (Ala.1990) (quoting Leverette ex rel. Gilmore v. Leverette, 479 So. 2d 1229, 1235-36 (Ala.1985)) (quoting Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala.1978)); Cornelius v. Green, 521 So. 2d 942 (Ala.1988). See, also, Hughes v. Martin, 533 So. 2d 188 (Ala. 1988).
In Whisman v. Alabama Power Co., supra, at 82-83 (quoting Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So. 2d 764, 770 (Ala.1981)), this Court stated as follows:
(Citations omitted.)
Green contends that the trial court could not have found the elements necessary to establish the applicability of the doctrine of res judicata to the facts of this case and therefore could not properly have used the res judicata doctrine as a basis for its summary judgment for Wedowee. Green points out that the initial suit was a medical malpractice action against Dr. Torsch; that that suit asserted no cause of action in fraud against Dr. Torsch; that the parties to the medical malpractice suit (Green and Dr. Torsch) are not identical to the parties in this case (Green and Wedowee); that the facts necessary to establish Green's right to recovery in the medical malpractice action against Dr. Torsch are not necessary whatever to a determination that Wedowee committed fraud on Green; and that the facts necessary to prove the causes of action against Wedowee would not have served as a basis for establishing the alleged acts of malpractice by Dr. Torsch. Rather, Green contends that this case is "totally independent" of the medical malpractice suit and that there has been no determination on the merits in either suit.
Wedowee contends that even if the release did not bar this suit, then the doctrine of res judicata would "clearly preclude [Green] from maintaining this second suit where the claims made here could have been asserted in the first suit in Jefferson County."
We have thoroughly reviewed the record and have applied the elements of res judicata to determine whether Green is precluded from pursuing this action based on that *1316 doctrine. Green sued Dr. Torsch for medical malpractice because he performed cataract surgery on the wrong eye. It was the medical malpractice suit that Green settled; there was no litigation of the issues; there was no trial on the merits; there was no final judgment rendered by a court of competent jurisdiction; nor does it appear that in the medical malpractice suit there were any allegations of fraud concerning the "experimental" nature of the surgery or the failure to obtain the necessary FDA approval to perform such surgery. See Sanders v. First Bank of Grove Hill, supra; see, also, Whisman v. Alabama Power Co., supra. Theoretically, both suits arose out of the same occurrencethe cataract surgery performed at Wedowee. However, the medical malpractice suit against Dr. Torsch involved the manner in which Dr. Torsch performed the surgery and the ultimate result of that surgery. The fraud action against Wedowee involved its alleged failure to obtain FDA approval for performing the "experimental" surgery and its alleged failure to inform Green of the "experimental" nature of the surgery. The fraud action against Wedowee is separate and distinct from the medical malpractice action filed against Dr. Torsch for performing surgery on the wrong eye. Therefore, the doctrine of res judicata does not act as a bar. Therefore, the trial court could not properly have based its summary judgment for Wedowee on the doctrine of res judicata.
Based on the foregoing, we reverse the summary judgment in favor of Wedowee and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
[1] Surgidev Corporation manufactured and distributed a certain intraocular lens (known as a Surgidev Style 10 Intraocular Lens or a Leiske Lens) that was implanted in Green's eye.
[2] Outrageous conduct was not specifically addressed by the trial court or argued in briefs to this Court. Therefore, that issue is not before us. Ex parte Riley, 464 So. 2d 92 (Ala. 1985).
[3] We note that in its motion for summary judgment, Surgidev adopted the motion and brief that Wedowee had filed in support of its motion for summary judgment.
[4] Although Green designated Surgidev as an appellee to this appeal, as evidenced by the notice of appeal ("Notice is hereby given that [Green] appeals ... from the Order on Motion for Summary Judgment dated June 13, 1990, entered in this cause [which order entered judgment as to `all defendants' and dismissed the suit]") and by the certificate of filing (which certificate designated the attorney for Wedowee and the attorney for Surgidev as "counsel for appellee[s]"), Green contends in his brief that the suit against Surgidev is still pending and fails to present and argue any issues in his brief as to Surgidev. However, because the trial court entered summary judgment as to "all defendants," that judgment was final as to Wedowee and as to Surgidev.
We note the well-settled law, as Surgidev points it out in its brief, that a party's failure to argue an issue in brief to an appellate court is tantamount to a waiver of that issue on appeal and that an appellate court will consider only those issues that have been properly delineated and will not search the record for errors that have not been raised before the appellate court. Ex parte Riley, 464 So. 2d 92 (Ala. 1985). Therefore, the propriety of the trial court's entering judgment for Surgidev is not before us.
[5] Note: The author of this opinion dissented in Pierce v. Orr, 540 So. 2d 1364 (Ala.1989), based on what he considered to be a departure from stare decisis. See, 540 So. 2d at 1367. However, because Pierce is presently the law concerning general releases, the author of this opinion resolved this issue accordingly. | June 14, 1991 |
2436b11f-f1a4-4f9a-97b1-c7b6be7d0804 | Fountain v. Permatile Concrete Products | 582 So. 2d 1069 | 1900322 | Alabama | Alabama Supreme Court | 582 So. 2d 1069 (1991)
Frank FOUNTAIN, et al.
v.
PERMATILE CONCRETE PRODUCTS COMPANY.
1900322.
Supreme Court of Alabama.
May 31, 1991.
*1070 B.J. McPherson, Oneonta, for appellants.
Hugh A. Nash of Nash & Associates, Oneonta, for appellee.
HOUSTON, Justice.
This is an appeal from an order refusing to set aside a default judgment against Frank Fountain, individually; J. Frank Fountain III, individually; J. Frank Fountain III, Inc.; and Frank Fountain Enterprises, Inc., d/b/a Southeastern Machinery. (All these are referred to hereinafter as "Fountain.") We affirm.
On April 19, 1990, Permatile Concrete Products Company ("Permatile") filed a two-count complaint against Fountain in Blount County Circuit Court, seeking to recover damages for breach of warranty and fraud in connection with Permatile's purchase of certain machinery from Fountain. Fountain was served with the complaint on April 26, 1990. On July 10, 1990, a "default" was entered by the trial court and a hearing was set to take testimony on the question of damages. On August 15, 1990, the court entered a default judgment against Fountain for $55,030 in compensatory damages and $20,000 in punitive damages. The court also ordered Fountain to return certain machinery to Permatile or, in the alternative, to pay Permatile its alternative value of $2,000. On October 26, 1990, Fountain filed a motion, pursuant to Rule 60(b)(1), Ala.R.Civ.P., to set aside the judgment. That motion read, in pertinent part, as follows:
Fountain also filed on October 26, 1990, a motion, pursuant to Rule 62(b), Ala.R. Civ.P., to stay execution on the judgment pending a ruling on the Rule 60(b)(1) motion. That motion stated:
The record indicates that Fountain presented no evidence to the trial court in support *1071 of either of these motions.[1]
In DaLee v. Crosby Lumber Co., 561 So. 2d 1086, 1089-90 (Ala.1990), this Court stated:
The Court in DaLee also acknowledged that the three-factor analysis discussed in Kirtland, applicable to motions to set aside default judgments pursuant to Rule 55(c), Ala.R.Civ.P., was also applicable to motions to set aside default judgments pursuant to Rule 60(b). In addition, the Court noted that "[a] trial court's discretionary authority under Rule 60(b) is much broader than it is under Rule 55(c)." 561 So. 2d at 1090, n. 3.
To meet the meritorious-defense element, Fountain did not have to satisfy the trial court that he would necessarily prevail at a trial on the merits, only that he was prepared to present a plausible defense. To meet his burden in this regard, it was incumbent upon Fountain to show in his Rule 60(b)(1) motion, not by conclusory allegations, but by definite recitation of *1072 facts, that an injustice probably had been done by the judgment, in that he had a valid defense to Permatile's claims. Again, we quote from DaLee:
561 So. 2d at 1090.
The record shows that Fountain failed to recite specific facts, either in his Rule 60(b)(1) motion or in his Rule 62(b) motion to stay execution of the judgment, to show that he had a meritorious defense to Permatile's claims. Fountain's conclusory allegations in his Rule 62(b) motion were insufficient as a matter of law to satisfy the meritorious-defense element.
Because Fountain recited no specific facts in either of his motions to show the existence of a meritorious defense and presented no evidence to the trial court in support of those motions, the trial court would certainly have been justified in assuming that no meritorious defense existed and, consequently, that Permatile would be unfairly prejudiced by any further delay in its attempt to recover damages for wrongs that it allegedly had suffered.
Finally, the record is insufficient to show that the default judgment was not the fault of Fountain's own culpable conduct. Conduct committed willfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Negligence, by itself, is insufficient. Kirtland at 607. Fountain's conclusory allegations that he thought the suit had been settled were insufficient as a matter of law to warrant a finding that the default judgment was not the result of culpable conduct on Fountain's part.
Fountain alleged in his motions that the default judgment was the result of "inadvertence or excusable neglect" on his part; however, the record shows that Fountain was served with the complaint on April 26, 1990. From the record we know that Fountain's attorney had not been employed to represent Fountain as of July 10, 1990, approximately two and a half months after Fountain had been served with the complaint. Although Fountain's attorney underwent open-heart surgery on August 7, 1990, and was out of his office until the middle of September 1990, from all that appears in the record, Fountain's attorney was not employed until after he had returned to his office after undergoing the surgery. It does not appear that Fountain's delay in retaining an attorney to appear and defend against this suit was the result of "mistake, inadvertence, surprise, or excusable neglect" that ordinary prudence could not have guarded against. Rule 60(b)(1). Fountain's conclusory allegations that he thought the suit had been settled were insufficient as a matter of law to warrant a finding that the default judgment was due to be set aside under Rule 60(b)(1). In order to obtain relief under Rule 60(b)(1), Fountain had to show, in addition to satisfying the trial court that setting aside the default judgment was not precluded under the three-factor analysis established in Kirtland, that the requirements of Rule 60(b)(1) were satisfied. In DaLee the Court noted:
"In McDavid v. United Mercantile Agencies, Inc., 248 Ala. 297, 301, 27 So. 2d 499, 503 (1946), the Court set out the duty of a party when legal process is duly served upon him:
561 So. 2d at 1091.
For the foregoing reasons, we cannot hold that the trial court abused its discretion in refusing to set aside the default judgment against Fountain.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Fountain did submit to this Court the affidavit of his attorney in support of his motion to stay execution of the judgment pending appeal. That affidavit was not before the trial court when it ruled on Fountain's request to set aside the judgment; therefore, being bound by the record, we cannot rely on that affidavit as a basis for finding an abuse of discretion on the part of the trial court. Ex parte Singleton, 475 So. 2d 186 (Ala.1985); King v. Smith, 288 Ala. 215, 259 So. 2d 244 (1972). We note that even if we could consider Fountain's affidavit, our holding in this case would be the same. | May 31, 1991 |
fae0152b-9dd2-472a-8637-963118393468 | Davis v. Hester | 582 So. 2d 538 | 1900188 | Alabama | Alabama Supreme Court | 582 So. 2d 538 (1991)
Jewel D. DAVIS and Ridgeview Health Care Center, Inc.
v.
Shirley HESTER and Guy Hester.
1900188.
Supreme Court of Alabama.
May 31, 1991.
Harvey Jackson, Jr. and Richard E. Fikes of Tweedy, Jackson and Beech, Jasper, for appellants.
James C. King and Garve Ivey, Jr., Jasper, for appellees.
HOUSTON, Justice.
Ridgeview Health Care Center, Inc. ("Ridgeview"), operates a health care facility *539 at which Rosella Dorrough has been a patient. Jewel Davis is the daughter of Ms. Dorrough and is her "sponsor." A sponsor is the family member who is responsible for the patient and takes care of the needs of the patient. Jewel Davis and Ridgeview sought a temporary restraining order ("TRO") and a permanent injunction against Shirley Hester and Guy Hester, to prevent the Hesters from coming onto the premises of Ridgeview, where Ms. Dorrough was a patient. Shirley Hester is also the daughter of Ms. Dorrough; Guy Hester is Shirley Hester's husband and allegedly serves as Ms. Dorrough's spiritual and religious counselor and advisor. Ms. Davis and Ridgeview alleged that the Hesters' conduct while visiting Ms. Dorrough at Ridgeview was detrimental to Ridgeview and to Ms. Dorrough. Upon Ridgeview and Ms. Davis's posting a bond and filing a verified complaint, the trial court, without notice to the Hesters, entered the TRO, restraining the Hesters from visiting Ms. Dorrough at Ridgeview. The TRO remained effective for a 10-day period, and the trial court set a hearing on Ms. Davis and Ridgeview's request for a preliminary injunction. Subsequently, the Hesters filed an answer and a counterclaim, seeking, among other things, to have the trial court dissolve the TRO previously issued. Thereafter, the Hesters filed an amended counterclaim, alleging that Ms. Davis and Ridgeview's conduct in suing for the TRO without giving notice to the Hesters, particularly the manner in which they sued for it, was "so outrageous as to shock the moral conscience and values of the citizens of Walker County, Alabama." In the amended counterclaim, the Hesters claimed to have suffered injury as a result of the plaintiffs' conduct and sought damages based on that alleged injury. At the hearing on Ms. Davis and Ridgeview's motions, the trial court made findings of fact and determined that the TRO had been inappropriately issued and that it was not supported by the evidence, and declared it null and void. It further determined, from its findings of fact, that no preliminary injunction was warranted in this case. Ms. Davis and Ridgeview appeal. We affirm.
The trial court's order reads as follows:
It is well established that the issuance of injunctive relief is within the sound discretion of the trial court, especially when, as in this case, the facts are in dispute and the evidence is presented ore tenus. Powell v. Phenix Federal Sav. & Loan Ass'n, 434 So. 2d 247 (Ala.1983), appeal after remand, 472 So. 2d 966 (Ala. 1985). On an appeal from the denial of injunctive relief, the burden is on the appellant to establish that the trial court abused its discretion in denying its request for such relief; the appellant must show that abuse of discretion by showing that the trial court committed clear and palpable error. Hood v. Neil, 502 So. 2d 749 (Ala. 1987). Our standard of review under the ore tenus rule is to affirm the trial court's judgment where it is supported by the evidence or inferences that can logically be drawn from the evidence, and to reverse only if the judgment is plainly and palpably wrong by not being supported by the evidence or inferences that can be logically drawn from the evidence. See Knight v. Lott, 579 So. 2d 1298 (Ala.1991); Paige v. State Farm Fire & Casualty Co., 562 So. 2d 241 (Ala.1990); American Casualty Co. v. Wright, 554 So. 2d 1015 (Ala.1989); City of Birmingham v. Sansing Sales of Birmingham, Inc., 547 So. 2d 464 (Ala. 1989); King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala.1987); and Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986).
After thoroughly reviewing the arguments presented in Ms. Davis and Ridgeview's briefs, we would characterize the issue for our review as follows: whether the trial court was clearly and palpably erroneous in finding that the TRO was unjustified and therefore had been inappropriately issued, and, therefore, whether the trial court abused its discretion in holding the TRO null and void (i.e., dissolving the previously issued TRO) and in denying the petition for a preliminary injunction.
We note the Hesters' contentions that this appeal should be dismissed on the basis that Ms. Davis and Ridgeview seek to appeal from an order that is not final. They point out that the order lacks the express language of Rule 54(b), Ala.R. Civ.P; that Ms. Davis and Ridgeview did not seek, nor did the trial court grant, permission to appeal from an interlocutory order; and that the Hesters' counterclaim and amendments thereto remain pending in the Circuit Court of Walker County. However, we note the following rule, as stated in Bennetton Services Corp. v. Benedot, Inc., 551 So. 2d 295, 298 (Ala.1989):
(Emphasis added.) Therefore, this appeal is properly before us.
Not only are the facts, as presented in this case, too numerous to set out, but a recitation of those facts would not aid the Bench and Bar. Suffice it to say that we have thoroughly reviewed the evidence presented in the record and have considered the arguments in the briefs. Having thoroughly considered the arguments in light of the evidence and under the applicable standard of review, we conclude that the trial court's conclusions were not plainly and palpably erroneous. Therefore, we hold that the trial court did not abuse its discretion in dissolving the TRO and denying the petition for a preliminary injunction.
*541 MOTION TO DISMISS DENIED; AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] What the trial court called "findings" appear to be, in reality, conclusions of law. | May 31, 1991 |
19e9aeca-a0aa-4b7a-9851-093f19fd75fe | Spruiell v. Robinson | 582 So. 2d 508 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 508 (1991)
June R. SPRUIELL
v.
Edgar S. ROBINSON, as administrator of the Estate of Ommie Lou Bryant.
89-1085.
Supreme Court of Alabama.
May 31, 1991.
*509 Donald Hugh Jones and Wayne Michael Jones, Birmingham, for appellant.
Douglas L. McWhorter of Najjar Denaburg, P.C., Birmingham, and Albert D. Lipscomb of Lipscomb & Lipscomb, Bessemer, for appellee.
ADAMS, Justice.
June R. Spruiell appeals from a judgment entered in favor of the plaintiff, the estate of Ommie Bryant, in the amount of $61,828.38 plus interest, and voiding a contract for the sale of Mrs. Bryant's Queenstown Road farm. We affirm.
Mrs. Bryant died intestate on January 11, 1987, due to complications arising from cancer. Her husband, Harry Bryant, had predeceased her in 1982. There were no children from their marriage. Mrs. Bryant was survived by a brother, two sisters, and approximately 40 nieces and nephews who were children of her deceased brothers and sisters; Mrs. Spruiell was a niece of Mrs. Bryant, but her mother, Myrtle Robinson, survived Mrs. Bryant.
Mrs. Bryant's estate consisted of her personal effects, as well as the following assets: a residence in Trussville, Alabama; a farm in Trussville; and 4 accounts at the Trussville office of City Federal Savings & Loan Association. Three of these accounts were opened by Mrs. Bryant in May 1986, solely in her name. On September 5 and 9, 1986, these three accounts were converted to joint tenancy with right of survivorship in the names of Mrs. Bryant and Mrs. Spruiell. A fourth account was opened at this time in the names of Mrs. Bryant and Mrs. Spruiell as joint tenants with right of survivorship. The money deposited into these accounts apparently was contributed solely by Mrs. Bryant, and Mrs. Spruiell made no contributions to, or withdrawals from, the accounts during Mrs. Bryant's lifetime. The balance of these four accounts totalled $61,828.38 as of the date of Mrs. Bryant's death. Mrs. Spruiell closed all four accounts on January 12, 1987, withdrawing the balance of all four accounts $61,828.38.
Edgar S. Robinson, Mrs. Bryant's brother, was appointed as the administrator of her estate on January 29, 1987. After the administration of the estate was removed from the probate court to the circuit court, Mr. Robinson filed a complaint on June 17, 1987, seeking to recover the proceeds of four City Federal accounts from Mrs. Spruiell. Robinson alleged that Mrs. Spruiell had exerted undue influence on Mrs. Bryant in order to have her name placed on the accounts and to have the accounts converted to joint tenancies with right of survivorship. The trial court, after hearing ore tenus evidence, found that: (1) a confidential relationship had existed between Mrs. Spruiell and Mrs. Bryant and Mrs. Spruiell was the "dominant spirit" in that relationship; (2) Mrs. Bryant placed Mrs. Spruiell's name on the bank accounts as a result of undue influence exerted on her by Mrs. Spruiell; and (3) Mrs. Bryant executed the contract to sell the farm on Queenstown Road in Jefferson County, Alabama, as a result of undue influence exerted on her by Mrs. Spruiell and her husband, Jerry Spruiell. The court set that contract aside and entered a judgment in favor of Mrs. Bryant's estate in the amount of $61,828.38 plus interest at 6% per year from January 12, 1987, until the date of the final judgment, and, after the date of the final judgment, at an interest rate of 12% per year.
Mrs. Spruiell raises the following issues in her appeal: (1) Whether the trial court's refusal to allow her to call a psychiatrist as an expert to testify in her behalf was so prejudicial as to warrant a new trial; (2) whether the findings of fact by the trial court, upon which the final judgment was based, are so plainly and palpably wrong as to warrant a reversal; and (3) whether the judgment is contrary to the great weight of the evidence and will be allowed to stand. We will address Mrs. Spruiell's attacks on the trial court's findings of fact before reaching the question of the expert testimony.
At the outset, we point out that the findings made by a trial court carry with them a presumption of correctness under the ore tenus rule. As this Court has held *510 on numerous occasions, where the trial court, without a jury, hears ore tenus evidence its judgment is presumed to be correct and will be reversed only if it is found to be unsupported by the evidence or to be plainly and palpably wrong, after a consideration of all the evidence and after making all reasonable inferences from that evidence. See, e.g., Copeland v. Richardson, 551 So. 2d 353 (Ala.1989); McCoy v. McCoy, 549 So. 2d 53 (Ala.1989); Knox Kershaw, Inc. v. Kershaw, 552 So. 2d 126 (Ala.1989); Ford v. Jackson Square, Ltd., 548 So. 2d 1007 (Ala.1989); City of Birmingham v. Sansing Sales of Birmingham, Inc., 547 So. 2d 464 (Ala.1989). Furthermore, this Court will not substitute its own view of the evidence for that of the trial court. Cummings v. Hill, 518 So. 2d 1246 (Ala. 1987); Storey v. Patterson, 437 So. 2d 491 (Ala.1983).
In the present case, the trial judge heard ore tenus evidence and made his findings based on that evidence. The trial court's judgment, based on findings that a confidential relationship existed between Mrs. Bryant and Mrs. Spruiell, that Mrs. Spruiell was the dominant figure in that relationship, and that Mrs. Spruiell exerted undue influence on Mrs. Bryant in order to have the bank accounts converted into joint accounts with rights of survivorship, are presumed correct and will not be disturbed on this appeal unless they are plainly and palpably erroneous. With this presumption in mind, we address the specific issues raised by Mrs. Spruiell, who attacks the trial court's findings.
Mrs. Spruiell attacks paragraphs 2, 6, 7, and 9 of the trial court's findings as plainly and palpably wrong, and she argues that the judgment is contrary to the weight of the evidence. The trial court's final judgment contained the following findings of fact relevant to this appeal:
After an examination of the record and all of the evidence, we conclude that the findings made by the trial court are supported by the evidence. The evidence tended to show that Mrs. Bryant's mental condition had deteriorated. While Mrs. Bryant was in a deteriorated mental condition, Mrs. Spruiell assisted her in the conversion of several of her accounts to joint accounts with right of survivorship, without informing her of the consequences of the survivorship provisions. Furthermore, Mrs. Bryant and the Spruiells were very close, and it appeared that the Spruiells used their past relationship with Mrs. Bryant to purchase the Queenstown Road farm at a substantially reduced price. Based on these facts, it is clear that there was substantial evidence to raise the inference that the Spruiells exerted undue influence on Mrs. Bryant in the conversion of her bank accounts. The trial court's finding of undue influence is further supported by the fact that Mrs. Spruiell never made any contributions to or withdrawals from the accounts until Mrs. Bryant's death, at which time she closed the accounts and withdrew the entire balance of all four accounts. We conclude, therefore, that the trial court's finding of undue influence is supported by the evidence.
Mrs. Spruiell also argues that the trial court erroneously refused to allow her to call a psychiatrist, Dr. Gary Hodges, as an expert to testify in her behalf, and that this refusal was so prejudicial as to warrant a new trial. We disagree.
The parties apparently entered into a pretrial agreement to furnish the names of the witnesses each side intended to call. After the trial had begun, counsel for the plaintiff served interrogatories on Mrs. Spruiell asking for the names of any additional witnesses she intended to call. Mrs. Spruiell did not provide these names and made no objection to the interrogatories; counsel for the plaintiff filed a motion to compel. Mrs. Spruiell then filed an objection and a motion to quash. After a hearing on the objection and the motion, the trial court ordered Mrs. Spruiell to provide the names of the witnesses as requested by the plaintiff. The trial court's order stated, in part:
When Mrs. Spruiell called Dr. Hodges, the expert witness in question, opposing counsel objected on the grounds that the witness's name did not appear on any list provided to them by Mrs. Spruiell. The trial judge sustained the objection, because the witness's name did not appear on any list provided to plaintiff's counsel.
Mrs. Spruiell now argues that the trial court's order required only that she provide the names of fact witnesses she intended to call; that this psychiatrist was not offered as a fact witness; and that she therefore was not required by the order to provide his name to opposing counsel. Mrs. Spruiell's *512 interpretation of the trial court's order is incorrect.
Given the parties' prior agreement to exchange the names of all witnesses they intended to call and the fact that Mrs. Spruiell had previously provided a list of all witnesses she intended to call, fact or otherwise, her reading of the trial court's order as requiring her to provide only fact witnesses is without merit. A reading of the trial court's order demonstrates that the order required that the names of any additional witnesses, including fact witnesses, be provided. We conclude that the trial court's refusal to allow this witness to testify was proper.
The trial court's judgment in favor of the estate of Ommie Bryant is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | May 31, 1991 |
6e849ecb-5705-40f0-b344-b673d58081f1 | BALDWIN COUNTY FED. SAV. v. Central Bank | 585 So. 2d 1279 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 1279 (1991)
BALDWIN COUNTY FEDERAL SAVINGS BANK
v.
CENTRAL BANK OF THE SOUTH, et al.
89-1457.
Supreme Court of Alabama.
June 28, 1991.
Rehearing Denied August 16, 1991.
*1280 Claude E. Bankester and Daniel T. Bankester of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellant.
Daniel G. Blackburn of Stone, Granade, Crosby & Blackburn, Bay Minette, for appellees.
PER CURIAM.
Baldwin County Federal Savings Bank ("BCFSB") appeals from a judgment in favor of the plaintiffs, Steve Odom, Diane Odom, and Central Bank of the South ("Central"), in a declaratory judgment action. The complaint was filed by Central and the Odoms to determine the status of two liens against undeveloped beachfront property in Baldwin County that is owned by the Odoms.[1]
On March 30, 1986, the Odoms bought the subject property from Gulf Sun Investments, Inc. ("Gulf Sun"). They did not immediately record their deed. On May 15, 1986, the Odoms mortgaged the property to Central. As with the Odoms' deed, the mortgage held by Central was not immediately recorded. On June 4, 1986, BCFSB, which had on May 22 obtained a judgment against Gulf Sun, recorded a certificate of that judgment. On July 16, 1986, the Odoms' deed and Central's mortgage were recorded.
After learning that BCFSB had filed its certificate of judgment against Gulf Sun, Central and the Odoms filed a complaint wherein they asked the court to declare that their separate interests in the property were superior to any rights BCFSB might have in the property by virtue of its judgment against Gulf Sun. After an ore tenus hearing, the trial court entered a judgment declaring that the Odoms' title to the property, as described in the deed from Gulf Sun, and Central's interest in the property, obtained through the mortgage from the Odoms, were "paramount and superior" to the rights of BCFSB and its successors and assigns. That judgment did not contain specific findings of fact. The court denied BCFSB's motion for a new trial, and BCFSB appeals.
BCFSB argues that, because it recorded its certificate of judgment before the recording of the Odoms' deed and Central's mortgage, its rights in the property are superior to those held by the Odoms and by Central.[2] Alternatively, it argues that the court's implicit finding that the Odoms' possession was such as to give it notice of the Odoms' unrecorded deed and Central's unrecorded mortgage before it filed the certificate of judgment is not supported by the evidence.
At the outset, we note that the scope of this Court's review regarding the resolution of fact questions in ore tenus cases is restricted:
First Alabama Bank v. Martin, 425 So. 2d 415, 425 (Ala.1982). In addition, in cases such as this one, where the court did not make specific findings of fact, this Court will assume that the court made the findings necessary to support its judgment, unless such findings would be clearly erroneous *1281 and against the great weight and preponderance of the evidence. Hand v. Stanard, 392 So. 2d 1157, 1159 (Ala.1980).
BCFSB's first argument concerns the provisions of Ala.Code 1975, § 35-4-90(a). It contends that, pursuant to that section, once a judgment creditor records its certificate of judgment, all subsequently recorded conveyances are void as to that judgment. It directs this Court's attention to Johnson v. Haleyville Mobile Home Supply, Inc., 477 So. 2d 328 (Ala.1985), as support for its argument.
We do not agree. Section 35-4-90(a) gives judgment creditors, purchasers, and mortgagees priority over an earlier executed deed that has not been recorded only when the judgment creditor, purchaser, or mortgagee records its instrument without actual knowledge or constructive notice of the earlier conveyance. Therefore, simply winning the race to the courthouse and recording first is not enough to give a lienholder priority. It is also necessary that the judgment creditor, whose rights, if any, attach upon the act of recording, record its judgment without notice of the earlier deed. Smith v. Arrow Transp. Co., 571 So. 2d 1003 (Ala. 1990); Department of Revenue v. Price-Williams, 545 So. 2d 7 (Ala.1989); Gulf Oil Corp. v. Beck, 293 Ala. 158, 300 So. 2d 822 (1974).
The language of § 35-4-90(a) indicates that it was drafted, at least in part, to prevent the result argued for by BCFSB:
Ala.Code 1975, § 35-4-90 (emphasis added).
The principle that recording first creates superior rights only when the recording party does not have actual knowledge or constructive notice of prior unrecorded conveyances is an equitable principle of long standing that has been consistently applied in cases involving judgment creditors. Smith v. Arrow Transp. Co., supra; Gulf Oil, supra; W.T. Rawleigh Co. v. Barnette, 253 Ala. 433, 44 So. 2d 585 (1950); Burt v. Cassety, 12 Ala. 734 (1848). In Gulf Oil, this Court noted:
"`It results from this view, that as the judgment creditor had, by the possession of the complainant, constructive notice of her title, he acquired nolien upon the land, in virtue of his judgment.'"
293 Ala. at 160, 300 So. 2d at 823 (quoting Burt, supra, at 739; emphasis in original).
The character or quality of possession that is sufficient to provide notice has been described as "whatever is sufficient to put a party on inquiry" concerning possible competing claims to the property. Gamble v. Black Warrior Coal Co., 172 Ala. 669, 672, 55 So. 190, 190 (1911); Jefferson County v. Mosley, 284 Ala. 593, 226 So. 2d 652 (1969). Under § 35-4-90(a), judgment creditors and purchasers are "on the same footing." Gulf Oil, supra; Burt, supra; Therefore, the quantum of possession needed to put a judgment creditor on notice is no greater than that which is deemed sufficient to put a purchaser on notice. Id.
In addition, BCFSB's reliance on our opinion in Johnson, supra, is misplaced. The sole issue addressed in Johnson was whether a judgment creditor's rights had accrued upon the recording of the certificate of judgment even though the judgment debtor thereafter filed a motion for new trial. 477 So. 2d at 328. That opinion mentioned only summarily that the judgment creditor did not have notice of the deed that had been executed before it recorded its certificate of judgment. Id., at 329-30. Thus, Johnson did not address the issue that is central to the instant case, i.e., whether the judgment creditor had notice of unrecorded conveyances before it recorded its certificate of judgment.
BCFSB also argues that the evidence does not support the trial court's implicit finding that there was sufficient *1282 evidence of the Odoms' possession of the property to put it on notice of the Odoms' deed and, by inference, the subsequent mortgage to Central.[3] The determination of whether BCFSB was chargeable with notice of the Odoms' possession was a question of fact within the equity jurisdiction of the court. Hodges v. Beardsley, 269 Ala. 280, 283-84, 112 So. 2d 482, 484-85 (1959). Because the ore tenus rule applies to this case, the court's resolution of that question will not be reversed unless it is clearly erroneous or unsupported by credible evidence. May v. Campbell, 470 So. 2d 1188 (Ala. 1985).
The most important evidence supporting the trial judge's decision showed that the Odoms had redeemed the property from a prior tax sale before BCFSB recorded its certificate of judgment. As a result, a certificate of redemption in the Odoms' names, dated May 19, 1986, was issued by the Baldwin County tax collector's office.[4] Documents that show the payment of such taxes have been held to be competent evidence of the payor's claim of title. Gantt v. Phillips, 262 Ala. 184, 77 So. 2d 916 (1955). Mr. Odom testified that the property had been assessed in the Odoms' names from the time of the redemption. Thus, it appears that BCFSB had notice through the tax assessor's records that the Odoms claimed the property and had assessed it in their names.
There was also evidence of the Odoms' occupancy of the property that supports the trial court's determination that they "possessed" the property in a manner sufficient to put BCFSB on notice of their deed. An owner is not required to physically reside on property in order to establish possession. Instead, he need only make use of the property in a manner that is consistent with its nature. Hand, supra, at 1160; Turnham v. Potter, 289 Ala. 685, 271 So. 2d 246 (1972). The subject property is undeveloped beachfront property. Steve Odom testified that, during the period between the date of the deed and the date that BCFSB recorded its certificate of judgment, he and his wife repeatedly visited the property and walked its boundaries. They had it surveyed and had the corners marked with stakes. They also visited the property with real estate agents to discuss how to develop it and used it for family outings, picnics, swimming, and sunbathing.
This Court has recognized "that it is difficult, if not impossible, to lay down any general rule as to what facts will in every case be sufficient to charge a party with notice or put him on inquiry." Jefferson County v. Mosley, 284 Ala. at 599, 226 So. 2d at 656. However, in light of the evidence set out above, we cannot say that the trial judge's implicit finding that BCFSB had constructive notice of the Odoms' deed, and therefore also of Central's mortgage, Smith, supra, was clearly erroneous or not supported by credible evidence. Therefore, the judgment is due to be affirmed. Hand, supra.
AFFIRMED.
ALMON, SHORES, ADAMS and INGRAM, JJ., concur.
STEAGALL, J., concurs in the result.
MADDOX and KENNEDY, JJ., dissent.
HOUSTON, J., recused.
[1] The complaint named an additional lienholder as a defendant. However, a default judgment was entered against that defendant and it has not appealed. Therefore, only the lien asserted by BCFSB will be discussed.
[2] There is no indication that BCFSB made any effort to have a lis pendens notice filed against this property during the pendency of its action against Gulf Sun, see Ala.Code 1975, § 35-4-131; neither has BCFSB made a claim or defense in this action that Gulf Sun's conveyance to the Odoms was made with intent to defraud creditors, see § 8-9-6.
[3] Where a third party is in possession of property, a purchaser of that property or a judgment creditor is charged with constructive notice of the nature of the third party's title. Smith, supra; Gamble, supra. Therefore, if BCFSB had notice of the Odoms' claims, it also had notice of the Odoms' mortgage to Central.
[4] Although there is nothing in the record on this point, we note that the redemption of property that had been sold at a tax sale is a matter within the jurisdiction of the judge of probate. Ala.Code 1975, § 40-10-120 et seq. Records concerning such redemptions are kept by the judge of probate. § 40-10-127. | June 28, 1991 |
7a56b219-7418-4afb-b836-32ff9d5ce032 | Hicks v. Globe Life and Acc. Ins. Co. | 584 So. 2d 458 | 1900291 | Alabama | Alabama Supreme Court | 584 So. 2d 458 (1991)
Betty E. HICKS
v.
GLOBE LIFE AND ACCIDENT INSURANCE COMPANY and J.C. Phillips.
1900291.
Supreme Court of Alabama.
May 31, 1991.
Rehearing Denied July 12, 1991.
*459 Jere L. Beasley and Kenneth J. Mendelsohn of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellant Betty E. Hicks.
Philip H. Butler of Robison & Belser, Montgomery, for appellee Globe Life and Acc. Ins. Co.
James W. Garrett, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee J.C. Phillips.
PER CURIAM.
Betty E. Hicks sued Globe Life and Accident Insurance Company and its agent, J.C. Phillips, alleging intentional fraud arising out of the sale of a Globe hospitalization policy to Ms. Hicks. (We will sometimes refer to the defendants together as "Globe.") This is a fraud action involving a consumer transaction. The trial court entered a summary judgment for Globe and Phillips, holding, in pertinent part, as follows:
Ms. Hicks appeals.
This case was filed subsequent to June 11, 1987; therefore, the applicable standard of review is the "substantial evidence rule." "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., 547 So. 2d 870, 871 (Ala.1989); Ala.Code 1975, § 12-21-12; Economy Fire & Casualty Co. v. Goar, 551 So. 2d 957, 959 (Ala.1989). All reasonable doubts concerning the existence of a genuine issue of fact must be resolved in favor of the nonmoving party. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
As required under the applicable standard of review, we view the evidence in the light most favorable to Ms. Hicks. Viewed most favorably, that evidence is as follows:
Upon her retirement, Ms. Hicks had purchased a major medical health insurance policy with Blue Cross-Blue Shield ("Blue-Cross"). The Hicks family had no other health or medical insurance at the time. Ms. Hicks, whose husband had been disabled as the result of a stroke, often took her husband to the Luverne Nutritional Center ("the center") for lunch and for social activities. On March 13, 1985, Ms. Hicks had taken her husband to the center. On that same day, Phillips had made arrangements to come to the center to show a videotape that related to Medicare and Medicaid in order to make contacts to solicit sales of insurance. When Ms. Hicks returned to the center for her husband, even though Phillips had completed his presentation he introduced himself to Ms. Hicks; he questioned her concerning her insurance coverage and stated that he could save her money on a policy and provide her with a policy as good as, or better than, the one she already had. Phillips asked to come to her house to discuss the insurance in more detail, but Ms. Hicks told him that she was satisfied with her Blue Cross policy. Phillips persisted until Ms. Hicks agreed to allow him to come to her house to discuss the Globe policy. According to Ms. Hicks, Phillips arrived with a "big book which he used to go over certain items related to insurance" and told Ms. Hicks that if she was hospitalized due to an illness, the Globe policy would pay 80% of all hospital and doctor's bills with no deductible. Phillips also told Ms. Hicks that if she was not admitted to a hospital, the policy would not pay for any medical bills.
Initially, Ms. Hicks did not want to change policies, but based on Phillips's representations that the Globe policy would pay 80% of her hospital bills with no deductible, that the policy was comparable to her Blue Cross policy, and that the Globe policy would cost less than her Blue Cross policy,[1] Ms. Hicks decided to take the Globe policy. Thereafter, Phillips completed the application, and Ms. Hicks signed it. Three days later, Phillips delivered the policy to Ms. Hicks, who placed the policy in a desk drawer in her bedroom, without reading it. Subsequently, Ms. Hicks stopped paying premiums on the Blue Cross policy, causing that policy to lapse.
In April 1989, Ms. Hicks experienced shoulder pain and an irregular heartbeat. She was admitted to the hospital for a catherization. When her condition worsened, she was rushed to the CCU (critical care unit) for double bypass open heart surgery, for which she incurred medical expenses in excess of $40,000. Thereafter, Ms. Hicks submitted claims in the amount of $40,000 to Globe for her hospitalization.[2]*461 Globe refused to pay 80% of the submitted claim, because Ms. Hicks's policy was not a major medical policy. Globe paid only $8,925 of the $40,000, because the policy provided only limited benefits for hospital and surgical care. In June and August 1989, Ms. Hicks was readmitted to the hospital with other problems related to her circulatory system. Once again, Globe refused to pay 80% of the amount claimed by Ms. Hicks. Ms. Hicks sued Globe, alleging fraud.
Phillips said he did not specifically recall the meeting at Ms. Hicks's house or the discussion with Ms. Hicks, but that he was certain that he followed a standard procedurethat he went to her house with Globe brochures that outlined available coverage; reviewed these brochures with her; filled out the application in her presence, using the information she provided; obtained her signature on the application after she had had ample time to review the application; and received a $20 application fee and a deposit on the premium. Prior to his leaving, Phillips informed Ms. Hicks that the policy carried a 10-day "free look" provision that was clearly stated on the front of the policy, by which she could receive a refund if she returned the policy within that time period. He also left a receipt and a copy of the application with her. Subsequently, Globe mailed Ms. Hicks a copy of her application to review in order to ascertain if there were any errors on the application. Upon receipt of the approved application, Phillips then hand delivered the policy to Ms. Hicks and once again reviewed the policy with her, specifically addressing room and board amounts, accident coverage, surgical benefits, and intensive care. According to Phillips, at the time he met with Ms. Hicks, Globe did not sell a major medical policy. Furthermore, the application that Phillips filled out from information provided by Ms. Hicks clearly stated that the policy was not intended "to replace or change any existing accident and health insurance policy." According to Globe, Ms. Hicks testified that had she bothered to take the time to read either the application or the policy itself upon its delivery, she would have understood exactly what it stated and what coverage was provided. Ms. Hicks was not someone with a limited education who would have difficulty understanding the English language, insurance provisions, or medical termsMs. Hicks had graduated from college, had been certified as a registered nurse, and had taken post-graduate courses. Furthermore, according to Globe, when given an opportunity to review the policy during her deposition, Ms. Hicks stated that she found no provisions that she was unable to understand and that had she read the policy at the time she received it, she would have been able to understand it sufficiently to know of the alleged fraud.
The issues for our review are whether the trial court erroneously held that Ms. Hicks's reliance on Phillips's representations was unreasonable and whether the trial court erroneously held that Ms. Hicks's fraud claim was barred by the applicable statute of limitations.[3]
Ms. Hicks contends that the trial court applied the wrong standard when it entered the summary judgment for Globe based on the "reasonable reliance" standard instead of the "justifiable reliance" standard. She also contends that she presented substantial evidence of justifiable reliance, so as to preclude the summary judgment.
As Ms. Hicks points out in her brief, in Harris v. M & S Toyota, Inc., 575 So. 2d 74 (Ala.1991), this Court stated that it has abandoned the reasonable reliance standard:
575 So. 2d at 77. (Emphasis added.)
In the case at bar, Globe's reliance argument hinges on the fact that Ms. Hicks had the policy in her possession but chose not to read it. Globe contends that, given Ms. Hicks's educational background and her ability to understand the nature of the transaction and its ramifications, as well as Phillips's testimony that he followed the standard procedure of explaining the policy's coverage in detail to Ms. Hicks, it is clear that Ms. Hicks closed her eyes to the truth and, therefore, cannot be said to have justifiably relied on the representations made by Phillips.
Globe mistakenly places the emphasis for its reliance argument on the circumstances surrounding Ms. Hicks's receipt of the policy and her failure to read it. The fact of the matter is that the fraud occurred, if it occurred at all, at the time Ms. Hicks paid the $20 application fee and gave Phillips the deposit on the premium for the policy, relying on his alleged statements as to the type of and amount of coverage provided by the Globe policy, not at the time she received the policy. See Liberty National Life Insurance Co. v. Sherrill, 551 So. 2d 272 (Ala.1989); Southern Life & Health Ins. Co. v. Smith, 518 So. 2d 77 (Ala.1987). Such statements by Phillips at the time of the application could have induced Ms. Hicks to actto cancel her then-existing major medical policy with Blue Cross and to replace it with what she believed to be a comparable, if not better, policy with Globe. The Globe application, which Phillips filled out from information provided by Ms. Hicks and which Ms. Hicks signed, does not clearly indicate the terms of the policy. Thus, the jury could have found that Ms. Hicks justifiably relied on Phillips's representations.
Accordingly, we hold that the trial court erred in holding that, as a matter of law, there had been no reliance that would support the fraud action.
Ms. Hicks contends that the trial court erroneously held that her fraud claim against Globe was barred by the applicable statute of limitations, because "she had the policy in her possession and could have discovered the alleged fraud." Although Ms. Hicks concedes that she filed her suit more than two years after she had purchased the Globe policy, she contends that because she filed it within eight months of Globe's refusal to pay the benefits she expected to receive based on the representations of Phillips, her suit was not barred by the statute of limitations.
The question of whether Ms. Hicks should have discovered the alleged fraud when she received the policy, so as to begin the running of the statutory limitations period is a question for the jury. It would be anomalous to hold on one hand that the plaintiff could justifiably rely on the alleged *463 fraudulent representations of Phillips, but to hold, on the other hand, that because of that reliance she cannot bring a fraud action. In Harris v. M & S Toyota, Inc., d/b/a Toyota City, supra, this Court enunciated its policy toward fraudulent business practices perpetrated on consumers:
575 So. 2d at 77-78.
This Court's adoption of the subjective standard of justifiable reliance did not change the objective standard used to determine when a party should have discovered fraud for the purpose of the statute of limitations. However, the mere fact that the standard is an objective one does not foreclose a jury determination of the issue. The law in Alabama has long been that "[t]he question of when a party discovered or should have discovered fraud which would toll the statute of limitations is for the jury." Thompson v. National Health Ins. Co., 549 So. 2d 12, 14 (Ala.1989) (quoting Vandegrift v. Lagrone, 477 So. 2d 292, 295 (Ala.1985)); see, Hickox v. Stover, 551 So. 2d 259 (Ala.1989); Deupree v. Butner, 522 So. 2d 242 (Ala.1988); Davis v. Brown, 513 So. 2d 1001 (Ala.1987); Myers v. Geneva Life Ins. Co., 495 So. 2d 532 (Ala.1986); Elrod v. Ford, 489 So. 2d 534 (Ala.1986); American Pioneer Life Ins. Co. v. Sandlin, 470 So. 2d 657 (Ala.1985); Thomaston v. Thomaston, 468 So. 2d 116 (Ala.1985); Osborn v. Johns, 468 So. 2d 103 (Ala.1985); Ratledge v. H & W, Inc., 435 So. 2d 7 (Ala. 1983); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981); Sims v. Lewis, 374 So. 2d 298 (Ala.1979); Cities Service Oil Co. v. Griffin, 357 So. 2d 333 (Ala.1978); Mitchell Homes, Inc. v. Tew, 294 Ala. 515, 319 So. 2d 258 (1975); Loch Ridge Construction Co. v. Barra, 291 Ala. 312, 280 So. 2d 745 (1973); State Security Life Ins. Co. v. Henson, 288 Ala. 497, 262 So. 2d 745 (1972); and Central of Georgia Ry. v. Ramsey, 275 Ala. 7, 151 So. 2d 725 (1962). See, also, Independent Life & Acc. Ins. Co. v. Parker, 470 So. 2d 1289 (Ala.Civ. App.1985); Wilson v. Draper, 406 So. 2d 429 (Ala.Civ.App.1981); Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So. 2d 591 (1975).
The question of when a plaintiff should have discovered fraud should be taken away from the jury and decided as a matter of law only in cases where the plaintiff actually knew of facts that would have put a reasonable person on notice of fraud. See, e.g., Sexton v. Liberty National Life Ins. Co., 405 So. 2d 18 (Ala.1981); Seybold v. Magnolia Land Co., 376 So. 2d 1083 (Ala. 1979). In Seybold, the Court stated that "[i]t is sufficient to begin the running of the statute of limitations that [the] claimant knew of facts which would put a reasonable mind on notice of the possible existence of fraud." 376 So. 2d at 1087 (citing Jefferson County Truck Growers Ass'n v. Tanner, 341 So. 2d 485, 488 (Ala.1977) (plaintiff had actual knowledge of facts sufficient to provoke inquiry by a reasonable person). (Emphasis added.)
To hold otherwise would be to nullify the saving provision of Ala.Code 1975, § 6-2-3, in cases where the alleged tort-feasor gives the consumer a written document. Such a holding is contrary to the purpose of the saving provision and the spirit of this Court's recent cases wherein the burden in consumer fraud cases has rightfully been *464 shifted to the one allegedly committing the fraud. See Hickox v. Stover, supra, and Harris v. M & S Toyota, supra.
We note Globe's reliance on Nichols v. North American Equitable Life Assur. Co., 502 So. 2d 375 (Ala.1987), in support of its position that Ms. Hicks should have known of the alleged fraud because she had possession of the policy. However, a close reading of the Nichols case reveals that it does not support such a proposition. Rather, Nichols holds that, in order to commence the running of the limitations period, a plaintiff must have actual knowledge of facts that would lead a reasonable person to discover the alleged fraud. In fact, Nichols is a good example of how such knowledge is obtained and when it is proper to determine that, as a matter of law, the plaintiff should have discovered the alleged fraud.
In Nichols, the plaintiff, who had suffered from a chronic knee problem since 1977 or 1978, purchased a group medical insurance policy effective November 1, 1981. The plaintiff alleged that the insurer had represented to him that the policy would cover the pre-existing knee problem. In November 1982, the plaintiff had arthroscopic surgery on his knee; he subsequently filed a claim with the insurer for the surgery. However, the plaintiff refused to provide certain information that the insurer requested. On April 4, 1983, the insurer mailed the plaintiff a letter stating that it could not process the claim without further information and that the policy did not cover pre-existing conditions. The plaintiff admitted in deposition that when he received that letter, he knew that the policy would not cover the surgery on his knee. Although he admitted that on receipt of the April 4, 1983, letter he had knowledge of the alleged misrepresentation, he did not file his fraud action until May 1, 1984. The plaintiff conceded that he had received the April 4 letter at some point before May 1, 1984. Therefore, the trial court held that the plaintiff's fraud claim was barred by the applicable statute of limitations[4] and entered a summary judgment in favor of the insurer. This Court affirmed that judgment, because the plaintiff admitted that he knew of the misrepresentation when he read the letter that the insurer had mailed to him on April 4, 1983that is, the plaintiff actually knew before May 1, 1983, that the terms of the policy had been misrepresented to him. This Court, however, did not hold that the plaintiff should have known of the alleged misrepresentation in November 1981 when he received a copy of the insurance policy.
We have reviewed the record thoroughly and have found no evidence that Ms. Hicks had actual knowledge that the Globe policy was not a major medical policy as Phillips allegedly represented to her. To the contrary, all of the evidence before the trial court suggested that Ms. Hicks did not know until her bypass surgery that the Globe policy was not a major medical policy. Phillips admits that he went to the center and showed a videotape relating to Medicare and Medicaid, in order to obtain prospects to sell insurance. Ms. Hicks testified in her deposition that Phillips told her the Globe policy would provide her with a policy as good as, or better than, the one she already had with Blue Cross. She also testified that she purchased the Globe policy based on Phillips's representations that the Globe policy was a major medical policy and, therefore, that she allowed her Blue Cross policy to lapse. In fact, what Ms. Hicks purchased was not a major medical policy, but a limited benefits policy; by the change in policies she received a savings of only $9.14 per month. Thus, the jury could have concluded that Ms. Hicks acted reasonably with regard to her discovery of the alleged fraudthat Ms. Hicks acted reasonably in not discovering the alleged fraud until Globe refused to pay 80% of the cost of her bypass surgery. Therefore, the question of when Ms. Hicks should have discovered the fraud so as to begin the *465 running of the statutory period of limitations should be decided by a jury. Accordingly, we reverse the summary judgment and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, KENNEDY and INGRAM, JJ., concur.
SHORES, J., concurs in the result.
MADDOX, HOUSTON and STEAGALL, JJ., concur in part and dissent in part.
ALMON, J., dissents.
SHORES, Justice (concurring in the result).
I agree that the judgment is due to be reversed and the cause remanded for a trial. I do not agree with the conclusion of the majority that Mrs. Hicks stated that she would have been able to understand the policy had she read it. What she said was:
First, I do not believe this can reasonably be construed to be an unequivocal statement by Mrs. Hicks that she could have understood the policy had she read it. Second, I would not "hold her" to that statement even had she made it. It is unrealistic to conclude that a layman, even one with a college education, such as Mrs. Hicks, could understand an insurance policy if she read it. History teaches, and the reported cases from this Court, and all others, evidence that all too often judges and lawyers disagree on the meaning of insurance policies.
I believe a jury should decide whether Mrs. Hicks was justified in relying on the statements made to her about the scope of the coverage she was being offered by Globe's agent. Common sense teaches that one would not cancel major medical coverage for less coverage unless there was a greater saving in premium than that involved here or the scope of the coverage being offered was misrepresented.
I also believe a fact issue exists as to when Mrs. Hicks discovered, or should have discovered, that she had been a victim of fraud. For these reasons, I concur in the result of the per curiam opinion.
HOUSTON, Justice (concurring in part and dissenting in part).
Because of this Court's recent adoption of the new subjective "justifiable reliance" standard of review in fraud cases, I must concur with that portion of the per curiam opinion holding that the trial court erred in basing its summary judgment on a lack of reliance; I agree that the issue of reliance would have been a jury question, had the summary judgment not otherwise been proper. However, I disagree with the per curiam opinion in its disposition of the statute of limitations issue. Therefore, I respectfully dissent from the per curiam opinion as to that issue.
Based on the holding in this case, it would appear that the Court has established, without articulating it as such, that the affirmative defense of the statute of limitations is contingent upon the issue of justifiable reliancein other words, that if a plaintiff receives a policy, whether or not he reads the policy and whether or not he could have understood its provisions, the question of when that plaintiff discovered the fraud for purposes of the statute of limitations is a question for the jury, if that plaintiff's reliance on the alleged representations was not unjustifiable as a matter of law or if the question of whether the plaintiff's reliance was justifiable was a jury question. See, Hickox v. Stover, 551 So. 2d 259 (Ala.1989); see, also, Thompson v. National Health Ins. Co., 549 So. 2d 12 (Ala. 1989), and Vandegrift v. Lagrone, 477 So. 2d 292 (Ala.1985).
The aims and purposes of a statute of limitations are adequately set forth in 51 Am.Jur.2d Limitations of Actions § 17 (1970) as follows:
Whereas the general statute of limitations for a fraud action, Ala.Code 1975, § 6-2-38, provides that any such action must be commenced within two years from the date of the fraud, the "saving provision" (Ala.Code 1975, § 6-2-3, "Accrual of claimFraud"), since its inception, has extended the time period for a right of action until the party either discovered or should have discovered the fraud:
If it appears that the statutory period has expired, then the burden is on the party bringing the fraud action to show that he comes within the purview of this saving provision. See, Lowe v. East End Memorial Hospital, 477 So. 2d 339 (Ala. 1985); Russell v. Maxwell, 387 So. 2d 156 (Ala.1980); and Amason v. First State Bank of Lineville, 369 So. 2d 547 (Ala. 1979).
Parsons Steel, Inc. v. Beasley, 522 So. 2d 253, 256 (Ala.1988).
Although I recognize, all too well, that this Court in Hickox v. Stover, supra, by adopting the rationale of Chief Justice Hornsby's special concurrence in Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1087-92 (Ala.1989),[5] as it related to *467 the issue of reliance in fraud cases, established the new subjective standard of "justifiable reliance," I am convinced that that decision in no way altered the objective standard by which to determine the statute of limitations issue in fraud cases. Clearly, the objective standard that the courts use in order to determine when one "discovered" the alleged fraud for purposes of the statute of limitations issue is not, and should not be misconstrued as being, in any way analogous to the subjective standard by which the courts determine whether one justifiably relied on the representations of another. Chief Justice Hornsby, in his special concurrence in Southern States Ford, Inc. v. Proctor, supra, at 1090-91, specifically emphasized this distinction and specifically addressed the correct standard to apply for purposes of the statute of limitations issue in fraud cases:
541 So. 2d at 1091. (Some emphasis original; other emphasis added.)
*468 As Chief Justice Hornsby so aptly stated in his special concurrence in Southern States Ford v. Proctor, quoted above, whereas the issue of reliance should be decided according to a subjective standard (measuring whether Ms. Hicks's reliance was justifiable), not according to an objective standard (measuring the reasonableness of her reliance), the issue of reliance should "certainly not [be decided] by resort to an inappropriate analogy to a statute of limitations concern." 541 So. 2d at 1091.
Furthermore, as stated in Vance v. Huff, 568 So. 2d 745, 751 (Ala.1990):
Some of the cases dealing with statute of limitations issues may be distinguishable in regard to the question of when the plaintiff discovered the alleged fraud, because of the technicality of the terms in the documents or because of the educational background of the parties; and the mere fact that one has the ability to read and/or possesses a certain educational background does not alone create an inference that the party could or could not have understood the policy had that party read it. See, Liberty National Life Insurance Co. v. Sherrill, 551 So. 2d 272 (Ala.1989); Traylor v. Bell, 518 So. 2d 719 (Ala.1987). However, such is not the case here. Rather, it is undisputed that when Phillips hand delivered the policy to Ms. Hicks (who had a college degree, was a trained registered nurse, and had taken post-graduate courses), she put the policy in a drawer without reading it. There are no allegations that Phillips tried to prevent Ms. Hicks from reading the policy or that she did not have sufficient time to read the policy.
Globe contends that the trial court was justified in holding that Ms. Hicks's fraud claim was barred by the statute of limitations for the following reasons: Ms. Hicks read the application prior to paying the deposit on the premium and before paying the application fee; she had a further opportunity to review the application for any inconsistencies prior to receiving the policy; she had the opportunity to read the policy that Phillips delivered, which he thoroughly explained to her upon its delivery. Globe also contends that given the clear language of the policy and given Ms. Hicks's educational background, had she read the policy upon its receipt, she would have discovered that the policy provided only limited benefits coverage.
Ms. Hicks merely contended that because she relied on Phillips's representation that the Globe policy provided major medical coverage, she did not need to read the policy. She also contended that one would have to read several pages into the policy before learning that the Globe policy provided benefits different from those represented by Phillips, and that neither the application nor the policy clearly contradicted Phillips's representation.
Applying the objective standard in assessing the statute of limitations issue in this case, in which, I believe, is incorporated the duty to read a document upon its receipt, it was incumbent upon Ms. Hicks to exercise some measure of self-protection in order to ensure that the Globe policy she purchased provided the type of coverage that Phillips allegedly representedthat is, she had the duty to review the Globe policy upon its receipt in order to ascertain if that policy did in fact provide major medical coverage, as Phillips had allegedly represented. Under this objective standard, the question would then become whether Ms. Hicks would have, or should have, discovered the fraud if she had exercised even minimal precaution by reading the policy before she placed it in the drawer.
*469 I think that the following pertinent portion of Ms. Hicks's deposition testimony clearly establishes, as Globe contended, that had Ms. Hicks read the Globe policy upon its receipt, had she exercised some precaution, even minimally, to safeguard her interests, she would have understood the provisions of the policy and could have "discovered" the alleged fraud for purposes of the statute of limitations issue:
(Emphasis added.)
Based on Ms. Hicks's own admission, had she read the Globe policy upon receiving it, i.e., had she exercised some precaution to safeguard her interests, she could have understood the provisions of the policy and, therefore, would have "discovered" that the policy did not provide major medical coverage as allegedly represented by Phillips. Therefore, because Ms. Hicks failed to meet her burden of presenting evidence to establish that she came within the purview of § 6-2-3, I would affirm the trial court's holding that Ms. Hicks's fraud claim was barred by the statute of limitations, and I would affirm the summary judgment.
MADDOX and STEAGALL, JJ., concur.
ALMON, Justice (dissenting).
In light of subsequent developments, I realize that I should have concurred specially in Hickox v. Stover, 551 So. 2d 259 (Ala.1989). The adoption in part B of that opinion of the "justifiable reliance" standard in fraud cases caused a change in the law of fraud. I believe that the evidence in Hickox presented a jury question on the issue of reliance under the "reasonable reliance" standard because of the complexity of the insurance provisions at issue and because the communications from the insurance agent did not put the insured on notice as a matter of law of the alleged misrepresentation that the new policy was as good as the old.
The traditional standard of "reasonable reliance" provided a flexible concept adaptable to the circumstances of each case, including the relative sophistication and bargaining powers of the parties. The new standard of "justifiable reliance" gives to parties claiming fraud undue leeway to ignore written contract terms and allows in *470 some cases the automatic creation of a jury issue by a plaintiff's statement in contradiction of such written terms.
This case presents an example of the perils of the "justifiable reliance" standard: the new policy was clearly not a major medical policy, and the plaintiff was a former nurse who admittedly could have understood the difference between this hospitalization and surgery policy and a major medical policy if she had simply glanced at it. I do not think it is reasonable for a college-educated person to simply drop an insurance policy into a drawer without even a cursory look at it and later to claim that she has been defrauded.[6] I would affirm the summary judgment for the defendants.
[1] The monthly cost of the Globe policy was $84 ($252 every three months). The monthly cost of the Blue Cross policy was $93.14 ($186.28 every two months).
[2] We note, from a thorough review of the record, that at some time prior to Ms. Hicks's submission of this claim, she had submitted other claims to Globe for which she was paid, apparently under the terms of the policy and in an amount that she deemed adequate. See Record pp. 413-15.
[3] The applicable statute of limitations was two years. Ala.Code 1975, § 6-2-38(l).
[4] In Nichols, the applicable statutory period of limitations for fraud actions was one year. The one-year statute, Ala.Code 1975, § 6-2-39, was repealed effective January 9, 1985, and fraud actions were on that date transferred to the two-year statute. Ala.Code 1975, § 6-2-38. Therefore, for purposes of the present appeal, the applicable period of limitations is two years.
[5] In his special concurrence, Chief Justice Hornsby specifically distinguished those cases involving consumer transactions, such as the instant case, from those cases involving commercial transactions as they related to the issue of reliance, maintaining that "the objective standard of `reasonable reliance'" correctly employed in commercial transactions "should not have subsequently trod into the arena of consumer transactions" in which the subjective standard of "justifiable reliance" should be employed. See Vance v. Huff, 568 So. 2d 745 (Ala. 1990) (a case involving a commercial transaction).
[6] Alabama Code 1975, § 27-12-6, prohibits insurance agents from "misrepresenting or making misleading incomplete comparisons as to the terms, conditions, or benefits" of an offered policy for the purpose of inducing its substitution for an existing policy. This Court has held that allegations of violations of this statute can support a claim of fraud. See Guinn v. American Integrity Ins. Co., 568 So. 2d 760 (Ala.1990); 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); Tribble v. Provident Life & Acc. Ins. Co., 534 So. 2d 1096 (Ala. 1988); and Jarrard v. Nationwide Mutual Ins. Co., 495 So. 2d 584 (Ala.1986). Even with a legislatively declared policy against such statements, an applicant must have some duty to look out for his or her own interest. | May 31, 1991 |
d956b95d-9c56-4c2d-90b6-752b70217cf1 | Ex Parte Jenkins | 586 So. 2d 176 | 1900878 | Alabama | Alabama Supreme Court | 586 So. 2d 176 (1991)
Ex parte Cleveland JENKINS.
(Re Cleveland Jenkins v. State of Alabama.
1900878.
Supreme Court of Alabama.
June 14, 1991.
Cleveland Jenkins, pro se.
James H. Evans, Atty. Gen., and David B. Karn, Asst. Atty. Gen., for respondent.
HOUSTON, Justice.
Cleveland Jenkins, on the advice of his attorney, pleaded guilty to second degree robbery, a class B felony, and was sentenced in the Escambia County Circuit Court to life in the penitentiary under Alabama's Habitual Felony Offender Act, Ala. Code 1975, § 13A-5-9. Jenkins did not appeal from that conviction and sentence. Jenkins later filed a timely post-conviction petition for relief from judgment under Rule 20, Temp.A.R.Crim.P.,[1] asserting, among other things, that he had not been effectively represented by his attorney and that, as a result, he had received an excessive sentence. The trial court dismissed Jenkins's petition without a hearing, apparently ruling that his claims were procedurally barred under Rule 20.2(a)(5), supra. Rule 20.2(a)(5) precludes relief based upon any ground "[w]hich could have been but was not raised on appeal, unless the ground for relief arises under Rule 20.1(b)" (lack of jurisdiction to render a judgment or impose a sentence). The Court of Criminal Appeals affirmed the dismissal 579 So. 2d 711, specifically holding that all of the grounds for relief asserted by Jenkins in his Rule 20 petition, including his claim of ineffective assistance of counsel, were precluded under Rule 20.2(a)(5). Jenkins then petitioned for a writ of certiorari, which we issued pursuant to Rule 39, Ala. R.App.P. We affirm in part, reverse in part, and remand.
The record in this case shows that those grounds asserted by Jenkins in his Rule 20 petition other than his claim of ineffective assistance of counsel were procedurally barred under Rule 20.2(a)(5); *177 therefore, the trial court and the Court of Criminal Appeals properly refused to consider them to be a basis for granting the relief requested. However, Jenkins's ineffective assistance of counsel claim was reviewable pursuant to Rule 20.1(a). See Ex parte Lockett, 548 So. 2d 1045 (Ala.1989); Ex parte Clisby, 501 So. 2d 483 (Ala.1986).
Citing Snipes v. State, 404 So. 2d 106 (Ala.Crim.App.1981), cert. quashed, 404 So. 2d 110 (Ala.1981), Jenkins argues that his attorney failed to properly investigate his prior convictions in Florida, which were all based upon pleas of nolo contendere, to determine whether evidence of those convictions should have been admitted for the purpose of enhancing his sentence. After carefully reviewing the record, we conclude that Jenkins's Rule 20 petition appears to have merit. If, as the record indicates, the Florida convictions were used to enhance Jenkins's sentence under the Habitual Felony Offender Act, then Jenkins would be entitled to relief, because Alabama law prohibits the introduction of evidence of previous convictions based on pleas of nolo contendere for enhancement purposes. See Snipes v. State, supra. See, also, Davis v. State, 507 So. 2d 1023 (Ala.Crim.App.1986); Harrison v. Jones, 880 F.2d 1279 (11th Cir.1989). It would appear, therefore, that under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the representation provided to Jenkins with respect to his sentencing on the robbery charge fell below an objective standard of reasonableness and that there is a reasonable probability that, but for his attorney's failure to object to the use of the Florida convictions, the sentence would not have been as long. See, also, Harrison v. Jones, supra. Our conclusion in this regard is strengthened by the district attorney's initial response to Jenkins's petition:
For the foregoing reasons, we hold that the Court of Criminal Appeals erred in holding that Jenkins's claim of ineffective assistance of counsel was procedurally barred under Rule 20.2(a)(5). Accordingly, the judgment of the Court of Criminal Appeals is affirmed in part and reversed in part, and the case is remanded for a consideration of the merits of Jenkins's ineffective assistance of counsel claim.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs in the result.
[1] We note that post-conviction remedies are now governed by Rule 32 of the new Alabama Rules of Criminal Procedure, which became effective January 1, 1991. | June 14, 1991 |
c54f72bd-6f0d-4fee-9f6b-7b57073a13b7 | Apley v. Tagert | 584 So. 2d 816 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 816 (1991)
Melvin P. APLEY, et al.
v.
Claude Earl TAGERT, Jr., et al.
89-1828.
Supreme Court of Alabama.
June 14, 1991.
Rehearing Denied July 26, 1991.
John W. Parker of Parker & McNair, Mobile, for appellants.
Sidney H. Schell of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellees.
MADDOX, Justice.
The issue in this case is whether an easement or right of way by prescription exists over a certain parcel of property.
*817 On November 13, 1959, James and Aleye Kuffskie deeded a parcel of property (known then as 871 West Kuffskie Drive) to Claude and Patricia Tagert. This deed states in part:
Sixteen years later, on October 20, 1975, the Kuffskies deeded lot 2 of the Kuffskie Subdivision to Melvin and Marilyn Apley. A small strip of land along the northern boundary of lot 2 included what had been known as West Kuffskie Drive, the same right of way mentioned in the Kuffskies' deed to the Tagerts. (See Appendix A.) The Kuffskies' deed to the Apleys states that the Apleys took subject to the following:
This easement for drainage and utilities runs alongside the right of way formerly known as West Kuffskie Drive.
On February 15, 1990, the Apleys filed a declaratory judgment action against the Tagerts, requesting the trial court to determine the Apleys' rights in a paved driveway that runs across the northern boundary of their property and requesting the trial court to issue a permanent injunction ordering the Tagerts to cease and desist from using this paved driveway.
Both the Apleys and the Tagerts made motions for summary judgment, and on August 27, 1990, the trial court entered a summary judgment in favor of the Tagerts, holding that the Tagerts had obtained an easement by prescription in the paved drive across the Apleys' land. The trial court stated:
The sole question presented, of course, is whether the evidence before the trial court on the summary judgment motion required a finding of an easement or right of way by prescription so that the Tagerts were entitled to a judgment as a matter of law. The Apleys maintain that the evidence shows that the Tagerts' use of the property was permissive rather than adverse and exclusive. We disagree, and hold that the evidence presented to the trial judge requires an award of summary judgment in favor of the Tagerts.
The evidence presented to the trial court reveals that when the Tagerts purchased their property from the Kuffskies in 1959, West Kuffskie Drive was being graded by Mobile County and that it was graded by the county until 1968, when Mr. Kuffskie and Mr. Tagert paved that road at their own expense. Until 1965, the Mobile Cross Reference Directory listed the Tagerts' address as 871 West Kuffskie Drive. West Kuffskie Drive is the sole means of ingress to the Tagerts' property, and the Tagerts have continually used West Kuffskie Drive as ingress to and egress from their property for over 30 years. Additionally, the City of Mobile maintained a street sign on West Kuffskie Drive until approximately 1980, when a school was built west of the Tagerts' property. At that time, the Mobile Police Department placed a "Dead End" sign at the entrance of West Kuffskie Drive and had the Tagerts barricade West Kuffskie Drive at their west property line.
An easement by prescription is created by one party's use of another's land, for the period of prescription, in a manner as would be privileged if an easement existed, provided the use is adverse and, for the period of prescription, continuous and uninterrupted. In Alabama, no easement by *818 prescription exists if the easement has not been in existence for at least 20 years. Hereford v. Gingo-Morgan Park, 551 So. 2d 918 (Ala.1989). In Bull v. Salsman, 435 So. 2d 27 (Ala.1983), this Court set out the requirements for establishing an easement by prescription, as follows:
435 So. 2d at 29.
In Belcher v. Belcher, 284 Ala. 254, 224 So. 2d 613 (1969), the trial court permanently enjoined a party from blockading a roadway across his property or from interfering with the use of the road. That party appealed to this Court. The evidence presented in that case showed that the appellees had used the road for more than 20 years, that the appellees' children used the road to go to and from school, that visitors had used the road to visit the appellees, and that the road was the only means of vehicular ingress to and egress from the appellees' property. Still, the appellants argued that the use of the road by the appellees was neither under a claim of right nor adverse. The appellees argued that the owner of a dominant estate need not show continued use by himself for the prescriptive period to establish an easement, but may tack the use by his predecessor in title. This Court stated:
284 Ala. at 257, 224 So. 2d at 615.
The Apleys argue that the Tagerts' use of the road was neither adverse nor exclusive because the Kuffskies retained an easement in the road when they deeded the property to the Tagerts and because the Kuffskies, together with the Tagerts, paved the road in 1968. This Court, in Belcher, addressed the issue of exclusive use. Quoting 4 Tiffany Real Property, § 1199 (3d ed. 1975), this Court stated:
In Wilson v. Waters, 192 Md. 221, 229, 64 A.2d 135, 138 (1949), a case cited by this Court in Belcher, the Maryland Court of Appeals held the following:
Quoted at 284 Ala. at 257, 224 So. 2d at 615.
In the recent case of Roberts v. Wilbur, 554 So. 2d 1029 (Ala.1989), Wilbur filed a complaint to have a prescriptive easement declared in her favor over the land of the Robertses. Since 1941, Wilbur had used a road running across certain property that the Robertses purchased in 1967. In 1987, the Robertses built a fence across that road. The trial court heard testimony that Wilber's employers had used the road for many years to take her to and from work, that Wilber's brother had used the road to deliver groceries to her and to the prior owners of the land, and that the road had been Wilber's only means of ingress to and egress from her property for many years prior to the creation of a new means of access to her property. The Robertses argued that Wilber's use was permissive because neither they nor the previous owners had interfered with Wilber's use of the road. This Court stated that "[t]he presumption is that the user is permissive rather than adverse, unless it is shown otherwise," citing West v. West, 252 Ala. 296, 40 So. 2d 873 (1949); nevertheless, this Court affirmed the trial court's conclusion that the evidence presented was sufficient to overcome that presumption, and it held:
554 So. 2d at 1030.
The facts in this case are very similar to those in Belcher and in Roberts. The evidence shows that the Tagerts have used the right of way previously known as West Kuffskie Drive for over 30 years, as have the Tagerts' visitors, postmen, meter readers, deliverymen, and garbagemen. The road is the only means of ingress to and egress from the Tagerts' residence and was designated as a public road by Mobile County before being paved by the Kuffskies and the Tagerts when the county decided it would no longer maintain the road. When the Kuffskies deeded property to the Tagerts, the Kuffskies retained an easement in West Kuffskie Drive where it crosses the Tagerts' property. However, the evidence is undisputed that the Tagerts have continued to use this road as the sole means of passage to their property and have so used it for the prescriptive period.
In affirming the summary judgment, we reiterate what this Court stated in Belcher, that it is not necessary that the party seeking an easement be the only one who has used or who has been entitled to use the road, "so long as he used it under a claim of right independently of others.... [T]he user of another's land for purposes of passage, if continued for the prescriptive period, may operate to create an easement of a right of way, although the owner of the land also passes upon the same line...." 284 Ala. at 257, 224 So. 2d at 615. (Emphasis added.) When the Apleys purchased their lot in 1975, the evidence is undisputed that they were aware of the road across their property and were aware that the Tagerts were using this road for access to their property.
Based on the foregoing, we hold that the trial court correctly concluded that the evidence in this case required a finding that the Tagerts' use of the road had been open, obvious, and continuous since 1957, that they had clearly used the road under an exclusive claim of right for more than 20 years prior to the time the Apleys filed suit in 1989, and therefore, that the Tagerts were entitled to a judgment as a matter of law.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. *820 | June 14, 1991 |
c5cdf928-765b-4a41-8802-58cd83215edf | Guin v. Carraway Methodist Medical Ctr. | 583 So. 2d 1317 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 1317 (1991)
Rhonda Darlene GUIN and Elijah M. Thomas, Jr.
v.
CARRAWAY METHODIST MEDICAL CENTER.
89-1838.
Supreme Court of Alabama.
June 21, 1991.
*1318 Anthony G. George of Davis & Goldberg, Birmingham, for appellants.
William Kent Upshaw of Holt, Cooper & Upshaw, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment in favor of Carraway Methodist Medical Center (hereinafter "Carraway"). The case began as an interpleader action when Liberty National Life Insurance Company (hereinafter "Liberty National") interpleaded the proceeds of three hospital accident policies and asked the court to decide to whom the proceeds belonged. Having surrendered the amount of the policies to the court, Liberty National was discharged. After realigning the parties, the trial court granted Carraway's motion for summary judgment. The plaintiffs appeal. We affirm.
Rhonda Guin was accidentally shot in the chest and received treatment at Carraway from July 22, 1989, through September 1, 1989. Carraway's charges for Guin's treatment totalled $107,559.50. At the time of her injury, Guin was insured by Liberty National under three hospital accident policies providing a total of $25,445 in benefits. Guin's husband, as agent for his wife Rhonda, assigned to Carraway the benefits under the policies.
On September 29, 1989, Guin's husband submitted to Liberty National a claim for the policy proceeds. Faced with claims from both Guin and Carraway, Liberty National filed this interpleader action on December 28, 1989, asking the court to determine which party was entitled to the proceeds.
On February 2, 1990, Carraway filed a cross-claim against Guin for the total amount owed on her hospital bill. On February 9, 1990, Carraway also filed a hospital lien for the total amount owed by Guin. Carraway claims the proceeds under the assignment and pursuant to Alabama Code 1975, § 22-21-7(g).
Guin and her father, Elijah Thomas (plaintiffs), claim they are entitled to the proceeds because, they say, the assignment by Guin's husband, who had no interest in the policies, was not effective. Thomas claims that he paid the policy premiums; therefore, he says, he is the owner of the policies. Guin was the named insured on the policies. The plaintiffs also allege that Carraway's hospital lien was not perfected within the statutory period; therefore, they say, Carraway should not be entitled to the proceeds.
The trial court entered a summary judgment, holding that Carraway was entitled to the proceeds under its hospital lien, pursuant to Alabama Code 1975, § 35-11-370, *1319 The plaintiffs appeal, arguing (1) that Carraway failed to comply with the requirements for perfecting a lien stated in Alabama Code 1975, § 35-11-370, and (2) that the assignment of the policy proceeds is unenforceable.
We must determine whether the trial court erred in entering the summary judgment for Carraway. Rule 56, A.R.Civ.P., provides a two-part test for determining whether 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. On appeal from a summary judgment, the reviewing court must view the evidence before the court on the motion for summary judgment in the light most favorable to the non-movant. 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).
In this case, the parties do not dispute the facts. The issue is a question of law as to the ownership of the policy proceeds. The trial court based its summary judgment on § 35-11-370, which states:
As asserted by Carraway and determined by the trial court, this section was intended to give hospitals and other health care providers an automatic lien for the reasonable value of their services provided.
The plaintiffs argue that Carraway's lien was not filed within the 10-day period set out in § 35-11-371 and therefore is invalid. We disagree. According to § 35-11-370, Carraway was granted an automatic lien, because Guin was admitted to Carraway within one week of the date she was shot. The plaintiffs' argument concentrates on the issue of perfection. The date Carraway's lien was perfected would be relevant in this case if there were other creditors claiming the policy proceeds. The date Carraway perfected its lien would determine who had priority in claiming the policy proceeds. In this case, the only parties claiming the proceeds are the plaintiffs and Carraway; therefore, the date Carraway's lien was filed, or "perfected," does not affect the lien. The delay in filing left Carraway an unsecured creditor from the date of Guin's admission until the date of filing.
Many other states have statutes giving hospitals liens for the reasonable value of services rendered. "[I]t has generally been held or recognized that such requirements should not be technically applied so as to defeat just hospital claims, and that such statutes are to be liberally construed in this respect." Annot., 25 A.L.R.3d 874, § 5(b) (1969).
Public Health Trust of Dade County v. Carroll, 509 So. 2d 1232 (Fla.Dist.Ct.App. 1987), demonstrates how a Florida court interpreted a hospital lien statute similar to ours.[1] The Florida statute states:
In this case, the court held that the tardiness of the hospital's filing resulted only in the hospital's being an unsecured creditor *1320 until the time when the filing occurred. Furthermore, the court noted that the patient had no standing to claim that the lien was invalid based upon the filing, because the purpose of the filing was to notify third parties, not the patient, of the claim.
The trial court did not address Carraway's assertion that under Alabama Code 1975, § 22-21-7(g), it is entitled to the proceeds. We understand § 22-21-7 to require hospitals to furnish an itemized statement of charges to the patient within a specified time. Section 22-21-7(g) states in pertinent part:
By enacting § 22-21-7 and § 35-11-370, the legislature facilitates the payment of hospitals and health care providers for the services they render. Section 22-21-7 merely supports Carraway's entitlement, under the § 35-11-370 lien, to the proceeds.
Therefore, in accordance with § 35-11-370, the summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] Many jurisdictions have hospital lien statutes similar to the one in Alabama. The following decisions have interpreted such similar statutes to provide an automatic lien: In re Nelson, 92 B.R. 837 (Bankr.Minn.1988); Rolla Community Hosp. v. Dunseith Community Nursing Home, Inc., 354 N.W.2d 643 (N.D.1984). | June 21, 1991 |
809cf2a9-9c06-44c0-ba5c-893f7f7b6253 | Corte v. Massey | 582 So. 2d 1108 | 1900431 | Alabama | Alabama Supreme Court | 582 So. 2d 1108 (1991)
Therrell M. CORTE
v.
R. Edward MASSEY, Jr.
1900431.
Supreme Court of Alabama.
June 21, 1991.
*1109 E. Farley Moody II, Birmingham, and Clarence L. McDorman, Jr. of Yearout, Myers & Traylor, Birmingham, for appellant.
Harry Cole, Randall Morgan, and John M. Milling, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
SHORES, Justice.
This case involves the determination of the applicable statute of limitations in a legal malpractice case. On February 3, 1989, Therrell Corte filed suit in the Circuit Court of Baldwin County, Alabama, against R. Edward Massey, Jr., alleging that Massey's representation and handling of her divorce case fell below the standard of a reasonable and competent attorney. She sought compensatory and punitive damages. Massey moved for summary judgment, contending that Mrs. Corte's suit was barred by the statute of limitations. Specifically, Massey argued that Mrs. Corte's claim was barred by § 6-5-574, Code of Ala.1975, as amended. The trial judge granted Massey's motion. Mrs. Corte appeals.
The record reflects that Massey represented Mrs. Corte when she was divorced from her husband on June 5, 1980. A settlement agreement, signed by Dr. and Mrs. Corte, was adopted by the Circuit Court of Baldwin County, Alabama, into the final judgment of divorce. The agreement provided, among other things, that Dr. Corte would pay Mrs. Corte $150,000 as alimony in gross in five annual installments of $30,000 each, due on September 1 of each year. Mr. Corte made the first and second payments in 1980 and 1981, but failed to make any further payments.
When the third payment was not made, Massey filed a copy of the divorce judgment in Baldwin County in an attempt to create a lien on Dr. Corte's real property. However, the filing of the judgment, on February 8, 1983, was insufficient to create a lien on the real property because the filing did not meet the requirements of Code 1975, § 35-4-131 and §§ 6-9-210 and -211. Mrs. Corte claims that this defective filing was the "act" giving rise to her cause of action for legal malpractice. However, she maintains that her cause did not accrue until August 16, 1988, when the trial court dismissed her case, which had been filed by another attorney, to set aside certain conveyances of real property by Dr. Corte.
Massey contends that the statutory period of limitations began to run on June 5, 1980, or, at the latest, in late September or October 1982, when Dr. Corte failed to make the third payment. Massey states in his affidavit in support of his motion for summary judgment that he met with Mrs. Corte on September 29, 1983, and dictated a letter to her former husband's attorney. This is the last date of his representation of her in any matter.
We must determine whether the trial court erred in entering the summary judgment for Massey on the grounds that Mrs. Corte's claims were barred by the statute of limitations. We do not consider whether Massey was negligent in his representation of Mrs. Corte.
This Court construed the statute of limitations provided in § 6-5-574 of the Alabama Legal Services Liability Act ("LSLA") in Michael v. Beasley (on application *1110 for rehearing), 583 So. 2d 245 (Ala. 1991), wherein we concluded:
583 So. 2d at 252.
In Cofield v. Smith, 495 So. 2d 61 (Ala. 1986), this Court relied upon and quoted Payne v. Alabama Cemetery Ass'n, Inc., 413 So. 2d 1067 (Ala.1982):
495 So. 2d at 62. Michael v. Beasley, supra. Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.1979).
We have closely and carefully examined the record in this case. On February 8, 1983 (the date upon which Massey sought to perfect a lien against Dr. Corte's property, but failed to do so), Mrs. Corte sustained a legal injury sufficient for her to maintain an action against Massey. Because her claim accrued prior to the effective date of the LSLA, and because the period of limitations applicable to her claim had not expired by that effective date, April 12, 1988, she had until April 12, 1989, in which to file suit. Michael v. Beasley, supra. She filed on February 3, 1989, and thus her suit is saved by the "saving clause" of the LSLA.
The "saving clause" operated in this case as the legislature intended. When the incident occurred on February 8, 1983, which gave rise to this suit, the statutory period of limitations applicable to malpractice actions against attorneys at law was six years, § 6-2-34(8). When the LSLA became effective on April 12, 1988, the period was shortened to two years after a cause of action accrued, but § 6-5-574(a) provided that if the cause of action had accrued before the LSLA's effective date (and was not barred by the statute of limitations in force when it accrued), then a claimant had one year after the effective date in which to bring an action. By filing on February 3, 1989, Mrs. Corte was filing within one year of the effective date of the LSLA.
On the authority of Michael v. Beasley, supra, the judgment of the trial court is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | June 21, 1991 |
3d883fc1-c1d2-4aa9-b7f1-31a847af19fe | Point Properties, Inc. v. Anderson | 584 So. 2d 1332 | 1900333 | Alabama | Alabama Supreme Court | 584 So. 2d 1332 (1991)
POINT PROPERTIES, INC.
v.
Doris ANDERSON, et al.
1900333.
Supreme Court of Alabama.
June 14, 1991.
Rehearing Denied August 16, 1991.
*1333 Vincent F. Kilborn III of Kilborn & Roebuck, Mobile, for appellant.
John M. Tyson, Sr. of Tyson & Tyson, James C. Wood and J. Randall Crane of Simon, Wood & Crane, Mobile, for appellees Doris Anderson, Billy Patronas, Jim Boone, Georgia Mallon, Jeff Collier, Claude Brown, Leroy Coulter and Police Chief Beasley, individually.
HOUSTON, Justice.
Point Properties, Inc., which owns beachfront property in the Town of Dauphin *1334 Island, sued the town's mayor, Doris Anderson, in her individual capacity; the town's building inspector, Leroy Coulter, in his individual capacity; the town's police chief, Terry Beasley, in his individual capacity; and the members of the town's council, Billy Patronas, Jim Boone, Georgia Mallon, Jeff Collier, and Claude Brown, in their individual capacities, alleging that the defendants had conspired to deprive it of the use and enjoyment of its property without due process of law. Point Properties sought to recover both compensatory and punitive damages under 42 U.S.C. § 1983. The defendants moved for a summary judgment, raising the defenses of absolute and qualified immunity. The trial court granted their motion, and Point Properties appealed. We affirm in part, reverse in part, 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, Ala.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 Point Properties to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against it. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to Point Properties and must resolve all reasonable doubts against the defendants. 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 evidence, viewed in the light most favorable to Point Properties, shows that Point Properties, in a move designed to clear the way for it to develop its beachfront property, sought, and received, the consent of the Dauphin Island Property Owners Association ("the Association") to vacate a paved, public roadway known as Pirate's Cove Street, which divided the property owned by Point Properties and provided access to the beach from Bienville Boulevard. The roadway was subsequently vacated and became the property of Point Properties. Doris Anderson was the president of the Association at the time the roadway was vacated. When the Town of Dauphin Island was later incorporated, Anderson became its mayor. Thereafter, responding to numerous complaints from nearby property owners that trespassers were using the vacated roadway as a means of ingress to and egress from the beach and that the trespassing had become a nuisance, Point Properties agreed to excavate the roadway so that it could not be used. However, when Point Properties began making plans to excavate the roadway, its attorney, Norton Brooker, was informed by Anderson that Point Properties was taking too much time to begin the development of its property. She told Brooker that she and the town's council "wanted the street back" because Point Properties "had not built a hotel" on its property. Anderson also told Brooker that she and the council "had decided that claiming the street would be a way to put pressure on Point Properties to `do something.' "When Brooker later contacted the town's attorney to ascertain on what basis Anderson and the council were claiming the roadway, Brooker was told that the town had considered "the idea of condemning the former street in order to get it back, but [that the town] simply did not have the money to do so, and for that reason [the town was] pursuing the question of the validity of the vacation."[1] The official *1335 minutes of one of the council's meetings reflect that the members of the council adopted a resolution stating that the roadway should not be excavated until the question of its ownership could be resolved:
Representatives of Point Properties were later denied a permit by Coulter to excavate the roadway and were advised by the town's attorney, Coulter, and Beasley that any attempt to excavate the roadway could result in the arrest of the persons involved. After all attempts to resolve the problem had failed, Point Properties filed suit.
The sole issue presented in this case is whether the defendants were entitled to a judgment as a matter of law based on the defenses of absolute or qualified immunity. The defendants contend that they prevented Point Properties from excavating the roadway because, they say, a valid question existed as to whether the roadway had been legally vacated. They argue that because they were under a duty, as representatives of the Town of Dauphin Island, to prevent the unlawful destruction of the public's property, they were clothed with immunity when they undertook to prevent Point Properties from excavating the roadway. Point Properties contends, however, that the defendants had no legitimate basis upon which to question the ownership of the roadway. It argues that a fact question precluding summary judgment was presented as to whether the defendants acted out of a genuine concern that the public's property was about to be destroyed or, instead, out of dissatisfaction with its development schedule. Point Properties maintains that, under the circumstances of this case, the defendants were not entitled to a judgment as a matter of law based on the defenses of absolute or qualified immunity.
Section 1983 provides a remedy for persons alleging deprivations of their constitutional *1336 rights by government officials through action taken "under color of state law." Notwithstanding the unqualified nature of its language, however, § 1983 was not intended to abrogate the common law immunities enjoyed by persons performing certain governmental functions. Owen v. City of Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980). It is now well settled that government officials performing legislative functions at the state level are entitled to absolute immunity from suits for damages under § 1983. Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951); Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). State legislators "require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability." 457 U.S. at 806, 102 S. Ct. at 2732. Likewise, in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S. Ct. 1171, 59 L. Ed. 2d 401 (1979), the United States Supreme Court held that the members of a "regional" land planning agency performing legislative functions were entitled to absolute immunity from the plaintiff's § 1983 action and, although expressly reserving the question for a later date, strongly suggested that government officials performing legislative functions at the municipal level are also entitled to absolute immunity from § 1983 claims. Shortly after the Supreme Court decided Lake Country Estates, the Eighth Circuit Court of Appeals held in Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir.1980), that government officials performing legislative functions at the municipal level are entitled to absolute immunity. The Court of Appeals stated in part:
"Ligon v. Maryland, 448 F. Supp. 935, 947 (D.Md.1977)." 626 F.2d at 611-12. See, also, R. Freilich and R. Carlisle, Section 1983: Sword and Shield (Civil Rights Violations: The Liability of Urban, State, and Local Government), 335-39 (1983); and C. Antieau, Federal Civil Rights Acts (Civil Practice) § 107 (2d ed. 1980) (indicating that there is a split of opinion among the various courts as to whether absolute immunity should be extended to government officials performing legislative functions at the municipal level). In Tutwiler Drug Co. v. City of Birmingham, 418 So. 2d 102, 106 (Ala.1982), this Court expressly approved the rationale utilized by the Eighth Circuit Court of Appeals in extending absolute immunity to government officials performing legislative functions at the municipal level.
In the present case, only Anderson (the mayor) and the members of the town's council held positions that could have involved the performance of a legislative function. The most recent federal census indicates that the Town of Dauphin Island has a population of fewer than 900 inhabitants. Ala.Code 1975, § 11-43-2, provides, in pertinent part, as follows:
A "legislative function" is generally defined as "[t]he determination of legislative policy and its formation as [a] rule of conduct." Black's Law Dictionary (6th ed. 1990). In a similar vein, "legislative power" is defined in Black's as "[t]he lawmaking powers of the legislative body, whose functions include the power to make, alter, amend and repeal laws." On the other hand, the "executive department" is defined in Black's as "[t]hat branch of government charged with carrying out the laws enacted by the legislature." An "executive officer" is "[a]n officer of the executive department of government ... in whom resides the power to execute the laws." "Administrative acts" are defined as "[t]hose acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it by the organic law." Black's. It is, as the defendants contend, within the power of any city or town to protect the public's right to the free and uninterrupted use of a public roadway. See, e.g., McCraney v. City of Leeds, 241 Ala. 198, 1 So. 2d 894 (1941). However, the actual exercise of *1338 that power in preventing the destruction of a public roadway is in the nature of an executive or administrative function of municipal government. Although it is true, as the defendants point out, that the members of the council passed a resolution stating that the roadway should not be excavated until the question of its ownership could be resolved, that resolution, albeit a formal expression of the council's position on the matter, was not legislative in nature. At best, the resolution was a directive by the council to Anderson, Coulter, and Beasley to implement the law by performing their discretionary functions with an eye toward preventing the excavation of what was perceived to be a public roadway.[2] Accordingly, Anderson and the members of the town's council were not entitled to a judgment as a matter of law based on the defense of absolute immunity.
Although absolute immunity from § 1983 actions is available to government officials performing legislative functions at the municipal level, generally only qualified or "good faith" immunity has been extended to government officials performing discretionary functions that are characteristically executive or administrative. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Harlow, supra; Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). See, also, Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987); Section 1983: Sword and Shield, supra, at 340-42; and Federal Civil Rights Acts, supra, §§ 108, 109. Consequently, because the United States Supreme Court has applied a "function" test in determining the extent of immunity granted to government officials, and because that Court has strongly suggested, and other courts have held, that government officials performing at the municipal level should not be classified differently from government officials performing at the federal or state level, we conclude that immunity is available to government officials performing discretionary functions at the municipal level that are executive or administrative in nature, but that that immunity is limited to the qualified or "good faith" variety.
The Eleventh Circuit Court of Appeals has set out the standard by which the propriety of a summary judgment based on the qualified immunity defense should be determined:
*"Rich, 841 F.2d at 1563-64 (citing Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983), sets out a two-step framework for applying Harlow's objective reasonableness test. In the first step, the defendants must prove they were acting within the scope of their discretionary authority when the allegedly wrongful acts occurred. The second step then shifts the burden to the plaintiff to show that the defendants' actions violated clearly established constitutional law...."
Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1503 (11th Cir. 1990).
Applying the standard set out in Stewart, we also conclude that Anderson and the members of the town's council were not entitled to a judgment as a matter of law based on the defense of qualified immunity. Although evidence was presented tending to show that they were acting within the scope of their discretionary authority when the allegedly wrongful acts occurred, the "legal norm" allegedly violated by these defendants was clearly established at the time they acted. In Anderson, supra, the Supreme Court stated that the appropriate inquiry in determining whether a defendant's actions violated clearly established constitutional rights is particularized and fact-specific; a generalized allegation of an abstract right is not sufficient. The Court of Appeals in Stewart, supra, noted:
908 F.2d at 1504. The Fourteenth Amendment to the United States Constitution expressly *1340 prohibits the deprivation of property without due process of law. Under Point Properties' version of the factsthat Anderson and the members of the council had no legitimate basis upon which to question the validity of the vacation of the roadway and that their purported reliance on their attorney's legal opinion was pretextualit is clear that reasonable government officials in the positions of these defendants would have known that any interference with the right of Point Properties to use and enjoy its property was a clear violation of constitutional law.[3] Furthermore, the record shows that a genuine issue of fact existed as to whether Anderson and the members of the council actually engaged in conduct violative of Point Properties' constitutional right to the use and enjoyment of its property. Anderson and the members of the council contend that their actions were motivated solely by their sense of duty to preserve the public's property, and there is evidence to support their contention. Point Properties insists, however, that the actions of Anderson and the members of the council were motivated, instead, by their desire to coerce it into developing its property, and Brooker's affidavit supports its contention. Suffice it to say that, viewing the evidence in the light most favorable to Point Properties, as our standard of review requires us to view it, we cannot say, as a matter of law, that Anderson and the members of the town's council did not violate Point Properties' clearly established constitutional right to the uninterrupted use and enjoyment of its property.
However, we can say that the summary judgment for Coulter, the building inspector, and Beasley, the police chief, was proper. These defendants made a prima facie showing that their discretionary actions were motivated by a sense of duty to protect the public's property, and Point Properties presented no evidence tending to rebut that prima facie showing. For all that appears in the record, Coulter and Beasley acted to prevent the excavation of the roadway solely on the basis of the council's resolution. No evidence was presented tending to show that either Coulter or Beasley was a party to any conspiracy to unlawfully interfere with the property rights of Point Properties.
For the foregoing reasons, the summary judgment is affirmed as to Coulter and Beasley; however, as to Anderson and the members of the town's council, it is reversed; and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and INGRAM, JJ., concur.
[1] Brooker's affidavit, submitted by Point Properties in opposition to the motion for summary judgment, reads, in pertinent part, as follows:
"On May 9, 1989, I attended a meeting of the Planning Commission [, which] was then considering certain amendments to the zoning requirements for the Island. At this time, Mrs. Anderson, who ... was the Mayor of Dauphin Island, Alabama, told me in the presence of Mr. Walt Yerkes that `they' (meaning the Town Council) wanted the street back (meaning the vacated portion of Pirate's Cove Street) inasmuch as [Point Properties] had not built a hotel. Mrs. Anderson acknowledged to me during that discussion that [Point Properties] had never made any commitment, either orally or otherwise, as to when the development would begin, but that `they' had decided that claiming the street would be a way to put pressure on Point Properties to `do something' and that was the reason they were taking the position that they wanted the street back.... At no time did Mrs. Anderson raise or discuss with me any question concerning the validity of the vacation of Pirate's Cove Street south of Bienville Boulevard.
"Subsequent to that meeting, I called [the town's attorney] on or about May 16, 1989, in order to ascertain [on] what basis the `Town' was claiming the street. [The town's attorney] advised me that the Town had considered the idea of condemning the former street in order to get it back, but they simply did not have the money to do so, and for that reason they were now pursuing the question of the validity of the vacation."
[2] In Smith v. Arnold, 564 So. 2d 873, 876 (Ala. 1990), this Court discussed the difference between ministerial and discretionary functions:
"Comment h. to § 895D, Restatement (Second) of Torts (1979), describes `ministerial acts' as those involving `[l]ess in the way of personal decision or judgment or [in which] the matter for which judgment is required has little bearing of importance upon the validity of the act,' and states that `[m]inisterial acts are those done by officers and employees who are required to carry out the orders of others or to administer a law with little choice as to when, where, how, or under what circumstances their acts are to be done.' Conversely, `discretionary acts' are defined as follows by Black's Law Dictionary 419 (5th ed. 1979): `Those acts [as to which] there is no hard and fast rule as to [the] course of conduct that one must or must not take and, if there is [a] clearly defined rule, such would eliminate discretion.... One which requires exercise in judgment and choice and involves what is just and proper under the circumstances.'"
Fulfilling the responsibilities of a municipal building inspector and police chief requires daily decision making and the exercise of good judgment under varying circumstances; accordingly, contrary to the contention of Point Properties, we do not view the positions of Coulter and Beasley as involving the performance of ministerial functions.
[3] We emphasize once again that our standard of review requires us to view the evidence in this case in the light most favorable to Point Properties. Viewing the evidence in that light, we must assume that the roadway in question was legally vacated, as Point Properties claims. Whether the roadway was, in fact, legally vacated and, if it was not, whether Point Properties would lack standing to maintain an action under § 1983, are issues not properly before us on this appeal. | June 14, 1991 |
2e206fd9-8fad-46fd-b816-ec2c2d23988f | ALABAMA HOME MORTG. CO., INC. v. Harris | 582 So. 2d 1080 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 1080 (1991)
ALABAMA HOME MORTGAGE COMPANY, INC., et al.
v.
I.L. HARRIS and Rosa Lee Harris.
89-1851.
Supreme Court of Alabama.
June 14, 1991.
*1081 Grover S. McLeod, Birmingham, for appellants.
Jesse P. Evans III and Douglas L. McWhorter of Najjar Denaburg, P.C. and David Tanner, Birmingham, for appellees.
INGRAM, Justice.
Thomas R. Roberson and his wife, Emma Roberson, along with Alabama Home Mortgage Company ("AHM"), appeal from a summary judgment in favor of I.L. and Rosa Lee Harris, declaring that the Harrises held fee simple title to a certain parcel of real property.
The complex, though undisputed, facts in this case reveal that on March 1, 1984, the Robersons executed a mortgage to AHM. The mortgage pertained to property located in Jefferson County and secured a $17,165.49 loan made by AHM to the Robersons. On May 31, 1984, the Robersons executed another mortgage on the same parcel of land to the Harrises. The second mortgage, which secured a $12,500.00 loan made by the Harrises to the Robersons, did not disclose the Robersons' prior mortgage to AHM.
In the early part of 1987, the Robersons defaulted on their mortgage to the Harrises; consequently, the Harrises foreclosed *1082 the mortgage on February 9, 1987. The property was sold pursuant to the terms of a power of sale clause in the mortgage. The Harrises were the highest bidders at the foreclosure sale and were, therefore, the purchasers of the Robersons' interest in the property.
Soon after the Robersons' mortgage to the Harrises was foreclosed, the Robersons defaulted on their mortgage to AHM. As a result, AHM foreclosed on the Robersons' mortgage and purchased the property at an April 6, 1987, foreclosure sale. On May 27, 1987, AHM deeded the property back to the Robersons by way of a quitclaim deed. The Robersons then paid AHM $200 and gave a new mortgage to AHM securing a note for $10,473.00.
On May 16, 1988, the Harrises sent a letter to AHM, demanding a statement of charges from AHM related to its foreclosure of the mortgage given to it by the Robersons. The letter purported to demand the statement of charges in order that the Harrises could effect a redemption of the property at issue. AHM responded to the Harrises' demand with a statement of charges. However, the Harrises disputed the statement submitted by AHM on the basis that it included items that were not properly chargeable. Thereafter, the Harrises sued AHM and the Robersons. In addition to a general prayer for equitable relief, the Harrises asked the trial court to determine the order of the encumbrances on the property, to determine the proper amount that the Harrises must pay in order to redeem the property in question, and to order the defendants to convey the property to the Harrises once the redemption price had been paid.
The Robersons and AHM filed a motion for summary judgment, wherein they alleged that there was no genuine issue of material fact and that they were entitled to a judgment as a matter of law. The trial court, however, denied the motion. Subsequently, the Harrises filed a motion for summary judgment, in which they also alleged that there was no genuine issue of material fact and that they were entitled to a judgment as a matter of law declaring them to be the owners of the property at issue, or, alternatively, declaring them to be entitled to redeem the property from the foreclosure by AHM. The trial court granted the Harrises' motion and entered a judgment declaring them to be the owners of full legal title to the property at issue. The trial court further held that the Harrises held the property free of any claim by either AHM or the Robersons. The Robersons and AHM appealed.
The Robersons and AHM raise two primary issues for our consideration in this appeal. The first issue is whether the trial court erred in entering a summary judgment for the Harrises. The second is whether, by operation of the judgment of the trial court, the Robersons and AHM have been deprived of their interest in the property without due process of law.
We first look to the propriety of the trial court's entry of a summary judgment for the Harrises, bearing in mind the general principle that a second mortgage is subordinate to a first mortgage. See Atlas Subsidiaries, Inc. v. Nixon, 47 Ala.App. 103, 251 So. 2d 235 (1971). It is undisputed in this case that the Robersons' May 31, 1984, mortgage to the Harrises, was subordinate to the Robersons' March 1, 1984, mortgage to AHM. The execution of the first mortgage operated to convey legal title to the mortgaged property to AHM. See Lloyd's of London v. Fidelity Sec. Corp., 39 Ala. App. 596, 105 So. 2d 728 (1958); Moorer v. Tensaw Land & Timber Co., 246 Ala. 223, 20 So. 2d 105 (1944). Thereafter, the equity of redemption remained in the Robersons as mortgagors. See McDuffie v. Faulk, 214 Ala. 221, 107 So. 61 (1926). The equity of redemption is the right of the mortgagor to pay the debt secured by the mortgage, thereby entitling the mortgagor to a reconveyance or defeasance of the title conveyed by the mortgage. § 35-10-26, Ala.Code 1975; Denman v. Payne, 152 Ala. 342, 44 So. 635 (1907).
When a mortgagor executes a second mortgage, the equity of redemption as to the first mortgage is conveyed to the second mortgagee. Atlas Subsidiaries, Inc. v. Nixon, supra. However, the mortgagor *1083 still retains an equity of redemption right as to the second mortgage. Id. Therefore, in the present case, when the Robersons mortgaged their property to AHM, the Robersons retained an equity of redemption in the property. This equity of redemption, however, was conveyed by the Robersons to the Harrises in the second mortgage. Following the execution of the second mortgage, the Harrises held the equity of redemption as to the mortgage held by AHM, although the Robersons retained such a right with regard to the mortgage to the Harrises.
A valid foreclosure sale of property subject to a mortgage extinguishes the equity of redemption; however, a postforeclosure right of redemption arises in the mortgagor pursuant to § 6-5-230, Ala. Code 1975. Dominex, Inc. v. Key, 456 So. 2d 1047 (Ala.1984). The period of redemption is one year from the time that the property is sold at a valid foreclosure sale. § 6-5-230. Unlike the equity of redemption, which exists prior to foreclosure and is deemed an interest in the mortgaged property, the statutory right of redemption arises after foreclosure and is a mere personal privilege conferred by statute; it is not property or a property right. Dominex, Inc. v. Key, supra.
In the instant case, when the Harrises foreclosed on the Robersons' mortgage, the Robersons' equity of redemption in their mortgage to the Harrises was extinguished, but the statute then provided the Robersons a one-year right of redemption with regard to the mortgage that was foreclosed. It is undisputed that the Robersons never attempted to exercise their statutory right to redeem the property from the Harrises' foreclosure. Also, when AHM foreclosed on the Robersons' mortgage, the equity of redemption that the Robersons had conveyed to the Harrises via the second mortgage was extinguished. The Harrises then had a one-year statutory right of redemption with regard to the mortgage that was foreclosed by AHM. We find, however, that under the facts presented in this case, the Harrises were not forced to rely on their statutory right of redemption as their only means of asserting a claim for full legal title to the property in question, because of the applicability of the doctrine of after-acquired title.
AHM became the absolute owner of the property by the merger of the equity of redemption and the legal title following AHM's foreclosure of the Robersons' mortgage. See First Nat'l Bank of Mobile v. Gilbert Imported Hardwoods, Inc., 398 So. 2d 258 (Ala.1981); Barnett & Jackson v. McMillan, 176 Ala. 430, 58 So. 400 (1912). After the merger of the legal and equitable titles in AHM, AHM then made an outright conveyance of its interest to the Robersons on May 27, 1987, by way of a quitclaim deed. The effect of this quitclaim deed was to convey to the Robersons all right, title, and interest possessed by AHM at the time of the execution of the deed. See M.C. Dixon Lumber Co. v. Mathison, 289 Ala. 229, 266 So. 2d 841 (1972).
The record shows that in their mortgage to the Harrises the Robersons warranted the title to the property that was conveyed by the mortgage. Because of these warranties, any after-acquired interest of the Robersons would pass to the Harrises, as the Robersons are estopped to deny the title of the Harrises. See Lost Creek Coal & Mineral Land Co. v. Hendon, 215 Ala. 212, 110 So. 308 (1926). Thus, any interest, regardless of its nature, acquired by the Robersons after their execution of the mortgage to the Harrises would inure to the Harrises. See First Nat'l Bank of Lincoln v. Cash, 220 Ala. 319, 125 So. 28 (1929); Hunter v. Taylor, 189 Ala. 104, 66 So. 671 (1914); 59 C.J.S. Mortgages § 185 (1949). Because AHM had the absolute title to the property in question when it executed the quitclaim deed to the Robersons, AHM conveyed the absolute title to the Robersons in the May 27 quitclaim deed. When the absolute title was transferred to the Robersons, it ipso facto vested in the Harrises by virtue of the doctrine of after-acquired title.
In this case, if AHM had not executed the quitclaim deed, then the Harrises' only means of obtaining possession of full title *1084 to the property would have been through the exercise of their statutory right of redemption. Furthermore, if AHM had quitclaimed the property to someone other than the Robersons, the Harrises could have obtained title to the property only by asserting their statutory right of redemption against the party that purchased from AHM. See Garvich v. Associates Fin. Serv. Co., 435 So. 2d 30 (Ala.1983); Hobson v. Robertson, 224 Ala. 49, 138 So. 548 (1931). However, because of the applicability of the doctrine of after-acquired title, when the Robersons received full title to the property by way of the quitclaim deed from AHM, title to the property at that point vested in the Harrises. Therefore, under the facts of this case, we conclude that the trial court correctly entered a summary judgment for the Harrises declaring them to be the owners of the full legal title to the property at issue.
The Robersons and AHM's second contention is that the trial court, by declaring the Harrises to hold a fee simple interest in the property in question, deprived the Robersons and AHM of their interest in the property. The Robersons and AHM assert that the trial court's ruling resulted in a taking of their property in contravention of their rights to due process as secured by Article 1, § 35, of the Alabama Constitution (1901), and by the fourteenth amendment to the United States Constitution.
Although the Robersons and AHM do not clearly articulate whether they are claiming a substantive or a procedural deprivation of due process, it appears from their brief that they are claiming a substantive violation. However, after reviewing their assertions, we find no violation of either substantive or procedural due process requirements.
The procedural branch of due process, as it relates to the matters here, primarily requires that a person have notice of a judicial proceeding and an opportunity to be heard in an impartial tribunal. Rotunda, Nowak, & Young, Treatise on Constitutional Law, § 17.8 (1986). Here, both AHM and the Robersons answered the Harrises' complaint without raising insufficiency of process or insufficiency of service of process defenses. See Rule 12, A.R.Civ.P. Thereafter, AHM and the Robersons filed motions and other pleadings. They responded to the Harrises' motion for summary judgment by preparing and filing a memorandum setting out their argument. Finally, counsel for the Robersons and AHM appeared and argued at the oral argument on the Harrises' motion for summary judgment. Therefore, we find no violation of the Robersons and AHM's procedural due process rights.
Substantive due process, as it relates to the matters here, primarily protects against oppressive legislation and is in many ways similar to the "taking" clauses of the state and federal constitutions. Rymer v. Douglas County, 764 F.2d 796 (11th Cir.1985). Basically, substantive due process protections guard against governmental appropriations of property for developmental use or for the use of the general public. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982).
Substantive due process questions relating to the taking of property generally arise in circumstances wherein a unit of government has overregulated the use of privately owned land or has appropriated such land for the use of the general public, which is clearly not the situation in this case. There is no general public benefit arising from the summary judgment entered by the trial court. Therefore, we find no merit in the Robersons and AHM's argument that their substantive due process rights have been violated.
In consideration of the foregoing, we hold that the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur. | June 14, 1991 |
7c487f59-4e67-4cb0-aa5d-2f3d4eb475b3 | Chilton v. City of Huntsville | 584 So. 2d 822 | 1900637 | Alabama | Alabama Supreme Court | 584 So. 2d 822 (1991)
Michael Patrick CHILTON
v.
CITY OF HUNTSVILLE.
1900637.
Supreme Court of Alabama.
June 21, 1991.
Rehearing Denied July 26, 1991.
*823 Daniel F. Aldridge of Brinkley, Chesnut & Aldridge, Huntsville, for appellant.
E. Cutter Hughes, Jr. of Bradley, Arant, Rose & White, Huntsville, for appellee.
HOUSTON, Justice.
The plaintiff, Michael Patrick Chilton, appeals from a summary judgment for the defendant, the City of Huntsville, a municipal corporation d/b/a Huntsville Utilities ("the City"), in this action seeking to recover damages for personal injuries allegedly caused by the City's negligence in constructing and maintaining one of its power lines. We reverse and remand.
Chilton, an experienced billboard poster for Patrick Media Group, suffered an electrical burn when metal scaffolding he was using to erect a poster on an elevated, roadside billboard came into contact with an energized power line that had been constructed, and that was being maintained, by the City. The power line, which was located approximately six to eight feet from the billboard's catwalk, was constructed after the billboard had been put in place. George Uline, operations manager for Patrick Media Group, testified by deposition that a regulatory provision of the Occupational Safety and Health Act of 1970, 29 U.S.C.A. § 651 et seq., prohibits the positioning of power lines and billboards within 10 feet of each other.[1] Uline also testified that it was his company's policy not to allow its posters to work within 10 feet of a power line and that although a supervisor periodically inspected the company's billboards for possible safety violations, no violation concerning the location of the power line was ever noted at the billboard on which Chilton was injured.
Chilton testified that although he knew at the time of the accident that the power line was very close to the billboard, he did not know the exact distance between the billboard and the power line; that he had assumed it was energized and, therefore, extremely dangerous; and that he was aware of his company's policy not to allow its posters to work within 10 feet of a power line. Chilton further testified that although he could not remember everything he had done just before the accident, he did remember that he was attempting to find "the best, easiest, fastest, safest way to get on" the billboard. There were no eyewitnesses to the accident.
Relying primarily on Chilton's affidavit and deposition testimony, the City moved for a summary judgment, based on the affirmative defense of contributory negligence. The City contends that the trial *824 court properly entered the summary judgment in its favor because, it says, the undisputed evidence shows that Chilton was aware of and appreciated the danger posed by the power line. The thrust of the City's argument is that the evidence shows, as a matter of law, that Chilton was contributorily negligent in attempting to erect a poster on the billboard with the knowledge of the danger posed by the nearby power line.
Chilton admits, and his testimony clearly shows, that he knew that he was working dangerously close to the power line. He argues, however, that the summary judgment was improper because, he says, a fact question exists as to whether he exercised reasonable care under the circumstances. We agree.
The summary judgment was proper in this case if there was no genuine issue of material fact and the City was entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. The burden was on the City to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If the City made that showing, then the burden shifted to Chilton to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. Fincher v. Robinson Brothers Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991). In determining whether there was a genuine issue of material fact, this Court must view the evidence in the light most favorable to Chilton and must resolve all reasonable doubts against the City. 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).
In order to establish the affirmative defense of contributory negligence, there must be a showing that the party charged had knowledge of the dangerous condition; that he appreciated the danger under the surrounding circumstances; and that, failing to exercise reasonable care, he placed himself in the way of danger. Bridges v. Clements, 580 So. 2d 1346 (Ala.1991); Knight v. Seale, 530 So. 2d 821 (Ala. 1988). Although contributory negligence may be found to exist as a matter of law when the evidence is such that all reasonable people must reach the same conclusion, the question of the existence of contributory negligence is normally one for the jury. Bridges v. Clements; Knight v. Seale.
Viewing the evidence in the light most favorable to Chilton, as our standard of review requires us to view it, we cannot say, as a matter of law, that Chilton was contributorily negligent. Although the undisputed evidence shows that Chilton was aware of the danger posed by the power line, a question of fact for the jury exists as to whether he failed to exercise reasonable care in attempting to erect the poster. Chilton was an experienced billboard poster. He would have been justified under the well-established law in assuming that due care under the circumstances had been exercised in positioning the power line. See, e.g., Sullivan v. Alabama Power Co., 246 Ala. 262, 267, 20 So. 2d 224, 227 (1944), where this Court noted that the duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep them insulated, wherever it might reasonably be anticipated that persons, pursuing business or pleasure, might come into contact with them. See, also, Alabama Power Co. v. Berry, 254 Ala. 228, 232, 48 So. 2d 231, 234 (1950), where this Court stated that "[i]t is the duty of the electric company to use that degree of care commensurate with the risk and danger involved and the public has the right to assume that its high-voltage wires will not be negligently maintained." The evidence shows that Chilton, although aware of the danger posed by the power line, was not aware of the line's exact proximity to the *825 billboard just before he came into contact with it. Chilton's failure to realize the extent of the danger that he was in, although revealed by hindsight to be a costly error in judgment, was not unreasonable as a matter of law, especially in light of the fact that Chilton's supervisor, who had conducted periodic inspections of the company's billboards in an attempt to discover any safety violations, had never told Chilton not to work on the billboard in question. Furthermore, although he could not recall all of his actions immediately preceding the accident, Chilton testified that he was following a safe routine. In Alabama Power Co. v. Mosley, 294 Ala. 394, 399, 318 So. 2d 260, 263 (1975), this Court, quoting Dwight Mfg. Co. v. Word, 200 Ala. 221, 225, 75 So. 979, 983 (1917), stated:
(Emphasis added.)
We are aware of that line of cases involving electrical injuries in which we held that the plaintiff was contributorily negligent as a matter of law, Knight v. Alabama Power Co., 580 So. 2d 576 (Ala.1991); Campbell v. Alabama Power Co., 567 So. 2d 1222 (Ala.1990); Watters v. Bucyrus-Erie Co., 537 So. 2d 24 (Ala.1989); and Wilson v. Alabama Power Co., 495 So. 2d 48 (Ala.1986); and of that line of cases involving electrical injuries in which we held that contributory negligence was for the trier of fact, Electric Service Co. of Montgomery v. Dyess, 565 So. 2d 244 (Ala.1990); Central Alabama Electric Co-op. v. Tapley, 546 So. 2d 371 (Ala.1989). If the Trial Bench and Bar and maybe even certain Justices on this Court (including the author of this opinion), since there were dissents on this issue in some of these cases, have difficulty in seeing the line that separates contributory negligence as a matter of law from contributory negligence as an issue of fact in cases involving electrical injuries, we can only state the obvious. Contributory negligence is an affirmative defense and the defendant bears the burden of proof as to that defense. On the motion for summary judgment, the City bore the burden of proving that all reasonable people must reach the same conclusion that Chilton had knowledge of the dangerous condition; that Chilton appreciated the danger under the surrounding circumstances; and that Chilton failed to exercise reasonable care under the circumstances. The City basically proved that an accident and an injury occurred; however, this was not sufficient, Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So. 2d 472 (1970), unless the doctrine of res ipsa loquitur is applicable. Thompson v. Lee, 439 So. 2d 113 (Ala.1983). Res ipsa loquitur would be applicable only if the instrumentality causing the injury was in Chilton's exclusive possession and the injury would not have occurred absent Chilton's negligence. Thompson v. Lee, 439 So. 2d at 115. As previously stated, we cannot say that it was unreasonable as a matter of law for Chilton to attempt to erect the poster. Although he does not know what happened, Chilton did testify that he was following a safe routine just prior to his injury. No one observed the accident. The physical evidence gathered after the accident indicates that the scaffolding came in contact with the power line approximately 6" from one end of the scaffolding. We are not persuaded that the doctrine of res ipsa loquitur is applicable to the issue of contributory negligence in this case.
Admittedly, this is a close case; however, the evidence, and the reasonable inferences that may be drawn from the evidence, are not such that all reasonable people must *826 reach the same conclusionthat Chilton failed to exercise reasonable care under the circumstances. Accordingly, whether Chilton was negligent in attempting to erect the poster is a question for the jury.
For the foregoing reasons, we hold that the City was not entitled to a judgment as a matter of law; accordingly, the summary judgment is due to be reversed and the case remanded for further proceedings. Because of our disposition of this case, we find it unnecessary to consider the other issues raised by Chilton.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Chilton also maintains that the City had enacted an ordinance prohibiting the construction of power lines within 10 feet of roadside billboards. Although this may be true, we can find no evidence in the record of such an ordinance. The record contains only a statement that was made by Chilton's attorney in his trial brief submitted in opposition to the City's motion for summary judgment, in which he purports to quote the ordinance. | June 21, 1991 |
3eb8ee6a-1e52-4d9f-bdae-17f6c6af3fdb | Giles v. Ingrum | 583 So. 2d 1287 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 1287 (1991)
Jack L. GILES, as trustee under the Lillie Mae Jones Trust of 1977, et al.
v.
Charles INGRUM, as administrator of the Estate of Lillie Mae Sherrer, deceased.
89-1299.
Supreme Court of Alabama.
June 14, 1991.
John S. Casey, Heflin, for appellants.
F. Hilton-Green Tomlinson and Alexander W. Jones, Jr. of Pritchard, McCall & Jones, Birmingham, for appellee.
ALMON, Justice.
Charles Ingrum, in his capacity as the administrator of Lillie Mae Jones's estate,[1] brought an action to have conveyances to a trust set side pursuant to Ala.Code 1975, § 8-9-7. Ingrum, a judgment creditor of the estate, sought to have the trust property returned to the estate in order to satisfy his judgment. The trust was created in 1977 for Lillie Mae Jones's benefit, with Jones's son, Jack L. Giles, serving as trustee. The trust instrument named Giles and his five sons as remaindermen. The trial court held that, pursuant to § 8-9-7, the trust was void as to the creditors of Jones's estate and that the property that she had attempted to convey to the trust was, by operation of law, a part of her estate and could be used to satisfy its debts. Giles and his sons, who were the defendants in this case, appeal from that judgment.[2]
The instrument that created the trust contained the following relevant provisions:
(Emphasis added.)
After creating the trust, Jones attempted to convey, without the participation of the trustee, two parcels of real property that were part of the trust corpus. In 1981, Jones was involved in a motor vehicle accident in Georgia. She died in April 1982. The driver and the passenger of the other car involved in the accident, Robert and Sara Dixson, obtained a $495,088 judgment against Jones's estate. In 1984, that judgment was domesticated in Cleburne County, Alabama. Subsequently, the Dixsons assigned the judgment to Charles Ingrum. Ingrum thus became the largest creditor of Jones's estate and was therefore appointed its administrator. See Ala.Code 1975, § 43-2-42(a)(3). He then brought this action.
An order was entered in November 1985 that upheld the trust. However, the trial court granted Ingrum's motion for a new trial and, after a bench trial, entered an order on December 27, 1989, declaring the trust void as to the estate's creditors, pursuant to § 8-9-7. Jack Giles, in his capacity as trustee, then filed a Rule 59, Ala. R.Civ.P., motion. No ruling was made on that motion within 90 days and it was thus deemed denied pursuant to Rule 59.1, Ala. R.Civ.P. Giles appeals, arguing that: (1) although Jones was entitled to receive payments from both the income and corpus of the trust, she retained only a conditional power to revoke or amend the trust, and therefore the trust was valid; (2) the issues raised by Ingrum's complaint had been decided in a prior action and thus were barred from further litigation by the doctrine of res judicata; and (3) the court erred by denying his Rule 59 motion.
We note that, subsequent to the events at issue here, the legislature repealed § 8-9-7 and replaced it with provisions of the Alabama Uniform Fraudulent Transfer Act, § 8-9A-1 et seq. Acts of Alabama 1989, Act No. 89-793, pp. 1585-93. That Act works an important change in cases of this type. Under § 8-9-7, a trust for the donor's use could be held void as to the donor's creditors, regardless of whether there was any evidence of fraudulent intent on the part of the donor in creating the trust. Morton Hardware Co. v. Barranco, 233 Ala. 346, 172 So. 109 (1937); Stollenwerck v. Fourth Nat'l Bank, 205 Ala. 548, 88 So. 659 (1921). However, under the new Act, evidence of the donor's fraudulent intent or of constructive fraud is required in order to void a trust. Section 8-9A-4. The Alabama Uniform Fraudulent Transfer Act applies only to transfers occurring after January 1, 1990. Because the trust in the instant case was created and all conveyances to it were made in 1977, the now-repealed § 8-9-7 applies.
Under § 8-9-7, if the trust instrument reserved a beneficial use in the trust property to the donor, the trust was void as to the donor's existing or subsequent creditors:
Section 8-9-7. The reason for this section is clear; a debtor cannot be allowed to defeat the legitimate claims of his creditors, *1289 whether existing or subsequent, by transferring his property to another while continuing to enjoy the use and benefit of that property. Sandlin v. Robbins, 62 Ala. 477 (1878).[3] Although § 8-9-7 in its terms mentioned only personalty, this Court held that it stated a common law doctrine that applied to both personalty and realty. Pace v. Wainwright, 243 Ala. 501, 10 So. 2d 755 (1942); Henderson v. Sunseri, 234 Ala. 289, 174 So. 767 (1937); Sandlin v. Robbins.
If conveyances to a trust that were made on or before January 1, 1990, are found to violate § 8-9-7, the donor's creditors can reach whatever interest in the trust income or corpus the trustee could have paid to the donor under the terms of the trust instrument. Henderson v. Sunseri (trustee could make payments to donor/beneficiary out of trust income only, thus only income could be reached by donor's creditors). Under the terms of the trust in the instant case, the trustee could have paid Jones the entire amount of the corpus and the income generated thereby. Therefore, both the income and the corpus of Jones's trust could be reached by her estate's creditors.
Giles's first argument has two components. First, he argues that the trust could be set aside only if there was evidence that Jones intended to defraud her creditors by creating the trust. However, § 8-9-7 did not mention the donor's intent, and this Court has held that the donor's intent is immaterial under that section. Stollenwerck, supra; Sandlin, supra. Second, he argues that, even though Jones was entitled to receive payment from both the income and the corpus of the trust, the fact that she retained only a conditional, not an absolute, power of revocation or amendment kept her ownership in the trust property from being total, and therefore the trust should not be set aside. Giles directs this Court's attention to Ala.Code 1975, § 35-4-290, as support for his contention.
However, § 8-9-7 and the sections contained in title 35, chapter 4, do not conflict; rather, they have separate fields of operation and are meant to be read in pari materia. Henderson, supra. The only trusts that fell within the ambit of § 8-9-7 were those created by the donor for the donor's own benefit and support. Henderson, supra. In contrast, the sections in title 35, chapter 4, including § 35-4-290, are of more general application and also address trusts that are created by the donor for the benefit of third persons. See, e.g., §§ 35-4-250; -251; -253; -259; and -290.
Because those sections address trusts and powers more generally than § 8-9-7 did, and because § 8-9-7 did not require that the donor retain an absolute power to appoint, revoke, or amend the trust in order for it to be void as to the donor's creditors, Giles's argument is without merit. See Henderson, supra.
Giles's second argument is that Ingrum's action to set aside the trust is barred by the doctrine of res judicata. He argues that a final judgment entered in March 1988 in a separate action resolved all of the issues raised by Ingrum in this action. We note that Giles first raised the affimative defense of res judicata in his post-trial motion. Under Rule 8(c), Ala.R.Civ.P., the defendant must assert all affirmative defenses in his responsive pleadings. If he fails to assert an affirmative defense in a timely manner, it is deemed waived. International Longshoremen's Ass'n v. Davis, 470 So. 2d 1215 (Ala.1985), aff'd, 476 U.S. 380 (1986). Furthermore, we see no merit in the res judicata argument advanced by Giles.
Finally, Giles argues that the court erred in failing to grant his motion to alter or amend its judgment or to grant a new trial. Although this argument is too general to merit reversal, see Rule 28(a)(5), Ala. R.App.P., we make one point pertinent to an argument raised by Giles at trial and in his motion for new trial. One of the two conveyances of trust property executed by *1290 Mrs. Jones after she had conveyed the property to the trust was a 1978 deed to Giles and his five sons, purporting to convey a 310-acre parcel that had been conveyed to the trust. The court recited in its judgment:
Giles had argued at trial that, if the trust was void, as Ingrum contended, then Jones's capacity to convey the property was not affected by the attempt to create the trust. This argument overlooks the facts that § 8-9-7 made self-directed trusts "void as to creditors" and that this Court held in Henderson v. Sunseri, supra, that such trusts were actually voidable, not void. Thus, for all that has been argued here, the trust was effective in 1978 as among the parties thereto, and the trial court's holding was correct.
As a ground for his motion for new trial, Giles asserted that the court's holding that Jones lacked capacity to execute the 1978 deed "was outside the pleadings and proof in this case and the court exceeded its authority in said finding." The complaint sought a declaration that the purported trust properties, describing them and including the 310-acre parcel, were "vested in the Estate of [Jones] and that the [trust] has no claim to or interest in said property." This prayer for relief sufficiently put the matter in issue.
For the reasons stated above, the judgment is affirmed.
AFFIRMED.
ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The decedent was married several times and was successively known as Lillie Mae Giles, Lillie Mae Jones, and Lillie Mae Sherrer. Because the trust was in the name "Jones," we shall use that name consistently.
[2] Although the sons are parties to the action, they have taken no position different from their father's, so we shall refer simply to Mr. Giles as the appellant.
[3] The provisions that became Ala.Code 1975, § 8-9-7, were carried forward without material change from the Code of 1852 through all successive codes. | June 14, 1991 |
9640006e-7783-4b98-bd26-dd6fecd587bb | Ex Parte Owen | 586 So. 2d 963 | 1900956 | Alabama | Alabama Supreme Court | 586 So. 2d 963 (1991)
Ex parte Donald Lewis OWEN.
(Re Donald Lewis Owen v. State).
1900956.
Supreme Court of Alabama.
July 12, 1991.
Thomas M. Haas and N. Ruth Haas, Mobile, for petitioner.
James H. Evans, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
INGRAM, Justice.
Donald Lewis Owen was convicted of capital murder and was sentenced to a term of life in the state penitentiary without the possibility of parole. The Court of Criminal Appeals affirmed Owen's conviction, 586 So. 2d 958, and we issued the writ of certiorari to review that court's holding that Owen, who is white, lacked standing to contest the State's use of its peremptory strikes to eliminate black venirepersons from the trial jury.
While Owen's case was on certiorari review in this Court, the United States Supreme Court decided Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). In Powers, the Court held that a white criminal defendant has standing under the Equal Protection Clause of the Fourteenth Amendment to challenge the prosecution's use of peremptory strikes of black venirepersons. Furthermore, Powers was followed by this Court's decision in Ex parte Bird, [Ms. 89-1061, June 14, 1991], 1991 WL 114762 (Ala.1991),[*] wherein we acknowledged that because of the Powers decision, Bird, a white criminal defendant, had standing under the Fourteenth Amendment to challenge the peremptory strikes of black venirepersons from the trial jury.
Therefore, on the authority of Powers and Bird, the Court of Criminal Appeals' judgment, based on a holding that Owen lacked standing to challenge the State's use of its peremptory strikes to exclude black venirepersons from the jury, is reversed, and the cause is remanded with directions to remand the cause to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[*] Reporter of Decisions' note: The June 14, 1991, opinion in Bird was withdrawn and a new opinion issued on December 6, 1991. | July 12, 1991 |
2890617b-b6ec-43ac-a93d-5bf22ef7534b | Baker v. State Farm General Ins. Co. | 585 So. 2d 804 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 804 (1991)
Bobby Jack BAKER and Mildred Baker
v.
STATE FARM GENERAL INSURANCE COMPANY, an Illinois Corporation, et al.
89-1163.
Supreme Court of Alabama.
June 7, 1991.
Rehearing Denied August 9, 1991.
*805 John P. Oliver II of Oliver & Sims, Dadeville, and W. Banks Herndon of Herndon & Dean, Opelika, for appellants.
Stanley A. Martin of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellees State Farm Gen. Ins. Co. and State Farm Fire and Cas. Co.
W. Scears Barnes, Jr. of Barnes & Radney, Alexander City, for appellee Perry C. Davis.
KENNEDY, Justice.
Bobby Jack Baker and Mildred Baker filed an action against State Farm General Insurance Company ("State Farm General"), State Farm Fire and Casualty Company ("State Farm Fire"), and Perry C. Davis. The trial court dismissed two of their claims and entered summary judgment for the defendants on each of the Bakers' five remaining claims.
Bobby Jack and Mildred Baker are married and live in Tallassee. Perry C. Davis is an insurance agent who represents both State Farm Fire and State Farm General; beginning in the mid-1970's, he sold the Bakers insurance for their house.
On February 23, 1987, the Bakers executed and closed a real estate mortgage to CBS Mortgage Company ("CBS") to refinance the existing debt on their house. The Bakers' mortgage agreement with CBS provides for an escrow fund into which the Bakers are to make monthly payments to CBS to pay for homeowner's insurance; CBS is to pay for homeowner's insurance from the escrow funds. Bruce MacPherson, an attorney, represented the Bakers at the closing, and at the closing $473 was paid on the Bakers' behalf for a 12-month policy of homeowner's insurance with State Farm Fire (the "$473 policy"). At the time of the closing, the Bakers already had a State Farm Fire homeowner's insurance policy that had gone into effect on January 18, 1987.
*806 April Tillery was employed as a secretary for Davis from March 1986 to September 1987. On April 4, 1987, she filled out and signed Bobby Jack Baker's signature to a "Rewrite Application" to change the effective date of the policy from January 18, 1987, to February 23, 1987; the change reflected CBS's requirement that the effective date of the insurance policy be the same as the date of the mortgage. The rewrite application was submitted to State Farm Fire to provide the same coverage at the same premium cost. Mr. Baker testified in deposition that he understood at the closing that CBS required that the insurance policy have the same effective date as the date of the mortgage. It is disputed who told Tillery to make the change: the Bakers say they never told Tillery to make it, and the defendants contend that MacPherson or his secretary told Tillery to make the change.
On April 17, 1987, Mary Helen Hall, an underwriter for State Farm Fire and State Farm General, reviewed the rewrite application. She determined that the insurance involved in the rewrite application was an acceptable risk, preliminarily approved the application, and forwarded the application for additional processing. Because of actuarial reasons, State Farm Fire will not insure a house for less than 80 percent of its replacement cost; State Farm General provides insurance for houses that are insured at less than 80 percent of their replacement cost. Although Hall had preliminarily approved the rewrite application, the State Farm Fire computer rejected, or, as the parties say, "errored out" that application, because the requested amount of insurance, which was the same in the rewrite application as in the policy that had gone into effect on January 18, 1987, was less than 80 percent of the replacement cost. On May 5, 1987, Hall had a policy issued with State Farm General, and she wrote a memo to Davis informing him of that change. The State Farm Fire policy was canceled. The State Farm General policy cost $747 (the $747 policy) for the identical coverage that Mr. Baker had obtained from State Farm Fire for $473.
Tillery contacted Mr. Baker when she received Hall's memo. She explained to him that because his house was not insured for 80% of its replacement cost State Farm Fire would not provide insurance for his house. Tillery told Baker, in effect, that he had two optionseither increase the coverage with State Farm Fire to 80% of the replacement value of his house or keep the same amount of coverage, which would be provided by State Farm General at the increased cost of $747.
In early May, Mr. Baker received a bill from State Farm General for $320.64, which, for complicated reasons, was the balance due on the difference between the $473 policy and the $747 policy. Mr. Baker telephoned Davis's office two or three days after he received that bill. He told someone in Davis's office that he had already paid for a full year's premium and that he had no intention whatever of paying any additional premium for the current year's coverage.
State Farm General also sent a premium notice for $320.64 to CBS, and CBS eventually paid State Farm General the $320.64 from the Bakers' escrow account. The insurance companies, Davis, and the Bakers continued arguing over the correct amount of the premium. Ultimately, in March 1988, Bill Lovell, an underwriting operations supervisor for State Farm Fire, decided to reinstate the original State Farm Fire policy, effective February 23, 1987, at a cost of $426.36. State Farm General refunded the excess premium.
In September 1988, the Bakers filed their original complaint, which they amended twice. By agreement of all the parties, Counts four, five, and nine of the amended complaints were dismissed. The trial court dismissed both Count seven, which alleged outrage, and Count eight, which alleged invasion of privacy. The trial court entered summary judgment for all the defendants on the remaining counts. The Bakers appeal the dismissal of counts seven and eight and the summary judgment for the defendants on the other counts.
In Count seven, the Bakers claim damages for outrage by alleging that State *807 Farm General and Davis fraudulently signed Baker's signature to the rewrite application and by arguing that that action in and of itself is utterly intolerable in a civilized society. In American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala. 1981), we recognized the tort of outrage and described the proof required for that tort:
394 So. 2d at 365.
A motion to dismiss should be granted only when it appears on the face of the complaint that the plaintiff can prove no set of facts entitling him to relief. Alorna Coat Corp. v. Behr, 408 So. 2d 496 (Ala.1981). The complaint fails to show that Baker could prove his claim for outrage, and the judgment as to Count seven is due to be affirmed. The complaint also fails to show that Baker could prove his claims in Count eight, which alleges that all the defendants invaded Baker's right to privacy by appropriating his name for a commercial use. The trial court's judgment as to count eight is likewise due to be affirmed.
The defendants contend that the remaining counts, on which the trial court entered a summary judgment for all the defendants, because they are tort actions alleging the wrongful termination of an insurance policy, are barred as a matter of law by the holding in Watkins v. Life Insurance Co. of Georgia, 456 So. 2d 259 (Ala. 1984). Even if Watkins held as the defendants argue, except for count 10, which we discuss presently, the Bakers do not base their claims on a wrongful termination of the $473 policy; Watkins, accordingly, is distinguishable.
In Count one, pursuant to Ala. Code 1975, § 6-5-101, the Bakers claim damages for misrepresentation by State Farm General in its sending the bill to CBS for $320.64; only State Farm General is named as a defendant in this Count.
In Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602, 604-05 (Ala. 1987), we listed the elements necessary to sustain an action pursuant to § 6-5-101:
"....
Although the Bakers produced evidence that State Farm General sent the bill to their escrow agent, CBS, the Bakers did not produce substantial evidence that State Farm General intended to deceive the Bakers at the time it sent the bill to CBS. Accordingly, their claim pursuant to § 6-5-101 fails, and the trial court's judgment as to Count one is due to be affirmed.
The Bakers, in Count two, make this claim pursuant to § 6-5-102:
*808 In Crowder, we stated the elements necessary to sustain a cause of action under § 6-5-102:
516 So. 2d at 604-05.
The undisputed evidence indicates that CBS required the insurance policy to have the same effective date as the date of the mortgage; that the Bakers knew that; that the rewrite application was for the same coverage with the same company for the same premium. Nothing indicates that the defendants knew at the time they submitted the rewrite application that that application would result in a change of coverage. The Bakers completely failed to offer evidence of a present intent to deceive by any of the defendants at the time Tillery signed the application and submitted it, which is the transaction upon which they base their suppression claim. The judgment of the trial court is due to be affirmed as to Count two.
Count three alleges a claim of deceit pursuant to §§ 6-5-103 and -104. The Bakers contend that the same actions they complained of in Count two form the basis for their action in Count three: the defendants signed Bobby Jack Baker's name to the rewrite application and submitted that application to the insurance companies. Actions for deceit under §§ 6-5-103 and 6-5-104 are properly based upon either a willful or reckless misrepresentation or a suppression of material facts with an intent to mislead. Again, the Bakers did not produce any evidence that any of the defendants intended to mislead them at the time of the actions made the basis of the claim. The trial court's judgment as to Count three is due to be affirmed.
The Bakers allege in Count six that State Farm General and Davis intentionally interfered with their contract with State Farm Fire. In Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala. 1986), we stated the elements of the tort of intentional interference with contractual or business relations:
494 So. 2d at 596.
The Bakers in Count six make this allegation:
"The intentional interference by said Defendants was that they, acting by and through their respective agents, servants and employees, fraudulently and illegally forged the signature of Plaintiff Bobby J. Baker to the April 9, 1987 application, and submitted the illegal application to the State Farm regional office in Birmingham. This application was for a policy of insurance to be issued by State Farm Fire. Instead of issuing a policy in the name of State Farm Fire, State Farm General interfered with the $473.00 policy *809 by canceling it, without justification, and then issued to the Plaintiffs the $747.00 policy with State Farm General."
The Bakers did not present substantial evidence that State Farm General through Davis, or Davis through his employee Tillery, intended to interfere with Baker's contract with State Farm Fire. To the contrary, the undisputed evidence indicates that Tillery signed and submitted the rewrite application to State Farm Fire for the same coverage at the same premium. Nothing indicates that Tillery would have known the change to State Farm General would result from her filing that application. Furthermore, the evidence does not indicate that State Farm General "canceled" the State Farm Fire policy, as the Bakers allege. The judgment of the trial court as to Count six is due to be affirmed.
In Count 10, the Bakers allege bad faith based upon the wrongful cancellation of the $473 policy. In Watkins, we held that a wrongful cancellation of an insurance policy does not give rise to a bad faith cause of action. 456 So. 2d at 263. Also, under the current law concerning the tort of bad faith, a wrongful cancellation, such as is alleged in this count, would not give rise to a bad faith cause of action, because the tort of bad faith addresses refusal to pay a claim, and in this case, the Bakers made no claim. United American Insurance Co. v. Brumley, 542 So. 2d 1231 (Ala. 1989); Jones v. Alabama Farm Bureau Mutual Casualty Co., 507 So. 2d 396 (Ala. 1986); Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1 (Ala.1981). The judgment of the trial court as to Count 10 is due to be affirmed.
The trial court did not err in its ruling on any of the Bakers' claims. The judgment is due to be affirmed.
AFFIRMED.
MADDOX, SHORES, ADAMS and HOUSTON, JJ., concur.
[1] "[I]n the past we have listed an absence of justification ... as one of the elements of the plaintiff's cause of action.... [W]e recognize... that it is illogical to continue to list an absence of justification as one of the elements of the plaintiff's cause of action and then place the burden on the defendant to disprove it." Century 21 Academy Realty, Inc. v. Breland, 571 So. 2d 296, 298 (Ala.1990). | June 7, 1991 |
6c0d4e11-33ec-4891-913d-013d945a735e | TRANSAMERICA COM. FINANCE v. Union Bank | 584 So. 2d 1299 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 1299 (1991)
TRANSAMERICA COMMERCIAL FINANCE CORPORATION and Transamerica Fleet Leasing Corporation
v.
UNION BANK & TRUST COMPANY.
89-1400.
Supreme Court of Alabama.
June 14, 1991.
Rehearing Denied August 9, 1991.
*1300 Philip H. Butler and Scott R. Talkington of Robison & Belser, Montgomery, for appellants.
Robert W. Bradford, Jr. and H. Byron Carter III of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
KENNEDY, Justice.
Transamerica Commercial Finance Corporation and Transamerica Fleet Leasing Corporation (hereinafter together called "Transamerica")[1] appeal from a judgment entered by the Montgomery Circuit Court for Union Bank & Trust Company.
In 1984, Transamerica executed a "floor plan" agreement with Tom Wright, d/b/a T & W Coach Sales. The agreement provided that Transamerica would finance T & W's purchase of vehicles for resale in exchange for a security interest in T & W's existing and after-acquired collateral. Transamerica properly perfected its security interest in T & W's inventory by filing a financing statement with the Secretary of State of Alabama.
From 1984 to 1988, Transamerica financed, pursuant to the security agreement, the purchase of many vehicles for T & W. The security agreement provided that, until the vehicles were sold by T & W, Transamerica had the right to hold in its possession the "certificates of origin" or the "manufacturer's statements of origin"[2] relating to the vehicles purchased by T & W and financed by Transamerica:
Edward Price, Transamerica's "division control manager" for Montgomery, stated that upon receipt of notice that a vehicle it had financed had been sold, Transamerica would release to T & W the certificate of origin ("CO") and the manufacturer's statement of origin ("MSO") for that vehicle. It is not disputed, and the security agreement states, that Transamerica could note its security interest in a vehicle on the CO and MSO for that vehicle.
The six vehicles made the basis of this appeal, five limousines and a hearse, were purchased by T & W in 1987 and 1988 pursuant to the security agreement with Transamerica. It is not disputed that Transamerica had a perfected security interest in those six vehicles. Subsequently, T & W informed Transamerica that it had sold the six vehicles. It is undisputed that Transamerica released the CO's for those vehicles to T & W; however, Transamerica did not note thereon its security interest in the vehicles. The vehicles were purchased by Wright Leasing Company, which was owned and operated by Tom Wright, and its place of business was located at the same address as T & W. Transamerica *1301 was aware of the existence of Wright Leasing; however, at the time the six vehicles were sold, it did not know that the vehicles were sold to Wright Leasing.
Subsequent to the transfer of the six vehicles to Wright Leasing, Wright Leasing approached Union Bank to obtain loans to pay for the six vehicles. As indicia of ownership of the vehicles, Wright Leasing presented the CO's and MSO's for the vehicles to Union Bank.[3] Union Bank lent the purchase money for the six vehicles to Wright Leasing. In turn, Wright Leasing paid T & W the purchase prices of the vehicles. However, because of "cash flow problems," T & W did not remit to Transamerica the amount it owed for the vehicles. Wright Leasing defaulted on its note payments to Union Bank. Union Bank repossessed the vehicles from Wright Leasing.
Transamerica filed a complaint for declaratory judgment and a temporary restraining order against Union Bank. In its complaint, Transamerica alleged that it had a prior security interest in the six vehicles. The trial court granted Transamerica's application for a temporary restraining order. Thereafter, Transamerica filed an application for a preliminary injunction, in which it requested the trial court to enjoin Union Bank from transferring the vehicles until such time as the trial court could hold a hearing on the merits of its complaint. The trial court granted the application. The case was tried without a jury, and the trial court held that Transamerica did not have a security interest in the vehicles. It further held that, even if Transamerica had a security interest in the vehicles, it was estopped from asserting that it had such a security interest and that it had waived its right to claim a security interest. The trial court entered a judgment for Union Bank. Transamerica appeals.
This Court decides this case on the following issues:
At trial, Transamerica's primary argument was that, pursuant to the Uniform Commercial Code, it had a prior security interest in the six vehicles. Union Bank argued that, under the Uniform Commercial Code, Transamerica was estopped from asserting its alleged prior security interest in the vehicles. Specifically, Union Bank argued: Transamerica's security interest was not listed on the CO's and MSO's for the six vehicles, which, in turn, were presented to Union Bank as collateral for the notes; it is the custom in the lending industry to forgo searches for financing statements on vehicles where one is presented with unrestricted CO's and MSO's; because no security interest was listed on the CO's and MSO's, Transamerica was estopped from asserting its alleged security interest in the vehicles.
On appeal, Transamerica argues that it is not estopped from asserting its alleged security interest in the six vehicles.
The trial court's finding that industry custom estops Transamerica from asserting its alleged prior security interest is based on its reading of Ala.Code 1975, § 7-1-205, which concerns the effect of "usage of trade" on the contractual rights of parties. Thus, in order to resolve this issue, a review of the both the caselaw cited in the trial court's order and the relevant portions of Alabama's version of the Uniform Commercial Code is necessary.
While the cases cited in the trial court's order concern the issue of estoppel, they do not hold that a creditor who "floor plans" inventory for an automobile dealership is estopped from asserting a security interest where it has released unrestricted CO's and MSO's to the dealership. See General Electric Credit Corp. v. Strickland Div. of Rebel Lumber Co., 437 So. 2d 1240 (Ala. 1983) ("floor plan" creditor with perfected security interest in after-acquired inventory not estopped from asserting its security interest where it had not disclosed to consignor of inventory its security interest); Mazer v. Jackson Ins. Agency, 340 So. 2d 770 (Ala.1976) (property developer estopped from developing buffer zone where it had failed to inform parties to agreement that original agreement was not permanent agreement); Givens v. General Motors Acceptance Corp., 56 Ala.App. 561, 324 So. 2d 277 (Ala.Civ.App.1975) (defaulting debtor waived right to assert right in payments allegedly misapplied to debt where, after notice of alleged misapplication, debtor took no action).
In looking to the Uniform Commercial Code, we note first that Article 9 of the Code"Secured Transactions"(Ala.Code 1975, § 7-9-302) requires that a financing statement be filed to perfect a security interest in an automobile that is inventory held for resale by one in the business of selling goods of the kind. In this case, however, the trial court held that Transamerica's failure to observe the custom in the industryto note its security interest on CO's and MSO'sestops it from arguing that it has a prior perfected security interest in the six vehicles.
The Uniform Commercial Code, Ala. Code 1975, § 7-1-205, defines "usage of trade" and explains its effect on the rights of parties. It states in pertinent part:
It is obvious from a reading of § 7-1-205 that its provisions concerning the effect of "usage of trade" in an industry are relevant to subsequent dealings between parties who are bound by the express terms of a contractual agreement. It is equally obvious that the language in § 7-1-205 is not intended to aid in determining the outcome of a dispute between parties who are not in any way contractually bound to each other. Section 7-1-205(2) defines "usage of trade." Subsection (3) of § 7-1-205 provides that a "usage of trade" in an industry gives meaning to and supplements the "terms of an agreement." Clearly, this indicates that the provisions of § 7-1-205 are intended to aid in resolving disputes *1303 between parties to a contract, but that the provisions of § 7-1-205 are not intended to apply to situations, such as here, where the parties to a dispute are not mutually bound by contract. Section 7-1-205(4) states that a "usage of trade" should be construed consistently with the terms of an agreement, but that, if such a construction is not possible, the express terms of the agreement control "usage of trade." Again, the language of the statute reveals that a "usage of trade" in an industry should supplement the terms of an agreement. Moreover, by adopting § 7-1-205, the legislature intended to reject cases that see evidence of a "custom" as representing an attempt to displace or negate "established rules of law." § 7-1-205 (Official Comment 4).
In deciding the estoppel issue, we also note the decision of the Supreme Court of Utah in Draper Bank & Trust Co. v. Lawson, 675 P.2d 1174 (Utah 1983). In that case, General Motors Acceptance Corporation "floor planned" an automobile dealership's inventory and took a security interest therein. GMAC properly filed a financing statement, noting its security interest in the inventory. Subsequently, one of the dealership's partners sought a loan of $30,000 from Draper Bank. Unaware of GMAC's security interest in the dealership's inventory, Draper Bank approved the loan and took MSO's for three vehicles as security for the loan. For reasons not stated, GMAC repossessed the three vehicles. Draper Bank sued, claiming a superior interest in the vehicles.
Draper Bank argued that GMAC should be estopped from asserting its security interest in the vehicles. The Supreme Court of Utah addressed the issue as follows:
675 P.2d at 1178.
Thus, we hold that Transamerica is not estopped from arguing that it has a prior security interest in the six vehicles.
Likewise, Transamerica did not waive its right to assert any security interest that it might have had in the six vehicles. See Bates v. Jim Walter Resources, Inc., 418 So. 2d 903 (Ala.1982).
Transamerica argues that the trial court erred in holding that, pursuant to Ala.Code 1975, § 7-9-307(1), Wright Leasing was a buyer in the ordinary course of T & W's business. It argues that Tom Wright did not satisfy the elements of a buyer in the ordinary course of business. To resolve this issue, we must recite the facts concerning the transfer of the six vehicles to Wright Leasing.
The security agreement provided that Transamerica be paid immediately for vehicles sold by T & W and financed by Transamerica:
Edward Price testified that Transamerica expected payment for a sold vehicle "shortly after" T & W sold the vehicle. Price said that he knew when T & W sold a vehicle because Wright "would call, ... tell [him] that he had sold a vehicle, and request the CO and MSO" for that vehicle.
It is undisputed that the six vehicles made the basis of this appeal were sold to T & W and financed by Transamerica on the following dates: vehicle 7211 on May 29, 1987; vehicle 1651 on June 5, 1987; vehicle 9574 on July 7, 1987; vehicle 8718 on September 8, 1987; vehicle 5035 on April 28, 1988; and vehicle 3183 on May 23, 1988.
The evidence concerning the dates on which Transamerica was notified that T & W had sold the six vehicles and the dates on which it sent the ownership documents to T & W are conflicting. Union Bank contends that Transamerica sent both the CO's and the MSO's for the vehicles to T & W at least before the date of the transfer of the vehicles to Wright Leasing. Transamerica argues that Tom Wright informed it on January 9, 1989, that it had sold all six vehicles, and that, at that time, it sent to T & W the CO's, not the MSO's, for each vehicle because it never had the MSO's in its possession.
Shirley Biegalski, the wholesale cashier for Transamerica, testified for Transamerica. Portions of her testimony were based on records that she said were kept in the ordinary course of her employment. She stated that Transamerica would generate a "trust receipt" for each vehicle it financed, and that it would attach to the trust receipt the CO and MSO for that vehicle. Both Price and Ms. Biegalski said that, once the sale of a vehicle had been arranged, Transamerica would release both the CO and MSO for that vehicle to its seller (T & W). Ms. Biegalski stated that when it did so, it would retain the trust receipt for that vehicle, note thereon the date on which the CO and MSO were released, and attach a copy of the CO and MSO to the trust receipt. She said that Transamerica would retain the trust receipt until it had been paid in full for the subject vehicle.
Price testified that Tom Wright contacted him on or about January 9, 1989, and told him that he had sold all six of the vehicles. Price stated that at that time he instructed Ms. Biegalski to send the CO's and MSO's for the six vehicles to T & W. Transamerica introduced into evidence a trust receipt for each of the six vehicles it financed for T & W. On each trust receipt, the date "January 9" was written. Ms. Biegalski testified that "January 9" denoted the date on which she released to T & W the CO's for the six vehicles.
Both Price and Ms. Biegalski stated that ordinarily limousine manufacturers issue both CO's and MSO's for vehicles they manufacture; however, they said, some limousine manufacturers did not issue MSO's for their vehicles. Ms. Biegalski said she thought that, at the time the vehicles made the basis of this appeal were manufactured, Hess & Eisenhardt, the manufacturer of five of the six vehicles, did not issue MSO's on vehicles. In any event, Price testified that, at the time of trial, he knew that Transamerica had the CO's in its possession, and that Ms. Biegalski released them to T & W on January 9, 1989; he could not say that Transamerica had possession of the MSO's on January 9, 1989. Price said that his testimony was based on records kept in a log book by Ms. Biegalski. Ms. Biegalski said that she released only the CO's to T & W, but that, had she had them, she would have sent both the CO's and MSO's to T & W.
Transamerica introduced copies of the CO's and MSO's into evidence.[4] It is not disputed, and the MSO's, which were signed by Tom Wright, note, that the vehicles thereon described were transferred from T & W to Wright Leasing on the *1305 following dates: vehicle 7211 on July 27, 1987; vehicle 1651 on August 10, 1987; vehicle 9574 on October 10, 1987; vehicle 8718 on June 21, 1988; vehicle 5035 on June 27, 1988; vehicle 3183 on May 9, 1989. (For vehicle 3183, the date of transfer is noted on the CO.) Tom Wright testified that, "to the best of his knowledge," the transfer dates noted on the MSO's and CO were correct.
Transamerica introduced several other documents indicating that it released the ownership documents on January 9, 1989.
It produced an excerpt from a log book kept by Ms. Biegalski containing the status of released CO's and MSO's. The log book noted that Transamerica released the ownership documents[5] for the six vehicles on January 9, 1989.
Transamerica introduced a "sender's copy" of a receipt for an express mail package dated January 9, 1989, sent to Tom Wright by Ms. Biegalski.
Transamerica also introduced a copy of a form letter Ms. Biegalski sent to Tom Wright and T & W on February 1, 1989, stating the following:
The letter then states that the "MSO's"[6] for the six vehicles have been outstanding since their release on January 9, 1989.
Transamerica introduced seven monthly inventory reports. The security agreement provided Transamerica the right to inspect the vehicles it had financed. Bill Thompson, Transamerica's district sales representative for Montgomery, testified that he performed monthly physical inspections of collateral financed by Transamerica for T & W, and that, based on his inspection of T & W's inventory, he would prepare "dealer monthly inventory records." The seven dealer monthly inventory records introduced by Transamerica span the period February 11, 1988, to May 24, 1989. All of the records note that, at that time they were completed, vehicles 7211, 1651, and 9574 had not been sold by T & W. The three dealer monthly inventory records dated last in time note that, at the time they were completed, all six vehicles made the basis of this appeal had not been sold by T & W. Under the space provided for the dealer's signature on dealer monthly inventory records, the following language appears:
In any event, it is not disputed that the dealer monthly inventory records were signed by either Tom Wright or Hillard Wright, a T & W employee and Tom Wright's brother, and that, by signing them, they verified the records' accuracy. Thompson testified that at no time did either Tom or Hillard Wright inform him that they had transferred any of the six vehicles to Wright Leasing.
Tom Wright testified that he had no independent knowledge of when he received the CO's from Transamerica. He said he relies on the MSO's to know when T & W transferred the vehicles to Wright Leasing; that he relies on the Union Bank notes to know when he borrowed the purchase money for the vehicles; and that he relies on the dealer monthly inventory records to know what vehicles he represented to have been sold and those he represented not to have been sold. Tom Wright testified that he had intended to pay Transamerica the money T & W owed it for each of the six vehicles.
The Union Bank notes indicate, and it is not disputed, that Union Bank lent Wright *1306 Leasing the purchase money for the vehicles on the following dates: for vehicle 7211 on March 4, 1988; for vehicle 1651 on November 1, 1987; for vehicle 9574 on March 4, 1988; for vehicle 8718 on June 21, 1988; for vehicle 5035 on June 20, 1988; and for vehicle 3183 on August 14, 1989.
William Johnson, senior vice-president of Union Bank, testified for Union Bank. He said that, to lend money to one purchasing a limousine or a hearse, Union Bank required the purchaser (Wright Leasing) to release both the CO and the MSO for that vehicle to Union Bank. Johnson stated that he had possession of both the CO and the MSO for each vehicle at the time Union Bank lent the purchase money for each vehicle to Wright Leasing. However, he acknowledged that, unlike the MSO's for all the vehicles, the CO's for five of the six vehicles did not have the transfer from T & W to Wright Leasing recorded thereon; that only the CO for vehicle 3183, which was the only vehicle T & W stated was transferred to Wright Leasing after January 9, 1989, had recorded on it the transfer from T & W to Wright Leasing. Johnson admitted that he did not attempt to determine whether the six vehicles were subject to a security interest. He also testified that Union Bank perfected its security interest in two of the six vehicles.
The evidence in this case was presented ore tenus. Thus, this Court must presume that the findings of the circuit court based on that evidence are correct. However, no presumption of correctness as to findings of fact will be indulged on review when ore tenus evidence was not presented, and in such a case it is our duty to sit in judgment of the evidence. Tate v. Kennedy, 578 So. 2d 1079 (Ala.1991); McCulloch v. Roberts, 292 Ala. 451, 296 So. 2d 163 (1974).
Transamerica argues that, pursuant to Ala.Code 1975, § 7-9-306(2), it has a security interest in the six vehicles, notwithstanding their sale. Section 7-9-306(2) states:
Union Bank relies on an exception to the protection afforded in § 7-9-306(2). The exception, found in § 7-9-307(1), provides:
See Frank Davis Buick AMC-Jeep, Inc. v. First Alabama Bank of Huntsville, N.A., 423 So. 2d 855 (Ala.Civ.App.1982).
Transamerica argues, and we agree, that Union Bank, as the party claiming that Wright Leasing is a "buyer in the ordinary course of business," bears the burden of proving that Wright Leasing is such a buyer. See American National Bank v. Cloud, 201 Cal. App. 3d 766, 247 Cal. Rptr. 325 (1988); Cox v. Bancoklahoma Agri-Service Corp., 641 S.W.2d 400 (Tex.Dist.Ct.App.1982); International Harvester Co. v. Glendenning, 505 S.W 2d 320 (Tex.Civ.App.1974). Based on our application of the Uniform Commercial Code to the facts of this case, we hold that the trial court erred in finding that Wright Leasing was a buyer in the ordinary course of T & W's business.
A buyer in the ordinary course of business is defined as follows:
Ala.Code 1975, § 7-1-201(9) (emphasis added).
Transamerica concedes that if Union Bank can prove that Wright Leasing satisfies the elements of a "buyer in the ordinary course of business," then its debtor, Wright Leasing, is entitled to take the vehicles *1307 free of Transamerica's security interest created in it by Tom Wright and T & W. Transamerica admits that Tom Wright and T & W are in the business of selling goods of the kind (limousines and hearses). However, it argues that the trial court erred in holding that Union Bank met its burden with respect to the remaining elements of a buyer in the ordinary course of business. Transamerica argues that Union Bank failed to prove that Wright Leasing's purchase of the vehicles was in good faith; that Wright Leasing acted without knowledge that its conduct was in violation of the security agreement; and that Wright Leasing's purchase was in the ordinary course of T & W's business. See § 7-1-201(9). Because we find that Wright Leasing acted with knowledge that its conduct was in violation of the security agreement, and that such a finding is alone sufficient to require reversal, we will limit our discussion to that element.
Transamerica argues that Wright Leasing acted in knowing violation of the security agreement for two reasons. First, it argues that Tom Wright's failure to immediately seek a loan to pay for the transfers of four of the vehicles was in violation of the security agreement. We agree.
The security agreement provides in pertinent part:
The trial court based its holding that Wright Leasing was a buyer in the ordinary course of business on the fact that it found that, at the time the vehicles were transferred to Wright Leasing, T & W intended to pay Transamerica the amount it owed on the vehicles. However, the evidence does not support the trial court's finding. Tom Wright testified that he had no independent memory of the individual transactions, and that his testimony was based on the relevant documents that were submitted to the trial court. Based on the transfer dates listed on the MSO's, four of the vehicles were transferred from T & W to Wright Leasing on the following dates: vehicle 7211 on July 27, 1987; vehicle 1651 on August 10, 1987; vehicle 9574 on October 10, 1987, and vehicle 3183 on May 9, 1989. Union Bank's records indicate, and it is not disputed, that Wright Leasing borrowed the purchase money for vehicles 7211, 1651, 9574, and 3183 on March 4, 1988, November 1, 1987, March 4, 1988, and August 14, 1989, respectively. Tom Wright testified that he knew, based on the terms of the security agreement, that T & W was obligated to pay Transamerica immediately for any vehicles financed by Transamerica and sold by T & W. There was no evidence that Tom Wright and Wright Leasing had any difficulty in obtaining purchase money loans from Union Bank. Indeed, the evidence indicates that Wright Leasing obtained numerous purchase money loans from Union Bank. Thus, Tom Wright, and, therefore, Wright Leasing, knew as of the date of the transfers of those four vehicles that the sales thereof were in violation of the security agreement between T & W and Transamerica. Thus, as to vehicles 7211, 1651, 9574, and 3183, Wright Leasing was not a buyer in the ordinary course of business.
Transamerica also argues that Tom Wright and Wright Leasing knew that T & W violated the security agreement by failing to note on the dealer monthly inventory records that it transferred the six vehicles to Wright Leasing. Union Bank argues that because Transamerica was aware of the sales of the vehicles prior to the dates on which the dealer monthly inventory records were made, the records have no relevance to the issue whether Wright Leasing was a buyer in the ordinary course of business. Again, we disagree.
The trial court found that Transamerica sent both the CO's and the MSO's to T & W "prior to the time the loans were made by Union Bank and that such CO's and MSO's were in Union Bank's possession at the time the loans were made." Thus, the trial court found that Transamerica released the CO's and MSO's for five of the six vehicles to T & W before January 9, 1989, the date *1308 that Transamerica claims it released the CO's to T & W.
As we have stated, Tom Wright testified that he had no independent memory of when he informed Transamerica that T & W had sold the vehicles to Wright Leasing. He said that he relied on the documents to determine at what time Transamerica learned of the sales. Union Bank presented no documentary evidence supporting the conclusion that Transamerica was aware of the transfers at the time they were alleged to have occurred. The MSO for each vehicle merely notes thereon the date T & W transferred the vehicle to Wright Leasing.
Transamerica presented both oral testimony and documentary evidence tending to prove that it never had the MSO's to release to T & W and that it released the CO's for the six vehicles to T & W on January 9, 1989. The oral testimony consisted of the testimony of Edward Price and Shirley Biegalski that Transamerica never had the MSO's for the six vehicles; that T & W informed Transamerica of the sale of the vehicles on January 9, 1989; and that, at that time, Transamerica released to T & W the CO's to the vehicles. Price admitted that his testimony was based on the records kept by Transamerica. Ms. Biegalski said she remembered receiving a request for release of the ownership documents in early 1989 because, she said, it was unusual to receive a request for the release of ownership documents for six vehicles at one time, although on cross-examination she was unable to identify the debtor and the date in a similar transaction listed in Transamerica's log book.
The documentary evidence introduced by Transamerica tending to prove that Transamerica became aware of the transfer of the six vehicles on January 9, 1989, and that it released the CO's to T & W on that date, consists of the following: the trust receipts for each vehicle, noting January 9 as the release date; the express mail receipt of the same date; the form letter of February 1, 1989; and the log book, listing the release date of the ownership documents for each vehicle as January 9. The only documents generated by T & W that bear on the issue are the dealer monthly inventory records; they indicate that as late as May 1989 T & W had not sold the six vehicles. It is also notable that the only CO to have recorded thereon the transfer from T & W to Wright Leasing is the CO for vehicle 3183, the only vehicle that was undisputedly transferred to Wright Leasing after January 9, 1989.
Because Union Bank presented no ore tenus evidence tending to prove that Transamerica sent to T & W the CO's and MSO's before Union Bank lent Wright Leasing the purchase money for each of the six vehicles, we can not indulge a presumption of correctness in the trial court's finding to that effect. Based on the only relevant oral testimony, and on the documentary evidence introduced, we hold that Union Bank has not met its burden of proving that Transamerica was aware of the transfers of the vehicles before January 9, 1989. Thus, Union Bank's argumentthat the dealer monthly inventory records are irrelevant to the issue whether Wright Leasing was a buyer in the ordinary course of business because Transamerica was already aware of the transfersfails. Therefore, we now determine whether the dealer monthly inventory records were kept in violation of the security agreement.
The security agreement provides in pertinent part:
The dealer monthly inventory records were signed by either Tom or Hillard Wright. As late as May 24, 1989, T & W verified in a dealer monthly inventory record compiled by Bill Thompson, Transamerica's district sales representative for Montgomery, that all of the vehicles were in the possession of T & W. Such a misrepresentation relating to T & W's collateral is clearly a violation of the security agreement. Tom Wright testified that the *1309 information on the dealer monthly inventory records could have been supplied by either him or his brother, Hillard Wright. We hold that the evidence presented tends to prove that Tom Wright, and, therefore, Wright Leasing, was aware of the security agreement violations.
One dealer monthly inventory report, compiled on August 19, 1988, indicates that, at that time, all six vehicles were possessed by T & W. At that time, which was before January 9, 1989, T & W had transferred five of the six vehicles to Wright Leasing: vehicles 7211, 1651, 9574, 8718, and 5035. Thus, as to the purchase of those five vehicles, Union Bank failed to prove that Wright Leasing was a buyer in the ordinary course of business; indeed, the evidence tended to prove that Wright Leasing was not a buyer in the ordinary course of business.
Having previously held that Union Bank failed to prove that the sale of the sixth vehicle to be sold, vehicle 3183,[7] was not in violation of the security agreement, we hold that the trial court erred in finding, as to the sale of all six vehicles, that Wright Leasing was a buyer in the ordinary course of business. Because we so hold, we pretermit discussion of Transamerica's argument that Union Bank failed to prove that the transfer of the vehicles to Wright Leasing was in good faith and that it was in the ordinary course of T & W's business.
The judgment of the trial court is reversed and the cause is remanded for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Formerly Borg-Warner Acceptance Corporation.
[2] Edward Price, Transamerica's "division control manager" for Montgomery, testified that a certificate of origin is a certificate of the origin of a chassis of an automobile. A manufacturer's statement of origin, he stated, is a statement of the origin of a vehicle that has been converted into either a limousine or a hearse by the conversion manufacturer. Ordinarily, a certificate of origin is issued for an automobile; however, Price said, both a certificate of origin and a manufacturer's statement of origin are issued for limousines and hearses. Price testified that, in regard to a limousine or a hearse, a certificate of origin and a manufacturer's statement of origin are the documents that indicate ownership of the vehicles prior to the time of the issuance of a certificate of title.
[3] Transamerica admits that it sent the CO's for the vehicles to T & W. However, it denies it ever had possession of, or that it sent, the MSO's to T & W. See part II, infra.
[4] Transamerica does not explain how, if it did not have possession of the MSO's on January 9, 1989, it came into possession of the MSO's for purposes of this appeal.
[5] Although Transamerica states that it released only the CO's for the six vehicles, the log book is entitled "Released MSO's." Ms. Biegalski accounts for this as follows: "[W]e just consider everything an MSO. We don't distinguish usually the difference. We know the difference, but we just refer to them as MSO's."
[6] See footnote 5, for Ms. Biegalski's testimony concerning Transamerica's reference to the ownership documents as "MSO's."
[7] Along with vehicles 7211, 1651, and 9574. | June 14, 1991 |
3a6591cb-a8d3-4644-8cb7-2c480d9976bb | Jordan v. General Motors Corp. | 581 So. 2d 835 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 835 (1991)
Joann JORDAN
v.
GENERAL MOTORS CORPORATION.
89-1796.
Supreme Court of Alabama.
May 31, 1991.
*836 S. Shay Samples and Robert D. Word III of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
De Martenson and Christopher S. Rodgers of Huie, Fernambucq & Stewart, Birmingham, for appellee.
INGRAM, Justice.
Joann Jordan, while operating her 1983 Chevrolet Cavalier automobile on U.S. Highway 31 in Jefferson County, sustained injuries when she inadvertently ran a red light and struck another vehicle. She sued General Motors Corporation (GM) under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD), alleging that it had manufactured a defective and unreasonably dangerous seat belt/shoulder harness system. The trial court entered a summary judgment in favor of GM, and Jordan appeals.
Jordan argues on appeal that she presented substantial evidence to support her cause of action against GM and, therefore, that the summary judgment entered against her was improper. We disagree.
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:
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, here Jordan, and must resolve all reasonable doubts against the moving party, here GM. 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.
In order to establish liability under the AEMLD, Jordan must prove that
Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala.1976); Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132 (Ala. 1976).
In Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala.1981), this Court emphasized that mere proof that an accident occurred with resulting injuries is insufficient to establish fault under the AEMLD. Rather, because the AEMLD is a fault-based cause of action, the plaintiff *837 must affirmatively show that the product was sold with a defect or in a defective condition. Id. The terms "defect" and "defective," as applied under the AEMLD, have been defined as follows:
Casrell, 335 So. 2d at 133.
At this juncture, it must be pointed out that proof of a specific defect is not required if the product is unreasonably dangerous. In other words, "[i]f a product is unreasonably dangerous, it is necessarily defective, and the consumer should not be required to prove defectiveness as a separate matter." Casrell, at 131.
In support of its motion for summary judgment, GM relied on the affidavit testimony of one of its senior project engineers, Pamela Michelle Oviatt. Oviatt's affidavit states, in pertinent part:
Additionally, GM submitted pertinent portions of the deposition of John E. Sims, Jordan's expert witness, stating that, although he could not identify any specific defects in the subject seat belt system, he was nevertheless of the opinion that the seat belt system was defective because Jordan, while wearing her seat belt, incurred injuries that he felt she would not have received if the seat belt system had functioned properly.
In opposition to GM's motion for summary judgment, Jordan offered: (1) all evidentiary material of record and (2) an affidavit of her expert witness, John Sims, which stated, in pertinent part:
As emphasized earlier, the plaintiff bears the burden of proving that the product was in a defective condition when it left the defendant's control. Without evidence to support the conclusion that the product was defective and/or unreasonably dangerous when it left the hands of the seller, the burden is not sustained. Sapp v. Beech Aircraft Corp., 564 So. 2d 418 (Ala.1990).
Because Jordan presented no evidence other than evidence that she received injuries as a result of an automobile accident while wearing a GM seat belt, we hold that she did not present substantial evidence to support a claim under the AEMLD. Accordingly, *838 the trial court's summary judgment in favor of GM is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | May 31, 1991 |
7545d6f8-5d2e-472f-9832-8e8ea28653b1 | Garrett v. Alfa Mut. Ins. Co. | 584 So. 2d 1327 | 1900249 | Alabama | Alabama Supreme Court | 584 So. 2d 1327 (1991)
Harbin GARRETT and Tony Garrett
v.
ALFA MUTUAL INSURANCE COMPANY.
1900249.
Supreme Court of Alabama.
June 14, 1991.
Rehearing Denied August 9, 1991.
*1328 Michael L. Roberts of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellants.
Jack W. Torbert of Torbert and Torbert, Gadsden, for appellee.
John S. Morgan of Inzer, Suttle, Swann & Stivender, Gadsden, for amicus curiae Jerry W. Alexander and Jelyeen Alexander.
SHORES, Justice.
Harbin and Tony Garrett appeal from a summary judgment entered for Alfa Mutual Insurance Company ("Alfa"). We reverse in part, and remand the case to the trial court.
Early on the morning of November 24, 1988, Jerry Alexander and his son Jonathan traveled to Harbin Garrett's farm to go on a hunting trip with Harbin Garrett and his son/employee, Tony. They made the trip in Harbin Garrett's 1972 Ford Bronco motor vehicle. Jerry Alexander contends that while he was in the back of the Bronco, Tony caused the Bronco to lurch forward and to throw him to the ground. Jerry sustained substantial injuries, including brain damage, as a result of his fall. He and his wife Jelyeen Alexander sued Harbin and Tony Garrett, alleging that they had been negligent and that their negligence had caused Jerry's injury.
Alfa sought a judgment declaring that the farmowner's and automobile policies issued to Harbin Garrett provided the Garretts no coverage as to the alleged accident, and that it had no duty to defend the suit filed by the Alexanders. The Garretts argued that the farmowner's policy did provide coverage. Under the policy, Alfa insured against liability arising out of the use of "farm implements," and the Garretts argue that the Ford Bronco was a farm implement.
The trial court entered a summary judgment for Alfa, declaring that it had no duty to defend and insure under the farmowner's policy.[1]
The farmowner's policy issued to Harbin Garrett contained the following liability provision:
The policy also contained certain exclusions, the one pertinent to this case being the following:
(Emphasis in original.)
We must first decide whether these policy provisions create an ambiguity. The Garretts argue that the Bronco qualifies as a "farm implement" because, they say, they make extensive use of the Bronco on the farm to perform such tasks as towing corn and hay wagons and pulling out stuck tractors. The Garretts say that the Bronco was equipped with a winch and "mud tires" (tires not designed for normal road use) and that this fact supports their position that the Bronco was a "farm implement."
Rule 56, A.R.Civ.P., sets forth a twotiered standard for determining whether 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. See RHN, Inc. v. Beatty, 571 So. 2d 1039 (Ala.1990). The trial court must view a motion for summary judgment in the light most favorable to the nonmovant, and in reviewing a summary judgment this Court is limited to reviewing the factors and the 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 Alfa's properly supported motion for summary judgment, the Garretts must present "substantial evidence" that the Bronco in question was a farm implement; this the Garretts have done. They have presented "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 not previously decided whether a vehicle like a Bronco may be considered a farm implement. A few states have done so.[2] The policy involved in the case of Heitkamp v. Milbank Mutual Insurance Co., 383 N.W.2d 834 (N.D.1986), contained language similar to that of the policy in our present case. There the policy stated that its liability coverage did not apply:
"Motor vehicle" was defined as:
383 N.W.2d at 836. (Emphasis added.)
383 N.W.2d at 837.
An insurance company has the right to limit its liability and write a policy with narrow coverage, but if the insurance contract contains ambiguous language, then that language will be construed liberally in favor of the insured and strictly against the insurance company. Ho Brothers Restaurant v. Aetna Cas. & Sur. Co., 492 So. 2d 603, 605 (Ala.1986). Whether an insurance policy is ambiguous is a question of law for the trial court. Continental Electric Co. v. American Emp. Ins. Co., 518 So. 2d 83, 85 (Ala.1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988). If the trial court determines that the contract is ambiguous:
Thomas v. Principal Financial Group, 566 So. 2d 735, 738 (Ala.1990), quoting Alpine Constr. Co. v. Water Works Bd. of the City of Birmingham, 377 So. 2d 954, 956 (Ala.1979).
Just as the Heitkamp policy was ambiguous concerning coverage, so is the Alfa policy in issue. In drafting the policy, Alfa attempted to define "motor vehicle," but made no attempt to define "farm implement." Because Alfa drafted the policy, any ambiguity regarding liability should be construed in favor of the Garretts. Ho Brothers Restaurant, supra.
In Heitkamp, there was evidence that the pick-up truck had been purchased for use on the Heitkamp farm, had been so used, and had been depreciated for income tax purposes. The North Dakota Supreme Court held that that evidence was substantial evidence to support a jury's finding that the pick-up was a farm implement, notwithstanding the fact that there was evidence of some personal, nonfarm use of the truck. In the case before us, there was evidence that the Garretts had modified their Bronco (by installing "mud tires" and a winch) so that it could assist with farm tasks; there was evidence that Harbin Garrett would not even use the Bronco for tasks off the farm, such as going to town to pick up seed and fertilizer. In his deposition, Harbin stated that when the Bronco was not being used to pull out tractors, or for similar purposes, it was parked and not *1331 used. Harbin also said that in the four years he had owned the Bronco there had been only four times when it had been used for nonfarm purposes. These four incidents of nonfarm use consisted of hunting trips, and even then these trips, Harbin said, did not involve traveling on a public road but merely crossing a road. Fairminded persons, in the exercise of impartial judgment, could reasonably infer that the Bronco was a farm implement, based upon the evidence within the record. The Garretts produced substantial evidence to defeat Alfa's summary judgment motion.
In Utah Farm Bureau Mutual Insurance Co. v. Orville Andrews & Sons, 665 P.2d 1308 (Utah 1983), the Utah Supreme Court affirmed a summary judgment in favor of a policyholder that declared, as a matter of law, that a truck involved in a traffic accident on a public highway was a farm implement, and, therefore, not excluded from a liability policy.[3] The Utah Supreme Court noted that the insurance contract before it (like the Alfa contract) provided no definition of the term "farm implement":
665 P.2d at 1310. The Utah court looked to a statute (§ 41-1-1(m)) as a basis for affirming the summary judgment, noting that the feeder truck at issue met the statutory definition of "implement of husbandry" (and, therefore, was a farm implement).
Alabama also has a statutory definition of "implement of husbandry," found at Ala.Code 1975, § 32-1-1.1(25):
In Hester v. State, 40 Ala.App. 123, 108 So. 2d 385 (1959), the Court of Appeals noted: 1) that an implement of husbandry is an implement that is used primarily for, and that is necessary to, the operation of farming; and 2) whether something is or is not an implement of husbandry depends upon the facts of the case. The facts of the case before us may establish that the Bronco is a farm implement, and a jury must be allowed to decide if they do. Thomas, supra. Therefore, we reverse the summary judgment insofar as it was based on a determination that there was no coverage under the farmowner's policy.
Besides holding that the Alfa farmowner's policy did not provide coverage under these facts, the trial court also held that the Garretts were entitled to summary judgment in their favor on the question of whether there was coverage under their respective automobile policies. Harbin Garrett is insured under two automobile policies owned by him. Tony Garrett is insured under a policy which he purchased to cover his automobile. Tony Garrett is also an insured, because he is a family member living in the same household as his father, Harbin Garrett, under Harbin Garrett's automobile policies. We *1332 affirm the judgment of the trial court with regard to coverage under the automobile policies.
The summary judgment is affirmed insofar as it determined that the Garretts had coverage under their automobile policies. The judgment is reversed insofar as it holds that the Garretts had no coverage under the farmowner's policy, and the cause remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ADAMS, KENNEDY and INGRAM, JJ., concur.
ALMON, HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
Jerry and Jelyeen Alexander brought an action against Tony and Harbin Garrett for "negligently/wantonly" causing an injury to Jerry Alexander resulting from the operation and ownership of a truck. In the same action, the Alexanders sought to recover $60,000 from Preferred Risk Mutual Insurance Company, which provided the Alexanders with uninsured motorist coverage on three vehicles owned by Jerry Alexander.
Was the 1972 Ford Bronco owned by Harbin Garrett and operated by Tony Garrett at the time Jerry Alexander was injured covered under Harbin Garrett's Alfa farmowner's policy? No. It was excluded; and the exclusion was not ambiguous, because the policy provided that it did not cover bodily injury arising out of the ownership, operation, maintenance, use, loading, or unloading of a land motor vehicle owned by Harbin Garrett and "designed for use on public roads or subject to motor vehicle registration." The 1972 Bronco was designed for use on public roads (undisputed evidence shows that it was used on public roads), and it was subject to motor vehicle registration (undisputed evidence shows that it was registered). The farmowner's policy provided coverage for bodily injury if the "land motor vehicle" was not subject to motor vehicle registration because it either was used exclusively on the residence premises (undisputed evidence shows that it was not) or was kept in dead storage on the residence premises (undisputed evidence shows that it was not).
From this, I conclude that the policy was not ambiguous and that there was no genuine issue of material fact as to whether the 1972 Bronco was a land motor vehicle that was designed for use on public roads and was subject to motor vehicle registration because it was not used exclusively on residence premises or kept in dead storage on residence property. Hence, there was no coverage.
The majority opinion holds that an ambiguity was created because the Alfa policy did cover a "farm implement" except while being towed by or carried on a land motor vehicle; and that, because the 1972 Bronco was used for farm work, the term "farm implement" might be broad enough to cover the 1972 Bronco. I do not view this as creating an ambiguity. Even if the term "farm implement" was broad enough to cover it, the 1972 Bronco, as a "land motor vehicle," is specifically excluded from coverage. I would affirm the trial court's summary judgment.
The 1972 Bronco was not a scheduled vehicle under Tony or Harbin Garrett's Alfa automobile policies, and I am of the opinion that Jerry Alexander's bodily injuries were not covered under either of those policies.
ALMON and STEAGALL, JJ., concur.
[1] Alfa had also sought a declaration that its automobile insurance policies issued to Harbin and Tony Garrett provided no coverage for Jerry Alexander's accident. The trial court ruled that those policies did provide coverage.
[2] Those reported cases addressing the question whether a motor vehicle is a farm implement are the following: Rockford Mutual Insurance Co. v. Schuppner, 182 Ill.App.3d 898, 131 Ill.Dec. 357, 538 N.E.2d 732 (1989); Walle Mutual Insurance Co. v. Sweeney, 419 N.W.2d 176 (N.D.1988); North Star Mutual Insurance Co. v. Holty, 402 N.W.2d 452 (Iowa 1987); Heitkamp v. Milbank Mutual Insurance Co., 383 N.W.2d 834 (N.D.1986); Utah Farm Bureau Mutual Insurance Co. v. Orville Andrews & Sons, 665 P.2d 1308 (Utah 1983).
[3] The policy contained language that, once again, is quite similar to the language at issue before us:
"This policy agreement does not apply:
"2. under Coverages F1, F2, G, H, I, or J to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of: b. any automobile owned or operated by, or rented or loaned to any insured; but this subsection b. does not apply to bodily injury or property damage occurring on the insured premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the insured premises...."
The policy before the Utah court defined "automobile":
"Automobile means a land motor vehicle, trailer, or semi-trailer, but the word automobile does not include any crawler or farm type tractor, farm implement and, if not subject to motor vehicle registration, any equipment which is designed for use principally off public roads...."
665 P.2d at 1309. | June 14, 1991 |
4ecbace2-4fab-4172-aaa2-b7c942987e2f | Murdock v. STEEL PROCESSING SERVICES | 581 So. 2d 846 | 1900576 | Alabama | Alabama Supreme Court | 581 So. 2d 846 (1991)
Kathy MURDOCK
v.
STEEL PROCESSING SERVICES, INC.
1900576.
Supreme Court of Alabama.
May 31, 1991.
*847 David M. Cowan of Heninger, Burge & Vargo, Birmingham, for appellant.
Louis B. Lusk of Lusk & Lusk, Guntersville, for appellee.
PER CURIAM.
On November 3, 1988, Patrick Murdock was injured in the course of his employment at Steel Processing Services, Inc., when he became entangled in a piece of equipment known as "Rail Breaker Number One." Both Murdock and the company were subject to the provisions of the Alabama Workmen's Compensation Act, Alabama Code 1975, § 25-5-1 et seq. After the accident, Murdock received benefits for temporary disability and medical expenses under the Workmen's Compensation Act.
Kathy Murdock, as the common law wife of Patrick Murdock, filed a complaint on September 11, 1990, in the circuit court, claiming damages for loss of consortium. In response to her complaint, Steel Processing filed a motion to dismiss on October 15, 1990, on the grounds that § 25-5-53 provides the exclusive remedy in such cases and thus prohibits her claim for loss of consortium. The trial court granted the motion to dismiss. The dismissal was made a final judgment on December 6, 1990. Kathy Murdock appeals. We affirm.
We must determine whether the exclusivity provision of § 25-5-53 bars an action for loss of consortium by a dependent spouse.
Section 25-5-53 provides as follows:
It is clear that § 25-5-53 provides that workmen's compensation benefits are the exclusive remedy for an employee and his or her dependents. This includes his or her spouse. In addition, the section expressly excludes any rights and remedies of a dependent for "loss of services." Thus, a claim for loss of consortium is barred by this clause.
Professor Larson points out in his treatise on workmen's compensation that there are three general types of exclusivity clauses in workmen's compensation acts. 2A Larson, Workmen's Compensation, § 66.10 (1987). The broadest type of statute is the New York type, which is similar to that of Alabama. Under that type of statute, Professor Larson notes, "the cases with near unanimity have barred suits by husbands for loss of the wife's services and consortium, by wives for loss of the husband's services and consortium, by parents for loss of minor children's services, by dependent children, and by next of kin under wrongful death statutes." Larson, supra, at § 66.21. See also Annot., 36 A.L. R.3d 900, § 7 (1971) (and Supplement), for an extensive list of cases barring loss of consortium claims under exclusivity provisions in workmen's compensation statutes.
Kathy Murdock challenges the exclusive remedy provision of § 25-5-53 as violating Art. I, § 13, of the Alabama Constitution of 1901. Her challenge fails. The barring of a claim for loss of consortium under the exclusivity provisions of § 25-5-53 does not offend § 13 under either the vested rights approach or the common law approach set forth in Reed v. Brunson, 527 So. 2d 102, 114 (Ala.1988). This is because there is a quid pro quo between the spouse and the employer, and the Legislature has exercised its police power by adopting the exclusivity provisions of § 25-5-53 to eradicate a perceived social evil.
The intent of the Alabama Legislature in adopting the exclusivity provisions of the Workmen's Compensation Act was "to provide complete immunity to employers and limited immunity to officers, directors, agents, servants or employees of the same employer ... from civil liability for all causes of action except those based on willful conduct." § 25-5-14. The Legislature added: "[S]uch immunity is an essential aspect of the workers' compensation scheme. The legislature hereby expressly reaffirms its intent, as set forth in section 25-5-53, as amended herein, and sections 25-5-144 and 25-5-194, regarding the exclusivity of the rights and remedies of an injured employee, except as provided herein." Section 25-5-14.
The question of whether to exclude loss of consortium claims against employers was for the Legislature. The Legislature spoke, by enacting the exclusivity provisions. There is nothing in the Alabama Constitution that bars the Legislature from treating a husband and wife as an entity for such purposes.
For the reasons stated above, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | May 31, 1991 |
11470994-1d5b-4eac-a919-60d595608291 | South Coast Properties, Inc. v. Schuster | 583 So. 2d 215 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 215 (1991)
SOUTH COAST PROPERTIES, INC., d/b/a Jake's Place
v.
Jeff Glenn SCHUSTER and Brenda Moseley Schuster.
Jeff Glenn SCHUSTER and Brenda Moseley Schuster
v.
SOUTH COAST PROPERTIES, INC., d/b/a Jake's Place.
89-853, 89-902.
Supreme Court of Alabama.
March 15, 1991.
As Modified on Denial of Rehearing May 10, 1991.
Second Application for Rehearing Stricken June 7, 1991.
Forrest S. Latta and Mark A. Newell of Barker & Janecky, Mobile, for appellant/ cross-appellee.
Gregory B. Breedlove and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellees/cross-appellants.
*216 Jack Drake of Drake & Pierce, Tuscaloosa, for amicus curiae Ala. Trial Lawyers Ass'n.
Matthew C. McDonald and Lester M. Bridgeman of Miller, Hamilton, Snider & Odom, Mobile, and Louis T. Urbanczyk of Miller, Hamilton, Snider, Odom & Bridgeman, Washington, D.C., for amici curiae Nat. Ass'n. of Independent Insurers and Ala. Civ. Justice Reform Committee in support of position of South Coast Properties, Inc.
ALMON, Justice.
This appeal is from a judgment rendered on a jury verdict in favor of the plaintiff, Jeff Glenn Schuster,[1] and against defendant South Coast Properties, Inc., d/b/a "Jake's Place" ("South Coast"), in a negligence action. The question presented is whether Schuster presented substantial evidence showing the alleged negligence of South Coast's employee. Schuster has filed a cross-appeal, alleging that Ala.Code 1975, § 6-11-3, which was applied to his award of future damages, is unconstitutional.[2]
Betty Bass was driving her 1979 Toyota station wagon on Interstate Highway I-10 ("I-10") in Mobile County when her left front tire blew out. Bass exited I-10 and, driving on the flat tire, proceeded to Jake's Place, a convenience store operated by South Coast. Although Jake's Place sells gasoline, it does not employ a mechanic and does not do repair work on automobiles. Bass asked Madison Wilson, a college student who was working part-time at Jake's Place, if he could change her tire. He agreed to do so and, using Bass's lug wrench and jack, began to change the tire. He testified that the lug nuts were badly rusted and difficult to loosen, but did not appear to be damaged. Wilson testified also that after he put the spare tire on he tightened the lug nuts in a "star" pattern. He said he then lowered the vehicle and tightened the lug nuts again.
Bass re-entered I-10 at about dusk and, after reaching the Mobile interchange, began traveling north on Interstate Highway I-65 ("I-65"). As Bass was traveling in the left lane, the left front wheel on her station wagon separated from the rotor and became completely detached. Bass's vehicle came to a stop in the left lane of traffic without colliding with, or being struck by, another vehicle. At that time Schuster was also heading north on I-65 in the right lane. He saw Bass's disabled car, pulled his vehicle onto the right shoulder, ran across the lanes of traffic, and began to wave oncoming traffic away from Bass's station wagon.
At approximately the same time, Donna Hare was driving north in the left lane of I-65. She was approximately one car length behind the car in front of her. Suddenly, that car swerved out of the left lane and Hare saw Schuster standing behind Bass's vehicle directly in front of her. Before she could react, Hare struck Schuster and then collided with Bass's station wagon, pushing it into another vehicle. Schuster was badly injured and required hospitalization and extensive medical treatment. Approximately seven months after the accident, Schuster filed a complaint against Hare, alleging negligence and wantonness. He also named South Coast as a defendant, alleging that Wilson, while acting as an agent for South Coast, had negligently changed Bass's tire and that Wilson's alleged negligence was the proximate cause of his injuries.[3]
The trial court denied South Coast's motion for a summary judgment and allowed the case to be tried before a jury. South Coast moved for a directed verdict at the close of Schuster's evidence and again at *217 the close of all of the evidence. Both of those motions were denied. The jury then returned a verdict in Schuster's favor and solely against South Coast, assessing damages at $1,000,000.[4] That verdict was comprised of $250,000 in past damages and $750,000 in future damages. The trial court, using Ala.Code 1975, § 6-11-3, deducted the attorney fees that were payable to Schuster's lawyers and then ordered that all of Schuster's future damages in excess of $150,000 be paid in periodic payments over the remainder of Schuster's expected life. South Coast's motion for j.n.o.v., new trial, or remittitur was denied; South Coast appeals, arguing that Schuster failed to present substantial evidence of agency, negligence, and proximate cause. In his cross-appeal, Schuster contends that § 6-11-3 is unconstitutional.
Schuster's complaint was filed after June 11, 1987. Therefore, he was required to submit "substantial evidence" in support of each element of his cause of action in order for his claims to go to the jury. Ala.Code 1975, § 12-21-12. South Coast contends that Schuster presented no evidence of a specific act of negligence by its employee, Wilson, and, therefore, contends that the trial court erred by denying its motions for directed verdict or j.n.o.v.
Proof of negligence requires the establishment of a duty and a breach thereof that proximately caused damage to the plaintiff. Thompson v. Lee, 439 So. 2d 113, 115 (Ala.1983). Mere proof that an accident and an injury occurred is generally insufficient to establish negligence. Id.; Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So. 2d 472 (1970). However, in limited circumstances, a jury will be allowed to infer negligence if the doctrine of res ipsa loquitur is deemed to be applicable. Thompson, supra. In the instant case, the court ruled that res ipsa loquitur did not apply, and that ruling has not been appealed by Schuster. As a result, in order to present his claims to the jury, Schuster was required to present substantial evidence of a specific act of negligence by Wilson. Alabama Power Co. v. Berry, 254 Ala. 228, 48 So. 2d 231 (1950).
After Schuster filed his complaint, South Coast attempted to examine Bass's station wagon, which had been stored at a repair shop since the accident. However, it discovered that the vehicle had been vandalized and that the entire left front wheel assembly, including the rotor, lug studs, wheel, and tire, were missing. They were never recovered and, obviously, could not be examined by an expert or submitted as evidence. However, a number of lay witnesses testified that they had "looked at" various parts of the wheel assembly at the accident scene and that those parts did not appear to be damaged.
South Coast argues that without some physical evidence regarding the wheel assembly, any finding that Wilson was negligent in reattaching the wheel is based on speculation. It argues that the wheel separation might have been caused by one of a number of structural defects in the wheel assembly, including a failure of the lug nuts, or stripped threads on the lug studs or lug nuts. It directs this Court's attention to Miller v. Degussa Corp., 549 So. 2d 454 (Ala.1989), as support for its contention that in cases where the failure of a mechanical device is involved and res ipsa loquitur does not apply, it is extremely difficult to produce substantial evidence of negligence when the mechanical device is not available or is not presented as evidence. It contends that without that type of physical evidence, or evidence of a specific act of negligence by Wilson, any finding of negligence on his part would necessarily be based on mere conjecture.
Schuster does not point to evidence of a specific act of negligence by Wilson, and in fact concedes that no one saw Wilson act negligently. However, he argues that, in light of the lay witness testimony that various parts of the wheel assembly appeared to be undamaged after the accident, along with the facts that Wilson changed Bass's tire, that no one else touched it before the accident, and that it *218 separated from the vehicle 10 to 15 minutes later, "the only logical and reasonable explanation as to why the wheel fell off [Bass's] car is that Wilson failed to properly tighten the lug nuts [while] changing the... tire." We do not agree. The theory advanced by Schuster on appeal is, in essence, a variation of the doctrine of res ipsa loquitur.
Schuster contends that a case decided by the Supreme Court of Nebraska, Petracek v. Haas O.K. Rubber Welders, Inc., 176 Neb. 438, 126 N.W.2d 466 (1964), is "remarkably similar" to the instant case. However, in Petracek the plaintiff submitted a number of pieces of evidence that indicated that the defendant had failed to adequately tighten the lug nuts when installing a new tire on the plaintiff's car. That evidence included evidence that the holes in the wheel through which the lug studs passed had become enlarged as the result of friction with the lug studs, and pieces of metal found in the hubcap that were consistent with the "action which caused the enlargement of the holes." An expert witness testified that that evidence indicated a negligent reattachment of the lug nuts. Petracek, 176 Neb. at 442-43, 126 N.W.2d at 468-69. Citing that evidence, the court affirmed a judgment for the plaintiff.
Unlike the plaintiff in Petracek, Schuster produced no physical evidence that tended to show that Wilson negligently changed Bass's tire. No expert testimony was submitted to the jury regarding the cause of the wheel separation,[5] and no testimony was given regarding specific acts of negligence by Wilson. In addition, the only testimony regarding the condition of the wheel assembly indicated that the parts observed by the witnesses after the accident appeared to be undamaged. As a result, in order to find South Coast liable the jury was required to infer from the circumstances of the accident that the cause of the wheel separation was something other than a mechanical or structural failure. It was then required to go one step further and infer that an unidentified negligent act by Wilson was the most likely cause. Such a conclusion could have been based only on conjecture or speculation and cannot serve as a proper basis for a jury verdict. Matthews v. Mountain Lodge Apartments, Inc., 388 So. 2d 935 (Ala.1980).
A point not argued in the parties' briefs was brought out during the oral argument of this appeal. During his deposition, Wilson was asked by Schuster's lawyers to describe, step by step, the process he used to change Bass's tire. Although the portion of the deposition containing that description is not in the record,[6] its substance can be found by reviewing Wilson's testimony at trial. Schuster argues that Wilson's deposition testimony created a question regarding whether Wilson properly tightened the lug nuts with a lug wrench while it was on the jack, or merely tightened the nuts "finger-tight." South Coast contends that Schuster's argument is viable only when a portion of Wilson's deposition testimony is read out of context. It argues that a review of Wilson's entire description of the process used to change Bass's tire reveals that, during his deposition, he initially left out the fact that he did use a lug wrench to tighten the nuts while the car was raised on the jack, but quickly corrected his description. The following excerpts from the direct and cross-examinations of Wilson reveal the source of this confusion:
(Emphasis added.)
Our review of Wilson's testimony does not support the argument put forth by Schuster. Although the relevant portion of Wilson's deposition is not before this Court, his testimony at trial clearly supports South Coast's argument that Wilson only momentarily left out the fact that he tightened the lug nuts with a lug wrench while the car was raised on the jack. That inadvertent omission was quickly corrected. Such a mistake, standing along, does not provide substantial evidence of Wilson's alleged negligence.
Because Schuster failed to produce substantial evidence of a specific act of negligence by Wilson, the trial court erred by denying South Coast's motions for directed verdict. The judgment in favor of Schuster must, therefore, be reversed, and a judgment rendered in favor of South Coast. Our disposition of South Coast's appeal renders Schuster's cross-appeal moot.
89-853REVERSED AND JUDGMENT RENDERED.
89-902DISMISSED AS MOOT.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
ALMON, Justice.
OPINION MODIFIED; APPLICATION FOR REHEARING OVERRULED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Schuster's wife joined his complaint, making a loss-of-consortium claim. Because the wife's claim is derivative, we shall refer throughout this opinion only to Jeff Glenn Schuster.
[2] South Coast filed a motion to dismiss the cross-appeal. That motion was denied by this Court by an order dated December 11, 1990.
[3] Schuster's complaint named other defendants and, with his wife as co-plaintiff, asserted other theories of recovery. However, those defendants and theories are not relevant to the issues raised in this appeal.
[4] The jury found Hare not liable, apparently accepting her argument that she was faced with a "sudden emergency." The ruling in favor of Hare has not been appealed.
[5] Schuster produced testimony of an expert at the summary judgment stage. He chose, however, not to present that same expert to testify for the jury's consideration.
[6] Thirteen pages of Wilson's deposition, pp. 26-38, are not contained with the remainder of the deposition. Our search of the 1235-page record has not revealed them. | June 7, 1991 |
ec3d2801-a55c-449f-bdc6-2976013020aa | BM v. Crosby | 581 So. 2d 842 | 1900414 | Alabama | Alabama Supreme Court | 581 So. 2d 842 (1991)
B.M., who sues as next friend and mother of A.H., a minor child
v.
Dorothy CROSBY.
1900414.
Supreme Court of Alabama.
May 31, 1991.
Robert B. Roden of Roden & Hayes, Birmingham, for appellant.
Mark S. Boardman and Susan A. Smith of Porterfield, Harper & Mills, and Jack J. Hall of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.
SHORES, Justice.
On March 1, 1989, B.M., the mother of A.H., a minor child, sued her child's teacher, the school principal, the child's school,[1] and the school board, alleging that A.H. had been molested by another student in the class while the teacher was out of the room; that the defendants had been negligent and wanton; and that their negligence and wantonness had allowed the molestation to occur. The students were enrolled in an E.M.R. (Educable Mentally Retarded) class.
The defendants denied the plaintiff's allegations of negligence and wantonness and filed motions for summary judgment. The trial court entered a summary judgment in favor of the principal and the school board on May 1, 1990. On November 1, 1990, the trial court entered a summary judgment in favor of the teacher, Dorothy Crosby. Before us is the plaintiff's appeal from the summary judgment for the teacher.
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 summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala. 1981).
Rule 56 is read in conjunction with the "substantial evidence rule" (Alabama Code 1975, § 12-21-12), 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 *843 properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
The teacher supported her summary judgment motion with substantial evidence that there was no genuine issue of material fact. On a motion for summary judgment, when the movant makes a prima facie showing that no genuine issue of material fact exists, as in the present case, the burden shifts to the non-movant to show "substantial evidence" in support of his position. Bean v. Craig, 557 So. 2d 1249, 1252 (Ala.1990).
We have carefully considered the record in this case, and we conclude that the plaintiff did not meet this burden. The trial judge correctly stated in his order entering summary judgment in favor of the defendant:
The judgment of the trial court is due to be affirmed. Eason v. Middleton, 398 So. 2d 245 (Ala.1981).
AFFIRMED.
HORNSBY, C.J., and MADDOX and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring with the majority opinion and concurring specially).
Presiding Judge Charles R. Crowder, in his order entering the summary judgment for the defendant teacher, Ms. Dorothy Crosby, wrote:
Amen and amen. The summary judgment should have been entered for Ms. Crosby; and Judge Crowder's sad, but sage, observation should be recorded, in hopes that the problem identified can be addressed by the powers that be.
[1] The school was subsequently dismissed on the grounds that the school is not a separate entity from the school board. | May 31, 1991 |
1e5ab105-1a2c-4dab-a769-ef4827e2c366 | Liberty Homes, Inc. v. Epperson | 581 So. 2d 449 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 449 (1991)
LIBERTY HOMES, INC.
v.
Darniece B. EPPERSON and Fred R. Epperson.
89-1728.
Supreme Court of Alabama.
April 11, 1991.
As Modified on Denial of Rehearing May 24, 1991.
*450 James B. McNeill, Jr. and Barry R. Bennett of Hobbs & Hain, Selma, for appellant.
William J. Gamble and Frank C. Wilson III of Gamble, Gamble, Calame & Wilson, Selma, for appellees.
SHORES, Justice.
Darniece B. and Fred R. Epperson sued Liberty Homes, Inc. (hereinafter "Liberty"), seeking damages for breach of express and implied warranties and damages under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C.A. §§ 2301-12, in connection with the sale of a new mobile home. After a trial, a jury awarded the Eppersons $194,174.70. The trial court denied Liberty's motion for j.n.o.v., new trial, or remittitur. Liberty appeals. We affirm.
During the summer of 1985, the Eppersons visited Harlan Trailer Sales, Inc., a Liberty mobile home dealer. John Harlan, owner of Harlan Trailer Sales, Inc., told the Eppersons that he sold only Liberty homes, and he recommended that they view certain mobile homes that were manufactured by Liberty that were on display in Leeds, Alabama.
*451 The Eppersons returned to Harlan's office, which contained a Liberty plaque and brochures illustrating the types of homes Liberty manufactured. The Eppersons gave Harlan certain specifications for a custom-built Liberty double-wide mobile home, which was to have certain changes from a standard production model, including changing room sizes, adding a fireplace, changing the kitchen and bathroom arrangement, and adding a closet. Harlan assured the Eppersons that he would handle all arrangements for their special order.
On July 11, 1985, a Liberty salesman filled out an on-line production order for the Eppersons' home. Liberty knew the home was to be specially manufactured for the Eppersons, because the on-line production order identified the Eppersons as the customers. This production order was attached to a clip-board and travelled with the home as it went down the production line.
Once the home was manufactured, it was delivered in two separate sections to the Harlan Trailer Sales lot, where the Eppersons saw it for the first time. On July 25, 1987, the Eppersons signed an agreement to purchase the mobile home. The contract specified that the purchase price was $25,982.50, and it incorporated a security agreement. Long-term financing was provided by Green Tree Acceptance, Inc., and the monthly payments were $319.82.
Upon Harlan's recommendation, the Eppersons contacted Bruce Carswell who hooked up the electrical system to the mobile home. The Eppersons moved in on August 2, 1987.
While moving into the home, Mr. Epperson received an electrical shock when he leaned against the metal frame of a living room window, located on the front of the mobile home. Marie Griggs, a friend of the Eppersons who helped them move, was also shocked when she leaned on the front door frame. Bruce Carswell went to the Eppersons' home to investigate the problem and was shocked when he touched the front door handle.
Once Harlan was notified of the problem, he sent William Stockman, an employee of Alabama Electric Company, to correct it. Stockman hooked to the door and window frame a meter that measures voltage. The meter indicated that a 150-volt electric current was running through the frames. Believing that a "hot" wire was in contact with the frames and causing them to carry electrical current, Stockman replaced the wire with a "jumper wire" that rerouted the current away from the frames. Harlan paid Stockman for making the repairs and sent the bill to Liberty. In September 1985, the GFI receptacle (an electrical outlet) in the master bathroom broke. Harlan's workers replaced the receptacle.
Throughout the first year in their new home, the Eppersons noticed dimming of the lights. Mrs. Epperson stated that the power supply to the vacuum cleaner, toaster, and television would also fluctuate. Although the Eppersons notified Harlan about the power fluctuation, the problem was never remedied.
In February 1986, the home started to buckle in the center where the two sections of the home where joined. Harlan releveled the home in order to stop the buckling. Harlan was also called to repair a leak in the roof over the children's bedroom; however, the leak was never repaired to the Eppersons' satisfaction.
Because the power supply continued to be inconsistent, the Eppersons again contacted Harlan, who told them he would no longer help them because he believed their warranty had expired. When asked for a copy of the wiring diagram to their home, Harlan suggested that they call Mr. Steve Carroll of Liberty. According to the Eppersons, Mr. Carroll denied that any wiring diagram existed. Mr. Carroll denies ever having this telephone conversation with the Eppersons.
On the morning of January 13, 1988, Mrs. Epperson heard a "staticky radio sound" coming from the living room window area, and saw blue sparks shooting out from around the window. Mr. Epperson turned the power supply off and used his foot and a hammer to knock the plasterboard away. Behind the insulation he found melted, smouldering wires and *452 scorched insulation and 2 by 4's. Mr. Stockman came to the home and cut the burned wires and installed a temporary system so that the plugs and lights would work.
Mr. Epperson alleges that Harlan denied responsibility based upon his belief that the warranty had expired. Epperson also alleges that Mr. Steve Carroll of Liberty promised he would send someone to the Eppersons' home to make repairs. No Liberty representative came. Harlan and Carroll deny having any conversation with the Eppersons.
Carroll finally sent Mr. Gary Chancey to the Eppersons in response to a letter by Mrs. Epperson concerning the sparks and the scorched wall materials. Chancey claimed he was not qualified to make the wiring repairs and suggested that Epperson get the same person who had made the temporary repairs to make permanent wiring changes, and he said it would be done at Liberty's expense. Epperson took Chancey's advice and got Stockman to make the repairs, with Liberty's knowledge.
During the summer of 1988, the power supply in the kitchen began fluctuating, and in September the entire rear half of the home lost power. A-1 City Electric Company fixed the problem temporarily. The Eppersons again contacted Liberty in order to get a wiring diagram for their home, but they never received a response.
In October 1988, the Eppersons' attorney wrote Liberty, and Liberty sent Mr. Tommy Law, a repairman, to investigate the situation. According to the Eppersons, Mr. Law stated that their mobile home would have to be completely rewired and that they should find alternative housing while the repairs were being made. Shortly after Law's visit, the Eppersons rented and moved into a friend's single-wide mobile home. The Eppersons incurred the cost of hooking up utilities to their rental home, storing extra furniture, and paying rent. Living in the smaller home was an inconvenience, because the conditions were very cramped and there was a lack of privacy.
In addition to the cramped living conditions, Mrs. Epperson worried about the possibility that the home could catch fire and worried that if it did she might not be able to get her children out of the home. The Eppersons installed battery-powered smoke detectors and conducted family fire drills.
Having made 37 payments on their home to Green Tree Acceptance, Inc., the Eppersons ceased making payments. Their double-wide home was repossessed, and Green Tree sued the Eppersons for the balance of their loan. The Eppersons reached a settlement with Green Tree.
On November 18, 1988, the Eppersons sued Liberty, alleging breach of contract, breach of express and implied warranties, and fraud. At the close of the evidence, the Eppersons amended their complaint to allege implied fraud and to seek damages under the Magnuson-Moss Warranty Act.
Liberty argues that the trial court erred when it allowed the Eppersons to amend to add their fraud claim so as to make the pleadings conform to the evidence. Amendments to a complaint should be liberally allowed; A.R.Civ.P. 15(b). Amendments to a complaint will be disallowed only when prejudice to the other party results. McElrath v. Consolidated Pipe & Supply Co., 351 So. 2d 560 (Ala. 1977). In the present case, fraud was alleged in the original complaint. Liberty could not have been prejudiced by the amendment, which merely restated the claim based upon the facts originally alleged. Thus, the trial court did not err in allowing the amendment. Bracy v. Sippial Electric Co., 379 So. 2d 582 (Ala.1980).
Liberty argues that damages for mental anguish can not be awarded on a claim for relief is based upon fraud. It is not necessary to address that contention, however, because the Eppersons were entitled to receive damages for mental anguish based upon their breach of contract claim. B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979).
Liberty also argues that the limitation of warranty included in the Eppersons' "Home Owners Manual" precludes any liability for defective parts or damaged property after the period specified. When a jury finds that the limited warranty has failed of its essential purpose, it may then award damages allowed by the Uniform Commercial Code (Ala.Code 1975, Title 7). Belcher v. Versatile Farm Equip. Co., 443 So. 2d 912 (Ala.1983). Because the essential purpose of the warranty was to provide the Eppersons with a home reasonably free from defects, and there was evidence to show that this purpose was never achieved, Liberty's warranty may be deemed a failure. See Liberty Truck Sales, Inc. v. Kimbrel, 548 So. 2d 1379 (Ala.1989); Peterbilt Motors Co. v. Martin, 521 So. 2d 946 (Ala.1988). The Eppersons may recover under an express warranty theory, and Liberty's limitation does not prevent recovery.
Liberty also argues that the Eppersons should not be allowed recovery under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. We disagree. The Magnuson-Moss Warranty Act, providing recovery for damages as to consumer goods, does apply to mobile homes. Brigadier Homes, Inc. v. Thompson, 551 So. 2d 1031 (Ala.1989). The Act states that once the manufacturer of consumer goods makes efforts to repair the goods or to meet certain specifications, the purpose of the repair or efforts becomes part of the original bargain between the parties. The Act also allows for attorney fees required in order to enforce the provisions of the Act.
The evidence indicates that Liberty made several efforts to repair the electrical system in the Eppersons' home. The purpose of Liberty's actions was to provide the Eppersons with a home reasonably free from electrical defects. The Eppersons had the right under the Magnuson-Moss Warranty Act to sue for Liberty's failure to properly repair the electrical system in their home. The award of attorney fees required to enforce the Act was proper.
Liberty asserts that, because there was no privity between Liberty and the Eppersons, the Eppersons could not recover under an implied warranty theory of liability. Section 7-2-318, Code of Alabama (1975), states in pertinent part:
Because the purchase order bore the name of the Eppersons and their home was custom built for them by Liberty, there was sufficient evidence for the jury to conclude that Liberty reasonably expected the Eppersons to be affected by any problems with the home. Under this section, the jury could conclude that Liberty was liable.
Liberty argues that it should have no liability to the Eppersons because, it says, there was no contract between them. A manufacturer, such as Liberty, may be held liable in contract if the dealer with which the plaintiff contracted was an agent for the manufacturer. Massey-Ferguson, Inc. v. Laird, 432 So. 2d 1259 (Ala.1983). Both Fred and Darniece Epperson testified that Harlan's office was located in a Liberty mobile home and that it contained brochures and pamphlets. Mr. Epperson testified that he saw a Liberty plaque and he said that Harlan indicated to him "that he sold nothing other than for a new manufacturer, Liberty, and other than that he sold nothing but used mobile homes." Harlan also recommended that the Eppersons purchase a Liberty home. Using these facts, the jury could have concluded that Harlan was Liberty's agent and, thus, that Liberty was liable to the Eppersons based upon their contract with Harlan.
Liberty argues that the trial court erred when it denied Liberty's motion for directed verdict, j.n.o.v., or new trial. Liberty claims that the Eppersons could *454 not receive damages for mental anguish in a breach of contract claim. In general, damages recoverable for a breach of contract do not include damages for mental anguish. Sanford v. Western Life Insurance Co., 368 So. 2d 260 (Ala.1979). Damages for mental anguish can be recovered, however, "where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering." B & M Homes, Inc. v. Hogan, 376 So. 2d 667, 671 (Ala.1979) (quoting earlier cases).
In Alabama Power Co. v. Harmon, 483 So. 2d 386 (Ala.1986), Alabama Power Company failed to provide Harmon with electrical service as it had promised to do. Harmon's mobile home was rendered uninhabitable because of the company's failure to supply electricity. There was evidence that Harmon had to rely upon his friends and upon other family members to provide housing and that this fact caused him to suffer emotional distress. Based upon these facts, this Court upheld the award of damages for mental distress.
In the present case, the Eppersons contracted with Harlan to purchase a home specially manufactured by Liberty. Understood in this contract was the belief that the home would be constructed to carry electrical current safely. The plaintiffs' evidence indicated that it was not so constructed; therefore, the jury could find a breach of contract. There was evidence that the Eppersons suffered mental anguish as a result of the electrical problems with their home, and the evidence, therefore, supported the jury's verdict. Therefore, the trial court did not err in denying a directed verdict, in refusing to set the verdict aside, or in denying a new trial.
Liberty also alleges that the trial court erred in denying its motion for j.n.o.v or new trial because one juror failed to respond correctly to the question whether anyone was presently a plaintiff in a lawsuit. The trial judge has the discretion to decide whether the juror's failure to respond correctly was prejudicial to Liberty. Ensor v. Wilson, 519 So. 2d 1244 (Ala.1987), rehearing denied, 537 So. 2d 66 (Ala.1988).
Gleichert v. Stephens, 291 Ala. 347, 349, 280 So. 2d 776, 777 (1973).
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | May 24, 1991 |
9690d64c-0fc9-4a25-baae-2e9c7e18a732 | Henderson v. G & G CORP. | 582 So. 2d 529 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 529 (1991)
Willie HENDERSON, as executor of the Estate of Annie Anderson, deceased
v.
G & G CORPORATION, et al.
89-1757.
Supreme Court of Alabama.
May 31, 1991.
*530 Henry L. Penick of Penick & Brooks, Birmingham, for appellant.
Charles E. King and Danny C. Lockhart, Birmingham, for appellees.
INGRAM, Justice.
Annie Anderson filed an action to quiet title to certain real property located in Jefferson County. The original complaint, filed in June 1984, named G & G Corporation as the only defendant. However, the complaint was amended in December 1984, and again in February 1986, to include Gerry McIntyre and James C. Haynes and Judy M. Haynes as co-defendants. The Hayneses were served with the complaint in August 1987, and McIntyre was served in November 1988. The original plaintiff, Annie Anderson, died in June 1988, and the trial court allowed the action to proceed with the substitution of Anderson's personal representative, Willie Henderson, as the plaintiff.
In April 1990, the Hayneses filed a motion for summary judgment, and the trial court set a hearing on the motion for May 29, 1990. Notice of the hearing was given to both parties on May 9, 1990. However, neither Henderson nor his counsel appeared at the hearing. Thereafter, the trial court dismissed the case for want of prosecution, and Henderson appealed.
Henderson's first argument on appeal is that the trial judge in this case had testified against Henderson's attorney in an unrelated proceeding while the present case was pending, and that because of his testimony, the trial judge should have recused himself on the grounds that his impartiality was impaired by his allegedly biased opinion of the appellant's counsel.
Recusal is required where facts are shown that make it reasonable for a party or for opposing counsel to question the impartiality of the judge. Acromag-Viking v. Blalock, 420 So. 2d 60 (Ala.1982). However, recusal is not required by the mere accusation of bias unsupported by substantial evidence. Ross v. Luton, 456 So. 2d 249 (Ala.1984).
We further note that there is a presumption that a judge is qualified and unbiased, and that one alleging to the contrary has a substantial burden of proof. Banks v. Corte, 521 So. 2d 960 (Ala.1988). The test for recusal is whether a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge, would conclude that there is a reasonable basis for questioning the judge's impartiality. Acromag-Viking v. Blalock, supra.
In the present case, the act that Henderson asserts evidenced a bias or prejudice against his attorney was the trial judge's testimony against the attorney in a proceeding that was unrelated to this case. While Henderson asserts that the trial judge testified that he would not believe this attorney under oath, the trial judge points out in his order denying the motion for recusal that the testimony in question was given in a situation wherein he was required to state whether he believed either the sworn statement of Henderson's attorney or the sworn statement of another attorney.
According to the trial judge, the other attorney had filed an affidavit stating that Henderson's attorney had failed to present a client for a court-ordered deposition. Henderson's attorney responded to the allegations by filing a counteraffidavit, wherein he stated that he and the client had been present at the designated time. The trial judge stated that, based on the facts and circumstances presented in that situation, he believed the other attorney rather than Henderson's attorney.
While the evidence in the present case indicates that the trial judge on one occasion found another attorney to be more credible than Henderson's attorney, there is nothing before us, other than a ruling adverse to Henderson, indicating that the trial judge was biased or prejudiced against Henderson's attorney in this particular proceeding. Adverse rulings during the course of proceedings are not by themselves sufficient to establish bias and prejudice *531 on the part of a judge. Matter of Sheffield, 465 So. 2d 350 (Ala.1984). Therefore, we find no error in the trial court's denial of the motion to recuse.
The second issue raised by Henderson is whether the trial court abused its discretion in dismissing this case.
Initially, we note that Rule 41(b), A.R. Civ.P., provides that an action may be dismissed "for failure of the plaintiff to prosecute or to comply with these rules or any order of court." The rule further states that unless the trial court's order of dismissal specifies otherwise, that order "operates as an adjudication upon the merits." This Court has previously recognized Rule 41(b) as giving the trial court the power to act sua sponte to dismiss an action for want of prosecution. Atkins v. Shirley, 561 So. 2d 1075 (Ala.1990); Riddlesprigger v. Ervin, 519 So. 2d 486 (Ala.1987); Cassady v. Montgomery County Bd. of Educ., 496 So. 2d 764 (Ala.1986).
Although dismissal with prejudice is a harsh sanction that should be used only in extreme circumstances, there nevertheless comes a point in every action when the interest of the trial court in controlling its calendar and its interest in avoiding risk to the defendant outweigh the interest in disposing of litigation on the merits. Selby v. Money, 403 So. 2d 218 (Ala.1981). Furthermore, the dismissal of a case for failure to prosecute is an act that is within the discretion and inherent power of the trial court, and the trial court's action will be reversed only for an abuse of that discretion. Selby v. Money, supra.
Here, we find no evidence in the record indicating an abuse of discretion by the trial court in dismissing the plaintiff's action. To the contrary, we observe that the trial court's order dismissing the suit followed the plaintiff's failure to appear at a hearing on a motion for summary judgment that had been filed by one of the defendants. The record also reveals that the plaintiff's failure to appear was coupled with the fact that at the time of the dismissal the suit had been pending in the trial court for almost six years, and the case action summary indicates several instances in which more than six months had passed with no action whatever being taken with regard to the case. Furthermore, the record shows that the trial court warned the parties, by way of four different "30 day" orders, that continued inaction would result in the dismissal of the case. In light of this, we find no abuse by the trial court in its dismissal of the plaintiff's action for want of prosecution.
Because we find no error in the trial court's denial of the motion to recuse and no abuse of discretion in its dismissal of the plaintiff's action, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | May 31, 1991 |
36ed0896-35de-4f7f-8b8e-a1e11ff8ff86 | Haywood v. Russell Corp. | 584 So. 2d 1291 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 1291 (1991)
Tommie L. HAYWOOD
v.
RUSSELL CORPORATION, et al.
89-1647.
Supreme Court of Alabama.
May 24, 1991.
Rehearing Denied August 9, 1991.
James M. Patton of Patton & Goodwyn, Birmingham, for appellant.
Randall S. Haynes and Tom Radney of Radney & Morris, Alexander City, for appellees.
SHORES, Justice.
Tommie L. Haywood sued her employer, Russell Corporation ("Russell"), alleging that it had interfered with her right to receive benefits under the company's group disability insurance plan (hereinafter sometimes referred to as "the plan"). Haywood sought to recover both compensatory and punitive damages based on theories of fraud and the tort of outrage. The trial court entered a summary judgment for Russell on both of Haywood's claims on the ground that they were preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq.[1] Haywood appealed. On appeal, she challenges the summary judgment only as to the fraud claim. We reverse and remand.
After allegedly sustaining an on-the-job injury, Haywood filed a claim for workmen's compensation benefits with Russell, which is a self-insured employer under Alabama's Workmen's Compensation Act, Ala. Code 1975, § 25-5-1 et seq. Russell disputed that claim and denied Haywood's request for benefits. Haywood then submitted an application to Russell for benefits under the company's group disability insurance plan. That plan was underwritten by John Hancock Insurance Company ("John Hancock"). Russell's insurance clerk refused to process Haywood's claim because she had stated in her application that her injury was job related. The clerk returned the application to Haywood with a note stating: "For you to be able to receive your accident and sickness [insurance], we need for you to come by the Personnel Office and change the form so that it does not state that it was an injury on the job." Haywood refused to change her application, and it was not submitted to John *1292 Hancock. Haywood subsequently discovered that John Hancock would pay disability benefits to her, provided that she would agree to pursue her workmen's compensation claim and provided further that she would assign to John Hancock her right to any workmen's compensation benefits that she recovered, to the extent of benefits paid under the plan. Haywood eventually received benefits from John Hancock under the plan, more than a year after her application had been returned to her by Russell's insurance clerk. Haywood continued to pursue her workmen's compensation claim against Russell, and that claim is presently pending in Tallapoosa Circuit Court.
The sole issue presented for our review is whether Haywood's fraud claim, which is based on allegations that Russell interfered with Haywood's right to receive benefits under the company's group disability insurance plan, was preempted by ERISA.
ERISA comprehensively regulates, among other things, employee welfare benefit plans that, through the purchase of insurance or otherwise, provide medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death. See § 3(1) of ERISA, as set forth in 29 U.S.C. § 1002(1). Russell's group disability insurance plan is, therefore, clearly regulated by ERISA. Relying primarily on Harbor Ins. Co. v. Blackwelder, 554 So. 2d 329 (Ala.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 2209, 109 L. Ed. 2d 535 (1990), and 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), Haywood argues that her fraud claim was not preempted by ERISA. Russell contends that Haywood's fraud claim, being based on allegations that her employer had interfered with her right to receive benefits under the plan, was preempted by ERISA. We agree, but for the reason stated below, hold that § 502(a) provides a remedy to Haywood.
In the most recent decision of the United States Supreme Court dealing with ERISA preemption, Ingersoll-Rand Co. v. McLendon, ___ U.S. ___, 111 S. Ct. 478, 112 L. Ed. 2d 474 (1990), the Court was confronted with the issue of whether ERISA preempted a state common law claim based on allegations that the employee had been wrongfully discharged by his employer to prevent his pension benefits under an ERISA regulated pension plan from vesting. Holding that that state claim was both expressly and impliedly preempted, the Court once again elaborated on the preemptive effect of ERISA. We quote extensively from the Court's opinion:
___ U.S. at ___, 111 S. Ct. at 482-85.
The Supreme Court then stated that although the state causes of action were preempted by ERISA, ERISA expressly *1295 guaranteed the same right by § 510 and could be enforced exclusively by the remedy provided by § 502(a).
___ U.S. at ___, 111 S. Ct. at 486.
All of the Justices of the Supreme Court joined Justice O'Connor in the following statements:
___ U.S. at ___, 111 S. Ct. at 481-82 (citations omitted; emphasis omitted; emphasis added).
The facts in the case before us are indistinguishable from those in Ingersoll-Rand. In that case the employee alleged that his employer had tortiously terminated his employment just before his plan benefits would have vested and that he had been damaged as a result of that alleged action of the employer. The Supreme Court held that a remedy for that tort existed under § 510 and that the state court was authorized to award damages beyond the benefits to which the plaintiff was entitled under the plan. In this case the plaintiff alleges facts from which a factfinder could conclude that the employer tortiously interfered with her right to disability benefits under an ERISA plan. She seeks compensatory and punitive damages for that interference. Ingersoll-Rand teaches that this plaintiff's allegations state a cause of action under § 510 and that a remedy exists under § 502(a) that may be enforced in the federal or state courts notwithstanding that the state common law tort claim is preempted by the Act.
We reverse the judgment of the trial court and remand the cause to permit the plaintiff to attempt to prove an ERISA cause of action against her employer for tortiously interfering with her right to receive disability benefits. This is a right expressly guaranteed to her by § 510, ERISA, and for which § 502(a) provides a remedy. Ingersoll-Rand, at ___ U.S. at ___, 111 S. Ct. at 486. If she can prove that the defendant interfered with rights protected by § 510, 29 U.S.C. § 1140, she is entitled to recover compensatory and punitive damages, depending upon the culpability of the defendant in interfering with those rights. The prohibitions set out in § 510 were aimed primarily at preventing unscrupulous employers from interfering with an employee's rights under ERISA plans. If the plaintiff can show that her employer wrongfully interfered with her right to benefits under the disability insurance plan, she is entitled to such damages as the evidence may support.
We are not concerned that the plaintiff here has not heretofore sought relief under ERISA. The Supreme Court opinion in Ingersoll-Rand, expressly stating that ERISA authorizes relief beyond that expressly provided in the Act was not released until December 3, 1990, although other federal courts had held that remedies available to participants in ERISA plans were not limited to those specifically provided by the act. The late Judge Robert S. Vance, in an opinion issued after his death, anticipated such action by the Supreme *1296 Court of the United States. In Kane v. Aetna Life Insurance Co., 893 F.2d 1283 (11th Cir.1990), cert. denied, ___ U.S. ___, 111 S. Ct. 232, 112 L. Ed. 2d 192 (1990). Judge Vance, writing for the United States Court of Appeals for the 11th Circuit, stated that although ERISA preempts all state common law claims relating to employee benefit plans, "Federal courts possess the authority, ... to develop a body of federal common law to govern issues in ERISA actions not covered by the act itself." District Judge William M. Acker, Jr., in Blue Cross & Blue Shield of Alabama v. Lewis, 753 F. Supp. 345 (N.D.Ala.1990), observed that "Ingersoll-Rand brings to full flower" the idea expressed by Judge Vance that federal courts have the authority to develop remedies beyond those expressly provided by ERISA. Judge Acker then stated:
753 F. Supp. at 347.
We agree entirely with Judge Acker's reading of Ingersoll-Rand. The holding is unanimous and unequivocal. No reasonable person can misunderstand it, although one might disagree with it. In our view, it comes as no surprise. The dissatisfaction with the Court's broad interpretation of the preemption provisions of ERISA, without specifically articulating what remedies existed to replace preempted state remedies, has been often brought to the attention of Congress by those, such as the writer of this opinion, who believed that the Court's construction of the preemption provisions of ERISA, without a recognition of some rights and remedies to take the place of *1297 preempted state rights and remedies, went beyond what the Congress intended. As recently as 1988, the Education and Labor Committee of the House of Representatives described the legislative intent behind ERISA as follows:
H.R.Rep. No. 801, 100th Cong., 2d Sess, p. 2, at 63 (1988) (emphasis added).
The Supreme Court, in Ingersoll-Rand, has now specifically held that the courts are authorized to award damages, both extracontractual, and even punitive, where the facts support them, even though they are not specifically provided for in ERISA. In doing so, it simply correctly carries out the intent of Congress in passing ERISA.
State courts, with concurrent jurisdiction of ERISA actions, likewise possess such authority. In this case, the cause of action stated happens to be one specifically provided for in ERISA, so the trial court need not go beyond the Act itself to formulate a remedy for the wrong allegedly done the plaintiff. Ingersoll-Rand, of course, would authorize recovery even if the relief sought were not expressly provided for in the Act. Therefore, we reverse the judgment and remand the cause and permit the plaintiff to attempt to state a claim under § 510, ERISA.
In recognizing that ERISA permits such actions, the Supreme Court of the United States acknowledged that the polestar of *1298 any legislation is legislative intent. The Congress of the United States could not have intended to strip from beneficiaries of pension and employee benefit plans all of the protections long afforded by state common law and not to provide a statutory replacement for those state common law protections. Certainly it would not have done so in the guise of passing legislation to protect the very persons whose rights were the focus of the legislation. The fact that the statutory rights bear many of the characteristics of the state remedies that the Act preempted is not unusual. In Alabama the legislature has adopted statutes providing remedies for medical and legal malpractice. Ala.Code 1975, § 6-5-480 et seq; § 6-5-570 et seq. These statutory causes of action bear a striking resemblance to the common law actions they replaced. In specifically authorizing the courts to develop remedies not specifically provided for in ERISA, the Supreme Court now recognizes the possibility of recovery of tort-like damages in ERISA cases. We agree with the observation of Judge Acker in Blue Cross & Blue Shield of Alabama v. Lewis that this leads inexorably to the right of trial by jury in these ERISA cases.
Because the plaintiff has stated a claim protected by § 510, and because § 502(a) provides a remedy that may be adjudicated in the state courts, we reverse the judgment and remand the cause for trial of the ERISA cause of action.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS, STEAGALL and KENNEDY, JJ., concur.
MADDOX and HOUSTON, JJ., concur specially.
HOUSTON, Justice (concurring specially).
I dissented in HealthAmerica v. Menton, 551 So. 2d 235, 252 (Ala.1989), cert. denied, 493 U.S. 1093, 110 S. Ct. 1166, 107 L. Ed. 2d 1069 (1990), not because I liked the doctrine of preemption (I do not), but for the following reasons:
The second paragraph of Article VI of the Constitution of the United States (the supremacy clause) required that I vote to hold that Menton's cause of action was preempted.
Ingersoll-Rand Co. v. McLendon, ___ U.S. ___, 111 S. Ct. 478, 112 L. Ed. 2d 474 (1990), clarified the preemption question. The cause of action was preempted, with no ifs, ands, or buts about it. This Court in this case recognizes that.
In my dissent in HealthAmerica v. Menton, 551 So. 2d at 249-56, I proposed doing what a unanimous United States Supreme Court in Ingersoll-Rand Co. indicated could be done and what this Court is indicating can be done in this case:
In this case, this Court does exactly what I suggested that the Court should have done in my dissent in HealthAmerica. I join the majority, for, two years after HealthAmerica, it has joined me.
MADDOX, J., concurs.
[1] The trial court granted Russell's motion to strike Haywood's claims; however, because it appears that the trial court may have considered matters outside the pleadings, we will treat the trial court's order as a summary judgment. Rule 12(b), A.R.Civ.P. | May 24, 1991 |
d195be2f-3397-481d-a084-25f58fb51ea9 | Ex Parte Daniels | 581 So. 2d 541 | 1900689 | Alabama | Alabama Supreme Court | 581 So. 2d 541 (1991)
Ex parte William Eltoria DANIELS.
(Re William Eltoria Daniels v. State).
1900689.
Supreme Court of Alabama.
May 24, 1991.
L. Dan Turberville, Birmingham, for appellant.
James H. Evans, Atty. Gen., for appellee.
Prior report: Ala.Cr.App., 581 So. 2d 536.
ALMON, Justice.
WRIT DENIED.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX and ADAMS, JJ., dissent.
MADDOX, Justice (dissenting).
I dissent for the same reasons I expressed in my dissenting opinion in Ex parte Dysart, 581 So. 2d 545 (Ala.1991). | May 24, 1991 |
e6897fe4-eb81-4db0-bbb3-143231094510 | Holiday Casino, Inc. v. Breedwell | 581 So. 2d 474 | 1900326 | Alabama | Alabama Supreme Court | 581 So. 2d 474 (1991)
HOLIDAY CASINO, INC.
v.
James BREEDWELL.
1900326.
Supreme Court of Alabama.
May 24, 1991.
Harvey Elrod of Hutson & Elrod, Decatur, for appellant.
ALMON, Justice.
In this action, Holiday Casino, Inc., appeals from the trial court's judgment holding that the final judgment rendered in the State of Nevada in Holiday's action against James Breedwell is not enforceable in the State of Alabama and enjoining enforcement of that judgment in this State.
From the evidence,[1] it appears that, while gambling at Holiday Casino, Inc., in Las Vegas, Nevada, James Breedwell executed certain negotiable instruments, known as "markers," to Holiday in an *475 aggregate amount of $15,000. Each of the markers contained an order for Breedwell's bank, the First State Bank of Albertville, to pay a certain sum of money to Holiday.
Upon presentment to the First State Bank of Albertville, the bank dishonored the markers for lack of sufficient funds. Subsequent efforts to collect the amount of the markers from Breedwell were unsuccessful. Thus, Holiday filed an action in the appropriate Nevada court and obtained a judgment against Breedwell in that court for the principal amount of the markers, together with interest, attorney fees, and costs.
Thereafter, Holiday filed an action in the Circuit Court of Marshall County, Alabama, to enforce the Nevada judgment under the Alabama version of the Uniform Enforcement of Foreign Judgments Act, see Ala.Code 1975, §§ 6-9-230 and -238. In doing so, Holiday filed an authenticated copy of the antecedent Nevada judgment, along with supporting affidavits, in the Alabama trial court. Breedwell appeared and sought, first, a temporary restraining order against the enforcement of the Nevada judgment, and, subsequently, general relief. The trial court entered a judgment holding that, although in personam jurisdiction was obtained upon Breedwell in Nevada, the Nevada judgment was, nevertheless, unenforceable within the State of Alabama because "the claim and judgment [are] based upon a gaming contract which, in Alabama, is void."
The ultimate issue before this court is whether, consistent with the Full Faith and Credit Clause of the United States Constitution, Article IV, § 1, an Alabama court may refuse to enforce a valid judgment from a sister state based on an Alabama statute that would prohibit such a judgment in an original action brought in our courts.
This issue, although one of first impression in this court, was addressed by the United States Supreme Court many years ago in Fauntleroy v. Lum, 210 U.S. 230, 28 S. Ct. 641, 52 L. Ed. 1039 (1908), wherein the Court held that the Full Faith and Credit Clause compelled Mississippi to enforce a valid Missouri judgment even though that judgment was for a gambling obligation specifically prohibited by the laws of Mississippi. For cases applying Fauntleroy, see, e.g., Harrah's Club v. Mijalis, 557 So. 2d 1142 (La.App.1990), cert. denied, 559 So. 2d 1387 (La.1990); M & R Investments, Inc. v. Hacker, 511 So. 2d 1099 (Fla.Dist.Ct.App.1987); GNLV Corp. v. Featherstone, 504 So. 2d 63 (Fla.Dist.Ct. App.1987), cert. denied, 513 So. 2d 1061 (Fla. 1987); Hargreaves v. Greate Bay Hotel & Casino, 182 Ga.App. 852, 357 S.E.2d 305 (1987); GNLV Corp. v. Jackson, 736 S.W.2d 893 (Tex.App.1987); In re Smith, 66 B.R. 58 (D.Md.1986); Conquistador Hotel Corp. v. Fortino, 99 Wis.2d 16, 298 N.W.2d 236 (Ct.App.1980); and Hilton Int'l Co. v. Arace, 35 Conn.Supp. 522, 394 A.2d 739 (1977). The holding in Fauntleroy, supra, is controlling here.
Wessinger v. First Federal Savings & Loan Association of Warner Robins, 533 So. 2d 234 (Ala.1988), quoting Morse v. Morse, 394 So. 2d 950, 951 (Ala.1981). We are aware of the fact that no suit could have been originally brought and maintained on the gambling debt itself in the courts of our state. See Ala.Code 1975, § 8-1-150. However, this is not an action on the gambling debt itself, but an action to domesticate a valid judgment of a sister state. "A cause of action on a judgment is different from that upon which the judgment was entered. In a suit upon a money judgment for a civil cause of action the validity of the claim upon which it was *476 founded is not open to inquiry, whatever its genesis." Milwaukee County v. M.E. White Co., 296 U.S. 268, 275, 56 S. Ct. 229, 233, 80 L. Ed. 220 (1935). Thus, we reverse the judgment enjoining enforcement of the Nevada judgment and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The appellee, James Breedwell, did not file a brief to this court. | May 24, 1991 |
a88b7955-dbfc-4e5f-98b3-b87e5db7f883 | Loeb v. Cappelluzzo | 583 So. 2d 1323 | 1900272 | Alabama | Alabama Supreme Court | 583 So. 2d 1323 (1991)
Babette LOEB
v.
Dr. V.P. CAPPELLUZZO and V.P. Cappelluzzo, M.D., P.A.
1900272.
Supreme Court of Alabama.
June 21, 1991.
Maurice S. Bell and Mark A. Cavanaugh, Montgomery, for appellant.
*1324 Frank J. Stakely of Rushton, Stakely, Garrett & Johnston, Montgomery, for appellees.
MADDOX, Justice.
The issue presented in this case is whether the trial court erred in directing a verdict for the defendants because of the plaintiff's failure of proof under the Medical Liability Act, Ala.Code 1975, § 6-5-484, which, by the pre-trial order, governed the trial of this case.[1]
The facts of the case are as follows. Babette Loeb, a 73-year-old, sued her medical doctor, Dr. V.P. Cappelluzzo and his professional association, for injuries she sustained after she was left unattended in an examination room in which the furnishings were allegedly unsafe. The pre-trial conference was held three months after the complaint was filed. At the pre-trial conference, the parties outlined their respective theories. Pursuant to an agreement of the parties, the trial court judge entered the pre-trial order that was to control the litigation. It reads in pertinent part as follows:
(Emphasis added.)
During the trial, approximately nine months later after the pre-trial conference, Loeb offered the testimony of two nurses who were presented as expert witnesses. However, she was unable to qualify either nurse as a witness under the Medical Liability Act, which requires that any potential expert witness be a "similarly situated health care provider" before he can give an expert opinion. That statute defines a "similarly situated health care provider" as one who:
Ala.Code 1975, § 6-5-548(b).
Neither witness had actively practiced in a doctor's office setting since 1975; therefore, neither witness could present expert opinions or testimony. Loeb then argued to the trial court that the Medical Liability Act did not apply, that the case only involved the standard of care of an invitee because the case "had nothing to do with the treatment or care that a doctor gives to a patient."
Pursuant to Rule 16, Ala.R.Civ.P., the trial judge restricted Loeb to the use of the theory asserted at the pre-trial conferencethat the suit was to be tried under the Medical Liability Act. (See paragraph 2 of the pre-trial order quoted above.) The trial judge then granted the defendants' motion for a directed verdict, because in a medical malpractice case, a plaintiff can proceed only if he or she produces the requisite expert testimony. See Monk v. Vesely, 525 So. 2d 1364 (Ala.1988). Loeb's motions to set aside the judgment and motion for a new trial were denied. Loeb appeals.
The purpose of a pre-trial order is to clarify and simplify the issues to be tried. Arfor-Brynfield, Inc. v. Huntsville Mall Associates, 479 So. 2d 1146 (Ala.1985). The pre-trial order "shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice." Rule 16, A.R.Civ.P.
The trial judge has discretion to allow or refuse amendments or modifications of the pre-trial order. Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987). In the present case, however, the record is silent regarding any attempt to amend or modify the pre-trial order.
Loeb contends that this case falls within the exception to the general rule requiring expert testimony. She relies on Rosemont, Inc. v. Marshall, 481 So. 2d 1126 (Ala.1985), in which the Court recognized certain situations where "the want of skill or lack of care was so apparent" that the average person does not need expert testimony to understand the malpractice, for example, in situations where the doctrine of res ipsa loquitur is applicable. Walker v. Southeast Alabama Medical Center, 545 So. 2d 769 (Ala.1989); Therrell v. Fonde, 495 So. 2d 1046 (Ala.1986); Lloyd Noland Foundation, Inc. v. Harris, 295 Ala. 63, 322 So. 2d 709 (1975); Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969).
This argument has no merit. The cited cases are inapplicable because the exception mentioned in those cases is reserved for limited situations. See Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923) (a foreign instrument is found in the plaintiff's body following surgery); Meadows v. Patterson, 21 Tenn.App. 283, 109 S.W.2d 417 (1937) (cited with approval in Parrish) (where injuries occur to the body remote from the area of the operation, such as an injury to an eye during an operation for appendicitis). We do not believe any of the exceptions that this Court has recognized is applicable to the present case.
*1326 The parties agreed that the case would be tried under the Medical Liability Act (Ala.Code 1975, § 6-5-484), which, because of the pre-trial order, established the standard of care owed to the patient in this case, and requires that the community standard of due care established by that particular Act be proven by expert medical testimony. The plaintiff's theory of liability, as expressed in the pre-trial order, was that she "was seriously injured as a direct result of the fact that Rachel Burdette negligently and/or wantonly breached the applicable standards of care by leaving plaintiff standing alone in an examination room without providing such care that would make plaintiff comfortable and secure." The plaintiff failed to establish, by expert testimony, the standard of care she claimed was breached by the defendants.
Based on these considerations, we cannot say that the trial court abused its discretion in refusing to allow the nurses to testify as expert witnesses or in subsequently directing a verdict in favor of the defendants.
The judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The alleged accident happened on September 29, 1987, after the adoption of the Medical Liability Act of 1987, Ala.Code 1975, § 6-5-540 et seq., but the pre-trial order specifically stated:
"This is a suit brought under the Alabama Medical Liability Act, Section 6-5-484, Code of Alabama, 1975." | June 21, 1991 |
b322b968-0dfc-4139-a1bf-6afd2dd2525e | Ex Parte Frazer | 587 So. 2d 330 | 1900194 | Alabama | Alabama Supreme Court | 587 So. 2d 330 (1991)
Ex parte Henry FRAZER.
(Re Henry FRAZER v. Tommy TYSON, Jr., Chairman of the City Planning Commission of the City of Montgomery, et al.).
1900194.
Supreme Court of Alabama.
May 24, 1991.
Samuel Kaufman and Thomas R. DeBray of Kaufman, Rothfeder & Blitz, Montgomery, for petitioner.
N. Gunter Guy, Jr. of Brannan & Guy, Montgomery, for appellees City of Montgomery Planning Com'n and H. Calvin Lott.
John S. Bowman and Robin G. Laurie of Balch & Bingham, Montgomery, for respondents-intervenors Alex M. Johnston, Henry Durham, Jr., Maxwell L. Warren, III, William F. Adams, Patricia A. Adams, Robert L. Little and T.L. Thagard.
PER CURIAM.
Petitioner Henry Frazer is the owner of an unimproved five-acre parcel of land located in Montgomery. On February 4, 1988, he submitted for approval to the City Planning Commission a proposed plat of his property that would subdivide it into four lots all in excess of one acre in size. The proposed plat meets or exceeds all applicable requirements of the Commission's zoning ordinances and subdivision regulations, including minimum lot size, use, square footage of residences, and frontage. After a hearing, the Commission rejected Frazer's proposed plat. Thereafter, he filed in the Circuit Court of Montgomery County a petition for writ of mandamus, which the court denied after a hearing. Frazer appealed to the Court of Civil Appeals, 587 So. 2d 326 which affirmed the judgment of the trial court. We granted certiorari review, and we now reverse the judgment of the Court of Civil Appeals.
The facts are undisputed. In 1965, Hoyt Henley and Evan Leary purchased 81 acres of land from the Oliver Estate, Inc. The deed from the Oliver Estate, Inc., to Henley *331 and Leary contained the following language:
In 1967, Henley and Leary subdivided the property and filed a map of Bell Estates Subdivision, Plat No. 1, in Montgomery County. The property contained 15 lots, all of which were at least 5 acres in size. Neither the original restrictions filed with the plat of Bell Estates Subdivision, nor a subsequent amendment to those restrictions, contains any prohibition against resubdivision. Neither the original restrictions nor the subsequent amendment contains any reference to minimum lot sizes.
Henley and Leary began selling lots in Bell Estates Subdivision soon after filing the subdivision plat in 1967. None of the deeds to purchasers of lots in Bell Estates Subdivision contained restrictions relating to lot size. None contained any restrictions prohibiting resubdivision.
Frazer, the petitioner here, purchased Lot 3 in Bell Estates Subdivision in 1984. He personally searched the Montgomery County Probate Court records to determine the applicable plat and deed restrictions relating to the property. He also consulted an attorney, who searched the record and rendered an opinion as to restrictions on the property. Being satisfied that there were no restrictions against resubdivision of the property, Frazer purchased the property. He was not told, and did not know, that Henley and Leary, the developers of Bell Estates Subdivision, had intended to restrict the lot sizes to five acres.
The parties to this litigation are Henry Frazer, the owner of the subject property; the members of the City Planning Commission of the City of Montgomery; and several owners of property in Bell Estates Subdivision who were permitted to intervene. In denying approval of Frazer's proposed plat for resubdivision of his property, the Commission stated the following as its reasons:
All of the parties agree that there are no express restrictions on resubdividing lots in Bell Estates Subdivision. They also agree that the proposed resubdivision proposes lots that meet or exceed the regulations of the City of Montgomery with regard to lot size. In fact Frazer's proposed lot sizes are approximately 50% greater than those permitted by Commission regulations. In addition, Frazer proposes to require a minimum area for residences of 3000 square feet, as opposed to the existing plat restrictions of 2500 square feet per residence. The intervenors admit that there are no express restrictions preventing resubdivision of lots in Bell Estates. They argue, however, that the denial of the approval of Frazer's proposed resubdivision can be upheld on the basis that there is an implied restriction forbidding a resubdivision of the property.
They concede, as they must, and as the Court of Civil Appeals noted, that the express restrictive covenant contained in the original deed from the Oliver Estate expired in 1980. Can this express restriction be extended by implication in perpetuity? We hold that it can not. One hundred and fifty years ago, this Court addressed this issue in Roebuck v. Duprey, 2 Ala. 535 (1841), and held that an express covenant in a deed eliminates all implied covenants inconsistent with it:
2 Ala. at 541-42.
This is the general rule, so far as we are informed. At 21, C.J.S. Covenants § 4 at 303 (1990), the rule is stated:
There is a more compelling reason why the five-acre limitation cannot be upheld by implication. Frazer did not purchase the property from the original developers. The developers purchased the property from the Oliver Estate, and the Oliver Estate deed expressly imposed a restriction on lot size that was to expire after 15 years, which was 1980. The developers did not include this restriction in the restrictions filed with the subdivision plat of the property. Even if they intended the restriction to extend beyond 1980, Frazer had no way of knowing that that was their intent. He bought his property in 1984 from persons other than the developers. A title search revealed that there were no restrictions with regard to further subdivision of the property. In Powell on Real Property, Part IV, § 678 (1988), it is stated: "The mutual intent of the original promisor and promisee governs the duration of covenants as to land use."
Frazer was not an original promisor or promisee. There is in this record no evidence that Frazer had actual or constructive notice of the existence of any restriction with regard to lot size at the time he purchased his property. In order for an implied restrictive covenant to be enforced against a purchaser, the evidence must show that he had knowledge of the restriction at the time he purchased the property. Kennedy v. Henley, 293 Ala. 657, 309 So. 2d 435 (1975).
This court has frequently held that where a property owner complies with all applicable ordinances and regulations, he may not be denied a legal use of his land merely because adjoining landowners object to that use. Smith v. City of Mobile, 374 So. 2d 305 (Ala.1979), is indistinguishable from this case and compels a reversal of the judgment of the Court of Civil Appeals. In that case, Smith proposed to resubdivide a lot located in a residential subdivision into three lots. The Mobile Planning Commission denied the proposal, stating as its reason that "[t]he lots would be out of character with other lots in the area." After two unsuccessful attempts to gain approval of his resubdivision plan, Smith filed in the Circuit Court of Mobile County a petition for a writ of mandamus; as in the present case, adjoining landowners were permitted to intervene. After a hearing, the circuit court denied relief, and Smith appealed. Smith argued that the use of the criteria utilized by the Planning Commission in denying his proposal was not within its grant of authority and was contrary to the Planning Commission's own regulations. In Smith, as in the present case, the proposal met or exceeded the requirements imposed by the city's subdivision regulations. This Court held that neighboring property owners have no right to impose, for their own special benefit, restrictions upon the lawful use of a neighbor's tract of land.
The ownership of land carries with it the right to use the land for any lawful purpose. This does not mean that the city may not legally restrict the use of land. But when it does so, it must clearly apprise landowners of what those restrictions are, and it must adopt standards that can be uniformly applied and that give reasonable notice to the owner of what he must do to comply with those restrictions. Smith, supra.
The Court of Civil Appeals erred in holding that the five-acre lot restrictions applied *333 to the Frazer property by implication. Accordingly, its judgment is reversed.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | May 24, 1991 |
eef3e03c-41e9-4e78-901d-85d30d5fe6ab | Medlin v. Crosby | 583 So. 2d 1290 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 1290 (1991)
Betty Jean MEDLIN, as administratrix of the Estate of Alice Bell Shoffeitt, deceased
v.
Dr. J. Dell CROSBY.
89-1464.
Supreme Court of Alabama.
June 14, 1991.
*1291 Michael A. Worel and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellant.
Robert A. Huffaker and Thomas H. Keene of Rushton, Stakely, Johnston & Garrett, Montgomery, and Phillip E. Adams, Jr. of Walker, Hill, Adams, Umbach & Meadows, Opelika, for appellee.
*1292 INGRAM, Justice.
This is an appeal from a summary judgment for the defendant "health care provider" entered by the trial court because the plaintiff failed to provide an expert witness who was a "similarly situated health care provider," as defined in § 6-5-548, Ala. Code 1975, to establish the standard of care alleged to have been breached.
On the morning of March 22, 1989, Alice Bell Shoffeitt was taken to the emergency room at East Alabama Medical Center (hereinafter "EAMC"), complaining of nausea, vomiting, and pain in her chest and arms. Dr. J. Dell Crosby, the physician in attendance in the emergency room, diagnosed her as suffering from osteoarthritis and advised her to consult her regular physician if her complaints continued, worsened, or changed. He prescribed Demerol, Vistaril, and Darvocet for pain and then released Mrs. Shoffeitt.
Later that day, Mrs. Shoffeitt's husband found that she had stopped breathing. Paramedics, summoned by Mr. Shoffeitt, transported Mrs. Shoffeitt to the emergency room at EAMC. The physicians and staff of the emergency room were able to restore her heartbeat, but she was kept alive only by means of life-support systems. After several days on the life-support systems, the family requested that the systems be terminated. Mrs. Shoffeitt died on March 28, 1989. An autopsy revealed that her death was caused by cardiopulmonary arrest due to an acute myocardial infarction.
Betty Jean Medlin, Mrs. Shoffeitt's daughter, in her capacity as administratrix of Mrs. Shoffeitt's estate, sued Dr. Crosby. Dr. Crosby filed a motion for summary judgment on the basis that Medlin had failed to designate an expert witness who met the definition of "similarly situated health care provider" within the meaning of § 6-5-548(c), Ala.Code 1975. The statute provides:
Ala.Code 1975, § 6-5-548(a).
Subsection (c), the section applied by the trial court, defines a "similarly situated health care provider" as one who:
Id. (c).
Dr. Crosby is board certified in family medicine. He has practiced as a full-time emergency room physician since June 1986. Medlin's expert, Dr. Jonathan Borak, is certified in internal medicine, has practiced emergency medicine, and currently teaches emergency medicine at Yale Medical School.
After a hearing, the trial court entered a summary judgment in favor of Dr. Crosby because "[n]o expert testimony ha[d] been offered by the Plaintiff by any medical witness who is `certified by an appropriate American board in the same specialty' as the defendant Physician, within the meaning of Section 6-5-548(c)(3), Code of Alabama, 1975." It is from this summary judgment that Medlin appeals.
The trial court found that Medlin's expert witness, Dr. Borak, failed to meet the qualifications, established by § 6-5-548(c), of a "similarly situated health care provider," and that, therefore, Dr. Borak could not provide testimony as to the standard of care Dr. Crosby, the defendant "health care provider," allegedly breached, which was required to withstand the motion for summary judgment.
*1293 On appeal, Medlin raises two issues: (1) whether the trial court correctly interpreted and applied § 6-5-548, and (2) whether the statute is unconstitutional.
The only ground given by the trial court for not qualifying Dr. Borak as a "similarly situated health care provider" was that he was not certified in the same specialty as Dr. Crosby. Dr. Borak is board certified in internal medicine, and Dr. Crosby is board certified in family medicine. However, both doctors practice emergency medicine, and the standard of care required by a doctor practicing emergency medicine is the standard that Dr. Crosby allegedly breached. The incident from which this cause of action arose occurred in the emergency room of EAMC. Dr. Crosby worked exclusively in that emergency room and had no private practice.
Medlin argues that the trial court erred in applying subsection (c) of § 6-5-548 to the facts before it. As stated previously, subsection (c) provides that in order to testify against a health care provider whose acts created the cause of action, the "similarly situated health care provider" (1) must be licensed to practice medicine in this or another state, (2) must be trained and experienced in the same specialty as the defendant "health care provider," (3) must be board certified in the same specialty, and (4) must have practiced in the same specialty during the year preceding the alleged breach.
Medlin argues that, because Dr. Crosby was not board certified in emergency medicine, this case, factually, falls outside of subsection (c) and should have been determined under subsection (b). Subsection (b) applies when the defendant "health care provider" (1) is not certified as a specialist, (2) is not trained or experienced in a specialty, or (3) does not hold himself out as a specialist. § 6-5-548(b).
Dr. Crosby contends that the trial court properly applied subsection (c). Subsection (c) applies when the defendant "health care provider" (1) is certified as a specialist, (2) is trained and experienced in a specialty, or (3) holds himself out as a specialist. Id. (c). He contends that the trial judge interpreted the statute according to the plain language, which requires a "similarly situated health care provider" to be board certified in the same specialty as the defendant "health care provider."
Our interpretation of the statute leads us to conclude that the trial court must answer three questions before deciding whether a proffered expert witness qualifies as a "similarly situated health care provider" within the meaning of the statute: (1) What is the standard of care alleged to have been breached? (2) Is the defendant "health care provider" a specialist in the discipline or school of practice of the standard of care that the court has previously determined is alleged to have been breached? (3) Does the proffered expert witness qualify as a "similarly situated health care provider" under the subsection determined in the second step to apply.
First, a trial court must determine the standard of care the defendant "health care provider" allegedly breached. In the instant case, Medlin alleged that Dr. Crosby did not properly diagnose Mrs. Shoffeitt's heart attack because, she says, he failed to take a proper history and failed to perform the tests required by the situation. Specifically, Medlin alleged that, when Dr. Crosby saw Mrs. Shoffeitt in the emergency room, he negligently failed to take an adequate history of her complaints, which included nausea, fatigue, and dizziness. She also alleged that he negligently failed to perform an adequate physical examination and that he negligently failed to rule out that Mrs. Shoffeitt was suffering a myocardial infarction, through his failure to do enzyme studies and an electrocardiogram. The standard of care to be applied in the instant case is that of a "health care provider" practicing emergency medicine.
After determining the standard of care alleged to have been breached, the trial court must next determine whether the defendant "health care provider" is a specialist, as defined in subsection (c), in that discipline, i.e., emergency medicine, or not a specialist, as defined in subsection (b). In the instant case, the appropriate specialty *1294 is emergency medicine, the discipline Dr. Crosby was practicing when he allegedly breached the standard of care with regard to Mrs. Shoffeitt's treatment. The classification of the defendant "health care provider" as a specialist determines the qualifications required of an expert witness who is a "similarly situated health care provider"; therefore, before a trial court can decide whether a particular expert is qualified to testify, the court must determine whether the defendant "health care provider" is to be treated as a specialist under § 6-5-548(c).
In order for a defendant "health care provider" to be classified as a specialist under subsection (c), the defendant "health care provider" must (1) be board certified, (2) be trained and experienced in the specialty, or (3) hold himself out as a specialist. § 6-5-548(c). The criteria by which a defendant "health care provider" is to be classified as a specialist are joined by the disjunctive conjunction "or." The plain-language interpretation of the statute would appear to be that the defendant "health care provider" need meet only one of the requirements to qualify as a specialist under subsection (c).
Subsection (b), on the other hand, applies to a defendant "health care provider" who (1) is not board certified in a specialty; (2) is not trained and experienced in a specialty; or (3) does not hold himself out as a specialist. Again, the legislature chose to join the determinate criteria with the disjunctive conjunction "or." The meaning, seemingly, is that if the defendant "health care provider" meets one of the criteriae.g., is not board certified in a specialtyhe comes within subsection (b). When read together, subsections (b) and (c) seem to create an anomaly that allows the defendant "health care provider" to come within both subsections. The determination by the trial court of which subsection to apply, as in the instant case, can be dispositive of a plaintiff's case.
The instant case is illustrative of this incongruous result in the application of the plain meaning of the statute. Dr. Crosby, who is board certified in family medicine, practiced medicine for approximately five years prior to the incident giving rise to this action. At the time of the incident, he was working for a private company that contracted out his services to EAMC; he maintained no separate, regular private practice. Apparently, the trial court applied subsection (c) because Dr. Crosby was board certified and had experience in practicing emergency medicine. The question before this Court is whether the trial court applied the correct subsection of § 6-5-548 in classifying Dr. Crosby as a specialist and thereby disqualifying Dr. Borak, Medlin's expert witness, as a "similarly situated health care provider."
Before discussing whether the trial court applied the correct subsection, we will examine Dr. Crosby's qualifications in relation to the determinate criteria of subsection (c): (1) whether he is board certified in the appropriate specialty; (2) whether he has training and experience in the specialty; and (3) whether he holds himself out as a specialist.
Dr. Crosby is board certified in family medicine; however, the alleged breach of standard of care occurred while Dr. Crosby was engaged in practicing emergency medicine. We hold, for purposes of determining whether a "health care provider" is a "specialist," that the trial court should look to whether the defendant "health care provider" is board certified in the specialty or discipline or school of practice that covers the area of the alleged breach. Therefore, Dr. Crosby, who is not board certified in emergency medicine, does not meet the first criterion of subsection (c) for determining whether he is to be treated as a specialist.
The next criterion is whether Dr. Crosby is trained and experienced in the specialty. Dr. Crosby testified in his deposition that he received his medical degree from the University of Alabama in 1982. He completed his residency in 1985 and was certified in family medicine that year. Thereafter, he practiced family medicine in Starkville, Mississippi, before beginning work at EAMC as an emergency room physician in June 1986. Dr. Crosby had practiced *1295 in the emergency room for more than two and one-half years prior to the incident at issue; we hold that this is sufficient to meet the "training and experience" requirement of subsection (c).
The last criterion to be determined is whether Dr. Crosby "holds himself out as a specialist." The statute does not define the phrase "holds himself out." Other jurisdictions have defined the term as meaning "assertive conduct directed towards the public ... with a view to establishing a physician-patient relationship," People v. Shokunbi, 89 Ill.App.2d 53, 58, 232 N.E.2d 226, 229 (1967), and as a "`communication of the fact that service is available to those who may wish to use it,'" Vincent v. United States, 58 A.2d 829, 831 (D.C.Mun.App.1948) (quoting Northeastern Lines, Inc., Common Carrier Application, 11 M.C.C. 179, 182 (1939)). We hold that the phrase "holds himself out as a specialist," within § 6-5-548, means that the defendant "health care provider" has taken affirmative steps to present himself to the public as a specialist.
Dr. Crosby contracted his services to Alabama Emergency Response Administrative Services, which in turn had a contract with EAMC to provide physicians for the emergency room. Dr. Crosby was not listed in the telephone book as a physician and had no established private practice. In response to a question regarding whether he held himself out as a physician, Dr. Crosby responded: "Unless they ask, I'm just Dell Crosby." Under these facts, we hold that Dr. Crosby had not taken steps to present himself to the public as a specialist in emergency medicine; therefore, he does not meet the third criterion under subsection (c).
Dr. Crosby qualifies under the plain language of subsection (c) as a specialist, because he meets the second criterion, in that he is "trained and experienced" in a specialty, and the criteria of subsection (c) are joined with the disjunctive "or," indicating that the defendant "health care provider" need meet only one of the criteria to qualify as a specialist. However, Dr. Crosby also meets the criteria of subsection (b) because he is not board certified in the specialty of emergency medicine and does not hold himself out as a specialist.
If, under subsection (c) of the statute, Dr. Crosby is to be treated as a specialist, the "similarly situated health care provider" expert witness, in order to testify as to the standard of care alleged to have been breached, not only must be properly licensed and practicing in the specialty during the year preceding the alleged breach, but must also be trained and experienced in emergency medicine and be board certified in emergency medicine. Seemingly, in order to testify as to the alleged standard of care, the "similarly situated health care provider" expert must be more "specialized" than the defendant "health care provider." We find that this disparate treatment was not intended by the legislature.
The legislature stated that the purpose of the statute was "to establish a relative standard of care for `health care providers.'" § 6-5-548(e). The plain language of the statute, which allows a defendant "health care provider" to fall into both subsections, produces the effect of having a doctor with a certain set of credentials being held to a standard of care set by a "similarly situated health care provider" with different credentials and experience, depending upon whether or not he is classified as a specialist. The purpose, as expressed in subsection (e), is to require the plaintiff to establish the standard of care the defendant "health care provider" allegedly breached, by the testimony of an expert witness with approximately the same level of specialization. Because the specialist "similarly situated health care provider," as defined in subsection (c), must be board certified and trained in the specialty at issueas well as be licensed to practice medicine and actually be practicing during the year preceding the alleged incident we find that the disjunctive conjunction "or," used in subsection (c) to describe the defendant "health care provider" as a specialist, should be read as the conjunctive conjunction "and."
In re Opinion of the Justices No. 93, 252 Ala. 194, 198, 41 So. 2d 559, 563 (1949).
In summation, because the plain language of the statute allows a defendant "health care provider" to fall into both subsections, we hold that the portion of subsection (c) that describes the defendant "health care provider" as a specialist is to be read in the conjunctive, requiring all three standards(1) board certification as a specialist in the specialty at issue; (2) training and experience in the specialty at issue; and (3) holding himself out as a specialist in the specialty at issueto be met before a defendant "health care provider" will be classified as a specialist, thus requiring the plaintiff to retain an expert that meets the qualifications of "similarly situated health care provider," defined in subsection (c). Under the above interpretation of the statute, Dr. Crosby falls within subsection (b); therefore, Medlin's expert witness must meet the definition of a "similarly situated health care provider" under subsection (b).
Subsection (b) requires a "similarly situated health care provider" expert witness (1) to be licensed by the appropriate regulatory board or agency of this or some other state, (2) to be trained and experienced in the same discipline or school of practice, and (3) to have practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred. Medlin's proffered expert, Dr. Borak, meets the requirement of (b)(1), because he is licensed by the states of New York and Connecticut. He began to practice emergency medicine in 1978, and, since 1983, he has served as an assistant clinical professor at Yale Medical School, instructing medical students in emergency medicine and occupational medicine. Dr. Borak currently runs his own business, one that prepares and presents educational and training programs in emergency response planning for industrial accidents and medical and paramedical response issues. We hold that this experience is sufficient to meet the requirements of subsection (b)(2).
Subsection (b)(3) requires that the "similarly situated health care provider" is to have practiced "in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred." Section 6-5-548 does not explain what is meant by "practice of medicine." However, § 34-24-50, Ala.Code 1975, defines "[to] practice... medicine" as "[t]o diagnose, treat, correct, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality." Ala.Code 1975, § 34-24-50(1).
Dr. Borak, in his deposition, testified that during the year preceding Dr. Crosby's alleged breach, Dr. Borak saw patients in the emergency department for the purpose of teaching. His responsibilities included seeing patients who presented in the emergency room and participating in the diagnosis and the treatment of the patient. Although Dr. Borak testified that the majority of his time was spent working with his company, that fact would not disqualify him as an expert witness, because the statute does not specify the amount of time spent practicing or the nature and quality of the practice. Therefore, we hold, for the purposes of determining whether Dr. Borak qualifies as a similarly situated health care provider, that Dr. Borak practiced emergency medicine during the year preceding Dr. Crosby's alleged breach.
Therefore, we hold that the trial court erred in entering the summary judgment, because Dr. Crosby is not a specialist within the intended meaning of subsection (c), and Dr. Borak clearly meets the subsection *1297 (b) requirement for an expert witness "similarly situated health care provider."
Medlin raises several constitutional challenges to § 6-5-548. However, this Court "will not consider the constitutional validity of statutes, unless the question is presented and is essential to a disposition of the case." City of Mobile v. Gulf Development Co., 277 Ala. 431, 439, 171 So. 2d 247, 255 (1965).
We reverse the trial court's summary judgment and hold that Dr. Borak is qualified to testify as to the standard of care Dr. Crosby is alleged to have breached.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | June 14, 1991 |
d2d32a16-e9e0-4029-b573-443662460fde | Croft v. Pate | 585 So. 2d 799 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 799 (1991)
Tommy CROFT and Regina Croft
v.
Stan PATE.
89-1697.
Supreme Court of Alabama.
May 31, 1991.
Rehearing Denied August 9, 1991.
Wilbor H. Hust, Jr. of Zeanah, Hust, Summerford, Davis & Frazier, Tuscaloosa, for appellants.
David L. Carroll of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellee.
KENNEDY, Justice.
The plaintiffs, Tommy and Regina Croft, appeal from a summary judgment entered in favor of the defendant, Stan Pate.
The Crofts purchased a piece of property on Lake Tuscaloosa in 1985 for $21,500. In January 1987, they contracted with Skipper Davis Construction Company to build a house on the lot. To finance the construction of the house, Skipper Davis applied to First Alabama Bank for a construction loan. Davis did not have sufficient collateral to obtain the loan. So that Davis might obtain the loan, the Crofts deeded the property to Davis. Davis pledged the property, together with a certificate of deposit owned by his uncle, to First Alabama Bank as security for the loan. The bank then lent Davis the money for construction.
During the course of the construction of the house, problems arose concerning the *800 quality of the workmanship. The Crofts hired Joseph Pierce as their attorney. Davis employed Sanford Gunter as his attorney; later Gunter's partner, Mark Stephens, represented Davis. The parties attempted to settle the matter; however, the negotiations collapsed and, on November 2, 1987, Davis filed an action against the Crofts. The Crofts filed a counterclaim in that action. The record in the present case does not indicate on what basis that first action was filed, nor does it indicate the result in that action.
Davis failed to make the interest payments on the construction loan, and First Alabama foreclosed on the mortgage on the property. On December 30, 1987, the bank sold the property at a public foreclosure sale to the defendant, Stan Pate. Thereafter, Pierce unsuccessfully attempted to purchase the property for the Crofts from Pate. Pate later employed Davis to complete the construction of the house.
On February 12, 1988, the Crofts filed an action against Pate. The Crofts claimed to have an equitable ownership in the property and claimed that that equitable ownership gave them the right to redeem the property. The Crofts asked the court to allow them to redeem the property for a sum specified by the court. In his motion for summary judgment, Pate argued that the Crofts were not members of the group of persons statutorily granted the right to redeem the property. The court granted Pate's motion for summary judgment, denying the relief sought by the Crofts. No appeal was taken from that judgment.
On May 30, 1989, the Crofts filed against Pate the action that is the basis of this appeal; it alleged intentional interference with business relations. The Crofts alleged that, prior to November 2, 1987, the date on which Davis filed the action against them, the Crofts and Davis had entered into "a binding settlement agreement whereby [Davis] would pay to the [Crofts] the sum of $23,500." They further alleged that Pate intentionally dissuaded Davis from honoring the settlement agreement, and that Pate and Davis conspired to deprive the Crofts of their property as well as the benefits of the property settlement. Because of this alleged interference, the Crofts argue, they never recovered the $23,500 in settlement money.
Pate filed a motion for summary judgment against the Crofts. The trial court, having concluded "that the doctrine of res judicata bars [the Crofts'] recovery in this case," granted the motion.
On appeal, the Crofts argue that the doctrine of res judicata does not bar the action for intentional interference with business relations. Specifically, they argue that, in this case, the fourth element of res judicata is missing. Pate argues to the contrary.
The following elements are necessary for the doctrine of res judicata to apply so as to bar a subsequent suit: (1) the question or fact must have been litigated and determined by a court of competent jurisdiction; (2) the final judgment in the first action must have been rendered on the merits; (3) the parties in the first action, or those in privity with them, must be of such a relationship to the parties in the subsequent action as to entitle them to the benefits and/or burdens of 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).
If these elements are present, then any issue that was, or could have been, adjudicated in the prior action is barred from further litigation. 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).
Having carefully reviewed the record, we conclude that the fourth element of the doctrine of res judicata is not present and that, therefore, the doctrine does not apply in this case.
The fourth element of the doctrine of res judicata is that the same cause of action must be involved in both suits. Waters v. Jolly, supra; Hughes v. Martin, supra; *801 Geer Brothers, Inc. v. Crump, 349 So. 2d 577 (Ala.1977). This Court has held that the same cause of action exists when the same evidence is applicable in both actions. Waters v. Jolly, supra; Hughes v. Martin, supra; Gulf American Fire & Casualty Co. v. Johnson, 282 Ala. 73, 209 So. 2d 212 (1968).
In Hughes v. Martin, supra, at 191, we quoted 2 Black on Judgments:
"`The doctrine of res judicata does not rest upon the fact that a particular proposition has been affirmed and denied in the pleadings, but upon the fact that it has been fully and fairly investigated and tried,that the parties have had an adequate opportunity to say and prove all that they can in relation to it, that the minds of court and jury have been brought to bear upon it, and so it has been solemnly and finally adjudicated.'"
In the first action, the evidence concerned the right of the Crofts to redeem the property once Pate had purchased it at the foreclosure sale. In determining the right of the Crofts to redeem the property, the court would have considered the deed by which the Crofts conveyed the property to Davis, in light of Ala.Code 1975, § 6-5-230. Section 6-5-230 contains a list of those entitled to redeem property sold under a power of sale in a mortgage. A copy of that deed was included as an exhibit in the first action, and Pate based his motion for summary judgment on that exhibit. The court granted Pate's motion for summary judgment.
The Crofts argue, and the depositions of Pate, Davis, and Pierce corroborate, that in this action the evidence concerns the existence vel non of a contractual relationship between the Crofts and Davis and whether Pate intentionally interfered with that relationship. That proposition has not been fully and fairly tried. The parties to this action have not had an opportunity to say and prove all that they can in relation to it, and the mind of the court has not been brought to bear on this claim raised by the Crofts.
Based on the foregoing, we hold that the evidence applicable to the first action and the evidence applicable to this action are not the same. Therefore, this action is not barred by the doctrine of res judicata. The summary judgment rendered for the defendant is due to be, and it is hereby, reversed, and this cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
MADDOX, HOUSTON and INGRAM, JJ., dissent.
MADDOX, Justice (dissenting).
The trial court correctly held that this second suit is barred under the doctrine of res judicata because the Crofts should have included in their first lawsuit any claim they may have had against Pate for wrongful interference with a settlement agreement.
I briefly state the basic facts to show why I believe that the principles of res judicata apply:
1985 The Crofts buy the subject lot.
January 1987 The Crofts enter into a contract with Davis to build a house on the lot.
February 18, 1987 The Crofts transfer the lot to Davis to allow Davis to use it as collateral for a construction loan he obtains from First Alabama Bank.
March 9, 1987 Davis executes a mortgage to First Alabama Bank.
The Crofts and Davis have disagreements over the construction of the house, and both hire lawyers.
September 1987 The lawyers negotiate a settlement agreement (the subject matter of this appeal), under which Davis would pay the Crofts $23,500.
Davis threatens the Crofts with a lawsuit and with bankruptcy.
*802 December 1987 Davis defaults on the loan with First Alabama Bank, and First Alabama Bank forecloses on the mortgage.
December 30, 1987 Pate purchases at the foreclosure sale, paying a small sum more than the amount bid by First Alabama Bank.
February 1988 Pate discusses with the Crofts' lawyer the possibility of the Crofts' repurchase of the house, provided Pate is guaranteed a profit. According to testimony of the Crofts' lawyer, it was during this conversation that Pate related that he (Pate) had told Davis that Davis would have been "crazy" to enter into the settlement worked out by the lawyers (the settlement that forms the basis for this lawsuit, which was never consummated).
February 12, 1988 The Crofts file the first suit against Pate, in which they seek to redeem the property from him. Pate objects to the redemption on the ground that the Crofts do not have a right of redemption.
April 18, 1988 The trial court grants Pate a summary judgment in the case in which the Crofts sought to redeem the property. The Crofts do not appeal.
May 30, 1989 The Crofts filed the instant lawsuit against Pate, in which they claim that Pate wrongfully interfered with the settlement agreement with Davis.
June 28, 1990 The trial court grants Pate's motion for summary judgment, and the Crofts appeal.
The Crofts argue that their first suit against Pate was a suit to redeem, and that this claim for wrongful interference with the settlement need not have been filed at the time they filed the first suit and therefore is not barred. The majority agrees with them, and reverses the judgment of the trial court. I cannot accept the Crofts' argument and the majority's holding as correctly stating the law of the case; therefore, I must dissent.
The Crofts do not assert that they were not aware of the present cause of action at the time of the previous litigation. In fact, the evidence is undisputed that they were aware of the alleged interference prior to the time of the filing of the first action. In his deposition, the Crofts' lawyer in the first litigation testified as to the basis of the alleged interference with the settlement agreement and when he was aware of it.[1]
*803 I recognize, of course, that the first action filed by the Crofts against Pate sought only equitable relief, and that this second suit is a tort action in which the Crofts seek damages, but that does not have consequential effect. Prior to the adoption of the Alabama Rules of Civil Procedure, the principle of res judicata may have been inapplicable, but the distinction between law and equity has been abolished and there is now only one form of action. Aldridge v. Grund, 293 Ala. 333, 302 So. 2d 847 (1974), cert. denied, 421 U.S. 1007, 95 S. Ct. 2411, 44 L. Ed. 2d 676 (1975); Rule 2, Ala.R.Civ.P. Consequently, I cannot accept the Crofts' argument that, because the first action was one to redeem, an action seeking equitable relief, and this action is a tort action in which damages are sought, res judicata does not apply.
The principal issue in the first case was whether, because of Pate's wrongful conduct, the Crofts should have been allowed to redeem, and it is clear that, while the first suit was pending, the Crofts knew of all the facts and circumstances that form the basis of the instant claim, because their attorney testified that he had talked to Pate (see footnote 1) and also because he wrote the following letter to the trial judge in the first action:
"Dear Judge Karrh:
"Clearly, the Crofts are entitled to a finding that the deed to S.D. was not an absolute deed and is due to be canceled, or else to a finding that a constructive trust or resulting trust exists on the *804 property with themselves as beneficiaries. However, unless they are allowed to step into S.D.'s shoes and redeem the property from Mr. Pate, they have no means to enforce their clear equitable interest in the property.
In their complaint in this case, the Crofts set out the same basic facts which are contained in their lawyer's letter to the trial judge in the first case, and then they allege that "[a]ll of this was part of a conspiracy by Stan Pate and Skipper Davis to deprive the plaintiffs of the benefit of their settlement agreement this was part of a conspiracy by Stan Pate and Skipper Davis to deprive the plaintiffs of the benefit of their settlement agreement and resulted not only in depriving them of their settlement agreement, but also deprived them of their property."
It is quite obvious from a reading of the argument made in the first lawsuit in opposition to a summary judgment motion, and from a reading of the argument made in this case, that the two actions involve the same parties and the same subject matter and that the right of the Crofts to relief, whether equitable or legal, is based upon the same facts and circumstances. The second suit is nothing more than an alternative claim for relief that should have been asserted in the first action. It should be barred. Sullivan v. Walther Builders, Inc., 495 So. 2d 655 (Ala.1986).
HOUSTON and INGRAM, JJ., concur.
[1] "Q. Did you subsequently file a lawsuit in Tuscaloosa County on behalf of the Crofts against Mr. Pate?
"A. I filed a lawsuit to basically ask the Court to allow the Crofts to redeem the property from Mr. Pate. It was a suit for redemption.
"Q. Joe, let me show you what's been marked as Defendant's Exhibit 1, a lawsuit that was filed apparently February 12th, 1988. Is that
"A. That's a copy of the lawsuit we filed at that time.
"Q. Would the meeting that you had with Mr. Pate have been prior to that lawsuit being filed?
"A. Right. Because this was actually filed on February 12th of '88.
"Q. And would the letter that you wrote to him subsequent to meeting him been also prior to that suit being filed?
"A. Right.
"Q. I think you said a minute ago 10th or 11th. Does that seem right in relation to that being filed on the 12th?
"A. Yes.
"Q. It was that close in time?
"A. Right.
"....
"Q. Did you have any further conversations with respect to the house after that, not with respect to what might have been confused about the letter or his subsequent phone call or anything like that but with respect to the house? Did you have any subsequent conversations?
"A. I don't remember any.
"Q. Now, did you ever become aware of anybody claiming that Mr. Pate somehow was involved in the settlement negotiations between Skipper Davis Construction and the Crofts?
"A. Well, my memory is that when Stan Pate came to my office to talk about what he would be willing to do [in regard] to letting the Crofts buy the house from him or reacquire it, he made the statement that he had told Skipper Davis that he shouldn't go through with the agreement that he had with the Crofts.
"Q. Do you know when he told Skipper Davis that?
"A. I don't know of a date. That was a statement that Mr. Pate said in our conversation that day he came to my office.
"Q. You didn't go into specifics about when he may have said that to Skipper Davis?
"A. Well, I assumeI don't know, David. I assume that it was before the foreclosure but I don't know exactly when that was.
"Q. Did he say this was before the settlement was called off or did he just say he told Skipper that it was a bad idea to go through with the settlement, do you recall?
"A. My memory is that he said something to the effect that he had told Skipper he was crazy to do it and shouldn't do it. But I don't know when he told Skipper that.
"Q. So, you don't have any knowledge as to when it was told to Mr. Davis if it was?
"A. I don't have any personal knowledge.
"Q. Other than from Mr. Pate, have you heard that from anybody else?
"A. No.
"Q. And so the only time you would have been aware of it was when he told you
"A. That's right.
"Q. on that visit to your office on whatever day or two before this lawsuit was filed?
"A. Right, in February, right.
"....
"Q. And just, again, so I'm clear, the only knowledge you have of Mr. Pate possibly being involved with the settlement discussions was the one statement he made to you at your office on roughly February 10th or 11th?
"A. Right. That's my only contact with Stan Pate concerning settlement negotiations.
"....
"Q. That suit marked Exhibit 1 was between Tommy Croft and Regina Croft and against Stan Pate?
"A. Right.
"Q. And involved the house at Lake Hills North?
"A. Right. It asked the Court to allow the Crofts to redeem the property from Mr. Pate." | May 31, 1991 |
7f40e8ee-7bd4-4368-8cc5-284a24df5f9a | Moore v. Liberty Nat. Life Ins. Co. | 581 So. 2d 833 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 833 (1991)
Satye B. MOORE and Thaxton S. Moore, Jr.
v.
LIBERTY NATIONAL LIFE INSURANCE COMPANY and Albert Craig Hidy.
89-1733.
Supreme Court of Alabama.
May 31, 1991.
Ronald O. Gaiser, Jr. and Richard C. Barineau, Birmingham, for appellants.
Charles D. Stewart and Pamela F. Colbert of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellees.
INGRAM, Justice.
Satye B. Moore and her son, Thaxton S. Moore, Jr., sued Liberty National Life Insurance Company and its agent, Albert Craig Hidy, alleging that Hidy had taken out loans against two of the Moores' life insurance policies without the Moores' knowledge or permission. The two policies, purchased by Mrs. Moore, insured her son's life. Through their original complaint and two subsequent amended complaints, the Moores basically asserted fraud, misrepresentation, and conversion claims against Liberty National. The two amended complaints followed the trial court's dismissal of their first complaint and a refusal to set aside that dismissal. After hearing arguments for a third time on the motion to dismiss and after reviewing the evidence that was presented, the trial court, pursuant to Rule 12(b)(6), A.R. Civ.P., treated Liberty National's motion to dismiss as a motion for summary judgment. The trial court entered a summary judgment against the Moores, and they appealed.
The first issue that the Moores raise is whether the trial court erred in treating Liberty National's motion to dismiss as a motion for summary judgment. In its Rule 12(b)(6) motion, Liberty National asserted *834 that the Moores failed to state a claim upon which relief could be granted.
The record clearly indicates that matters outside the pleadings were presented to the trial court and that the matters were considered by the trial court in making its decision. For instance, in opposition to Liberty National's motion to dismiss, the Moores submitted their own affidavits, as well as correspondence between them and Liberty National. Also, the Moores submitted exhibits consisting of Liberty National's records regarding the loan transactions and filed a brief in response to Liberty National's motion to dismiss.
Furthermore, both the Moores and Liberty National presented oral arguments, which were transcribed and which appear in the record. We note that briefs and arguments of counsel, when submitted to and considered by a trial court in ruling upon a Rule 12(b)(6) motion, have been held sufficient in themselves to be "matters outside the pleadings" that would convert a Rule 12(b)(6) motion into one for summary judgment. See Sims v. Lewis, 374 So. 2d 298 (Ala.1979). We hold that the trial court correctly treated Liberty National's motion to dismiss as a motion for summary judgment.
Once matters outside the pleadings are considered, so that a motion to dismiss must be treated as a motion for summary judgment, the moving party's burden changes, and it is obliged to demonstrate that there exists no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; see Hightower & Co. v. United States Fid. & Guar. Co., 527 So. 2d 698 (Ala.1988); Green v. Bradley Constr., Inc., 431 So. 2d 1226 (Ala.1983).
Rule 56 is read in conjunction with the "substantial evidence rule," § 12-21-12, Ala.Code 1975, for actions filed after June 11, 1987. See Bass v. South-Trust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the nonmovant must present substantial evidence, i.e., "evidence of such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989).
With these principles in mind, we now turn to our analysis of the second issue raised by the Moores: Whether the trial court erred in entering a summary judgment for Liberty National.
The Moores, in their complaint, asserted a number of tort claims against Liberty National, including fraud and conversion. An essential element of each of the claims asserted by the Moores is damages. In order to defeat Liberty National's motion, the Moores had the burden of presenting substantial evidence that they were damaged by Liberty National's actions. However, they did not present any evidence that they had suffered damage.
The record indicates these undisputed facts: Liberty National's agent, Albert Craig Hidy, forged Thaxton Moore's signature and effected unauthorized loans against two Liberty National life insurance policies owned by the Moores. Hidy's actions were not known by Liberty National until the unauthorized loans were discovered by the Moores and brought to the attention of Liberty National. After learning of Hidy's scheme, Liberty National removed the loans from the Moores' policies, restored all benefits and values to the policies, and informed the Moores of the steps it had taken to remedy the unauthorized loans. Thereafter, the Moores filed this suit, alleging that they had been damaged as a result of the unauthorized loans, claiming specifically that they had been deprived of the cash surrender value of the policies *835 and had had a decreased death benefit available during the time that the policies were encumbered by the unauthorized loans.
It is undisputed that the Moores made no claim on either policy, and that, consequently, they were denied no benefits under the policies. Furthermore, the Moores requested no loan against either policy; therefore, no loan proceeds or loan benefits were denied them. The Moores made no attempt to cash in either policy, so they lost no surrender values. The Moores never paid any interest on the unauthorized loans.
For the Moores to prevail on a claim that they were damaged as a result of lost use of the cash surrender value or by a reduction in the death benefits of their life insurance policies, they must show some loss, or some denial of the use or enjoyment, of those benefits. Here, the Moores claim damages solely on the theory that if they had wanted to make a claim or loan during the period when the policies were encumbered by the unauthorized loans, and if Liberty National had not discovered that the loans were, indeed, unauthorized, then Liberty National would have denied them a loan or a claim and they would have been denied the use and enjoyment of their policies. However, it is undisputed that none of these events occurred.
Here, the Moores' allegations that they suffered damage are based strictly on speculationwhat might have happened, as opposed to what did happen. However, a finding of damage cannot be based on speculation. It is fundamental that in order to recover damages, a plaintiff must present evidence of actual damage. See Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.1988); Skipper v. South Cent. Bell Tel. Co., 334 So. 2d 863 (Ala.1976); C. Gamble, Alabama Law of Damages, § 7-1 (2d ed. 1988). Here, viewing the evidence before the court in the light most favorable to the Moores, we conclude that there was no evidence that the Moores incurred damage upon which a recovery could be based.
The trial court correctly concluded that the undisputed evidence showed that the Moores were never denied the use of their policies and that they never "suffered a nickel's worth of loss." The trial court correctly entered the summary judgment for Liberty National.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | May 31, 1991 |
40290ef9-1358-42e8-b223-1aafe4a96baf | Ex Parte Blue Cross and Blue Shield | 582 So. 2d 469 | 1900470, 1900471 | Alabama | Alabama Supreme Court | 582 So. 2d 469 (1991)
Ex parte BLUE CROSS AND BLUE SHIELD OF ALABAMA.
(Re: Martha H. SANDERSON, et al. v. BLUE CROSS AND BLUE SHIELD OF ALABAMA).
BLUE CROSS AND BLUE SHIELD OF ALABAMA v. Martha H. SANDERSON, et al.
1900470, 1900471.
Supreme Court of Alabama.
May 24, 1991.
*470 Lawrence B. Clark and Duncan B. Blair of Lange, Simpson, Robinson & Somerville, Birmingham, for petitioner/appellant.
C. Knox McLaney III and J. Doyle Fuller, Montgomery, and N.S. Hare, Monroeville, and Gareth Lindsay, Elba, for respondents/appellees.
HOUSTON, Justice.
The petition for the writ of mandamus filed by Blue Cross and Blue Shield of Alabama ("Blue Cross") is granted. The trial court is directed to set aside its order designating a class and certifying this as a class action, and it is directed to set aside its order entering a partial summary judgment for the plaintiffs on the issue of liability. All other relief sought by the petitioner is denied.
The appeal filed by Blue Cross is dismissed.
"POOR FINANCIAL HEALTH BESETS BLUE CROSS AND BLUE SHIELD Eleven of Insurer's 73 Plans Fall Short in Measurement of Capital Levels." This headline appeared in the March 27, 1991, issue of The Wall Street Journal in an article warning that there is danger that one or more Blue Cross and Blue Shield plans will fail, leaving their policyholders to pay their own medical bills. Approximately 1,500,000 Alabamians are furnished health care services under health care service plans administered by Blue Cross and Blue Shield of Alabama ("Blue Cross"). The disposition of this important case could ultimately affect the financial health of Blue Cross, could allow those Alabamians who are entitled to have health care benefits paid by Blue Cross to continue to receive such benefits in accordance with the health care benefit plans under which they are covered, and could assure that those *471 entities or individuals obligated to pay the premiums for Blue Cross health care benefits pay no more than they are legally obligated to pay. Therefore, this Court must determine whether the trial court of Coffee County, Elba Division, erroneously determined, as a matter of law, what the contingency reserve of Blue Cross should consist of and whether the trial court rushed to judgment in this action in designating a class pursuant to Rule 23(a), A.R. Civ.P., and in certifying this as a class action pursuant to Rule 23(b)(2).
This proceeding was initiated in the Circuit Court of Coffee County, Elba Division, as an action seeking a declaratory judgment and an order directing refunds of excess reserves alleged to be held by Blue Cross. Martha H. Sanderson, Robert Sanderson, and Rosie Mobley ("original plaintiffs"), all of whom were residents of Monroe County, brought this action "on behalf of themselves and all members of the class composed of all subscribers for health care benefits provided by" Blue Cross. The original plaintiffs requested the trial court to enter "an order allowing this cause to be maintained as a Plaintiffs' class action...[;] a ... judgment declaring that [Blue Cross] violated the law by accumulating an excessive or illegal reserve and/or profit...[;] and a ... judgment declaring that the composition of the Public members of the Board of Directors [of Blue Cross] is illegal and/or void." The original plaintiffs asked the trial court to require that Blue Cross comply with Ala.Code 1975, § 10-4-100 et seq.; to enjoin Blue Cross from maintaining its present board of directors and to supervise the appointment of a "public board of directors" in accordance with § 10-4-103; to enter a judgment declaring "an amount which may be held by Blue Cross as reserve and/or unassigned profits which is reasonably necessary to insure the solvency of [Blue Cross] and compliance of [Blue Cross] with Alabama statutes"; and to "award to the Plaintiffs' attorneys as attorneys for the class a reasonable attorney's fee from the amount ordered refunded or [determined] to be excessive."
Blue Cross filed a motion to dismiss and assigned as grounds the following: failure "to exhaust administrative remedies in the Alabama Department of Insurance [`Insurance Department'] with respect to the matters made the basis of the complaint"; primary jurisdiction of the Insurance Department; lack of subject matter jurisdiction; that the action was time barred; that plaintiffs lacked standing to assert the matters made the basis of the complaint; improper venue; inappropriate venue under § 6-3-21.1; failure to join employers and other entities with which Blue Cross had contracted "for provision or administration of health benefit plans which would be adversely affected by the relief sought"; failure "to join the Commissioner of Insurance of Alabama [`Commissioner'] as a party"; and failure "to state a claim upon which relief could be granted."
The complaint was amended to add five "new" plaintiffs, all of whom were residents of Coffee County and were designated as subscribers for health care benefits provided by Blue Cross. There was no allegation in the amended complaint, or in any subsequent complaint, that these "new" plaintiffs were representing a class.
Blue Cross amended its motion to dismiss and for transfer to encompass the "new" plaintiffs. Six and a half months after this suit was filed, a second amended complaint was filed, adding counts seeking damages for breach of contract, unjust enrichment, and fraud. A third amended complaint added three "new" plaintiffsan individual subscriber who lived in Monroe County and two employers who contracted with Blue Cross for the provision of health care benefits to their employees. There was no allegation that these "new" plaintiffs were representing a class. Blue Cross moved to strike the second and third amendments to the complaint. The fourth and last amendment to the complaint was filed, adding the Commissioner as a party defendant. The Commissioner filed a motion to dismiss, assigning as grounds a failure to exhaust administrative remedies, usurpation of the Insurance Department's *472 primary jurisdiction, lack of subject matter jurisdiction, and improper venue.[1]
Affidavits from 15 individuals were filed. Three of the individuals from whom affidavits were obtained were also deposed. Memoranda of law were filed in support of and in opposition to Blue Cross's and the Commissioner's motions. In response to a request by the trial court that the parties advise the trial court of all pending motions that needed to be ruled on, the parties identified the following motions: (1) Blue Cross's motion to dismiss, as amended; (2) Blue Cross's motion for transfer, as amended; (3) Blue Cross's motion converting its motion to dismiss into a motion for summary judgment; (4) Blue Cross's motion to strike the second and third amendments to the complaint; (5) the Insurance Department's motion to dismiss, or in the alternative, for summary judgment; (6) Blue Cross's motion to strike the last two sentences of the affidavit of James E. Walker III; and (7) the plaintiffs' motion to strike the supplemental affidavit of Harland Dyer. The plaintiffs' motion to strike was denied by the trial court.
Although the original complaint sought "an Order allowing this cause to be maintained as a Plaintiffs' class action," the trial court, without a motion for class designation being filed and without class designation or the certification of this action as a class action being identified by the parties as matters that needed to be ruled on, designated the plaintiff class as follows:
It also certified this as a class action under Rule 23(b)(2), A.R.Civ.P., which provides for certification when, "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." On the same day, the trial court entered an order denying all of Blue Cross's pending motions except its motion to dismiss, which it granted as to all plaintiffs who received health care benefits from Blue Cross under self-insured or self-funded plans (which included original plaintiffs Martha H. Sanderson and Rosie Mobley). By the same order, the trial court entered a partial summary judgment in favor of the plaintiffs, holding as follows:
Blue Cross filed a notice of appeal and a petition for a writ of mandamus or prohibition or both in the Court of Civil Appeals. Upon request of the Court of Civil Appeals and motions by the parties, this Court ordered these proceedings transferred to this Court. We recognize that the issues raised by Blue Cross could have been resolved appropriately on appeal if the trial court had certified its judgment as final pursuant to Rule 54(b), Ala.R.Civ.P. However, because the trial court did not make its judgment final, and therefore appealable, Blue Cross's appeal in this case (case 1900471) is due to be dismissed, but we will address the issues presented in Blue Cross's petition for a writ of mandamus or prohibition *473 or both (case 1900470), which is properly before this Court.
For the reasons set out in this opinion, the writ of mandamus is granted. The trial court is directed to set aside its order designating a class and certifying this as a class action and is directed to set aside its partial summary judgment for the plaintiffs on the issue of liability. All other relief sought by the petitioner is denied.
The original plaintiffs alleged that their claims are typical of claims of the entire class (subscribers for health care benefits provided by Blue Cross); and that, in their representative capacities, they will fairly and adequately protect the interests of the class (subscribers for health care benefits provided by Blue Cross). These are two of the prerequisites that must be alleged and proved before a trial court can determine whether the action can proceed as a class action. Rule 23(a), A.R.Civ.P.; Rowan v. First Bank of Boaz, 476 So. 2d 44, 46 (Ala. 1985).
Count I of the complaint reads, in pertinent part, as follows:
(Emphasis added.)
Blue Cross filed a motion to dismiss and assigned as a separate ground that the original plaintiffs lack standing to assert the matters made the basis of the complaint. To support this motion, Blue Cross filed an affidavit of E. Gene Thrasher, executive vice-president of Blue Cross, who swore that he was familiar with the rating and actuarial aspects of Blue Cross's business and that he was competent to make the statements set forth in the affidavit. In his affidavit, Thrasher swore that Ms. Sanderson and Ms. Mobley were participants in a self-insured health care service plan and, as such, did not "contribute to *474 the contingency reserve" and that "[t]he level of Blue Cross's contingency reserves has no effect whatsoever on benefits available to [Ms. Sanderson and Ms. Mobley] or on the amount of charges for coverage that [Ms. Sanderson and Ms. Mobley] are required to bear under" their self-insured plan. Thrasher further swore that Ms. Sanderson and Ms. Mobley did benefit from the contingency reserve to the extent that "the contingency reserve provides cash flow for payment of benefits from one contract period to the next in the event that advance deposits from" their employer "fall short of claims paid during the contract period."
As to the only other original plaintiff, Robert Sanderson, Thrasher swore that he was a participant in the Medicare Complimentary C-Plus category of business and that this category benefited from Blue Cross's contingency reserve in an amount substantially in excess of the amount of total premiums paid by that category of business. As of March 31, 1988, the date the complaint was filed, the Medicare Complimentary C-Plus category had paid $2,277,558 less in total premiums than it had received in total benefits from the Blue Cross coverage. Thrasher further testified that if Blue Cross had maintained no contingency reserve, Blue Cross would have been required to discontinue the C-Plus program or would have been required to substantially increase premiums under the C-Plus program in order to generate sufficient income to cover the cost of paying the benefits under that program.
This was not controverted by the plaintiffs. Therefore, the undisputed facts before the trial court, when it certified this as a class action and designated the class, showed that the original plaintiffs' claims could not have been typical of the claims of a class that "[has] suffered and continue[s] to suffer economic harm as a result of the illegal actions of [Blue Cross] ... in [regard to] the excessive premiums charged." All of the original plaintiffs benefited from the alleged actions of Blue Cross.
1 Newberg On Class Actions, p. 190 (1977). (Emphasis added.)
The United States Supreme Court has repeatedly held that "`a class representative must be part of the class and "possess the same interest and suffer the same injury" as the class members.'" General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 156, 102 S. Ct. 2364, 2370, 72 L. Ed. 2d 740 (1982), quoting East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S. Ct. 1891, 52 L. Ed. 2d 453 (1977), quoting Schlesinger v. Reservists Committee To Stop The War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974).
Eight additional parties were added as plaintiffs by amendments to the complaint. The beginning paragraph of each amendment, adding these plaintiffs, stated that the complaint was being amended "by adding the following parties as Plaintiffs." Six of the added plaintiffs were individuals: Dennis J. Walford (changed by amendment to "Lawford"), Danny Belcher, Rachel Parrish, Deborah Coleman, Martha Rowe, and Miles Jackson. The paragraphs adding each of these plaintiffs read: "New Plaintiff [name] is over the age of nineteen (19) years and is a resident of [name of county], Alabama, and a subscriber to a health care plan of [Blue Cross]." Two of the added plaintiffs were corporations: Stallworth Timber Company and ABC Enterprises, Inc. The paragraphs adding each of these read: "New Plaintiff [name], an Alabama Corporation, a subscriber to a health care *475 plan of [Blue Cross]." There was no allegation that any added party was suing in a representative capacity, that their claims were typical of the claims of the entire class, or that they could fairly and adequately protect the interests of the class. Rule 23(a), A.R.Civ.P; Rowan v. First Bank of Boaz, supra.
Rule 20(a), A.R.Civ.P., provides, in pertinent part, as follows:
(Emphasis added.)
Therefore, the new plaintiffs could have been joined even if they were seeking only individual relief against Blue Cross. Rule 23(a) provides that one or more members of a class may sue as representative parties on behalf of all "only if" the claims of the representative parties are typical of the claims of the class and the representatives will fairly and adequately protect the interests of the class. The proponent of the class action status bears the burden of alleging this as to each party who purports to represent a class, just as he bears the burden of proof as to each of the four (4) prerequisites of Rule 23(a). Rowan v. First Bank of Boaz, supra.
At oral argument, the plaintiffs contended that their amendments adding parties plaintiff related back to the filing of the original complaint under Rule 15(c), A.R. Civ.P., which provides the following in the only portion that could possibly be relevant:
(Emphasis added.)
Even if the allegations were procedurally adequate, the plaintiffs totally failed to introduce any evidence that Lawford, Belcher, Jackson, Parrish, Coleman, Rowe, Stallworth Timber Company, or ABC Enterprises, Inc., had claims that were typical of the claims of the class and that they would fairly and adequately protect the interests of the class.
The uncontroverted evidence shows: (1) that Coleman had no Blue Cross coverage; (2) that Rowe was a member of a self-insured plan, as were original plaintiffs Ms. Sanderson and Ms. Mobley, and, therefore, could not be representative of, or protect the interests of, the class described in the complaint, for the same reason that Ms. Sanderson and Ms. Mobley could not; and (3) that Jackson had Medicare Complimentary C-Plus coverage, and, therefore, could not be representative of, or protect the interests of, the class described in the complaint, for the same reason that Mr. Sanderson could not.
There is no evidence that the other added plaintiffs are representative of the class described in the complaint or could fairly and adequately protect the interests of the class described in the complaint. The burden to prove each of the four (4) prerequisites of Rule 23(a) is on the proponents of the class action (the plaintiffs in this case), and they have failed to meet this burden. Rowan v. First Bank of Boaz, supra.
On the same date that the trial court entered its order on class action status, it dismissed those named plaintiffs who were covered under self-insured plans administered by Blue Cross. There is uncontradicted evidence that this includes Ms. Sanderson, Ms. Mobley, and Ms. Rowe. No appeal has been taken from this action of the trial court.
We cannot determine from the pleadings or the record whether any of the other plaintiffs were "covered under self-insured funds administered by Blue Cross." We do *476 know that the group health benefit plans of which Dennis J. Walford and Parrish are participants and the health benefit plans maintained by Stallworth Timber Company and ABC Enterprises, Inc., are employee welfare benefit plans governed by the Employee Retirement Income Security Act of 1974 ("ERISA"); but there is no evidence to show whether these were self-insured plans. There is no evidence of what type plan Dennis Lawford is covered under.
Who were the remaining plaintiffs at the time of the class designation? Did those remaining plaintiffs, other than Mr. Sanderson, sue in a representative capacity; and, if so, are they representative of the class described in the complaint? Can the remaining plaintiffs fairly and adequately protect the interests of the class described in the complaint? The burden of presenting sufficient evidence by which these questions could be answered rested with the proponents of class designationthe plaintiffs in this case. They have not met their burden.
If we could assume, and we cannot, that the remaining plaintiffs sue in a representative capacity and are representative of the class described in the complaint (those who "have suffered and continue to suffer economic harm as a result of the illegal actions of [Blue Cross] ... in [regard to] the excessive premiums charged"), we still could not affirm the trial court's designation of the class. In the complaint and its amendments, the remaining plaintiffs are designated as "subscriber[s] to a health care [service] plan of Blue Cross"; and the original plaintiffs brought this action on behalf of "all members of the class composed of all subscribers for health care benefits provided by Blue Cross." The trial court designated the class as:
There was no allegation in any pleading and no proof that any of the remaining plaintiffs sued in a representative capacity, that their claims are typical of the claims of the class, or that they would fairly and adequately protect the interests of "[a]ll..., policyholders, holders of certificates of coverage, and members or participants of group coverage directly issued and underwritten by [Blue Cross] on March 31, 1988."
Likewise, even if it should ultimately be proven, and it has not been, that some of the remaining plaintiffs could fairly and adequately protect the interests of the limited class of "[a]ll subscribers ... of group coverage directly issued and underwritten by [Blue Cross] on March 31, 1988," it is undisputed that some of themMr. Sanderson and Colemancould not.
4 Newberg On Class Actions pp. 47-49, § 22.21 (1985).
Mr. Sanderson and Coleman's conflict with those subscribers who are alleged to be injured by Blue Cross's contingency reserve goes to the specific issue in controversythe size of the contingency reserve from which Mr. Sanderson and Coleman and members of their class have benefited. Coleman and Mr. Sanderson could not adequately represent those class members who have been injured, for they would have a conflict of interest.
The trial court rushed to judgment in designating the class. The designation was made without any motion having been filed asking for the class to be designated and without any evidence being presented to satisfy the prerequisites for designation set out in Rule 23(a).
Rule 23(b) provides: "An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: [subsection (1)(A) or (1)(B) or (2) or (3) of Rule 23(b) is satisfied]." In Rowan v. First Bank of Boaz, 476 So. 2d at 46, Justice Almon wrote:
The trial court ordered "that this case proceed hereafter as a class action under Rule 23(b)(2)." Rule 23(b)(2) provides for class certification if: "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
The trial court rushed to judgment in certifying this as a class action and, in doing so, abused its discretion in certifying this as a class action under Rule 23(b)(2); that abuse of discretion requires this Court to reverse the trial court's order certifying this "as a class action under Rule 23(b)(2)."
The trial court is directed to set aside its order designating a class and certifying this as a class action.
The trial court entered the following "JUDGMENT, ORDER AND DECREE":
(Emphasis in original.)
This order is curious indeed.
Blue Cross is a nonstock corporation organized not for profit, and for the purpose of establishing, maintaining, and operating a health care service plan under which health care services are furnished to that segment of the public who become subscribers to the plan (Ala.Code 1975, § 10-4-100) pursuant to contracts, which are subject to the restrictions contained in Article 6, Chapter 4, Title 10 of the Alabama Code. "Such contracts may provide for more than one class of services or benefits ... and may specify the charge or dues required to be paid for such services or benefits," and the form of the contract must be filed with the Commissioner before the contract is issued or sold. § 10-4-106. The first sentence of § 10-4-109 provides:
(Emphasis added.)
Any changes in rates, charges, fees, and dues must be approved by the Commissioner, who shall approve rates, charges, fees, and dues that are consistent with the standards and factors set forth in the first sentence of § 10-4-109 and who shall disapprove rates, charges, fees, and dues that are not consistent with those standards. Therefore, the Commissioner has the responsibility to assure that the "rates, charges, fees and dues" charged by Blue Cross are "not ... unreasonably high or excessive"; are "adequate to meet the liability assumed under such contracts and all expenses"; and are "adequate for the safeness and soundness of [Blue Cross]." In doing so, the Commissioner must "take into account past and prospective loss experience" of Blue Cross. § 10-4-109.
On April 18, 1986, a Blue Cross contingency reserve document was approved by the Insurance Department. The contingency reserve is the difference between Blue Cross's assets and its liabilities.
How the trial court could have concluded that "[t]he law ... authorizes Blue Cross to hold `contingency reserves' equal to no more than 4 months of its most recent 12 months of claims and operating expenses" is beyond the comprehension of this Court. The law, § 10-4-109, authorizes Blue Cross to charge rates, charges, fees, and dues that are not unreasonably high or excessive, but are adequate to meet the liability assumed under health care service contracts and all expenses in connection therewith and for the safeness and soundness of Blue Cross. The law sets no "cap" of 4 months of the most recent 12 months of claims and operating expenses. Who determines the rates, charges, fees, and dues that Blue Cross can charge? The Commissioner makes that determination, because he is charged with the duty of approving only those rates, charges, fees, and dues that are not unreasonably high or excessive, but are adequate to meet the liability assumed under contracts and all expenses in connection therewith and for the safeness and soundness of Blue Cross, and with the duty of disapproving "such rates, charges, fees and dues which are not consistent with [those] standards and factors." § 10-4-109.
Harland Dyer, a consulting actuary for the Insurance Department during the time since 1981, which encompasses the administrations of two Democratic Governors and one Republican Governor, swore to the following:
Likewise, how the trial court could have found "[as a matter of law] that the claims and expenses of self-insured funds administered by Blue Cross cannot be considered in determining the proper level of surplus which can be held by Blue Cross," is beyond the comprehension of this Court.
In his supplemental affidavit (filed February 17, 1989, according to the case action summary sheet) (R. 1541), Dyer swore as follows:
Having considered the 1544 pages of the original record, the 9 pages of the first and the 55 pages of the second supplemental records, and having reviewed §§ 10-4-100 through 10-4-115 (the entire article applicable to "Health Care Service Plans"), we cannot determine how the trial court concluded "as a matter of law" that Blue Cross could hold a contingency reserve measured only by the claims and operating expenses attributable to its underwritten lines of business. It may well be that Blue Cross "has put an unjustifiable reserve burden on the subscribers of the underwritten business," as testified to by Charles Ray Skinner of Monroeville, a retired insurance examiner with the State of Alabama, in his affidavit (Supplemental R. 8), but that is not determinative of the case before us. Skinner swears:[2]
Skinner does not specify what he means by "subscribers only" in his affidavit. Each plaintiff, including those covered by self-insured plans and C-Plus Medicare supplement plans, identified himself or herself as a "subscriber" to a health care service plan of Blue Cross.
Skinner does not specify why it is "improper to include claims and expenses for services rendered for self-insured plans." The contingency reserve document did not limit the claims and expenses to claims and expenses of underwritten plans. Dyer, who helped formulate the plan with the Insurance Department and Blue Cross, swore that it was necessary to include the claims and expenses of self-insured plans to assure the stability and viability of Blue Cross. It could well be that, as Skinner asserted, the contingency reserve plan does put an "unjustifiable reserve burden" on some subscribers of underwritten business, because the record shows that subscribers to self-insured plans receive the benefit of the contingency reserve plan without contributing to that plan. The record also shows that subscribers to the C-Plus Medicare Complimentary plan have received very substantial benefits from the contingency reserve plan without contributing to that plan. However, that is not determinative of the case before us. The case before this Court and the case that was before the trial court involved the excessiveness vel non of the entire contingency reserve. There is no way that the trial court could have determined from the record that the entire contingency reserve of Blue Cross was excessive, as a matter of law, without abusing its discretion.
As a matter of law, Blue Cross cannot require the public to pay rates, charges, fees, and dues that are unreasonably high or excessive. We cannot, and the trial court could not with the evidence before it, hold that, as a matter of law, the manner of computing the contingency reserve requires *481 the public to pay rates, charges, fees, and dues that are unreasonably high or excessive. At best, this is a disputed fact question that needs further development. The complaint asked the court to "declare an amount which may be held by Blue Cross as reserve and/or unassigned profits which is reasonably necessary to insure the solvency of [Blue Cross] and the compliance of [Blue Cross] with Alabama statutes."
Dyer swears that in order to assure the financial stability and viability of Blue Cross, which must be considered according to § 10-4-109 ("the safeness and soundness" of Blue Cross), it is necessary that the self-insured line of claims administered by Blue Cross be included in order to determine whether the rates, charges, fees, and dues are unreasonably high or excessive. The plaintiffs contended in their briefs and during oral argument that Blue Cross, as a matter of law, had no legal right to administer self-insured plans, since Blue Cross is purely a statutory creature, whose purpose and whose powers are all derived from §§ 10-4-100 through 10-4-115, Blue Cross & Blue Shield of Alabama v. Protective Life Insurance Co., 527 So. 2d 125 (Ala.Civ. App.1987); and, therefore, that because it is illegal for Blue Cross to administer such plans, the claims and operating expenses of such plans cannot be included in determining the contingency reserve. Section 10-4-100 provides that health care service corporations can be organized for the purpose of establishing, maintaining, and operating health care service plans under which health care services are furnished to those in the public who become subscribers to such plans pursuant to contracts. The corporations organized may then enter into contracts with the public for benefits under its health care service plans, subject to the restrictions contained in Article 6, Chapter 4, Title 10. The contracts may provide for more than one class of services or benefits and may specify the charges or dues required to be paid for such services or benefits. § 10-4-106.
This contention of the plaintiffs is not covered by the pleadings; and the case gets "curiouser and curiouser," for the plaintiffs now seek to invalidate, among others, the Financial Agreement between Blue Cross and the Alabama State Employee's Insurance Board and the Employees Health Benefit Plan for employees of Kleinert, Inc., which happen to be two of the plans included in the record, for they were plans participated in by three of the plaintiffs who brought this action. This Court certainly will not invalidate those plans when the Alabama State Employee's Insurance Board and Kleinert, Inc., are not parties to this action and were not adequately represented in this action.
From reading Ala.Code 1975, §§ 10-4-100 through 10-4-115, we cannot say that Blue Cross has no legal right to administer self-insured plans. If that remains the plaintiffs' contention, the plaintiffs must amend their complaint to allege this and must make certain that those persons, corporations, governmental entities, and others who have entered into contracts with Blue Cross for Blue Cross to administer self-insured plans, are made parties to this action or have their interests adequately represented in this action.
There are genuine issues of material fact that must be resolved by the trier of fact, and the trial court rushed to judgment and improperly entered partial summary judgment. The court is directed to set aside its partial summary judgment for the plaintiffs on the issue of liability.
Having determined that the trial court improperly designated a class, improperly certified this action as a class action, and improperly entered summary judgment, we must determine whether the Circuit Court of Coffee County, Elba Division, should be directed to dismiss the case for failure to exhaust administrative remedies or whether it should be directed to conduct further proceedings.
The action in the trial court is a declaratory judgment action against Blue Cross. Blue Cross is a domestic corporation that was doing business by agent in *482 Coffee County at the time the cause of action arose. In accordance with Ala.Code 1975, § 6-3-7 ("a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose"), Blue Cross could be sued in Coffee County.
As we understand the plaintiffs' action, it is based upon an allegation that Blue Cross's contingency reserve is in excess of an amount adequate for Blue Cross to meet the liability assumed under health care service plans and all expenses in connection therewith and is in excess of an amount adequate for the safeness and soundness of Blue Cross, taking into account past and prospective loss experience; and upon the allegation, therefore, that the plaintiffs, as subscribers to health care service plans of Blue Cross, paid rates, charges, fees, and/or dues that were "unreasonably high or excessive" and therefore violated Ala. Code 1975, § 10-4-109. The plaintiffs seek a declaration that they (and, presumably, the class that they may ultimately be designated to represent) have paid unreasonably high or excessive rates, charges, fees, and dues, and seek a refund of any amount that may ultimately be determined to be excessive. This may be done by a declaratory judgment action filed in the Circuit Court of Coffee County.
It is true that the Legislature has created a Department of Insurance (Ala.Code 1975, § 27-2-1) and has provided for a commissioner of insurance, who shall be selected with special reference to his training and experience and who shall be appointed by the Governor (Ala.Code 1975, § 27-2-2). The commissioner of insurance has the powers and duties provided by Ala.Code 1975, § 27-2-7, and "such additional powers and duties as may be provided by other laws of this state." Ala.Code 1975, § 27-2-7(9). In addition to the powers and duties listed in the Alabama Insurance Code (Title 27), the Commissioner has duties and powers prescribed in Ala.Code 1975, Article 6, Chapter 4, of Title 10, especially those powers and duties specified in §§ 10-4-106, -109, -110, -111, -112, -113, and -114. Included within those powers and duties are the power and duty to approve rates, charges, fees, and dues that are consistent with, and to disapprove rates, charges, fees, and dues that are not consistent with, the requirement that "rates, charges, fees and dues to be paid by the public for benefits under [health care service plans] and for contracts or certificates covering same shall not be unreasonably high or excessive, shall be adequate to meet the liability assumed under such contracts and all expenses in connection therewith, shall be adequate for the safeness and soundness of the corporation and shall take into account past and prospective loss experience." § 10-4-109.
Blue Cross argues that the Circuit Court of Coffee County, Elba Division, has no jurisdiction to try this cause until the plaintiffs have exhausted their administrative remedies. Blue Cross argues that the procedure for conducting an administrative proceeding based on claims such as the plaintiffs make has been provided for in Departmental Regulation No. 65 promulgated by the Commissioner, because that regulation provides not only for hearings under the Alabama Insurance Code,[3] but "also for any hearing held by the Commissioner under his discretionary power to hold hearings," which Blue Cross says would be broad enough to cover hearings under § 10-4-109.
Plaintiffs contend that Regulation No. 65 is not applicable because of the provisions of § 10-4-115 ("[n]o statute ... applying to insurance companies shall be applicable to [health care service corporations] ... or to any contract made by such corporation[s] unless expressly mentioned in this article and made applicable"). Plaintiffs further contend that the Commissioner has set the rates, charges, fees, and dues that *483 Blue Cross can charge by approving the contingency reserve plan and that Blue Cross is collecting rates, charges, fees, and dues in excess of what has been approved by the Commissioner.
We need not decide whether Departmental Regulation No. 65 is applicable in determining or challenging the rates, charges, fees, or dues to be charged or that were charged by health care maintenance corporations incorporated and operating under the provisions of Ala.Code 1975, Article 6, Chapter 4, Title 10.
The Commissioner can promulgate reasonable rules and regulations (§§ 27-2-17(a) and 27-2-7(9)) to assure that rates, charges, fees, and dues to be paid or that are being paid by the public for benefits under health care service plans and contracts or certificates covering the same are not unreasonably high or excessive but are adequate to meet the liability assumed under such contracts and all expenses in connection therewith and adequate for the safeness and soundness of the health care service corporation incorporated and operating under Ala.Code 1975, Article 6, Chapter 4, Title 10. However, this action is not a rate case. In this action, plaintiffs contend that the Commissioner has acted in setting the appropriate rates, by approving the contingency reserve plan, and that Blue Cross has charged rates in excess of the amount that has been approved by the Commissioner in the contingency reserve plan. Plaintiffs also seek a refund for the amount determined to have been an excessive charge by Blue Cross. The plaintiffs' claims can be presented in a declaratory judgment action filed in any county in which the health care service corporation does business by agent or was doing business by agent when the action was filed, without first having an administrative hearing before the Commissioner under the Alabama Administrative Procedure Act, because the Commissioner would not have the power to grant all of the relief sought.
With this case in its present posture, we cannot hold that the trial court abused its discretion in failing to remove this action in accordance with Ala.Code 1975, § 6-3-21.1 ("Change or transfer of venue for convenience of parties and witnesses or in interest of justice").
The trial court may now determine whether the plaintiffs, or any of them, who have not been dismissed may sue as representative parties. They may do so only if "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, ... and (4) the [plaintiffs] will fairly and adequately protect the interests of the class." Rule 23(a). In this case, the plaintiffs bear the burden of alleging and proving that these requirements are met.
If the plaintiffs may sue as a class, the class must be identified with particularity, in accordance with the allegations of the complaint and proof of the four prerequisites to class certification in Rule 23(a).
If the prerequisites of Rule 23(a), A.R. Civ.P., are satisfied, the trial court may allow this action to proceed as a class action if there is proof of any one of the four conditions specified in Rule 23(b).
1900470 WRIT GRANTED. The trial court is directed to set aside its order designating a class and certifying this as a class action and to set aside its partial summary judgment for the plaintiffs on the issue of liability. All other relief sought by the petitioner is denied.
190471 APPEAL DISMISSED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Pursuant to this Court's opinion in Ex parte Weaver, 570 So. 2d 675 (Ala.1990), the Commissioner's appeal was dismissed by the Attorney General. The Commissioner was realigned as a party plaintiff.
[2] For all that appears in the case action summary sheets or any other part of the record, Skinner's affidavit was not filed until four months after the motion for summary judgment was granted. However, because the trial court granted the plaintiffs' motion to supplement the record to include this affidavit, we will assume that the trial court had the affidavit before it and considered it in ruling on the motion for summary judgment; therefore, we have considered it.
[3] Alabama Code 1975, § 10-4-115, provides that "no statute of this state applying to insurance companies shall be applicable to [health care service corporations] ... or to any contract made by such corporation unless expressly mentioned in [Ala.Code 1975, Article VI, Chapter 4, Title 10] and made applicable...." | May 24, 1991 |
99e5bbcd-6ba4-4869-860a-485d6824fe2c | Baxter v. SouthTrust Bank of Dothan | 584 So. 2d 801 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 801 (1991)
Louise BAXTER
v.
SOUTHTRUST BANK OF DOTHAN.
89-1496.
Supreme Court of Alabama.
May 31, 1991.
Rehearing Denied July 26, 1991.
*802 Joseph Daniell Whitehead, Dothan, for appellant.
James D. Farmer of Farmer, Farmer & Malone, Dothan, for appellee.
SHORES, Justice.
Louise Baxter appeals from an order denying equitable relief against SouthTrust Bank of Dothan, N.A. ("SouthTrust"). We affirm.
On January 18, 1985, Baxter sold to Charles F. Griffith a building located in downtown Ashford, Alabama, for $40,000; Baxter agreed to finance the purchase for 10 years at 10% interest per annum. Along with the building, the purchase price covered fixtures or items of personal property associated with the building: front and back doors, lights, awnings, ceiling fans, gas heaters, a gas tank, shelves, and built in cabinets. A warranty deed conveying the building to Griffith was filed with the Houston County probate office on May 17, 1985; a deed correcting the description of the building was filed on June 6, 1985.
On February 8, 1985, Baxter and Griffith executed a document entitled "Indenture";[1] Baxter drafted this document herself, and she contends that it is a mortgage against the building. Baxter did not record the Indenture until August 11, 1986, 18 months after its execution. No other documents relating to the building, its fixtures, or other property associated with the building were executed by either Baxter or Griffith.
Before purchasing the building, Griffith approached Ronnie Owens, a commercial loan officer with SouthTrust, about a loan, for which he subsequently applied. In his credit application, Griffith noted that the proceeds of the loan were to go toward the purchase of store stock and the building in question, and that the building would be used as collaterial for the loan. Griffith later delivered a financial statement to SouthTrust (dated May 9, 1985), in which a mortgage to Baxter was noted. On May 24, 1985, SouthTrust acquired a real estate mortgage from Charles Griffith, Nancy E. Griffith, and Frank D. Griffith; it was recorded on June 26, 1985. Before SouthTrust acquired the mortgage, a title search was conducted and no mortgage or other recorded instrument concerning the building in question was found. A corrective mortgage between the Griffiths and SouthTrust was recorded on June 25, 1986. SouthTrust obtained a final title opinion dated June 26, 1986, that reflected its first mortgage on the building.
In November 1987, after experiencing financial difficulties, Charles Griffith was forced to close his business. Griffith rented out the building to another business, initially paying the rental income to Baxter, but he was later instructed by Manning Sanders (a loan officer for SouthTrust) to pay the rental income directly to SouthTrust. For a four-month period, SouthTrust forwarded the Griffith rental income *803 to Baxter, but it ceased this practice when Griffith filed a Chapter 7 bankruptcy petition. On March 11, 1988, SouthTrust foreclosed on the mortgage and purchased the building at a foreclosure sale.
Baxter filed a two-count complaint against the Griffiths and SouthTrust. Count 1 sought a determination that: (a) the "Indenture" was a valid legal mortgage, or, in the alternative, was an equitable mortgage; and (b) that the Indenture was entitled to priority over SouthTrust's recorded, executed mortgage. Count 2 stated a conversion claim against SouthTrust, seeking both actual and punitive damages. The trial court entered a summary judgment for SouthTrust on Baxter's conversion claim, and, after hearing the rest of the case, which was presented ore tenus, entered a final judgment in favor of SouthTrust. It is from this judgment that Baxter appeals.
The standard of review applicable to judgments based upon evidence presented ore tenus is well established and quite rigorous. As this Court stated in Humphries v. Whiteley, 565 So. 2d 96 (Ala.1990):
565 So. 2d at 102. See also Deloney v. Chappell, 570 So. 2d 622 (Ala.1990) (citing Humphries).
After a careful review of the record, we conclude that the judgment of the trial court is not plainly and palpably wrong.
Baxter contends that the Indenture she and Griffith executed should be treated as an equitable mortgage and should be given priority over SouthTrust's mortgage. To prove that the Indenture was indeed an equitable mortgage, Baxter must show: 1) that Griffith (as mortgagor) had a mortgageable interest in the property sought to be charged as security; 2) that a definite debt is due from Griffith (the mortgagor) to Baxter (the mortgagee); and 3) that their intent was to secure the debt by mortgage, lien, or charge on the property in question. Hall v. Livesay, 473 So. 2d 493, 494 (Ala.1985). Baxter has failed in proving that the Indenture is an equitable mortgage; specifically, she has failed to prove the third element of an equitable mortgageintent.
On cross-examination, Baxter admitted that it was not her intent to hold a mortgage on the building:
Baxter had been a director of the First National Bank of Ashford for about 30 years, and she testified that in that capacity she became very familiar with lending money and with financial transactions:
It is clear from her testimony that Baxter did not intend to hold a mortgage on the building she sold to Griffith, and that she was aware of the requirements of acquiring a mortgage.
Under these facts, it is clear that SouthTrust's mortgage takes priority over Baxter's "Indenture," even if it could be construed as a mortgage. Ala.Code 1975, § 35-4-90(a), provides:
As we noted in BancBoston Mortgage Corp. v. Gobble-Fite Lumber Co., 567 So. 2d 1337, 1338 (Ala.1990), Alabama is a "title theory" state; therefore we have adopted the maxim "first in time, first in right." A mortgage will pass legal title to the mortgagee, leaving the mortgagor with an equity of redemption, and the priority of persons claiming an interest in the same property will be determined by the order in which they filed for record. Id., at 1338, citing Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So. 2d 138 (Ala.1990).
Baxter recorded her Indenture on August 11, 1986; SouthTrust had recorded its mortgage on May 24, 1985, and a corrective mortgage on June 26, 1985. SouthTrust was the first to file its mortgage; thus its interest in the object of the mortgagethe building in Ashford, Alabamatakes priority over any interest that Baxter may have through the Indenture.
Count 2 of Baxter's complaint alleged conversion by SouthTrust of fixtures and/or items of personal property associated with the building. The trial court entered a summary judgment for SouthTrust on the conversion count of Baxter's complaint. Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether 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 review the summary judgment motion in a light most favorable to the nonmovant, and, in reviewing a summary judgment, this Court is limited to reviewing the 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 Ala.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 a properly supported motion for summary judgment, Baxter must present "substantial evidence" that SouthTrust committed conversion. We have defined "substantial evidence" as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Baxter has not presented such evidence.
To constitute conversion, there must be a wrongful taking or a wrongful *805 detention or interference, an illegal assumption of ownership, or an illegal use or misuse of another's property. Covington v. Exxon Co. U.S.A., 551 So. 2d 935, 938 (Ala.1989). "The gist of the action is the wrongful exercise of dominion over property in exclusion or defiance of a plaintiff's rights, where said plaintiff has general or special title to the property or the immediate right to possession." Ott v. Fox, 362 So. 2d 836 (Ala.1978) (emphasis added). An action for conversion will not lie for the taking of real property, Faith, Hope & Love, Inc. v. First Alabama Bank, 496 So. 2d 708, 711 (Ala.1986), nor will it lie for the taking of personal property that has been incorporated into real property. Hatfield v. Spears, 380 So. 2d 262, 265 (Ala.1980). Kemp Motor Sales v. Lawrenz, 505 So. 2d 377, 378 (Ala.1987).
Baxter testified that the sale of the building to Griffith included all fixtures and personal property within the building; thus, title to those fixtures and personal property passed to Griffith when title to the building was conveyed to him by Baxter. Baxter did not retain an enforceable security interest or lien upon any of the fixtures or personal property in question through which she could recover possession. See Ala.Code 1975, § 7-9-203(1). There was no conversion of Baxter's property, for SouthTrust took possession of no fixtures or personal property that Baxter either owned or had any right to possess.
The summary judgment in favor of SouthTrust on the conversion claim is affirmed, and the trial court's order denying Baxter equitable relief is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] A copy of this instrument is appended as exibit A to this opinion. | May 31, 1991 |
84af0130-8ba8-4cf4-b860-18c5698bd9f4 | Bonner v. Electric Power Bd. | 583 So. 2d 260 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 260 (1991)
Lisa Marie BONNER, individually and as administratrix of the Estate of Greg Bonner, deceased
v.
ELECTRIC POWER BOARD OF the CITY OF SCOTTSBORO.
Connie D. HUBBARD, individually and as administratrix of the Estate of Randy C. Hubbard, deceased
v.
ELECTRIC POWER BOARD OF the CITY OF SCOTTSBORO.
89-1076, 89-1077.
Supreme Court of Alabama.
June 7, 1991.
*261 Gary L. Aldridge and Kevin Hawkins of Cherry, Givens, Tarver, Aldridge & Hawkins, Birmingham, for appellants.
John W. Clark, Jr. and Judith E. Dolan of Clark & Scott, Birmingham, for appellee.
KENNEDY, Justice.
Lisa Marie Bonner, individually and as administratrix of the estate of her husband Greg Bonner, and Connie Hubbard, individually and as administratrix of the estate of her husband Randy Hubbard, filed separate actions, which were consolidated; both actions alleged negligence and wantonness by the Electric Power Board of the City of Scottsboro ("Power Board") for failing to insulate electric lines that were involved in an accident that killed their husbands.[1] At trial, the court charged the jury on the negligence claims, but refused to charge the jury on wantonness. The jury returned a verdict favoring the Power Board. Ms. Hubbard and Ms. Bonner filed a motion for new trial based on the trial court's refusal to charge the jury on wantonness, but the trial court denied that motion.
These consolidated actions were pending on June 11, 1987, and thus the scintilla evidence rule applies. § 12-21-12, Ala. Code 1975; Kizziah v. Golden Rule Insurance Co., 536 So. 2d 943 (Ala.1988).
On May 25, 1984, Greg Bonner and Randy Hubbard were working for Steel Systems, Inc., performing steel erection work on a construction site located at the Lozier Corporation ("Lozier") plant in Scottsboro. After lunch, Mr. Bonner and Mr. Hubbard were assigned to stand on either end of a steel beam to help stabilize and guide it as it was lifted from the ground to the bed of a vehicle. The steel beams were then to be transported from the location where Mr. Bonner and Mr. Hubbard were working, at the western side of the Lozier plant, to the southern side of the plant, where the construction site was located.
As Greg and Randy's supervisor used a crane to lift the steel, he raised the boom of the crane into three uninsulated electric lines. The electrical current traveled through the crane into the steel beams and electrocuted Mr. Bonner and Mr. Hubbard. The insulation provided by the rubber tires on the crane protected the supervisor from electrocution.
Ms. Hubbard and Ms. Bonner argue two theories under which they claim the Power Board wantonly failed to insulate the power *262 lines. The first theory is based on action (or nonaction) of H.K. Thomas, a lineman who had worked 22 years for the Power Board. The evidence indicates that 30 minutes before the accident occurred, Thomas was at the Lozier plant to check some equipment that supplies electricity to the plant; that he parked his vehicle at approximately the same location as where the accident occurred; that he walked past a location where workers were eating lunch under a tree and waved at them; and that the crane involved in the accident was parked near the tree where the workers were eating lunch. Thomas testified that he saw the steel beams located near the power lines, although, as even the plaintiffs admit in their brief, "it is unclear exactly how close he perceived the steel to be to the lines." Thomas also testified that he had the materials in his vehicle to insulate the electric lines and that it would have taken approximately one hour to do so; that he knew there was some construction going on at the plant; and that he knew the electricity from the lines would electrocute a person.
Wanton conduct is "an acting with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury." Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142, 145 (Ala.1987). Ms. Hubbard and Ms. Bonner contend that the evidence indicates that Thomas acted wantonly because he saw the crane, saw the steel beams near the power lines, and knew there was construction going on at the plant, but chose not to insulate the power lines, despite what they contend was a knowledge or consciousness, based on the facts set out above, that the crane might run into the electric lines while carrying the steel and thus electrocute someone. That argument does not withstand scrutiny.
There is no direct testimony that Thomas saw the crane, although the evidence creates an inference that Thomas saw it. "One fact cannot be inferred from another fact which is itself an inference, since an inference cannot be grounded on an inference." Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So. 2d 274 (1964). Accordingly, the inference that Thomas saw the crane, even coupled with his testimony that he saw the steel beams somewhere near the electric lines, cannot properly serve as a basis for the inference that Thomas somehow knew or was conscious that the crane would be used to move the steel beams. Without even evidence that Thomas knew or was conscious that the crane would be used to move the steel beams, the plaintiffs' first theory of wantonness fails.
The plaintiffs' second theory of wantonness is that the evidence indicates that Thomas and Louis Price, the manager of the Power Board, wantonly failed to "ascertain the conditions at the Lozier plant, including the fact that a crane was being used to move steel beams under the Power Board's [electric] lines." We do not hold that under the facts of this case the Power Board had the general duty to ascertain everywhere at the plant someone might operate a crane and make it contact electric lines. Considering the substance of their argument, we construe the plaintiffs' claim to address more specific conduct: the plaintiffs seem to claim that because Thomas and Price, agents of the Power Board, knew of ongoing construction at the plant, they had a duty, which they wantonly failed to perform, to protect the operators of machines on the construction project and those who might be harmed from the operation of those machines by contact with electric lines.
The plaintiffs have alleged nothing concerning Thomas in this claim that changes our analysis of their evidence presented in relation to their first claim. Once again, the plaintiffs cannot use the inference that he saw the crane to prove his consciousness or knowledge that the crane would contact the power lines while moving steel beams. Accordingly, they cannot show that Thomas consciously or with knowledge of danger disregarded the alleged duty described above.
As to Mr. Price, the evidence indicates that he knew there was some construction *263 being conducted at the plant but did not know details concerning the construction, such as the location of the construction site or that there were steel beams being transported by cranes, or that the construction involved steel beams; that the actual construction site was located on the south side of the plant, and the accident occurred on the west side of the plant; that federal regulations require notification to a power company whenever a crane is being operated within 10 feet of an electric line and state law requires notification to a power company whenever a crane is operated within 6 feet of an electric line, but neither the Power Board nor Price received such notification; that Price first became aware of the steel beams and the crane when he went to the site following the accident. This does not provide even a scintilla of evidence that Price consciously or with knowledge of danger disregarded the alleged duty described above.
When the defendant makes a prima facie showing that it was not wanton, and the plaintiff fails to produce a scintilla of evidence of wantonness, the issue of wantonness should not be submitted to the jury. Joseph v. Staggs, 519 So. 2d 952, 954-55 (Ala.1988). If there is no evidence to support a party's proposed jury instruction, then the refusal of the instruction is not reversible error. Ford Motor Co. v. Phillips, 551 So. 2d 992, 995 (Ala.1989).
The judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] Ms. Hubbard and Ms. Bonner's actions claimed damages from several other defendants, who either settled with the plaintiffs or had summary judgment entered in their favor. The Power Board is the only defendant involved in this appeal. | June 7, 1991 |
baf1bd8c-a50a-48a8-9b62-a6cb8dcde254 | Cherry, Bekaert & Holland v. Brown | 582 So. 2d 502 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 502 (1991)
CHERRY, BEKAERT & HOLLAND
v.
J. Charles BROWN.
J. Charles BROWN
v.
CHERRY, BEKAERT & HOLLAND.
89-1004, 89-1015.
Supreme Court of Alabama.
May 31, 1991.
*503 Victor T. Hudson and William W. Watts III of Reams, Vollmer, Phillips, Killion, Brooks & Schell, Mobile, for appellant/cross appellee.
Steve Olen and George W. Finkbohner III of Finkbohner, Lawler & Olen, Mobile, for appellee/cross-appellant.
ADAMS, Justice.
The accounting firm of Cherry, Bekaert & Holland, (hereinafter "CB & H"), appeals from the trial court's summary judgment in favor of J. Charles Brown in his action for a judgment declaring that paragraph 15.9 of the CB & H partnership agreement entered into by Brown after he began work with CB & H constituted an unenforceable covenant not to compete under Alabama law. Brown cross-appeals from the trial court's entry of summary judgment in favor of CB & H on his claim that CB & H had tortiously interfered with his business. We affirm.
In 1979, Brown became a partner in CB & H's Mobile, Alabama, office. In 1980, he was made an equity partner in CB & H, and he executed CB & H's partnership agreement in 1981. Article 15 of the partnership agreement contained the following paragraphs relevant to this appeal:
Brown signed the agreement in Mobile and sent it to CB & H's main office in Charlotte, North Carolina, to be executed by the managing partner. The agreement then became effective on January 14, 1981, after it was signed by the managing partner. The agreement also specified that the parties agreed that it was made in North Carolina and that its validity and construction were governed by North Carolina law.
In January 1988, Brown withdrew from CB & H. Some of the clients Brown served while working for CB & H retained him after he left CB & H. On March 15, 1989, CB & H sued Brown in North Carolina, seeking $259,801.50, an accounting, and specific enforcement of paragraph 15.9 of the partnership agreement. CB & H alleged that Brown took 100 CB & H clients when he left the partnership, without paying for them. On May 18, 1989, Brown sued in Mobile Circuit Court, alleging tortious interference with his business and seeking a judgment declaring that paragraph 15.9 of the CB & H partnership agreement was a covenant not to competea restraint of tradeand was void and unenforceable under Alabama Code 1975, § 8-1-1. On August 2, 1989, Brown filed a motion for a summary judgment on his claim that paragraph 15.9 was void under Alabama law. CB & H filed a motion to dismiss the Alabama proceeding for lack of subject matter jurisdiction, based on the prior pending suit in North Carolina. On February 21, 1990, the trial court entered a summary judgment in favor of Brown on his claim that paragraph 15.9 was void under Alabama law as a covenant not to compete. The trial court also denied CB & H's motion to dismiss for lack of subject matter jurisdiction, but entered a judgment in favor of CB & H on Brown's allegation of tortious interference with his business.
CB & H appeals that portion of the summary judgment declaring that paragraph 15.9 constitutes a covenant not to compete and denying CB & H's motion to dismiss. Brown cross-appeals from the judgment in favor of CB & H on his claim of tortious interference with business. CB & H raises the following issues for our review: (1) whether the trial court lacked subject matter jurisdiction over a declaratory judgment action filed subsequent to the filing of the North Carolina action at law involving the same parties and the same issues; (2) whether the validity of paragraph 15.9 under Alabama law was a moot questionnot properly the subject of declaratory relief; i.e., whether North Carolina law would govern the validity of the provision in the North Carolina proceedings; (3) whether, the requested declaratory relief was furthermore moot on the grounds that, under Alabama choice of law principles, North Carolina law governed the validity of an agreement to pay money that was made in North Carolina and that made the money payable to a North Carolina partnership; and (4) whether an agreement by a withdrawing accountant to purchase any clients of his former partnership that he elects to continue to serve is an unenforceable covenant not to compete under Ala.Code 1975, § 8-1-1(a). On his cross-appeal, Brown raises the issue of whether the trial court erred in entering a judgment in favor of CB & H on his claim of tortious interference with business; he argues that there was no motion or pleading before the court upon which to base such a ruling.
CB & H first argues that the trial court lacked subject matter jurisdiction over this action because of the prior pending action in North Carolina involving the *505 same parties and the same issues. CB & H's argument on this point is unpersuasive. While it is true that CB & H filed an action in North Carolina prior to Brown's action in Alabama, the mere fact that there is a prior pending action in another state does not divest the trial court of subject matter jurisdiction. In Galbreath v. Scott, 433 So. 2d 454 (Ala.1983), this Court addressed a similar situation of a prior suit pending in another state. Finding that the prior suit, filed in Florida and involving the same parties and the same issues, did not bar a subsequently filed suit in Alabama, the Court stated:
Galbreath, 433 So. 2d at 456 (quoting R. LeFlar, American Conflicts Law § 75 (3d ed. 1977). In the present case, CB & H's prior suit is still pending in North Carolina, as no judgment has been rendered in it. Thus, the prior pending suit in North Carolina has no effect on Brown's right to bring suit in Alabama, and the trial court properly retained jurisdiction over the action.
Having concluded that the trial court did have jurisdiction over Brown's suit, we must now focus on CB & H's partnership agreement, specifically paragraph 15.9. Although CB & H raises several issues related to paragraph 15.9 for our review, the essential question we must resolve is whether paragraph 15.9 is a covenant not to compete and whether it is enforceable under applicable Alabama law. We begin our analysis with Ala.Code 1975, § 8-1-1, the relevant statute concerning covenants not to compete. Section 8-1-1 provides:
Subsection (a) provides the general prohibition of covenants not to compete and expressly applies to professionals. Subsections (b) and (c) provide limited exceptions to the general prohibition in subsection (a). However, these exceptions do not apply to professionals. Thompson v. Wiik, Reimer & Sweet, 391 So. 2d 1016 (Ala.1980); Odess v. Taylor, 282 Ala. 389, 211 So. 2d 805 (1968). Because the present case involves a professional, an accountant, the exceptions contained in subsections (b) and (c) do not apply, and we are left with the general prohibition of covenants not to compete. See Mann v. Cherry, Bekaert & Holland, 414 So. 2d 921 (Ala.1982); Thompson v. Wiik, Reimer & Sweet, 391 So. 2d 1016 (Ala.1980); Gant v. Warr, 286 Ala. 387, 240 So. 2d 353 (1970). It is in light of this policy disfavoring covenants not to compete embodied in § 8-1-1 that we must view paragraph 15.9 of the CB & H partnership agreement.
CB & H stipulates that paragraph 15.8 contains a covenant not to compete, but it maintains that paragraph 15.9 is an alternative *506 to 15.8 and is merely a "buy/sell" agreement, which, by its terms, becomes effective only upon the determination by a court of competent jurisdiction that 15.8 is void and unenforceable as a covenant not to compete. CB & H also recognizes in paragraph 15.9 the Alabama policy disfavoring such covenants. These two paragraphs presumably ensure CB & H that it will be able to enforce one of the two provisions against the withdrawing partner in every state, regardless of a particular state's laws concerning covenants not to compete.
While paragraph 15.9 does not explicitly contain a covenant not to compete, the requirements of the paragraph are tantamount to a covenant not to compete and operate in the same manner. Paragraph 15.9 requires that the withdrawing partner purchase any former CB & H client he serves within a 3-year period following his withdrawal from the partnership for an amount equal to 150% of the fees charged to the client by CB & H during the last 12-month period when CB & H served the client. The withdrawing partner must also pay to CB & H the excess of any fees charged by him to the former CB & H client over the fees charged to that client by CB & H. Paragraph 15.9 is clearly an attempt by CB & H to subvert and circumvent the laws and policies of Alabama regarding covenants not to compete. CB & H's attempt to validate this paragraph by admitting that paragraph 15.8 contains the covenant not to compete and recognizing its unenforceability under Alabama law and phrasing 15.9 as a "buy/sell agreement" falls far short. The "purchase" requirements placed on a withdrawing partner by paragraph 15.9 operate as a harsher form of restraint on the practice of accounting than paragraph 15.8. Although paragraph 15.9 does not restrict the practice of accounting on a geographic basis, as in 15.8, it restricts that practice on a much broader monetary basis. The requirements of 15.9 are so harsh and punitive in nature that they virtually operate to prevent the practice of accounting by the withdrawing partner totally. We agree with the trial court's determination that paragraph 15.9 is a covenant not to compete, and, as such, is void and unenforceable under Alabama law. This determination does not, however, end our inquiry into paragraph 15.9. The question now becomes whether to give effect to the parties' choice of North Carolina law to govern this agreement.
CB & H argues that Brown's declaratory judgment action raises a moot question because, it says, North Carolina law governs the construction and validity of the partnership agreement and Brown's requested relief is further moot because, it says, Alabama's choice of law principles require the application of North Carolina law to this agreement. We conclude, however, that CB & H has misstated the law on this point.
The partnership agreement specifies that the parties agree that North Carolina law will govern the construction and validity of the agreement. Alabama follows the principle of "lex loci contractus," which states that a contract is governed by the laws of the state where it is made except where the parties have legally contracted with reference to the laws of another jurisdiction. Macey v. Crum, 249 Ala. 249, 30 So. 2d 666 (1947); J.R. Watkins Co. v. Hill, 214 Ala. 507, 108 So. 244 (1926). Alabama law has long recognized the right of parties to an agreement to choose a particular state's laws to govern an agreement. Craig v. Bemis Co., 517 F.2d 677 (5th Cir.1975). Thus, North Carolina law would seem to govern the present agreement, because CB & H and Brown have apparently chosen the laws of North Carolina to govern it. However, this principle is qualified by the principles set out in Blalock v. Perfect Subscription Co., 458 F. Supp. 123 (S.D.Ala. 1978), and the cases following it.
In Blalock, although the parties to an agreement, which contained a covenant not to compete, chose Pennsylvania law (which enforces covenants not to compete) to govern the agreement, the United States District Court for the Southern District of Alabama held that where the parties' choice of law would be contrary to the fundamental public policies of the forum state, Alabama, the parties' choice of law *507 could not be given effect and that the laws of the forum must control the agreement. That case involved a contract between an Alabama resident and a Pennsylvania corporation. The Blalock court referred to the Restatement Second of Conflict of Laws, §§ 187 and 188 for guidance. Section 187 provides, in part:
Comment (g) to § 187 states further:
The comments to § 187 also provide that in order for a policy to be considered fundamental it must be "a substantial one" and "may be embodied in a statute which makes one or more kinds of contracts illegal or which is designed to protect a person against the oppressive use of superior bargaining power." The Blalock court went on to hold that because the covenant not to compete, which would be enforced under Pennsylvania law, "flies directly in the face of the public policy of Alabama as set out by statute," the parties' choice of law could not be given effect, and the law of Alabama, namely § 8-1-1, governed the agreement. See also Hughes Associates, Inc. v. Printed Circuit Corp., 631 F. Supp. 851 (N.D.Ala.1986).
We are faced with a similar situation here. While parties normally are allowed to choose another state's laws to govern an agreement, where application of that other state's laws would be contrary to Alabama policy, the parties' choice of law will not be given effect and Alabama law will govern the agreement. In this case, because the parties have chosen North Carolina law to govern the agreement and North Carolina law would enforce the covenant not to compete set out in paragraphs 15.8 and 15.9, the parties' choice of law must fall. This Court finds that Alabama's policy against covenants not to compete is a fundamental public policy; that Alabama law would be applicable but for the parties' choice of North Carolina law; and that Alabama has a materially greater interest than North Carolina in the determination of this issue, because CB & H is attempting to enforce a covenant not to compete in Alabama and against an Alabama resident. Furthermore, application of North Carolina law, enforcing the covenant not to compete, clearly "flies directly in the face of the public policy of Alabama." Blalock, 458 F. Supp. at 127. Therefore, we hold that the contractual choice of North Carolina *508 law cannot be given effect and that Alabama law will govern this agreement; therefore, § 8-1-1 is to be enforced. Under that provision, paragraph 15.9 is void and unenforceable and Brown cannot be bound by its terms.
Brown cross-appeals, arguing that the trial court erroneously entered the judgment in favor of CB & H dismissing his claim alleging tortious interference with business. We disagree.
Brown alleged in his complaint that CB & H, through its attempt to enforce paragraph 15.9 of the partnership agreement, tortiously interfered with his business relations and sought to restrain his practice of accounting. Tortious interference with business requires that the plaintiff prove: "(1) The existence of a contract or relation; (2) defendant's knowledge of the contract or business relation; (3) intentional interference by the defendant with the contract or business relation; and (4) damage to the plaintiff as a result of defendant's interference." Lowder Realty, Inc. v. Odom, 495 So. 2d 23, 25 (Ala.1986). See also Gross v. Lowder Realty, 494 So. 2d 590 (Ala.1986). After examining the record, we conclude that Brown offered no proof of any intentional interference by CB & H with his business relations. CB & H merely attempted to enforce the partnership agreement, but did not engage in any activity that would amount to intentional interference. The trial court correctly entered a judgment in favor of CB & H on Brown's claim of tortious interference with business.
For the reasons stated in this opinion, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | May 31, 1991 |
250e2e85-eb66-4baf-b416-5413a0bf4b7e | Ex Parte Webb | 586 So. 2d 954 | 1900344 | Alabama | Alabama Supreme Court | 586 So. 2d 954 (1991)
Ex parte Darran WEBB.
(Re Darran Webb v. State of Alabama).
1900344.
Supreme Court of Alabama.
June 14, 1991.
*955 Douglas C. Freeman, Montgomery, for petitioner.
James H. Evans, Atty. Gen., and Jean A. Therkelsen, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
This Court issued the writ of certiorari to the Court of Criminal Appeals to review this question: Did the Court of Criminal Appeals err in holding that the petitioner waived his right to object to the trial court's failure to question prospective jurors as to whether the jurors would be inclined to give more weight to the testimony of a police officer than they would to the testimony of a private citizen or to the testimony of the defendant?
The Court of Criminal Appeals, 586 So. 2d 951, citing its case of Nodd v. State, 549 So. 2d 139 (Ala.Cr.App.1989),[1] held that the petitioner was entitled to have the prospective jurors questioned as he had requested. That Court, citing Andrews v. State, 359 So. 2d 1172 (Ala.Cr.App.1978), further held that "[t]he issue of the trial court's failure to question the jury has not been preserved for review by proper and timely objection." The Court also held that "[w]ith regard to the sufficiency of the objection ..., we view this matter as similar to a trial court's failure or refusal to instruct a jury as requested."
After an examination of the law, and of the particular facts in this case, we are constrained to hold that the Court of Criminal Appeals erred in finding a waiver of rights in this case.
The basic facts are not disputed. The record shows, as found by the Court of Criminal Appeals, that "[o]n the date of trial and in open court, defense counsel filed a `Request for Voir Dire Questions,'" which contained 22 questions, including the following three that petitioner contends the trial court should have propounded:
The record further shows, as shown by the opinion of the Court of Criminal Appeals, that the following occurred during the jury selection process:
We agree with the basic holding by the Court of Criminal Appeals that objections to the manner in which voir dire examination of jurors is conducted should be timely made, but we also believe that the Court of Criminal Appeals, based on the particular facts of this case, was too strict in its application of the waiver principle, especially in view of the fact that petitioner had prefiled the questions with the court, and the actual striking of the trial jury had not commenced.
In Andrews, the case cited by the Court of Criminal Appeals, the opinion shows that "there clearly [was] no objection in the record [in that case] to preserve any error in relation to the jury venire." 359 So. 2d at 1175. Here, the record specifically shows that petitioner not only prefiled a "Request for Voir Dire Questions," but also made an objection, on the record and in open court, prior to the time the actual striking of the trial jury began.
At the time this case was tried, there were no specific procedural rules governing the time within which an objection such as the one made here should have been made, and it appears from the record that the trial judge's rule of procedure in such matters at most was based on custom and usage in his court. There was case law extant that did address the question, of course. In Andrews, supra, the Court stated the rule, as follows:
359 So. 2d at 1175.
In Williams v. State, 342 So. 2d 1328 (Ala. 1977), this Court held that the failure of a defendant to raise a proper objection to the composition of a jury before entering upon the trial of the case on its merits constituted a waiver of his right to do so.
The underlying purpose of allowing the parties to question prospective jurors is to assist the parties in knowledgeably exercising their challenges for cause or in making their peremptory strikes. Although the trial court has discretion to reasonably control the voir dire process, the court should be mindful of the underlying purpose of voir dire examination of prospective jurors.[2]
*957 We believe that the trial court's refusal to question the prospective jurors as petitioner was authorized to do under Nodd, supra, frustrated the petitioner's rights, and that his objection was timely, because the record shows that although the trial court had completed jury voir dire and had excused the venire, the actual striking of the jury had not begun.
Even assuming that the objection was timely, the Court of Criminal Appeals also held that petitioner's objection was not specific enough to apprise the trial court of the grounds upon which he was objecting. An objection, of course, should fairly and specifically point out the particular grounds on which an alleged error occurred in order to inform the trial judge of the legal basis of the objection, thereby affording the trial judge an opportunity to reevaluate his or her initial ruling in light of the grounds alleged and to change it, if deemed necessary. Ex parte Washington, 448 So. 2d 404, 406 (Ala.1984); Ex parte Johnson, 433 So. 2d 479 (Ala.1983).[3]
We think that the objection made by the petitioner was specific enough. The trial court had before it the list of voir dire questions that petitioner had requested be asked. This list contained the omitted questions to which petitioner was objecting, questions that the Court of Criminal Appeals admittedly states should have been asked in this case. Further, petitioner's counsel stated as his reason for objecting the fact that he believed that he had a right to ask the questions under Alabama law. Clearly, Nodd, supra, holds that he had such a right.
Based on the foregoing, we hold that the Court of Criminal Appeals erred in affirming petitioner's conviction. The judgment of that Court is, therefore, reversed and the cause is remanded to that Court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] In Nodd v. State, 549 So. 2d 139 (Ala.Cr.App. 1989), the Court of Criminal Appeals held:
"[W]here the State's case consists primarily of police testimony and that testimony is crucial in establishing the State's case, the defense has a right to inquire, either through counsel or the trial judge, whether any member of the jury venire might be more, or less, inclined to credit the testimony of a police officer simply because of his or her official status. The trial judge's refusal of such requested inquiry will constitute an abuse of discretion when the issue has not been adequately covered in other questions on voir dire or in the judge's charge to the jury."
549 So. 2d at 147. The holding in Nodd is a correct statement of the law.
[2] At the time this case was tried the procedural rules governing the voir dire examination of jurors was primarily contained in case law. Now, Rule 18 of the Alabama Rules of Criminal Procedure governs the procedure for conducting voir dire examination of prospective jurors in criminal cases.
[3] It should be noted that these cases deal with objections made in the trial court's instructing of the jury. The procedure for making objections in such cases is controlled by Rule 21, Ala.R.Cr.P. Rule 18, Ala.R.Cr.P., does not contain any provisions governing the time when objections should be made in the voir dire process, and how specific those objections must be. | June 14, 1991 |
5e047337-ddb5-4792-a453-10f429a3d32b | Waters v. Jolly | 582 So. 2d 1048 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 1048 (1991)
John Richard WATERS, Jr., and Phillip Lynch Waters
v.
J. Ralph JOLLY, et al.
William Donald WATERS, Jr.
v.
J. Ralph JOLLY, et al.
89-628, 89-625.
Supreme Court of Alabama.
May 24, 1991.
Rehearing Denied June 28, 1991.
*1050 William C. Wood of Norman, Fitzpatrick, Wood, Williams & Parker, Birmingham, and Alexander W. Jones, Jr. of Pritchard, McCall & Jones, Birmingham, for appellants John Richard Waters, Jr. and Phillip Lynch Waters.
Douglas Corretti of Corretti & Newsom, Birmingham, and Jesse P. Evans III of Najjar, Denaburg, Meyerson, Zarzaur, Max, Wright & Schwartz, Birmingham, for appellees.
KENNEDY, Justice.
John Richard Waters, Jr., and Phillip Lynch Waters appeal from a summary judgment entered against them and in favor of J. Ralph Jolly and Jeanne Waters Jolly. William Donald Waters, Jr., appeals from a denial of his motion to intervene in the above action. We have consolidated the appeals for purposes of writing one opinion.
These appeals arise out of the third action that was filed in the Jefferson Circuit Court concerning the disposition of assets of a trust created pursuant to the wills of Newman H. and Anna Lois Waters. Newman H. Waters's will was probated in 1973, and Anna Lois Waters's will was probated in 1976. In each of the wills, Newman and Anna established a trust with their grandchildren as beneficiaries. John Richard Waters, Jr., and Phillip Lynch Waters (hereinafter collectively referred to as "the plaintiffs"), and William Donald Waters are 3 of 11 grandchildren of Newman and Anna. In their respective wills, Newman and Anna named their son, Newman H. Waters, Jr., their daughter, Jeanne Waters Jolly, and their son-in-law, J. Ralph Jolly, as trustees of the trust created for the grandchildren's benefit. The plaintiffs and William Donald Waters are not the children of the trustees.
During the administration of the trust, the plaintiffs filed an action in the circuit court ("the first action") against the trustees,[1] alleging various breaches of their fiduciary duties by attempting to enhance the assets that would ultimately be distributed to the beneficiaries who are their children. The parties executed a settlement *1051 agreement, as a result of which the plaintiffs received money and property in settlement of their claims; the parties also agreed that all parties to the agreement were released from any claims that may have existed as of the date of the agreement related to the wills of Newman and Anna and the trust established thereby. The circuit court approved the settlement agreement on March 4, 1982.
On January 31, 1983, the trustees filed an action in the circuit court seeking a declaratory judgment ("the declaratory judgment action") naming all beneficiaries as defendants and seeking court approval of the proposed disposition of the trust's various remaining assets.[2]
On February 18, 1983, the plaintiffs filed an answer to the declaratory judgment action, and, concurrently, served interrogatories in which they asked the trustees to state the present value of all assets held in the trust and to attach a copy of any appraisal of an asset. The plaintiffs did not receive a response to their interrogatories, and they filed a motion to compel answers to interrogatories. In response, the trustees moved the trial court for a protective order, or, alternatively, for an order limiting the scope of interrogatories to events that occurred after March 4, 1982, the date on which the trial court approved the parties' settlement agreement in the first action. In that motion, the trustees stated that they had previously furnished the plaintiffs with all appraisals made before March 4, 1982. The trial court granted the motion to limit the scope of the interrogatories.
In an amendment to the complaint in the declaratory judgment action, the trustees requested the circuit court to order that an appraiser be appointed to appraise approximately 347 acres of land in Jefferson and Shelby Counties, Alabama (hereinafter referred to as the "Swann Property"), and, thereafter, to enter an order authorizing the trustees to sell the Swann Property. The circuit court appointed Henry Graham to appraise the property, and Graham subsequently appraised the property at $1,200,000. The following is the relevant portion of the court's order:
The Swann Property was not sold before November 25, 1983. The circuit court appointed a standing master to conduct a public sale, which was held on November 28, 1983. The standing master's report stated that at the sale J. Ralph Jolly successfully bid $1,246,000 on the Swann Property as agent for his wife and co-trustee, Jeanne Waters Jolly; his brother-in-law and former co-trustee, Newman H. Waters, *1052 Jr.; and five of the beneficiaries, four of whom were his children. The plaintiffs bid unsuccessfully on the property. On December 12, 1983, the circuit court confirmed the standing master's report and ordered that a deed to the property be executed in return for payment of the balance due. On that date, a deed was executed, conveying the property to the purchasers. The trustees were then dismissed and released from liability in connection with their activities as trustees of the trust. No appeal was taken.
At some point thereafter, the plaintiffs learned that Frank White, an appraiser, had appraised the Swann Property on April 17, 1981, prior to the institution of the first action filed by the plaintiffs and, therefore, prior to the effective date of the order issued in the second action that limited discovery to after March 4, 1982. During the litigation of this the third action, the trustees produced a copy of a memorandum written by J. Ralph Jolly, which stated as follows:
(Emphasis added.)
On October 9, 1986, approximately three years after the public sale of the Swann Property, First Equity Mortgage Company offered to purchase the Swann Property for approximately $5,600,000. Trustee J. Ralph Jolly, as agent for the owners, made a counter offer in which he raised the amount of earnest money to $100,000. The record does not indicate that the counter offer was accepted or rejected.
On October 27, 1986, the plaintiffs filed this action against the trustees in circuit court, alleging fraud and breach of fiduciary duty. In their complaint, the plaintiffs demanded a jury trial and requested both compensatory and punitive damages.
The trustees filed a motion for summary judgment, arguing that the plaintiffs' claims were procedurally barred. In opposition to the motion for summary judgment, the plaintiffs submitted a copy of J. Ralph Jolly's memorandum concerning the April 17, 1981, appraisal by Frank White; the October 9, 1986, offer and counter offer to sell the Swann Property; and the affidavit of Van E. Belcher. In his affidavit, Belcher stated that on November 28, 1983, the date of the public sale of the Swann Property, he was present at the sale and that he heard J. Ralph Jolly tell Newman H. Waters III (a beneficiary of the trust) that, if the bidding exceeded $1,500,000, he would have to get authority to continue bidding. Belcher stated that he did not come forward until he learned of the offer and counter offer made in October 1986. The plaintiffs also submitted a memorandum in which they argued that the trustees' legal arguments were without merit.
At the hearing on the motion for summary judgment on May 18, 1989, William Donald Waters, Jr., a beneficiary of the trust, filed a motion to intervene in the action pursuant to Rule 24, A.R.Civ.P. In his motion, he stated that he was a minor at the time of the sale of the Swann Property and that he became aware of the action filed by the plaintiffs on or about May 3, 1989. He adopted the allegations and demands for relief stated in the plaintiffs' complaint. The trustees filed a memorandum in opposition to the motion to intervene, in which they restated the arguments *1053 made in their motion for summary judgment, and argued that the proposed intervenor had no Rule 24(a) right to intervene and that permissive intervention under Rule 24(b) would cause undue delay and expense.
The circuit court denied the motion to intervene and granted the trustees' motion for summary judgment as to both the claim of fraud and the claim of breach of fiduciary duty. The plaintiffs filed a motion to alter, amend, or vacate the judgment, or, alternatively, to transfer the action to the "equity division" of the Jefferson Circuit Court.[3] William Donald Waters, Jr., also filed a motion to transfer the action to the "equity division" of the circuit court on the grounds that the imposition of a constructive trust on the Swann Property would be the appropriate remedy in this case. Motions to reconsider were filed by the plaintiffs and the proposed intervenor. These motions were denied. In its order, the circuit court did not state the legal or factual basis on which it granted the trustees' motion for summary judgment or denied the plaintiffs' and the proposed intervenor's post-judgment motions.
On appeal, the Plaintiffs argue that the trial court erred in entering the summary judgment. The trustees argue that the plaintiffs' claims were barred by the doctrine of res judicata; that the plaintiffs failed to properly attack the prior judgment pursuant to Rule 60(b), A.R.Civ.P.; and that the trial court did not abuse its discretion in denying the motion to intervene. We will first address the arguments raised by the trustees.
The trustees argue that the plaintiffs' claims are barred by the doctrine of res judicata. 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, 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 benefits and/or burdens of the prior litigation; and (4) the same cause of action must be involved in both suits. Hughes v. Martin, 533 So. 2d 188 (Ala.1988); Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir.1975).
If these elements are present, then any issue that was, or could have been, adjudicated in the prior action cannot be litigated in a subsequent action. 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).
Having carefully reviewed the record, we conclude that the last requirement of the doctrine of res judicata has not been met and, therefore, that the doctrine of res judicata does not apply in this case.
The fourth requirement is that the same cause of action must be involved in both suits. Hughes v. Martin, supra; Geer Brothers, Inc. v. Crump, 349 So. 2d 577 (Ala.1977). This Court has held that the same cause of action exists when the same evidence is applicable in both actions. Hughes v. Martin, supra; Gulf American Fire & Casualty Co. v. Johnson, 282 Ala. 73, 209 So. 2d 212 (1968).
In Hughes v. Martin, supra, at 191, we quoted 2 Black on Judgments for the following:
Section 614, p. 936 (1902).
In their second amendment to the declaratory judgment action, the trustees stated that the Swann Property was a substantial asset of the Waters estate; they sought and received circuit court approval for the appointment of an appraiser, an appraisal of the Swann Property, and a subsequent sale of the Swann Property. In their answer to the second amendment, the plaintiffs admitted that the Swann Property was a substantial asset ripe for sale and that an appraiser should be appointed and the property appraised and sold. The trial court agreed, and it appointed an appraiser who appraised the property, and the court then ordered that the property be sold "at the best available price." The property was then sold at public auction and the sale was ratified and approved by the circuit court. Thus, the evidence applicable in the declaratory judgment action concerned the fact that all parties to the action, and the trial court, agreed that the property should be sold based on the appraisal value given by the court-appointed appraiser and the fact that the sale was conducted according to the order of the trial court.
In this action, the plaintiffs allege that the trustees had obtained an appraisal in 1981, before the trustees had asked the court to approve an appraisal and sale of the property. J. Ralph Jolly's memorandum concerning the alleged previous appraisal indicated that the trustees knew, and that they did not inform the plaintiffs or the circuit court, that, at the time the property was sold, it was possibly worth more than the sale price. Thus, the evidence applicable in this action pertains to the J. Ralph Jolly memorandum concerning the Frank White appraisal, the extent to which the trustees knew of the alleged higher value of the Swann Property, their failure to disclose that information, and their failure to sell the property at "the best available price."
We hold that the evidence applicable in the declaratory judgment action and the evidence applicable in this action are not the same. Therefore, this action is not barred by the doctrine of res judicata.
The trustees argue that the plaintiffs have not properly attacked the declaratory judgment action pursuant to Rule 60(b), A.R.Civ.P. Noting that the trial court in the declaratory judgment action dismissed them from their duties as trustees and released them from liability unless and until that judgment was set aside, the trustees argue that the plaintiffs could attack the judgment only by an independent fraud action recognized by Rule 60(b), A.R.Civ.P.; that such an independent action seeks an equitable remedy and that an action for damages based on fraud is not such an action. The trustees further argue that the plaintiffs have never joined the purchasers of the Swann Property in their action and that for any action to be brought under Rule 60(b), the purchasers must be named as parties to the action.
The plaintiffs argue that the complaint alleges fraud arising out of the purchase of the property by the trustees for a price that they knew to be less than the value of the land and a breach of fiduciary duty by the trustees in failing to sell the property "at the best available price." The plaintiffs argue in their brief that, because the Swann Property has been conveyed in part to parties other than the trustees, setting aside the conveyance is not a practical remedy and that their only realistic relief is money damages. Alternatively, the plaintiffs argue in their reply brief that Rule 60(b) allows an independent action to set aside a judgment where the judgment is procured by a fraud upon the court, and that this action constitutes an independent action to set aside the judgment in the declaratory judgment action for fraud upon the court.
Rule 60(b)(6) authorizes the filing of an independent action to relieve a party *1055 from a judgment for "fraud upon the court" if the independent action is brought within three years after the entry of the judgment or within two years after the discovery of the fraud, as is now permitted by § 6-2-3, Alabama Code of 1975 (1986 Cum.Supp.). This Court has defined "fraud upon the court" as that species of fraud that defiles or attempts to defile the court itself or that is a fraud perpetrated by an officer of the court, and it does not include fraud among the parties, without more. Spindlow v. Spindlow, 512 So. 2d 918 (Ala.Civ.App.1987); Brown v. Kingsberry Mortgage Co., 349 So. 2d 564 (Ala. 1977). In evaluating an attack upon a judgment based on a claim of a fraud upon the court, the trial court has wide discretion and, in exercising that discretion, it must balance the desire to remedy injustice against the need of finality of judgments. Hill v. Hill, 523 So. 2d 425 (Ala.Civ.App. 1987); Denton v. Sanford, 383 So. 2d 847 (Ala.Civ.App.1980).
The issue before this Court is whether the trial court erred in entering summary judgment for the trustees. However, in essence, we are asked to determine not whether there is a scintilla of evidence supporting the plaintiffs' claims,[4] but to determine whether the plaintiffs state a claim upon which relief can be granted. See Rule 12(b)(6), A.R.Civ.P. In ruling on the trustees' motion for summary judgment, the trial court did not have to consider matters outside the pleadings; the trustees' motion for summary judgment would have been more properly styled as a Rule 12(b)(6) motion to dismiss the plaintiffs' claims. Thus, we should properly determine whether, having viewed the allegations of the complaint most strongly in their favor, the plaintiffs could prove any set of circumstances that would entitle them to relief. See Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d 640 (Ala. 1985).
Rule 8(f), A.R.Civ.P., provides that "[a]ll pleadings shall be so construed as to do substantial justice." In order to do substantial justice, pleadings are to be construed liberally in favor of the pleader. Calvin Reid Construction Co. v. Coleman, 397 So. 2d 145 (Ala.Civ.App.1981); Bowling v. Pow, 293 Ala. 178, 301 So. 2d 55 (1974); Rule 8, A.R.Civ.P, Committee Comments.
In their complaint, the plaintiffs allege that the trustees breached their fiduciary duties and that they committed fraud. The complaint alleges, in pertinent part, that the Swann Property was sold at public auction; that the circuit court ratified the sale; that the trustees knew at that time that the value of the property exceeded the court-appointed appraiser's appraisal; and that the sale of the property for less than its full value breached the court's order to sell the property at the "best available price." The plaintiffs demand judgment, claiming both compensatory and punitive damages.
In their brief in opposition to the trustees' motion for summary judgment, the plaintiffs argue that they have instituted an independent action pursuant to Rule 60(b), A.R.Civ.P. However, they also argue, somewhat inconsistently, that, since title to the Swann Property is not vested solely in the trustees, setting aside the sale of the property is not practical.
In their motion to alter, amend, or vacate the judgment, the plaintiffs ask the Jefferson Circuit Court, alternatively, to transfer the action to the "equity division" of that court. As grounds for the motion to transfer, the plaintiffs state that the trustees breached their fiduciary duty to the beneficiaries and that the breach was sufficient to justify imposing a constructive trust on the property for the benefit of the plaintiffs. The plaintiffs also ask the circuit court, once it is "sitting in equity," to take "such further action as may be appropriate to effectuate the relief prayed for herein."
In their reply brief, the plaintiffs point out that they claim that the trustees breached their fiduciary duty and that they committed fraud. The plaintiffs then argue as follows:
We hold that the plaintiffs' complaint, while certainly not a model pleading, sufficiently states their intention to independently attack the earlier judgment of the trial court for fraud upon the court. We note that although the trial court has wide discretion in passing upon an attack on a final judgment, it must balance the desire to remedy injustice against the need for finality of judgments. Hill v. Hill, supra; Denton v. Sanford, supra. The discretion of the trial court in evaluating an attack upon a final judgment does not supersede the requirement of Rule 8(f) that all pleadings be construed so as to do substantial justice. To do substantial justice, courts should liberally construe pleadings in favor of the pleader. Calvin Reid Construction Co. v. Coleman, supra.
In their complaint, the plaintiffs state that the circuit court ratified the public sale of the Swann Property. The plaintiffs allege that the trustees knew when they purchased the property that they were violating the circuit court's order to sell the property for "the best available price." The plaintiffs demand judgment, claiming compensatory and punitive damages.
The plaintiffs' complaint does not specifically demand that the former judgment releasing the trustees from liability be set aside under Rule 60(b); however, nothing in Rule 8(f) requires that a pleading specifically refer to an applicable rule of civil procedure. All that is required is that the complaint adequately notify the trustees of the plaintiffs' claims.
In Prince Furniture Co. v. Stanfield, 386 So. 2d 1163 (Ala.Civ.App.1980), the plaintiff alleged that the defendants entered his home without permission and stripped it of various articles. The defendants claimed that the complaint was insufficient. The Court of Civil Appeals stated:
386 So. 2d at 1164.
The plaintiffs' complaint gives the trustees notice that they claim that the trustees breached their fiduciary duty and that they committed fraud in purchasing the Swann Property at the public sale for less than the best available price. We hold that the plaintiffs' failure to specifically demand that the former judgment be set aside does not render their claims insufficient. Further, the fact that the complaint demands compensatory and punitive damages does not render it insufficient. To hold otherwise would not do substantial justice in this case.
Based on the foregoing, we hold that the trial court erred in granting the trustees' motion for summary judgment.
William Donald Waters, Jr., argues that the trial court erred in denying his Rule 24, A.R.Civ.P., motion to intervene in this action. The trustees argue that Waters is not entitled to intervene under Rule 24(a)(1) because no statute confers upon him such a right, and they point out that he is not entitled to intervene under Rule 24(b) because his motion was not timely filed. The trustees make no argument as to whether Waters may intervene of right pursuant to Rule 24(a)(2).
We agree that Waters may not intervene pursuant to Rule 24(a)(1); however, we *1057 must determine whether he is entitled to intervene of right pursuant to Rule 24(a)(2), which states:
First, we must determine whether, under Rule 24(a)(2), Waters claims a sufficient interest relating to the property or transaction that is the subject of the plaintiffs' action. As to the proper approach to this inquiry, we note the following:
State ex rel. Wilson v. Wilson, 475 So. 2d 194, 196 (Ala.Civ.App.1985), cited in, Randolph County v. Thompson, 502 So. 2d 357 (Ala.1987). See, generally, Wright, Miller & Kane, Federal Practice & Procedure, § 1908 (2d ed. 1986). Waters is one of the trust beneficiaries who did not participate in the purchase of the Swann Property. Thus, his interest in this property is the same as that of the plaintiffs and is sufficient for the purpose of this inquiry.
Now we must determine whether Waters is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest. This requirement of Rule 24(a)(2) must be measured by a "practical" rather than a "technical" yardstick. See Randolph County, supra; Wilson, supra.
35A C.J.S. Federal Civil Procedure § 135 (1960) (emphasis added).[5] Waters's interest in the trust assets is equal to the interests of the plaintiffs. Thus, he meets this requirement.
Next, we ask whether Waters's interest is adequately represented by the existing parties. We note that the burden of persuasion as to this issue is on those who oppose the motion to intervene. Randolph County, supra. See Wright, Miller & Kane, supra, at § 1909. The trustees do not address this issue; thus, we conclude that Waters's interest was not adequately represented by the plaintiffs.
Last, we must determine whether Waters's motion to intervene was timely.
Randolph County v. Thompson, supra, at 364, citing Diaz v. Southern Drilling Corp., 427 F.2d 1118 (5th Cir.), cert. denied, 400 U.S. 878, 91 S. Ct. 118, 27 L. Ed. 2d 115 (1970), rehearing denied, 400 U.S. 1025, 91 S. Ct. 580, 27 L. Ed. 2d 638 (1971). See generally Wright, Miller & Kane, § 1916. For a detailed discussion of the law in Alabama concerning the timeliness of motions to intervene, *1058 see Randolph County v. Thompson, supra. Because Waters's motion to intervene was filed before the plaintiffs filed their motion for summary judgment and because Waters adopted the pleadings of the plaintiffs, we find that the motion to intervene was timely filed.
Therefore, we hold that the trial court erred in denying Waters's motion to intervene in this action.
We reverse the summary judgment and the order denying intervention and remand this cause for proceedings consistent with this opinion.
HORNSBY, C.J., and ALMON, SHORES and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
It appears to me that the trial court correctly held that the plaintiffs' claims were barred by the doctrines of res judicata and collateral estoppel. Any attack on the prior judgments entered in the administration of this trust estate should have been filed under the provisions of Ala.R. Civ.P., Rule 60(b), or by an independent action. A civil fraud action for the recovery of damages is not an appropriate remedy. I must dissent.
STEAGALL, J., concurs.
[1] In 1978, Newman H. Waters, Jr., was dismissed from his duties as a trustee, and he is not a party to this action.
[2] The record of the declaratory judgment action is included in the trustees' motion for summary judgment in this action.
[3] A transfer to "equity" is clearly an outdated procedure. The adoption of our Rules of Civil Procedure in 1973 effected a merger of law and equity. See Rule 2. It is clear that under our rules the circuit court has the power to grant whatever relief is appropriate, whether historically known as "legal relief" or as "equitable relief," in the same action. See Ex parte Reynolds, 436 So. 2d 873 (Ala.1983): "[Rule 2 was adopted] in 1973, giving any circuit court the power to hear both equitable and legal issues. That merger was accomplished so that litigants could present related legal and equitable claims in an orderly manner. It operates ... to avoid the presentation of claims in separate actions."
[4] The plaintiffs filed the complaint before June 11, 1987. See § 12-21-12, Ala.Code 1975.
[5] The Committee Comments to Rule 24, A.R. Civ.P., note that our Rule 24 is virtually identical to Rule 24, Fed.R.Civ.P. See also Lesnick v. Lesnick, 577 So. 2d 856 (Ala.1991). Thus, interpretations of Federal Rule 24 are helpful to this Court in interpreting Alabama's Rule 24. | May 24, 1991 |
84bb3f2a-2633-4171-ac0b-df66731b535f | Brooks v. City of Birmingham | 584 So. 2d 451 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 451 (1991)
Robert E. BROOKS
v.
CITY OF BIRMINGHAM and Arthur V. Deutcsh.
89-1489.
Supreme Court of Alabama.
May 17, 1991.
Rehearing Denied July 12, 1991.
*452 Mickey L. Johnson and Richard W. Bell, Pelham, for appellant.
Charles H. Wyatt, Jr., Birmingham, for appellees.
STEAGALL, Justice.
Robert E. Brooks appeals from a summary judgment in favor of the City of Birmingham and its police chief, Arthur Deutcsh (hereinafter collectively referred to as the "City"). We affirm.
The evidence presented to the trial court was as follows: On January 20, 1987, around 11:15 p.m., Brooks was discovered by two Birmingham police officers "slumped over the steering wheel" of his Jeep CJ7 motor vehicle at the intersection of 10th Avenue North and 34th Street North. The officers, Scott Morro and Steve Cain, noticed Brooks's vehicle after a traffic light changed from red to green and Brooks's Jeep did not move. The officers exited their vehicle and approached the Jeep; they discovered Brooks in a slumped position with the engine of the Jeep running. The officers awakened Brooks and asked him to step out of the vehicle. He was incoherent and appeared to be intoxicated; he had trouble standing and had to be assisted by the officers to the patrol car. The officers "detected what they thought was the odor of alcohol" about Brooks. The officers searched the Jeep, but found no alcoholic beverages in it. They attempted to issue Brooks a field "alcolizer test," but he was unable even to participate. When the officers asked Brooks for his driver's license, he began mumbling and handed the officers several dollars in cash. After several attempts, Brooks finally managed to retrieve his driver's license from his wallet. The officers then arrested Brooks for driving under the influence and transported him to the city jail.
After arriving at the city jail, Brooks was able to relay to the officers that he was a diabetic and was experiencing a reaction to low blood sugar. He requested medical attention, as well as a piece of candy or a soft drink so that he could raise his blood sugar level, but he was told that nothing could be done until the Intoxilizer 5000 test was administered and the arrest process was completed.
The Intoxilizer 5000 test showed Brooks's blood alcohol content to be 0.0%. Nonetheless, Brooks was fingerprinted, photographed, and taken to a "holding tank." Brooks claims that when he inquired as to why he was being held when he clearly was not intoxicated, he was told by the jail administrator, "I can hold you for four hours, and that's damned well what I'm going to do." Brooks also claims that he repeatedly requested medical attention during the arrest process but that he did not receive any such attention until several minutes after he was placed in a cell. At that point, the duty nurse gave Brooks two Hershey chocolate kisses and made the medical decision that the paramedics need not be notified.
Approximately 30 minutes after Brooks had been "booked in," he was allowed to call his wife to make arrangements for posting bond. The arrangements were made, and Brooks was released after being held for approximately three hours.[1]
On August 7, 1987, Brooks filed a complaint against the City of Birmingham; the Birmingham Police Department and its chief, Arthur Deutcsh; and various fictitiously named parties. Count one of the complaint claimed damages under 42 U.S.C. 1983 and alleged unlawful arrest, false imprisonment, malicious prosecution, and negligence. Count two adopted all allegations in count one, but made those allegations against fictitiously named parties, and also added a claim based on the City's alleged failure to provide medical care. Count three adopted all allegations in counts one and two and added a claim alleging negligent training, hiring, and instruction against various agents of the city. On March 13, 1989, Brooks amended his complaint to specifically allege a claim of negligence *453 by the defendants in not recognizing his medical needs.
In his deposition, Brooks claims that on the day of the incident he had attended an accounting seminar at the Riverchase Galleria near Birmingham, and that it had continued until late evening. He said that when he left the seminar, he began driving toward the downtown Birmingham area to his office. During the trip, he said, he began to feel the effects of low blood sugar and immediately began searching for a soft drink vending machine so that he could raise his blood sugar level with a sweet soft drink. He said that as he continued the search, he became weak and disoriented and eventually reached a point of disability while stopped at a traffic light. At that point, he said, the officers discovered him in his impaired condition.
Although Brooks admits in his deposition that his memory of the incident is incomplete, he claims that he told the officers at the scene that he was a diabetic and that he asked them to call paramedics. He also claims he asked the officers if they had a sweet soft drink or a candy bar that he could have for his condition. He claims that the officers said they had nothing in their vehicle that could help him and that they would have to transport him to the city jail before any paramedics could be called.
According to the depositions of the arresting officers, Brooks was unable to communicate at the time of his arrest and they first learned of Brooks's claim that he was diabetic long after they had arrived at the city jail.
On March 23, 1989, the trial court entered a partial summary judgment against Brooks on the claims of false arrest, false imprisonment, and malicious prosecution. On May 23, 1990, the trial court entered a final summary judgment in favor of the defendants on the remaining issues. Brooks 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 Brooks's contentions.
Brooks first challenges the summary judgment as to the claims of false arrest, false imprisonment, and malicious prosecution.
The liability of a municipality for the negligence of its agents, officers, or employees is governed by Ala.Code 1975, § 11-47-190. That section provides, in part:
In Boyette v. City of Mobile, 442 So. 2d 61 (Ala.1983), we held that, pursuant to § 11-47-190, a municipality has immunity from actions alleging unlawful arrest and false imprisonment based on negligence on the part of city employees while acting within the scope of their employment. Id. Thus, an individual may not maintain an action for unlawful arrest and false imprisonment against a municipality based upon the alleged negligence of city employees acting within the scope of their employment. Id.
We have also held that a municipality cannot be held liable under § 11-47-190 *454 for malicious prosecution because of the conduct of its police officers or employees or members of its legal department in a wrongful arrest and prosecution undertaken in their official capacity, because a corporate entity, a municipality, cannot entertain a malicious intent. Neighbors v. City of Birmingham, 384 So. 2d 113 (Ala. 1980). See, also, Gore v. City of Hoover, 559 So. 2d 163 (Ala.1990); Boyette v. City of Mobile, supra; Bahakel v. City of Birmingham, 427 So. 2d 143 (Ala.1983); and McCarter v. City of Florence, 216 Ala. 72, 112 So. 335 (1927). Section 11-47-190 provides for an action against a municipality for the "neglect, carelessness or unskillfulness" of its agents, not for their intentional torts. Gore v. City of Hoover, supra. Thus, based on this rationale, the summary judgment on the false imprisonment and malicious prosecution claims was proper.
As to the false arrest claim, we acknowledge that the above-stated rationale does not strictly apply to an action for false arrest that is premised upon a negligence claim. Id. However, under the facts of the instant case, an action does not lie for false arrest, for the following reasons:
The officers found Brooks in his vehicle, slumped over the steering wheel, stopped at a traffic light. Brooks could not speak clearly and was unable to walk. He clearly appeared to be impaired and presented a danger to other motorists. The officers' suspicions about Brooks were further compounded when they detected what they thought was the odor of alcohol. These circumstances clearly presented the officers with probable cause to arrest Brooks for DUI. Richardson v. City of Trussville, 492 So. 2d 625 (Ala.Cr.App. 1985); see, also, McDaniel v. State, 526 So. 2d 642, 644 (Ala.Cr.App.1988). Therefore, Brooks was lawfully arrested and detained, and we find no evidence of "neglect, carelessness or unskillfulness" on the part of the arresting officers. Thus, the trial court's summary judgment against Brooks's false arrest claim was correct.
Brooks also asserts that he is entitled to damages under 42 U.S.C. 1983 because of the City's alleged failure to properly train the police force to recognize medical emergency situations. Because Brooks relies on the case of City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989), it would appear that he is alleging a violation of his rights under the Due Process Clause of the Fourteenth Amendment, premised on his failure to receive medical attention while in police custody.
In City of Canton, Ohio v. Harris, the Court stated that "the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." 489 U.S. at 388, 109 S. Ct. at 1204. Under the facts before us, we do not consider the conduct of the arresting officers or that of the city jail personnel to show a "deliberate indifference" to Brooks's rights. The record clearly shows that Brooks received medical attention soon after the arrest process was completed. The record also shows that even before Brooks received medical attention, his condition had drastically improved from what it was at the time of his arrest. More importantly, the jail nurse, after examining Brooks, gave him two small pieces of candy and made the medical decision that nothing more was needed in regard to his condition. It also appears from the record that by the time bond was posted and Brooks was released, his condition had improved enough that he was able to function normally. Brooks stated in his deposition that after he was released he did not seek further medical attention until the following day. Brooks also stated that his office visit to his physician the following day was not related to his arrest.
Based on the facts before us, Brooks has failed to provide sufficient proof to satisfy the standard of § 1983 liability set forth in City of Canton, Ohio v. Harris, supra. He has failed to present substantial evidence that the arresting officers and jail personnel showed a "deliberate indifference" to his medical needs. He has also *455 failed to specify the City's "deficiency in training" and has failed to offer proof that the "deficiency in training" actually caused the police officers' alleged indifference to his medical needs. The record contains no evidence to support Brooks's claim of a Due Process Clause violation. Thus, the trial court did not err in entering the summary judgment for the defendants.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] The record is unclear as to why Brooks was held for three hours. There is some indication that Brooks's wife experienced a delay in arranging bond; however, neither Brooks nor any of the defendants in this case offered any evidence to clearly explain the delay. | May 17, 1991 |
6c78a2af-60ed-44aa-b187-cea902732370 | Ex Parte Clarke | 582 So. 2d 1064 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 1064 (1991)
Ex parte Janie Baker CLARKE, as Executrix of the Estate of Michael Dwayne Clarke, Deceased.
(Re Janie Baker CLARKE, as Executrix of the Estate of Michael Dwayne Clarke, Deceased v. ASSOCIATION LIFE INSURANCE COMPANY, et al.)
89-1813.
Supreme Court of Alabama.
May 24, 1991.
*1065 Randy Myers and Richard M. Jordan, Montgomery, for appellant.
Mike Brock of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.
ADAMS, Justice.
The plaintiff, Janie Baker Clarke, petitions this Court for a writ of mandamus directing the trial judge to vacate his orders limiting her ability to question potential witnesses named by defendant Association Life Insurance Company in its answer to plaintiff's interrogatory number eight (8). We grant the writ.
Petitioner is the executrix of the estate of Dr. Michael Dwayne Clarke, her husband, who is deceased. Dr. Clarke had sued Association Life Insurance Company (hereinafter "ALIC"); Bob Wright, an agent of ALIC; and, David Miller, also an agent of ALIC, alleging fraud and fraudulent suppression of facts. On February 19, 1990, Dr. Clarke died from complications arising from leukemia. On May 14, 1990, the petitioner was appointed as executrix and was substituted as plaintiff in the present action.
The facts relevant to this action are as follows:
In 1987, Dr. Clarke was in the private practice of internal medicine and gastroenterology in Montgomery, Alabama. Doctor Clarke needed health and life insurance for himself, his dependents, and his employees. He was referred to Miller, an insurance agent, to discuss his insurance needs. After speaking with Miller, Dr. Clarke applied for an insurance policy with ALIC, which approved the policy on August 1, 1987. The policy provided, in pertinent part, for:
In case employment was terminated, Dr. Clarke and his employees were to be provided with individual policies. Dr. Clarke and his employees had the right to continue group coverage through these individual policies if employment ceased for any reason. These were referred to as "conversion" policies.
In November 1988, Dr. Clarke was diagnosed as having leukemia. Because of his illness, he was forced to close his practice. *1066 On August 29, 1989, he received a notice from ALIC informing him that he had failed to pay his premiums. As a result of this notice, Dr. Clarke contacted Wright on that same day. Wright informed Clarke that ALIC was canceling his policy, but that he could elect to take the conversion policy. On August 30, 1989, Dr. Clarke contacted a person named Williams, in the ALIC underwriting department. Williams informed him that his policy was being canceled effective August 31, 1989, and that he had the option to take the conversion policy, which would be sent to him and which would go into effect September 1, 1989. Also at this time, Dr. Clarke was informed that the benefits he would be entitled to under the conversion policy would be substantially reduced. The changes upon the conversion were: (a) a reduction in the maximum lifetime benefits from $1,000,000 to $250,000, less any monies already paid under the original policy; (b) double the premium of the original policy; (c) a change in the deductible and co-payment amounts; and (d) a reduction in benefits under the major medical coverage. Dr. Clarke accepted this conversion policy with the changes, after protest.
Dr. Clarke later sued ALIC, alleging one count of fraud and two counts of fraudulent suppression of facts. With his summons and complaint, Dr. Clarke served interrogatories and requests for production on all defendants. Interrogatory number 8, which is the subject of this petition, read as follows:
The term "identify" was defined on the first page of the interrogatories as:
ALIC answered that interrogatory by attaching a list of names of persons who had obtained a conversion policy, the year the persons received the policy, and an identification number. No addresses or telephone numbers were included in the list.
ALIC, objecting to disclosing the addresses and telephone numbers of those persons who had obtained ALIC conversion policies, filed a motion for a protective order. The judge denied that motion, but ordered the plaintiff's counsel not to contact these policyholders without permission of the court. On April 18, 1990, the trial judge ordered the parties to submit a proposed colloquy to be used by the plaintiff's counsel when contacting these policyholders and also ordered ALIC to produce for plaintiff's counsel the telephone numbers and other requested information with regard to the individuals in interrogatory number 8. The trial judge entered an order on May 3, 1990, ordering the plaintiff's counsel to use only the colloquy prepared by the court, which was a modification of the colloquy originally submitted by the plaintiff's counsel, when contacting any of the policyholders. This order was amended on May 23, 1990. In its final form, the order specified what the attorney was allowed to say to the policyholders and contained a list of five questions that could be asked. The order approved by the trial judge limited Dr. Clarke to the following exchange:
The judge also instructed the plaintiff's counsel that they could not answer any questions asked by these persons and could not undertake to represent any of them.
During a status conference on July 13, 1990, the plaintiff's counsel expressed problems with the permitted colloquy and stated that new developments required additional questions. The trial judge on July 26, 1990, ordered the plaintiff's counsel to submit another proposed colloquy. The new extended colloquy was submitted on July 31, 1990. That new proposed colloquy presented by the plaintiff's counsel would have allowed the following: (a) that counsel could examine the policyholders' conversion policies; (b) that they could ask the policyholders what type of coverage they understood they would have if their employment was terminated; (c) that they could ask what these individuals were told about their choice of conversion policies at the time their employment was terminated; and (d) that they could ask whether these persons would agree to testify in this case. On August 7, 1990, the trial judge denied the plaintiff's motion to be allowed to use this extended colloquy. The trial judge, in his order, stated that the matters the plaintiff sought to inquire about were better suited to "more formal discovery."
The plaintiff asks this Court to order the trial judge to vacate his orders of April 18, 1990, May 3, 1990, May 23, 1990, and August 7, 1990, limiting the ability of plaintiff's counsel to question these potential witnesses named in interrogatory number 8. The petitioner argues that the trial judge abused his discretion in restricting her ability to prepare her case by limiting the manner in which she could contact and question potential witnesses.
Under the Alabama Rules of Civil Procedure, discovery rules are construed broadly to allow parties to obtain information needed in the preparation of their case. Rule 26(b)(1) provides:
Considerable discretion, although not unlimited discretion, is vested in the trial judge in determining what may be discovered and how that information may be obtained.
Because discovery involves a considerable amount of discretion on the part of the trial judge, the standard this Court will apply in reviewing his actions on a petition for a writ of mandamus is whether there has been a clear showing that the trial court abused its discretion. Thus, a writ of mandamus directing the trial judge to set aside his ruling on a discovery matter will issue only where it is clear that the trial judge has abused his discretion. See Ex parte Smith, 533 So. 2d 533 (Ala.1988). A review of the record and the briefs of both parties reveals that the trial judge fashioned a method of discovery that was overly restrictive and unduly limited the discovery of needed information, and thus abused his discretion.
In this case, the plaintiff alleged that ALIC had fraudulently suppressed facts regarding the coverage to be provided under the conversion policy. Because the complaint alleged fraud, the plaintiff is accorded a broader range of discovery in order to meet the heavy burden imposed on one alleging fraud.
This Court has addressed similar questions on several occasions. In Pugh v. Southern Life and Health Ins. Co., 544 *1068 So. 2d 143 (Ala.1988), this Court addressed a similar situation where the trial judge had entered a summary judgment in favor of the defendant during the discovery stage of the case, thereby refusing the plaintiff the right to discover needed information regarding the history of claims and suits against the defendant insurer. The Pughs alleged fraud in Southern Life's refusal to pay their insurance claims. This Court stated that while the trial judge is vested with considerable discretion, that discretion is not "unbridled" and that the trial judge, in the exercise of his discretion, must endeavor to protect the interests of both parties. In reversing the summary judgment, we stated:
Id. at 145. (Citations omitted.) Similarly, in the present case the plaintiff sought to obtain information as to other persons who had obtained conversion policies from ALIC and sought to ask what representations ALIC had made to those persons regarding the coverage provided under their conversion policies. This information, like the information sought in Pugh, would greatly assist the plaintiff in proving fraud and in identifying potential witnesses.
In Ex parte Allstate Ins. Co., 401 So. 2d 749 (Ala.1981), the trial judge ordered Allstate to answer the interrogatories and to provide the requested information. Allstate then brought a petition for a writ of mandamus to prevent the plaintiff from discovering the names and addresses of similarly situated persons. This Court, in denying the petition, held that "Evidence of similar misrepresentations made to others by the defendant is admissible in a fraud action. Therefore, the information sought... could very easily lead to admissible evidence." Id. at 751. (Citations omitted.) See also, Ex parte McClarty Const. & Equip. Co., 428 So. 2d 629 (Ala.1983) (information is discoverable if it appears reasonably calculated to lead to the discovery of other relevant and admissible evidence); Ex parte Georgia Cas. & Sur. Co., 531 So. 2d 838 (Ala.1988); Ex parte State Farm Mut. Auto. Ins. Co., 452 So. 2d 861 (Ala. 1984).
While the present case differs to some degree from the cases discussed above, the principle is the same. The trial judge here, in fashioning a method of discovery, went beyond his discretion and created an awkward procedure, preventing meaningful contact with persons who may have possessed needed information. While not expressly preventing the discovery of the information sought, the discovery order could have, and, according to the plaintiff, did have the effect of preventing her from obtaining useful and meaningful information.
Moreover, this Court has stated on several occasions that in a fraud action the plaintiff is accorded a considerably wider latitude in the discovery process so that he will be able to meet the heavy burden of proof placed on him. The persons the plaintiff sought to speak with either presently hold or at some time have held a very similar conversion policy with ALIC and are, quite possibly, one of the few sources of information for the plaintiff in the preparation of her case. Knowledge of the representations made to them and the amount of coverage provided under their particular policies is vital in the preparation of the plaintiff's case against ALIC. The trial judge's orders limiting contact with these persons to that allowed by the approved "colloquy" was unduly restrictive and, thus, amounted to an abuse of discretion.
Therefore, the petition for a writ of mandamus is granted, and the trial court is directed to set aside its orders of April 18, 1990, May 3, 1990, May 23, 1990, and August 7, 1990, restricting the plaintiff's contact with the other policyholders named in interrogatory 8.
WRIT GRANTED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | May 24, 1991 |
e890d5cf-e5f6-4f56-bae8-4d80dc83a0d0 | Tolver v. Tolver | 585 So. 2d 1 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 1 (1991)
D.C. TOLVER and Bessie M. Tolver
v.
Robert TOLVER.
SOUTHTRUST BANK OF SELMA
v.
Robert TOLVER.
89-1493, 89-1494.
Supreme Court of Alabama.
May 24, 1991.
Rehearing Denied August 9, 1991.
H. Dean Mooty, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for appellants D.C. Tolver and Bessie M. Tolver.
James B. McNeill, Jr. of Hobbs & Hain, Selma, for appellant SouthTrust Bank of Selma.
David A. McDowell, Prattville, for appellee Robert Tolver.
MADDOX, Justice.
The issue in this case is whether an elderly father, who executed a conveyance to his son and daughter-in-law, proved that a material part of the consideration for the conveyance was an agreement by the grantees to support him for the rest of his life, thereby entitling him to annul the conveyance as provided for in Ala.Code 1975, § 8-9-12.[1]
On January 19, 1989, Robert Tolver, then 73 years old, conveyed approximately 161 acres of real property to his son, D.C. Tolver, and his daughter-in-law, Bessie Tolver. The deed stated that the consideration was "one dollar and other good and valuable consideration." It is undisputed that the sales contract executed by the parties further defined the purchase price, as follows:
Paragraph nine of the sales contract also stated that "buyer agrees that the Seller shall be allowed to live in the residence where he presently resides."
Simultaneously with the execution of the deed by the grantor, the grantees, D.C. and Bessie Tolver, executed a note and mortgage to SouthTrust Bank of Selma ("South-Trust") to secure a loan for $38,000 the grantees used to purchase the property.
Less than three months after the conveyance was executed, Robert Tolver sued his son and his daughter-in-law to set aside the transaction, under the provisions of § 8-9-12. He also sued SouthTrust to set aside the mortgage executed by D.C. and Bessie to secure their loan from SouthTrust.
The trial court, after hearing ore tenus evidence held that the deed was within the purview of § 8-9-12 and entered a judgment in favor of Robert Tolver setting the conveyance and mortgage aside. D.C., Bessie, and SouthTrust appeal from this final judgment.
The trial court stated in the judgment appealed from:
We are constrained to disagree with the learned trial judge. After reviewing the record in this case, and after reviewing the cases that have construed § 8-9-12, we hold that the facts here do not permit a finding that the conveyance was voidable by Robert Tolver pursuant to that statute.
Section 8-9-12 was originally enacted to cure the twin evils of injustice and fraud when the elderly and infirm are lured into executing conveyances upon promises of lifetime support. Bush v. Greer, 235 Ala. 56, 177 So. 341 (1937). Because the statute is a restriction on the power to contract, this Court has held that it is to be "construed rather strictly so as to confine its operation to legislative purpose, but not so narrowly as to defeat such purpose." Heartsill v. Thompson, 245 Ala. 215, 218, 16 So. 2d 507, 509 (1944).
In this case, Robert Tolver offered parol evidence to prove that a material part of the consideration for the deed was a promise of support for the rest of his life. In such a case, "[p]arol evidence may be used to prove such an agreement as consideration so long as it does not contradict a written statement of the full consideration," but such evidence "must be clear, satisfactory, and convincing that such an agreement was a material part of the consideration for the deed." Vaughn v. Carter, 488 So. 2d 1348, 1350 (Ala. 1986), citing Stewart v. Dickerson, 455 So. 2d 809 (Ala. 1984), Entrekin v. Entrekin, 388 So. 2d 931 (Ala.1980), and Cooper v. Cooper, 289 Ala. 263, 266 So. 2d 871 (1972).
When the terms of an agreement specifically state that a part of the consideration is a promise to support, this Court usually finds that the transaction comes under § 8-9-12, and when such facts have been shown, this Court has allowed the grantor to revoke the transaction. See Heartsill, 245 Ala. 215, 16 So. 2d 507; Clyburn v. Toney, 245 Ala. 341, 17 So. 2d 235 (1944).
In determining whether the trial court correctly construed the statute under the facts of this case, we first look to the written terms of the agreement. Here, neither the sales contract that was executed before the deed was executed, nor the deed that was subsequently executed, *3 specifically stated that a promise of support was a material part of the consideration for the conveyance. Furthermore, the record reveals that the consideration recited in the agreement was, in fact, paid. Not only did D.C. Tolver pay off the existing debt evidenced by the first mortgage that Robert Tolver had executed to secure an obligation to the Farmers Home Administration in the amount of $24,452.77, but he also paid off Robert Tolver's outstanding farm debts, which totalled $2,183.25, and at the time Robert Tolver filed suit, D.C. had paid $3,750 of the first $10,000 annual payment he had agreed to pay to Robert Tolver.
The trial court admitted parol evidence offered by Robert Tolver to support his contention that a material part of the consideration for the property transfer was an agreement by D.C. and Bessie to support him for life. Parol evidence is admissible to show that the actual consideration for the execution of the deed was the promise of support by the grantees, Entrekin v. Entrekin, 388 So. 2d 931 (Ala.1980); Sawyer v. Nettles, 263 Ala. 220, 82 So. 2d 220 (1955), but the parol evidence must be clear and convincingnot "vague, uncertain ... consisting principally of vague declarations." Sawyer, 263 Ala. at 222, 82 So. 2d at 222.
This Court has held that the evidence is clear, satisfactory, and convincing that a promise to support served as consideration for the conveyance when it is undisputed that no other consideration was given and the parties themselves testify that the grantees promised to support the grantor for life. See Stewart, 455 So. 2d 809; Vaughn v. Carter, 488 So. 2d 1348 (Ala.1986). Those facts are not present in the present case. It was undisputed that D.C. paid $30,458 in consideration for the deed, and neither party testified specifically that the grantees promised to support the grantor for life. In fact, Robert Tolver himself testified that the transaction was not for support and that after the conveyance was executed, he continued to be responsible for paying for his own groceries, medicine, and electric and telephone bills. D.C. and Bessie specifically testified that at no time did they agree to support Robert Tolver:
Likewise, when Robert Tolver was asked if it was his duty to take care of all these responsibilities, he answered in the affirmative. The attorney present when the deed was signed testified similarly:
The testimony of Orbadella Matthews, a sister of D.C. Tolver, who accompanied Robert Tolver at the time the sales contract was signed, is the only evidence we find that was presented by Robert to prove that a promise of support was a material part of the consideration for the conveyance. Her testimony in pertinent part follows:
That testimony, however, is not inconsistent with the testimony of the parties that the grantees were to pay the grantor annual payments of $10,000, which the grantor could use for his support.
When the consideration recited is the payment of a sum of money, the "usual conservative rules of construction must apply." Hanners v. Hanners, 262 Ala. 143, 77 So. 2d 484 (1955). In Hanners, the contract stated that the grantees were to pay the grantor "[t]wo hundred dollars each year for rent of the land as long as I ... lives [sic]." The appellant in that case argued that a material part of the consideration was the promise to support the appellant-grantor. This Court sustained the demurrer to the bill, holding that the "[a]ppellant cannot turn a promise to pay money into a promise to support and maintain, merely because she intends to use the money for that purpose." Id. at 145, 77 So. 2d at 486.
Robert Tolver makes the same contention here that was made in Hanners, that the promise to pay $10,000 to him for the rest of his life amounts to a promise to support. Based upon this Court's reasoning in Hanners, we cannot agree with that contention.
We conclude that the parol evidence offered by Robert Tolver in support of his contention is insufficient to satisfy the clear and convincing standard of proof. The sales contract and deed from Robert Tolver to his son and his son's wife are absolute on their faces and make no reference to a promise of support as consideration for the conveyance. Although Orbadella testified that part of the consideration for the conveyance was support, Robert, D.C., and Bessie contradicted this assertion when they testified that there was no promise of support to induce Robert Tolver to execute the deed, and Orbadella's testimony, as we have pointed out, was not necessarily contradictory of the very terms of the agreement and was not clear and convincing.
Furthermore, our examination of the testimony shows that there was testimony that Robert Tolver himself initiated the transaction, and that it was Robert who initiated the conveyance because he sought to terminate his farming operations and extinguish his debts.
Based upon the foregoing, we find no clear and convincing evidence that a material part of the consideration for the deed was an agreement to support the grantor during his lifetime; therefore, we find that the grantor failed to meet the burden of proof imposed under § 8-9-12.
The judgment of the trial court setting aside the conveyance, the mortgage, and the security agreement is hereby reversed and the cause is remanded for further proceedings consisten with this opinion.
In view of our holding, we do not address SouthTrust's contention that it was a bona fide mortgagee without notice and therefore came within the exception contained in the statute.
89-1493 REVERSED AND REMANDED.
89-1494 REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Ala.Code 1975, § 8-9-12, provides:
"Any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at the option of the grantor, except as to bona fide purchasers for value, lienees and mortgagees without notice, if, during the life of the grantor, he takes proceedings to annul such conveyance." | May 24, 1991 |
ad273b8b-0b24-49b8-9c27-6bc0b4bc9cff | Zimmerman v. Lloyd Noland Foundation | 582 So. 2d 548 | 1900923 | Alabama | Alabama Supreme Court | 582 So. 2d 548 (1991)
Milton ZIMMERMAN, Jr.
v.
The LLOYD NOLAND FOUNDATION, INC., and Charles Avant.
1900923.
Supreme Court of Alabama.
May 31, 1991.
*549 Carl E. Chamblee, Jr., Birmingham, for appellant.
W. Hill Sewell of Starnes & Atchison, Birmingham, for appellees.
HOUSTON, Justice.
Emma Zimmerman and her husband, Milton Zimmerman, Jr., sued The Lloyd Noland Foundation, Inc. (the operator of Lloyd Noland Hospital), and its employee Charles Avant (hereinafter collectively referred to as "the hospital") for damages based on negligence, alleging that Ms. Zimmerman was injured as a result of a fall she suffered while a visitor at the hospital. Charles Avant was operating a cleaning machine when Ms. Zimmerman's feet allegedly became entangled in an extension cord or a cord attached to that machine. As a result of the injuries Ms. Zimmerman received from the fall, Mr. Zimmerman claimed loss of services, consortium, and companionship.
While the personal injury action was pending, Ms. Zimmerman suffered cardiopulmonary arrest and died. The complaint was amended to add Mr. Zimmerman as administrator of the estate of Emma Huggins Zimmerman, deceased, to act on behalf of the deceased Ms. Zimmerman for her claim based on personal injury. The complaint was again amended to add a wrongful death claim, alleging that Ms. Zimmerman's injuries from the fall at the hospital caused her death. The hospital filed a motion to dismiss Ms. Zimmerman's personal injury action in the original complaint or, in the alternative, to dismiss the wrongful death action, contending that where a plaintiff has brought suit for both wrongful death and personal injury on the basis of a single act of negligence by a defendant, he must elect to sue under the wrongful death statute (Ala.Code 1975, § 6-5-410) or the survival statute (Ala.Code 1975, § 6-5-462); but that the plaintiff cannot recover under both. The hospital also filed a motion to dismiss Mr. Zimmerman's loss of consortium claim or, in the alternative, to dismiss the wrongful death action, contending that Mr. Zimmerman, as administrator, had to elect whether to sue under the wrongful death statute or to sue for compensatory damages for loss of consortium.
At a hearing on the motions, Mr. Zimmerman, as administrator, agreed to dismiss the personal injury action brought on behalf of Ms. Zimmerman in favor of pursuing the wrongful death claim, but the trial court denied the hospital's motion to dismiss Mr. Zimmerman's consortium claim:
Thereafter, the hospital filed a motion for separate trials pursuant to Rule 42, Ala.R. Civ.P., on the wrongful death claim and Mr. Zimmerman's loss of consortium claim, contending that it would be prejudicial to the hospital to permit the jury deciding the issue of damages in the wrongful death action (which damages are solely punitive in nature) to hear evidence of damages in the loss of consortium action (which damages are compensatory in nature and evidence as to which would include any suffering and illness of Ms. Zimmerman).
The trial court construed the hospital's motion for separate trials as a motion to dismiss the loss of consortium claim and granted the motion. Mr. Zimmerman filed a motion to set aside the dismissal of his loss of consortium claim. Subsequently, the hospital filed a motion for summary judgment on the wrongful death action, to which nothing was submitted in opposition. After a hearing on both of these motions, the trial court granted the hospital's motion for summary judgment on the wrongful death action and denied Mr. Zimmerman's motion to set aside the dismissal of his loss of consortium claim. Mr. Zimmerman appeals from the trial court's judgment denying his motion to set aside the *550 dismissal of the loss of consortium claim.[1]
The issue for our review is whether the trial court erred in dismissing Mr. Zimmerman's loss of consortium claimmore specifically, whether the trial court erred in holding that the election by Mr. Zimmerman, as administrator of Ms. Zimmerman's estate, to dismiss Ms. Zimmerman's personal injury claim against the hospital in favor of pursuing a wrongful death action barred Mr. Zimmerman's individual claim for loss of consortium.
The hospital argues that "[t]he consequence of [Mr. Zimmerman's] action [when acting in his capacity as administrator of Ms. Zimmerman's estate and dismissing her personal injury action to pursue the wrongful death claim] [was] to extinguish all claims which derived from the personal injury action in favor of pursuing the claim for wrongful death." In essence, the hospital contends that when Mr. Zimmerman, as administrator, consented to dismiss Ms. Zimmerman's personal injury claim in favor of the wrongful death claim, he made "a conscious decision to dismiss all tort claims arising out of the personal injury action" and that such action in effect constituted a dismissal of his claim for loss of consortium. Furthermore, the hospital contends that "it would be illogical in a case where there is no evidence that Ms. Zimmerman's injury [had] any relation to her death to allow a derivative consortium claim to survive although the personal injury action is dismissed."
What the hospital would have us hold is that because Mr. Zimmerman, as administrator of Ms. Zimmerman's estate, elected to pursue the wrongful death action over Ms. Zimmerman's personal injury action and because the trial court entered a summary judgment in its favor on the wrongful death action, Mr. Zimmerman should somehow be barred from suing in his individual capacity for damages for loss of consortium caused by Ms. Zimmerman's injury, which he contends was caused by the negligence of the hospital. By consenting to dismiss Ms. Zimmerman's personal injury action in order to pursue the wrongful death action, Mr. Zimmerman apparently was acting under a mistaken interpretation of the election of remedies statute, Ala. Code 1975, § 6-5-440. Therefore, the hospital's analysis must fail for the following reasons:
In Price v. Southern Ry., 470 So. 2d 1125, 1130-31 (Ala.1985), we stated:
"217 Ala. at 660, 117 So. at 288.
"There is no reason in law or logic to hold that a wife's cause of action for the loss of consortium abates with the death of her husband. The cause of action belongs to her, and the loss is hers, not his. She has been deprived of her right of full marital participation with her husband because of the acts of the defendant. The fact that her husband died should not deprive her of the damages she suffered from the time of his injury until his death. [Citations omitted.]
"Wilson v. Iowa Power & Light Co., 280 N.W.2d 372 (Iowa 1979)."
(Some emphasis original; other emphasis added.)
Furthermore, as this Court stated in Mattison v. Kirk, 497 So. 2d 120, 123 (Ala. 1986):
(Some emphasis original; other emphasis added.)
Based on the foregoing, we conclude that because Mr. Zimmerman's claim for loss of consortium was independent of either Ms. Zimmerman's personal injury action or the wrongful death action, the trial court erroneously dismissed the consortium claim. Therefore, we reverse the judgment and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] We note that although Mr. Zimmerman appealed the trial court's dismissal of the loss of consortium claim and its summary judgment in favor of the hospital on the wrongful death action, Mr. Zimmerman argues only the loss of consortium claim. Therefore, our review is limited to that issue. See Rule 28(a)(5), A.R. App.P.; Hickox v. Stover, 551 So. 2d 259 (Ala. 1989). | May 31, 1991 |
f26f0f7e-994a-4d79-b478-57760163bd8c | Tibbs v. Anderson | 580 So. 2d 1337 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 1337 (1991)
Anna H. TIBBS
v.
Mark ANDERSON III, as administrator of the estate of Thurlow E. Tibbs, deceased.
89-1625.
Supreme Court of Alabama.
May 17, 1991.
*1338 Malcolm N. Carmichael and Patricia A. Hamilton of Balch & Bingham, Montgomery, for appellant.
Richard L. Holmes and Laura L. Crum of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
MADDOX, Justice.
The widow appeals from a ruling that a postnuptial agreement that she had signed was valid and, therefore, barred her petition for an elective share of the deceased husband's estate. We affirm.
This case arose from the following facts:
Thurlow E. Tibbs and Anna H. Tibbs were married on February 5, 1977, and remained married until Mr. Tibbs's death on October 20, 1984. Prior to their marriage, they had lived together for approximately five months in Mr. Tibbs's Montgomery home. Prior to that time, the wife had lived with her sister in New York City.
The day before their marriage was to take place, Mr. Tibbs asked the appellant to sign a prenuptial agreement. She refused, according to her, because she "was highly insulted and hurt that he did not trust [her]." Although she testified that she stated that she wished to postpone the ceremony until this matter could be resolved, they married the next day, as they had planned.
Within two hours after their marriage ceremony, and while the two were visiting friends, Mr. Tibbs again asked the wife to sign the agreement. At that time, the wife signed the agreement. It was witnessed by one of the friends they were visiting. The wife testified at trial that she had discussed the agreement with this friend before she signed it. She also testified that she signed the agreement in order to "get some peace and harmony and balance in this relationship." She further testified that she had read the agreement and that she understood what it said. The agreement, in pertinent part, provided:
Upon Mr. Tibbs's death, the wife filed for a widow's elective share of his estate, despite the fact that she had signed the agreement. The trial court ruled that the agreement was valid and that her claim for an elective share was barred. The wife appeals.
The wife asserts that the trial court erred in holding that the agreement was valid. She contends that there was no full and fair disclosure of assets between the parties, that she did not receive competent independent advice, that the agreement was not supported by adequate consideration, and that the agreement was not fair, just, and equitable from her point of view. She asserts that, under Alabama law, any one of the above factors would invalidate the postnuptial agreement.[1]
*1339 At the outset, we note that prenuptial and postnuptial agreements are valid in Alabama. Ala.Code 1975, §§ 30-4-9, 43-8-72; Ruzic v. Ruzic, 549 So. 2d 72 (Ala.1989); Woolwine v. Woolwine, 519 So. 2d 1347 (Ala.Civ.App.1987); Barnhill v. Barnhill, 386 So. 2d 749 (Ala.Civ.App.1980); cert. denied, 386 So. 2d 752 (Ala.1980); and Campbell v. Campbell, 371 So. 2d 55 (Ala.Civ. App.1979). However, courts scrutinize such agreements to determine whether they are just and reasonable. Woolwine; Barnhill; Hall v. Cosby, 288 Ala. 191, 258 So. 2d 897 (1972); and Hamilton v. Hamilton, 255 Ala. 284, 51 So. 2d 13 (1951).
Section 43-8-72 permits a spouse to waive all statutory rights in the other spouse's property:
(Emphasis added.)
This Court has not previously addressed the validity of one spouse's postnuptial waiver of statutory rights in the other spouse's property. However, because the same concerns regarding the existence of undue influence or advantage by the dominant spouse in obtaining a waiver exist both before and after the marriage, we follow the same line of reasoning used in determining the validity of prenuptial waivers.
In Barnhill, the Alabama Court of Civil Appeals established the either/or test that we use here in determining whether the subject agreement is valid. This test may be applied in postnuptial agreements, as well as prenuptial agreements, and it states that, in order for an agreement to be valid, the one seeking to enforce the agreement "has the burden of showing that the consideration was adequate and that the entire transaction was fair, just and equitable" from the other party's point of view or "that the agreement was freely and voluntarily entered into ... with competent, independent advice and full knowledge of [any] interest in the estate and its approximate value." Barnhill, 386 So. 2d at 751.
In a case in which the evidence is presented to the trial court ore tenus, such as this one, the findings of the trial court are presumed correct and will not be set aside unless they are plainly and palpably wrong or unjust. Knox Kershaw, Inc. v. Kershaw, 552 So. 2d 126 (Ala.1989). In this case, there was evidence to support the trial court's findings. Therefore, we affirm.
In order to be valid, a postnuptial agreement must meet one of the two tests set out in Barnhill. The first test requires that the consideration be adequate and that the entire transaction be fair, just, and equitable from the point of view of the party against whom it is being enforced. We first consider the consideration aspect of this test.
Marriage may, under appropriate circumstances, be sufficient consideration for an prenuptial agreement. Stadther v. Stadther, 526 So. 2d 598 (Ala.Civ.App.1988); Barnhill, 386 So. 2d at 751; and Woolwine, 519 So. 2d at 1349. We note that in the present case, the appellant signed the agreement within two hours of her marriage. The close proximity in time between the marriage and the execution of the agreement would support a finding that the two promises were essentially concurrent, a requirement under the law of consideration. Gregory v. Hardy, 53 Ala.App. 705, 304 So. 2d 209 (Ala.Civ.App.1974). Furthermore, Mr. Tibbs also relinquished any right to the wife's estate by this agreement. His relinquishment of a claim could also be considered adequate consideration for the appellant to sign the agreement.
*1340 The first test in Barnhill further requires that the proponent of the agreement must show that the agreement was fair, just, and equitable from the other party's point of view. In this case, the wife testified that she had read the agreement several times and that she understood its contents. In addition, there was evidence from which the trial court could infer that she knew the general extent of Mr. Tibbs's estate. Furthermore, despite the fact that she was initially reluctant to sign the agreement, she nevertheless voluntarily signed it. There was sufficient evidence upon which the trial court could base its finding that the agreement was valid. There is no indication that the trial court was plainly and palpably wrong in holding that this agreement was fair, just, and equitable from the wife's point of view. Therefore, the requirements of the first test have been met.
Because we hold that the requirements of the first test, as outlined in Barnhill, have been met, we do not address the second test.
Based on the foregoing, the trial court could have found that the agreement meets the first part of the either/or test set out in Barnhill. The trial court was not plainly and palpably wrong in holding that the agreement was valid. We affirm.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Although the parties to this appeal present their arguments only under the case law concerning prenuptial agreements, we think the judgment of the trial court can also be sustained under the statutory law concerning postnuptial contracts. See Ala.Code 1975, § 30-4-9; see also Ray v. Ray, 238 Ala. 269, 189 So. 895 (1939); Hill v. Hill, 217 Ala. 235, 115 So. 258 (1928); Crowder v. Crowder, 217 Ala. 230, 115 So. 256 (1928); Manfredo v. Manfredo, 191 Ala. 322, 68 So. 157 (1915); Harraway v. Harraway, 136 Ala. 499, 34 So. 836 (1902). | May 17, 1991 |
c6a80175-4fe0-4cf3-b607-ceaee89f1392 | Ex Parte AMI West Alabama General Hosp. | 582 So. 2d 484 | 1900499, 1900600 | Alabama | Alabama Supreme Court | 582 So. 2d 484 (1991)
Ex parte AMI WEST ALABAMA GENERAL HOSPITAL.
(Re Willita ZOELLNER, as administratrix of the Estate of Michael Goodson, deceased v. AMI WEST ALABAMA GENERAL HOSPITAL).
Ex parte Allie C. BOYD.
(Re Willita ZOELLNER, as administratrix of the Estate of Michael Goodson, deceased v. AMI WEST ALABAMA GENERAL HOSPITAL).
1900600, 1900499.
Supreme Court of Alabama.
May 24, 1991.
Lyman H. Harris and Linda E. Winkler of Harris, Evans, Berg & Morris, Birmingham, for petitioner AMI West Alabama General Hosp.
Andrew P. Campbell and Shawn Hill Crook of Leitman, Siegal, Payne & Campbell, Birmingham, for petitioner Dr. Allie C. Boyd.
Ralph I. Knowles, Jr. of Doffermyre, Shields, Canfield & Knowles, Atlanta, Ga., for respondent.
SHORES, Justice.
Michael Goodson was admitted to the psychiatric unit of AMI West Alabama General Hospital on February 21, 1989, allegedly under the primary care of Allie C. Boyd, M.D., a psychiatrist. Goodson committed suicide four days later, on February 25, 1989. Goodson was admitted suffering from painful and acute paranoid disturbances related primarily to his admittedly homosexual lifestyle, his fear and paranoia that he was infected with the AIDS virus, and an intense feeling of guilt resulting from a fear that he had perhaps passed on the virus to one or more of his married homosexual partners, and, subsequently, to their children. Goodson's mother, Willita Zoellner, who, as administratrix of his estate, brought a wrongful death action against AMI and Dr. Boyd, does not dispute this description of his condition upon admission to AMI.
In her wrongful death action, Mrs. Zoellner alleges that the defendants were negligent *485 in treating her son; specifically, she alleges that based upon the information they had, or should have had, concerning Goodson's mental condition, the defendants' treatment of him fell below the appropriate standard of care in treating, housing, and supervising him in the psychiatric unit at AMI.
Dr. Boyd had never met Goodson before his admission to AMI. For many years prior to his death, Goodson had lived in Boston, Massachusetts. Dr. Boyd served on Mrs. Zoellner interrogatories and requests for production of documents, seeking information about her son's history, his close personal friends, and potential witnesses in this case. In response, Mrs. Zoellner identified several people, all of whom live in or near Boston, as personal friends of her son. She also identified a psychologist, also located in Boston, who had previously treated her son. AMI then noticed the depositions of the Boston psychologist and the persons identified in response to Dr. Boyd's interrogatories. AMI filed motions to take these depositions by videotape pursuant to Rule 30(b)(4), Ala.R. Civ.P. Mrs. Zoellner promptly filed a motion to quash the depositions of the Boston residents and a motion for a protective order. After a hearing, the trial court granted the plaintiff's motion to quash all of the depositions except that of the treating psychologist. The defendants, AMI and Dr. Boyd, seek a writ of mandamus requiring the trial judge to vacate his order quashing the depositions of the Boston residents and to enter an order allowing the depositions to proceed by stenographic means for discovery purposes, subject to any protective order necessary to protect confidentiality.
The underlying lawsuit is a wrongful death action seeking punitive damages for the defendants' alleged negligence in treating the plaintiff's decedent. The defendants contend that the history of the decedent supplied by him and his mother, the plaintiff in this suit, supplied the essential basis of the treatment they administered to him. The decedent was unknown to the defendants, and the only people who did know him lived in the Boston area. He was in Alabama visiting his mother at the time of his admission to AMI. After three days in the hospital, he was allowed to leave the psychiatric unit for a "home visit." He was found dead in his hospital room after the home visit. He apparently committed suicide by placing a plastic trash container liner over his head, tying a rope around his neck and the plastic liner, and hanging himself from the door. The plaintiff alleges that despite a clear record of suicidal potential, the defendants took no steps to place the patient under any kind of suicide observation, and, therefore, that the defendants' treatment of the decedent fell below acceptable standards.
The defendants contend that they are entitled to take the depositions of those persons who can provide additional information about the decedent. They argue that, to the extent that the information supplied by the decedent and his mother upon his admission to the hospital was false or incomplete, it could create a contributory negligence defense to the wrongful death action.
Rule 26(b)(1), A.R.Civ.P., provides:
This rule contemplates a broad right of discovery. Discovery should be permitted if there is any likelihood that the information sought will aid the party seeking discovery in the pursuit of his claim or defense. Discovery is not limited to matters that would be admissible as evidence *486 in the trial of the lawsuit. Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981). A trial judge, who has broad discretion in this area, should nevertheless incline toward permitting the broadest discovery and utilize his discretion to issue protective orders to protect the interests of parties opposing discovery. Wright and Miller express this notion in the following language:
8 C. Wright & A. Miller, Federal Practice and Procedure § 2008, at 46-47 (1970).
It is true, as the plaintiff points out, that while mandamus is the proper means of review to determine whether a trial court has abused its discretion in discovery matters, and that the writ is seldom issued because the trial judge possesses great discretion in discovery matters, Ex parte Mack, 461 So. 2d 799, 801 (Ala.1984), we venture to suggest that the writ issues more often in instances where the trial court has restricted or prohibited discovery than in instances where liberal discovery has been allowed. This is so because Rule 26, Ala.R.Civ.P., permits such broad discovery and Rule 26(c) supplies a safeguard, by way of protective orders, that allows the trial court to prevent any party from abusing the discovery process.
We note that in this case the trial judge expressed his belief in full and liberal discovery, but granted the plaintiff's motion to quash. His reason for doing so may have been based upon the defendants' argument advanced in opposition to the plaintiff's motion to quash. According to the plaintiff's brief, which is uncontested, the defendants argued before the trial judge that the objective of the depositions was to "show the jury the lifestyle that the deceased led." In support of their petition for writ of mandamus, the defendants have abandoned this argument and argue instead that they are entitled to discover anything that might help them establish a defense of contributory negligence. They do not contend in this Court that they intend to "show the jury the lifestyle that the deceased led." They seem to acknowledge that Goodson's lifestyle would not be relevant as to the amount of punitive damages, if any, to which the plaintiff would be entitled in an action based on wrongful death.
The plaintiff stated in her motion to quash:
Both arguments assume that information discovered by way of the depositions will be admitted into evidence. The decedent's "lifestyle" has no bearing on the amount of damages that may be awarded under Alabama law in a wrongful death action. The trial judge is learned in the law and is capable of keeping prejudicial information from the jury on the trial of this case. The defendants state here that "Counsel for both Defendants offer[ed] to consent to the most stringent of protective orders, to seal the depositions, to limit the scope of questioning, and any other reasonable restriction in order to proceed with the depositions."
In adopting liberal discovery rules, this Court, like other courts in this country, did so believing that lawyers, being officers of the court, would cooperate with each other in the best interests of their clients and would not abuse the process. Experience *487 has shown that such has not always been the case. Some lawyers do abuse the process, at great expense to their clients and to the great frustration of the trial bench. The lawyers involved in this case are respected members of the bar. The trial judge is a wise and experienced trial judge. Together they can and should reach an agreement on the scope of the questioning and the extent to which any information discovered should be protected. In their quest to discover information about the decedent in this case, the defendants' lawyers have no right to invade the privacy of citizens who may have known him. They are entitled to learn anything that might aid them in defense of the lawsuit against them, but no more than that. The plaintiff has admitted that the decedent was a homosexual and that he had had sexual relations with men, some of whom were married and had children. The defendants have no right to know who these people were, because such knowledge cannot possibly aid them in the defense of this case. They might learn from the people who knew him things about Michael Goodson that they do not now know and that might either help in defending the case or lead to information that would. For example, suppose it is discovered that the decedent was addicted to drugs, and this fact had not been disclosed to the defendants; or suppose it is discovered that the decedent had attempted suicide many times before, and this had not been disclosed to the defendants; this is the kind of information that Rule 26 allows the defendants to discover. The trial court, with the cooperation of the lawyers for both sides, should fashion an order that will preserve the purpose of Rule 26, without invading the privacy of any third party to this litigation. It should also determine whether any or all information discovered on deposition of these parties should be sealed. And, finally, the trial court will determine what evidence is admissible on the trial of this case.
Except for construing Rule 26 and the other discovery rules found in the Rules of Civil Procedure to accomplish the purpose of those rules, this Court is ill equipped to decide discovery disputes. There should be few such disputes, because lawyers acting professionally should be able to agree on most discovery issues, but, when they can not, the trial courts are necessarily in a better position to decide discovery disputes and to control the discovery process to prevent abuse by either side. We have no doubt that the lawyers and trial judge in this case can do exactly that.
WRITS GRANTED CONDITIONALLY.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | May 24, 1991 |
4ca342e1-eb9f-444c-8572-86635e5e16a2 | Hamilton Auto Parts, Inc. v. Rea | 580 So. 2d 1328 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 1328 (1991)
HAMILTON AUTO PARTS, INC., and Lowell Parker
v.
Jerry L. REA, et al.
89-1700.
Supreme Court of Alabama.
May 10, 1991.
*1329 William Todd Atkinson, William H. Atkinson, and James K. Davis of Fite, Davis, Atkinson & Bentley, Hamilton, for appellants.
Richard E. Fikes, Jasper, for appellees.
HORNSBY, Chief Justice.
This is a negligence case. Lowell Parker and Hamilton Auto Parts, Inc., sued Jerry L. Rea, Louie Miller, and State Farm Mutual Automobile Insurance Company. (At the time of the alleged negligence in this case, Parker owned 51% of the stock in Hamilton Auto Parts. Before trial, Parker had purchased the other shareholder's 49% of the stock.) Hamilton Auto Parts alleged that Rea, while acting within the line and scope of his employment for Miller, negligently operated a motor vehicle and thereby caused that vehicle to hit the building where Hamilton Auto Parts operated its business. The plaintiffs alleged that the collision resulted in damage to the equipment, fixtures, and supplies in the building; the corporation sought compensation for that damage and sought damages for an alleged loss of profits. Parker, suing in his individual capacity, sought damages to compensate for emotional distress that he alleged had resulted from Rea's negligence. The plaintiffs sued State Farm for underinsured motorist insurance benefits from two policies Parker maintained. State Farm was dismissed.
The case was tried on December 15, 1989, and the jury returned verdicts in favor of the defendants. The court denied the plaintiffs' motion for new trial and the plaintiffs now appeal from the judgment entered on the verdict. We affirm.
The accident occurred on June 5, 1987. Hamilton Auto Parts operated a store in Hamilton, Alabama. Parker managed the business and received a salary. The building where the business was conducted was located on Highway 78 (Bexar Avenue) and was rented from Ed Lawhon and James Ed Lawhon.
On the day of the accident, Parker, his daughter, and an employee were in the building. Parker testified that he heard a noise and that when he looked up he saw a tractor-trailer truck coming between a tree and a utility pole in front of the building, and heading toward the building. He testified that he yelled to his daughter, who was buffing the floor at the time, to get out of the building. The three escaped before the tractor-trailer truck collided with the building.
On June 5, 1987, defendant Rea was employed as a truckdriver by defendant Miller, who was doing business as Louie Miller Logging Company. Rea had been a truckdriver for approximately five years and had driven the 1984 Mack truck involved in the accident for about six months prior to the accident. Rea testified that on the day of the accident he had picked up an 82,000-pound load of pulpwood in Tremont, Mississippi, for delivery to Courtland, Alabama. Rea said that in preparation for the haul, he connected the pulpwood trailer and air hoses to the truck, which was owned by Miller; adjusted and checked the brakes on both the tractor and trailer; and checked the brake liners and pads and found them to be in good condition.
Rea said that he traveled east on Highway 78 from Tremont to Hamiltonapproximately 15 miles. He said that before the accident, he had come to two complete stops without any trouble. In addition, he testified that because the roads between Tremont and Hamilton were hilly, he had had to apply his brakes on several occasions, *1330 and he said that on those occasions he had had no problems.
Rea indicated that while he was traveling down Mitchell Hillthe plaintiffs' business was located at the bottom of this hillthe tractor-trailer truck lost air pressure and that when he attempted to apply the brakes the brake pedal went to the floor. He stated that this occurred approximately two and one-fourth blocks from the plaintiffs' business. He stated that after the truck lost its air pressure, the trailer brakes "locked down" and that he applied the "jake brake" for the purpose of slowing down the engine and bringing the tractor-trailer to a stop.
Rea testified that he was faced with a sudden emergency when the tractor-trailer truck lost its air pressure while he was coming down Mitchell Hill. He testified that he did not attempt to drive the tractortrailer truck into the opposite traffic lane because of oncoming traffic. Rea further testified that he did not attempt to shift to a lower gearhe said he was in fourth gear at the time of the loss in air pressurebecause he was afraid that upon moving out of the higher gear he might be unable to get the transmission into the lower gear and that the speed of the vehicle would then increase rather than decrease. Rea said that in an effort to stop the truck he attempted to rub the tractortrailer tires against the street curb and that in a further effort to stop the truck he sideswiped another truck that was in his lane of travel. Rea testified that after these efforts failed to stop the truck, he ran it off the roadway and that it eventually collided with the Hamilton Auto Parts building.
The ultimate issues in this case are whether the plaintiffs adequately preserved for appellate review the trial court's alleged error in refusing to give their requested jury charges 9 and 10, and whether they preserved for appellate review the applicability of the defense of mechanical failure or defect and the defense of sudden emergency.
A trial court's refusal to give a requested written jury charge is not error where the court's oral charge adequately covers the principles stated in the requested charge. Rule 51, A.R.Civ.P.; Standard Plan, Inc. v. Tucker, [Ms. 89-1397, March 15, 1991] (Ala.1991); McGehee v. Harris, 416 So. 2d 729 (Ala.1982). Rule 51 states in part:
The purpose of stating grounds for objection is to enable the trial court to correct its instructions and to avoid the waste of time from reversals resulting from technical omissions or oversights. Standard Plan, Inc. v. Tucker; Crigler v. Salac, 438 So. 2d 1375 (Ala.1983); Gardner v. Dorsey, 331 So. 2d 634 (Ala.1976).
The plaintiffs' requested jury charge number 9 stated:
The plaintiffs' requested jury charge number 10 stated:
The trial court refused to give these requested charges, and the plaintiffs did not object to this refusal. Nevertheless, from a reading of the charge as a whole, it appears that the trial court gave or substantially gave both of these requested instructions to the jury in its oral charge. See Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986).
First, in regard to instruction number 9, we note that the court gave an instruction on a substantially similar rule of law with respect to service and maintenance of a vehicle. In its oral charge to the jury, the court read several statutes concerning the Alabama Rules of the Road; the court then stated:
Second, in regard to plaintiffs' requested jury instruction number 10, we note that while the trial court refused the written instruction, it gave the following instruction, which is almost identical to the requested instruction:
In regard to the defenses of mechanical defect or failure and sudden emergency, the trial court orally charged the jury as follows:
In further instructing the jury, the trial court stated:
After charging the jury, the trial court asked the parties whether they had any objections. The plaintiffs' attorney stated:
In response to the parties' exceptions to the oral charge, the court rejected all of the exceptions save one by the defendants regarding proximate cause. The record reveals that the plaintiffs made no objection to the jury instructions regarding the defenses of mechanical defect or failure and sudden emergency; consequently, the plaintiffs failed to preserve this issue for appellate review. General Sales Co. v. Miller, 454 So. 2d 532 (Ala.1984); Crigler v. Salac, 438 So. 2d 1375 (Ala.1983).
Even though the trial court refused to give the plaintiffs' requested jury instructions 9 and 10, it did substantially give those requested instructions in its oral charge; thus we hold that the trial court did not err in refusing the charges. We also hold that the plaintiffs failed to preserve for appellate review their arguments concerning the defenses of mechanical defect or failure and sudden emergency. Accordingly, we affirm the trial court's judgment.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | May 10, 1991 |
b1cf1dec-3889-4d91-8d81-97c5c5a3dc1f | Shadrick v. Johnston | 581 So. 2d 805 | 1900062 | Alabama | Alabama Supreme Court | 581 So. 2d 805 (1991)
Billy P. SHADRICK, et al.
v.
S. David JOHNSTON, et al.
1900062.
Supreme Court of Alabama.
April 19, 1991.
As Modified on Denial of Rehearing May 24, 1991.
*806 Tennent Lee III of Burr & Forman, Huntsville, for appellants.
Gary C. Huckaby, G. Rick Hall and H. Knox McMillan of Bradley, Arant, Rose & White, Huntsville, for appellees.
SHORES, Justice.
This case involves the sale of stock in Dalcor Properties, Inc., the general partner in over 50 limited partnerships. Billy P. Shadrick and Oren J. Heffner (hereinafter "the buyers") entered into an agreement for the sale of Dalcor Properties, Inc., with S. David Johnston, Gary D. Joyce, and Danny L. Wiginton (hereinafter "the sellers"). The buyers claim that the agreement is ambiguous as to the purchase price.
Paragraph 3 of the agreement and its 10 subparts specify 10 different sums, which, when added together, equal the purchase price of the Dalcor stock. Paragraphs 3A through 3E require the payment of a certain percentage of proceeds derived from properties owned by Dalcor. Paragraph 3F requires the payment of fees and profits received up to December 31, 1984, on some of the projects previously listed in the contract, as well as a sum equal to the annual general partner fees, cash flow, and investor service fees on all projects described in subparagraphs A, C, D, and E.
Paragraph 3 reads as follows:
Paragraph 3F is the source of the parties' disagreement.
The buyers allege that paragraph 3F is ambiguous because it sets out the amount to be paid in a manner different from paragraphs 3A through 3E. The buyers also allege that 3F is inconsistent because *810 it requires the payment of fees and profits derived from some of the same sources mentioned in other preceding paragraphs. The sellers allege that the contract entitles them not only to the sum of the fees in 3F, but also to the sum of the percentages of profits specified in paragraphs 3A through 3J.
This dispute was brought to the court's attention by First Alabama Bank of Huntsville, which, by agreement of the parties, was to act as the escrow agent. As the agreement stated, the bank received the stock certificates from the sellers. When the parties disagreed as to whether the purchase price had been paid by the buyers, the bank filed an interpleader action, listing all persons involved in the agreement. The court discharged the bank from the action and from any liability. The bank delivered the stock certificates to the clerk of the court for safekeeping.
By order of the court, the sellers became the plaintiffs and the buyers became the defendants. The sellers' complaint alleged that the buyers were in default of the original agreement for failure to pay the agreed-upon purchase price and that as a result of the default the agreement was void. The buyers alleged that they were not in default and that the sellers' actions amounted to anticipatory repudiation or breach of the agreement. The buyers asked the court to reform the allegedly ambiguous purchase price. The trial court found no ambiguity in paragraph 3F and granted the sellers a summary judgment. The buyers appealed.
Whether a contract is ambiguous is a question of law. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928 (Ala.1985). If the meaning of the contract can be discerned through a plain reading, the court will not twist the language in order to create ambiguities. ERA Commander Realty, Inc. v. Harrigan, 514 So. 2d 1329 (Ala.1987). The court will give a natural meaning to the words in a contract so that all provisions of the contract are given a reasonable interpretation. Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So. 2d 314 (Ala. 1979). We agree with the trial court that there is no ambiguity in this contract. The inclusion of paragraphs 3A through 3E in addition to paragraph 3F indicates that the purchase price was intended to be the sum of all the paragraphs, 3A through 3J.
The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, KENNEDY and INGRAM, JJ., concur. | May 24, 1991 |
ea3eafa4-22aa-4ec5-a9e5-602077d6e5bf | Brillant v. Royal | 582 So. 2d 512 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 512 (1991)
Helen B. BRILLANT and Eugene G. Brillant
v.
Dr. Lorenza ROYAL and Sterling Medical Associates.
Dr. Lorenza ROYAL and Sterling Medical Associates
v.
Helen B. BRILLANT and Eugene G. Brillant.
89-1303, 89-1392.
Supreme Court of Alabama.
May 31, 1991.
*514 Tom Dutton of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellants/cross-appellees.
Davis Carr, of Pierce, Carr & Alford, Mobile, for appellees/cross-appellants.
ALMON, Justice.
This is a medical malpractice action brought by Helen and Eugene Brillant against Dr. Lorenza Royal and Sterling Medical Associates (hereinafter "Sterling"). The Brillants allege that Dr. Royal's failure to diagnose Mrs. Brillant's cerebral aneurysm, manifested on March 25, 1987, by a sudden severe headache, which is a classical symptom of a "warning leak," was the proximate cause of paralysis she later suffered because of a full rupture of the aneurysm on April 10. Specifically, the Brillants contend that Dr. Royal negligently failed to perform a computerized tomography scan ("CT scan" or "catscan"), to perform a lumbar puncture test, or to consult a neurologist, and that this failure prevented an accurate diagnosis of Mrs. Brillant's condition and proximately caused her later paralysis. The Brillants also contend that Sterling is vicariously liable for Dr. Royal's negligence because, they contend, Dr. Royal was an employee or agent of Sterling. The trial court directed a verdict for Sterling on the ground that there was no evidence that Dr. Royal was anything other than an independent contractor and directed a verdict for Dr. Royal on the ground that the Brillants had not presented substantial evidence that Dr. Royal's actions proximately caused Mrs. Brillant's injuries.
The evidence revealed that on March 24, 1987, while the Brillants were visiting friends in Valdosta, Georgia, Mrs. Brillant experienced the sudden onset of an extremely severe headache. When the headache would not subside, the Brillants left Valdosta to return home that night. At approximately 6:45 the next morning Mrs. Brillant visited the emergency room at Lyster Army Community Hospital. Dr. Royal wrote a medical record of her account of the sudden onset of the headache, including her statements that she had been vomiting, that the headache was radiating up her scalp and down her back, that her neck was sore on full range of motion and to palpation, and that the "pain was worse than her migraines" she had suffered years before (emphasis by Dr. Royal). He performed an examination to test for nerve function deficits, but found no such deficits. He diagnosed a spastic muscular headache, prescribed an analgesic and a muscle relaxer, and instructed Mrs. Brillant to "return as needed."
On April 2, 1987, eight days after her first visit, Mrs. Brillant returned to Lyster Army Hospital for further treatment for her headaches, which, although persistent, were not as severe as her initial headache. Dr. Fidel Velez examined Mrs. Brillant, performed some routine tests, prescribed an analgesic and muscle relaxer, and recommended physical therapy. Apparently Dr. Velez did not know that Dr. Royal had examined Mrs. Brillant.
On the morning of April 10, 1987, Mrs. Brillant suffered a full rupture of an aneurysm; that rupture produced a massive subarachnoid hemorrhage. Her husband took her to the emergency room at Dale County Hospital. Dr. John Wessner, an emergency room doctor, ordered a CT scan, which revealed her condition, and transferred her to Flowers Hospital in Dothan so that she could be evaluated and treated by a neurosurgeon. Further tests conducted at Flowers Hospital confirmed a subarachnoid hemorrhage with "a large amount of blood in the subarachnoid space." The following morning Dr. Bruce Woodham and Dr. Christopher Boxell performed neurosurgery on Mrs. Brillant in order to repair the ruptured blood vessel. Initially following surgery, Mrs. Brillant's prognosis was very good. However, three days later a CT scan demonstrated right frontal temporal edema, and, shortly thereafter, she suffered a vasospasm that caused paralysis of her left side. Subsequent rehabilitation has not corrected Mrs. Brillant's condition.[1]
*515 The trial commenced with the Brillants presenting the testimony of Dr. Wayne Longmore as their expert witness. The Brillants also called Dr. Royal as an adverse witness. When the Brillants rested their case-in-chief, the defendants filed a motion for directed verdict. The court directed a verdict for Sterling on the basis that the Brillants had not presented substantial evidence that Dr. Royal was an employee of Sterling so as to justify imposing vicarious liability on Sterling. However, the court denied the motion as to Dr. Royal.
At the conclusion of all the evidence, Dr. Royal renewed his motion for directed verdict. The court granted this motion after specifically finding that the Brillants had failed to produce substantial evidence[2] that Dr. Royal's alleged negligence proximately caused Mrs. Brillant's injuries. The Brillants now challenge the directed verdicts in favor of Dr. Royal and Sterling. They also raise as error two of the trial court's rulings on objections during the trial. Dr. Royal and Sterling have cross-appealed and raise as error the trial court's refusal to enter a summary judgment in their favor on (1) the theory of efficient, intervening cause, or (2) their assertion that the Brillants' exclusive remedy is against the United States under the Federal Tort Claims Act ("FTCA").
Because the FTCA, if applicable, forecloses any remedy other than that provided against the United States, we first address whether the trial court erred in denying Sterling and Dr. Royal's motion for summary judgment on this basis. The "Gonzales Act," codified at 10 U.S.C. § 1089, provides as follows:
10 U.S.C. § 1089 (1983). The immunity provided by § 1089 applies only if the doctor is serving in active military duty or is a civilian employee of the armed forces. Doctors practicing medicine at military hospitals as independent contractors bear personal liability for their negligent and/or wanton acts just as doctors practicing in the private sector bear their own liability. These independent contractors are not "employees of the government," and, thus, are not covered by the Government's cloak of immunity. Lilly v. Fieldstone, 876 F.2d 857 (10th Cir.1989); Norton v. Murphy, 661 F.2d 882 (10th Cir.1981).
In Lilly, the Tenth Circuit Court of Appeals recognized that a determination of whether a physician was an individual contractor or was an employee of the Government did not depend strictly on the "control" exerted by the Government because "[i]t is uncontroverted that a physician must have discretion to care for a patient and may not surrender control over certain medical details." 876 F.2d at 859. Therefore, the analysis employed by that court centered on "whether other evidence manifests an intent to make the professional an employee subject to other forms of control which are permissible." Id. In making that determination, the court in Lilly analyzed the following questions: (1) Did the physician have an arrangement with the hospital whereby he was always required to see patients there? (2) did the physician bill the Army separately at his standard *516 rates or did the physician reduce his fees when treating a military patient? (3) could the physician maintain a private off-base office? (4) did the physician have exclusive control over his patients and records? (5) did the Government furnish the physician with permanent and private office space or secretarial help at the hospital? (6) did the physician work under a written contract with the Government? (7) was the physician regularly scheduled on the hospital duty roster? and (8) did the physician maintain regular or prescribed office hours as a civilian physician?
In view of the Lilly analysis, we will review the relationship of Dr. Royal, Sterling, and Lyster Army Hospital. The contract between Sterling and the Government reveals that Sterling was clearly an independent contractor rather than an employee of the Government.[3] The more disputed question, however, is the relationship of Dr. Royal to Sterling and Lyster. We first look at the contract between Dr. Royal and Sterling. That agreement recites that Dr. Royal is an independent contractor. He is paid by Sterling on an hourly fee basis, and his work schedule is determined by Sterling. Sterling also provided Royal with a "claims made" malpractice insurance policy and reimbursed Royal for the premiums on a "tail" malpractice insurance policy.[4] The contract also specifically allowed Dr. Royal to be employed as a doctor elsewhere, but provided that he could not be employed by any "medical activity" engaged in the delivery of emergency medical services at Lyster Army Hospital.
There was no written contract for services between Dr. Royal and Lyster Army Hospital. In reality, while Sterling and Dr. Royal argue that the Government controlled Dr. Royal's work at Lyster, so that Royal was cloaked with immunity, it appears that, as was the case with the doctor in Lilly, supra, the Government asserted no more control over the manner and methods used by Royal than a private hospital asserts over a private physician with staff privileges. Although Dr. Royal treated patients exclusively at Lyster Army Hospital in 1987, he did not enter into a written contract with the Government and was clearly free to maintain a private off-base medical practice. Dr. Royal did not bill the Army for his services and was not paid by the Government. The Government did prohibit Dr. Royal from being on duty for more than 12 consecutive hours for any one shift; however, Sterling, not the Government, controlled Dr. Royal's work schedule. "Surely, being subject to hospitals' rules as a condition of staff privileges does not remotely make a private physician an employee of that hospital." Lilly, supra.
Upon a thorough review of the record and a consideration of the parties' positions, we hold that the trial court correctly denied the defendants' motion for summary judgment based on the FTCA, because there was substantial evidence that both Sterling and Dr. Royal were independent contractors.
The same evidence shows that Dr. Royal's relationship to Sterling was that of an independent contractor. Sterling specified the hours that Dr. Royal worked and paid the premiums on Dr. Royal's malpractice insurance. Sterling was responsible for establishing and maintaining a quality control program to assure that the requirements of the contract between Sterling and the Government were provided as specified. This quality control plan included a plan for detailed inspections to be performed on a regular basis and a specified method of identifying and correcting deficiencies in the quality of services performed. Nevertheless, *517 the quality control plan did not give Sterling the right to tell Dr. Royal how to perform his duties or how to exercise his professional judgment. Rather, it was consistent with an owner or a general contractor's right to supervise the course of an independent contractor's performance without causing the independent contractor to be deemed an agent, so long as the contractor does not reserve or exercise the right to control the details of the independent contractor's performance. See, e.g., Alabama Power Co. v. Beam, 472 So. 2d 619 (Ala.1985). Sterling also retained the right to terminate its contract with Dr. Royal if, for any reason, he was considered "unacceptable" by the Government and/or Sterling, but that right is also consistent with Dr. Royal's status as an independent contractor. Thus, the evidence did not contradict the contract's recitation that Dr. Royal was an independent contractor, and the trial court correctly directed a verdict for Sterling.
We now address the Brillants' argument that the trial court erred in directing a verdict for Dr. Royal on the basis that the Brillants failed to present sufficient evidence that Dr. Royal's conduct proximately caused Mrs. Brillant's injuries. A directed verdict for the defendant is proper only when no reasonable inferences in favor of the plaintiff's claim can be drawn from the evidence or when there is no conflict in the evidence for a jury to resolve. Sasser v. Connery, 565 So. 2d 50 (Ala.1990); Peden v. Ashmore, 554 So. 2d 1010 (Ala.1989). "When a directed verdict motion is made, the evidence should be viewed in the light most favorable to the opposing party, and if a reasonable inference can be drawn against the moving party, then the trial court should deny the motion." Sasser, 565 So. 2d at 51, quoting Peden, 554 So. 2d at 1013.
There was conflicting evidence as to whether Dr. Royal's failure to order a CT scan, followed, if necessary and appropriate in view of the CT scan results, by a lumbar puncture, fell below the appropriate standard of care. Dr. Longmore, the Brillants' expert, who is a board certified emergency room specialist, testified that Dr. Royal's failure to order such tests was beneath the standard of care required of an emergency room doctor such as Dr. Royal:
Dr. Longmore testified that Dr. Royal adequately took Mrs. Brillant's history of the onset of the headache and adequately conducted a physical examination. The point at which Dr. Royal fell below the standard of care, according to Dr. Longmore, was in his failure to either confirm or rule out a subarachnoid hemorrhage as a possible cause of the headache:
Dr. Longmore authenticated, as being "accepted as standard and trustworthy by members of [his] profession," 17 articles offered by the Brillants on the subject of subarachnoid hemorrhages, warning leaks, and treatment of the condition. Some were in publications for emergency room specialists, while others were in publications for neurologists and neurosurgeons. They were all admitted without objection. Excerpts from some of them are attached as an appendix to this opinion.
The trial judge stated that, in directing a verdict, he was not ruling that there was not a jury question on the issue of whether Dr. Royal's conduct fell beneath the appropriate standard of care. Rather, the judge expressly directed the verdict for Dr. Royal based on his holding that the Brillants had failed to present substantial competent evidence that any negligence by Dr. Royal proximately caused Mrs. Brillant's paralysis. Dr. Royal's position, accepted by the trial court, is that expert testimony by a neurologist or a neurosurgeon as to the cause of her vasospasm and resulting paralysis was necessary in order for the Brillants to meet their burden of proof, and that such testimony was lacking.
The burden of proof in a medical malpractice case requires the plaintiff to show that the defendant's treatment fell beneath the standard of care and proximately caused the plaintiff's injuries. This proof must ordinarily be by expert testimony.
Howard v. Mitchell, 492 So. 2d 1018, 1019 (Ala.1986); Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala.1988); Peden v. Ashmore, 554 So. 2d 1010, 1013 (Ala.1989); Harris v. Theriault, 559 So. 2d 572 (Ala.1990); Sasser v. Connery, 565 So. 2d 50 (Ala.1990).
Dr. Longmore gave testimony directly to the point of proximate cause:
Dr. Royal argued throughout the trial that Dr. Longmore was not competent to give this testimony because he was not a specialist in neurology or neurosurgery. To determine whether the trial court correctly held that there was a failure of competent proof of proximate cause, we must examine closely the exact theory of causation advocated by the Brillants. Proof of proximate cause in this case required evidence of the following chain of causation: (1) when Mrs. Brillant presented to Dr. Royal on March 25, 1987, she probably had suffered a warning leak; (2) a CT scan or a lumbar puncture probably would have revealed the warning leak; (3) given positive results on such tests and given her overall condition, a neurosurgeon probably would have promptly performed surgery to seal off the aneurysm and prevent a major rupture; (4) if such surgery had been performed *519 promptly, she probably would not have had a vasospasm with the resulting paralysis, or, at least, the injuries caused by her aneurysm probably would not have been as severe. The Brillants acknowledge that none of these elements can be proved with certainty, principally because of Dr. Royal's failure to order a CT scan. They contend, however, that they offered competent evidence of each of these links in the causal chain, evidence that was sufficient to create a jury question whether Dr. Royal's alleged negligence "probably caused [her] injury," Howard, supra, and cases following.
The following evidence tended to prove the first link, that Mrs. Brillant suffered a warning leak. Dr. Boxell, the neurosurgeon who performed surgery on Mrs. Brillant, testified on behalf of Dr. Royal. On cross-examination the following testimony was elicited from Dr. Boxell:
At trial, Dr. Royal testified that he did not "have any basis to agree" that the probable cause of Mrs. Brillant's headache was a leaking aneurysm. In his deposition, however, he had admitted that, in retrospect, she probably had a leaking aneurysm when he saw her. He admitted at trial that the Brillants' attorney had correctly read his deposition testimony to that effect. Thus, in addition to the testimony of Dr. Longmore, the plaintiffs' expert, that Mrs. Brillant probably suffered a warning leak that caused the headache with which she presented herself to Dr. Royal, there was also testimony by Dr. Royal and Dr. Boxell to the same effect.
As to the second link, there was conflicting evidence as to whether a CT scan or a lumbar puncture would have detected a warning leak, but the record includes sufficient evidence that such tests probably would have disclosed an existing leak. Dr. Longmore testified:
Thus, a jury question was presented on these first two links in the chain of causation. Dr. Royal's argument, therefore, depends on an assertion that the third and fourth links in the chain of causation require evidence from a neurologist or a neurosurgeon, and that such evidence was absent.
Dr. Royal cites Hanson v. Baker, 534 A.2d 665 (Me.1987), as a case squarely on point regarding the necessity of testimony by a neurologist or a neurosurgeon as to causation in brain injuries. Mr. Hanson died after suffering a head injury that led to a hematoma and a contusion. The plaintiff alleged that his death was caused by delays in treatment. The trial court rejected certain testimony by the plaintiff's expert, Dr. Bricker, who was a general practitioner. The Supreme Judicial Court of Maine summarized the controversy as follows:
534 A.2d at 666-67. The Supreme Judicial Court held that the trial court did not err in ruling "that Bricker could not describe the time specific progression of bruises and bleeding in the brain or express an opinion that delay in diagnosis caused Hanson's death because he was not qualified to do so... because he lacked education and experience in neurology and neurosurgery." Id., at 667.
The trial court here allowed Dr. Longmore to testify that vasospasms are much less likely if there is a small amount of blood in the brain than if there is a large amount, and allowed the introduction through Dr. Longmore of neurosurgical and neurological articles to the same effect and to the effect that early surgery, after a warning leak but before a full rupture, is likely to prevent vasospasms, neurological deficits, and death. Nevertheless, Dr. Royal insists that this evidence was not sufficient to meet the Brillants' burden of proof. In addition to the evidence from Dr. Longmore, however, there was also evidence from Dr. Boxell on what we have set out as the third and fourth links in the chain of causation.
An examination of the third link will be made easier by first addressing the fourth, that is, whether, in general, diagnosis and treatment of an aneurysm after a warning leak will prevent vasospasm and subsequent neurological deficits and, in particular, whether they probably would have done so in Mrs. Brillant's case.
The crucial aspect of this question is the evidence that, after a warning leak, a person will have a small amount of blood in the brain, whereas a full rupture of the aneurysm will spill a large amount of blood into the brain. There was evidence that the excess blood in the brain irritates blood vessels in the brain and causes them to collapse. This collapse is the vasospasm, which depletes the supply of blood and therefore oxygen to parts of the brain, which then die and cause neurological deficits such as Mrs. Brillant's paralysis. When surgery is conducted after a full rupture of the aneurysm, vasospasm is likely even if the surgery is successful because of the amount of blood that has been discharged into the brain.
Dr. Longmore's testimony and the articles introduced through his authentication tended to establish these facts. Even if we accept Dr. Royal's contention that evidence of this fourth link in the causal chain requires testimony of a neurologist or a neurosurgeon, we find sufficient evidence on this question from Dr. Boxell:
Dr. Boxell was then questioned regarding an article that he was familiar with, "The Relation of Cerebral Vasospasm to the Extent and Location of Subarachnoid Blood Visualized by CT Scan: A Prospective Study," 33 Neurology 424-36 (1983), admitted as plaintiffs' exhibit 36 through Dr. Longmore. Dr. Boxell acknowledged that the results were that, of the "Group 3" patients with significant amounts of bleeding, such as Mrs. Brillant had on April 10, 20 out of 22 developed severe vasospasm, and 19 of the 22 "developed symptoms referable to the severe vasospasm." Of the "Group 1" and "Group 2" patients with little or no subarachnoid blood shown on a CT scan after a warning event such as Mrs. Brillant's headache, only 5 out of 20 developed severe vasospasm, and only 2 of the 20 "developed delayed ischemic neurologic symptoms." Thus, 86% of the patients with fully ruptured aneurysms developed neurological deficits, but only 10% of the patients treated after warning leaks developed neurological deficits.
Thus, there was competent evidence that surgery after a warning leak is likely to prevent a vasospasm, but that a vasospasm is likely to occur after a full rupture even if surgery successfully repairs the ruptured aneurysm. The question as to which there is an arguable gap in the evidence is the third link in the chain of causation set out above, that is, would Mrs. Brillant have been a good candidate for neurosurgery when she presented to Dr. Royal on March 25?
Dr. Boxell testified generally that a patient in a "good grade" neurologically that is, alert, in good health generally, and without large amounts of blood in the brainis a better candidate for neurosurgery than a person in a poor gradethat is, unconscious or in a coma and with large amounts of blood in the brain. Thus, there was sufficient evidence that a person in Mrs. Brillant's condition as she presented on March 25 would be a good candidate for neurosurgery.[5]
Moreover, the Brillants went further, and asked Dr. Boxell a question that would have specifically addressed Mrs. Brillant's likelihood of surgery if a CT scan had been done on March 25 and had shown a leaking aneurysm. The trial court sustained Dr. Royal's objection when Dr. Boxell was asked the following question by the Brillants' attorney:
The objection was made on the grounds that the question was speculative, was not based on a proper predicate, and was based on facts not in evidence. The Brillants raise the sustaining of this objection as a ground for reversal of the judgment.
Obviously, the question includes two facts that were not in evidence: that a CT scan was performed and that the CT scan showed a leaking aneurysm. However, as we have shown in discussing links one and two of the causal chain that the Brillants must prove, there was sufficient evidence from which the jury could have found that a CT scan should have been performed and that, if performed, a CT scan (or a followup lumbar puncture) probably would have disclosed a leaking aneurysm. The question, therefore, is whether the opinion evidence that created a jury question on these issues was a sufficient basis on which to predicate the "facts" of a CT scan being performed and the scan showing a leaking aneurysm.
Until recently, this Court had held that a hypothetical question to an expert "must be based on facts and not upon opinions or conclusions of others." Chinevere v. Cullman County, 503 So. 2d 841, 843 (Ala. 1987); Salotti v. Seaboard Coast Line R.R., 293 Ala. 1, 299 So. 2d 695 (1974). That rule was modified, however, in Nash v. Cosby, 574 So. 2d 700 (Ala.1990):
Id., at 705 (citation omitted).
Nash dealt with observations and conclusions stated in the plaintiff's medical records. Here, the question is whether the conclusions of witnesses, based on Mrs. Brillant's medical records and on the witnesses' professional training and judgment, can serve as a predicate for a hypothetical question to an expert. Those conclusions were items that, as we have shown, the jury could have accepted as fact: because it was highly probable that the cause of Mrs. Brillant's headache was a warning leak, the jury could have found as a matter of fact that she did have a warning leak; the jury could have found that, in fact, Dr. Royal should have performed a CT scan and, if necessary, a lumbar puncture; and, because it was highly probable that one of those tests would have disclosed a warning leak, the jury could have found as a matter of fact that such tests would have disclosed that Mrs. Brillant had suffered a warning leak. Thus, the opinions or conclusions that formed the predicate were presented as fact questions for the jury, and we see no reason to prohibit the Brillants from asking Dr. Boxell the objected-to question. If Dr. Boxell had been allowed to answer this question, his general evidence that a person in a condition similar to that of Mrs. Brillant on March 25 would have been a good candidate for neurosurgery could have been supplemented by specific evidence as to whether she would have been a good candidate for neurosurgery.
The trial court, in directing a verdict for Dr. Royal, cited Peden v. Ashmore, 554 So. 2d 1010 (Ala.1989), and Sasser v. Connery, 565 So. 2d 50 (Ala.1990). In Peden, a patient with a history of heart disease and *523 other health problems presented at the hospital; her doctor, Dr. Ashmore, was notified at 11:52 a.m. A physician's assistant examined her, prescribed several medications, and ordered an immediate brain scan. The brain scan was completed at 5:00 p.m.; it confirmed Dr. Ashmore's suspicions that she had an expanding intracranial lesion. She was transferred to a different hospital for neurosurgery but died shortly after arriving there. The plaintiff's theory was that a delay in treatment proximately caused the patient's death. Even the plaintiff's expert testified, however, that it would be speculation that any different treatment would have produced a different result, and that "I cannot say whether she would have lived or died." 554 So. 2d at 1014. The neurosurgeon to whose care she had been transferred testified that he doubted that anything could have been done to save her life. The trial court directed a verdict because of a lack of proof of proximate cause, and this Court affirmed.
In Sasser, the plaintiff alleged that Dr. Connery's failure to conduct tests on the patient caused her death from cancer, which, the plaintiff alleged, could have been treated if detected by Dr. Connery. "None of the experts could say that if Dr. Connery had conducted the tests in question and had found the cancer, then Ms. Sasser's life would have been saved or even extended." 565 So. 2d at 51. The trial court denied Dr. Connery's motion for directed verdict, but the jury returned a verdict for Dr. Connery. This Court affirmed the judgment without reaching a jury charge issue raised on appeal by the plaintiff, holding that the trial court should have directed a verdict for lack of proof of proximate cause.
A similar recent case involving a lack of proof of proximate cause is Harris v. Theriault, 559 So. 2d 572 (Ala.1990). The plaintiff's decedent, Mr. Harris, was seen in the emergency room on December 25 complaining of headaches, nausea, and weakness on the right side of his body. Dr. Theriault made a diagnosis of vascular headache and prescribed painkillers. The next day Mrs. Harris brought her husband back in a much worsened condition. A neurosurgeon successfully performed a carotid endarectomy, but a later embolism caused his death. The plaintiff's expert stated in an affidavit that, if Dr. Theriault had ordered a CT scan, an earlier diagnosis and treatment "might have avoided the cerebral embolism, which led to his death." 559 So. 2d at 573. That expert's deposition, however, established that the embolism was an unpreventable byproduct of the surgery and would not have been avoided by earlier surgery.[7] This Court affirmed a summary judgment for the defendant.
Those three cases are distinguishable from this one. In each of them, there was a complete absence of proof that a different result probably would have occurred with different treatment. Here, there was substantial evidence that Dr. Royal's failure to perform the proper diagnostic techniques probably caused the vasospasm and paralysis by delaying neurosurgical treatment until after a full rupture of the aneurysm. Furthermore, there was evidence that, generally, surgery should be performed on a person who presents with a warning leak in an aneurysm but otherwise in good condition. Any failure to tie that general evidence to Mrs. Brillant's specific condition was caused by the court's sustaining an objection that under the (later announced) rule of Nash v. Cosby, should have been overruled.
In their cross-appeal, Sterling and Dr. Royal contend that, even if there was sufficient evidence of negligence on the part of Dr. Royal, they were nevertheless entitled to a directed verdict on the theory that the conduct of Dr. Velez constituted an efficient, intervening cause. An intervening cause is defined as "one that occurs *524 after an act committed by a tort-feasor and which relieves him of his liability by breaking the chain of causation between his act and the resulting injury." Richter v. Uhrig, 534 So. 2d 260, 262 (Ala.1988). However, this Court has stated:
General Motors Corp. v. Edwards, 482 So. 2d 1176, 1195 (Ala.1985). The expert testimony was in agreement that Mrs. Brillant did not exhibit the classic symptoms of a warning leak when she was seen by Dr. Velez. Therefore, his failure to diagnose her earlier warning leak was not an intervening cause relieving Dr. Royal of liability.
For the reasons stated, we affirm the judgment based on the directed verdict in favor of Sterling Medical Associates, we reverse the judgment based on the directed verdict for Dr. Royal, and we remand this case for a new trial consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
Plaintiff's Exhibits
Exhibit 19McMicken, "Emergency CT Head Scans in Traumatic and Atraumatic Conditions," 15 Annals of Emergency Med. 274 (1986):
"Approximately 50% of patients will experience premonitory symptoms in the weeks before rupture. These symptoms and signs may consist of localized head pain, cranial nerve palsy, visual field defect, nausea, photophobia, or neck pain. These warning signs may be produced by `mini leaks' or aneurysmal expansion.
"....
"Any patient suspected of SAH [subarachnoid hemorrhage] should undergo CT as the initial diagnostic study. This rapidly performed noninvasive procedure will be abnormal 90% of the time if performed within five days of the SAH.
"As the hemorrhage is reabsorbed the initial high density becomes isodense, similar to adjacent normal brain. Therefore, evidence of subarachnoid, intracerebral, intraventricular or subdural bleeding will be present on CT 95% of the time within hours after the hemorrhage, decreasing to 74% on day 3.
"....
"Improvement in the dismal mortality rate from subarachnoid hemorrhage is achieved only by early recognition and prompt treatment. CT has provided a safe, sensitive, and noninvasive answer." pp. 277-78.
Exhibit 20Duffy, "The `Warning Leak' in Spontaneous Subarachnoid Haemorrhage," Med. J. of Australia 514 (May 28, 1983):
"The frequency and significance of the warning leak should be recognized. Such recognition would improve the outcome after the rupture of an intracranial aneurysm." p. 514.
Exhibit 21Drake, "Management of Cerebral Aneurysm," 12 Stroke, 273 (1981):
"Only a small fraction of the patients are seen after the initial bleed when the greatest therapeutic reward would occur.
"The challenge for the future then, will be the early recognition of the initial bleeding, the warning bleeding. It will require public education about the problem and a continuing emphasis on it for students and physicians. The potential for prevention of death or dreadful disability is large for thousands in the prime of life each year." p. 273. (Emphasis in original.)
*525 Exhibit 22Gillingham, "The Management of Ruptured Intracranial Aneurysms," 12 Scottish Med. J. 377 (1967):
"Over half the patients who are admitted in coma, stupor, or who are otherwise severely disabled, from ruptured intracranial aneurysm have a clear-cut history of a minor haemorrhage a few days or weeks before the major episode. Although there is a sudden onset of severe headache or pain in the back of the neck associated with meningism, in these patients with a minor haemorrhage there are usually no other symptoms or clinical signs and the diagnosis is often missed. Its recognition is important because operative treatment for the prevention of recurrent haemorrhage during the first few days after this minor episode results in a low mortality and morbidity. The problems of management of ruptured intracranial aneurysm are discussed in the light of a personal experience of 291 consecutive cases over a period of fifteen years, 81 per cent of whom have been followed up." p. 383.
Exhibit 23Leblanc & Winfield, "The Warning Leak in Subarachnoid Hemorrhage and the Importance of Its Early Diagnosis," 131 Canadian Med. Ass'n J. 1235 (1984):
"Subarachnoid hemorrhage caused by an aneurysm usually presents as an extremely severe, sudden and incapacitating headache associated with prostration or loss of consciousness, nuchal rigidity, photophobia and vomiting. Death or serious permanent disability occurs in over 60% of cases. Neurologists and neurosurgeons have come to recognize that the classic major subarachnoid hemorrhage may be preceded by a minor hemorrhage, a `warning leak,' that produces a moderately severe headache with minor or no accompanying features. The severity of the headache is often such that the patient seeks medical advice, but subarachnoid hemorrhage is seldom suspected because other classic manifestations of this condition are lacking. The patient usually remains well for up to 4 weeks, until a major rupture occurs and a diffuse subarachnoid hemorrhage, with its often devastating effects, ensues. If the warning leak is recognized, a potentially fatal hemorrhage can be prevented by treating the aneurysm before it ruptures.
"....
"Other signs of a warning leak include nausea or vomiting, neck pain, unsteadiness and dizziness.... Unlike the classically described subarachnoid hemorrhage, a warning leak is only rarely associated with photophobia or signs of diffuse meningeal irritation.
"The responsibility for recognizing the warning leak rests with the primary care physician, who is usually the first to see the patient. We recommend that individuals without a history of chronic headache who present with a severe, subjectively atypical headache of sudden onset, especially if it is accompanied by other warning signs, undergo a lumbar puncture, provided there are no indications of intracranial hypertension. If the findings are compatible with subarachnoid hemorrhage the patient should be immediately admitted to hospital for four-vessel angiography. If an aneurysm is seen, the patient should promptly undergo surgery. Aneurysmal subarachnoid hemorrhage usually occurs in the most productive years of life and is potentially fatal. Recognition of the warning leak can lead to appropriate treatment of the aneurysm before a frank rupture occurs, with its often devastating consequences." pp. 1235-36.
Exhibit 24King & Saba, "Forewarnings of Major Subarachnoid Hemorrhage Due to Congenital Berry Aneurysm," N.Y.St.J. Med., 638 (April 1974):
"Spontaneous subarachnoid hemorrhage carries a high mortality rate when the diagnosis is made using customary criteria. Forewarnings of a major bleed, however, occur in many patients. They are such that the diagnosis can often be suspected and confirmed by lumbar puncture before a major ictus. This review of 175 patients suggests that these forewarnings were recorded for at least 60 per cent of the patients and form a constellation of complaints which are sufficient to lead to their diagnosis and management at a time when *526 the patient is still in good clinical condition. The mortality rate in such circumstances may be less than 10 per cent compared with 40 per cent after a major subarachnoid hemorrhage."
Exhibit 25Klara & George, "Warning Leaks and Sentinel Headaches Associated with Subarachnoid Hemorrhage," 147 Military Med. 660 (1982):
"It is significant, however, that 50 per cent of the patients who present with SAH secondary to rupture of an aneurysm, experience a `warning leak' associated with a `sentinel headache' prior to the first clinically significant hemorrhage. Unfortunately, these patients are all too frequently seen in clinics or emergency rooms, where they are examined and found to be neurologically intact. They are then given analgesics and sent home. When their symptoms persist, they occasionally return only to receive the same treatment. It is the usual course of events that these patients will eventually suffer another hemorrhage and then develop a neurologic deficit or a stiff neck. Usually, it is only when they present with these findings that lumbar puncture is performed to evaluate whether or not SAH has occurred. Frequently, however, the surviving patients have already suffered significant effects from the recurrent hemorrhage, and present in a coma or with significant focal neurologic symptoms.
"The purpose of this paper is to acquaint physicians and allied health care personnel with the early warning signs of SAH, in an attempt to increase significantly the early diagnosis of SAH prior to the first major hemorrhage. This is important since patients with `warning leaks' are, by definition, in Grade 1 [with or without mild headache, alert and oriented, with no motor or sensory deficit] status, and therapy for this group of patients carries an overall mortality rate of less than two per cent, with a similarly low morbidity rate. If the warning signs are missed and the patient suffers a second hemorrhage, he faces an immediate mortality of 40 per cent. He then must face the mortality and morbidity associated with surgical therapy. This mortality risk varies depending on the neurological condition of the patient, but exceeds 30 per cent for Grade 4 [semicomatose or comatose, with or without major lateralization findings] patients.
"The `warning leak' or `sentinel headache' is, unfortunately, usually recognized in retrospect following a major hemorrhage. Such a `sentinel headache' is sufficiently distinctive so as to make it a recognizable entity. Hence, diagnosis prior to major hemorrhage should be possible. The headache is sudden in onset, occurring usually in patients without a past history of headache complaints. It is frequently described as `the worst headache ever.' If nuchal rigidity is present in such a setting, the classic presentation of subarachnoid hemorrhage has occurred nd should be recognizable immediately. Even without associated nuchal rigidity, sudden onset of headache in an otherwise healthy individual should alert the examiner to include `sentinel headache' or `warning leak' in the differential diagnosis.
"....
"Over the past ten years, significant progress in the neurosurgical treatment of intracranial aneurysm has been made. The development of microsurgical techniques and training of neurosurgeons with expertise in this area have been supplemented by advances in neuroanesthesia and neuroradiology. These technical improvements have vastly bettered the prognosis for the individual patient with a SAH who is fortunate enough to survive the initial major hemorrhage. Many more lives can be saved if aneurysm patients are brought to neurosurgical treatment prior to experiencing the first major hemorrhage. Almost equally important, the number of individuals compelled to live out their lives with severe neurologic disabilities will be greatly reduced.
"Presently, this could be most easily accomplished by increasing our level of suspicion for SAH and supplementing this with a vigorous, aggressive approach at making an early diagnosis.... Following such an approach, the overall morbidity and mortality *527 rate for patients with intracranial aneurysm and SAH should be considerably reduced." pp. 660, 662.
Exhibit 28Gillingham, "The Management of Ruptured Intracranial AneurysmHunterian Lecture delivered at the Royal College of Surgeons of England on Jan. 24, 1957," 23 Annals Roy. Coll. Surg. Eng. 89 (1958) (this paper apparently was the seminal work in the field):
"It would appear from the fresh appraisal of many case histories, that a patient's first episode of subarachnoid bleeding is commonly of minor severity; a mere leak of blood from the sac. There is sudden severe pain in the neck which rapidly radiates upwards over the vertex of the head. It is then followed by generalized headache which clears up in a day or two. A diagnosis of fibrositis, influenza or stiff neck may be made by the patient, his relatives or his medical attendant. Fortunately the presence of neck stiffness, even of minor degree, and other signs of meningism, usually indicate the true diagnosis. The accurate clinical assessment of such an attack is of great importance, in view of the probability and gravity of a second haemorrhage within the next few days; commonly between the second and the twenty-first day following the first haemorrhage. This second episode of bleeding, as we have seen, is often more severe than the first. The patient is unconscious for a period and is usually left with neurological deficits such as hemiplegia, visual field defects, language difficulties, apathy and negativism, dependent to some extent on the presence of an intracerebral haematoma. However, some patients die within minutes or hours of raised intracranial pressure from a massive intra-cerebral and intra-ventricular haemorrhage, and in a few patients this disastrous episode seems to represent the initial and only attack of bleeding, as opposed to the second or third....
"....
"There is now good evidence to support the view that patients who have suffered from their first, and often minor, episode of subarachnoid bleeding should be referred as a matter of urgency for neurosurgical investigation and treatment." pp. 90-93, 116.
EXHIBIT 29Okawara, "Warning Signs Prior to Rupture of an Intracranial Aneurysm," 38 J. Neurosurg., 575 (1973):
"Most neurosurgeons agree that the treatment of an aneurysm before massive hemorrhage provides a more favorable outcome. If it were possible to recognize warning signs of an impending aneurysmal hemorrhage, the surgeon would have a distinct advantage. It is my impression that such warning signs do exist, erroneously suggesting influenza, sinusitis, `stiff neck,' migraine, or other diseases, but that their true nature is only appreciated after catastrophic major hemorrhage.
"The purpose of this paper is to investigate the significance of warning signs that herald a major hemorrhage, thus leading to an early diagnosis and better results from treatment of intracranial aneurysms." p. 575.
Exhibit 35Waga, Ohtsubo & Handa, "Warning Signs in Intracranial Aneurysms," 3 Surg. Neurol. 15 (1975):
"Warning signs preceding major hemorrhage were analyzed in 192 patients with intracranial aneurysms. One hundred and thirteen (59%) had warning signs. The average interval between the last warning signs and the major attacks was 16.9 days with anterior communicating and anterior cerebral aneurysms, 6 days with middle cerebral aneurysms, and 7.3 days with intradural internal carotid aneurysms. The incidence was much higher in patients with intradural internal carotid aneurysm (69%) and with multiple aneurysms (67%). The warning signs varied chiefly according to the location of the aneurysms. Early recognition of warning signs may protect patients from the devasting effects of major hemmorrhage.
"....
"Subarachnoid hemorrhage due to saccular aneurysm has a tendency to be recurrent. This may give physicians the opportunity to diagnose and to treat the patients before a catastrophic situation develops. *528 Unfortunately, the `sentinel headache' was more often recognized only in retrospect. This presents an important clinical paradox, which may not be generally understoodthe less affected the patient is by the initial hemorrhage the more urgent is the need for investigation and treatment. Drake wrote that in spite of increasing success in obliterating aneurysm in reasonably well patients, nearly one in ten is lost during the delay awaiting a safe period for operation. Prevention of the devastating effects of a major hemorrhage from an aneurysm must be the goal. At present the only way is for the family physician to recognize the warning signs of a minor initial leak, which occurs in over half of the patients, and to refer them for surgical attention before the brain is torn asunder." pp. 15, 19.
Exhibit 37Mizukami, Takemae, et al., "Value of Computer Tomography in the Prediction of Cerebral Vasospasm After Aneurysm Rupture," 7 Neurosurgery, 583 (1980):
"The diagnostic value of computer tomography (CT) in cases of ruptured aneurysm has already been suggested. However, except for our earlier report ... and that of Fisher et al. ..., there has been little relationship noted between cerebral vasospasm and findings on the CT scan. The purpose of this study is to clarify the relationship between high density (HD) on the CT scan, which indicates a collection of blood in the subarachnoid space, and cerebral vasospasm after the rupture of an aneurysm, after first defining the occurrence of HD from the acute stage to the chronic stage.
"....
"The additional findings obtained from CT scan within 4 days after SAH [subarachnoid hemorrhage] may be a useful adjunct to predict the development of cerebral vasospasm and, thereby, improve the mortality and morbidity rates after SAH. We recommend early operation in patients with a clinical grade of I, II, or III (Hunt and Kosnik) ... and, when HD has not been detected in the basal and/or insular cisterns, there is little danger of postoperative cerebral vasospasm. If HD is found in these regions, early operation for removal of the subarachnoid hematoma (within 2 or 3 days after the hemorrhage), as suggested by Sano and Saito and Suzuki et al., may be a reasonable alternative...." pp. 583, 585.
Exhibit 38Fisher, Kistler & Davis, "Relation of Cerebral Vasospasm to Subarachnoid Hemorrhage Visualized by Computerized Tomographic Scanning," 6 Neurosurgery, 1 (1980):
"Cranial computerized tomography (CT) allows accurate assessment of the presence of subarachnoid hemorrhage secondary to rupture of an intracranial aneurysm. We have attempted to determine whether the amount and distribution of subarachnoid blood detected by CT early after aneurysmal rupture correlate with the later development of cerebral vasospasm visualized angiographically. We analyzed 47 cases from the Massachusetts General Hospital and found a remarkably positive correlation: When there was no subarachnoid blood or it was diffusely distributed, severe vasospasm was almost never encountered, whereas in the presence of blood clots and thick layers of blood, severe vasospasm followed almost invariably." p. 1.
MADDOX, Justice (dissenting).
"In Alabama, a medical malpractice plaintiff must establish through expert testimony that the defendant/physician breached the standard of care imposed upon him ... and that this breach was the proximate cause of the injury or death." Peden v. Ashmore, 554 So. 2d 1010, 1013 (Ala.1989). A plaintiff in a medical negligence case bears the heavy burden of presenting evidence "that the alleged negligence probably cause the injury or death." Id. (Emphasis original.) As this Court held in Howard v. Mitchell, 492 So. 2d 1018 (Ala.1986):
492 So. 2d at 1019.
The trial judge, in granting Dr. Royal's motion for a directed verdict, cited Peden and further noted that Peden applied the "scintilla" evidence rule rather than the "substantial" evidence rule that is applicable here. The trial judge specifically found:
I think that the trial judge was right. To find liability here, a jury would have to stack an inference on an inference and engage in speculation.
STEAGALL, J., concurs.
[1] The trial was bifurcated on the issues of liability and damages and, thus, because of the directed verdicts as to liability, no evidence was presented as to the severity of Mrs. Brillant's disability.
[2] This cause of action accrued before the effective date of the Medical Liability Act of 1987, see Ala.Code 1975, § 6-5-552, so it was not tried under that Act. Because the action was not "pending in the courts of this state on June 11, 1987," however, it was tried under the substantial evidence rule of § 12-21-12.
[3] The contract between Sterling and the Government specifically provided that Sterling would perform as an independent contractor and not as an employee of the Government. It also provided that the Government would assume no responsibility for the negligent acts of Sterling or Sterling's employees and specifically allowed physicians employed under the contract to engage in private practice. Further, it provided that Sterling was responsible for providing malpractice insurance and for quality control.
[4] The payment of premiums for liability insurance by the alleged principal has been held to create a question of fact as to whether an agency or independent contractor relationship existed. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757 (1939).
[5] We recognize that Dr. Boxell stated prior to trial, "I do not personally think that the delay in establishment of the diagnosis of aneurysm had any bearing on the development of her vasospasm." Dr. Boxell acknowledged this statement at trial and otherwise gave testimony favorable to Dr. Royal. Elsewhere in his testimony, however, he stated facts or expressed opinions that, as we have shown, supported the Brillants' burden of proof.
[6] Or, as in this case, as to proximate causation of the plaintiff's injury.
[7] There is no evidence in the record before us that Mrs. Brillant's temporal edema (a swelling produced by blood spilled into the brain), which apparently caused the vasospasm, was an unavoidable consequence of surgery, whether the surgery was done after the warning leak or after the full rupture. On the contrary, there was evidence, as we have shown, that the blood that caused the vasospasm was the blood produced by the rupture. | May 31, 1991 |
7133e93b-6d1f-4426-8a04-7e96fed68bd5 | Hobson v. American Cast Iron Pipe Co. | 690 So. 2d 341 | 1951243 | Alabama | Alabama Supreme Court | 690 So. 2d 341 (1997)
Fred HOBSON
v.
AMERICAN CAST IRON PIPE COMPANY.
1951243.
Supreme Court of Alabama.
February 14, 1997.
*342 Claudia H. Pearson of Nakamura & Quinn, Birmingham, for Appellant.
Chris Mitchell and Tammy L. Dobbs of Costangy, Brooks & Smith, L.L.C., Birmingham, for Respondent.
HOOPER, Chief Justice.
Fred Hobson appeals from a summary judgment in favor of the defendant, American Cast Iron Pipe Company (ACIPCO). Hobson also attempts to appeal the trial court's denial of his motion for summary judgment. We affirm.
Hobson was an employee of ACIPCO from September 1975 until August 1994. His job as a tandum truck operator was classified as a "safety critical job" or a "safety sensitive job." He, therefore, fell within ACIPCO's substance abuse screening policy. In August 1994, Mr. Hobson was terminated when his drug test returned positive for Butalbitol, a controlled substance classified as a barbiturate, in violation of ACIPCO's corporate Rule 15. Corporate Rule 15 prohibits reporting to work with a blood alcohol level equal to or higher than .05% or with drug levels in urine equal to or higher than certain levels allowed for particular drugs. This was Hobson's second violation of Rule 15. The first violation had occurred in January 1993, when he tested positive for alcohol in a drug screening following a workplace incident. Corporate policy requires the termination of any employee upon a second violation of Rule 15.
Hobson appealed his termination by means of a Peer Review Panel (Panel), an internal grievance procedure. According to a document announcing ACIPCO's "Peer Review Policy," the Panel could review management's actions only to ensure that corporate policy and procedure are followed; it could not change corporate policy. When the Peer Review Policy was adopted, the "joint boards" that managed ACIPCO agreed that decisions of the Peer Review Panel could be overturned by a joint decision of the Board of Operatives, which represents employee interests, and the Board of Management, which represents management concerns. The joint *343 boards agreed to retain a privilege of veto over the Panel, with the understanding that without a veto the Panel's decisions would otherwise be "final and binding." However, the employees' representatives on the Board of Operatives told employees that the decisions of the Panel would be "final and binding," without explaining the veto power of the joint board.
Hobson's Panel met and determined that the cutoff level for Rule 15 was too low for the substance for which Hobson tested positive. As a result of this determination, the Panel decided that Hobson should be reinstated with back pay, provided, however, that he passed another drug test. Hobson passed the second drug test, but it revealed that he did have some level of alcohol in his system. Management notified the Panel that its decision would be overturned because, management said, the Panel had acted outside the scope of its powers. Management asserted that the Panel's decision was an unauthorized attempt to change corporate policy. Management told the Panel that the authorized purpose of the Panel was to review management's actions. Acting on this information, Hobson's Panel reconsidered its ruling and decided that it did not have enough information to render a decision. It requested that another panel, constituted differently, consider the matter. Hobson refused to call for a second panel.
Hobson then sued ACIPCO, alleging breach of contract and seeking reinstatement, back pay, damages for mental anguish, and punitive damages. Both parties moved for a summary judgment at the conclusion of discovery. Hobson based his motion on the argument that the Panel's decision was, in effect, final and binding arbitration; ACIPCO based its motion on its assertion that Hobson was an at-will employee and could be terminated at any time for any reason. Both summary judgment motions were denied. ACIPCO filed a second motion for summary judgment, after the trial judge expressed concern over the timing of some language that was added to the employee handbook and over the handbook's relation to Hobson's alleged at-will status. This second motion for summary judgment was denied. ACIPCO filed a third motion for summary judgment related to the issue of damages. The trial court held that neither punitive damages nor damages for mental anguish were available on a breach of contract claim and that public policy precluded reinstatement and back pay based on a discharge arising from an employee's positive result on a workplace drug test. Thus, the trial court granted the motion and entered a summary judgment for ACIPCO on all claims.
Hobson argues that the summary judgment was improper because, he says, the trial court failed to recognize that the Panel members were acting as a group of arbitrators and that their decision was therefore entitled to substantial deference. To give an arbitration ruling "substantial deference" would require that it be upheld despite factual or legal error, provided that there is no serious error and that the arbitrator applied the contract and acted within the arbitrator's scope of authority. United Paperworkers International Union v. Misco, 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987). First, we note that Hobson provides no support for his argument that the Panel was in effect a form of arbitration, but merely offers the conclusory statement that this internal grievance procedure was arbitration. This Court has previously held that an internal grievance procedure is not arbitration. Carter v. Board of Trustees, 431 So. 2d 529 (Ala.1983)(holding that an internal grievance committee's power to hear wrongful termination claims did not transform the committee's proceeding into a form of arbitration); City of Bessemer v. Personnel Bd. of Jefferson County, 420 So. 2d 6 (Ala.1982)(holding that the procedure of an internal committee that could render binding decisions did not constitute arbitration, but was merely a means of grievance resolution). Therefore, we reject Hobson's contentions that the ACIPCO Panel proceeding was a form of arbitration. Second, even if we considered the Panel's decision to be a form of arbitration, we would conclude that it is not entitled to substantial deference, because the evidence shows that the Panel went beyond the scope of its authority by finding that the *344 acceptable level for the drug for which Hobson tested positive was too low.
In reviewing the disposition of a motion for summary judgment, "we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact," Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988), and whether the movant was "entitled to a judgment as a matter of law." Wright v. Wright 654 So. 2d 542 (Ala.1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Wright, 654 So. 2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc. 613 So. 2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala. 1990). Hobson presented no genuine issue of material fact as to these two claims for damages. ACIPCO was entitled to a judgment as a matter of law on those claims.
In his complaint, Hobson requests damages for emotional distress and requests punitive damages, both based on the alleged breach of the peer review contract between him and ACIPCO. Hobson contends that by attempting to overrule the Panel and by requesting that the Panel reconsider its decision, ACIPCO breached the peer review contract, which stated that all decisions of the Peer Review Panel are "final and binding." It is a well-settled principle of law that damages for a breach of contract are the amount of the loss suffered by a party harmed by the breach. Corson v. Universal Door Systems, Inc., 596 So. 2d 565 (Ala.1991); James S. Kemper & Co. Southeast, Inc. v. Cox & Assocs., Inc., 434 So. 2d 1380 (Ala.1983). Moreover, this court has stated that contract damages are limited to those flowing naturally and proximately from the breach and that their purpose is to put the injured party in the position he should have been in but for the breach. Cannon v. Jefferson County Comm. for Economic Opportunity, Inc., 599 So. 2d 32 (Ala.1992). Therefore, neither damages for emotional distress nor punitive damages are appropriate.
Hobson argues that damages for emotional distress and punitive damages should be awarded to him notwithstanding our general rules. This Court has not recognized claims for emotional distress in an employment case. In fact, it has stated: "[N]o recovery has ever been allowed for mental distress arising from the wrongful discharge of an employee in breach of an employment contract." Southern Medical Health Systems, Inc. v. Vaughn, 669 So. 2d 98 (Ala.1995). We conclude that our law would preclude Hobson from any recovery for emotional distress on a claim of wrongful termination.
Hobson also contends that punitive damages are propernot because of a breach of contract by itself, but because of a combined breach of contract and fraud. This Court upheld an award of punitive damages in a situation where fraud or duress was coupled with breach of a contract. See Hines v. Riverside Chevrolet-Olds, Inc., 655 So. 2d 909 (Ala.1994). Hobson argues that ACIPCO fraudulently induced employees to submit controversies to a Peer Review Panel and thereby give up their right to pursue lawsuits in a judicial forum. Hobson contends that ACIPCO's Peer Review Panel was fraudulent because, he says, ACIPCO had no intention of treating panel decisions as "final and binding," and yet, he says the Board of Operatives represented to ACIPCO employees that such decisions were "final and binding." Hobson also asserts that ACIPCO engaged in fraud by pressuring panelists to reconsider their decision. The record does not reveal substantial evidence that ACIPCO *345 knowingly, through misrepresentations, induced Hobson to submit his improper termination claim to the Panel or that ACIPCO fraudulently pressured the Panel to perform its duties or to perform them improperly. In addition, Rule 9(b), Ala. R. Civ. P., requires that a party pleading fraud plead it with particularity. Hobson did not do so in his complaint. Therefore, punitive damages are not appropriate in this case, because the breach of contract claim is not coupled with a legitimate fraud claim. Consequently, neither damages for emotional distress nor punitive damages were appropriate. The trial court's summary judgment, to the extent that it held that such damages were not recoverable in this situation, is affirmed.
In the summary judgment, the trial court also denied Hobson's remaining claims for reinstatement and back pay, based on the recent decision of Exxon Corp. v. Baton Rouge Oil & Chemical Workers Union, 77 F.3d 850 (5th Cir.1996). The Exxon court held that it is against Louisiana public policy to allow reinstatement or back pay where a "safety sensitive employee" is discharged because of positive drug tests in the workplace. In Exxon a labor contract required that all claims be submitted to binding arbitration. Despite the binding arbitration requirement, that court held that Louisiana public policy prohibited awarding reinstatement and back pay to someone who had tested positive for drugs. Similarly, this case involves the discharge of a "safety sensitive" employee who tested positive for a controlled substance at the workplace and a third-party review of that termination decision. The facts in this case are less extreme than the situation with which the Exxon court was faced, because ACIPCO had no policy requiring that Hobson's termination be submitted to a peer review panel and because the panel's decision was not binding arbitration. Nonetheless, we find the conclusion in Exxon persuasive. We hold that Alabama public policy precludes awarding reinstatement and back pay to a "safety sensitive" employee who is discharged for testing positive for a controlled substance in the workplace. Therefore, Hobson is not entitled to reinstatement or back pay. The summary judgment was proper to the extent that it held that public policy precluded the claims for reinstatement and back pay. We note that considerations of public policy might also have barred Hobson's claim for punitive damages or his claim for damages for emotional distress. However, because the trial court's holding as to those two claims was not based on public policy, we need not address that issue at this time.
Finally, ACIPCO defends its summary judgment with an argument that Hobson was an at-will employee, based on the ruling of the United States District Court for the Northern District of Alabama in Lewis v. American Cast Iron Pipe Co., CV-92-H-2107-N (N.D.Ala., Sept. 10, 1993) (unpublished) (holding that a 1981 amendment to the ACIPCO employee handbook had made ACIPCO employees at-will employees). Hobson asserts, to the contrary, that because the codicil to the will of Mr. John Eagan mandates that ACIPCO shall operate in accordance with the "Golden Rule" in its relations with its employees, he is not an at-will employee. It is unnecessary for us to address whether Hobson was an at-will employee, because we affirm the summary judgment for the reasons discussed in Parts III and IV of this opinion.
The trial court properly entered the summary judgment in favor of ACIPCO.
AFFIRMED.
MADDOX, SHORES, and HOUSTON, JJ., concur.
KENNEDY and COOK, JJ., concur in the result.
COOK, Justice (concurring in the result).
I agree that the summary judgment was proper, but I would affirm on the basis that the evidence presented by Hobson does not *346 constitute substantial evidence that ACIPCO did not comply with the peer review process. | February 14, 1997 |
0ca54b6d-6165-4d66-87dc-d1494587a85e | Howard v. Clayton | 583 So. 2d 255 | 1900607 | Alabama | Alabama Supreme Court | 583 So. 2d 255 (1991)
Lonnie HOWARD and Jennifer C. Howard
v.
Jerry Mack CLAYTON and Cecil M. Matthews.
1900607.
Supreme Court of Alabama.
May 10, 1991.
Rehearing Denied June 7, 1991.
*256 Lonnie Howard, pro se.
Cecil M. Matthews, Albertville, for appellees.
INGRAM, Justice.
On December 13, 1990, Lonnie Howard and Jennifer C. Howard filed a legal malpractice action against attorneys Jerry Mack Clayton and Cecil M. Matthews. The suit arose from the attorneys' representation of the Howards during their separate trials for murder. Clayton, who was court-appointed, represented both Lonnie and Jennifer until Lonnie's October 1981 conviction for murder and Clayton's withdrawal as counsel for Jennifer in November or December 1981. Matthews was subsequently appointed to represent Jennifer, who was convicted of attempted murder in 1982.
The tenor of the complaint filed by Lonnie, who was not represented by legal counsel in this malpractice action, is that the attorneys did not use reasonable care in representing them during their murder trials. The Howards' suit was dismissed by the trial court, and they appeal. The issue presented is whether the trial court erred in dismissing the Howards' complaint.
The allegedly negligent acts giving rise to this legal malpractice cause of action occurred during Clayton's and Matthews's representation of the Howards during their 1981-82 trials for murder. Because the cause of action accrued prior to April 12, 1988, the effective date for the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975, we find that, pursuant to § 6-2-34(8), the statutory period of limitations for the Howards' legal malpractice action is six years. See § 6-5-581, Ala. Code 1975; Lomax v. Gibson, 584 So. 2d 445 (Ala.1991); Baker v. Ball, 446 So. 2d 39 (Ala.1984).
The Howards filed their action in December 1990, over eight years after the allegedly negligent actions occurred. Therefore, we find that the trial court properly dismissed their legal malpractice cause of action against Clayton and Matthews.
The judgment of the trial court dismissing the Howards' complaint is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | May 10, 1991 |
acba6c2c-b027-456b-8277-d22424ac80c0 | Ex Parte Allison | 580 So. 2d 1390 | 1901036 | Alabama | Alabama Supreme Court | 580 So. 2d 1390 (1991)
Ex parte William D. ALLISON III and Lois Guice Coleman.
(Re William D. ALLISON III and Lois Guice Coleman v. CITY OF BIRMINGHAM).
1901036.
Supreme Court of Alabama.
May 24, 1991.
Douglas H. Scofield of Scofield, West & French, Birmingham, for appellant.
James H. Evans, Atty. Gen., for appellee.
PER CURIAM.
In denying the writ of certiorari, this Court does not wish to be understood as agreeing with all the reasoning expressed in the opinion of the Court of Criminal Appeals, 580 So. 2d 1377.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | May 24, 1991 |
a0ee2410-ba00-4fc7-af59-34c400df810c | Fitts v. Minnesota Min. & Mfg. Co. | 581 So. 2d 819 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 819 (1991)
Floyd O. FITTS, as administrator ad litem of the Estate of Susan Fitts Gafford, deceased, et al.
v.
MINNESOTA MINING & MANUFACTURING COMPANY and Gulfstream Aerospace Corporation.
89-1415.
Supreme Court of Alabama.
May 24, 1991.
W. Ryan deGraffenried, Jr. of deGraffenried, Tipton & Donaldson, Tuscaloosa, James J. Thompson, Jr. and Bruce J. McKee of Hare, Wynn, Newell & Newton and Mark Stephens of Emond & Vines, Birmingham, for appellants.
Hobart A. McWhorter, Jr. and Norman Jetmundsen, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellee Minnesota Min. and Mfg. Co.
LaBella S. Alvis of Rives & Peterson, Birmingham, for appellee Gulfstream Aerospace Corp.
SHORES, Justice.
Dr. William Gafford, his wife Susan, and their three children were killed in August 1983 when the plane he was piloting crashed shortly after takeoff near Ebro, Florida. All five family members were residents of Tuscaloosa, Alabama, and were returning home from a Florida vacation.
Two separate wrongful death/product liability actions were filed in the Circuit Court of Jefferson County, Alabama, in 1985. One was brought by William F. Gafford, Sr., as administrator of the estate of Dr. Gafford, and one was brought by Floyd O. Fitts, the father of Susan Fitts Gafford, on behalf of her and the children. Both suits were against Gulfstream Aerospace Corporation (formerly North American Rockwell) as the designer and manufacturer of the plane, and Minnesota Mining & Manufacturing Company ("3M") as the designer and manufacturer of a flight instrument called a "Stormscope."
Gulfstream and 3M maintain that their products were not defectively designed and were not causally related to the crash. They contend that Dr. Gafford was contributorily negligent in flying into known adverse weather conditions. They assert that his negligence was the proximate cause of the accident.
*820 On the eve of trial, the plaintiffs filed a motion requesting that the trial court make a pretrial determination that Alabama's substantive law (rather than Florida's) applied to this case, or, in the alternative, to certify the choice-of-law issue for an appeal to this Court pursuant to Rule 5, A.R. App.P.
The appeal on behalf of the estate of Dr. William F. Gafford, Jr. (89-1416), was dismissed upon the motion of the administrator. Apparently, he was satisfied with the trial court's choice of Florida law for Dr. Gafford's case. This leaves the wife and children's case before us on appeal. Apparently, Alabama law was preferred for their case.
Lex loci delicti has been the rule in Alabama for almost 100 years. Under this principle, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred. Norris v. Taylor, 460 So. 2d 151, 153 (Ala.1984); Mullins v. Alabama Great Southern R.R., 239 Ala. 608, 195 So. 866 (1940); Dawson v. Dawson, 224 Ala. 13, 138 So. 414 (1931); Alabama Great Southern R.R. v. Carroll, 97 Ala. 126, 11 So. 803 (1892). The plaintiff contends that the doctrine of lex loci delicti is outmoded and unfair.[1] He urges Alabama to adopt the approach of the Restatement (Second) of Conflict of Laws (1971).
We therefore consider the question of whether Alabama should retain the traditional conflict of laws principle of lex loci delicti in tort cases or embrace the "most significant relationship" approach of §§ 6, 145, 146, and 175 of the Restatement (Second) of Conflict of Laws, which read as follows:
"§ 6. Choice-of-Law Principles
Our review of the state of the law today shows us that a change in our choice of law rules is not the simple decision that the plaintiff would have us believe. Professor Herma Hill Kay of the University of California at Berkeley, has noted: "Courts willing to consider the adoption of new choice of law theory in the United States today are faced with a bewildering array of academic theories, many with loyal judicial adherents."[2] The approach of the Restatement (Second), which the plaintiffs urge us to adopt, is only one of many.
The first Restatement of Conflict of Laws in 1934 required the application of the law of the place where the key event occurred by which the plaintiff became possessed of a cause of action. Under this traditional vested rights theory, the state in which the events giving rise to a tort or contract obligation occurred, and only that state, had the power to create such an obligation and define its scope and content.[3] Professor Harold L. Korn of Columbia University notes that the place of contracting rule "never came close to banishing various other approaches to choice of law in the contract conflicts field." Professor Korn adds: "The lex loci delicti rule, in contrast, had been universally accepted by American courts. At least in the personal injury cases that make up the great bulk of tort litigation, the lex loci rule was free of most of the intrinsic weaknesses of its kindred contract rule." Korn, The Choice-of-Law Revolution: A Critique, 83 Col.L. Rev. 722, at 804-05 (1983).
The traditional vested rights theory was first challenged in 1933 by Professor David F. Cavers in an article in the Harvard Law Review[4] in which he suggested that in determining a choice-of-law question the court should routinely take account of the substantive tenor of the competing local rules and the desirability of the results they would produce.[5] Professor Brainerd Currie of Duke University published a series of articles between 1958 and 1965 in which he proposed a governmental interest analysis approach.[6] Professor Robert Leflar *822 announced his five "choice-influencing considerations" in 1966.[7] The Restatement (Second) of Conflicts was published in 1971.
The first total break with the traditional approach to tort conflicts came with the New York Court of Appeals decision in Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963). This decision is considered the watershed decision that "at last moved the modern choice-of-law revolution out of the academic journals and into the courts."[8]
Since Babcock, the rule of lex loci has been abandoned in favor of a "modern approach" in many jurisdictions. However, those jurisdictions are not unanimous as to what this "modern approach" should be. One commentator notes at least six separate approaches in jurisdictions that have departed from the rule of lex loci.[9]
Some states have adopted the approach of the Restatement (Second) in tort cases. First Nat'l Bank v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593 (1970); Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979); Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968); Ehredt v. DeHavilland Aircraft Co., 705 P.2d 446 (Alaska 1985); Bryant v. Silverman, 146 Ariz. 41, 703 P.2d 1190 (1985); O'Connor v. O'Connor, 201 Conn. 632, 519 A.2d 13 (1986); Bishop v. Florida Specialty Paint Co., 389 So. 2d 999 (Fla. 1980); Johnson v. Pischke, 108 Idaho 397, 700 P.2d 19 (1985); Lee v. Ford Motor Co., 457 So. 2d 193 (La.Ct.App.) cert. denied, 461 So. 2d 319 (La.1984); Adams v. Buffalo Forge Co., 443 A.2d 932 (Me.1982); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969); Morgan v. Biro Manufacturing Co., 15 Ohio St.3d 339, 474 N.E.2d 286 (1984); Brickner v. Gooden, 525 P.2d 632 (Okla. 1974); Baffin Land Corp. v. Monticello Motor Inn, Inc., 70 Wash. 2d 893, 425 P.2d 623 (1967). Nebraska appears to follow the Restatement (Second), as does Oregon. Harper v. Silva, 224 Neb. 645, 399 N.W.2d 826 (1987); Myers v. Cessna Aircraft Corp., 275 Or. 501, 553 P.2d 355 (1976). North Dakota has a unique approach, which is patterned after the New York case of Babcock v. Jackson, supra. Although this is essentially the approach of the Restatement (Second), the North Dakota Supreme Court has avoided citation to, or reliance upon, it.[10]Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972).
The most recent Pennsylvania case appears to follow the rules formulated by Professor Cavers. Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). Massachusetts has resolved "not to tie Massachusetts conflict law to any specific choice-of-law doctrine, but seek instead a functional choice of law approach that responds to the interests of the parties, the States involved, and the interstate system as a whole." Bushkin Assoc., Inc. v. Raytheon Co., 393 Mass. 622, 631, 473 N.E.2d 662, 668 (1985).
New Jersey and California have adopted the governmental-interest analysis of Professor Currie in choice of law cases. Pfau v. Trent Aluminum Co., 55 N.J. 511, 263 A.2d 129 (1970); Reich v. Purcell, 67 Cal. 2d 551, 432 P.2d 727, 63 Cal. Rptr. 31 (1967). Arkansas, New Hampshire, Hawaii, Wisconsin, Rhode Island, and Minnesota apply the choice-influencing considerations *823 of Professor Leflar. Wallis v. Mrs. Smith's Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Peters v. Peters, 63 Haw. 653, 634 P.2d 586 (1981); Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664 (1967); Pardey v. Boulevard Billiard Club, 518 A.2d 1349 (R.I.1986); Bigelow v. Halloran, 313 N.W.2d 10 (Minn.1981).
Although it initially adopted the Restatement (Second), Kentucky has chosen a lex fori approach to tort conflicts cases, applying Kentucky substantive law. Arnett v. Thompson, 433 S.W.2d 109 (Ky.1968); Foster v. Leggett, 484 S.W.2d 827 (Ky.1972). Michigan has also embraced a lex fori approach. Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292 (1987).
Many states join Alabama in adhering to the traditional view of the first Restatement, which looks to the lex loci delicti in tort cases. Friday v. Smoot, 58 Del. 488, 211 A.2d 594 (1965); General Tel. Co. v. Trimm, 252 Ga. 95, 311 S.E.2d 460 (1984); Louisville & N.R.R. v. Revlett, 224 Ind. 313, 65 N.E.2d 731 (1946); Ling v. Jan's Liquors, 237 Kan. 629, 703 P.2d 731 (1985); Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983); Kemp v. Allstate Insurance Co., 183 Mont. 526, 601 P.2d 20 (1979); Karlsen v. Jack, 80 Nev. 201, 391 P.2d 319 (1964); First Nat'l Bank in Albuquerque v. Benson, 89 N.M. 481, 553 P.2d 1288 (App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976); Petrea v. Ryder Tank Lines, 264 N.C. 230, 141 S.E.2d 278 (1965); Algie v. Algie, 261 S.C. 103, 198 S.E.2d 529 (1973); Heidemann v. Rohl, 86 S.D. 250, 194 N.W.2d 164 (1972); Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972); Rhoades v. Wright, 622 P.2d 343 (Utah 1980), cert. denied, 454 U.S. 897, 102 S. Ct. 397, 70 L. Ed. 2d 212 (1981); Goldman v. Beaudry, 122 Vt. 299, 170 A.2d 636 (1961); McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979); Hopkins v. Grubb, 160 W.Va. 71, 230 S.E.2d 470 (1977); Ball v. Ball, 73 Wyo. 29, 269 P.2d 302 (1954).
After careful consideration, we are not convinced that we should abandon the lex loci delicti rule for the approach of the Restatement (Second) on the facts of the present case. Professor Kay and other commentators tell us that the adoption of the approach of the Restatement (Second) has not brought certainty or uniformity to the law:
We find that we agree with the Supreme Court of Georgia. The newer approaches to choice of law problems are neither less confusing nor more certain than the traditional approach. "Until it becomes clear that a better rule exists, we will adhere to our traditional approach." General Tel. Co. v. Trimm, supra, 252 Ga. at 96, 311 S.E.2d at 462.
We also see no need for any special exception in this particular case on public policy grounds, as the plaintiff requests. The plaintiff knew the law of Alabama at the time he filed the suits, and chose to file in Alabama. The judgment of the trial court is due to be affirmed.
AFFIRMED.
*824 HORNSBY, C.J., and MADDOX, ALMON, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
"I think the desideratum of predictability must be kept in proper perspective." Professor David Seidelson, Interest Analysis or the Restatement Second of Conflicts: Which is the Preferable Approach to Resolving Choice-of-Law Problems? 27 Duq.L.Rev. 73, 114 (1988). (Emphasis added.) Professor Seidelson's article was cited and quoted extensively in the brief of Mr. Fitts as administrator.
It is true that in a lawsuit predictability of result is not readily achievable, even in a case involving no choice-of-law problem. However, predictability of the law to be applied by the trial and appellate courts is something needed and desired. The rule of lex loci delicti has been consistently applied in Alabama for almost 100 years. Abercrombie v. Nashville Auto Auction, Inc., 541 So. 2d 516 (Ala.1989); Alabama Great Southern R.R. v. Carroll, 97 Ala. 126, 11 So. 803 (1892). Predictability in regard to the rule of law that will be applied by the courts of a particular jurisdiction is essential, except as to a rule of law that would not be consented to today by the conscience and feeling of justice of the majority of those whose obedience is required. Barnes v. Birmingham International Raceway, Inc., 551 So. 2d 929, 933 (Ala.1989); Ex parte Bayliss, 550 So. 2d 986, 994 (Ala.1989). I am not persuaded that the doctrine of lex loci delicti would not be consented to by the conscience and feeling of justice of the majority of Alabamians; therefore, I will not depart from the doctrine of stare decisis.
[1] The defendants argue that the motivation of the plaintiff in seeking to change the law is not to enhance the state of the law in Alabama, but to attempt to increase the damages recoverable in the case. They note that under the Florida wrongful death law, the only compensatory damages allowed for the death of the wife and children would be funeral expenses, because they had no income.
[2] Kay, Theory Into Practice: Choice of Law in the Courts, 34 Mercer L.Rev. 521, 523 (1983).
[3] Korn, The Choice-of-Law Revolution: A Critique, 83 Col.L.Rev. 722, at 803 (1983).
[4] Cavers, A Critique of the Choice-of-Law Problem, 47 Harv.L.Rev. 173 (1933).
[5] Korn, supra, at 809-10.
[6] Currie, Selected Essays in the Conflict of Laws (1963). "The process [of governmental interest analysis] begins by identifying the specific law in each state touching upon the disputed legal issue. Next, the court must determine the precise policies which the respective laws were designed to augment. Finally, the court examines each jurisdiction's factual relationship with the litigation and determines whether or not the application of a particular state's law would be consistent with the purposes identified as supporting that law. Once the court has completed this three-step technique, the actual choice of law decision is routine. If application of neither law would serve the purposes behind that law, the case is an unprovided-for case and the court should apply its own law for the mere sake of convenience. If application of one law would further the purposes behind that law, but application of the other law would not serve a purpose, the choice is easy: the court should apply the former law. This is known as a false conflict. Finally, if the case is such that application of either law would serve the purposes behind that law, a true conflict is presented and the court is left with several options as to how to resolve it. It can proceed as Currie originally suggested and apply the forum's law; it can sharpen its analysis and determine whether a `more moderate and restrained interpretation' of the forum law will show that its application is unnecessary for the fulfillment of the purpose behind the law; it can apply the law of the state whose interests would be most impaired by not having its law applied; or, it can simply use one of the other choice of law theories as a true conflict tie breaker." Smith, Choice of Law in the United States, 38 Hastings L.J. 1041, at 1047-48 (1987).
[7] Robert Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966). His five factors are: (1) predictability of result, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. See also Smith, n. 9, at 1049.
[8] Korn, supra, at 827.
[9] Gregory E. Smith, Choice of Law in the United States, 38 Hastings L.J. 1041, 1172-74 (1987).
[10] Smith, n. 9, at 1119-20.
[11] Smith, n. 9, at 1131-32.
[12] Kay, n. 2, at 561-562. | May 24, 1991 |
ff7a7ef4-bba6-4451-8b3d-be14f95dffce | Yamaha Motor Co., Ltd. v. Thornton | 579 So. 2d 619 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 619 (1991)
YAMAHA MOTOR COMPANY, LTD., and Yamaha Motor Corporation, U.S.A.
v.
William L. THORNTON.
89-1618.
Supreme Court of Alabama.
May 3, 1991.
*620 Bibb Allen, James B. Carlson and Deborah Alley Smith of Rives & Peterson, Birmingham, for appellants.
Frank M. Wilson of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellee.
SHORES, Justice.
The opinion of March 22, 1991, is withdrawn and the following is substituted therefor:
This is a wrongful death/products liability case involving an 11-year-old boy, Keyeion A. Thornton. Keyeion was killed on Christmas Day 1987 when he lost control of his new Yamaha BW80S motorcycle and crashed into the window of a neighbor's house. The BW80S owner's manual described the vehicle as "intended for beginning riders."
William L. Thornton testified that he spent approximately 45 minutes Christmas morning going over the owner's manual with his son Keyeion and that they then took the motorcycle outside, where he demonstrated the controls to his son. He said that either he or his brother was supervising the child at all times. The child wore his helmet and successfully rode the vehicle for over an hour.
Around 10:00 a.m., Keyeion asked his father if he could ride the motorcycle to the end of the block. His father agreed, but instructed him to ride only to the end of the block and to be careful. Keyeion rode to the end of the block and turned around. A young child on a scooter rode out in front of Keyeion, creating an emergency. His father testified that the engine on the motorcycle sounded much louder than it had sounded at any time earlier that day. He screamed for his son to hit the brakes. Eyewitnesses testified that they saw Keyeion attempting to put on the brakes when the vehicle was going approximately 30 m.p.h. The father reached the neighbor's house at almost the same time Keyeion crashed into it. Keyeion was unconscious; he never regained consciousness and died the following day.
The father sued Yamaha Motor Corporation, Ltd., as the designer and manufacturer of the BW80S motorcycle, and Yamaha Motor Corporation, U.S.A., as the distributor.[1] (Those two defendants shall be referred to together as "Yamaha.") The father's complaint was based upon the Alabama Extended Manufacturer's Liability *621 Doctrine ("AEMLD") and on negligence and wantonness theories.[2]
Yamaha denied the material allegations of the complaint and pleaded the affirmative defenses of assumption of risk and contributory negligence. Yamaha later amended its answer to question the constitutionality of punitive damages awards under Alabama's Wrongful Death Statute.
The case proceeded to trial on April 16, 1990. Yamaha moved for a directed verdict at the close of the plaintiff's evidence. The trial court denied the motion. This motion was made again at the close of all the evidence. The trial court again denied the motion and submitted the case to the jury, which returned a verdict in favor of the plaintiff, awarding $750,000 in damages. The court entered a judgment on that verdict.
Yamaha timely filed motions for j.n.o.v. and for a new trial and/or a remittitur. These motions were overruled by the trial judge, who entered a written order on the post-judgment motions in accordance with this Court's opinions in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and its progeny. Yamaha appeals.
We first consider Yamaha's contention that the plaintiff failed to introduce substantial evidence to prove his claim under the AEMLD. This Court established the elements of an AEMLD claim in Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132-33 (Ala.1976), and Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala.1976):
Casrell, supra, at 132-33; Atkins, supra, at 141. The question whether a product is "unreasonably dangerous" is for the trier of fact, just as a question of negligence is. Casrell, supra, at 133.
Yamaha also contends that the plaintiff failed to produce substantial evidence on his negligence and wantonness claims. 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).
Thus, we look to the record in this case to determine what evidence was presented to the jury. The record reflects that Keyeion was killed while riding a Yamaha BW80S motorcycle. This motorcycle was designed, manufactured and distributed by Yamaha. A Yamaha representative admitted that it was designed to expand Yamaha's market to children as young as five *622 years old. William Thornton purchased the motorcycle from Hunter Cycle Company.
The owners's manual that accompanied the motorcycle depicts a power reduction plate. This part, actually a gasket and an attached plate, is normally inserted during the manufacture of the motorcycle into the exhaust port to reduce the power generated by the engine. When the plate is in place, the top speed of the motorcycle is 25 m.p.h. When it is not in place, the vehicle can obtain a speed of more than 40 m.p.h.
The motorcycle sold to William Thornton was shipped from Japan to Jacksonville, Florida, and then to Hunter Cycle. The motorcycles are shipped partially disassembled, two to a crate, to be assembled at the dealership. Yamaha's instructions to the dealer do not instruct the dealer to make any adjustment in the area where the power reduction plate is located. The service technician who assembled the motorcycle at Hunter Cycle testified that neither he nor any other employee removed the power reduction plate.
After the crash, the motorcycle was taken to the Thornton home and stored, undisturbed. William Thornton turned this cycle over to his attorneys, who delivered the cycle to John Sims, a mechanical engineer, in June 1988. Sims testified that he placed the motorcycle in his warehouse and that it remained there, undisturbed.
The trial court entered a protective order, at Yamaha's request, prohibiting any disassembly of the motorcycle unless representatives of all parties were present. The motorcycle was delivered by Thornton's attorneys to Scott Guthrie, a motorcycle accident reconstruction expert, in Tallahassee, Florida. A joint inspection of the motorcycle was held at Guthrie's laboratory. When the bike was disassembled, there was no power reduction plate in place.
Dr. Leslie Ball, a systems engineer, testified as an expert in product safety, human factors engineering, and safety management. He identified a design defect in the BW80S motorcycle that he defined as "emergency induced acceleration." He testified that the natural human reaction to an emergency on a motorcycle is to grip with the hands in a motion that turns the hands towards the body. Because of the design of the throttle of this motorcycle, the result of this natural reaction, he said, is to rotate the throttle to produce full acceleration. Dr. Ball testified that this motorcycle was unreasonably dangerous because there was no warning concerning the hazard produced by this design defect.
Dr. Ball testified that this hazard could have been designed out of the vehicle by using a thumb throttle. This type of throttle is used on all-terrain vehicles by several manufacturers and is not prohibited by any federal standard. Alternatively, Dr. Ball suggested an engine stop switch operated by the knee, or an adjustable speed governor.
A Yamaha employee testified as to how the power reduction plate is inserted during manufacturing procedures. He testified that if the procedures had been followed, any deficiency in the motorcycle would have been documented. He further testified that a completed motorcycle is operated as part of a final inspection.
Yamaha also presented expert testimony that the power reduction plate must have been removed after manufacture, because there were markings on the assembly where the power reduction plate is located, indicating that the plate had at one time been attached, and there were marks on the gasket indicating that an instrument had been inserted to remove the plate.
Thus, the issue of whether Yamaha had failed to install the power reduction plate during manufacture or whether the plate had been removed by someone after manufacture was an issue presented to the jury for resolution. The jury resolved this issue in favor of the plaintiff.
We hold that the plaintiff met his burden of proof under the AEMLD. Our review of the record reveals that the plaintiff produced substantial evidence from which the jury could infer that the motorcycle designed and manufactured by Yamaha and sold to William Thornton was sold in a defective condition, was unreasonably dangerous, and reached the user without *623 substantial change in the condition in which it was manufactured and sold.
We also hold that the plaintiff met the burden of proof required to sustain his claim of negligence. "The elements for recovery under a negligence theory are: (1) duty, (2) breach of duty, (3) proximate cause, and (4) injury." Jones v. Newton, 454 So. 2d 1345, 1348 (Ala.1984), citing Mascot Coal Co. v. Garrett, 156 Ala. 290, 47 So. 149 (1908). See also Rutley v. Country Skillet Poultry Co., 549 So. 2d 82, 85 (Ala. 1989).
Yamaha argues that it produced evidence from which the jury could have concluded that the power reduction plate had been removed after manufacture. We agree, but there was also evidence from which the jury could conclude otherwise. Therefore, the question was one for the jury, and the jury found for the plaintiff. As we stated in Gleichert v. Stephens, 291 Ala. 347, 280 So. 2d 776, 777 (1973):
We next look at Yamaha's contention that the plaintiff did not present sufficient evidence to submit the issue of Yamaha's wantonness to the jury. We have said that wantonness is not merely a higher degree of culpability than negligence. Chance v. Dallas County, 456 So. 2d 295, 298 (Ala.1984), citing Graves v. Wildsmith, 278 Ala. 228, 177 So. 2d 448 (1965). We further elaborated in Central Alabama Electric Cooperative v. Tapley, 546 So. 2d 371 (Ala.1989):
546 So. 2d at 379. (Emphasis in original.)
The plaintiff produced substantial evidence to support a claim of wantonness. The trial judge recited in his Hammond order the evidence presented by the plaintiff:
(C.R. 1024.)
Yamaha also contends that the trial court erred in recharging the jury as to wantonness. After the jury retired, it sent this question to the trial judge: "How does contributory negligence on the part of Mr. Thornton relate to the products liability and negligence?" (R. 1473.) Having heard from counsel for both sides, the trial judge recharged the jury. As a portion of that charge, he referred to the wantonness claim. Yamaha took exception to the instruction on the grounds that the jury did not request any instructions on wantonness. However, a review of the trial judge's charge reflects that his charge was responsive and was not in error. In order to respond to the question concerning contributory negligence, it was necessary for the trial judge to state that contributory negligence is no defense to wantonness.
Yamaha next claims that the trial court erred in failing to direct a verdict in favor of the defendants based upon the doctrines of contributory negligence and assumption of risk. Yamaha contends that William Thornton was guilty of contributory negligence or assumption of risk as a matter of law because he allowed his son to ride the motorcycle in the street and because, Yamaha contends, he failed to supervise his child in the activity leading to the accident. "In order to prove contributory negligence, the defendant must show that the party charged 1) had knowledge of the condition; 2) had an appreciation of the danger under the surrounding circumstances; and 3) failed to exercise reasonable care, by placing himself in the way of danger. Hatton v. Chem-Haulers, Inc., 393 So. 2d 950 (Ala.1980); Wallace v. Doege, 484 So. 2d 404 (Ala.1986)." Rowden v. Tomlinson, 538 So. 2d 15, 18 (Ala.1988). Contributory negligence is an affirmative defense that the defendant bears the burden of proving. Rule 8(c), A.R.Civ.P. As this Court said in Central Alabama Elec. Co-op. v. Tapley, supra:
546 So. 2d 371, 381.
The record reflects that William Thornton testified that he bought the motorcycle that Hunter Cycle's salesman had recommended for his child. Although Yamaha contends that the motorcycle was strictly for off-road use, the salesman demonstrated the motorcycle to Thornton by riding it on pavement. Thornton testified that he spent 45 minutes going over the owner's manual with his son, demonstrated the motorcycle for him, and had his son operate the vehicle in the yard of their home. The child operated the vehicle for over an hour *625 prior to the time of the accident. There was evidence that at all times the child was being supervised by an adult, either Thornton or his brother. There was substantial evidence to contradict Yamaha's defense of contributory negligence and thus to warrant resolution of this issue by the jury.
We next consider whether the trial court erred in allowing William Thornton to testify regarding a conversation with the salesman of Hunter Cycle about the suitability of the motorcycle for his son. Yamaha contends that this evidence was inadmissible hearsay. The plaintiff contends that this conversation was brought into issue by Yamaha's claim of contributory negligence and assumption of the risk and was admissible for a purpose other than to prove the truth of the matter asserted. See C. Gamble, McElroy's Alabama Evidence, § 242.01(1) (3d ed. 1977). "A statement made out of court is not hearsay if it is given in evidence for the purpose merely of proving that the statement was made, provided that purpose be otherwise relevant in the case at trial. 5 Wigmore, Evidence, § 1361; 6, Ibid., § 1770; Motors Ins. Corp. v. Lopez, 217 Ark. 203, 229 S.W.2d 228 (1950)." Bryant v. Moss, 295 Ala. 339, 342, 329 So. 2d 538, 541 (1976). By claiming that William Thornton was contributorily negligent, Yamaha brought into issue the question whether he had knowledge of the danger and an appreciation of the danger under the circumstances, and whether he failed to exercise reasonable care in light of his knowledge and appreciation of that danger. Therefore, his conversation with the salesman was relevant and was offered for a purpose other than proving the truth of the statements made.
Yamaha's final contention is that the imposition of punitive damages violates the due process provisions of the Fourteenth Amendment and of the Alabama Constitution. As previously stated, the trial judge gave a post-judgment review in accordance with Hammond v. City of Gadsden, supra. The United States Supreme Court has upheld this Court's decision in Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala.1989), which rejected a similar Fourteenth Amendment challenge to punitive damages awards. Accordingly, this judgment is due to be affirmed as to this issue, on the authority of Pacific Mut. Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
For the reasons stated above, the judgment in this case is due to be affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
HORNSBY, C.J., and MADDOX and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I am persuaded that there was sufficient evidence of wantonness, as I perceive wantonness to be, to submit that issue to the jury.
Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142, 149 (Ala.1987) (Houston, J., dissenting). If I correctly described wantonness in Lynn Strickland Sales & Service, then in this case there was sufficient evidence of wantonness not only to submit the issue to a jury but to sustain a verdict of wantonness. However, I am not certain that there was sufficient evidence to submit the wantonness issue to a jury or to sustain a jury's verdict finding wantonness, if the majority's per curiam definition of wantonness in Lynn Strickland requiring "premeditation and formed intent" correctly describes what is required for a finding of wantonness. My vote to affirm is based on my understanding of wantonness.
In Pacific Mut. Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), the United States Supreme Court rejected the due process challenge to the *626 imposition of punitive damages under the United States Constitution. I do not believe that the citizens of Alabama intended to make the due process protection under the Alabama Constitution of 1901 any broader than the due process protection under the United States Constitution. Therefore, I am persuaded that as long as this Court requires the trial courts and all appellate courts to test a punitive damages award, when challenged for excessiveness, by the seven factors set out in Green Oil Co. v. Hornsby, 539 So. 2d 218, 223-24 (Ala. 1989), and as long as that procedure comports with the due process requirements of the United States Constitution, that procedure will comport with the due process requirement of the Alabama Constitution of 1901.
[1] The plaintiff also sued Helmtec Industries, Inc., and Helmtec U.S.A., under the Alabama Extended Manufacturer's Liability Doctrine, as manufacturer and distributor, respectively, of the helmet worn by Keyeion on the date of the accident. These suits were settled for $100,000. The plaintiff also sued Hunter Cycle Company, Inc., the seller of the motorcycle. This defendant paid $150,000 in a pro tanto settlement.
[2] The plaintiff alleged that the Yamaha BW80S motorcycle was in the same mechanical and design condition as it was on the date of the manufacture and sale, and that the motorcycle was being used by Keyeion as it was intended by Yamaha to be used. The plaintiff also alleged that the motorcycle was in a defective condition and was unreasonably dangerous to Keyeion, alleging that it was designed, manufactured, and sold or distributed in a defective condition that subjected the child to an unreasonable risk of harm. The complaint further alleged that the motorcycle was unreasonably dangerous in its design and manufacture and was accompanied by inadequate warnings and instructions. The plaintiff's claims of negligence and wantonness arose from these alleged deficiencies and from Yamaha's alleged failure to apply safety engineering principles to identify and eliminate hazards associated with the use of the motorcycle and to test the suitability of the motorcycle for young, inexperienced riders. | May 3, 1991 |
4d2231af-73e0-4595-83e3-e1835d62695a | Johnson v. Passmore | 581 So. 2d 830 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 830 (1991)
Juanita JOHNSON
v.
James C. PASSMORE and Nancy Passmore.
89-1598.
Supreme Court of Alabama.
May 31, 1991.
*831 K. Stephen Jackson, Birmingham, for appellant.
James B. Kierce, Jr. of Stone, Patton, Kierce & Freeman, Bessemer, for appellees.
ALMON, Justice.
Juanita Johnson appeals from a summary judgment entered in favor of the defendants, James Passmore and Nancy Passmore, in a negligence action. The only question presented is whether Johnson presented substantial evidence tending to show that the Passmores breached a duty owed to Johnson and thereby caused her injury.
On November 1, 1987, Johnson was visiting her daughter and son-in-law at the house they were renting from the Passmores. As Johnson prepared to leave the house and descend a flight of seven stairs that led from the front porch to the ground, her granddaughter ran up the stairs and bumped into her. Johnson lost her balance and, because there was no handrail on the stairs, fell from the top stair to the ground, a distance of approximately five feet. In February 1989 Johnson filed a complaint against the Passmores, alleging that they had undertaken a duty to repair the house and had performed that duty negligently. She also alleged, in the alternative, that the Passmores had negligently removed the handrail and failed to warn her of the dangerous condition created by its removal.
The Passmores moved for a summary judgment. Attached to their motion was James Passmore's affidavit, in which he stated that there was a railing on the stairs when he leased the house to Johnson's son-in-law; that he had an oral lease agreement with Johnson's son-in-law, who had been an employee of the Passmores, wherein the son-in-law agreed to make repairs on the house, initially in lieu of rent; that the Passmores never agreed to repair the house; and that the son-in-law took the handrail down and had refused to replace it, despite the Passmores' requests.
In response to that motion, Johnson submitted a brief that contained references to James Passmore's deposition. She alleged that the Passmores had assumed a duty to repair the house by accepting her son-in-law's services in lieu of rent; by asking him to replace the handrail; and by supplying materials for his use in repairing the house. She also argued that by renting the house to her son-in-law while he was in their employ, and allowing him to exchange his services in repairing the house for his first few months' rent, the Passmores had, in effect, ordered their agent to repair the house and that they were vicariously liable for his negligent repair, under the doctrine of respondeat superior. The trial court granted the Passmores' motion. Johnson appeals from the summary judgment, raising the same arguments that she presented at trial.
As a general rule, a landlord is not liable in tort for injuries to his tenants that are caused by a defect in the leased premises, unless the injury-causing defect existed at the time of the letting, was known to the landlord, and was concealed from the tenant. Murphy v. Hendrix, 500 So. 2d 8 (Ala.1986); Cohran v. Boothby Realty Co., 379 So. 2d 561 (Ala.1980); Uhlig v. Moore, 265 Ala. 646, 93 So. 2d 490 (1957). A tenant's guests enter the leased premises under the tenant's title, and thus have no *832 better right against the landlord than does the tenant. Sanders v. Vincent, 367 So. 2d 943 (Ala.1978); Uhlig.
In the instant case, it is undisputed that the tenant, Johnson's son-in-law, removed the handrail without the Passmores' authorization or prior knowledge and that he had refused to reinstall it despite James Passmore's request that he do so. Because he created the hazardous condition and refused to repair it, Johnson's son-in-law would not have had a right of action against the Passmores if he had been injured because of the absence of the handrail. That defect did not exist at the time of the letting, and it clearly was not concealed from the tenant. Cohran, supra; Uhlig, supra. Therefore, pursuant to the rule governing the rights of a tenant's guests, as set out in Sanders, supra, and Uhlig, supra, Johnson would also be precluded from recovery and the Passmores would be entitled to a judgment as a matter of law.
Johnson seeks to avoid the operation of this rule, arguing first that, by accepting repair work from her son-in-law in lieu of rent and by supplying some of the materials he needed to do those repairs, the Passmores assumed a duty to repair the house. However, as a general rule, covenants to repair will not be implied, Prudential Ins. Co. of America v. Zeidler, 233 Ala. 328, 171 So. 634 (1936), and the burden is on the tenant alleging the existence of such a covenant to prove its existence. Dunson v. Friedlander Realty, 369 So. 2d 792 (Ala.1979). James Passmore, in his deposition and his affidavit, denied that he had performed, or had volunteered to perform, any repair work on the house while Johnson's son-in-law was his tenant. Johnson has offered no evidence to refute Passmore's claims. The agreement by Johnson's son-in-law to make repairs served as consideration for the lease; it did not make the Passmores responsible for performing repairs, and it did not make Johnson's son-in-law the Passmores' agent in performing repairs. When a party opposing a motion for summary judgment fails to offer an affidavit or other evidence that contradicts the evidence presented by the moving party, the trial court must consider that evidence as uncontradicted. Golden Gulf, Inc. v. AmSouth Bank, N.A., 565 So. 2d 114 (Ala.1990); Eason v. Middleton, 398 So. 2d 245 (Ala.1981). Because Johnson did not offer evidence that contradicted Passmore's testimony, the summary judgment was proper as to that issue.
Johnson also argues that the Passmores are vicariously liable for her son-in-law's removal of the handrail, under the theory of respondeat superior. She argues that because her son-in-law had once been employed by the Passmores; because they accepted repair work in lieu of rent for five months; and because they allowed her son-in-law to get repair supplies from their office, her son-in-law was the Passmore's agent and they are liable for his negligent removal of the handrail.
In response, the Passmores point out that Johnson's son-in-law was no longer in their employ at the time of Johnson's accident. That fact is undisputed. They also argue that their lease agreement with Johnson's son-in-law was a contractual relationship that was separate and apart from their earlier relationship with him as employers and employee. We agree. It is clear that Johnson's son-in-law was acting in his individual capacity, not as the Passmores' employee, when he rented the house as a residence for his family and when he removed the handrail. In the absence of proof that a master-servant relationship existed in respect to the transaction out of which the plaintiff's injury arose, the doctrine of respondeat superior has no application. Jessup v. Shaddix, 275 Ala. 281, 154 So. 2d 39 (1963).
For the reasons stated above, there were no genuine issues of material fact for a jury to resolve, and the Passmores were entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | May 31, 1991 |
fa007e54-7c2f-41e6-b907-935123afe6f6 | Rice v. State Farm Fire and Cas. Co. | 578 So. 2d 1064 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1064 (1991)
James E. RICE
v.
STATE FARM FIRE AND CASUALTY COMPANY.
89-911.
Supreme Court of Alabama.
April 26, 1991.
Henry H. Self, Jr. and J. Barry Mansel, Florence, for appellant.
Roderick K. Nelson and Sue E. Williamson of Lamar, Hebson, Miller & Nelson, Birmingham, for appellee.
ALMON, Justice.
James E. Rice filed this action against State Farm Fire and Casualty Company ("State Farm") and its agent, Gerald Bartig,[1] alleging, inter alia, breach of an insurance contract, bad faith refusal to pay an insurance claim, and slander.[2] The trial court granted State Farm's motions for directed verdict on the bad faith and slander claims. The contract claim, however, was submitted to the jury and the jury returned a verdict in Rice's favor, awarding damages in the amount of $65,000. State Farm paid that amount, plus interest and costs, into the court. Rice withdrew those funds from the court and filed a satisfaction of the judgment.
Rice appeals that portion of the judgment based on the directed verdicts on the bad faith and slander claims. State Farm has filed a motion asking this Court to dismiss the appeal, arguing that its payment of the judgment amount, and Rice's acceptance of those funds, leaves nothing from which to appeal. Alternatively, State Farm contends that the trial court correctly granted its motions for directed verdict, and that the judgment is due to be affirmed.
This Court has consistently held that when "an appellant is shown to have accepted the benefit of [a] judgment, order, or decree, [his] appeal will be dismissed." Todd v. Moore, 205 Ala. 451, 453, 88 So. 447, 448 (1921). See also, Reeb v. Murphy, 481 So. 2d 372 (Ala.1985); Mobile Ins. Co. v. Smith, 441 So. 2d 894 (Ala.1983); and Osborn v. Empire Life Ins. Co. of America, 342 So. 2d 763 (Ala.1977). The rationale underlying this rule was expressed in Shannon v. Mower, 186 Ala. 472, 65 So. 338 (1914), when this Court held that "[t]he principle of a quasi estoppel by election is the common ground of [these] casesthe principle which prevents a party from drawing a judgment into question to the prejudice of his adversary after he has *1065 coerced its execution or accepted its benefits." 186 Ala. at 474, 65 So. at 339.
There is no dispute that Rice accepted the judgment proceeds. However, when he filed a certificate of satisfaction, he attempted to reserve his right to appeal that portion of the judgment based on the directed verdicts on his slander and bad faith claims. He argues that because of that attempted reservation, he should be allowed to pursue this appeal. We do not agree. All rulings by the trial court in a particular case, including directed verdicts, are subsumed by that court's final judgment. See, Rule 4(a)(3), Ala.R.A.P. Rice does not direct our attention to, and we are unaware of, any procedure that would allow an appellant to accept the benefits of a final judgment while reserving the right to appeal certain portions of that judgment.
For the reasons stated above, Rice's appeal is due to be dismissed.
DISMISSED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Bartig was not a defendant as to the claims presented in this appeal and therefore is not an appellee.
[2] Rice's children were also named as plaintiffs. However, James Rice is the only person named on the notice of appeal as an appellant. | April 26, 1991 |
d102d162-3667-4bd6-a864-58b6980c8612 | Beech Through Beech v. Outboard Marine Corp. | 584 So. 2d 447 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 447 (1991)
Matthew BEECH, a minor, who sues Through his father and next friend, Thomas L. BEECH
v.
OUTBOARD MARINE CORPORATION.
89-1815-CER.
Supreme Court of Alabama.
May 3, 1991.
Rehearing Denied July 12, 1991.
R. Ben Hogan III of Hogan, Smith, Alspaugh, Samples and Pratt, Birmingham, for appellant.
Jere F. White, Jr. of Lightfoot, Franklin, White & Lucas, Birmingham, and Warren E. Platt of Snell & Wilmer, Phoenix, Ariz., for appellee.
PER CURIAM.
Thomas Beech, on behalf of his minor son, Matthew, and himself, sued Outboard Marine Corporation ("OMC") in the United States District Court for the Northern District of Alabama, alleging defective design under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") for OMC's failure to include a propeller guard on its 1988 Model 85-horsepower Johnson boat engine and also alleging negligence and wantonness.[1] On OMC's motion for summary judgment, the District Court *448 withheld a ruling and, instead, issued the following memorandum opinion:
The questions the District Court certified to this Court are:
(Emphasis original.)
As the District Court noted, this case is, indeed, identical in law and in fact to Elliott v. Brunswick Corp., 903 F.2d 1505 (11th Cir.1990), cert. denied, Elliott v. Mercury Marine, ___ U.S. ___, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991). At the risk of being repetitious, we hold, as the Eleventh Circuit Court of Appeals did in Elliott, that General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala.1985), is determinative of the questions presented to us by the District Court. In deciding whether a cause of action for failure to provide a propeller guard exists in Alabama, we must answer this dispositive question: Is an outboard motor, on a pleasure boat and lacking a propeller guard, "defective" as that term is defined under Alabama law? In answering that threshold question, we are guided by the language in General Motors Corp.:
482 So. 2d at 1191 (emphasis added).
We decline to hold, as a matter of law, that simply because "a feasible propeller guard could have been designed by a proper use of the manufacturer's resources" that an "alternative design" existed. Furthermore, a propeller guard that "arguably creat[es] other dangers" is not a "safer" design within the meaning of General Motors Corp. v. Edwards. We also note that, according to present industry standards, the evidence does not conclusively show that such propeller guards are "practical." Finally, we agree with and adopt the interpretation by the Eleventh Circuit Court of Appeals in Elliott of the consumer expectation test under Alabama law. 903 F.2d at 1507.
In conclusion, we answer questions B and C in the negative. With regard to questions A, D, and E, we hold that there is no cause of action, under either the AEMLD or negligence or wantonness theories, for failure to provide propeller guards on pleasure boat outboard motors.
QUESTIONS ANSWERED.
ALMON, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Although the style of the case does not so indicate and the District Court's statement to this Court does not so indicate, the complaint indicates that Thomas Beech also sued individually. | May 3, 1991 |
ee05eec1-1417-4376-9f7a-76783f7b799d | State Ex Rel. Sokira v. Burr | 580 So. 2d 1340 | 1900044 | Alabama | Alabama Supreme Court | 580 So. 2d 1340 (1991)
STATE of Alabama ex rel. Frank C. SOKIRA, et al.
v.
Rolen Henry BURR.
1900044.
Supreme Court of Alabama.
May 17, 1991.
Robert B. Sanford, Birmingham, for appellant.
E. Ray Large, Birmingham, for appellee.
MADDOX, Justice.
The issue in this case is whether Rolen Henry Burr, who, in 1962, pleaded guilty to the crime of distilling and was sentenced to *1341 one year and one day in the state penitentiary, with one year's probation, and who, in 1964, was pardoned with an express restoration of his civil and political rights, is disqualified from holding the office of mayor of the Town of Brookside, Alabama. The certificate of pardon issued by the Board of Pardons and Parole restored Burr's "civil and political rights," specifically stating the following:
In 1988, Burr was elected to his third term as the Mayor of the Town of Brookside, Alabama, and on February 21, 1990, Frank C. Sokira, William P. Murray, and William Lehman ("the petitioners") filed a petition for a writ of quo warranto, alleging that Burr holds the office of mayor in violation of Ala.Code 1975, § 36-2-1(a)(3), and Ala.Const. (1901), art. IV, § 60. The petitioners filed a motion for summary judgment and argued to the trial court that Burr's conviction for distilling precludes him from holding any public office in the State of Alabama. However, the trial court entered a summary judgment in favor of Burr, thereby denying the petition for the writ of quo warranto. The court stated that "justice would not be served by granting the relief sought by the [petitioners]." The petitioners appealed to this Court.
The petitioners allege that Burr's holding public office violates § 36-2-1(a)(3), which reads as follows:
That provision formerly appeared at Ala. Code (1940), T. 41, § 5.
Article IV, § 60, of the Alabama Constitution (1901) similarly mandates:
At the time Burr pleaded guilty to distilling, the Alabama legislature had defined the crime of distilling in Ala.Code (1940), T. 29, § 103, and expressly made distilling a felony, punishable by at least one year in the penitentiary. That section provided:
Applying Ala.Code 1975, § 36-2-1(a)(3), and Ala.Const. (1901), art. IV, § 60, to Burr's conviction, it is clear that his guilty plea to the felony of distilling disqualified him from holding any public office in the State of Alabama.
While these laws specifically address the effect of a felony conviction on a person's qualification to hold public office, they do not address how a pardon that expressly restores to an individual his "civil and political rights" affects that individual's ability to hold public office. Thus, the ultimate issue becomes whether the State's pardon of Burr, expressly restoring his civil and political rights, allows him to hold the office of mayor. In entering summary judgment in favor of Burr, the trial court did not address this legal question except to hold that justice would not be served by granting the writ of quo warranto.
Ala.Code 1975, § 36-9-2, as amended, states that an individual convicted of an infamous crime while holding public office shall not be restored to public office:
The only direction provided regarding an individual who is pardoned prior to holding public office is found in Amendment No. 38 to the Ala.Const. (1901), which states that "No pardon shall relieve from civil and political disabilities unless specifically addressed in the pardon." (Emphasis added.)
Chief Justice Marshall, writing for the United States Supreme Court, recognized that "a pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed." United States v. Wilson, 7 Pet. 150, 159, (32 U.S.), 8 L. Ed. 640 (1833). In Ex parte Garland, 4 Wall. 333, 380-81 (71 U.S.), 18 L. Ed. 366 (1866), Justice Field, writing for the United States Supreme Court, expressed the following view of the effect of a pardon:
This Court followed the language of Justice Field in deciding Hogan v. Hartwell, 242 Ala. 646, 7 So. 2d 889 (1942). In Hogan, this Court considered whether an individual who had been convicted of a felony and subsequently had been pardoned and given "all Alabama Civil and Political Rights" was eligible to hold the office of city commissioner of Mobile. Chief Justice Gardner, writing for this Court, stated that Ala.Const. (1901), art. IV, § 60, did not forever prohibit one convicted of a felony from holding office in this State. Quoting 39 Am.Jur. 554, 556, he continued:
242 Ala. at 651, 7 So. 2d at 892.
During the same year that this Court decided Hogan, this Court quoted Justice Field's analysis of a pardon in In re Stephenson, 243 Ala. 342, 10 So. 2d 1 (1942). In that case, Stephenson, an attorney, was convicted of forgery and was sentenced to the penitentiary for a period of not less than two years nor more than four years. When Stephenson received a full pardon, restoring his civil and political rights, he filed a petition for reinstatement as an attorney. However, this Court refused to reinstate him and affirmed the ruling of the Board of Commissioners of the Alabama State Bar holding that "the pardon and restoration of his political and civil rights do not of themselves restore the petitioner to the office of an attorney. They merely open the door that would otherwise be barred to him." 243 Ala. at 346, 10 So. 2d at 3.
This Court concluded that a prerequisite to the admission to the bar is a good moral character, and that "an application for reinstatement of an attorney, after the judgment of disbarment has become final, must be treated as an application for admission to the practice, and not as an application to vacate the order of disbarment." 243 Ala. at 346, 10 So. 2d at 4. In setting the test *1343 for reinstatement to the bar, this Court stated that it would look at the life and conduct of the attorney prior to disbarment, and the reasons for the disbarment, and would consider whether the attorney's life and conduct since that time satisfy the Court that, if restored to the bar, he will be upright, honorable, and honest in his dealings. In 1958, this Court effectively reversed its holding in Hogan when it affirmed the decision of the Court of Appeals in Mason v. State, 39 Ala.App. 1, 103 So. 2d 337 (1956), aff'd, 267 Ala. 507, 103 So. 2d 341 (1958), cert. denied, 358 U.S. 934, 79 S. Ct. 323, 3 L. Ed. 2d 306 (1959). In Mason, the defendant was convicted of owning or possessing a pistol after his previous conviction of second degree murder, for which he had been pardoned. Judge Harwood, writing for the Court of Appeals, called the issue "original, as far as our decisions are concerned," and attempted to distinguish the case from Hogan. 39 Ala.App. at 2, 103 So. 2d at 338. The Court of Appeals recited what this Court had said in Hogan:
39 Ala.App. at 3, 103 So. 2d at 339.
However, the Court of Appeals stated that this language "constitute[d] broad generalizations and like all statements of generalities, will lead to paradoxical conclusions if mechanically and literally applied to every factual situation." 39 Ala.App. at 3, 103 So. 2d at 339. That court, construing the language of the Uniform Firearms Act, Ala. Acts 1936, Extra Session, Act No. 82, p. 51 (Ala.Code (1940), T. 14, § 174), stated that a pardon of a convicted murderer simply "involved forgiveness and not forgetfulness"[1] and that by enacting the Firearms Act, the legislature intended to "vest in the people of Alabama a real and vital social interest designed to enhance their own protection." 39 Ala.App. at 5, 103 So. 2d at 341. In affirming this decision, this Court apparently adopted the principle that it retained the power to decide which unconditional pardons actually restored civil and political rights and which unconditional *1344 pardons did not. Justice Coleman dissented, recognizing that prior to 1939, the Ala.Const. (1901), § 124, placed the pardoning power in the governor. That section provided as follows:
In 1939, the people ratified Amendment 38 to the Alabama Constitution (1901); that amendment expressly gave to the legislature the "power to provide for and to regulate the administration of pardons and paroles." That amendment stated that "no pardon shall relieve from civil and political disabilities unless specifically expressed in the pardon." (Emphasis added.) Justice Coleman argued that when the pardon does expressly restore civil rights, "then the person pardoned is relieved from all loss of civil rights, unless and except as the pardon itself may limit restoration." 267 Ala. at 509, 103 So. 2d at 343. He concluded that the legislature had granted to the Board of Pardons and Parole the power to grant pardons after conviction and that "[t]he decision of the Court of Appeals holds, in effect that [the Firearms Act] fastens a condition on every otherwise unconditional restoration of civil and political rights granted by the Board to persons convicted of a crime of violence." 267 Ala. at 509, 103 So. 2d at 343.
Nearly 30 years after Justice Coleman's dissent in Mason, this Court, in Randolph County v. Thompson, 502 So. 2d 357 (Ala. 1987), advanced the holding in Mason, stating that with respect to convictions involving "infamous crimes" a pardon does not restore to the one pardoned the eligibility to hold office. In Randolph County, Thompson sought the governor's appointment as supernumerary sheriff after he had been convicted of voting fraud and had been sentenced to serve three years in the federal penitentiary. However, Thompson's sentence was suspended, and he later received a pardon restoring all of his "civil and political rights." Thompson then brought a declaratory judgment action against the governor, seeking a judgment declaring that he was entitled to the appointment as supernumerary sheriff. The trial court granted his request and the governor eventually appointed Thompson as supernumerary sheriff. This Court reversed, holding that the crime of voting fraud, of which Thompson had been convicted, was an "infamous crime" and therefore that Thompson was ineligible and disqualified from holding the office. This Court further stated that the pardon "removed neither the fact of his conviction nor his moral guilt." 502 So. 2d at 367.
The reasoning asserted in Randolph County was similarly applied to city officials in Sumbry v. State ex rel. Grant, 562 So. 2d 224 (Ala.1990). In Sumbry, the Board of Pardons and Parole granted a pardon "restoring all civil and political rights" to a city council member in Phenix City, Alabama, after he had been convicted in 1980 of unlawful voter registration and first degree perjury. The trial court determined that Sumbry, who had served two terms as a council member, was excluded from running for city council in the future, his pardon notwithstanding. We affirmed and reemphasized what this Court had stated in Randolph County:
562 So. 2d at 226.
After a thorough review of the Alabama cases addressing the effect of pardons that expressly restore civil and political rights, we now hold that the better reasoned decision is this Court's previously cited case of Hogan v. Hartwell, and we adopt the opinion of United States Supreme Court Justice Field, in Ex parte Garland, where he stressed that a pardon, expressly restoring to an individual his civil and political rights, removes the disabilities that accompany a conviction. Justice Field wrote that the effect of the pardon is "to relieve the petitioner from all penalties and disabilities *1345 attached to the offense" and said that "to exclude him, by reason of that offense, from continuing in the enjoyment of a previously acquired right, is to enforce a punishment for that offense notwithstanding the pardon." Ex parte Garland, 4 Wall. (71 U.S.) at 381.
By readopting this Court's decision in Hogan, we recognize that a pardon that restores to an individual all civil rights and political privileges necessarily nullifies all legal punishment for the offense. In other words, if the conviction incorporates certain civil and political disqualifications, then a pardon that specifically revives all civil and political rights must certainly remove any and all legal incapacities. See Ala.Const. (1901), § 124, amend. No. 38.
Thus, we expressly reverse our holding in Sumbry. However, we distinguish our holding in Randolph County. As noted above, in Randolph County, Thompson applied to the governor for an appointment to the office of supernumerary sheriff. Specifically applying the rationale established in Mason, this Court held that Thompson was ineligible and disqualified from holding the office of supernumerary sheriff. We now hold that the decision in Mason is erroneous and, in light of the better reasoned Hogan decision, we hold that Thompson's pardon restoring his civil and political rights necessarily restored his eligibility to hold public office. However, the pardon, although restoring Thompson's eligibility to hold a position of trust, could not compel the governor to appoint him to the position of supernumerary sheriff. Therefore, we reverse Randolph County only to the extent that it relies on the rationale in Mason.
In this case, the trial court stated in its summary judgment "that justice would not be served by granting the relief sought by Plaintiffs." Where the trial court's legal reasoning is lacking, but its judgment is nonetheless proper, the judgment will not be disturbed on appeal. Progressive Specialty Ins. Co. v. Hammonds, 551 So. 2d 333 (Ala.1989). Thus, we hold that the pardon, expressly restoring all of Burr's civil and political rights, returned to him each civil and political privilege taken away by his felony conviction and that, as a result, Burr is not without capacity or authority to hold the office of mayor of the Town of Brookside, Alabama, contrary to the appellants' argument in their petition for the writ of quo warranto. Therefore, the summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
HOUSTON and STEAGALL, JJ., concur specially.
HOUSTON, Justice (concurring specially).
By Amendment No. 38 to the Alabama Constitution of 1901, § 124 of the Constitution was amended to provide in pertinent part: "The legislature shall have power to provide for and to regulate the administration of pardons, paroles, remissions of fines and forfeitures.... No pardon shall relieve from civil and political disabilities unless specifically expressed in the pardon." (Emphasis added.)
The people have given the legislature the power to pardon and the power to restore civil and political rights by specifically providing for this in the pardon. I can find nothing in the Constitution that gives the judiciary the power or the right to overrule the exercise of this legislative power. Whatever common law rights the judiciary had to regulate pardons or to condition them, if any, have been preempted by the Constitution. Under the separation of powers doctrine (§§ 42 and 43, Constitution), which this Court has recently rediscovered and applied ex mero motu, ex proprio motu, and sua sponte to strike down an act of the legislature (Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414 (Ala.1991)), we are constitutionally prohibited from restricting the legislature from restoring civil and political rights. "[T]he judicial [department] shall never exercise the legislative and executive powers, or either of them...." § 43. As Chief Justice Marshall wrote in Marbury v. Madison, *1346 5 U.S. (1 Cranch) 137, 179, 2 L. Ed. 60 (1803): `"[The] framers of the [United States Constitution] contemplated that instrument as a rule for the government of courts, as well as of the Legislature.'" (Emphasis in original.) I believe that the framers of the Alabama Constitution contemplated that instrument as a rule for the government of the judicial branch as well as for the legislative branch of state government. Ala.Const. of 1901, Art. I, § 35; Art. III, §§ 42 and 43.
STEAGALL, J., concurs.
[1] I have researched this expression and have found that the Federal District Court for the Northern District of Illinois may have been the first court to describe a pardon in this manner in United States v. Swift, 186 F. 1002, 1017 (1911). In Swift, the defendants, having been indicted for violating the Sherman Act, claimed that because they had given the Commissioner of Corporations information and evidence in 1904, they became immune from prosecution in 1905. The court disagreed and held:
"There is nothing in the law of pardons which will warrant the court in reaching a conclusion that the amnesty or immunity claimed to be afforded by the law to the defendants in 1904 wiped out the existence of the transactions, matters, and things concerning which they testified. The difference between a crime committed and forgiven, and its physical occurrence, must not be overlooked....
"A pardon or amnesty secures against the consequences of one's acts, and not against the acts themselves; it involves forgiveness, not forgetfulness." (Emphasis added.)
The court in Swift adopted this reasoning from Ex parte Garland, 71 U.S. 333, 18 L. Ed. 366 (1867), in which a Confederate general challenged the act of Congress prescribing an oath that the deponent has never voluntarily borne arms against the United States as a qualification for admission to practice law before the Supreme Court. The Court held that the oath attempted to supplant what the pardon had removed and struck down the congressional act requiring the oath. The Court in Swift believed that this decision recognized that the general's actions had not been forgotten but merely forgiven by the pardon.
The Supreme Court of Arkansas again applied this phrase in State ex rel. Attorney General v. Irby, 190 Ark. 786, 81 S.W.2d 419 (1935). In that case, the Arkansas attorney general challenged Irby's privilege to hold the office of county and probate judge because of his prior conviction of embezzlement against the United States. Finding for the attorney general, the court held that "the issuance and acceptance of a pardon within [itself] irrevocably acknowledges a conviction of the crime pardoned and has the effect only of restoring civil rights as distinguished from political privileges." 190 Ark. at 797, 81 S.W.2d at 424. Quoting from 46 C.J. 1192, the Arkansas court concluded:
"`... a pardon implies guilt, it does not obliterate the fact of the commission of the crime, and the conviction thereof; it does not wash out the moral stain; as has been tersely said it involves forgiveness and not forgetfulness.' "(Emphasis added.)
Judge Harwood utilized this language in Mason, when he overruled the reasoning set out in Hogan v. Hartwell. | May 17, 1991 |
f0ed17bf-67fe-4cab-be46-e426a60a84fa | Crockett v. Great-West Life Assur. Co. | 578 So. 2d 1290 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1290 (1991)
Charles E. CROCKETT
v.
GREAT-WEST LIFE ASSURANCE COMPANY, et al.
Kathleen B. MORRIS
v.
Charles E. CROCKETT.
89-1824, 89-1845.
Supreme Court of Alabama.
April 26, 1991.
Allen W. Howell of Shinbaum, Thiemonge & Howell, Montgomery, for appellant Charles E. Crockett.
Alvin T. Prestwood of Capouano, Wampold, Prestwood & Sansone, Montgomery, for appellee/cross-appellant Kathleen B. Morris.
Joe Espy III of Melton, Espy & Williams, Montgomery, for appellees Webster Industries, Inc. and Chelsea Industries, Inc.
Ollie L. Blan, Jr. of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellee Great-West Life Assur. Co.
HORNSBY, Chief Justice.
This case involves a suit brought by Charles E. Crockett against Great-West Life Assurance Company ("Great-West") alleging the breach of a contract to pay commissions. Crockett also sued Chelsea Industries, Inc., and its subsidiary Webster Industries, Inc. ("Chelsea/Webster"), and Kathleen B. Morris, alleging an intentional interference with Crockett's contractual relationship with Great-West.[1] On August 10, 1990, the trial court granted the defendants' motions for summary judgment. We affirm.
Crockett and Morris entered into an agreement to form American Investment Associates, Inc., a business in which Crockett and Morris would jointly engage in the business of selling insurance and mutual funds. Morris made the initial contact with Chelsea/Webster concerning the purchase of health, life, and disability coverage for Chelsea/Webster's union employees. Crockett found the insurance carrier, Great-West, and eventually Chelsea/Webster decided to retain coverage with Great-West. During the negotiations, Chelsea/Webster indicated that it wanted a multi-year contract, but Great-West refused this request. Instead, the contract was to be for one year. After January 1, 1987, the policy with Great-West has been *1291 renewed every year. Changes to the contract have essentially pertained to the premiums, and in 1988 to the designation of the agent of record.
When the policy first went into effect, both Crockett and Morris were designated as agents of record. It was agreed that the commissions received from the health insurance would be split 50-50 between Crockett and Morris and that all of the commissions from the life insurance would be paid to Morris. Before the effective date of the Great-West policy, the plan administrator for Chelsea/Webster, Sherry Gilliard, signed a document prepared by Morris and sent to Great-West that stated:
Subsequent to this document, Crockett signed a group commission agreement with Great-West on June 17, 1987, which stated in part:
Both Crockett and Morris received commission payments for the 1987 and 1988 policy years. On November 30, 1988, Larry W. Crabtree, plant manager for Webster Industries, Inc., designated a new agent of record. The letter to Great-West stated:
Because Crockett did not receive any commissions in January 1989, he sued. In granting the defendants' motions for summary judgment the trial court stated:
1. Crockett's Arguments:
On appeal, Crockett first asserts that he was legally entitled to collect renewal commissions under Ala.Code 1975, § 27-8-1 et seq., specifically § 27-8-27(c)(1), even though he was not licensed with the State of Alabama as an agent of Great-West. Besides citing § 27-8-27(c)(1), Crockett provides no legal arguments in support of this first assertion.
Crockett also argues that when Chelsea/Webster, through its plan administrator, designated Crockett and Morris as agents of record "effective December 10, 1986, until termination of said contract," they waived or surrendered their right to change that agent of record designation for as long as that policy contract remained in effect. Crockett states that the policy was renewed every year beginning January 1, 1987, without substantial change; that the same policy number was used every year; that no new policy contract was issued to replace the original contract; and that the policy could have been canceled on any anniversary, but never was. Crockett additionally argues that the phrase "until termination of said contract" is unambiguous; but even if the term is found to be ambiguous, its meaning becomes a jury question, thus making the entry of summary judgment improper.[2]
2. Great-West's Arguments:
In addressing Crockett's second argument,[3] Great-West contends that Chelsea/Webster retained the sole right to designate an agent of record to receive commissions on the policy issued by Great-West to Chelsea/Webster. Thus, Great-West states that Chelsea/Webster could *1293 terminate the agent of record or add a new one at any time. Great-West contends that its only obligation under the written contract between it and Crockett was to pay commissions to the agent designated by Chelsea/Webster. Consequently, Great-West contends that the only issue presented in this case is whether Great-West is governed by its contractual relationships.
3. Chelsea/Webster's Arguments:
Chelsea/Webster argues that the summary judgment was proper because the contract between Crockett and Great-West provided that Crockett would receive commissions "unless the policyholder [Chelsea/Webster] direct[ed] the company [Great-West] to recognize another agent." Chelsea/Webster states that it revoked all previous designations of agents of record and specifically designated Morris as its sole agent of record. Thus, Chelsea/Webster concludes that when it designated Morris as the sole agent of record, Crockett was no longer entitled to receive commission payments from Great-West.
4. Morris's Arguments:
Morris first argues that Ala.Code 1975, § 27-8-27, applies. Specifically, she relies on § 27-8-27(a). She contends that the initial contract between Great-West and Chelsea/Webster, which became effective in January 1, 1987, ended on December 31, 1987, because the contract was an annual contract and not a perpetual contract, and that a new contract was formed in each subsequent year. Morris further contends that Chelsea/Webster retained the right to change the agent of record in the annual contract, and in fact did so in November 1988. Thus, Morris concludes that because a new contract was created annually, § 27-8-27(a) controls, and not § 27-8-27(c)(1) as Crockett asserts.
Second, Morris argues that even if this Court finds that the commissions in question are "renewable," the initial agent-of-record designation signed by Sherry Gilliard in 1986 was superseded by Crockett's commission agreement with Great-West, which was signed on June 17,1987. Morris contends that because Chelsea/Webster designated another agent of record in writing on November 30, 1988, the agreement between Crockett and Great-West would control and the summary judgment would be proper.[4]
The issue presented is whether the trial court erred in entering the defendants' summary judgment. In its order, the trial court found that the agreement between Great-West and Crockett provided that Crockett would receive his commission unless the policyholder, Chelsea/Webster, directed Great-West in writing to recognize another agent. The trial court concluded that, based upon this agreement, Crockett was not entitled to receive any commission payments under the annual contracts between Great-West and Chelsea/Webster after 1988 because Chelsea/Webster sent written notification that Morris was to be the sole agent of record.
Rule 56, A.R.Civ.P., provides that in order to enter a summary judgment the trial court must determine: (1) that there is no genuine issue of material fact; and (2) that the moving party is entitled to a judgment as a matter of law. All reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. 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, the burden shifts to the nonmovant, who must go 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 not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovant meet his burden by "substantial evidence." Bass v. *1294 SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
In reviewing the evidence presented to the trial court on the defendants' motions for summary judgment, we conclude that the trial court was correct in finding that the defendants had made a prima facie showing that no genuine issue of material fact existed. We also conclude that Crockett has failed to carry his burden of presenting substantial evidence to show an issue of material fact on which reasonable persons could disagree.
The contract between Great-West and Chelsea/Webster provides Chelsea/Webster with the right to designate an agent of record and the right to change this designation at any time. As stated by the trial court, it is the general law in Alabama that an insurance agent does not have an inherent right to renewal commissions. Such a right can arise only from the terms of the contract between the agent and the agent's company. Southern Farm Bureau Life Ins. Co. v. Mitchell, 435 So. 2d 745 (Ala.Civ.App.1983); Southern States Life Ins. Co. v. Allan, 38 Ala.App. 467, 87 So. 2d 439 (1956).
In this case, Crockett had the right to receive renewal commissions only as long as he was designated as the agent of record by Chelsea/Webster. For the policy years 1987 and 1988, both Crockett and Morris were designated by Chelsea/Webster as agents of record. However, for the 1989 policy year, Chelsea/Webster designated Morris as the sole agent of record. This change of the agent of record was within Chelsea/Webster's rights under its contract with Great-West.
Crockett contends that the document signed by the plan administrator, Sherry Gilliard, created an irrevocable designation by Chelsea/Webster because of the language "effective December 10, 1986, until termination of said contract." However, the evidence presented reveals that the "said contract" was an annual contract. Crockett argues that the contracts in subsequent years must be viewed as parts of the original because: (1) the contract was renewed every year; (2) the same policy number was used; (3) no new policy contract was actually issued to replace the original contract; and (4) the policy was never canceled on any anniversary. Although Chelsea/Webster renewed its policy with Great-West without substantial changes, such "change[s] [are] tantamount to a request for renewal and in [the] absence of an agreement to change [the] policy[,] each renewal of an existing policy will by implication include and adopt the provisions of [the] existing policy." Alabama Farm Bureau Mut. Cas. Ins. Co. v. Adams, 289 Ala. 304, 310, 267 So. 2d 151, 156 (1972). As stated in City Mortgage & Discount Co. v. Palatine Ins. Co., 226 Ala. 179, 181, 145 So. 490, 490 (1933):
(Emphasis added.) The Court in City Mortgage & Discount also stated that an anterior or contemporaneous agreement is ineffective unless it is incorporated into and made a part of, the policy. Id. at 181, 145 So. at 490.
The document signed by Chelsea/Webster's plan administrator was based upon a one-year contract with Great-West that was renewed annually. The evidence indicates that before the lapse of the policy each year, Chelsea/Webster met with Great-West to negotiate new termsprimarily *1295 the premiumsin the policy, which was renewed from the initial effective date of January 1, 1987. Other than changes in the premium payments, no substantial changes were made until November 30, 1988, when Chelsea/Webster designated Morris as the sole agent of record. Changing the agent of record was within Chelsea/Webster's rights under its agreement with Great-West. Also, because the document signed by Gilliard was based on an annual contract between Chelsea/Webster and Great-West, Crockett did not have an irrevocable right to receive commission payments and Chelsea/Webster did not waive or surrender its right to change the agent of record.
Based upon the foregoing discussion, we conclude that Ala.Code 1975, § 27-8-27(a), controls, because the contract between Chelsea/Webster and Great-West was an annual contract and because Chelsea/Webster retained the right to change the agent of record. Section 27-8-27 provides:
In licensing an agent, Great-West would have had to renew Crockett's license. However, Great-West did not renew Crockett's license after 1988, which was a new contract year between Great-West and Chelsea/Webster. If Chelsea/Webster had not designated Morris as the sole agent of record in 1988, § 27-8-27(c)(1) would have applied to Crockett. However, Chelsea/Webster did designate another agent of record; thus § 27-8-27(c)(1) does not apply.[5]
The trial court did not specifically address Crockett's claim that Chelsea/Webster and Morris interfered with his contractual relationship with Great-West. However, the trial court did implicitly rule on Crockett's claims against Chelsea/Webster and Morris when it entered summary judgment for all the defendants. See Poston v. Gaddis, 372 So. 2d 1099 (Ala.1979). In addition, Crockett himself did not address this issue in his brief except to argue that his tort claim was not preempted by the Employees Retirement Income Security Act (ERISA). We conclude that Crockett failed to prove the elements of a cause of action alleging the intentional interference with a contractual or business relationship.
The elements of this cause of action are as follows: (1) the existence of a contract or business relation; (2) the defendant's knowledge of the contract or business relation; (3) intentional interference by the defendant with the contract or business relation; and (4) damage to the plaintiff as a result of the defendant's interference. Justification for the interference is an affirmative defense that must be pleaded and proved by the defendant. Caine v. American Life Assurance Corp., 554 So. 2d 962 (Ala.1989); Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala. 1986). In the past we have listed an absence of justification for the defendant's interference as one of the elements of the plaintiff's cause of action; however, we recognize that it is illogical to continue to list an absence of justification as an element of the plaintiff's cause of action and to place the burden on the defendant to disprove it. See Century 21 Academy Realty, Inc. v. Breland, 571 So. 2d 296 (Ala. 1990).
In the present case, we have determined that an annual contract was created between Great-West and Chelsea/Webster. *1296 Chelsea/Webster retained the right to change the agent of record at any time, and in 1988 it did. The defendants made a prima facie showing that there had been no breach of contract and no interference with a contractual relationship of Crockett's. Crockett presented no evidence of breach of contract and no evidence that either Chelsea/Webster or Morris intentionally interfered with a contractual or business relationship of Crockett with Great-West. Consequently, we hold that the summary judgment was proper.
89-1824 AFFIRMED.
89-1845 AFFIRMED.
ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Morris cross-appealed the trial court's final order holding that Crockett's intentional-interference-with-a-contractual-relationship claim was not preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (1988).
[2] Crockett makes an additional argument in response to Morris's claim that his tort claim against her is preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (1988). However, because we affirm the trial court's summary judgment for all the defendants, we do not address this argument.
[3] Great-West does not address either the first issue or the third issue raised by Crockett. Great-West states that the first issue was not a basis for the summary judgment. In regard to the third issue, Great-West states that that issue does not involve Great-West.
[4] We do not address Morris's argument that Crockett's claim alleging the tort of intentional interference with a contractual relationship is preempted by the Employee Retirement Income Security Act of 1974.
[5] Because we affirm the trial court's summary judgment for Morris, we do not address her cross-claim concerning the preemption of Crockett's intentional-interference-with-a-contractual-relationship claim by the Employee Retirement Income Security Act. | April 26, 1991 |
8b00314f-e4d4-4cf3-87aa-d0193aaa6698 | Ex Parte White | 587 So. 2d 1236 | 1900151 | Alabama | Alabama Supreme Court | 587 So. 2d 1236 (1991)
Ex parte Leroy WHITE.
(Re Leroy White v. State of Alabama).
1900151.
Supreme Court of Alabama.
June 28, 1991.
Rehearing Denied August 30, 1991.
*1237 Richard S. Jaffe of Jaffe, Burton & DiGiorgio, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., and J. Thomas Leverette and William D. Little, Asst. Attys. Gen., for the State.
MADDOX, Justice.
Having searched the record and considered each issue raised by the petitioner, we summarily affirm the judgment of the Court of Criminal Appeals. 587 So. 2d 1218. We do, however, address one issue raised by the petitioner in a supplemental brief. The petitioner contends in the supplemental brief that the trial court incorrectly instructed the jury regarding "reasonable doubt," and cites Cage v. Louisiana, ___ U.S. ___, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990).
At trial, petitioner's counsel did not object to the instruction he now contends was prejudicial. In a death penalty case, of course, a defendant's failure to raise a claim of error at trial does not preclude this Court from reviewing the record for "plain error" and taking appropriate action whenever plain error appears. A.R.App.P., Rule 39(k); see Ex parte Waldrop, 459 So. 2d 959 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2050, 85 L. Ed. 2d 323 (1985).
"Error" is "plain error" only when it "has or probably has adversely affected the substantial rights of the [defendant]," Rule 39(k), A.R.App.P., and plain error is to be acted upon "in the same manner as if the defendant's counsel had preserved and raised [the] error for appellate review." Johnson v. State, 507 So. 2d 1351, 1356 (Ala.1986).
We have examined the entire record in this case. The evidence of the petitioner's guilt is overwhelming. We have specifically examined petitioner's claim that the trial court's instruction to the jury on "reasonable doubt" was "plain error." In that examination, we have compared the trial court's jury instruction regarding "reasonable doubt" with the instruction recently reviewed by the United States Supreme Court in Cage v. Louisiana, ___ U.S. ___, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), and condemned by that Court as violative of Cage's constitutional rights. The instruction given in this case does not contain the same infirmity that the Supreme Court of the United States found in the trial court's instruction in Cage. We hold, therefore, that there is no "plain error" affecting the substantial rights of the petitioner, and thus, no legal reason to grant the petitioner a new trial.
For the foregoing reasons, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | June 28, 1991 |
b55557ab-8efd-4f8a-b5dc-3ffad66e3208 | Fincher v. Robinson Bros. Lincoln-Mercury | 583 So. 2d 256 | 1900180 | Alabama | Alabama Supreme Court | 583 So. 2d 256 (1991)
Robert A. FINCHER
v.
ROBINSON BROTHERS LINCOLN-MERCURY, INC.
1900180.
Supreme Court of Alabama.
May 17, 1991.
Rehearing Denied June 28, 1991.
*257 James Harvey Tipler of Tipler & Tipler, Andalusia, for appellant.
Michael S. McGlothren and W.E. Howard III of Crosby, Saad & Beebe, Mobile, for appellee.
HOUSTON, Justice.
Robert A. Fincher sued Robinson Brothers Lincoln-Mercury, Inc. ("Robinson"), alleging that the new Mercury Sable automobile that he had purchased from Robinson was defective and seeking damages under theories of breach of warranty and fraud. The trial court entered a summary judgment for Robinson on both claims. Fincher appealed.[1] We affirm.
Summary judgment was proper in this case if there was no genuine issue of material fact and Robinson was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Robinson to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If Robinson made that showing, then the burden shifted to Fincher to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990). In determining whether there was a genuine issue of material fact, this Court must view the evidence in a light most favorable to Fincher and must resolve all reasonable doubts against Robinson. 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).
The following material facts appear to be undisputed: After seeing various advertisements that had been placed by Ford Motor Company ("Ford") touting the qualities of its new Mercury Sable line of automobiles *258 and after deciding that he wanted to purchase a Mercury Sable, Fincher visited Robinson, where he was told by a sales representative that the Sable would not be available for sale for a month or so. Fincher says that in discussions with him, the representative told Fincher that the Sable was a "fine car," that it "would be dependable and reliable and that it would give [him] good service," that it "was well-suited for [his] purposes," and that it "was well and properly constructed." Although Robinson had no Sables on its lot for Fincher to inspect or to test drive, Fincher placed a special order for a new Sable. An order form signed by Fincher and a copy of an invoice received by him both contained the following language, which was printed in a type and color (red) that contrasted with the type and color used in the remainder of the documents:
This language also appeared in these two documents in prominent locations and apart from other language.
Fincher contends that the summary judgment on his breach of warranty claim was improper. Conceding that Robinson made no express warranty with respect to the condition of his automobile, he argues that his automobile was impliedly warranted by Robinson to be "properly constructed, merchantable, and fit for its ordinary and intended purposes." Robinson contends that it complied with Ala.Code 1975, § 7-2-316(2), and, thereby, disclaimed any implied warranties that could have arisen out of the sale of the automobile to Fincher. Fincher maintains that the language used by Robinson in the invoice and in the order form was not "conspicuous" and, therefore, was insufficient as a matter of law to disclaim any implied warranties. The dispositive issue, therefore, is whether there was a disclaimer of warranties under § 7-2-316(2).
Section 7-2-316(2) provides:
"Conspicuous" is defined in § 7-1-201(10) as follows:
The undisputed facts in this case show that Robinson disclaimed any implied warranties that could have arisen from its sale of the automobile to Fincher. Both the copy of the invoice received by Fincher and the order form signed by him contained disclaimers that satisfy the requirement of conspicuousness set out in § 7-1-201(10).[2] Accordingly, the summary judgment for *259 Robinson was proper as to the breach of warranty claim. See Dairyland Ins. Co. v. General Motors Corp., 549 So. 2d 44 (Ala. 1989), and Wilson v. Larry Savage Chevrolet, Inc., 477 So. 2d 384 (Ala. 1985).
Fincher also contends that the summary judgment for Robinson was improper as to his fraud claim. He argues that a genuine issue of material fact exists as to whether a representative of Robinson made false representations of material fact to him concerning the condition and anticipated performance of his automobile upon which he relied to his detriment. Robinson contends that the statements made to Fincher amounted to nothing more than expressions of opinion concerning the anticipated performance of a new line of automobiles and, therefore, that they did not constitute actionable fraud. We agree.
The elements of actionable fraud based on a false representation are: 1) a duty to speak the truth; 2) a false representation of a material fact made intentionally, recklessly, or innocently; 3) action by the plaintiff upon the false representation; and 4) damages proximately resulting from the false representation. Salter v. Alfa Ins. Co., 561 So. 2d 1050 (Ala.1990). However, statements of opinion amounting to nothing more than "puffery" or predictions as to events to occur in the future are not statements concerning material facts upon which individuals have a right to act and, therefore, will not support a fraud claim. Lawson v. Cagle, 504 So. 2d 226 (Ala.1987); American Pioneer Life Ins. Co. v. Sherrard, 477 So. 2d 287 (Ala.1985); Cooper & Co. v. Bryant, 440 So. 2d 1016 (Ala.1983); Harrell v. Dodson, 398 So. 2d 272 (Ala. 1981).
The undisputed facts in the present case show that a representative of Robinson told Fincher, in essence, that his new Mercury Sable would perform in accordance with his expectations. Fincher was told this approximately one month before the Sable was made available for sale at Robinson and at a time when Robinson did not have a Sable on its premises. The statements made by the representative to Fincher were apparently based upon information that Robinson had received from Fordthe same kind of information that Fincher had gained through Ford's advertisements and on which he had based his decision to purchase. In Harrell v. Dodson, supra, at 274-75, this Court, quoting Fidelity & Casualty Co. of New York v. J.D. Pittman Tractor Co., 244 Ala. 354, 358, 13 So. 2d 669, 672 (1943), stated:
(Citations omitted.) After considering all of the evidence in the present case in the light most favorable to Fincher, as our standard of review requires us to do, and recognizing that in cases of doubt the question should be left to the jury, we conclude that a jury could not reasonably find that the statements relied on by Fincher in support of his fraud claim were representations of material fact. To the contrary, in our view the only reasonable inference that can be drawn from the evidence is that the statements were statements of opinion amounting to nothing more than "puffery" or predictions concerning the anticipated performance of the Mercury Sable line of automobiles. Consequently, because Fincher had no right to act on these statements, they could not support Fincher's fraud claim. The summary judgment for Robinson was proper as to the fraud claim.[3]
*260 For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Fincher also sued Ford Motor Company, alleging breach of warranty and fraud. The trial court entered a summary judgment for Ford on the fraud claim. Fincher did not appeal from that judgment. Fincher settled his breach of warranty claim against Ford for $12,500, and that claim was dismissed by the trial court. Ford is not a party to this appeal.
[2] Robinson supplemented the record on appeal to include the original invoice and order form. Those documents clearly show the disclaimers to be in red print. Fincher asserts that the trial court never saw the original documents, but, instead, based its judgment on black and white photocopies of those documents. Fincher argues that the red print shown in the original documents cannot serve as a basis for upholding the judgment. It is difficult for us to tell from the record whether the trial court considered the red print in entering the judgment for Robinson. In any event, we note that even if the disclaimers had not been printed in red they would still satisfy § 7-2-316(2).
[3] This case is distinguishable from Ford Motor Co. v. Phillips, 551 So. 2d 992 (Ala.1989); Sharp Electronics Corp. v. Shaw, 524 So. 2d 586 (Ala. 1987); Ford Motor Co. v. Burkett, 494 So. 2d 416 (Ala.1986); Treadwell Ford, Inc. v. Campbell, 485 So. 2d 312 (Ala.1986), appeal dismissed, 486 U.S. 1028, 108 S. Ct. 2007, 100 L. Ed. 2d 596 (1988); and Jones v. Mace, 550 So. 2d 431 (Ala. Civ.App.1989). In each of those cases there was sufficient evidence to create a fact question as to whether a false representation of material fact had been made by the defendant that could have been acted on by the plaintiff to the plaintiff's detriment.
We also note that, in light of the circumstances surrounding his purchase of the automobile, had Fincher alleged and argued that the statements made to him by Robinson's representative were statements of opinion upon which a fraud claim could be predicated, the summary judgment would, nonetheless, have been proper. See Reynolds v. Mitchell, 529 So. 2d 227 (Ala.1988). | May 17, 1991 |
dc966e26-7777-4136-aab6-1030da6189dc | Ex Parte Barnard | 581 So. 2d 489 | 1900213 | Alabama | Alabama Supreme Court | 581 So. 2d 489 (1991)
Ex parte Hollinger F. BARNARD, Margaret Pace Barnard, and William Harrison Barnard.
(Re Hollinger F. BARNARD, Joshua Bates Barnard, Margaret Pace Barnard, and William Harrison Barnard v. William Dean BARNARD).
1900213.
Supreme Court of Alabama.
May 17, 1991.
Ralph I. Knowles, Jr. of Drake, Knowles & Pierce, Tuscaloosa, and Ralph I. Knowles, Jr. of Doffermyre, Shields, Canfield & Knowles, Atlanta, Ga., and Joseph G. Pierce of Drake & Pierce, Tuscaloosa, for appellants.
Richard M. Nolen and Robert F. Prince of Prince, Turner & Nolen and Robert F. Prince and Lisa L. Woods of Prince, Baird, Turner & Poole, Tuscaloosa, for appellees.
HOUSTON, Justice.
The petitioner, Hollinger F. Barnard ("the mother"), and William Dean Barnard ("the father") were divorced in the Circuit Court of Tuscaloosa County on April 8, 1988. An agreement between the parties provided for the father to pay child support for the parties' two minor children, Joshua Bates Barnard ("Josh") and Margaret Pace Barnard ("Meg"), but provided no child support for the parties' other child, William *490 Harrison Barnard II ("Will"), who was 19 years old and in college at the time of the divorce. In the agreement, the father was required to maintain medical insurance on all three children even after each reached the age of majority, as long as such coverage was available under the father's group plan. The agreement also provided that as long as the father was providing medical insurance for Meg, the father was to receive reports on Meg's "current or planned educational endeavors" after her 19th birthday. The agreement also required consultation with the father concerning colleges or universities to which Josh would apply or attend. The agreement, however, did not require post-minority education support for the three children, because the mother was advised that the law in Alabama at the time of the divorce did not allow for such support. Subsequently, in Ex parte Bayliss, 550 So. 2d 986 (Ala.1989), we overruled prior cases that had denied trial courts the discretion to require postminority education support. Thereafter, the mother filed a motion for a declaratory judgment and a modification of the divorce decree, requesting that the trial court hold that the father was obligated to provide support for the parties' three children while they attended college and requesting that the trial court determine the terms of that support. The father filed a motion for summary judgment, requesting that the trial court hold that the parties' two older children, Meg and Will, were not entitled to child support as a matter of law. After a hearing before the trial court at which the parties stipulated to the facts, the trial court held that, in regard to Josh, the youngest child, the father would be obligated to provide some amount of his college expenses upon his graduation from high school, but granted a summary judgment for the father as to the two older children, Meg and Will, on the ground that they had exceeded the age of 19 and were, therefore, not entitled to support from their father. The Court of Civil Appeals affirmed, with opinion. Barnard v. Barnard, 581 So. 2d 495 (Ala.Civ.App.1990). The court overruled the mother's application for rehearing and denied her Rule 39(k), A.R.App.P., motion, without opinion. We granted the mother's petition for certiorari review.
The mother contends that the trial court's jurisdiction to award or to modify child support so as to provide post-minority support for college education is not limited to those cases in which application for modification is made prior to the child's attaining the age of majority. The mother contends that the Court of Civil Appeals' reliance on the following language in Ex parte Bayliss, supra, is "misplaced and contrary to the clear intent of this Court in rendering its landmark decision in Bayliss":
550 So. 2d at 987. (Emphasis added.) We disagree with the mother's contention and hold that the jurisdiction of the trial court is so limited.
The law is well settled that once the trial court obtains jurisdiction over the children of divorced parents, the court retains that jurisdiction during the children's infancy; and it is the court's duty to protect the interests of the children. See Wise v. Watson, 286 Ala. 22, 236 So. 2d 681 (1970); Murrah v. Bailes, 255 Ala. 178, 50 So. 2d 735 (1951); see, also, Vaughn v. Vaughn, 473 So. 2d 1090 (Ala.Civ.App.1985). Historically, the issue of custody and child support terminated upon the child's reaching the age of majority. See, Ex parte Bayliss, supra; see, also, Murrah v. Bailes, supra; Mashburn v. Mashburn, 555 So. 2d 1123 (Ala.Civ.App.1989); Vaughn v. Vaughn, supra. However, we note that Alabama has carved out two exceptions to that ruleEx parte Brewington, 445 So. 2d 294 (Ala.1983) (a case dealing with a physically or mentally disabled child), and Ex parte Bayliss (a case dealing with the college education exception).
In the instant case, we are asked to address the issue dealing with the college education exception. In Ex parte Bayliss, *491 the case in which we carved out the exception for college education, Patrick Bayliss's mother and father were divorced when Patrick was 12 years old. When Patrick turned 18, his mother filed a petition to modify the final judgment of divorce, seeking, among other things, to require Patrick's father to pay for Patrick's college education. The trial court held that even though the petition was filed prior to Patrick's reaching the age of majority, Patrick had already attained the age of majority at the time of the hearing on the mother's petition to modify and that it was, therefore, without authority to order the father to pay such support. The Court of Civil Appeals affirmed. We reversed and remanded, holding that, because the application for modification was filed before Patrick attained the age of majority, the trial court had discretion to order such support.
In the instant case, because Will had already attained the age of majority at the time of his parents' divorce, the trial court never had jurisdiction to enter support or custody orders regarding Will. Thus, the trial court properly entered the summary judgment in favor of the father as to Will.
Also, in the instant case, because Meg was only 18 years of age at the time of her parents' divorce, the trial court had jurisdiction over the custody of and support for Meg. However, at the date of her mother's petition for modification, Meg had already attained the age of majority. Because the mother's application for an award of college expenses was not made before Meg attained the age of majority, the trial court no longer had jurisdiction to enter support or custody orders regarding Meg. In other words, it was no longer within the trial court's discretion to award any support for Meg's post-secondary education. Therefore, the trial court properly entered the summary judgment in favor of the father as to Meg.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, STEAGALL and KENNEDY, JJ., concur.
ALMON and ADAMS, JJ., concur in the result.
ALMON, Justice (concurring in the result).
I continue to adhere to the view that Ex parte Bayliss, 550 So. 2d 986 (Ala.1989), was wrongly decided. This case illustrates one problem arising from the holding in Bayliss: How can court-ordered child support continue beyond the child's minority if the court has no jurisdiction to entertain an application that is filed after the child has reached majority? If the justification for Bayliss is that jurisdiction may continue into majority if it is invoked during minority, why not go the step further to say that jurisdiction may be invoked after majority has been reached? If the justification for Bayliss is that "children" in § 30-3-1 can mean "adult offspring" as well as "minor children" and that "education" as used therein includes college education, what is the justification for today's holding?
The petitioners do not make an equal protection argument, but such an argument could be problematic. Why should all children similarly situated not be entitled to a college education? Under the Bayliss rule and today's holding, some children will receive support for college education while others similarly situated will not, based on the fortuitous event of when their parents divorce, not on the need and ability of the child and the wealth of the parent. An example is provided in this case, because Josh is entitled to post-minority college support, but his older sister and brother are not. Furthermore, will parents who are not divorced now be legally obligated to support their children through college? If the Barnards were to reconcile and remarry, would Josh's right to support be terminated? Other inherent problems include the questions of how good a student a child has to be in order to be entitled to support under Bayliss; whether a child should be awarded support to attend a trade or technical school; whether such support can be awarded for post-graduate or professional studies; and at what age the parent's obligation terminates.
I did not vote in Ex parte Brewington, 445 So. 2d 294 (Ala.1983), and have had no *492 occasion since to vote on the requirement of support of a physically or mentally incapacitated child into the child's majority. I note that the Court of Civil Appeals, in Martin v. Martin, 494 So. 2d 97 (Ala.Civ. App.1986), allowed a custodial mother to apply for and obtain child support for a 28-year-old incapacitated daughter even though the daughter had been an adult at the time of the divorce in 1977 and no provision had been made for her at the time. The opinion of the Court of Civil Appeals in this case certainly seems to conflict with its opinion in Martin. Are we overruling Martin sub silentio, or is the Brewington rule different from the Bayliss rule in this respect?
I agree that a parent with sufficient means generally has a moral obligation to help a deserving child through college and, in some circumstances, a legal obligation to provide such support during the child's minority, see Ogle v. Ogle, 275 Ala. 483, 156 So. 2d 345 (1963). I do not agree in principle that there should be a legal obligation to provide such support beyond the child's minority. I write simply to point to some of the difficulties into which I think the Court is moving. I agree that the judgment for the respondent father is due to be affirmed.
ADAMS, J., concurs. | May 17, 1991 |
b1b848ff-d1cc-46fa-b39b-f830a1387918 | Curtis v. Bill Byrd Automotive, Inc. | 579 So. 2d 590 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 590 (1990)
George L. CURTIS, Jr.
v.
BILL BYRD AUTOMOTIVE, INC., et al.
89-1581.
Supreme Court of Alabama.
December 21, 1990.
Dissenting Opinion May 27, 1991.
*591 Timothy M. Grogan, Mobile, for appellant.
Ralph Loveless of Loveless & Banks, Mobile, for appellees.
STEAGALL, Justice.
This is an appeal from a summary judgment entered in favor of defendants Bill Byrd Automotive, Inc., and Bill Wilson on the fraud and contract claims of George L. Curtis, Jr., with regard to Curtis's purchase of a 1985 Nissan Sentra station wagon from Bill Byrd Automotive. On appeal, Curtis complains only of the ruling on the fraud claim; therefore, we need not address the contract claim. The only issue raised is whether a genuine issue of material fact existed as to whether Curtis "reasonably relied" on alleged misrepresentations made by representatives of Bill Byrd Automotive.
Appellees, however, by motion to dismiss the appeal, raise a procedural issue: whether the notice of appeal that referenced only the final order of the courtan order dismissing the case as to an unserved defendantwas jurisdictionally flawed. Specifically, the appellees point out that the plaintiff's notice of appeal stated that the plaintiff was appealing from the court's order of March 14, 1990 (dismissing an unserved defendant), and, from this fact, they argue that the plaintiff cannot raise on appeal issues relating not to that order of dismissal but to the March 2, 1990, summary judgment in favor of the appellees. Initially, we address the procedural issue.
Citing pertinent rules of civil and appellate procedure and Edmondson v. Blakey, 341 So. 2d 481 (Ala.1976), the appellees argue the following in support of their motion to dismiss:
The appellees' argument is indeed a persuasive one, and, undoubtedly, under the Court's strict application of the rules that preceded our present rules of civil and appellate procedure, the appellees' motion to dismiss the appeal would have been granted. Here, however, we believe the "purpose and spirit" approach to the interpretation and application of our procedural rules requires that we hold the challenged notice of appeal sufficient to present the March 2, 1990, summary judgment for review. Although Curtis mistakenly believed that an order of dismissal of the unserved defendant was essential to effect a final, appealable judgment, his notice of appeal correctly listed as appellees only the two served defendants in whose favor summary judgment had been entered.
Upon receipt of the notice of appeal, neither this Court nor the appellees were misled with respect to who the parties were on appeal (a fact that distinguishes this case from Edmondson, supra); nor can it be fairly argued that the appellees were left in doubt with respect to which judgment Curtis was challenging on appeal. We observe also that the notice of appeal was filed within the 42-day period after the summary judgment was entered.
Moreover, the spirit of the rules is reflected in Rule 3(c), A.R.App.P.: "Such designation of judgment or order [i.e., the designation in the notice of appeal of the "judgment ... appealed from"] shall not, however, limit the scope of appellate review"; and in Rule 4(a)(1): "On an appeal from a judgment or order a party shall be entitled to a review of any judgment, order, or ruling of the trial court."
We now address the merits of the substantive issue presented by Curtis. According to Curtis's deposition testimony, after seeing an advertisement in a sales magazine for a 1985 Nissan Sentra station wagon, he visited the dealership of Bill Byrd Automotive in Mobile, Alabama. Upon arriving at the automobile sales lot, Curtis met Robert Moody, a salesman of Bill Byrd Automotive. Curtis expressed to Moody his interest in the advertised vehicle and Moody "showed" him the vehicle. Curtis said that he examined the vehicle and that, while he did so, he commented to Moody that it "seemed to have low mileage" and to be "in good shape," and he said that he told Moody he "wondered if it had been wrecked." Moody did not respond to the comment. Curtis alleged that he and Moody then test drove the vehicle and continued to generally discuss the features of the car. According to Curtis, at no point did Moody ever acknowledge Curtis's comment about wondering if the vehicle had been wrecked. Soon after the test drive, Curtis left the sales lot.
Several days later, Curtis returned to the dealership to inspect the Nissan vehicle again. Moody and Curtis took it for a second test drive, during which Curtis drove it to his residence to show his wife. While at his residence, Curtis said, he checked the vehicle for "oil leaks" and "water leaks." After positioning himself "underneath" the vehicle, Curtis said, he discovered an oil leak and pointed it out to Moody. Curtis said that Moody assured him that the leak was "no problem" and would be fixed by the dealership. Moody and Curtis then returned to Bill Byrd Automotive.
According to Curtis, upon returning to the dealership, he and Moody met with Bill Wilson, the service manager of the dealership, and Curtis informed Wilson of the problem with the oil leaking from the station wagon. Wilson, too, Curtis says, assured him that the leak was "no problem" and would be repaired by the dealership.
*593 Curtis says that Wilson then escorted him to the finance manager's office to arrange financing to enable Curtis to purchase the station wagon and that Wilson also urged Curtis to purchase a "service warranty" because, Curtis says, while Wilson claimed that he had "checked the car out and it was in good shape," Wilson said the warranty would cover any repairs that might be needed. Curtis did not purchase the warranty, but bought the Nissan Sentra for $6,600 and signed an "`AS IS' USED VEHICLE RETAIL BUYER'S ORDER," along with a "Buyer's Guide."
Curtis said that over the next 18 months he replaced the clutch and transmission assembly on the Nissan Sentra on four occasions, and, realizing that there was a serious problem with the vehicle, had it inspected by Pat Jones of P & M Auto. There was evidence that this inspection revealed that the automobile "had sustained major damage to its internal components and to the body of the automobile, and [that] it appeared that the damage was a result of the car being wrecked." Curtis claims that because of the condition of the vehicle, it is "impracticable" to attempt to further repair it. Curtis further asserts that had he known the vehicle had been wrecked and rebuilt, he would not have purchased it.
After learning of the condition of the vehicle, Curtis sued Bill Byrd Automotive, Bill Wilson, and Robert Moody, claiming breach of contract and fraud. Moody was subsequently dismissed from the action as to both counts because Curtis had failed to obtain service on him. The breach of contract action was also dismissed as to Wilson, but not as to Bill Byrd Automotive. The fraud claim was predicated upon Wilson's statement that he had checked the vehicle and had found it to be in "good shape," implying, Curtis says, that it had not been previously wrecked. Bill Byrd Automotive and Wilson generally deny the allegation and defend their actions on the concept of "caveat emptor." Both assert that Curtis purchased the vehicle "as is" and that there is no evidence to support a claim of fraud.
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, A.R. Civ.P.. Once the moving party has made a prima facie showing that no genuine issue of material fact exists, the burden of proof shifts to the nonmovant to provide "substantial evidence" in support of his position, so as to show that there is a question of fact. Ala.Code 1975, § 12-21-12; 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 parties in support of their motion in the light most favorable to the nonmovant, Curtis; and the burden of proving the nonexistence of justifiable reliance[1] by Curtissuch reliance being an element of Curtis's fraud actionrested with Bill Byrd Automotive and Wilson as the moving parties. Hanners and Bass.
Curtis says that Moody, in his conversation with Curtis, failed to acknowledge Curtis's inquiry as to whether the car had been "wrecked." Bill Byrd Automotive and Wilson offered no evidence to dispute Curtis's claim; they merely made a general denial. In the case of Standard Motorcar Co. v. McMahon, 203 Ala. 158, 82 So. 188 (1919), this Court addressed the question of liability resulting from suppression of a material fact:
203 Ala. at 160, 82 So. at 190. Cited in Peterbilt Motors Co. v. Martin, 521 So. 2d 946, 950 (Ala.1988). This rule has particular importance to the instant case in regard to the representations as to the condition of the vehicle, a condition that could not have been known by Curtis. More importantly, here, Curtis went a step further and inquired whether the vehicle had been wrecked, but his inquiry was ignored by Moody.
It is clear from the record that Curtis says that his belief that the vehicle was in good condition served as an inducement for him to purchase it. Therefore, it was incumbent upon Moody to disclose any and all information that he had concerning the condition of the automobile, considering the inquiry by Curtis. Ala.Code 1975, § 6-5-102; Peterbilt Motors Co., 521 So. 2d at 950.
The ultimate question is whether there is evidence that the dealership and its representatives knew of the condition of the automobile. If Bill Byrd Automotive and its representatives knew of the condition of the vehicle, they had a duty to disclose it, especially in light of the inquiry by Curtis. "Affirmative misrepresentation is not the only basis for fraud, which can also exist in the concealment of material facts for which there is a duty to disclose." Courtesy Ford Sales, Inc. v. Clark, 425 So. 2d 1075, 1077-78 (Ala.1983); Ala.Code 1975, § 6-5-102. There was evidence that the dealership represented to Curtis that the automobile was in "good shape" and that the dealership had "checked the car out," indicating that the dealership had conducted an inspection of the vehicle. A jury could conclude that an inspection by the dealership's trained personnel would have revealed what mechanic Jones said he found, that the vehicle had been wrecked. Whether Bill Byrd Automotive and its representatives knew or should have known that the car had been wrecked is a factual issue that should be determined by a jury.
Reviewing the evidence in the light most favorable to Curtis, we find substantial evidence to support Curtis's claim of fraud predicated on the dealership's alleged failure to disclose information about the condition of the automobile; we further find substantial evidence of justifiable reliance (see Hickox v. Stover, 551 So. 2d 259 (Ala. 1989)) by Curtis on the alleged failure to disclose and also on the alleged representation of Moody and Wilson, agents of Bill Byrd Automotive.
Therefore, it was error for the trial court to enter the summary judgment on the fraud claim. That claim should be resolved by a jury.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, ALMON, SHORES, HOUSTON and KENNEDY, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The undisputed facts in this case show that the purchaser of this automobile executed a sales contract that contained the following provision immediately above his signature:
Furthermore, it is undisputed that there was a "Buyers Guide" window sticker on this used car, as required by Federal law, and I attach a copy of it to this dissent as Appendix A. This notice to the purchaser is on the exact form required by the Federal Trade Commission in a Rule governing the sale of used automobiles (16 C.F.R. § 455, "Used Motor Vehicle Trade Regulation Rule"). The words "AS ISNO WARRANTY" are in letters 7/16th of an inch in height (seven times the size of the text in the document) and, insofar as I can tell, this "Buyers Guide" complies fully with the Rule. See 16 C.F.R. § 455.2, "Consumer SalesWindow Form," which specifies the size of the form, the size of the print on the form, etc.
I have checked all the other requirements of 16 C.F.R. § 455, and it appears to me that all of the requirements of that Rule, which are obviously designed to protect the buyer of a used automobile, were followed. The Rule requires that the seller of a used vehicle give to the buyer a window form containing "all of the disclosures required by the Rule and the warranty coverage agreed upon." See 16 C.F.R. § 455.3, "Window form," attached hereto as Appendix C.
Not only did Curtis read and sign the "window form" and the sales contract, but he test drove the car on two occasions and checked under the hood and under the car "for oil leaks, or water leaks or anything."
I am of the opinion that, as a matter of law, Curtis failed to present substantial evidence of his claim of fraud in the inducement, in that he failed to present substantial evidence that Bill Byrd Automotive intentionally deceived him or acted so recklessly that its actions should be taken as an intentional deception. The only evidence offered by Curtis in support of his claim was the alleged silence by the salesman, Mr. Moody, and the alleged oral statement made by the service manager, Mr. Wilson, concerning the condition of the used car.[2] Curtis seeks not only to supplement the terms of the written sales contract signed by him by these alleged representations, but specifically to contradict the window sticker read and signed by him, which the Federal Rule says was to contain the "warranty coverage agreed upon."[3] This Court has held that "[i]f a written contract exists, the rights of the parties are controlled by that contract; and parol evidence is not admissible to contradict, vary, add to, or subtract from its terms" and that "fraud or misrepresentation cannot be predicated upon a verbal statement made before execution of a written contract when a provision in that contract contradicts the verbal statement." Tyler v. Equitable Life Assurance Soc. of the United States, 512 So. 2d 55, 57 (Ala.1987).
It appears to me that the majority, by permitting the buyer in this case to allege and prove silence in response to his questioning and to prove oral statements and representations made before the sale was consummated that are directly inconsistent with the warranty information contained on all the documents required by federal law, has effected a major change in the law of parol evidence.
It is my judgment that evidence of these alleged representations is not admissible to prove fraud in the inducement. The purpose of written contracts, in my opinion, is to prevent lawsuits and "swearing *596 matches." The parol evidence rule is specifically designed to prevent swearing matches when negotiations and agreements have been reduced to writing. The parol evidence rule is especially applicable here because of the federally imposed requirements of disclosure, particularly the requirement to furnish the window form to the buyer.[4]
The subject of this sale was a used automobile, the sale of which is strictly regulated by federal laws and regulations. In regard to the sale of used automobiles, the Federal Trade Commission has specified the kind and size of type and size of the notice that must be attached to the window of a used automobile. The record reveals that this required notice was read and signed by the buyer in this case; therefore, I cannot accept the majority's conclusion in this case that "[i]t is clear from the record that Curtis says that his belief that the vehicle was in good condition served as an inducement for him to purchase it."
Assuming, however, that the evidence of the alleged representations is admissible, where is the proof of justifiable reliance? The plaintiff twice test drove the vehicle, and he stated that he "raised the hood on the car and looked from the top and got underneath the car" to "check the car further for oil leaks, or water leaks or anything." Furthermore, expressly stated on the "As Is" window sticker is the following:
Thus, the evidence reveals that although Curtis had the opportunity to have the vehicle inspected by his own personal mechanic, he had the vehicle inspected only after he had purchased it.
Based on the foregoing, I think that the majority errs in reversing the summary judgment in favor of Bill Byrd Automotive. In short, I find no substantial evidence from which a jury could reasonably infer that Curtis was induced through fraud to purchase the used car from Bill Byrd Automotive. The essential elements of a fraud claim were recently set forth by this Court in Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 749 (Ala.1990):
I do not think that there is substantial admissible evidence on each of the elements of Curtis's fraud claim that would create a conflict warranting a jury determination of his claim.
I agree with Bill Byrd Automotive's argument that evidence of the alleged representations made by its agents to Curtis is inadmissible, because I do not believe that this Court should sanction a complete disregard of the express terms of a written contract, especially when the disclosures required by federal law were admittedly made.
This Court, in Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala.1988), stated the applicable rule:
539 So. 2d at 163.
In Blake v. Coates, 292 Ala. 351, 294 So. 2d 433 (1974), this Court held that "in the absence of fraud in procuring the signature to a contract by misrepresenting or concealing its contents, it cannot be impeached by proving a different contemporaneous agreement, or because the party signing was ignorant of its legal effect." 292 Ala. at 353, 294 So. 2d at 435. As this Court noted there: "`If this were not the law, "contracts would not be worth the paper on which they were written."'" The majority thinks that this case comes within the "fraud" exception to the parol evidence rule. I respectfully disagree with them.
The evidence is clear that, before purchasing the car George Curtis executed two instruments, which I attach to this opinion as Appendices A and B. They speak for themselves. How he could not see the words "AS ISNO WARRANTY," when the letters are 7/16 of an inch in height (seven times larger than the ordinary print), escapes me.
Even assuming, however, that evidence of the alleged oral statements to Curtis is admissible, I would still conclude that Curtis failed to present evidence indicating that Bill Byrd Automotive either "willfully" or "recklessly without knowledge" perpetrated a fraud against him. At most, that evidence would show only a breach of warranty. Where is the evidence of fraud? I do not find substantial evidence that suggests or reasonably implies that Bill Byrd Automotive intentionally or recklessly misrepresented the used car's condition to Curtis at the time of its purchase.
My ultimate conclusion that the majority opinion is incorrect is based substantially *598 on the fact that the purchaser here admittedly read and signed two documents acknowledging that no representations were, in fact, made to him. That conclusion is further buttressed by the fact that the Federal Government, by a duly promulgated regulation, which was followed in this case, has determined what is and what is not sufficient to protect purchasers of used cars in this country.[5]
I think that the majority opinion establishes a bad precedent. Its effect is to permit a buyer of a used car, the sale of which is strictly regulated by Federal law, to claim that warranties were made about it even though the window form required by Federal law affirmatively shows that the buyer purchased the car "AS ISNO WARRANTY" and signed a statement acknowledging that "THIS `AS IS' RETAIL BUYERS ORDER IS AN OFFER BY ME TO PURCHASE THE VEHICLE DESCRIBED HEREIN ON THE TERMS AND CONDITIONS AS SPECIFIED."
For all of the foregoing reasons, I would hold that the trial court properly entered the summary judgment in favor of Bill Byrd Automotive as to Curtis's allegations of fraud in the inducement.
*601 Federal Traded Commission
of your place of business (for example, your service station) or your own name and home address.
(d) Make, Model, Model Year, VIN. put the vehicle's name (for example. Chevrolet"), model (for example, "Vega"), model year. and Vehicle Identification Number (VIN) in the spaces provided. You may write the dealer stock number in the space provided or you may leave this space blank.
(e) Complaints. In the space provided. put the name and telephone number of the person who should be contacted if any complaints arise after sale.
§ 455.3 Window form.
(a) Form given to buyer. Give the buyer of a used vehicle sold by you the window form displayed under § 455.2 containing all of the disclosures required by the Rule and reflecting the warranty coverage agreed upon. It you prefer, you may give the buyer a copy of the original, so long as that copy accurately reflectes all of the disclosures required by the Rule and the warranty coverage agreed upon.
(b) Incorporated into contract. The information on the final version of the window form is incorporated into the contract of sale for each used vehicle you sell to a consumer. Information on the window form overriders any contrary provisions in the contract of sale. To inform the consumer of these facts. include the following language conspicuously in each consumer contract of sale:
The information you see on the window form for this vehicle is part of this contract. Information on the window form overrides any contrary provisions in the contract of sal
§ 455.4 Contrary statements.
§ 455.5 Spanish language sales.
If you conduct a sale in Spanish, the window form required by § 455.2 and the contract disclosures required by § 455.3 must be in that language. You may display on a vehicle both an English language window form and a Spanish language translation of that form. Use the following translation and layout for Spanish language sales: 4
4 Use the following language for the "Implied Warranties Only" disclosure when required by § 455.2(b)(1):
Garantias implicitas solamente
Este termino significa que el vendedor no hace promesas especificas de arreglar lo que requiera reparacion cuando usted compra el vehiculo o despues del momento de la venta. Pero. las "garantias implicitas" de la ley estatal pueden darle a usted algunos derechos y hacer que el vendedor resuelva problemas graves que no fueron evidentes cuando usted compro el vehiculo.
Use the following language for the "Service Contract" disclosure required by § 455.2(b)(3):
CONTRATO DE SERVICIO. Este vehiculo tiene disponible un contrato de servicio a un precio adicional. Pida los detalles en cuanto a cobertura, deducible. precio y exclusiones. Si adquiere usted un contrato de servicio dentro de los 90 dias del momento de la venta, las "garantias implicitas" de acuerdo a la ley del estado pueden concederle derechos adicionales.
[1] Although both sides refer to the standard in fraud cases as being "reasonable reliance," the correct standard by which reliance is assessed in fraud cases is "justifiable reliance." Hickox v. Stover, 551 So. 2d 259 (Ala.1989).
[2] Curtis alleges that Mr. Moody failed to respond to his question as to whether the car had ever been wrecked and that Mr. Wilson stated that he had "checked the car out and it was in good shape."
[3] Included in the provisions of the sales contract that Mr. Curtis read and signed was a boldly printed provision that stated the following:
"THE VEHICLE BEING SOLD UNDER THIS AGREEMENT IS BEING PURCHASED & ACCEPTED BY THE PURCHASER `AS IS'"
Also included on the contract is the following language required by 16 C.F.R. § 455.3:
"The information you see on the window form for this vehicle is part of this contract. Information on the window form overrides any contrary provisions in the contract of sale."
See Appendix B.
[4] Many governmental regulations, such as the Truth-in-Lending Act, specifically require that consumers receive certain disclosures considered by the regulators to be sufficient to put the consumers on notice of the terms of their contracts.
[5] The Federal Rule required Bill Byrd Automotive to put this statement on the sales contract form: "The information you see on the window form for this vehicle is part of this contract. Information on the window form overrides any contrary provisions in the contract of sale." (Emphasis added.) 16 C.F.R. § 455.3. The sales contract ("buyer's order") contained this required language. It was printed on the contract form and was not difficult to read. | May 27, 1991 |
6cb7d83c-2f67-41a4-91ff-0aae592593d1 | King v. SR Smith, Inc. | 578 So. 2d 1285 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1285 (1991)
Barbara Briant KING
v.
S.R. SMITH, INC., et al.
89-1704.
Supreme Court of Alabama.
April 26, 1991.
*1286 Jere L. Beasley and Kenneth J. Mendelsohn of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellant.
Peter V. Sintz and Mark S. Gober of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, and William Mudd of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellees.
KENNEDY, Justice.
Barbara Briant King, as administratrix of the estate of her son, Kenneth Halpern, filed an action under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD) against S.R. Smith, Inc., and S.R. Smith Company, Inc., as well as other defendants not involved in this appeal. The parties have agreed that for purposes of this appeal the relationship of the companies is not an issue, and we refer to the companies together as "S.R. Smith." Ms. King claimed that S.R. Smith failed to warn of the danger associated with diving from a diving board that it manufactured and sold. The trial court entered a summary judgment for S.R. Smith and, pursuant to Rule 54(b), A.R.Civ.P., made the judgment final.
Ms. King's action was before this Court on an appeal from a summary judgment for another defendant in King v. National Spa & Pool Institute, Inc., 570 So. 2d 612 (Ala.1990). In that case we stated the facts as follows:
570 So. 2d at 613.
The standard used to determine the propriety of a summary judgment is found in Rule 56(c), A.R.Civ.P.:
The burdens placed on the parties by this rule have often been described:
Schoen v. Gulledge, 481 So. 2d 1094, 1096-97 (Ala.1985).
In determining whether there is substantial evidence to defeat a summary judgment motion, this Court reviews the evidence in the light most favorable to the nonmovant and resolves all reasonable doubts against the movant. Sanders v. Kirkland & Co., 510 So. 2d 138 (Ala.1987).
Ms. King alleges that S.R. Smith failed to warn Mr. Halpern of the dangers associated with diving from its board into the pool. Under the AEMLD, if a manufacturer or seller places goods on the market that are imminently dangerous when put to their intended purpose and the defendant knows or should know that the goods can create danger when used in their customary manner, the defendant must exercise reasonable diligence to make such danger known to the persons likely to be injured by the product. Hawkins v. Montgomery Industries International, Inc., 536 So. 2d 922 (Ala.1988); Gurley v. American Honda Motor Co., 505 So. 2d 358 (Ala. 1988); Cazalas v. Johns-Manville Sales Corp., 435 So. 2d 55, 58 (Ala.1983).
S.R. Smith argues that it did "everything within its power to comply with its duty to warn," because, it argues, it places a warning sticker on each diving board sold that reads as follows: "Danger: Control your dive. Serious injury or death can result if head strikes bottom." That warning sticker also suggests how to position one's body during all the phases of a dive to avoid injury.
However, Alvin Shelton, vice-president of S.R. Smith, Inc., testified in deposition that that warning was not placed on any of the defendants' diving boards until 1985, which was after the diving board involved in this action had been manufactured and installed in the swimming pool. Also, according to Shelton, the defendants did not retroactively furnish this warning to persons who had purchased diving boards prior to the time S.R. Smith began using this warning. The evidence further indicates that the closest thing to a warning on the diving board involved in this action was a sticker placed underneath the board, which was not visible from the top of the diving board, that provided installation specifications; it did provide a warning to the effect that if the board is installed for diving into a depth of less than 7'6", then "serious injury could result to the user." A copy of that sticker is attached to this opinion as Appendix A. There are no allegations by either party that the diving board was installed without regard to existing specifications; indeed Shelton testified that "the diving board was properly matched to the type pool located in the backyard."
Ms. King produced evidence that S.R. Smith knew or should have known that diving from the diving board could be dangerous. Asked if he knew that diving from the diving board could be dangerous even before S.R. Smith started using warning labels in 1985, Shelton admitted, "I am sure S.R. Smith knew before that [that] there could be danger diving off a diving board."
S.R. Smith contends that its summary judgment was proper because, it argues, any danger from the diving board was "open and obvious." "Whether a danger [is] `open' and `obvious' does not go to the issue of the duty of the defendant under the AEMLD. Instead, `open' and `obvious' danger relates to the affirmative defense of assumption of risk, the alleged `defectiveness' of the product, and the issue of causation." Entrekin v. Atlantic Richfield Co., 519 So. 2d 447 (Ala.1987). See Rivers v. Stihl, Inc., 434 So. 2d 766 (Ala. 1983); Ford Motor Co. v. Rodgers, 337 *1288 So. 2d 736 (Ala.1976). S.R. Smith does not indicate whether its argument concerning `open' and `obvious' relates to a defense of assumption of the risk, to an argument that the product was not defective, or to an argument concerning lack of causation; in any event, however, S.R. Smith has not adequately shown to this Court the existence of a prima facie case of any of these defenses.
We conclude that Ms. King presented substantial evidence that S.R. Smith placed the diving board on the market; that when the diving board was used for its intended purpose it was either dangerous or created a danger to its user who was using it in a customary manner and for its intended purpose; that S.R. Smith knew or should have known of those dangers; and that S.R. Smith did not exercise reasonable diligence to make the dangers known to the persons likely to be injured by using the diving board. Hawkins; Gurley; Cazalas. Thus, Ms. King offered substantial evidence that created genuine issues of material fact, suitable for a jury's determination, on her claim alleging failure to warn or improper warning. Accordingly, the judgment is due to be reversed and the cause remanded. Hawkins; Gurley; Cazalas.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
*1289 | April 26, 1991 |
e5d911a6-7a2e-4112-933a-29a58bf14894 | Young v. Serra Volkswagen, Inc. | 579 So. 2d 1337 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1337 (1991)
Lynn YOUNG
v.
SERRA VOLKSWAGEN, INC.
89-1848.
Supreme Court of Alabama.
May 3, 1991.
Courtney B. Adams of Burge & Wettermark, Birmingham, for appellant.
F.A. Flowers III and Michael L. Lucas of Burr & Forman, Birmingham, for appellee.
STEAGALL, Justice.
Lynn Young appeals from a summary judgment in favor of Serra Volkswagen, Inc., on her claims seeking damages for fraud, deceit, malicious misrepresentation, and wantonness. The dispute stems out of the sale of an automobile to Young by Serra Volkswagen. We affirm.
On July 14, 1986, Young, accompanied by a friend, Kim Shoemaker, visited the sales lot of Serra Volkswagen to purchase an automobile. Jonathan Flanagan, a salesman for Serra Volkswagen, introduced himself to Young, and he and Young began discussing the sales prices of certain automobiles, as well as the price range Young could afford. Flanagan then directed Young's attention to a silver-colored 1986 Volkswagen Golf automobile that Serra Volkswagen had used as a demonstrator. Young says that Flanagan told her that the car was a "demo," that "it was as good as a new car," that she would get a "new car warranty," and that it was "within [her] price range." Young then inspected the car and test drove the car, accompanied by Shoemaker and Flanagan. Upon returning *1338 to the sales lot, Young began negotiating with Flanagan regarding price. The negotiation process was lengthy; in fact, Young said that she "got up to leave twice" during the process, but that Flanagan "came back with a better price each time."
Eventually, Young agreed to purchase the demonstrator at the price of $9,745.90, after a trade-in allowance and the addition of taxes, but subject to Serra Volkswagen's repairing "some scratches" on a rear fender of the car. Young said Flanagan assured her that the repairs would be done at no additional charge.[1] The "Retail Buyer's Order" included the following provision at the top of the form:
Also contained in the agreement was the following provision, which was printed in red:
In her deposition, Young stated that she read the agreement and "understood what [she] was signing."
During February 1988, Young noticed that the paint on the left side of the car had begun to flake away. This caused her, she said, to believe that the "automobile was not new" and that it "had been previously wrecked" and "repainted on the left side." Young claims not only that the paint was flaking off the left side of the car, but also that the "left door did not fit properly."
On July 14, 1988, Young sued Serra Volkswagen, alleging fraud, deceit, malicious misrepresentation, wantonness, and breach of warranty, and seeking compensatory damages of $3,000 and punitive damages of $2,000,000.[2] After taking Young's deposition, Serra Volkswagen moved for a summary judgment, asserting that no genuine issue of material fact existed; that Young was unable to provide substantial evidence that Serra Volkswagen misrepresented any material fact to Young or to prove her reliance on any such misrepresentation; and that Young had failed to provide substantial evidence to support her wantonness claim.
On July 11, 1990, the trial court entered a summary judgment in favor of Serra Volkswagen, based on the authority of Planchard v. Dobbs Mobile Bay, Inc., 529 So. 2d 942 (Ala.1988). Young 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, 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 *1339 view all of the evidence offered by the moving party, Serra Volkswagen, in support of its motion in the light most favorable to the nonmovant, Young. Hanners, supra, and Bass, supra. With this standard in mind, we now address the merits of Young's contentions.
Young first contends that the trial court erred in granting Serra Volkswagen's motion for summary judgment because, she says, she provided sufficient evidence to rebut Serra Volkswagen's prima facie showing. We disagree. The essential elements of a fraud claim were recently set forth by this Court in Ramsey Health Care, Inc. v. Follmer, 560 So. 2d 746, 749 (Ala.1990):
See Ala.Code 1975, § 6-5-101.[3] See, also, Harris v. M & S Toyota, Inc., 575 So. 2d 74 (Ala.1991).
Young argues that Flanagan's statement that the demonstrator "was as good as a new car," coupled with the assurance that the car was still under the "new car warranty," led her to believe that the demonstrator she had purchased was a new car. This, Young contends, constituted a misrepresentation of a material fact because, she claims, not only was the car a used car but also it had previously been "wrecked."
The car Young purchased was a demonstrator, not a new car. That fact is evident from Young's own deposition, as well as the "Retail Buyer's Order" that Young said she had read, understood, and signed. Young's understanding of the documents she signed is corroborated by her deposition testimony, in which she stated 1) that she had had several years of college education and several years' experience with contract negotiations through her past employment, and 2) more importantly, that she was familiar with the process of purchasing an automobile because she had purchased "four or five" automobiles in years past. It was undisputed that, at the time of the sale, the car was presented to Young as a "demonstrator" and that it had an odometer reading of 6,187 miles; that the price of the car was reduced because of its mileage and its use as a demonstrator; and that because the mileage on the car was low it qualified for a "new car warranty." In light of these facts, we do not view Flanagan's alleged statement that the demonstrator "was as good as a new car" as being a misrepresentation of a material fact. Under the circumstances, we view Flanagan's statement as nothing more than mere "puffery." Lucky Mfg. Co. v. Activation, Inc., 406 So. 2d 900 (Ala.1981). Also, given Young's knowledge, understanding, and ability to negotiate, it is difficult to conceive that she was justified in relying on Flanagan's statement to the point that she could think she was purchasing a new car. See Hickox v. Stover, 551 So. 2d 259 (Ala.1989).
Moreover, the record reveals an obvious failure of proof by Young; she provided no evidence that the car she purchased from Serra Volkswagen had, in fact, been damaged as a result of its being "wrecked." She produced no expert testimony by way of affidavit or deposition and gave no indication of proof in her pleadings that the car had been wrecked, damaged, and repaired. Her allegation that the car was damaged as a result of its having been wrecked is just that, an allegation, and that allegation is not supported by the record.
Additionally, Young has failed to provide support for her wantonness claim. Even if the car had been wrecked or damaged, Young failed to produce any evidence that Serra Volkswagen had knowledge that the car had been wrecked or damaged. Neither the trial court nor this Court can speculate regarding Young's allegations. "Fraud is never presumed, and a person *1340 who asserts fraud has the burden of proof." Wilson v. Southern Medical Ass'n, 547 So. 2d 510, 514 (Ala.1989); Johnson v. Keener, 370 So. 2d 265 (Ala.1979). Young's burden was to present substantial evidence in order to defeat the defendant's prima facie showing in support of its motion for summary judgment against her fraud claim. Mere conclusory allegations or speculation that a fact exists will not defeat a properly supported motion for summary judgment. Riggs v. Bell, 564 So. 2d 882 (Ala.1990). "Bare argument or conjecture will not satisfy [Young's] burden to offer facts to defeat the motion." Id. at 885.
Therefore, based on the record before us, we conclude that Serra Volkswagen made the required prima facie showing to support its summary judgment motion and that Young failed to rebut it with substantial evidence supporting her claims of fraud, deceit, malicious misrepresentation, and wantonness.
We have also reviewed the disclaimer contained in the "Retail Buyer's Order" and conclude that the alleged damage Young complains of was the kind referred to in the disclaimer. Serra Volkswagen concedes that it repaired and repainted the left side of the car at a cost to it of $170. The absence of some showing of damage other than that referred to in the disclaimer precludes any recovery based on a claim of fraud, misrepresentation, or suppression of material facts. Planchard v. Dobbs Mobile Bay, Inc., supra; Couch v. Woody Anderson Ford, Inc., 558 So. 2d 888 (Ala. 1989).
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] The record shows that the service department of Serra Volkswagen repaired and repainted several dents and scratches on the left side of the vehicle. The cost of these repairs amounted to $170, which was charged to the sales department.
[2] On appeal, Young does not argue her breach of warranty claim; thus, that issue is waived. Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987).
[3] 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. | May 3, 1991 |
2de0939e-ba42-436d-91a0-406122892a79 | Pearson v. Delchamps, Inc. | 578 So. 2d 1086 | 1900610 | Alabama | Alabama Supreme Court | 578 So. 2d 1086 (1991)
Bruce C. PEARSON
v.
DELCHAMPS, INC., et al.
1900610.
Supreme Court of Alabama.
May 3, 1991.
*1087 Bruce C. Pearson, pro se.
Forrest C. Wilson III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.
STEAGALL, Justice.
Bruce C. Pearson sued Delchamps, Inc.; Allen Sullivan, manager of Delchamps's Chickasaw store; and Michael Catrett, assistant manager of Delchamps's Chickasaw store, alleging that the defendants had maliciously prosecuted him for theft in the third degree, criminal mischief in the third degree, and disorderly conduct. The trial court entered a summary judgment for the defendants and denied Pearson's subsequent motion to alter, amend, or vacate the summary judgment. Pearson appeals.
In January 1989, Pearson entered the Delchamps grocery store in Chickasaw. Pearson stated in his answers to defendants' interrogatories that as he was shopping he noticed that he was being followed by the store manager. Pearson stated that he and the manager exchanged hostile words over the reason he was being followed and that he thereupon returned the items he had selected for purchase to the shelves and turned to leave the store. Pearson stated that he was then confronted by the store's assistant manager, who accused him of stealing two cartons of cigarettes; Pearson denied taking any cigarettes. Pearson further stated that he was then confronted by a police officer and that he opened the front of his jacket to show that he had no cigarettes. Pearson stated that the police officer then asked him to go to the rear of the store to clear the matter up; when Pearson refused to cooperate with the officer, the officer informed Pearson that he was under arrest upon "a verbal complaint by Delchamps management." Pearson stated that he then turned to leave the store and that a physical altercation ensued. Pearson further stated that after he was restrained, the store manager went to the cigarette section of the store and returned with two cartons of cigarettes, which Pearson had allegedly stolen, and that thereafter he was taken to the rear of the store and searched.
Catrett signed warrants against Pearson for theft in the third degree, criminal mischief in the third degree, and disorderly conduct. Pearson was charged with those offenses, as well as with resisting arrest. He pleaded guilty to the charge of resisting arrest, was found guilty of criminal mischief and disorderly conduct, and was found not guilty of theft in the third degree.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for summary judgment. In order to enter a summary judgment, the *1088 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. Howell v. Cook, 576 So. 2d 227 (Ala.1991). Once the moving party has made a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present "substantial evidence" in support of his position. Cobb v. Southeast Toyota Distributors, Inc., 569 So. 2d 395 (Ala. 1990).[1]
In order to succeed in a malicious prosecution case, the plaintiff must prove each of the following elements: 1) that the defendant instituted a judicial proceeding against the plaintiff; 2) that the proceeding was instituted without probable cause; 3) that it was instituted with malice; 4) that that proceeding terminated in the plaintiff's favor; and 5) that the plaintiff incurred damages as a result of the proceeding. Hornbuckle v. Berry, 575 So. 2d 1103 (Ala.1991).
Pearson argues on appeal that the defendants lacked probable cause to prosecute him. Clearly, the proceedings on the criminal mischief and disorderly conduct charges were not terminated in Pearson's favor; therefore, Pearson cannot succeed in a malicious prosecution case on those charges. We therefore confine our discussion to the issue of whether the defendants had probable cause to institute the proceedings against Pearson for theft in the third degree.
Probable cause exists when the facts before the prosecutor would lead a man of ordinary caution and prudence to believe or to entertain an honest or strong suspicion that the person arrested is guilty. Ezell v. Southland Corp., 541 So. 2d 490 (Ala.1989).
In support of their motion for summary judgment, the defendants submitted the affidavit of a Delchamps employee, Randy Woodall. That affidavit reads:
Reviewing the evidence in a light most favorable to Pearson, we conclude that Pearson has failed to present substantial evidence to rebut the defendants' prima facie showing that there is no genuine issue of material fact. Pearson's general denial of taking the cigarettes is insufficient to create an issue of fact for a jury and thereby to withstand the motion for summary judgment. See Ezell v. Southland Corp., supra.
*1089 The judgment of the trial court is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] The present case was not pending on June 11, 1987; accordingly the "substantial evidence rule" applies to the ruling on the motion for summary judgment. See Ala.Code 1975, § 12-21-12. | May 3, 1991 |
6b1c859a-7c0b-46a8-978e-09f1e57bf184 | Ex Parte Fortner | 582 So. 2d 587 | 1900362 | Alabama | Alabama Supreme Court | 582 So. 2d 587 (1991)
Ex parte Charles Quinnon FORTNER.
(Re Charles Quinnon Fortner v. State).
1900362.
Supreme Court of Alabama.
May 17, 1991.
*588 Frank Brunner, Cullman, for appellant.
Don Siegelman, Atty. Gen., for appellee.
Prior report: Ala.Cr.App., 582 So. 2d 581.
ADAMS, 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 ALMON, STEAGALL and INGRAM, JJ., concur. | May 17, 1991 |
2fee4975-a872-4565-aaaa-9e64eefc97cd | McClain v. Birmingham Coca-Cola Bottling | 578 So. 2d 1299 | 1900405 | Alabama | Alabama Supreme Court | 578 So. 2d 1299 (1991)
David McCLAIN, Jr.
v.
BIRMINGHAM COCA-COLA BOTTLING COMPANY.
1900405.
Supreme Court of Alabama.
April 26, 1991.
Robin L. Burrell and Houston L. Brown, Birmingham, for appellant.
Hobart A. McWhorter, Jr. and Robert K. Spotswood of Bradley, Arant, Rose & White, Birmingham, for appellee.
George C. Longshore, John L. Quinn and Robert M. Weaver of Longshore, Nakamura & Quinn, Birmingham, for amici curiae *1300 Alabama Employment Lawyers Ass'n and Alabama AFL-CIO.
David J. Middlebrooks and R. David Proctor of Sirote & Permutt, Birmingham, for amici curiae Birmingham Area Chamber of Commerce and Business Council of Alabama.
INGRAM, Justice.
The plaintiff, David McClain, Jr., appeals from a summary judgment entered in favor of Birmingham Coca-Cola Bottling Company ("Coca-Cola") on his claim of alleged wrongful termination of employment.
The facts are briefly stated as follows: In April 1985, McClain, an at-will employee of Coca-Cola, was injured on the job. He timely filed a claim for, and received, worker's compensation benefits for his injuries. In August 1987, he was terminated. In September 1987, McClain sued Coca-Cola, claiming that his termination of employment had been in retaliation for his filing a claim for worker's compensation benefits.
McClain contends that his termination falls within the statutory exception to the doctrine of employ ment-at-will. More precisely, McClain contends that his termination violated the nonretaliation provisions of the Alabama worker's compensation statute, Ala.Code 1975, § 25-5-11.1. The pertinent part of that section provides:
Conversely, Coca-Cola argues that there is no genuine issue of fact relating to the circumstances surrounding McClain's termination and that, as a matter of law, § 25-5-11.1 has no applicability to the facts presented here because McClain had not filed an "action" seeking worker's compensation benefits on or before the date of his termination.
In order to accurately assess the merits of the arguments presented, it is necessary to briefly review the statutory and decisional law relating to the employee-at-will doctrine. That doctrine, first adopted in this state 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. Bender Ship Repair, Inc., v. Stevens, 379 So. 2d 594 (Ala.1980).
Through the years, this Court has on many occasions declined to modify the employee-at-will doctrine. See, e.g., Kitsos v. Mobile Gas Service Corp., 431 So. 2d 1150 (Ala.1983); Meredith v. C.E. Walther, Inc., 422 So. 2d 761 (Ala.1982); Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977). In one particular case, Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala. 1984), this Court refused to create an exception to the doctrine that would have provided employees a cause of action against employers who had terminated them because they had filed a claim for worker's compensation benefits. This Court pointed out, however, that the legislature was fully capable of creating exceptions to the employee-at-will doctrine if it so desired. (See, e.g., Ala.Code 1975, § 12-16-8.1, by which the legislature created an exception to the doctrine in direct response to our refusal to do so in Bender Ship Repair, supra.)
In an attempt to rectify a perceived harsh result in Meeks, the legislature modified the employee-at-will doctrine by prohibiting employers from terminating employees solely because they had "instituted or maintained any action against the employer to recover worker's compensation benefits." See § 25-5-11.1.
The pivotal question is whether the legislature's choice of the word "action" in § 25-5-11.1 was intended to restrict the cause of action to cases where the employee is terminated in retaliation for his decision to file a lawsuit, as opposed to merely filing a claim, to recover worker's compensation benefits.
At this point, it must be emphasized that because § 25-5-11.1 was remedial legislation, it must be liberally construed to effect its purposes. Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala. *1301 1988). However, although the statute should be liberally construed, it should not be given a construction that extends it beyond its legitimate scope. City of Jasper v. Sherer, 273 Ala. 356, 141 So. 2d 202 (1962). Where, as here, this Court is called upon to construe a statute, we must ascertain and effectuate the intent of the legislature as expressed in the statute; that intent may be gleaned from the language used, the reason and necessity for the act, and the goal sought to be accomplished. Ex parte Holladay, 466 So. 2d 956 (Ala. 1985). A literal interpretation of a statute will not be blindly adopted when it would defeat the purpose of the statute, if any other reasonable construction can be given to the language in dispute. Burton Manufacturing Co. v. State, 469 So. 2d 620 (Ala. Civ.App.1985).
As noted above, Coca-Cola contends that the legislature's choice of the word "action" necessarily precludes McClain from pursuing a cause of action under § 25-5-11.1 because he was terminated before he filed an "action" seeking to recover worker's compensation benefits. In support of its argument, Coca-Cola places great emphasis on the fact that, throughout the worker's compensation chapter, the word "action" is used discriminately to describe a judicial proceeding. Coca-Cola argues that if the legislature had intended to provide a cause of action to any employee who was terminated in retaliation for filing a "claim" seeking worker's compensation benefits, as opposed to filing a lawsuit for that purpose, it could have easily done so. In short, Coca-Cola argues that to reach beyond the literal language of § 25-5-11.1 would broaden its scope beyond that contemplated by the legislature and would be repugnant to the principles of statutory construction. We disagree.
Section 25-5-11.1 was clearly designed to prohibit employers from terminating employees in retaliation for their decision to file a claim for worker's compensation benefits. In order for the beneficent goals of the worker's compensation chapter to be realized, the employee must be able to exercise his right to be compensated for work-related injuries in an unfettered fashion without being subject to reprisal. The fear of being terminated would have a chilling effect on the employee's exercise of a statutory right. Viewed pragmatically, a literal interpretation of § 25-5-11.1 would not only encourage some employers to terminate injured employees who file claims for worker's compensation benefits, but it would also effectively discourage employees from ever filing a claim in the first place. Such an interpretation would be unreasonable because it would obviously circumvent the purpose behind § 25-5-11.1 and ultimately deprive it of any meaningful effect.
Although there are no Alabama cases directly on point, there are at least two cases, Carraway v. Franklin Ferguson Manufacturing Co., 507 So. 2d 925 (Ala. 1987), and Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala.1988), which, by implication, support our decision in favor of McClain. Admittedly, the main issue presented in Carraway, whether the failure of § 25-5-11.1 to provide for damages precludes a recovery under the statute, and the main issues presented in Twilley, the intent of the legislature in using the words "termination" and "solely" in § 25-5-11.1, are not dispositive of the issue presented here.[1] However, in both cases, the plaintiffs were allowed to proceed under § 25-5-11.1, notwithstanding the fact that they were terminated before they had filed an "action" to recover worker's compensation benefits. Hence, we find the *1302 Carraway and Twilley decisions to be persuasive in this case.
Therefore, the summary judgment in favor of Coca-Cola is due to be, and it is hereby, reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Additionally, the Twilley court adopted the following standard on the allocation of burdens of proof under § 25-5-11.1:
"We hold that an employee may establish a prima facie case of retaliatory discharge by proving that he was `terminated' because he sought to recover worker's compensation benefits, which would be an impermissible reason. The burden would then shift to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the plaintiff must prove that the reason was not true but a pretext for an otherwise impermissible termination."
536 So. 2d at 1369. | April 26, 1991 |
f0549416-a627-4034-b781-30a11d7544f7 | Georgia Cas. and Sur. Co. v. White | 582 So. 2d 487 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 487 (1991)
GEORGIA CASUALTY AND SURETY COMPANY
v.
Mary Elizabeth WHITE, as executrix of the Estate of Johnny C. White, deceased.
89-88.
Supreme Court of Alabama.
May 31, 1991.
*489 Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
Jere L. Beasley and Frank M. Wilson of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, and Boyd Whigham, Clayton, for appellee.
INGRAM, Justice.
This appeal is from a judgment based on a verdict for $2,000,000 against Georgia Casualty and Surety Company on a "bad faith" claim. The parties have been before this court three times previous to this appeal. See White v. Georgia Casualty & Surety Insurance Co., 520 So. 2d 140 (Ala. 1987); Ex parte Georgia Casualty & Surety Co., 531 So. 2d 838 (Ala.1988); and Ex parte Georgia Casualty & Surety Co., 562 So. 2d 314 (Ala.1989).
This action arose from a motor vehicle collision in which Johnny C. White and his wife, Mary Elizabeth White, were injured. On November 4, 1983, Mr. White was driving a gas delivery truck, within the scope of his employment, when his truck was hit by an automobile being driven by an uninsured driver; Mrs. White was a passenger in the truck. The record shows that the uninsured motorist was at fault and that Mr. White was not contributorily negligent.
Mr. White's employer had insurance with Georgia Casualty on 12 trucks, and the uninsured motorist coverage limit on each truck was $10,000 per person. After an investigation, Georgia Casualty determined that the settlement value of the claim was at the limit of $10,000; nevertheless, on or about June 22, 1984, according to the record, Georgia Casualty authorized its agent to settle at or below $7,500. The Whites refused the offer to settle for $7,500, but on September 12, 1984, Mr. and Mrs. White each accepted payment of $10,000.
On October 24, 1984, the Whites filed a complaint alleging multiple claims against multiple defendants. The complaint contained a claim against Georgia Casualty for the amount available to Mr. and Mrs. White under the insurance policies on the 12 trucks ($120,000 each) less the amount paid to each on September 12, 1984 ($10,000 each), for a total of $110,000 each.
The Whites filed amendments to their complaint on March 28, 1985, and on May 2, 1985, adding claims of fraudulent misrepresentation. The first amended complaint, filed on March 28, 1985, alleged that Georgia Casualty had fraudulently misrepresented that the maximum amount that could be paid to each of the Whites for uninsured motorist benefits was $10,000, the limit per person on the policy covering the truck Mr. White was driving at the time of the accident, *490 instead of $120,000, the total available per person if the policies, covering all 12 trucks in Mr. White's employer's fleet, were "stacked" (12 × $10,000). In the second amended complaint, filed on May 2, 1985, the Whites averred that agents and employees of Georgia Casualty had conspired to deny workmen's compensation coverage to Mr. White in order to defraud him of money due under the workmen's compensation policy as well as to prevent Mr. White from obtaining the benefits of stacking. Georgia Casualty filed answers denying these allegations.
On April 30, 1985, Georgia Casualty filed a motion for summary judgment as to all claims. On December 19, 1985, the trial court entered a summary judgment for Georgia Casualty, holding that the Whites were "insureds of the second class" and, therefore, were not entitled to stack the uninsured motorist coverage. The trial court further held that because the Whites had been paid $10,000 each, Georgia Casualty was not further liable. The Whites appealed that summary judgment.
On July 2, 1987, in White v. Georgia Casualty & Surety Co., 520 So. 2d 140 (Ala. 1988) (hereinafter White I), this Court held that Mr. White was an insured of the first class and, therefore, was entitled to stack the coverage on the other vehicles insured by Georgia Casualty under the fleet policy owned by Mr. White's employer. However, this Court held that Mrs. White was an insured of the second class and was not entitled to stack coverage. Her recovery was limited to the $10,000 limit of primary coverage as stated in the policy. The Whites' application for rehearing was denied on February 12, 1988, and the certificate of judgment was issued on March 1, 1988.
Mr. White died in October 1987, during the pendency of the application for rehearing in White I. On February 3, 1988, Mrs. White filed a motion to substitute herself as the personal representative of the estate of Mr. White.
The opinion in White I addressed only the "entitlement to stack" issue, leaving uncertainty as to any appellate disposition of the two fraud claims that had been alleged in the first and second amended complaints. One claim alleged a fraudulent misrepresentation of the amount recoverable under the uninsured motorist policy, i.e., a representation that Mr. White was not entitled to stack the policies. The other claim alleged fraud in conspiring to deny workmen's compensation benefits. Georgia Casualty petitioned this Court for a writ of mandamus, contending that neither of the two fraud claims survived this Court's July 1987 decision in White I. On August 26, 1988, in Ex parte Georgia Casualty & Surety Co., 531 So. 2d 838 (Ala. 1988) (White II), this Court denied the petition and ruled that the first fraud claim, alleging misrepresentations concerning entitlement to stack coverage, was not barred by the decision in White I and could be maintained. However, the Court went on to hold that the Whites' failure to argue the second fraud claim on appeal, concerning the denial of the workmen's compensation coverage, constituted a waiver and abandonment of that claim. After this Court's decision in White II, Mrs. White, as executrix of Mr. White's estate, had two claims pending before the trial court, the claim for the amount due under the stacked policies ($110,000) and the claim alleging the misrepresentation of Mr. White's entitlement to stack.
On September 28, 1988, Georgia Casualty moved for summary judgment on the remaining fraud claim alleging a misrepresentation of Mr. White's entitlement to stack the uninsured motorist policies. Two days later, on September 30, 1988, Mrs. White, as representative of Mr. White's estate, moved for summary judgment with respect to the claim for $110,000 (12 vehicles × $10,000 per vehicle, less the $10,000 previously paid to Mr. White) for uninsured motorist benefits, citing this Court's decision in White I.
On December 21, 1988, before the trial court had ruled on the motions for summary judgment, Mrs. White, as the representative of Mr. White's estate, moved to amend her complaint a third time. She made two separate bad faith claims. First, *491 she alleged that Georgia Casualty had wrongfully tried to limit its liability by giving its agent authority to settle for only $7,500, when, at that time, June 24, 1984, it had admitted that the claim had a settlement value of $10,000. Also, she alleged that Georgia Casualty, in bad faith, had refused to pay or settle the claim for the amount due ($110,000) after the decision of White I and had done so with no legitimate or arguable reason for its refusal.
On December 28, 1988, the trial court entered separate orders on the summary judgment motions, granting Mrs. White's summary judgment motion and awarding her $110,000 in damages on the uninsured motorist claim and granting Georgia Casualty's motion as to the remaining fraud claim regarding the alleged misrepresentation of Mr. White's entitlement to stack. The fraud claim relating to the conspiracy to deny workmen's compensation benefits had been dismissed earlier. No notice of appeal was filed, and the judgment for $110,000, including prejudgment interest, was paid in January 1989. Neither party sought appellate review of the summary judgments. The case then proceeded to trial on the two bad faith claims alleged in the third amendment to the complaint, the claim of a bad faith offer to settle for $7,500, and the claim of a bad faith refusal to pay $110,000 for several months after White I.
After a trial on the merits, the jury returned a general verdict for $2,000,000 in favor of the estate of Mr. White on the bad faith claims, and the trial court entered its judgment thereon. Georgia Casualty moved for a judgment notwithstanding the verdict or, alternatively, for a new trial, or for remittitur. After a hearing in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), to test Georgia Casualty's assertion of "excessiveness of the verdict," the trial court denied Georgia Casualty's postjudgment motions, and Georgia Casualty brought the instant appeal.
Georgia Casualty raises the following issues: (1) whether this cause of action for bad faith survived Mr. White's death; (2) whether there was sufficient evidence to support the jury verdict; (3) whether the trial court erred in failing to grant a mistrial after counsel for Mrs. White made reference to offers of settlement; and (4) whether the jury verdict of $2,000,000 was excessive.
Mrs. White alleged two incidents of bad faith in the third amendment to the complaint. The first was Georgia Casualty's alleged bad faith in authorizing its agent to settle for only $7,500 when it had at that time recognized the settlement value as $10,000. This claim is hereinafter referred to as the bad-faith-offer-to-settle claim. The second incident was Georgia Casualty's refusal to pay the limits of the stacked policies after this Court's decision in White I. This claim is hereinafter referred to as the bad-faith-refusal-to-pay claim. These two incidents will be discussed separately as they relate to the issue of survival.
Georgia Casualty argues that the bad faith claims are "causes of action" and, therefore, that they do not survive the death of Mr. White. This Court has established the distinction between a personal "action," which will survive the death of the claimant, and a personal "cause of action," which will not survive the death of the claimant.
McDowell v. Henderson Mining Co., 276 Ala. 202, 204, 160 So. 2d 486, 488 (1963). Unfiled tort claims of the deceased do not survive his death. See Ala.Code 1975, § 6-5-462. Because the two bad faith claims were added after Mr. White's death, we must determine whether the bad faith *492 claims were Mr. White's personal causes of action, and, if so, whether the filing of those claims relates back to earlier pleadings in order to escape the operation of the survival statute.
In the third amendment to the original complaint, Mrs. White, as representative of the estate of Mr. White, added a claim of bad faith in regard to an offer of settlement made by the agent of Georgia Casualty and authorized by Georgia Casualty. The complaint alleged that on or about June 22, 1984, Georgia Casualty had admitted in correspondence to its agent that the settlement value of the claim was $10,000, but it had authorized its agent to settle at or below $7,500. Mr. White died in October 1987. "A claim sounding in tort for which no action has been filed does not survive death in favor of the personal representative." Gillilan v. Federated Guar. Life Ins. Co., 447 So. 2d 668, 674 (Ala.1984). Because the conduct of Georgia Casualty alleged to constitute a bad faith offer to settle occurred during Mr. White's lifetime, the question becomes whether the amendment adding this claim relates back to an earlier pleading made during Mr. White's lifetime.
Georgia Casualty contends that the bad-faith-offer-to-settle claim, first alleged in the third amended complaint, is barred by the survival statute, because, it says, that claim does not relate back, under Rule 15(c), A.R.Civ.P., to the original complaint, or amendments, filed before Mr. White's death. We agree that it does not relate back.
For an amendment to relate back to the original pleading, the claim asserted in the amendment must have arisen from the same conduct, transaction, or occurrence set forth in the original pleading. A.R. Civ.P. 15(c). Therefore, our inquiry is whether the occurrence set out in the third amendment arose from the same incident set forth in the pleadings filed prior to Mr. White's death.
In the first amendment to the complaint, the Whites alleged that on or about August 29, 1984, Georgia Casualty had worked a fraud upon them by representing that the claim limit was $10,000 per person, when, the Whites alleged, Georgia Casualty believed that Mr. White was entitled to stack and, therefore, believed that the amount available to Mr. White was $120,000. The third amendment, filed by Mrs. White as representative of Mr. White's estate, alleged that on or about June 22, 1984, Georgia Casualty, in bad faith, had offered to settle the claim for $7,500 when it believed the maximum amount due under the policy was $10,000. These two incidents are distinct in time. The Whites alleged that one incident, the alleged bad faith offer to settle, occurred on or about June 22, 1984, the date Mrs. White alleges Georgia Casualty authorized its agent to settle for $7,500 when it had admitted the claim was valued at $10,000, the maximum amount Georgia Casualty believed was available under the policy. The Whites alleged that the other incident, the alleged fraud relating to the representation that Mr. White was not entitled to stack, occurred on August 29, 1984, the date the Whites executed releases and accepted payment from Georgia Casualty for $10,000 each. Both incidents are alleged to have occurred before the decision of this Court in White I and before Mr. White's death.
Also, the two incidents are distinct in the conduct alleged to be wrongful. The first amendment, filed before Mr. White's death, alleged that Georgia Casualty had fraudulently misrepresented the maximum amount Mr. White could recover as $10,000, the limit of the policy without stacking. The third amendment, filed after Mr. White's death, alleged that Georgia Casualty had authorized its agent to settle for $7,500, even though it had admitted that the value of the claim was $10,000, the limit of the policy.
"An amendment dealing with conduct arising from a separate transaction or occurrence will not relate back." 1 C. Lyons, Alabama Rules of Civil Procedure Annotated 256 (2d ed. 1986) (citing Roney v. Ray, 436 So. 2d 875 (Ala.1983)). Therefore, the third amendment, regarding the bad *493 faith offer to settle for $7,500, filed after Mr. White's death, does not relate back under Rule 15(c) because the fraud claim alleged in the first amendment, filed before Mr. White's death, and the bad-faith-offer-to-settle claim, filed after his death, are two distinct transactions, in time as well as in regard to the conduct alleged to be wrongful.
Because the claim regarding the alleged bad faith offer to settle does not relate back to the original pleading or to the amendments filed before Mr. White's death, this action does not survive his death, under § 6-5-462, Ala.Code 1975.
The other bad faith claim against Georgia Casualty was based on its alleged bad faith refusal to pay the total amount allowed by stacking after this Court's decision in White I. Georgia Casualty contends that this claim is also barred by Mr. White's death prior to the filing of the amendment raising this claim. However, because the conduct of Georgia Casualty alleged to give rise to the estate's claim of bad faith refusal to pay occurred after Mr. White's death, we conclude that the death of Mr. White does not affect whether the claim was properly brought by his estate, the entity Georgia Casualty was required to pay.
Before his death, Mr. White filed this action to recover money due from Georgia Casualty under the uninsured motorist coverage of the policy that insured his employer's trucks. The issues regarding the worth of his claim, such as the extent of his injuries and the fault of the uninsured motorist, had been established before this Court addressed the stacking issue in White I. The only determination left before Georgia Casualty was required to pay was whether Mr. White could stack; that issue was resolved in favor of Mr. White in White I. Before the judgment of this Court was certified, Mr. White died. At his death, the extent or worth of his claim was known to Georgia Casualty, and when this Court handed down its decision in White I, the amount Georgia Casualty was required to pay ($110,000) was established. When Mr. White died, his estate was the party entitled to be paid.
Assuming, without deciding, that after this Court's decision in White I and the death of Mr. White, Georgia Casualty had no reason to withhold payment, the claim for bad faith refusal to pay lies with Mr. White's estate, the party that Georgia Casualty was required to pay. After a loss is fixed, a policy of insurance becomes a contract for the payment. See Milwaukee Mechanics Ins. Co. v. Maples, 37 Ala.App. 74, 66 So. 2d 159, cert. denied, 259 Ala. 189, 66 So. 2d 173 (1953); United Security Life Ins. Co. v. Dupree, 41 Ala.App. 601, 146 So. 2d 91 (1962). A proper party to be paid the proceeds from the contract when the insured has died and the policy of insurance has matured into a contract for payment is his estate. Therefore, an estate can maintain an action for bad faith refusal to pay a claim based upon a contract of insurance, to which the decedent was a party, when the bad faith occurs after the decedent's death in regard to the payment of a claim of the decedent that had matured into a contract to pay.
Mr. White's loss was fixed before his death in October 1987, and this Court's decision in White I on July 2, 1987 (rehearing denied February 12, 1988), held that Mr. White was entitled to stack the policies. Therefore, the amount Georgia Casualty was required to pay was established at the limit of the stacked policies ($120,000) less the amount previously paid ($10,000) or $110,000. The alleged bad faith refusal to pay the $110,000 after this Court's decision in White I gave rise to a claim by his estate for bad faith refusal to pay.
At the time White I was decided by this Court, two claims were pending: the claim for $110,000 uninsured motorist benefits, of which White I had just made a determination, and a fraud claim regarding the misrepresentation of Mr. White's entitlement to stack. Insisting that it was not bad faith to refuse payment of the stacked uninsured motorist benefits while the fraud action was still pending, Georgia Casualty argued:
Georgia Casualty further argued that it, like any "prudent litigant," wished to compromise both the contract and the tort theories. Cliff Shepherd, Georgia Casualty's claims supervisor, testified that the essential reason Georgia Casualty did not pay the $110,000 stacked uninsured motorist benefits after the rendition of White I was Georgia Casualty's customary practice of concluding all claims together.
Since recognizing the tort of bad faith in Alabama, this Court has held that mere negligence or mistake is not sufficient to support a claim of bad faith; there must be a refusal to pay, coupled with a conscious intent to injure. See King v. National Foundation Life Ins. Co., 541 So. 2d 502 (Ala.1989); Pierce v. Combined Ins. Co. of America, 531 So. 2d 654 (Ala. 1988); Coleman v. Gulf Life Ins. Co., 514 So. 2d 944 (Ala.1987); Blue Cross & Blue Shield of Alabama v. Granger, 461 So. 2d 1320 (Ala.1984); Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916 (Ala.1981).
We hold that the circumstances under which Georgia Casualty refused to pay the stacked uninsured motorist benefits, i.e., liability had been established and the amount had been established, do not, as a matter of law, constitute mere negligence or mistake. On March 1, 1988 (the date of the certificate of judgment in White I), Georgia Casualty's legal liability for "stacked" uninsured motorist benefits was established. Prior to the decision in White I, the record indicates, Georgia Casualty had knowledge that Mr. White was without fault for the accident and had been found to be totally disabled as a result of the accident.
Under the totality of these circumstances, the determination of whether Georgia Casualty's 10½-month delay in paying or offering to pay the full uninsured motorist benefits was for its own convenience, without a debatable reason or legal basis, presents mixed issues of law and fact. As a matter of law, once the stacking issue had been adjudicated, Georgia Casualty was stripped of any debatable reason for nonpayment. Yet, it further withheld payment and used this tactic to seek dismissal of the pending fraud claim. The ultimate issues of whether Georgia Casualty's payment was delayed with the intent to injure or whether, under these circumstances, the delay was reasonable, are issues of fact for the jury.
This action is peculiar in its procedural history, in that Mr. White died during the pendency of the appeal of White I and the alleged bad faith of Georgia Casualty occurred after his death. We do not hold that an action for bad faith refusal to pay can be maintained by an estate when the actions of the insurance company giving rise to the claim of bad faith refusal to pay occurred during the life of the insured. However, in this case, where the extent of liability and the extent of injury had been determined before the death of the insured, so as to convert the contract for insurance into a contract for payment, and facts sufficient to state a cause of action for bad faith refusal to pay have been alleged, we hold that the estate, the party entitled to be paid, can maintain an action for bad faith refusal to pay.
Georgia Casualty next argues that its motion for mistrial should have been granted after counsel for the Whites referred, in the presence of the jury, to settlement negotiations regarding the bad faith claims. Generally, statements regarding settlement negotiations are considered to be highly prejudicial and are typically sufficient grounds for a mistrial. See Globe & Rutgers Fire Ins. Co. v. Pappas, 219 Ala. 332, 122 So. 346 (1929); Hester v. Ford, 221 Ala. 592, 130 So. 203 (1930).
However, this Court has held:
Kilcrease v. Harris, 288 Ala. 245, 249, 259 So. 2d 797, 799 (1972). Before the Whites' counsel referred to the settlement negotiations regarding the bad faith claims, the trial court had admitted testimony, without objection, concerning prior settlement negotiations regarding the contract claim for $110,000. In denying Georgia Casualty's motion for a mistrial, the trial court based its decision on its conclusion that the jury probably did not understand the statement objected to as being anything different from the testimony regarding the prior settlement negotiations concerning the contract claim. Further, the trial court determined that any curative statements would serve only to bring the statement to the attention of the jury. The trial judge heard the testimony before, during, and after the statement by the Whites' counsel, and then made his decision to deny Georgia Casualty's motion for a mistrial upon a consideration of the "issues, the parties, and the general atmosphere of the particular case." Id.
In considering a motion for a mistrial, the trial judge has much discretion. On review, this Court will not reverse the trial court's denial of a motion for a mistrial based on a party's improper statements "unless it affirmatively appears from the entire record that the statements involved were probably prejudicial to the [complaining party], either as to the result or the amount of damages assessed." Birmingham Electric Co. v. Perkins, 249 Ala. 426, 430, 31 So. 2d 640, 642 (1947) (emphasis added). The trial court's rationale in denying Georgia Casualty's motion is well based and, in reviewing the circumstances under which the allegedly prejudicial statement was made and the likelihood of any undue prejudice or bias resulting from it, we find no error in the trial court's denial of Georgia Casualty's motion for a mistrial.
Because of this Court's holding, supra, that the bad-faith-offer-to-settle claim was barred by the survival statute, we conclude that the issue of remittitur is moot. Section 12-22-71, Ala.Code 1975, allows this Court to grant a remittitur when "the case should be reversed because the judgment of the lower court is excessive and ... there is no other ground of reversal." (Emphasis added.) In the case of Sarber v. Hollon, 265 Ala. 323, 91 So. 2d 229 (1956), this Court held that even when a verdict is excessive, it is inappropriate to reduce the amount when the judgment is being reversed for another cause. Therefore, without regard to the merits of the excessiveness claim, we hold that remittitur is not appropriate in this case because the judgment of the trial court is reversed by this Court's decision.
In summary, we conclude that the claim of bad faith regarding Georgia Casualty's offer to settle for $7,500 at the time it considered the claim worth $10,000 did not survive Mr. White's death, and, therefore, that the trial court should not have sent this count to the jury. Because the jury returned a general verdict, we must decide whether the case is to be returned to the trial court or whether we, the reviewing court, can presume that the jury found only on the valid count.
In Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981), this Court held:
405 So. 2d at 138. In American General Life & Accident Insurance Co. v. Lyles, *496 540 So. 2d 696 (Ala.1988), we explained the holding of Aspinwall as follows:
540 So. 2d at 700. The inference is that, if the trial court is presented with the argument that the reviewing court eventually reverses on, then the presumption of Aspinwall will not apply and the case will be remanded for trial on the valid count.
We hold that this is the situation presented by the facts of this case. Specifically, Georgia Casualty filed a motion to dismiss or, in the alternative, for judgment on the pleadings; it filed a letter brief; and it presented the issue in its answer to the amendments alleging bad faith, contending that the bad faith claims did not survive Mr. White's death. After the jury returned a general verdict for $2,000,000 in favor of Mr. White's estate, Georgia Casualty again presented the issue to the trial court in its motion for JNOV or, in the alternative, motion for new trial, or, in the alternative, motion for remittitur and request for hearing.
Because the trial court was presented with the opportunity to rule squarely on the issue of whether the claims survived Mr. White's death and because the trial court failed to hold that the bad-faith-offer-to-settle claim did not survive Mr. White's death, as this Court has held, we cannot "presume" that the jury verdict is based upon the valid claim of bad faith refusal to pay. Therefore, we hold that the jury's general verdict cannot be presumed to be based on the valid count (the count alleging bad faith refusal to pay), when both counts were given to the jury after the trial judge had been informed of the infirmity of the invalid count, i.e., the bad-faith-offer-to-settle claim. Thus, we remand this case with instructions to the trial court to enter a judgment for the defendant Georgia Casualty on the bad-faith-offer-to-settle claim and to order a new trial, in accordance with this opinion, on the issue of bad faith refusal to pay.
We pretermit discussion of the sufficiency of the evidence, because of our holding regarding the survival issue. The trial court's judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
When the tort of bad faith refusal to pay an insurance claim was recognized by this Court, this Court listed the following elements of a cause of action:
National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982).
Today, the majority expands the tort of bad faith refusal to pay to include claims that are being litigated in court and misstates the law concerning the survivability of tort claims. I must respectfully dissent.
Summarized, the facts are as follows:
Johnny White and his wife were injured in an automobile accident on November 4, 1983, just a little over one year after the decision in Bowen, while he was driving a company vehicle that was covered under a fleet policy along with 11 other company vehicles. As pointed out in the majority *497 opinion, Mr. and Mrs. White each accepted, on September 12, 1984, payment of the basic $10,000 coverage, but both claimed a right to stack the fleet coverage (12 vehicles were included under the policy coverage), and on October 24, 1984, they filed their initial lawsuit against Farm Bureau Insurance Company, Georgia Casualty & Surety Company, and other fictitiously named defendants, and demanded "a trial by Struck Jury."
Five months later, on March 28, 1985, the Whites amended their complaint to claim that Georgia Casualty was guilty of bad faith in claiming that the Whites were not entitled to stack the fleet coverage on the uninsured motorist policies, but the trial court subsequently granted Georgia Casualty's motion for summary judgment on this fraud claim and on the contract claim. The effect of that judgment was to hold that the Whites were not entitled to stack the fleet coverage, the legal position advanced by Georgia Casualty on the motion for summary judgment. The summary judgment also dismissed the fraud claims. The court entered an order reading, in part, as follows:
At the time this order was entered, Georgia Casualty had a judicial determination that was consistent with the position it had taken, that neither of the Whites was entitled to stack. Clearly, there was no bad faith on Georgia Casualty's part in asking for a summary judgment on the question of the legal right of the Whites to stack the fleet coverage.
The order issued by the trial judge on December 19, 1985, dismissed not only the contract claim but also the fraud claims of the Whites. The Whites then appealed to this Court, and this Court, in White v. Georgia Casualty & Surety Co., 520 So. 2d 140 (Ala.1988) (White I) held that Mr. White could stack, but refused to permit Mrs. White to stack the coverages. As pointed out in the majority opinion in this case, "[t]he Whites' application for rehearing [in White I] was denied on February 12, 1988, and the certificate of judgment was issued on March 1, 1988." Majority Op. at 489-490. In White I, this Court did not address the fraud claims, even though those claims had been dismissed by the summary judgment order. The majority correctly admits that "White I addressed only the `entitlement to stack' issue, leaving uncertainty as to any appellate disposition of the two fraud claims that had been alleged in the first and second amended complaints." Op. at 490. Consequently, there was "uncertainty" as to just which claims had been decided by White I, and which claims were still pending after remand. It is clear that when the certificate of judgment was issued by this Court, the case was remanded not rendered; therefore, this Court did not order the policy limits to be paid.
Even though Georgia Casualty lost its case on appeal insofar as Mr. White was concerned, it was not bad faith for Georgia Casualty to present its position on appeal.
It is undisputed now that when this Court reversed and remanded Mr. White's case, Mrs. White's claim on the contract *498 and her fraud claims were not pending, because the summary judgment as to her claims was affirmed by White I. What was pending insofar as Mr. White was concerned? The summary judgment against him had been reversed and the cause remanded; therefore, his contract claim to recover the stacked policy limits ($110,000) was definitely pending, and it was later judicially determined that one of his fraud claims was still pending.
It is uncontroverted that when Mr. White's contract claim was remanded, Georgia Casualty had previously filed an answer to the initial complaint in which it denied the allegations of Mr. White's complaint on the contract claim; therefore, Georgia Casualty, at that point, had a legal right to insist that Mr. White prove that his injuries and damages were caused by an uninsured motorist, and the record is clear that the amount of damages attributable to the accident was in dispute. The majority's finding to the contrary is not supported by the record. Also, as the majority admits, there was "uncertainty" concerning the disposition of the fraud claims, and this "uncertainty" was exacerbated by the fact that Mr. White had died while the matter was on appeal in this Court.
Furthermore, Mrs. White, in her representative capacity, made several discovery requests, "in an apparent attempt to uncover information relating to their fraud claims,"[1] but insofar as I can tell, Mrs. White did not take any action to have the trial court enter a judgment on the contract claim that was then pending. Georgia Casualty objected to the discovery request by Mrs. White, on the ground that fraud was no longer an issue in the case. The trial court denied Georgia Casualty's request for a protective order, and Georgia Casualty petitioned this Court for a writ of mandamus. See Ex parte Georgia Cas. & Sur. Co., 531 So. 2d 838 (Ala.1988). In that case, this Court said, regarding the "first fraud claim" (that Georgia Casualty had misrepresented to the Whites that stacking was not allowed under the terms of the policy):
531 So. 2d at 841.
A close reading of White II, however, shows that its basic holding is that this Court was not convinced that the trial judge had abused his discretion in refusing to limit discovery on the fraud claim. Clearly, White II was not a mandate that Georgia Casualty pay the pending contract claim, only a holding that discovery could proceed. In fact, it appears to me that the strategy of the plaintiff when the mandate of this Court was issued in March 1988, was to try both the contract and the fraud claims before a jury, because the record shows that the plaintiff was making trial preparations and was not seeking immediate payment of the $110,000. Insofar as I can tell, the plaintiff and defendant were engaging in activities not inconsistent with trial preparations in any case that is pending in court. For example, there is evidence in the record of negotiations between the parties, encouraged by the trial court, to try to settle the case, including both the fraud claim and the contract claim in White I, and there is evidence that Georgia Casualty made several offers to the plaintiff in an attempt to settle the case, but that these offers were not accepted. In fact, the evidence is that plaintiff did not even respond to them, negatively or otherwise. As the majority states, it was not until this Court decided White II that "Mrs. White, as representative of Mr. White's estate, moved for summary judgment with respect to the claim for $110,000 (12 vehicles × $10,000 per vehicle, less the $10,000 previously paid to Mr. White) for uninsured motorist benefits" and took official action to get a summary judgment entered on the contract claim. Maj.Op. at 490. This motion for summary judgment was filed on September *499 30, 1988, six months after this Court's mandate in White I, and was the only official action by the plaintiffs to recover on the contract claim. For this Court to hold that, based on these facts, there was no debatable issue on the extent of the plaintiffs' damages is most regrettable.[2]
Georgia Casualty had contemporaneously filed a motion for summary judgment on the fraud claim that was still pending in which the plaintiffs claimed that Georgia Casualty had acted in bad faith by offering only $7,500 in June 1984 to settle the original uninsured motorist claim. On December 8, 1988, while these cross-motions for summary judgment were under submission, Mrs. White, in her representative capacity, sought to amend her complaint to add a claim of bad faith, in which she averred that Georgia Casualty had continued to refuse to pay the uninsured motorist claim after this Court's decision in White I, the very issue that was under submission on her summary judgment motion that the court had not yet decided. On December 28, 1988, the trial court entered separate orders on the summary judgment motions of the parties, entering a summary judgment for the plaintiff on her contract claim and a summary judgment for Georgia Casualty on the fraud claim that was pending. The Court, however, did what I consider to be legally impermissible; it also permitted the amendment that plaintiff filed during the time the summary judgment motion was under submission.
When the trial court, on December 28, 1988, entered a summary judgment for the plaintiff on her contract claim, that was the first time the plaintiff had a court order that entitled her to the $110,000 on her contract claim initially filed by her husband.[3] The majority states that Georgia Casualty can be penalized with a $2,000,000 judgment because it did not immediately pay the $110,000 after this Court issued its mandate in White I. The Court unfortunately ignores the fact that a contract action was pending, in which plaintiff had demanded a trial by jury. If the plaintiff was entitled to a summary judgment on the contract claim when White I was decided, why did she wait six months before filing her contract claim or any evidence supporting that claim? The better question is: If there was no debatable question about liability and the extent of Mr. White's damages in October 1984, when the suit was filed, why did Mr. White not ask for a partial summary judgment at that time, so that the stacking issue would have been the only controverted issue in the lawsuit?
This Court, unfortunately, does not place any burden on the plaintiff to prove the claim she filed but shifts the burden to the defendant and essentially holds that an insurer can be guilty of a bad faith failure to pay a claim even though the alleged acts of bad faith occurred while the whole matter of entitlement was in litigation, either in the trial court or in this Court, because it is undisputed that the majority opinion is premised upon the fact that Georgia Casualty did not pay to its insured the $110,000 of "stacked" coverage as soon as the certificate of judgment was entered by this Court in White I. The majority states in its opinion:
Op. at 490.
The majority's conclusion that Georgia Casualty should have paid its policy limits as soon as this Court issued its opinion in White I, when the plaintiff's entitlement to the full policy limits was not legally determined until the trial court granted the plaintiff's motion for summary judgment, is very disturbing. First, it is disturbing in that it misconstrues the holding of White I. The only issue decided in White I was the right of the insured to "stack" coverages, not the extent of the insured's damages.
That issue was not finally resolved against Georgia Casualty until Georgia Casualty failed to appeal from the summary judgment entered some nine months after the certificate of judgment was issued in White I, and while plaintiff's contract claim, on which she had demanded a jury trial, was still pending, along with other claims. Second, the decision is disturbing in that it permits a party who has been substituted in a representative capacity to file an amendment alleging a tort claim and to have it relate back, when the only claim to which it could relate is a tort claim that was filed by the deceased, a claim that was dismissed.
The majority states the following:
Op. at 490.
That holding is erroneous for at least the following reasons: (1) the record shows, without question, that there had not been a legal determination of Georgia Casualty's obligation to pay the $110,000 until the trial court entered its order in December 1988, based on a motion for summary judgment on the contract claim, filed by the plaintiff, in her representative capacity; and (2) the bad faith claim upon which the judgment was entered did not survive.
*501 Admittedly, the question of Mr. White's right to stack coverages had been determined when this Court issued its certificate of judgment in White I, but the majority's conclusion that "[t]he issues regarding the worth of [Mr. White's] claim, such as the extent of his injuries and the fault of the uninsured motorist, had been established before this Court addressed the stacking issue in White I," Op. at 490, is inaccurate. If that statement is true, the plaintiff should have asked this Court to render a judgment in White I and order the payment of the policy limits. On the other hand, if the plaintiff could prove entitlement to the full amount of the coverage, the plaintiff should have filed a motion for summary judgment on the contract claim as soon as proof could be made to show that no material issue of fact remained in the case. Georgia Casualty should not be penalized for the plaintiff's lack of diligence. I believe that the Court establishes a dangerous precedent in saying that the insurer should have paid a claim that was pending in court, even though the plaintiff had taken no official action to have it paid.
Our opinions in Quick v. State Farm Mut. Auto. Ins. Co., 429 So. 2d 1033 (Ala. 1983), Bowers v. State Farm Mut. Auto. Ins. Co., 460 So. 2d 1288 (Ala.1984), and Aetna Cas. & Sur. Co. v. Beggs, 525 So. 2d 1350 (Ala.1988), are direct authority for holding that "there can be no breach of an uninsured motorist contract, and therefore no bad faith, until the insured proves that he is legally entitled to recover [damages from an uninsured or underinsured motorist]." Quick, 429 So. 2d at 1035.
The majority also concludes, even though the trial court correctly dismissed the fraud claim that had been filed against Georgia Casualty, that "in this case, where the extent of liability and the extent of injury had been determined before the death of the insured, [that is sufficient] to convert the contract for insurance into a contract for payment, and facts sufficient to state a cause of action for bad faith refusal to pay have been alleged," and "that the estate, the party entitled to be paid, can maintain an action for bad faith refusal to pay." Op. at 491. That is new law that I believe runs afoul of the principles of law set forth in McDowell v. Henderson Mining Co., 276 Ala. 202, 160 So. 2d 486 (1963).
Assuming that the personal representative of an estate can maintain an action for bad faith failure to pay an insurance claim, as the majority holds,[4] I fail to see how the amendment to the complaint in this case constituted a suit by the estate. It appears to me that the amendment was filed by the personal representative on behalf of Mr. White and that it alleged wrongful conduct on behalf of Georgia Casualty after his death.
This Court's decision allowing the amendment establishes a dangerous precedent relating to the survivability of tort claims, and permits a personal representative to stand in the shoes of a tort plaintiff who has died, and state a claim for wrongful conduct allegedly committed against the tort plaintiff after his death. As I construe Rule 15(c), A.R.Civ.P., an amendment relates back only when the claim asserted (here, failure to pay the $110,000 after this Court decided White I) arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading (misrepresenting that the coverages could not be stacked).
Even if the personal representative had a cause of action against Georgia Casualty for refusal to pay, it would appear to me that it would have to be filed as a separate action, not as an amendment to a pending action. Otherwise, the law relating to survivability of tort claims and the procedural rules relating to pleadings and parties would be confused.
In any event, I do not believe that Georgia Casualty's failure to pay the contract claim that was pending in court awaiting trial by jury was conduct, even if wrongful, *502 that would relate back to alleged bad faith conduct occurring before Mr. White died, and as stated above, until the trial court granted the motion for summary judgment on the contract claim, Georgia Casualty was not under a legal obligation to pay.
From the beginning, I have been concerned that the tort of bad faith refusal to pay may not have been the best alternative for this Court to adopt. Nevertheless, the tort of bad faith has been established, and it is now the law of this state, but the opinion issued today expands the tort to include conduct that I believe was not envisioned when the tort was created. I also believe that the opinion establishes some procedural law relating to the survivability of tort claims that is a departure from current law. Those are the reasons for my dissent.
Even though I dissent on the law, I would agree to permit this plaintiff a reasonable attorney fee for the time and effort required to establish entitlement to the amount finally awarded on the contract claim. See my special concurrence in Aetna Life Ins. Co. v. Lavoie, 505 So. 2d 1050, 1054 (Ala.1987).
[1] See Ex parte Georgia Cas. & Sur. Co., 531 So. 2d 838, 840 (Ala.1988), the mandamus case, in which Georgia Casualty contended that the fraud claims were extinguished by the decision in White I.
[2] The record suggests that there was some evidence that the kidney disease that caused Mr. White's death may have been a preexisting condition, and there was evidence that he did return to work. I realize that the trial court, after the plaintiffs produced evidence in support of their motion for summary judgment, did grant that motion, and that Georgia Casualty did not appeal, but that does not mean that summary judgment was appropriate. We frequently reverse summary judgments.
[3] In view of the fact that the trial court entered an order pursuant to Rule 54(b), Ala.R.Civ.P., the order in favor of the plaintiffs became final when Georgia Casualty did not appeal. Consequently, any dispute Georgia Casualty might have had relating to the extent of Mr. White's damages related to the policy coverage was foreclosed when no appeal was taken.
[4] I have not researched the law to determine whether a personal representative can file a bad faith claim, and I do not know to whom any punitive damages in such a case would be distributed, in view of the laws that regulate the receipt and distribution of funds belonging to the estate. | May 31, 1991 |
c4b8d1e7-ae5b-437f-afbe-48ef7be86354 | Osmer v. Belshe Industries, Inc. | 585 So. 2d 791 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 791 (1991)
Vickie Elizabeth OSMER
v.
BELSHE INDUSTRIES, INC.
89-1359.
Supreme Court of Alabama.
May 3, 1991.
Rehearing Denied August 9, 1991.
*792 Jack B. Sabatini of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
Daniel C. Boswell, Huntsville, for appellee.
HORNSBY, Chief Justice.
Vickie Elizabeth Osmer, as administratrix of the estate of Ricky Dean Osmer, appeals from a summary judgment entered in favor of defendant Belshe Industries, Inc. (hereinafter "Belshe"), in an action alleging liability under the Alabama Extended Manuacturer's Liability Doctrine ("AEMLD"). We reverse and remand.
Ricky Dean Osmer was employed by Cherokee Cable Company as a heavy equipment operator. On February 12, 1982, the owner of a tractor-trailer truck was stuck in mud one-half mile from a Cherokee Cable Company jobsite, and the owner of the tractor-trailer requested Osmer's assistance to help push it out of the mud. Osmer loaded a John Deere 450B bulldozer onto a Model T-8 two-axle flatbed trailer manufactured by Belshe and drove to where the tractor-trailer was stuck in the mud. After pushing the tractor-trailer out of the mud, Osmer attempted to reload the bulldozer back onto the trailer.
The company truck with the Belshe trailer was parked with the left wheels on the pavement and the right wheels on the shoulder of the highway. The record indicates that the tires of the trailer sank into the soft ground of the highway shoulder as Osmer attempted to drive the bulldozer onto the trailer and that the bulldozer began to slide off the side of the trailer. As it began to slide, Osmer jumped off the bulldozer onto the shoulder of the highway. When the bulldozer slid off the trailer, its track struck Osmer. He was killed instantly.
Vickie Osmer sued Belshe under the AEMLD, alleging negligence and wantonness in the design, manufacture, and distribution of the trailer; negligent or wanton failure to warn Ricky Osmer of the dangers associated with the use of the trailer; and breach of express and implied warranties.[1] Specifically, Osmer alleged that *793 Belshe failed to provide steel angles or channel stops along the edge of the trailer or other mechanisms designed to prevent equipment from sliding off the trailer.
Belshe moved for a summary judgment on October 6, 1988. After various hearings and continued discovery, the trial court granted Belshe's motion for summary judgment on December 20, 1989.
Osmer presents four issues on appeal:
(1) Whether the trial court erred in holding that there was no evidence that Belshe had built and sold a "defective" product that killed Ricky Osmer and, therefore, that the plaintiff had no cause of action under the AEMLD.
(2) Whether the trial court erred in holding that the trailer was a "general purpose" product and that, under prior holdings of this Court, Belshe was therefore not liable;
(3) Whether the trial court erred in holding that Belshe was not liable to Osmer because of a lack of causal relationship between the manufacture of the trailer and the death of Ricky Osmer; and
(4) Whether the trial court erred in holding that Ricky Osmer was contributorily negligent as a matter of law, and that Belshe was therefore not liable.
The plaintiff argues on appeal that she presented sufficient evidence to support her cause of action against Belshe and, therefore, that summary judgment was improper.
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:
"`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 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).
The action in the instant case was commenced before June 11, 1987; therefore, the applicable standard of proof is the "scintilla rule." Ala.Code 1975, § 12-21-12. The summary judgment motion must be denied if there is a scintilla of evidence in support of the plaintiff's claims. Kimbrel v. Mercedes-Benz Credit Corp., 476 So. 2d 94 (Ala.1985); Ray v. Montgomery, *794 399 So. 2d 230, 232 (Ala.1980); see A.R.Civ. P., 56(c), and comments thereto.
Osmer contends that Belshe is liable under the AEMLD for manufacturing, designing, and distributing a defective and unreasonably dangerous product. In order to recover under the AEMLD, she must prove that
Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala.1976); Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132 (Ala. 1976). Proof that a manufacturer, supplier, or seller marketed a product not reasonably safe when applied to its intended use in the usual and customary manner constitutes negligence. Casrell, 335 So. 2d at 132.
The fact that Ricky Osmer was killed does not by itself establish the presence of a defect in the trailer. See Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala.1981). In Haven Hills Farm the Court emphasized that it is not enough to show that the product failed to perform when applied to its intended use and that the plaintiff was injured; the product also must have been sold with a defect or in a defective condition in order to have a successful cause of action under the AEMLD. The terms "defect" and "defective" under this doctrine have been defined as follows:
"....
"`Defective' is interpreted to mean that the product does not meet the reasonable expectations of an ordinary consumer as to its safety. Comment g. of the Restatement [(Second) of Torts (1965)] says defective condition applies when, at the time the product leaves the seller's hands, it is in a condition not contemplated by the ultimate consumer."
Casrell, 335 So. 2d at 133.
The trial court, in ruling on a summary judgment motion, may consider any evidence before it that would be admissible at trial. Sapp v. Beech Aircraft Corp., 564 So. 2d 418 (Ala.1990). In support of her contention that the flatbed trailer was defective, Osmer provided the trial court with the affidavit of an engineering expert, who stated:
*795 The Trailer as a "General Purpose Product"
Belshe contends that the expert's affidavit quoted above cannot circumvent or defeat the rule of law enunciated in Johnson v. Niagara Machine & Tool Works, 555 So. 2d 88 (Ala.1989), where the Court refused to find that a multifunction, general purpose machine was in a defective condition when sold without guarding devices. In that case, a third-party claim was filed against Niagara Machine & Tool Works, the manufacturer of a press ram. The plaintiff's hand had been amputated when he hit a stop button on the machine and reached into the ram area.
In affirming a summary judgment for the manufacturer, the Court in Johnson adopted the rule of law stated in Gordon v. Niagara Machine & Tool Works, 574 F.2d 1182 (5th Cir.1978).[2] In that case the court specifically noted that it was incumbent upon the machine purchaser to select safety devices appropriate for his particular function. 574 F.2d at 1190. This Court stated in Johnson:
555 So. 2d at 92-93.
Belshe argues here that, like the press in Johnson, the trailer was a "general purpose" product. Gordon Belshe, owner and chairman of the board of Belshe, testified in his deposition that Belshe trailers were designed to haul a variety of equipment, depending upon the specific purposes of the purchaser. Mr. Belshe further indicated that Belshe trailers were commonly used to transport equipment to construction sites and that this equipment included bulldozers.
We find that the facts in this case are clearly distinguishable from those in Johnson, supra, with respect to what constitutes a "general purpose" product under Alabama law. In Johnson, the product involved was a press that accepted a large number of different configurations of dies and molds as well as various safety and guarding devices. That machine could not be used for any particular purpose until the purchaser-user had made substantial modifications and additions for its use in a particular manufacturing process. The gist of this Court's opinion in Johnson was that our law would not require manufacturers of general purpose products to foresee and forestall any negligent use of the products when there were nearly unlimited possible uses and configurations.
This is not the case before us. In this case, the trailer in question was immediately usable for hauling the sort of equipment that was being hauled when Ricky Osmer was killed. The president of Belshe admitted that trailers like the one in question were commonly used to haul bulldozers to and around construction sites. There was certainly more than a scintilla of evidence that this trailer would forseeably be used to haul a bulldozer. The manufacturer also indicated that it could and would install guardrails if they were requested, but it did not provide any documentation as to the availability to, or use of guardrails by, purchasers at the time the trailer in question was purchased. In addition, the manufacturer was knowledgeable about various types of nonslip surfaces that could have been incorporated into the design of the trailer.
The trailer in this case is not like the press in Johnson. In fact, it was designed to haul equipment of the type being hauled *796 when the accident occurred, and it was readily usable for that purpose upon purchase. Although designed for that purpose, the trailer was not equipped with any railing or channeling or other nonslip mechanism to prevent the equipment being transported from sliding off a steel base that could become slippery, and the purchaser-user was not made aware that such safety measures were available. Because there was evidence suggesting that the possibility of sliding equipment was readily foreseeable, this Court will not hold that this trailer is a "general purpose" product as to which the manufacturer can avoid liability as a matter of law. Accordingly, the summary judgment cannot be affirmed on the basis that the trailer was a "general purpose" product.
With respect to the issue of proximate cause, the record includes eyewitness testimony that Ricky Osmer was struck by the track of the bulldozer as it slipped off the side of the trailer. As this Court has often noted, summary judgment is rarely appropriate in cases involving issues of proximate causation, because such issues are dependent on the facts of the case. Fletcher v. Hale, 548 So. 2d 135 (Ala.1989); Yarborough v. Springhill Memorial Hosp., 545 So. 2d 32 (Ala.1989); and Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976).
In light of the deposition testimony of the eyewitness, the affidavit of the plaintiff's expert, and the deposition testimony of the manufacturer's representative that guardrails were available for use on such trailers to prevent similar accidents, we must conclude that there was certainly a scintilla of evidence that Ricky Osmer's death would not have occurred had the trailer been designed to prevent equipment slippage. In short, the question whether the absence of a rail or channel would have prevented Ricky Osmer's death is a question for a jury and cannot be answered on a motion for summary judgment.
The question whether Ricky Osmer was contributorily negligent as a matter of law so as to warrant the entry of a summary judgment turns on an analysis similar to that employed regarding the question of proximate cause. Questions of negligence incorporate the same sort of factual evaluations as do questions of proximate cause, and these factual evaluations are the province of the jury. It follows that a summary judgment based on contributory negligence is seldom proper. Jones v. Power Cleaning Contractors, 551 So. 2d 996 (Ala. 1989), and Knowles v. Poppell, 545 So. 2d 40 (Ala.1989).
Here, the only evidence of contributory negligence was the testimony of the eyewitness that in his opinion Ricky Osmer's speed of three to four miles per hour in driving the bulldozer onto the trailer was too fast. When questioned further, the witness was unable to testify as to what speed was necessary to get the bulldozer up the ramp. The witness further indicated that the slope and location of the trailer did not appear to him to be unsafe. The record also contains evidence from which one could reasonably infer that Ricky Osmer was a heavy equipment operator of competence and experience.
Our law of summary judgment requires a court to leave for the jury the question of contributory negligence when there is an issue of material fact on that question upon which reasonable persons could disagree. Economy Fire & Casualty Co. v. Goar, 551 So. 2d 957, 959 (Ala.1989), and Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
This issue ultimately becomes whether evidence of one witness that Ricky Osmer's act of driving the bulldozer up the ramp and onto the trailer at three to four miles per hour is such strong evidence of negligence that no reasonable person could conclude that Ricky Osmer was not negligent. We conclude that whether a speed of three or four miles per hour was too fast is an issue on which reasonable persons could disagree.
The record contains at least a scintilla of evidence in support of each element of the *797 plaintiff's AEMLD claim and at least a scintilla of evidence that the trailer in question was not a "general purpose" product within the meaning of Johnson v. Niagara Machine & Tool Works, supra. Further, the summary disposition of the issues of proximate cause and contributory negligence in this case was not appropriate. It follows that the trial court's summary judgment must be reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
MADDOX, ALMON and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
The majority holds that a flatbed trailer is not, as a matter of law, a "general purpose" product, and that the flatbed trailer in this case was "unreasonably dangerous" and not fit for its intended use.
The majority reaches this conclusion, and attempts to distinguish this Court's recent case of Johnson v. Niagara Machine & Tool Works, 555 So. 2d 88 (Ala.1989), because there was some evidence (1) that the trailer was not equipped with an angle or channel restraint on its sides that would prevent a bulldozer from sliding off the trailer; (2) that it was manufactured with a wooden flatbed that was covered with steel plates; and (3) that there were no warnings on the trailer regarding the methods for safely loading equipment.
Admittedly, an affidavit of an expert was introduced stating that the trailer was "defective" and "unreasonably dangerous," and the majority quotes this affidavit in its opinion,[3] but this affidavit, in my opinion, should not be allowed to circumvent or defeat the rule of "common sense" set forth in Johnson, in which there was also evidence that the machine involved was defective and unreasonably dangerous.[4]
The majority recognizes that the fact that Osmer was injured does not alone establish the presence of a defect in the trailer and cites Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala. 1981), for this proposition, but the majority fails to apply the very rule that it announces. In Haven Hills Farm, Inc., the Court emphasized that it is not enough to show that the product failed to perform when applied to its intended use and that the plaintiff was injured; the product must be sold in a defective condition in order to have a successful cause of action under the AEMLD. The term "defective" as applied under this doctrine has been defined as follows:
"....
"`Defective' is interpreted to mean that the product does not meet the reasonable expectations of an ordinary consumer as to its safety. Comment g. of the Restatement [ (Second) of Torts (1965)] says defective condition applies when, at the time the product leaves the seller's hands, it is in a condition not contemplated by the ultimate consumer."
Casrell v. Altec Industries, Inc., 335 So. 2d 128, at 133 (Ala.1976).
I cannot distinguish this case from Johnson v. Niagara Machine & Tool Works, in which the Court refused to find that a multifunctional, general purpose product was in a defective condition when sold without guarding devices and without a warning to users of possible dangers.
In Johnson, a third-party claim was filed against Niagara Machine & Tool Works, the manufacturer of a press ram. Johnson's arm had been amputated when he hit a stop button on the machine and reached into the ram area.
In affirming a summary judgment for the manufacturer, the Court adopted the rule of law stated in Gordon v. Niagara *798 Machine & Tool Works, 574 F.2d 1182 (5th Cir.1978).[5] In that case the court specifically noted that it was incumbent upon the purchaser of a general purpose product to select safety devices appropriate for its particular function. 574 F.2d at 1190.
In Johnson, this Court stated the rule that should be applied when the alleged defect is in a multipurpose product:
555 So. 2d at 92-93.
Based upon my analysis of the rule of law announced in Johnson and upon a comparison of the evidence introduced in support of the plaintiff's claim in that case with the affidavit of the expert presented in this case, I can only conclude that the Belshe flatbed trailer was a general purpose product.
I base my conclusion upon the evidence introduced in support of the motion for summary judgment. Gordon Belshe, owner and chairman of the board of Belshe, testified in his deposition that Belshe trailers were designed to perform a myriad of functions, depending upon the specific purpose of the ultimate purchaser:
There was no testimony that Belshe designed this trailer for a specific job. In 1980, the trailer was purchased as part of a lot with other trailers from Belshe as specified and requested by Ditch Witch of Middle Tennessee, Inc. There was also no testimony regarding how many times the Belshe trailer had been resold after its initial sale to Ditch Witch and prior to its sale to Cherokee Cable and the accident in 1982. There was no evidence that, at the time it was purchased, Ditch Witch informed Belshe of the exact purpose for which this trailer was to be used.
Unquestionably, it has been the custom in the industry for many years for the purchaser of a general purpose product, such as the trailer involved here, to assume responsibility for installing a guard on the trailer if one is desired. Johnson, 555 So. 2d at 92; Watts v. TI, Inc., 561 So. 2d 1057 (Ala.1990).[6]
I would hold that the flatbed trailer was a general purpose product, and was not, when it was manufactured, in a defective condition unreasonably dangerous for the intended user. The only evidence I find in the record is that the trailer was designed for many uses. The affidavit of the expert fails to consider that the trailer could be used for many purposes other than hauling *799 a tracked vehicle; consequently, I must dissent.
ALMON and STEAGALL, JJ., concur.
[1] The original complaint included as defendants John Deere Company ("John Deere"), Harbert Construction Company ("Harbert"), Tractor & Equipment Company ("TEC"), and appellee Belshe Industries, Inc. Summary judgments were entered in favor of defendants John Deere, Harbert, and TEC based upon affidavits that stated that the roll-over protection system ("ROPS") was in place on the bulldozer when it left the possession of those parties.
Osmer subsequently amended her complaint and named eight additional defendants alleged to have been in the distributive chain of the bulldozer. Summary judgments were entered in favor of each of the newly added defendants based on the fact that the ROPS was in place when the bulldozer left their possession.
Osmer does not appeal from any of the summary judgments entered in favor of those defendants in the distributive chain of sale of the John Deere bulldozer. The issues presented in this appeal relate solely to defendant Belshe Industries, Inc.
[2] In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), the Eleventh Circuit Court of Appeals adopted as binding precedent all prior decisions of the former Fifth Circuit.
[3] See majority op. at 794 for the substance of this affidavit.
[4] In Johnson, at 92, the Court stated that the rule of that case was "supported by common sense."
[5] In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), the Eleventh Circuit Court of Appeals adopted as binding precedent all prior decisions of the former Fifth Circuit.
[6] Cf. Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 859 (Ala. 1981). In Caterpillar, the majority sustained the jury's finding that the tractor was defective because of the failure of the manufacturer to provide a roll-over protective structure, notwithstanding that such a structure was offered as optional equipment. That case, however, did not involve a general purpose product comparable to the trailer involved in this case. | May 3, 1991 |
d8f86ead-f133-4564-8cdd-0ef4bee24ff5 | Smith v. Cook | 578 So. 2d 1055 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1055 (1991)
Jeffrey Murl SMITH
v.
Hardy COOK, Jr., and Chilton County, Alabama.
89-49.
Supreme Court of Alabama.
April 19, 1991.
*1056 Alecia K. Haynes, Birmingham, for appellant.
T. Kent Garrett of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.
ADAMS, Justice.
Jeffrey Smith appeals from a judgment based on a directed verdict in favor of Hardy Cook and Chilton County in an action filed by Mr. Smith for damages based on personal injuries sustained in an automobile accident. We affirm.
On July 7, 1987, Jeffrey Smith drove his automobile onto Highway 31 from the parking lot of a small grocery store in Thorsby, Alabama. The rear of his vehicle was struck by an automobile driven by Hardy Cook, a sergeant for the Chilton County Sheriff's Department, who was on an emergency call to the location of a reported shooting. Both Smith and Cook were injured in the collision.
On August 13, 1987, Mr. Smith filed a complaint against Sergeant Cook and Chilton County, alleging that Sergeant Cook had been negligent or wanton in the operation of his vehicle. On August 17, 1987, Sergeant Cook filed a similar complaint against Mr. Smith, in which he alleged negligence or wantonness on the part of Mr. Smith. On September 10, 1987, the actions were consolidated for discovery and trial. At trial, which commenced on September 25, 1989, much of the dispute revolved around whether Sergeant Cook's siren and flashing lights were activated at the time of the collision.
At the close of Mr. Smith's case, Sergeant Cook and Chilton County moved for a directed verdict on all counts of Smith's complaint. The trial judge, sua sponte, suggested the applicability of Alabama Pattern Jury Instruction 26.20, which states in part: "The standard of care of a police officer performing an official duty requiring unusual speed or unusual action is different from that normally required of a private citizen." The judge also observed that the "Notes on Use" following Instruction 26.20, suggested that "[e]xpert testimony is usually necessary to establish the reasonably prudent police officer standard of care."
After a lengthy discussion with counsel for all parties, the judge directed a verdict for Sergeant Cook and Chilton County on Mr. Smith's complaint on the ground that Mr. Smith had not produced expert testimony regarding the applicable standard of care owed by a police officer. However, the judge submitted to the jury the claim of Sergeant Cook against Mr. Smith. On that claim, the judge instructed the jury in the following manner:
Counsel for all parties indicated their satisfaction with that charge.
The record reveals the following remarks by the trial judge, made after the jury had returned from deliberation:
Neither Smith nor Cook brought an appeal from the judgment based on that verdict. However, Mr. Smith subsequently appealed, complaining only of the directed verdict against him on his claim against Sergeant Cook and Chilton County.
Mr. Smith presents only two issues on appeal. First, he contends that Alabama Pattern Jury Instruction 26.20 is inapplicable under the facts of this case. Second, he argues that regardless of its applicability, the plaintiff, in order to defeat a motion for a directed verdict, is not required to present expert testimony on the standard of care of a police officer who is responding to an emergency call.
Notwithstanding the thorough treatment of the standard-of-care issue through the briefs of able counsel, we fail to see how Mr. Smith would benefit from a favorable ruling in this Court. In this consolidated action, the claims of both drivers arose out of a single automobile accident. Both parties alleged identical claims of negligence and wantonness in the operation of the other's vehicle. The central element in both claims was the applicable standard of care of a police officer in responding to an emergency call.
In its consideration of Sergeant Cook's claim against Mr. Smith, the jury expressly found both parties to be negligent. The uncontested charge to "do what you feel is fair and reasonable and right between these two people" expressly invited the jury to examine the claims and defenses of each party vis-a-vis the other. In doing so, the jury necessarily passed on the issue of the standard of care of a police officer. Thus, any question regarding the necessity of expert testimony to establish such a standard has been rendered moot by the subsequent jury verdict and the consequent judgment from which no appeal has been taken.
This Court will not decide questions that are moot or that have become purely academic. J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala.1981); City of Birmingham v. Long, 339 So. 2d 1021 (Ala. 1976); Byrd v. Sorrells, 265 Ala. 589, 93 So. 2d 146 (1957). Neither will we set out to resolve an issue unless a proper resolution would afford a party some relief. City of Birmingham v. Southern Bell Telephone & Telegraph Co., 234 Ala. 526, 176 So. 301 (1937); Caldwell v. Loveless, 17 Ala.App. 381, 85 So. 307 (1920). We, therefore, decline to pass on the propriety of the directed verdict, because the jury was subsequently allowed to consider the very issue foreclosed by the directed verdict.
Consequently, the judgment of the trial court is hereby affirmed.
AFFIRMED.
MADDOX, HOUSTON, STEAGALL and INGRAM, JJ., concur. | April 19, 1991 |
32ea76fb-2140-443d-983f-e2abe18c5382 | George v. McIntosh-Wilson | 582 So. 2d 1058 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 1058 (1991)
Rose GEORGE, as administratrix of the Estate of Andre George, deceased
v.
Earnell McINTOSH-WILSON, et al.
89-1573.
Supreme Court of Alabama.
May 24, 1991.
*1059 J. Gusty Yearout and Phillip Ted Colquett of Yearout, Myers & Traylor, Birmingham, for appellant.
G.R. "Rick" Trawick, Ala. Dept. of Mental Health and Mental Retardation, Montgomery, for appellees.
ADAMS, Justice.
Rose George, as administratrix of the estate of Andre George, deceased, appeals from a summary judgment entered against her in favor of the defendants, Earnell McIntosh-Wilson, chief executive officer of Partlow State School and Hospital ("the Hospital"); Dr. Louis Tyler, director of health services at the Hospital; and Gilda Felts, L.P.N. The action claimed damages pursuant to 42 U.S.C. § 1983. We affirm in part, reverse in part and remand.
On September 10, 1986, Andre George, a profoundly retarded, paraplegic resident at the Hospital, suffocated on a surgical glove that he ingested while unattended by hospital personnel. The undisputed evidence reveals that Mr. George had a habit of chewing and "mouthing" anything within his reach, including towels, rags, his clothing or the clothing of others. If nothing else was available, he would insert his thumb *1060 into his mouth "far enough usually to gag himself."
In response to this habit, the hospital formulated procedures for Mr. George's "habilitation." On April 7, 1986, the Hospital instituted a 90-day "behavioral management plan" aimed at mitigating the habit. Additionally, on June 16, 1986, the Hospital formulated an "individual habilitation plan" that sought not only to alleviate the chewing problem, but also to increase his "skills in dining and toileting" and his awareness of himself and his environment, and to promote his "recreation and social skills" through a regimen of exercise and "gross motor activities." At night, the staff routinely pulled his bed away from the wall to prevent Mr. George from chewing on the curtains.
Between 6:30 and 7:00 P.M. on the day of the accident, Mr. George was one of four residents being "toileted" by Barbara Jackson, a mental health worker I, who was assigned to his cottage. Her task was interrupted by the request of another staff member for assistance in preparing a birthday party for some of the residents. She left Mr. George in the restroom, restrained by a lap belt in his wheelchair, a few feet from a sink on which lay some surgical gloves. While unattended, Mr. George ingested a glove and died as a result.
His mother, as administratrix of his estate, sued Jackson, McIntosh-Wilson, Dr. Tyler, and Felts under 42 U.S.C. § 1983 alleging violations of rights guaranteed by the Fifth and Fourteenth Amendments.[1] All the defendants filed motions for summary judgment. On May 11, 1990, the trial court denied the motion of Barbara Jackson and granted the motions of Mrs. McIntosh-Wilson, Dr. Tyler, and Ms. Felts. The summary judgment for these defendants stated:
On June 7, 1990, the trial court made the partial summary judgment final pursuant to Ala.R.Civ.P. 54(b). On July 13, 1990, this Court denied Barbara Jackson's petition for permission to appeal from the interlocutory order of May 11; therefore, the claim against her is not before this Court. On appeal, Ms. George contends that the summary judgment, which was based on a finding of immunity, was erroneous. We agree that the judgment was erroneous as to defendant McIntosh-Wilson, but we conclude that it was proper as to Dr. Tyler and Ms. Felts.
In pertinent part, 42 U.S.C. § 1983, provides as follows:
Id. Section 1983 preempts state law and provides a federal cause of action for violations of rights guaranteed under the Constitution of the United States. Monroe v. Pape, 365 U.S. 167, 173-75, 81 S. Ct. 473, 476-78, 5 L. Ed. 2d 492 (1961), overruled on *1061 other grounds Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). State officials acting in their official capacities are not "persons" for purposes of claims for damages under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).
In their individual capacities, however, state officials may be liable for damages resulting from discretionary acts[2] that violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)."Good-faith" or "qualified" immunity is available as an affirmative defense to a wide variety of public officials. Id. at 815, 102 S. Ct. at 2736; Schuck, Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages, 1980 Sup. Ct.Rev. 281, 293-95. In order to defeat a qualified immunity defense, the plaintiff "bears the burden of showing that `the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions.'" Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir.) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816, 86 L. Ed. 2d 411 (1985)), cert. denied, ___ U.S. ___, 110 S. Ct. 101, 107 L. Ed. 2d 65 (1989); see also Feagley v. Waddill, 868 F.2d 1437, 1439 (5th Cir.1989); Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.1988); Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983). Only if a state official exhibits deliberate indifference to his official duties may he be liable for damages under § 1983.
A qualified immunity analysis requires a legal determination both as to the state of the law at the time of the alleged violation and "as to the existence of a genuine issue of fact as to whether the defendant engaged in conduct violative of the rights established by that clearly established law." Rich, 841 F.2d at 1564. The first question thus requires us to consider whether it was clearly established that Mr. George enjoyed a constitutional right to an environment reasonably safe from suffocation on ingestible objects, which his known propensity would have rendered highly likely. We answer that question in the affirmative.
As early as 1972, the United States District Court for the Middle District of Alabama addressed the scope of constitutional guarantees accruing to the residents of Partlow State School and Hospital. Wyatt v. Stickney, 344 F. Supp. 387 (M.D.Ala. 1972), modified sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974) (affirming the "district court's orders recognizing the constitutional right to treatment"). Finding conditions at the Hospital to be "grossly substandard," the court noted:
Id. at 391. Declaring that the "gravity and immediacy of the situation [could not] be overemphasized," id. at 394, the court stated: "Unfortunately, never, since the founding of Partlow in 1923, has the Legislature adequately provided for that institution. The result of almost fifty years of legislative neglect has been catastrophic; atrocities occur daily." Id. at 393 (footnotes omitted).
In order to rectify constitutionally deficient conditions, which resulted, in part, from the "virtual absence of administrative and managerial organization," id., the court formulated and ordered the implementation of a program entitled "Minimum Constitutional Standards for Adequate Habilitation of the Mentally Retarded." The standards, inter alia, provided:
Id. at 396-401. The court, expressly retaining jurisdiction to ensure compliance, further ordered the Hospital administration to submit follow-up reports and financial statements. Id. at 395. These "minimum constitutional standards" outlined by the court fairly implied a constitutional guarantee to a reasonably safe environment and presaged the holding of the United States Supreme Court in Youngberg v. Romeo, 457 U.S. 307, 319, 102 S. Ct. 2452, 2459, 73 L. Ed. 2d 28 (1982).
In Youngberg, the Court accorded a "liberty interest in safety" under the Fourteenth Amendment to residents of mental health care institutions. This interest imposed upon the state the "unquestioned duty to provide reasonable safety for all residents and personnel within the institution[s]." Id. at 324, 102 S. Ct. at 2462.
Thus, by September 10, 1986, it was clearly established that the Hospital's residents enjoyed constitutionally protected interests in reasonable care and safety. This is especially true in view of the history of litigation directly involving the Hospital and the ongoing supervision exercised by the federal district court. The defendants cannot claim qualified immunity solely on the argument that George's constitutional rights to be reasonably safe from potentially deadly objects were not clearly established at the time of the accident. We, therefore, direct our attention to the question concerning the existence of a genuine issue of fact, which must be viewed in light of the standard of culpability announced in Youngberg, in order to determine whether the defendants violated the constitutional rights of Andre George.
In deference to the exercise of discretion required of mental health care professionals, Youngberg held that the discretionary acts and decisions of such professionals will provide a ground of liability "only when the decision ... is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323, 102 S. Ct. at 2462. "Deliberate indifference" thus forms the relevant standard of culpability with regard to whether constitutional rights were violated in this case.
The administrator of a mental health care institution may incur supervisory liability under § 1983 for a constitutional deprivation where the policies of the Hospital as formulated or applied result in such a lack of training and supervision as to constitute deliberate indifference to clearly established constitutional rights to a reasonably safe environment. Such indifference constitutes a "personal involvement" in the alleged violation. See Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986); McKinnon v. Patterson, 568 F.2d 930, 936 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978); see also City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989) (municipal liability depends on "whether there is a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation"). In *1063 other words, policy-making administrators would be liable for the constitutional deprivations caused by their subordinates if they exhibited such a degree of indifference to compliance with their policies as to demonstrate that they did not base their actual administrative decisions or actions on the professional judgments embodied in the policy. Cf. Youngberg, 457 U.S. at 323, 102 S. Ct. at 2462; City of Canton, 489 U.S. at 390, 109 S. Ct. at 1205 (through indifference, a municipality could "actually have a policy of not taking reasonable steps to train its employees").
As chief executive officer, Mrs. McIntosh-Wilson formulated policies and procedures for the administration of the Hospital, including individual habilitation plans. Her duties included "quality control," that is, responsibility for implementing procedures to ensure compliance with formulated policy. In opposition to the motions for summary judgment, Rose George submitted the affidavit of her expert, who faulted the policies and procedures in the following respects:
(Emphasis added.)
Rose George's expert found evidence of faulty communication at the administrative level. Indeed, the record indicates that Barbara Jackson received only 10 minutes of formal instruction on Andre George's behavior and habilitation plans at the time of her assignment to his care. Moreover, Jackson testified that no one had ever discussed George's mouthing habit with her. The question whether, notwithstanding documentary evidence of administrative cognizance of George's needs, Hospital policies were more illusory than real presents a factual issue that precludes summary judgment. Rose George should have been given further opportunity to prove her allegations regarding this defendant's exercise of judgment and the possible existence of a mere "paper policy."
Concerning defendants Dr. Tyler and Ms. Felts, however, the plaintiff has failed to meet her burden of showing the existence of a genuine issue of fact regarding their alleged breach of the Youngberg standard. The unrebutted evidence as to the roles played by these defendants in the administrative policies and procedures of the Hospital was revealed through depositions offered in support of the motion for summary judgment.
As director of health services, Dr. Tyler supervised only the staff physicians practicing in the areas of "general family medicine." Neither he nor his subordinates were responsible for the implementation or the promulgation of individual habilitation plans. Within the organizational structure of the Hospital, he was not responsible for *1064 the supervision or training of Barbara Jackson or other mental health workers. Indeed, his only connection with this case appears to be an informational memorandum that he sent to Mrs. McIntosh-Wilson summarizing Mr. George's physical condition preceding the accident and detailing the cause of death.
Likewise, the evidence indicates that Ms. Felts, a licensed practical nurse on duty at the time of the accident, was not responsible for the implementation or the promulgation of individual habilitation plans. She was not responsible for the supervision of the residents or for the supervision or training of mental health workers. Her sole connection to this case appears to be her unsuccessful attempts to resuscitate Andre George upon discovery of the accident by Barbara Jackson. This § 1983 claim turns on allegations of the promulgation of unconstitutional policies or procedures regarding the supervision of residents, rather than on allegations of medical malpractice, and the record reveals no evidence of deliberate indifference on the part of Gilda Felts to the constitutional rights of Andre George.
The summary judgment, therefore, was proper as to Dr. Tyler and Ms. Felts, and as to those defendants the judgment of the trial court is affirmed. However, as to defendant Mrs. McIntosh-Wilson, the judgment is reversed and the cause is remanded for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Although it is not a model of clarity, count five of the complaint sufficiently alleges a claim that the defendants, in their individual capacities, "promulgated, established, and implemented procedures, customs and practices which were improper policy regarding the supervision of residents located at Partlow."
[2] The cases on which the trial court relied in its order granting the defendants' motion for summary judgment were inapposite as neither case involved an action under § 1983.
[3] "Habilitation" was defined as "the process by which the staff of the institution assists the resident to acquire and maintain those life skills which enable him to cope more effectively with the demands of his own person and of his environment and to raise the level of his physical, mental, and social efficiency." Wyatt, 344 F. Supp. at 395. | May 24, 1991 |
9f71b065-f433-4a96-94cd-cef07e3e6966 | Sanders v. Weaver | 583 So. 2d 1326 | 1900421 | Alabama | Alabama Supreme Court | 583 So. 2d 1326 (1991)
Rose M. SANDERS and Chestnut, Sanders, Sanders, Turner, Williams and Pettaway, P.C.
v.
Marie P. WEAVER.
1900421.
Supreme Court of Alabama.
June 21, 1991.
*1327 Keri Donald Simms and W.J. McDaniel of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellants.
Susan S. Wagner, Frank S. James III and Michael R. Silberman of Berkowitz, Lefkovits, Isom & Kushner, Birmingham, and Stephen M. Gudac, Mobile, for appellee.
HOUSTON, Justice.
Hirsch, Kett, Trefil, The Dictionary of Cultural Literacy, What Every American Needs to Know, 71-72 (Houghton Mifflin Company 1988).
Rose M. Sanders and Chestnut, Sanders, Sanders, Turner, Williams and Pettaway, P.C. ("the law firm"), appeal from an order of the Circuit Court of Mobile County denying their Rule 55(c), A.R.Civ.P., motion to set aside a default judgment entered against Sanders and the law firm in a legal service liability action filed by Marie P. Weaver. The summons and the complaint in the legal service liability action were served on July 6, 1990. On August 8, 1990, Weaver moved for a default judgment, based upon the failure of Sanders and the law firm to appear, plead, or otherwise defend. Default was entered by the clerk on August 19, 1990, and a default judgment for $691,426.58 was entered in Weaver's favor and against Sanders and the law firm on August 23, 1990. Twenty-seven days later Sanders and the law firm filed a Rule 55(c) motion to set aside the default judgment. The court denied that motion. We reverse and remand.
The gravamen of Weaver's complaint was that Sanders and the law firm had negligently permitted the dismissal of Weaver's federal action alleging race, sex, and age discrimination against her former employer, Olin Chemical Company.
Sanders and the law firm's motion to set aside the default judgment alleged that the judgment was void because Weaver had failed to withdraw her jury demand after Sanders and the law firm's default and because the damages were awarded by the court and not by a jury; that Sanders and the law firm were served with the summons and the complaint on July 6, 1990, and on that day forwarded them to their liability insurance carrier, who under the contract of insurance was obligated to defend Sanders and the law firm, but inadvertently failed to timely arrange for representation of Sanders and the law firm. The motion also alleged the following, which were designated as "meritorious defenses" to Weaver's action:
The motion further alleged that Weaver would not be prejudiced by the setting aside of the default judgment and the adjudication of this action on its merits because this would not impede, frustrate, or otherwise delay Weaver's efforts to recover and would not cause her to incur additional costs; and, the motion alleged, adjudication on the merits would not result in any loss of evidence, would not hinder discovery, and would not cause Weaver to suffer any substantial prejudice.
Although Rule 55(c), A.R.Civ.P., vests the trial court with discretion in ruling on a Rule 55(c) motion, Article I, §§ 6, 10, and 13, of the Alabama Constitution of 1901 requires that a trial court exhibit a large and liberal discontent against adjudication of rights by default. This policy has been expressed in Kirtland v. Fort Morgan Authority Sewer Service, 524 So. 2d 600, 604 (Ala.1988), as "this state's commitment to protect an individual's right to attain an adjudication on the merits and to afford litigants an opportunity to defend," and likewise has been expressed in Jones v. Hydro-Wave of Alabama, Inc., 524 So. 2d 610, 613 (Ala.1988): "[A] trial [court], in exercising [its] discretion under Rule 55(c), must begin with the presumption that a litigant has a paramount right to defend on the merits and that, therefore, the cases should be resolved on the merits whenever practicable."
This Court has developed a three-factor analysis for reviewing orders denying Rule 55(c) motions in cases that fall "in the expansive area between the two extremesone extreme characterized by the presentation of a clearly frivolous defense or no defense at all and by intentional and flagrant abuse of procedural rules, which come together to warrant disposition of the case by default judgment, and the other extreme characterized by inadvertent oversight coupled with an obviously meritorious defense, which come together to warrant disposition by trial." Kirtland, 524 So. 2d at 605.
In reverse order from the order in which they were presented in Kirtland, these three factors are:
(1) Culpability and the defaulting party's conduct: Negligence by itself is insufficient for refusing to grant a Rule 55(c) motion. A reasonable explanation for inaction and noncompliance may preclude a finding of culpability and cause this Court to reverse a trial court's refusal to set aside a default judgment, if the other two factors are satisfied. See Ex parte Illinois Central Gulf R.R., 514 So. 2d 1283, 1288 (Ala.1987); Kirtland, 524 So. 2d at 608.
Sanders and the law firm forwarded the summons and the complaint to their insurance carrier the day they received them. In keeping with Murphy's Law, the claims adjuster (who had been handling the problems for Sanders and the law firm that *1329 had resulted from acts and omissions of Sander's legal secretary that had occurred because of what Sanders and the law firm describe as the secretary's obsessive, compulsive personality) was away from the office for several weeks, and the summons and the complaint in the Weaver suit were placed on his desk. The claims adjuster was in the process of obtaining a divorce from his wife, who was being treated for depression; he was looking after his three minor children, one of whom was being treated for emotional problems, one of whom was being treated for a learning disability, and one of whom, a five-year-old, was being treated for a severe asthmatic condition; and his department was being reorganized and his job duties were being changed. He did not find the summons and the complaint until after the default judgment had been entered. The default was attributable not to willful disregard of court rules, but to negligence. Reasonable explanations for defaults, such as attorney neglect (Ex parte Illinois Central Gulf R.R., supra) and liability insurance company neglect (Lee v. Martin, 533 So. 2d 185 (Ala.1988)), attributable to innocent inadvertence, militate in favor of a finding of an absence of culpability and provide a basis for setting aside a default judgment. Kirtland, 524 So. 2d at 607-08.
(2) Absence of prejudice to the nondefaulting party: Prejudice must be substantial to justify a denial of a Rule 55(c) motion to set aside a default judgment. Kirtland, 524 So. 2d at 606-07. Delay alone is not sufficient prejudice; the delay must result in loss of evidence, create increased difficulties in discovery, or provide greater opportunity for fraud. There is nothing to show that Weaver would be prejudiced in any substantial way by setting aside her default judgment. The absence of prejudice provides a basis for setting aside the default judgment, even if the trial court requires the defaulting defendants (Sanders and the law firm) to reimburse the plaintiff (Weaver) for reasonable expenses caused by the granting of the Rule 55(c) motion.
(3) A meritorious defense: This Court explicitly defined the word "meritorious" in Kirtland, supra, and, in doing so, removed much of the broad discretionary authority vested in a trial court under Rule 55(c):
Kirtland, 524 So. 2d at 606.
The federal court action (the underlying action) was dismissed on September 30, 1988; therefore, this action was governed by the Alabama Legal Services Liability Act, Ala.Code 1975, §§ 6-5-570 through 6-5-581.
Section 6-5-580 reads, in pertinent part, as follows:
Section 6-5-579 reads, in pertinent part, as follows:
(Emphasis added.) Section 6-5-572(5) defines "underlying action" as follows:
It is obvious from a review of the Alabama Legal Services Liability Act that the Act did not change the case law involving a plaintiff's burden of proof in a legal service liability action based on an allegation of negligence in handling an underlying action. As in legal malpractice actions that arose prior to the effective date of the Alabama Legal Services Liability Act (April 12, 1988), a plaintiff must introduce evidence (that would be sufficient to withstand a motion for summary judgment or a motion for a directed verdict) that in the absence of the alleged negligence, the outcome of the underlying case would have been different. Moseley v. Lewis & Brackin, 533 So. 2d 513, 515 (Ala.1988); Johnson v. Horne, 500 So. 2d 1024, 1026 (Ala. 1986); Hall v. Thomas, 456 So. 2d 67, 68 (Ala.1984).
We have reviewed the defenses to Weaver's underlying action set forth in Sanders and the law firm's motion to set aside the default judgment, and we have reviewed the last amended complaint in the underlying action. We cannot say that these defenses are clearly frivolous defenses or no defenses at all, nor can we say that they are obviously meritorious defenses that will assuredly warrant disposition by trial or disposition in Sanders and the law firm's favor. However, we can say, based upon Sanders and the law firm's brief filed with this Court, that some of these defenses may be defenses as a matter of law that would entitle Sanders and the law firm to a summary judgment or to a directed verdict in the trial of the underlying action. Likewise, one of the defenses set forth in the Rule 55(c) motion and supported by the affidavit of Sanders may warrant submission of the underlying action to a jury. Be that as it may, we find sufficient evidence "to reasonably infer that allowing the defense[s] to be litigated could foreseeably alter the outcome of the case." Kirtland, 524 So. 2d at 606. Therefore, we hold that the trial court abused its discretion in denying Sanders and the law firm's Rule 55(c) motion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur.
MADDOX, J., concurs in the result.
MADDOX, Justice (concurring in the result.)
Once again, this Court overturns a determination made by a trial judge that one of the parties had failed to comply with the rules governing the progress of the proceeding through the circuit court.
In holding that the trial judge abused his discretion in refusing to set aside the default judgment, the Court cites a trilogy of casesEx parte Illinois Central Gulf R.R., 514 So. 2d 1283 (Ala.1987); Kirtland v. Fort Morgan Authority Sewer Service, 524 So. 2d 600 (Ala.1988); and Lee v. Martin, 533 So. 2d 185 (Ala.1988). In each of those cases, I dissented and in my dissenting opinions expressed the view that the trial judge was in the best position to apply the balancing test that must be applied in *1331 such cases. The position I so forcefully expressed in those dissenting opinions has not been accepted by the Court, and the reversal of this case is mounting proof that this Court has changed the law regarding what circumstance will justify the setting aside of default judgments. I could continue to dissent, based on the rules of law I set out in my dissents in that trilogy of cases, but I cannot see how my continuing to dissent would serve any useful purpose; therefore, I concur in the result reached, but only because this Court, in that trilogy of cases, set aside default judgments under circumstances not materially different from those presented in this case. | June 21, 1991 |
97b59c70-88d9-4894-b888-b3de4ecabd2c | Geneva County Com'n v. Tice | 578 So. 2d 1070 | 1900114 | Alabama | Alabama Supreme Court | 578 So. 2d 1070 (1991)
GENEVA COUNTY COMMISSION, et al.
v.
Ken TICE, et al.
1900114.
Supreme Court of Alabama.
April 26, 1991.
W. Phil Eldridge, Hartford, for appellants.
James W. Parkman III of Parkman & Brantley, Dothan, W. Harold Albritton III and William B. Alverson, Jr. of Albrittons, Givhan & Clifton, Andalusia, for appellees.
MADDOX, Justice.
This case presents once again a dispute between a county commission and a sheriff over the payment of overtime for deputy sheriffs.[1]
*1071 The specific question presented is whether a county commission can be ordered to pay for the overtime from funds neither budgeted nor appropriated to the sheriff's department.[2] Consequently, a resolution of the question necessarily requires us to apply the doctrine of separation of powers as between the legislative and executive branches of government as that doctrine applies to the county commission's authority to appropriate a sufficient fund for the operation of the sheriff's department.[3]
The facts leading up to the controversy, as shown by the evidence, indicates that the Geneva County Commission ("the Commission") budgeted and appropriated funds for overtime duty for the Geneva County Sheriff's Department for every year from 1973 to 1988, the years covered by this lawsuit. The sheriff of Geneva County, Douglas Whittle, exhausted the overtime budgeted and appropriated for his department each year. The Commission contacted him each year by letter, advising him that he had exhausted his appropriations. It further advised the sheriff that he was limited to the funds appropriated to his department and that if he ordered overtime in the future he would have to shift funds within his department to pay for it. Sheriff Whittle did not respond to these letters, nor did he shift any funds within his department to pay for the overtime, but he continued to order his deputies to incur overtime.
The plaintiff's Ken Tice, James Hicks, Tony Hobbs, Greg Ward, and Tony Helms, deputy sheriffs in Geneva County, were paid overtime that was allowed within the limits of the budget each year, from 1973 to 1988, but the Commission refused to pay them for any overtime work that was not budgeted and for which funds were not appropriated. The deputies filed this complaint for overtime pay against the Commission, H.B. Wise, Charles Flippo, Joe Howell, Jimmy Shiver, and Leland Davis (as members of the Commission). The Commission answered the complaint and later filed a third-party complaint against Sheriff Whittle in which the Commission requested that the sheriff be enjoined from exceeding the budget set by the Commission and that he be required to pay any overtime due the deputy sheriffs from funds already budgeted and appropriated for his department. Sheriff Whittle answered, alleging that the Commission had refused to budget a reasonable amount for the operation of his department, and he filed a counterclaim requesting that the Commission be ordered to adopt and approve his budget request, or, in the alternative, that a mandatory injunction be issued requiring the Commission to approve and adopt his requested budget.
The trial court found that the deputies had worked overtime that was approved by their supervisor and held that they, therefore, should be paid for the overtime earned, and entered judgment in favor of the deputies. That judgment read, in part, as follows:
The Commission raises three issues on appeal: 1) whether the overall appropriation by the Commission to the sheriff's department was reasonable; 2) whether all of the overtime was assigned or approved by the sheriff prior to its completion; and 3) whether the dollar amount of the judgment is supported by the evidence. Because we hold in favor of the Commission on the first issue, we do not address the last two issues raised by the Commission.
It is apparent from a reading of the record that the trial judge applied the reasonableness standard of review in determining that the sheriff's budgeting requests were reasonable, and it is also apparent that the trial judge, applying this standard of review of the Commission's action, found that the action of the Commission in denying the sheriff's requests was unreasonable in light of the totality of the circumstances.
We conclude that the learned trial judge, in reviewing the action of the Commission, applied the wrong standard of review. In this Court's recent case of Etowah County Comm'n v. Hayes, 569 So. 2d 397 (Ala.1990), this Court stated the standard, as follows:
569 So. 2d at 398.
The deputies argue that our review should be governed by the standard generally applicable to cases in which the testimony is heard ore tenus.[4] They argue that conflicting testimony was presented relating to the reasonableness of the Sheriff's budget request, and, consequently, that the trial judge's determination that the Commission acted unreasonably should be upheld. In arguing that we should review the findings of fact made by the trial judge with a presumption of correctness, the deputies necessarily contend that the trial judge was interpreting the provisions of statutory law when he made his findings. They rely heavily upon the provisions of law that impose on the sheriff certain duties, such as those set out in Ala. Code 1975, § 36-22-3, and, citing § 11-12-15, they argue that the compensation for deputy sheriffs and jailers is a "preferred claim" and that "the Legislature has mandated that overtime earned by deputies and jailer is to be paid. § 36-21-4.1, Code of Alabama (1975)."
We are not unmindful of the duties and obligations placed upon the sheriff's departments throughout the state, and the provisions of law that make certain claims "preferred claims." However, we are also not unmindful that county commissions have the duty and responsibility for budgeting and appropriating operational funds for several executive departments of county government. When this Court has been faced with similar arguments involving a similar confrontation between a sheriff's department and a county commission, it has specifically held that the judiciary "is limited to adjudication of constitutional challenges, allegations of statutory violations, and charges of conduct so arbitrary as to contravene lawfully constituted authority." Etowah County Comm'n, 569 So. 2d at 398.
In reviewing the law, we note initially that a deputy sheriff is not entitled to claim any overtime in the absence of a *1073 statute or contract authorizing it, Hale v. Randolph County Comm'n, 423 So. 2d 893 (Ala.Civ.App.1982), but we find that the Alabama legislature has authorized the payment of overtime pay to deputy sheriffs. Ala.Code 1975, § 36-21-4.1. That statute states:
Citing this statute, the deputies argue that the legislature has mandated that deputies be paid for overtime worked; the order of the trial judge indicates that he interpreted this statute as do the deputies. We do not so interpret the statute, and did not so interpret it in Etowah County Comm'n. Clearly, the statute authorizes payment for overtime, but we do not construe it as mandating that deputies be compensated for all overtime authorized by the sheriff, even if sufficient funds have not been budgeted or appropriated for use by the sheriff's department. The Court of Civil Appeals, several years ago, correctly interpreted this statute to be mandatory only "in the sense that a deputy sheriff may now be compensated for overtime work; whereas before he or she could not be so compensated." Hale at 893.
Ala.Code 1975, § 11-8-3, sets out many of the duties of county commissions:
Ala.Code 1975, § 11-8-3. (Emphasis added.)
As stated above, this Court has on previous occasions construed the provisions of law relating to the payment of overtime compensation for deputy sheriffs, and this Court has generally held that a commission cannot refuse to appropriate any money for the payment of overtime work by deputy sheriffs. See Ball v. Escambia County Comm'n, 439 So. 2d 148 (Ala.1983), expressly approving the Court of Civil Appeals' holding in Hale, that the Randolph County Commission could not prevent deputies from receiving pay for their overtime work; but the Court of Civil Appeals also held in Hale that the overtime must be paid for out of the funds appropriated to the sheriff's department. That court stated:
Hale at 896. Again, we agree with this conclusion of the Court of Civil Appeals.
The year after the Court of Civil Appeals decided Hale, this Court addressed the question whether the Escambia County Commission, through its budget, could limit the amount of overtime pay for its deputy sheriffs. Ball v. Escambia County Comm'n, 439 So. 2d 148 (Ala.1983). The Escambia County Commission budgeted $11,000 for a year's overtime by deputies; that amount was $3,500 less than the minimum recommended by the sheriff. The Court, affirming a summary judgment for both the sheriff and the Escambia County Commission, held that the statute did not mandate that the Commission "rework the budget and prorate other county departments to pay for the expenses of the sheriff's department." 439 So. 2d at 150. This is exactly what the lower court in this case has ordered the Geneva County Commission to do.
In Ball, this Court stated it most clearly when it said:
439 So. 2d at 150.
Recently, this Court has addressed the appropriate role of the judiciary where a dispute arises in the context of a confrontation between the other two branches of governmentthe executive and the legislative. See Etowah County Comm'n v. Hayes. In that case, the Court held that "the Commission's withholding of all funds... was an arbitrary and capricious act" and affirmed the judgment requiring the Etowah County Commission to reinstate funding withheld from the sheriff's department. 569 So. 2d at 398.
In the present case, the deputy sheriffs argued that the overall appropriation to the sheriff's department by the Commission was unreasonable, and the trial court agreed with them. This Court addressed a similar claim in the Etowah County case. There, this Court did not reject the "reasonableness" test, but emphasized that the application of that test does not focus solely upon what is reasonable from the sheriff's viewpoint, but also considers "how that request impacts upon ... the totality of the County's budget." Id.
In the present case, the Commission received budget requests from the sheriff's department, and several witnesses testified that none of the requests was "unreasonable" from the standpoint of the department. However, it is the duty of the Commission to determine in its discretion not only what is reasonable, but also how a particular request affects the total county budget.
*1075 Considering the statute at issue here and considering our earlier cases, we hold that the trial court erred in its determination that the Geneva County Commission was not entitled to the relief prayed for in its complaint, and we are compelled to hold that the learned trial judge, although apparently trying to do what he considered to be just, nevertheless encroached upon the budgeting authority of the Geneva County Commission. We find no evidence to support a finding by the trial judge that the Commission appropriated an unreasonable amount of money to the sheriff's department and thereby acted arbitrarily or capriciously. Without such evidence and a finding by the trial judge to that effect, we are compelled to reinstate the determination of the Commission. We note that the state legislature has conferred upon a county commission the power to appropriate money from the county treasury, and we hold that that power includes the power to establish the budgetary appropriations regarding overtime by county employees, but that the legislature has not mandated that overtime worked by deputy sheriffs be compensated by the county commission after those funds appropriated to the sheriff's department has been expended. We reiterate the holding in Morgan County Comm'n v. Powell that "the true intent of the legislature was to place in the county governing body, which body appropriates the public monies, the final say-so in the disposition of such funds, and thus centralize in the legislative body a function lawfully and traditionally delegated to that body by the legislature." 292 Ala. at 310, 293 So. 2d at 839.
"This is not to say, of course, that the Commission is permitted to exercise unfettered discretion to reject `reasonable' budget requests for adequate performance of essential functions of government." Etowah County Comm'n v. Hayes, at 399. See also, Morgan County Comm'n v. Powell. The Commission is legally mandated to follow statutory guidelines and to establish funding priorities accordingly, but the judiciary is not given the power to substitute its determinations for those of the commission. See Shelby County Comm'n v. Smith, 372 So. 2d 1092 (Ala.1979); and Hale, 423 So. 2d 893.
We hold, therefore, that the legislature has not mandated that the Geneva County Commission pay a specific amount of money to the deputy sheriffs. The legislature has, however, directed the Commission to set apart a "sufficient fund" (Ala.Code 1975, § 11-12-15) to pay for overtime work by deputy sheriffs when it is performed at the direction of the sheriff; but that fund cannot be open-ended. See § 36-21-4.1.
This opinion, and those that have preceded it, should give county commissions and sheriffs adequate guidelines to follow when faced with what has become apparently a troublesome matter for county governments.
The judgment is reversed and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Other cases involving the same issue are Etowah County Comm'n v. Hayes, 569 So. 2d 397 (Ala.1990); Ball v. Escambia County Comm'n, 439 So. 2d 148 (Ala.1983); Hale v. Randolph County Comm'n, 423 So. 2d 893 (Ala.Civ.App. 1982); and see also Morgan County Comm'n v. Powell, 292 Ala. 300, 293 So. 2d 830 (1974).
[2] The sheriff had exceeded the amount of overtime compensation budgeted and appropriated to his department by the County Commission.
[3] That the separation of powers doctrine is applicable to this dispute between the sheriff and the County Commission seems unquestioned:
"While many of the cases concerning the point now contain statements relative to the exercise of legislative, executive, or judicial power on the state level, no valid reason appears to deny the application of these same principles on a lower or county level. No distinction is made therefore in our discussion of the powers and limitations of the functions of the three branches of government whether on the state level or county level."
Morgan County Comm'n v. Powell, 292 Ala. 300, 305, 293 So. 2d 830, 834 (1974).
[4] The Sheriff cites Meadows v. First National Bank of Ashford, 568 So. 2d 303 (Ala.1990). | April 26, 1991 |
9bbe4f26-9fb6-48f9-ab33-12fc46b42d7c | Gold Kist, Inc. v. Tedder | 580 So. 2d 1321 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 1321 (1991)
GOLD KIST, INC.
v.
Mary TEDDER.
Mary TEDDER
v.
GOLD KIST, INC.
89-0579, 89-0940.
Supreme Court of Alabama.
April 26, 1991.
Rehearing Denied May 24, 1991.
John W. Clark, Jr., and Wade S. Anderson of Clark & Scott, Birmingham, for appellant/cross-appellee.
T.J. Carnes of Carnes & Carnes, Albertville, for appellee/cross-appellant.
KENNEDY, Justice.
Mary Tedder filed an action against Gold Kist, Inc., alleging negligence and/or wantonness in the operation of a motor vehicle. Tedder's automobile was struck by an automobile driven by Danny Williams, who Tedder alleged was attempting to avoid a collision with Gold Kist's truck as the truck entered the highway from a dirt road. The claims were submitted to a jury, which returned a verdict for Gold Kist. Tedder filed a motion for a new trial, based on several grounds. On November 15, 1989, the trial court granted the motion on the ground that the jury may have been unlawfully influenced by an unadmitted exhibit that was left in the courtroom while the jury deliberated there. Gold Kist appealed from the trial court's order of a new trial. Tedder cross-appealed from the trial court's failure to base its grant of a new trial on the grounds that it had improperly instructed the jury and on a determination that the verdict was against the weight and preponderance of the evidence.
The accident that is the basis of this appeal occurred in October 1987. Tedder underwent a hip replacement in September 1988. It is undisputed that the ultimate cause of the hip replacement was vascular necrosis, a process that decreases the blood supply to the bone. As a defense, Gold Kist attempted to prove that Tedder had injured her hip in a previous automobile accident; that the vascular necrosis had begun to affect Tedder's hip before the *1322 accident that is the basis of this appeal; and that Tedder's alcoholism, which is undisputed, also contributed to the condition.
During the trial, counsel for Gold Kist constructed a chronology of medical events from the time of the first automobile accident to the time of the hip replacement operation. The list was on a large paper tablet and was placed on an easel in the courtroom. On appeal, Gold Kist states that counsel for Tedder also made notations on the list. In any event, the list was referred to during trial but was never offered or admitted into evidence; however, it was left within sight of the jury during its deliberations. The list was as follows:
In her motion for new trial, Tedder argued that the jury had been impermissibly influenced by the list. In its order granting a new trial, the trial court stated:
The granting or denial of a motion for new trial rests largely within the discretion of the trial court, and the exercise of that discretion carries with it a presumption of correctness that will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error. Moorman Manufacturing Co. v. Coan, 435 So. 2d 106 (Ala.Civ.App.1983); Holcombe v. Blackwell, 382 So. 2d 566 (Ala. Civ.App.1980).
It is also within the trial court's discretion to decide whether to allow evidence to go to the jury room, where it might be given undue emphasis and inordinate weight. Meadows v. Coca-Cola Bottling, Inc., 392 So. 2d 825 (Ala.1981); Ott v. Fox, 362 So. 2d 836 (Ala.1978). In Meadows, this Court held that, although a formal proffer of a blackboard into evidence was not necessarily required, the trial court did not abuse its discretion by refusing to allow a blackboard to be taken into the jury room. Accordingly, in this case, it was not error to grant a new trial because the easel had remained in the courtroom with the jury while it deliberated. Furthermore, the trial court had instructed the parties to remove their materials from the courtroom before the jury used that room to deliberate. Thus, we further hold that the trial *1323 court did not err in granting a new trial where counsel for defendant did not abide by the trial court's instruction and the trial court concluded, based on Dumas v. State, 491 So. 2d 1083 (Ala.Cr.App.1986), that the jury might have been unlawfully influenced by having the easel in the room where it deliberated.
In her cross-appeal, Tedder argues that the trial court improperly instructed the jury and that the verdict was against the weight and preponderance of the evidence. However, Tedder's notice of appeal, filed on January 18, 1990, was not timely. The trial court entered its order granting a new trial on November 15, 1989, and Gold Kist filed its notice of appeal on December 27, 1989. Timely filing of a notice of appeal is jurisdictional. Spina v. Causey, 403 So. 2d 199 (Ala.1981); Allen v. Holmes, 439 So. 2d 166 (Ala.Civ.App.1983). Rule 4(a)(1), A.R.App.P., requires that, subject to certain enumerated exceptions, a notice of appeal be filed within 42 days of the date of the judgment appealed from. Allen v. Holmes, supra. Certain post-trial motions suspend the time for taking an appeal. Rule 4(a)(3) provides:
Tedder failed to file her notice of appeal within 42 days of the filing of the trial court's order granting a new trial.
Rule 4(a)(2), A.R.App.P., provides:
Tedder did not file her notice of appeal within 14 days of the date on which Gold Kist's notice of appeal was filed. Her failure to file a notice of appeal within the time prescribed by Rule 4 is fatal, and we must dismiss the appeal ex mero motu. See Allen v. Holmes, supra.
The order granting a new trial is due to be, and it is hereby, affirmed. The plaintiff's cross-appeal is dismissed.
89-0579AFFIRMED.
89-0940DISMISSED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | April 26, 1991 |
bbe5673f-909c-4704-93bc-5a2a4d7bb36a | Pearce v. Schrimsher | 583 So. 2d 253 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 253 (1991)
Charles L. PEARCE and Jolyn W. Pearce
v.
James Bruce SCHRIMSHER.
89-1832.
Supreme Court of Alabama.
May 3, 1991.
W. Clint Brown, Jr., Decatur, for appellants.
M. Keith Gann of Huie, Fernambucq & Stewart, Birmingham, for appellee.
HOUSTON, Justice.
This is a legal malpractice action. On May 14, 1990, Charles L. Pearce and his wife, Jolyn W. Pearce, filed a complaint in Madison Circuit Court against James B. Schrimsher, a practicing attorney in Huntsville, Alabama, alleging that they had incurred damages by closing a real estate transaction in reliance on an erroneous title opinion that had been provided to them by Schrimsher. The trial court dismissed the complaint on the ground that the Pearces' claim was barred by the statute of limitations set out in Ala.Code 1975, § 6-5-574 (part of the Alabama Legal Services Liability Act, Ala.Code 1975, § 6-5-570 et seq., referred to hereinafter as "the Act"). The Pearces appealed.
The standard of review applicable to motions to dismiss is well settled:
Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985). (Emphasis in original.)
The Pearces' action was commenced on May 14, 1990, almost five years after July 3, 1985, the date on which the transaction was allegedly closed and their cause of action would have accrued, and more than two years after April 12, 1988, the effective date of the Act; therefore, it is time-barred under § 6-5-574. See Michael v. Beasley, 282 So. 2d 245 (Ala.1991). Accordingly, the dismissal of the Pearces' complaint was proper.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur. | May 3, 1991 |
1c3d10f0-acf3-429b-bf67-eb8c2efeba38 | Evans v. City of Huntsville | 580 So. 2d 1323 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 1323 (1991)
Anthony L. EVANS
v.
CITY OF HUNTSVILLE.
89-1089.
Supreme Court of Alabama.
April 26, 1991.
Rehearing Denied May 31, 1991.
*1324 Fulton S. Hamilton, Huntsville, for appellant.
Clyde Alan Blankenship, City Atty., and Mary Ena J. Heath, Asst. City Atty., Huntsville, for appellee.
ALMON, Justice.
Anthony L. Evans appeals from a judgment by the Circuit Court of Madison County upholding the termination of his employment with the City of Huntsville ("the City"). The question presented is whether the procedure used by the City to effect Evans's termination complied with the requirements of due process.
Evans had worked in the City's waste treatment plant for approximately four years before he was terminated. The incident that gave rise to his termination occurred after a meeting between Evans and two of his supervisors, J.S. Dickinson and Willie Christa. Apparently, Evans and Dickinson became angry with one another during that meeting and Evans left, despite being ordered by Dickinson to remain. Evans then went to the employees' break room and, according to affidavits and testimony from coworkers, threw his hard hat into a corner and began cursing his supervisors. Those curses included threats of physical harm to Dickinson and Christa. Evans's behavior was reported to Dickinson, who then filed the charges that ultimately led to Evans's termination.
Pursuant to the policies set out in its Employee's Handbook, the City gave Evans written notice of the charges against him and informed him that an evidentiary hearing before an impartial hearing officer had been scheduled. The purpose of that hearing was to determine if Evans had violated any of the Handbook's rules governing employee conduct. The hearing officer's function is to make findings of fact, not to recommend or to assess punishment; those decisions are left to the employee's supervisor or department head.
Evans was represented by an attorney at the hearing. He was allowed to testify, to present evidence, to call witnesses, and to cross-examine witnesses called by the City. Dickinson represented the City at the hearing. After considering the testimony and evidence presented by the parties, the hearing officer issued findings of fact, reproduced in relevant part, below:
After receiving the hearing officer's findings of fact, Dickinson terminated Evans's employment. Evans appealed his termination to the Huntsville City Council, and that body, after considering arguments from both parties, upheld the termination.
*1325 Evans appealed the City Council's decision to the circuit court. Because there is no statutory right to appeal decisions of the City Council in employment cases, the circuit court properly utilized common law certiorari to review the decision. Personnel Bd. of Jefferson County v. Bailey, 475 So. 2d 863, 867 (Ala.Civ.App.1985). Therefore, its scope of review was limited to determining if the decision to terminate Evans was supported by legal evidence and if the law had been correctly applied to the facts. Ex parte Bracken, 263 Ala. 402, 405, 82 So. 2d 629, 631 (1955); Bailey, supra, at 868. In addition, the court was responsible for reviewing the record to ensure that the fundamental rights of the parties, including the right to due process, had not been violated. Ex parte Greenberg, 395 So. 2d 1000, 1002 (Ala.1981). The court held that the City had acted properly and upheld its decision to terminate Evans's employment. Evans appeals.
Evans argues that Dickinson's involvement in each stage of the termination proceedings was so pervasive that it violated his right to procedural due process. In essence, he contends that as a result of being a "victim" of Evans's alleged insubordination, Dickinson could not fairly perform his function as the City's representative during the evidentiary hearing and, most importantly, could not make an unbiased decision regarding the degree of punishment that was appropriate after he had received the hearing officer's findings of fact.
It is settled that the right to a fair trial, including the right to an unbiased decisionmaker, applies to administrative agencies that adjudicate as well as to courts. Chandler v. City of Lanett, 424 So. 2d 1307, 1310-11 (Ala.1982); Ex parte Greenberg, supra. In Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456, 1464, 43 L. Ed. 2d 712 (1975), the United States Supreme Court stated that "[n]ot only is a biased decisionmaker constitutionally unacceptable but `our system of law has always endeavored to prevent even the probability of unfairness.' " (Citation omitted.) In Withrow, the Court noted a number of situations where the probability of bias on the part of the arbiter or decisionmaker was "too high to be constitutionally tolerable." Those situations included ones where, as in the instant case, the judge or decisionmaker had been the target of personal abuse or criticism from the person before him. Withrow, supra, at 47. See also, Ex parte Greenberg, supra.
In response, the City argues that its procedures adequately protected Evans's right to a fair hearing. Specifically, the City contends that because Dickinson's decision to terminate Evans was based on findings of fact that were made by an impartial hearing officer and was then subject to review by the City Council, there were adequate "checks and balances" to prevent any prejudice that could have resulted from Dickinson's possible bias. In addition, the City argues that Dickinson's decision to terminate Evans was an administrative act, not a quasi-judicial act, and, therefore, that the prohibition against a probability of bias on Dickinson's part does not apply.
We do not agree. Although the disciplinary procedure adopted by the City would, in most cases, satisfy the requirements of due process, it did not in this case. The determination as to whether due process has been complied with, as in all determinations involving issues of constitutional law, must be based on the circumstances present in the case before the court. United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 522, 4 L. Ed. 2d 524 (1960); State v. Woodruff, 460 So. 2d 325, 327 (Ala.Crim. App.1984).
The decision regarding the type of discipline to be applied in Evans's case, once it had been determined that he had violated rules set out in the Handbook, appears to have been left to Dickinson. The range of possible discipline was not limited to termination, but included reprimand, demotion, and suspension for various lengths of time. Because the circumstances of this case placed Dickinson in the unusual position of being the victim, prosecutor, and judge in Evans's case, the probability that his decision would be biased and unfair was too high and amounted to a denial of due process. *1326 Withrow, supra; Greenberg, supra. In light of our determination of this issue, we do not reach the other issues raised by Evans.
For the reasons stated above, the judgment is reversed, and this cause is remanded to the circuit court with directions to enter an order consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | April 26, 1991 |
07d771bc-7744-4349-afc2-92357516031c | Ex Parte Parker | 581 So. 2d 1216 | 1900944 | Alabama | Alabama Supreme Court | 581 So. 2d 1216 (1991)
Ex parte Dale Thomas PARKER.
(Re Dale Thomas Parker v. State).
1900944.
Supreme Court of Alabama.
April 26, 1991.
Richard M. Kemmer, Jr. of Phillips, Ezell and Kemmer, Phenix City, for appellant.
Robert E. Lusk, Jr., Asst. Atty. Gen., for appellee.
Prior report: Ala.Cr.App., 581 So. 2d 1211.
INGRAM, 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 ALMON, ADAMS and STEAGALL, JJ., concur. | April 26, 1991 |
0443e35f-c0c7-4626-b2ca-389f7d763ac7 | American Standard v. GOODMAN EQUIPMENT | 578 So. 2d 1083 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1083 (1991)
AMERICAN STANDARD, INC., and Westinghouse Air Brake Company
v.
GOODMAN EQUIPMENT COMPANY.
89-1710.
Supreme Court of Alabama.
May 3, 1991.
Keith J. Pflaum of Porterfield, Harper & Mills, Birmingham, for appellants.
Timothy A. Palmer of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
MADDOX, Justice.
This is a declaratory judgment action in which the issue is whether a predecessor corporation can be held liable for the payment of damages in the event a judgment *1084 is entered against the successor corporation in a products liability action involving a product manufactured by the original corporation.
In the underlying products liability action, Lee Earnest Hardy and Ella Belle Hardy sued Goodman Manufacturing Company, Mancha Storage Battery Locomotive Company (a division of Goodman Manufacturing Company), Westinghouse Air Brake Company ("WABCO"),[1] and Goodman Equipment Corporation, seeking to recover damages based on personal injuries caused to Lee Hardy by an allegedly defective mining locomotive known as a "dinky" that was used in the operations at American Cast Iron Pipe Company ("ACIPCO"), where Hardy worked. The products liability action, Hardy v. Goodman [CV-87-3766], which includes counts alleging negligence, wantonness, and violations of the Alabama Extended Manufacturer's Liability Doctrine, is pending in the Jefferson County Circuit Court.
Goodman Equipment filed this action for a declaratory judgment under Ala.Code 1975, § 6-6-223, against Mangood Corporation (formerly Goodman Manufacturing Company) and WABCO, seeking a declaration that WABCO, Mangood, or both, were required to defend, indemnify, and hold harmless Goodman Equipment from the claims asserted by the Hardys.[2] Goodman Equipment later filed a motion for summary judgment, which it was granted, and this appeal followed.
Through discovery, it was determined that the dinky that is the subject of the underlying products liability action was manufactured by Mancha Storage Battery Locomotive Company and was sold to ACIPCO prior to July 10, 1943.
In 1965, Goodman Manufacturing sold certain of the assets of its mining and rock crushing machinery and industrial manufacturing business to WABCO, including the inventory and the right to use the names Goodman Manufacturing Company, Goodman Manufacturing Company of Canada Limited, Diamond Iron Works Division, and Mancha Locomotive Division. Goodman also agreed not to compete in the manufacture and sale of the same type products previously manufactured by Goodman Manufacturing.
After the transfer of assets, the residual business of Goodman Manufacturing Company continued in the name of Mangood Corporation. Under the terms of the 1965 purchase agreement, Goodman Manufacturing (Mangood Corporation), as seller, specifically agreed, as follows:
In 1971, WABCO conveyed its interest in the mining equipment and property it had acquired from Goodman Manufacturing to Goodman Equipment Corporation. The 1971 purchase agreement states as follows:
*1085 The trial court granted Goodman Equipment's motion for summary judgment, and declared that, pursuant to the indemnity provisions of the 1971 purchase agreement, if Goodman Equipment is liable to the Hardys in the underlying products liability case, WABCO would be obligated to indemnify and hold Goodman Equipment harmless from the claims asserted by the Hardys regarding the allegedly defective "dinky," the court specifically stating as follows:
WABCO appeals, and summarizes its argument as follows:
The following illustrates the chronological order of the various events for a better understanding of this case:
WABCO admits that, pursuant to the terms of the 1971 purchase agreement, it would be required to indemnify and hold Goodman Equipment harmless from the claims of Mr. and Mrs. Hardy if it had manufactured the dinky in question. However, WABCO contends that because the dinky was manufactured by Goodman Manufacturing Company prior to 1943, "it is not responsible for the allegedly defective product" because it did not purchase Goodman Manufacturing until July 1965, and in the 1965 purchase agreement it expressly disclaimed any responsibility for personal or property damage caused by the conduct of Goodman Manufacturing prior to the closing date of its purchase of the company.
The indemnity clause of the 1971 agreement between WABCO and Goodman Equipment specifically provides that WABCO will indemnify and hold Goodman Equipment harmless from "any and all liabilities ... whether absolute, accrued, contingent, or otherwise." (Emphasis added.) When a contract, by its terms, is plain and free from ambiguity, it must be enforced as written. See Gray v. Reynolds, *1086 514 So. 2d 973 (Ala.1987), appeal after remand, 553 So. 2d 79 (Ala.1989).
The purchase agreement between WABCO and Goodman Equipment plainly provides that WABCO would indemnify Goodman Equipment for "any and all liabilities" it inherited as a result of the sale. As the Court said in Ivey v. Wiggins, 276 Ala. 106, 159 So. 2d 618 (1964), "[t]he word `all,' in ordinary use, is wholly inclusive as we understand it." We hold that the trial court did not err in concluding that, pursuant to the provisions of the purchase agreement, WABCO owes a duty to indemnify and hold harmless Goodman Equipment Corporation for the underlying tort action involving the claims of Mr. and Mrs. Hardy. It is unnecessary to us to address whether Goodman Manufacturing, by contract, agreed to indemnify WABCO for any "personal injuries ... arising out of the conduct of [Goodman Manufacturing's] business prior to the closing date" of the sale.
While not specifically pleading it in its complaint, Goodman Equipment argued in its memorandum in support of its motion for summary judgment before the trial court and argued on appeal, that Goodman Equipment could be held liable only as a successor corporation and that liability would necessarily arise from WABCO's continuity of the enterprise of Goodman Manufacturing Company.[3] We agree with the court below that WABCO has a duty to indemnify Goodman Equipment for any liability it may have to the Hardys in the underlying products liability action.
The judgment of trial court is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] In 1968, WABCO became a wholly owned subsidiary of American Standard, Inc., and merged with American Standard, Inc., in 1979. To avoid any confusion, we will refer to the appellants as WABCO.
[2] The claims against Mangood Corporation in Goodman Equipment's complaint for declaratory judgment and WABCO's cross-claim for declaratory judgment were dismissed with prejudice on June 8, 1990.
[3] The liability of a successor corporation under corporation law depends upon the form of the acquisition. Regardless of the denomination of the transaction by the parties, if the acquisition constitutes a de facto merger of the two corporations, the successor remains liable for its predecessor's liabilities. Rivers v. Stihl, Inc., 434 So. 2d 766, 771 (Ala.1983).
In Andrews v. John E. Smith's Sons Co., 369 So. 2d 781 (Ala.1979), this Court adopted the factors enumerated in Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873 (1976), to rule that a transferee may be held liable for its predecessor's liabilities "where the totality of the transaction demonstrates a basic continuity of the enterprise." Andrews at 785.
The factors considered by the Michigan Supreme Court in Bituminous Casualty Co. were:
"1) There was basic continuity of the enterprise of the seller corporation, including, apparently, a retention of key personnel, assets, general business operations and even the [seller's] name.
"2) The seller corporation ceased ordinary business operations, liquidated, and dissolved soon after distribution of consideration received from the buying corporation.
"3) The purchasing corporation assumed those liabilities and obligations of the seller ordinarily necessary for the continuation of the normal business operations of the seller corporation.
"4) The purchasing corporation held itself out to the world as the effective continuation of the seller corporation."
Bituminous Cas. Co., 397 Mich. at 430, 244 N.W.2d at 883-84 (cited with approval in Turner v. Wean United, Inc., 531 So. 2d 827 (Ala.1988). | May 3, 1991 |
46b0fa82-3f16-4676-82cd-d47c7356fe53 | Williams v. Hughes Moving & Storage Co. | 578 So. 2d 1281 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1281 (1991)
Robert L. WILLIAMS
v.
HUGHES MOVING & STORAGE COMPANY, INC.
89-1298.
Supreme Court of Alabama.
April 26, 1991.
*1282 J. Allen Brinkley and Richard Chesnut of Brinkley, Chesnut & Aldridge, Huntsville, for appellant.
Rennie S. Moody and James E. Davis, Jr. of Lanier, Ford, Shaver & Payne, Huntsville, for appellee.
ADAMS, Justice.
Robert L. Williams appeals from a judgment based on a directed verdict entered by the Madison Circuit Court on his claims of negligence and wantonness against Hughes Moving & Storage Company, Inc. (hereinafter "Hughes"). We reverse and remand with instructions.
The facts relevant to this appeal are as follows:
On the night of December 19, 1987, Williams was driving his vehicle on Shepherd Drive in Huntsville, Alabama. Ollie Green was a passenger in that vehicle. As they approached the intersection of Shepherd Drive and Vining Avenue, Green observed what appeared to be a white pickup truck moving backward along a driveway. Williams also noticed the truck and slowed his speed. The truck picked up speed as it came along the driveway. Green testified that he could hear the tires making a "spinning noise." Williams stopped his vehicle as the truck approached the street. Williams alleged that when the truck reached the street, it turned and collided with his vehicle.
Williams was injured in the collision and as a result his shoulder required surgery. The white pickup truck bore the name "Hughes Moving & Storage, Inc." Neither Williams nor Green saw a driver in the truck. Police officers on the scene determined that the truck had a standard transmission and that the gearshift lever was in the "neutral" position.
The truck belonged to Hughes, and the driveway where the truck had been parked was at the home of Henry Birt, who at the time of the accident was employed by Hughes as a warehouseman and dispatcher. His job often required him to use a company truck. On Friday, December 18, 1987, Birt's work had required him to use the truck that was involved in the accident. He had apparently been out most of the day with the truck and had returned to his home with the truck rather than take it back to the Hughes lot. There was evidence that Hughes made no efforts to ascertain the whereabouts of this truck over the weekend.
Although Hughes's policy was for company vehicles to be returned to the office after each day's work, Birt, on several occasions, had driven a truck home. Hughes required, however, that trucks be returned even if the parking lot was locked, in which case the truck was to be left outside the lot and a security guard would bring the truck into the lot later. Hughes's policy toward employees who took company vehicles home without specific authorization was to terminate and prosecute them. Birt, however, was apparently never disciplined in any manner for taking company trucks home.
On June 28, 1988, Williams sued Hughes, alleging negligence and wantonness in allowing its truck to roll from the driveway and collide with his car. Williams sought $500,000 in damages and costs. Williams later amended his complaint to name Birt as a defendant. However, Williams was never able to achieve service of process on Birt. Hughes moved for a summary judgment at the outset. Its motion was denied, and the case went to trial. After all the evidence was presented, Hughes moved for *1283 a directed verdict, claiming that Williams had failed to present sufficient evidence. The trial court granted Hughes's motion.
On appeal, Williams raises two issues: First, whether it was proper for the trial judge to direct a verdict; and second, whether the trial judge abused his discretion by not allowing into evidence a photograph of Williams's shoulder taken during surgery. Williams argues that he presented sufficient evidence of Hughes's negligence for the claim to be submitted to the jury. Williams asks this Court to reverse the judgment of the circuit court and remand the case for a new trial. He also asks, in case this Court grants a new trial, that it also order that the photograph be allowed into evidence.
Williams first presents us with a summary of the evidence he presented at trial and argues that his evidence was sufficient for his claims to be submitted to the jury. Williams also argues that his evidence, when coupled with an administrative presumption of agency, creates a jury question as to whether Birt was operating the truck in the line and scope of his employment.
At the outset, we must address the standard that Williams's evidence must meet in order to create a question for the jury. For Williams's claims to be submitted to the jury, he must produce "substantial evidence" of each element of his claims. Ala. Code 1975, § 12-21-12. In West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989), this Court defined "substantial evidence" as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved."
Thus, because Williams's claims against Hughes are based on the doctrine of respondeat superior, the burden is on Williams to present substantial evidence that the collision occurred while Birt was acting within the line and scope of his employment. We conclude that Williams's evidence was sufficient to create a jury question.
Hughes argues that because Birt took the vehicle home with him, in direct violation of company policy, he cannot be considered to have been acting in the line and scope of his employment. The mere fact that Birt was acting against company policy is not, however, conclusive as to the question of Birt's status at the time of the accident. In Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297 (Ala.1986), this Court examined a similar situation of an employee acting contrary to company policy. In Lawler Mobile Homes, the company was held liable for misrepresentation where a salesman signed a contract that an officer of the company was supposed to sign, although the salesman had no authority to do so and the contract stated that it was not valid unless signed by an officer of the company. In Lawler Mobile Homes, we stated:
492 So. 2d at 305. (Citations omitted.)
The case of Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So. 2d 638 (1970), provides another example of when an employee is considered to be acting within the scope of his employment. In that case, the plaintiff's intent was killed by an employee returning to the company to pick up additional supplies to complete a job. The employee had been drinking heavily when the accident occurred. In affirming the judgment against the company, this Court stated:
285 Ala. at 401, 232 So. 2d at 642. See also Naber v. McCrory & Sumwalt Constr. Co., 393 So. 2d 973 (Ala.1981).
The mere fact that Hughes had a policy expressly prohibiting employees from taking vehicles home does not necessarily mean Birt was acting outside the scope of his employment at the time of the accident. Williams's evidence showed that Birt, on several prior occasions, had, contrary to company policy, taken vehicles home and that on those occasions no action was taken against him. Other evidence showed that Hughes did not attempt to locate the truck over the weekend after Birt had failed to return it to the lot after work on Friday, and that Birt's work often required the use of a company truck at several locations on any given day. When considered as a whole, the evidence would permit the inference that Birt was acting within the line and scope of his employment when he took this truck home and, thus, presented a question for the jury.
The administrative presumption of agency is well stated in Alabama Pattern Jury Instructions: Civil (APJI) 26.13, and that presumption provides additional support for Williams's argument that his claims should have been submitted to the jury. APJI 26.13 states:
This instruction correctly states the law. See Perdue v. Mitchell, 373 So. 2d 650 (Ala. 1979). The notes and references that accompany this instruction are helpful to understanding the meaning of the instruction and the effect of the presumption. These notes and references read as follows:
See also Felder v. Hill, 447 So. 2d 178 (Ala. 1984); Goggins v. Miller Transporters, Inc., 290 Ala. 326, 276 So. 2d 571 (1973); Smith v. Johnson, 283 Ala. 151, 214 So. 2d 846 (1968). In Perdue v. Mitchell, 373 So. 2d 650 (Ala.1977), this Court examined the effect of the administrative presumption:
Ownership of the vehicle in this case was undisputed. Therefore, it was Hughes's burden to prove that Birt was not acting within the line and scope of his employment. In order for Hughes to rebut the presumption and prevent submission of Williams's claims to a jury, its evidence must eliminate any question as to whether Birt was acting in the scope of his employment by having this truck at his home when the accident occurred. Hughes's only evidence that Birt was not acting in the scope of his employment was the evidence that company policy prohibited employees from taking vehicles home, and Hughes argues that, because Birt violated this policy by taking the truck home on Friday, he was acting outside the scope of his employment. As we have stated, this alone is not determinative of Birt's status. Furthermore, it falls far short of rebutting the presumption that Birt was acting within the scope of his employment, because of the fact that Hughes had not enforced the policy in the past, with respect to Birt, but had virtually condoned Birt's practice of taking company vehicles home. Because Hughes's evidence did not rebut that administrative presumption of agency, Williams's evidence was sufficient to raise the inference that Birt was within the scope of his employment in taking the truck home. Therefore, the case should have been submitted to the jury.
With respect to the photograph of Williams's shoulder, we point out that the trial court, in ruling on the admissibility of evidence, is given wide discretion. Absent a clear abuse of that discretion, this Court will not overturn the trial court's ruling. In the present case, Williams offered a photograph of his shoulder taken while he was undergoing surgery. The trial judge sustained Hughes's objection to this photograph. Williams also offered the testimony of his doctor who performed the surgery. We see no real benefit to be derived from admitting this photograph, because it added nothing to the doctor's testimony.
We conclude that the trial court did not abuse its discretion in excluding this photograph.
The trial court's judgment, based on the directed verdict in favor of Hughes, is reversed and the cause is remanded for a new trial on Williams's claims against Hughes.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and SHORES, KENNEDY and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent. | April 26, 1991 |
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