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dbfa74ad-7622-479e-a99e-f7fd98477af2 | Withers v. State Farm Mut. Auto. Ins. | 580 So. 2d 582 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 582 (1991)
Greathel Routledge WITHERS
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
89-1767.
Supreme Court of Alabama.
April 26, 1991.
*583 Lanny S. Vines and D. Bruce Petway of Emond & Vines, Birmingham, for appellant.
Edgar M. Elliott III and Deborah Alley Smith and Rhonda K. Pitts of Rives & Peterson, Birmingham, for appellee.
INGRAM, Justice.
The plaintiff, Greathel Routledge Withers, appeals from a summary judgment entered in favor of State Farm Mutual Automobile Insurance Company in her action claiming that her now deceased son, who lived primarily with his father after his parents' divorce, was covered under the uninsured/underinsured provisions of her automobile insurance policy with State Farm.
The facts requisite to an understanding of the issues involved may be summarized as follows: Ms. Withers and James A. Routledge were divorced in December 1983. Two children, Shane and Douglas, were born during the marriage. The divorce judgment provided, in part, that although the parents would be awarded joint custody of the children, they would reside primarily with their father.
In December 1988, Douglas, age 15, died as a result of injuries sustained as a passenger in a one-vehicle accident. Routledge and Ms. Withers filed separate suits against the driver of the vehicle, each claiming damages for the wrongful death of Douglas. Each parent also filed a claim seeking underinsured motorist coverage under the parent's individual policy with State Farm. All of the policies issued to Ms. Withers and Routledge included underinsured motorist coverage to relatives of the named insured. The policies defined "relative" as "a person who is related to you or your spouse by blood or marriage or adoption who lives with you. It includes your unmarried and unemancipated child away at school."
In January 1990, Routledge filed a complaint for a declaratory judgment, seeking a determination as to whether Douglas was an insured under his policy of insurance with State Farm. Withers and State Farm were named as defendants. Withers filed a cross-claim against State Farm, asserting that Douglas was an insured under her policy of insurance with State Farm. In February 1990, Routledge filed a motion for summary judgment. In March 1990, the trial court entered a summary judgment *584 in Routledge's favor, holding as a matter of law that "Douglas Wade Routledge was an `insured' under the policy of insurance owned by the plaintiff and issued by the defendant, State Farm." No appeal was taken from that judgment. Subsequent thereto, Withers filed a motion for summary judgment as to her cross-claim against State Farm. State Farm responded with its own cross-motion for summary judgment. In July 1990, the trial court entered a summary judgment in favor of State Farm. Essentially, the trial court, in its reasons for the judgment, stated that because Douglas "lived with" his father, he could not possibly have also "lived with" his mother, for purposes of insurance coverage.
State Farm contends that the evidence shows that Douglas "lived with" his father within the meaning of the State Farm policy. State Farm's contention is premised on the grounds that (1) the father was the primary custodial parent of the children; (2) Douglas received his mail at his father's address; (3) Douglas listed that address on his learner's permit; (4) Douglas spent the vast majority of his free time at his father's address; and (5) Douglas's brother, Shane, stated in his affidavit that he and his brother considered their father's home to be their home.
Conversely, Ms. Withers contends that the evidence shows that Douglas "lived with" her within the meaning of the State Farm policy. Her contention is premised on the grounds that (1) under the terms of the divorce decree, she and her former husband were granted joint custody of the children; (2) the children spent approximately 150 nights per year at her home; (3) the children maintained their own separate rooms at her home; (4) she provided the children with spending money while they were with her; (5) she purchased some of her sons' clothes and recreational equipment; and (6) the children were included on her personal dental insurance plan. Additionally, Withers contends that the phrase "lives with" is ambiguous and should, therefore, be construed against State Farm.
As indicated earlier, the policy in question provides coverage to those relatives who "live with" the named insured. Obviously, for Douglas to be covered under his mother's policy, he would have had to be "living with" her at the time of his death. Thus, the decisive issue presented is whether there was evidence that Douglas, at the time of the accident, "lived with" his mother, Ms. Withers, for purposes of underinsured motorist coverage.
Recently, this Court in Davis v. State Farm Mutual Automobile Ins. Co., [Ms. 1900058, April 11, 1991] (Ala.1991), determined that the term "live with," as used in an insurance policy similar to the one presented here, is an "ambiguous, elastic, or relative term, and includes a very temporary, as well as a permanent abode." Therefore, in construing the term "live with," as it relates to the facts presented here, we are constrained to follow the wellsettled rule that ambiguities found within an insurance policy must be resolved against the insurer. Crossett v. St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 269 So. 2d 869 (1972).
After careful consideration of the record and of the briefs submitted on appeal, we are impelled to the conclusion that the trial court erred in holding, as a matter of law, that Douglas did not "live with" his mother, Ms. Withers, within the meaning of her policy of insurance with State Farm. The record reveals that, although Douglas spent the majority of his time at his father's house, he also spent a considerable amount of time at his mother's house, in accordance with the divorce judgment. This opinion should not be interpreted as holding that the trial court erred in holding that Douglas "lived with" his father; to the contrary, we are simply holding that there was sufficient evidence from which the trial court could reasonably infer that Douglas also "lived with" his mother, Ms. Withers, at the time of the accident, for purposes of underinsured motorist coverage. In other words, the evidence would support the conclusion that Douglas "lived with" both parents.
*585 It follows, therefore, that the trial court's summary judgment in favor of State Farm is due to be reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON and KENNEDY, JJ., concur. | April 26, 1991 |
cc0279e6-79b0-489f-8436-cd1d3b5badf8 | Chenault v. Jamison | 578 So. 2d 1059 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1059 (1991)
Ben CHENAULT and Bob Bone
v.
John W. JAMISON III.
89-1402.
Supreme Court of Alabama.
April 19, 1991.
W. Eugene Rutledge, Birmingham, for appellants.
Jonathan E. Lyerly, Birmingham, for appellee.
INGRAM, Justice.
This Court's original opinion of January 11, 1991, is withdrawn, and the following is substituted therefor.
This case concerns a breach of an alleged partnership agreement. The appellants, Bob Bone and Ben Chenault, claim that John W. Jamison III, individually, breached the alleged partnership agreement and breached the fiduciary duty of honesty and fair dealing between partners when he failed to include them in a project to develop real estate in Boaz.
Jamison is chairman of the board of Capital Resources Corporation, Inc., and George Bonfanti is the president. The appellants allege that Jamison represented that Bonfanti was the agent of Jamison and that Jamison, individually, was a partner to this agreement, based upon the actions of Bonfanti.
Jamison filed a motion for summary judgment, which he supported by his affidavit and by the depositions of Bone and Chenault. At a hearing on the motion, the trial court heard oral arguments and considered the deposition of Chenault in its entirety. The trial court found that no genuine issue existed as to any material fact and entered a summary judgment in favor of Jamison. Bone and Chenault appeal.
Bone and Chenault argue that there was substantial evidence in this case that Jamison, in his individual capacity, was a partner *1060 with them in this real estate venture. Their contention is based upon certain actions of Bonfanti that led them to believe that Jamison had conveyed through Bonfanti his desire to become their partner. However, the record is devoid of any specific instances in which Jamison indicated that Bonfanti was acting as his agent during the negotiations that form the basis of this suit. Based on the evidence that was before the trial judge, we hold that the summary judgment in favor of Jamison was appropriate.
Bone and Chenault failed to produce sufficient evidence that Bonfanti was acting on behalf of, and at the direction of, Jamison individually. In fact, the only evidence presented in opposition to the motion for summary judgment was a letter from Jamison on Capital Resources letterhead, signed in his capacity as chairman of the board, and an affidavit from Chenault. In his affidavit, Chenault stated:
The testimony in Chenault's deposition is as follows:
Also, Chenault in his deposition stated:
Assuming, without deciding, that a partnership was formed, the evidence indicates that Capital Resources could have been a partner through the actions of Bonfanti and a party to the partnership agreement with Bone and Chenault; however, the evidence does not indicate that Jamison, individually, was a partner. The record supports the conclusion that Jamison dealt with this partnership agreement as the chairman of the board of Capital Resources and not in his individual capacity. Bone and Chenault were not able to point to one specific incident in which they were led to believe either that Jamison intended to be a partner or that Bonfanti was representing Jamison individually as well as representing Capital Resources.
In situations where the dispute concerning the existence of a partnership is between the alleged partners, a partnership cannot be formed by operation of law or implication; there must be an agreement, express or implied, between the partners. Waters v. Union Bank of Repton, 370 So. 2d 957 (Ala.1979); see also Norman Properties v. Bozeman, 557 So. 2d 1265 (Ala.1990); McCrary v. Butler, 540 So. 2d 736 (Ala.1989).
In this case, the evidence fails to show any circumstance in which Bone and Chenault could have been led to reasonably believe that Jamison, individually, intended to be a partner. The appellants have not produced any evidence that Bonfanti's actions were other than those of an employee and agent of Capital Resources. Without a showing of such evidence, the factfinder could not find that Bonfanti, the president of Capital Resources, was acting as the agent of Jamison. We are satisfied that the evidence presented to the trial court made a prima facie showing that Bonfanti was acting within the scope of his employment *1061 with Capital Resources and that Bone and Chenault failed to produce substantial evidence to overcome this showing.
This situation is similar to cases that have allowed the corporate veil to be pierced. Our case law holds that the corporate identity will not be disregarded unless the individual sought to be charged with the corporation's liability has used the corporate identity as his alter ego. Forester & Jerue, Inc. v. Daniels, 409 So. 2d 830 (Ala.1982). Also, this Court has held that a corporation is a "distinct and separate entity from the individuals who compose it as stockholders or who manage it as directors or officers." Cohen v. Williams, 294 Ala. 417, 420, 318 So. 2d 279, 281 (1975). Also, the "corporate form is not lightly disregarded, since limited liability is one of the principal purposes for which the law has created the corporation." Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098, 1102 (5th Cir.1973). Bone and Chenault have offered no evidence that Jamison's actions in regard to Bonfanti were inconsistent with their working relationship within the corporation. They also argue that the burden was on Jamison to show that he was not a partner and that Bonfanti was not his agent. We disagree. "[W]hen a defendant's liability is based on agency, agency may not be presumed; evidence of agency must be presented in response to defendant's properly supported summary judgment motion, in order for the motion to be defeated." Carlton v. Alabama Dairy Queen, Inc., 529 So. 2d 921, 923 (Ala.1988) (citing Wood v. Shell Oil Co., 495 So. 2d 1034, 1036 (Ala.1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
We find that Jamison, through his affidavit and the depositions of Bone and Chenault, showed the trial court that no question of material fact existed, and that the appellants failed to overcome this prima facie showing by Jamison.
We hold that the summary judgment in favor of Jamison, individually, was correctly entered. It is due to be affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED.
MADDOX, ALMON, SHORES and HOUSTON, JJ., concur. | April 19, 1991 |
50c736c0-66ac-4ef6-897a-9783c15f3475 | Ex Parte Bankhead | 585 So. 2d 112 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 112 (1991)
Ex parte Grady Archie BANKHEAD.
(Re Grady Archie Bankhead v. State).
89-1179.
Supreme Court of Alabama.
May 24, 1991.
*115 Bryan A. Stevenson and Kevin M. Doyle, Montgomery, for Grady Archie Bankhead.
Don Siegelman, Atty. Gen., and William D. Little and Sandra J. Stewart, Asst. Attys. Gen., for the State.
KENNEDY, Justice.
This Court's original opinion of February 15, 1991, is withdrawn and the following opinion is substituted therefor.
Grady Archie Bankhead was convicted of the capital offense of murder during a robbery in the first degree. § 13A-5-40(a)(2), Code of Alabama 1975. He was given a bifurcated trial in accordance with § 13A-5-43. After the punishment phase of the trial, the jury returned its advisory verdict recommending death, with 11 votes "for death" and 1 vote "for life without the possibility of parole."
At sentencing, the trial court, in compliance with § 13A-5-47, specifically found the existence of two aggravating circumstances and no mitigating circumstances. Bankhead was sentenced to death for the robbery-murder of Jack David McGraw. See the trial court's order attached as an appendix to this opinion. The Court of Criminal Appeals affirmed the conviction *116 and the sentence. Bankhead v. State, 585 So. 2d 97 (Ala.Cr.App.1989).
Along with Bankhead, two other defendants were charged with the murder.[1]
The Court of Criminal Appeals set out the facts in Bankhead v. State, 585 So. 2d at 98-99. However, we feel it necessary to recite the facts as found by that court in order to better present the issues in this case:
"Later that night, the appellant and Brown went to the apartment of Michael Wayne Lotz and left a television there until the following day, when the appellant removed it. The next day, the appellant left another television at Lotz's *117 apartment. The appellant later told Lotz that Brown had been arrested by the police for a murder in Pinson; that he had gotten the television by robbing a man in Blount County; and that Lotz should take the television to the woods and burn it.
In reviewing a death penalty case, this Court may notice any plain error or defect in the proceeding under review, regardless of whether it was brought to the attention of the trial court. Ex parte Waldrop, 459 So. 2d 959 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2050, 85 L. Ed. 2d 323 (1984). See also Rule 45A, A.R.App.P. This Court may take appropriate appellate action whenever the error "has or probably has adversely affected the substantial right of the appellant." Rule 45A, A.R.App.P. "Plain error" arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceeding. United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). See also Ex parte Womack, 435 So. 2d 766 (Ala.1983), cert. denied, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983).
On application for rehearing, Bankhead argues that he had standing to challenge the prosecutor's allegedly discriminatory use of peremptory challenges. At Bankhead's trial, the prosecutor peremptorily challenged 8 of the 10 blacks on the jury panel. We note that 2 black jurors remained on Bankhead's jury.
No objection was made at trial. However, under the "plain error" doctrine of Rule 45A, A.R.App.P., we addressed the issue ion Part I of our opinion of February 15, 1991. We held that Bankhead did not have standing under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to challenge the prosecutor's use of peremptory challenges as a violation of the Fourteenth Amendment. We noted that the Supreme Court had granted certiorari review in Powers v. Ohio, 493 U.S. 1068, 110 S. Ct. 1109, 107 L. Ed. 2d 1017 (1990), in which a white defendant challenged the striking of black veniremen from his jury as a violation of the Equal Protection Clause. Justice Maddox dissented, expressing the view that Bankhead did have standing to make his Batson challenge.
The Supreme Court has recently decided Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), holding that a defendant in a criminal case can raise a third-party equal protection claim on behalf of jurors excluded by the prosecution because of their race.
Based on Powers, we must now hold that Bankhead, a white, has standing under the Equal Protection Clause to challenge the prosecutor's allegedly racially motivated use of peremptory challenges. Bankhead's case will be remanded to the Jefferson County Circuit Court for a hearing on this issue. If the prosecution cannot provide racially neutral reasons for the use of peremptory challenges against black venire members, then Bankhead must receive a new trial. The trial court shall make a due return to this Court indicating its action on remand.
Bankhead argues that a group of photographs introduced at the guilt phase of his trial and a group of photographs introduced during the sentencing phase were inadmissible.
Bankhead argues that certain photographs introduced during the guilt phase of his trial were extraordinarily prejudicial and had minimal or no probative value.
Photographs are admissible into evidence within the discretion of the trial judge and will be reviewed on appeal only to determine if there has been an abuse of that discretion. Fletcher v. State, 291 Ala. 67, 277 So. 2d 882 (1973).
Photographs are admissible if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. Baldwin v. State, 282 Ala. 653, 213 So. 2d 819 (1968). The fact that a photograph is gruesome is not grounds to exclude it as long as the photograph sheds light on issues being tried. Magwood v. State, 494 So. 2d 124 (Ala.Cr.App.1985), aff'd, Ex parte Magwood, 494 So. 2d 154 (Ala.1986), cert. denied, Magwood v. Alabama, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986).
Some of the photographs in issue here depicted wounds to the back and neck area of the deceased. The State argues that the photographs were credible evidence for the jury to view in order to determine whether a pocket knife or a larger knife that was found at the scene could have inflicted the depicted wounds. Based on the record, we agree.
Bankhead next asserts that color photographic slides introduced during the sentencing phase of the trial were grossly inflammatory. He claims that the introduction of the slides violated the guarantee to every person convicted of capital murder that no death sentence can be imposed "under the influence of passion, prejudice, or any arbitrary factor." § 13A-5-53(b)(1), Code of Alabama 1975. The slides shown to the jury depicted the victim's wounds and were projected on a large screen in front of the jury.
The slides were of the photographs that had been introduced into evidence earlier during the sentencing phase. They did not distort the facts or mislead the jury in any way. See, Goffer v. State, 430 So. 2d 896 (Ala.Cr.App.1983). We hold that the slides were properly admitted.
Bankhead also argues that some of the slides distorted the victim's wounds. Some of the slides depicted wooden probes inside the wounds on the victim's back. There were 59 wounds to the victim's back. Wooden probes were placed inside the wounds to show the depth and the angle of the wounds. The purpose of these slides was to show the frenzied nature of the stab wounds.
The purpose of the slide presentation was to prove aggravating circumstances. The aggravating circumstance the State sought to prove was that this capital offense was "especially heinous, atrocious or cruel compared to other capital offenses." § 13A-5-49(8), Code of Alabama 1975. The trial court charged the jury before the slide presentation that the slides were being shown only to prove that this aggravating circumstance existed.
This Court has held that a capital murder by multiple stab wounds is especially heinous, atrocious, or cruel. Dunkins v. State, 437 So. 2d 1349 (Ala.Cr.App. 1982), aff'd, Ex parte Dunkins, 437 So. 2d 1356 (Ala.1983). As noted earlier, photographs depicting the character and location of wounds on a deceased's body are admissible even though they are cumulative and are based on undisputed matters. Magwood, 494 So. 2d at 141. The fact that a photograph is gruesome is not grounds to exclude it as long as the photograph sheds light on issues being tried. Id. Also, a photograph may be gruesome and ghastly, but this is not a reason to exclude it as long as the photograph is relevant to the proceedings, even if it tends to inflame the jury. Id. The rules of law concerning photographs also apply to photographic *119 slides. Goffer v. State, supra. Thus, the photographic slides were properly admitted.
Bankhead argues that his conviction was based upon the uncorroborated testimony of an accomplice (Davenport) and that the trial court erred in failing to instruct the jury on the need for corroboration of accomplice testimony.
Section 12-21-222, Ala.Code 1975, provides:
When there is a doubt or dispute concerning the complicity of a witness and the testimony is susceptible to different inferences on that point, the question is for the jury. Ex parte Bell, 475 So. 2d 609 (Ala.1985) cert. denied, 474 U.S. 1038, 106 S. Ct. 607, 88 L. Ed. 2d 585 (1985). In this case, it is at least in dispute as to whether Davenport was an accomplice. Davenport testified that he drove the three defendants to and from the scene of the crime and also received a portion of the money stolen from the victim, but did not willingly participate in the robbery and killing. Thus, it would be for the jury to decide whether Davenport's testimony as to his participation was believable. When a witness denies willing participation in the crime charged against the defendant, the issue of his being an accomplice is a question of fact for the jury. Ex parte Bell, 475 So. 2d at 612, citing Yarber v. State, 375 So. 2d 1229 (Ala. 1978).
This Court has held that, assuming a witness is an accomplice, the question of whether there is sufficient corroborating evidence to support the witness's testimony, as required by § 12-21-222, Code of Alabama 1975, is a question of law. Ex parte Bell, 475 So. 2d at 613. The evidence establishes that there was sufficient corroboration of Davenport's testimony. Therefore, the trial court did not commit reversible error in not instructing the jury on corroboration of accomplice testimony.
To corroborate means to make more certain, to confirm, or to strengthen. Lewis v. State, 426 So. 2d 932 (Ala.Cr.App. 1982), cert. denied, 426 So. 2d 938 (Ala. 1983), and the corroborative testimony need not be strong or sufficient in and of itself to support a conviction. Andrews v. State, 370 So. 2d 320 (Ala.Cr.App.1979), cert. denied, 370 So. 2d 323 (Ala. 1979). Corroborative evidence need not directly convict the accused of the crime, but need only tend to do so. Id. The jury decides whether a witness is an accomplice and, if so, whether his testimony has been properly corroborated. See Leonard v. State, 43 Ala.App. 454, 192 So. 2d 461 (1966).
Certainly, if Davenport was an accomplice, there was evidence to corroborate his testimony and to support Bankhead's conviction. Bankhead's own statements placed him (Bankhead) at the scene where the victim was killed. Bankhead testified that Davenport remained in the automobile during the murder. Also, Bankhead testified that no conversation occurred in the car on the way to the victim's trailer. If Bankhead is believed, this implies that Davenport did not know that a murder was to be committed. Testimony from Blanche Bankhead indicates that Bankhead was in possession of property like that taken from the victim on the evening of the murder. Her testimony was that Bankhead and the others were covered with blood when they arrived at the Bankhead home and that she overheard Bankhead say that he participated in the murder by cutting the victim's throat. Therefore, the trial court did not err in refusing to charge the jury on accomplice liability.
Bankhead contends that reversible error occurred in the charge to the jury during the guilt phase of the trial. Specifically, Bankhead argues that the jury instruction *120 concerning intoxication violated his rights to a fair trial.
Bankhead asserts that the judge improperly charged the jury on intoxication by reading from an appellate court decision. The judge stated as follows:
"`Partial'in the same case'partial intoxication will not avail to disprove the specific intent. The intoxication must be of such character and extent so as to render the accused incapable of discriminating between the right and wrong, stupefaction of the reasoning faculty.'
(Reporter's Transcript at 1014-16.)
In Jones v. State, 362 So. 2d 1303, 1315 (Ala.Cr.App.1978), the Court of Criminal Appeals held that the intoxication "must be of such character and extent as to render the accused incapable of consciousness that he is committing a crime." Also, this Court has stated that "[m]ere drunkenness, voluntarily produced, is never a defense against a criminal charge, and can never palliate or reduce the grade of an offense, unless it is so extreme as to render impossible some mental condition which is an essential element of the criminal act." Gautney v. State, 284 Ala. 82, 88, 222 So. 2d 175 (1969, quoting Walker v. State, 91 Ala. 76, 82, 9 So. 87, 89 (1890) (emphasis omitted). Intoxication "must be so excessive as to paralyze the mental facilities, *121 and render the accused incapable of forming or entertaining the design to take life." Id. The degree of intoxication necessary to negate specific intent and, thus, reduce the charge, must amount to insanity. Crosslin v. State, 446 So. 2d 675 (Ala.Cr. App.1983), appeal after remand, 489 So. 2d 680 (Ala.Cr.App.1984), citing Maddox v. State, 31 Ala.App. 332, 344, 17 So. 2d 283, 285 (1944) (other citations omitted).
Bankhead contends that the court's instruction requiring that the jury, in order to find a drunkenness defense applicable, had to find Bankhead insane due to intoxication, was prejudicial. We disagree. In an assault and battery case, voluntary intoxication is no defense, unless the degree of intoxication amounts to insanity and renders the accused incapable of forming an intent to injure. Lister v. State, 437 So. 2d 622 (Ala.Cr.App.1983). The same standard is applicable in homicide cases. Crosslin, supra. Although intoxication in itself does not constitute a mental disease or defect within the meaning of § 13A-3-1, Code of Alabama 1975, intoxication does include a disturbance of mental or physical capacities resulting from the introduction of any substance into the body. § 13A-3-2. The degree of intoxication required to establish that a defendant was incapable of forming an intent to kill is a degree so extreme as to render it impossible for the defendant to form the intent to kill. A jury is capable of determining whether a defendant's intoxication rendered it impossible for the defendant to form a particular mental state. The trial court's instructions on intoxication were proper under Alabama law.
Bankhead argues that testimony from his wife should not have been admitted. We disagree.
First, Bankhead contends that Blanche Bankhead should have been required to make an election to testify before trial. See cases construing § 12-21-227, Code of Alabama 1975. This is incorrect. Testimonial privilege status does not apply to persons who are divorced at the time of trial. Ex parte Arnold v. State, 353 So. 2d 524 (Ala.1977). See also, Rogers v. State, 417 So. 2d 241, 248 (Ala.Cr.App.1982). The Bankheads were divorced before the trial began.
Second, Bankhead argues that comments by Blanche Bankhead made during the pretrial investigation violated the spousal testimonial privilege. This is also incorrect. The spousal testimonial privilege does not apply to pretrial criminal investigations. As the State argued, § 12-21-227, by its language, deals with a privilege to testify or not to testify.
Bankhead also argues that the communications made during the marriage and as to which his former wife testified were privileged and thus inadmissible. This argument has no merit. The communication occurred in the presence of third persons. It is well-settled law in Alabama that a marital communication loses its confidential character if it is made in the presence of third parties. Caldwell v. State, 146 Ala. 141, 41 So. 473 (1906); Epps v. State, 408 So. 2d 562 (Ala.Cr.App. 1981). If a spousal communication is not confidential, it loses the status of a privilege. Caldwell, supra.
Bankhead contends that the State failed to reveal that it had made a deal with Jimmy Davenport and Blanche Bankhead in exchange for their testimony.
In Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), the Supreme Court held that a jury was entitled to know of deals or consideration given in exchange for testimony. The Court held that jury knowledge of a deal between the State and a witness is relevant to an issue of the witnesses's credibility. Id.
There was evidence that Jimmy Davenport lied to officers on several occasions regarding this case and that one of the officers then told Davenport that, unless he told the truth, he would be prosecuted for capital murder. This is the only evidence of a "deal" between the State and *122 Davenport. In closing argument, the State admitted that avoiding a capital charge was a motive for Davenport to lie. The State also argued that Davenport had not been charged with a crime and that Davenport's testimony was not in exchange for a deal. Bankhead's own testimony indicated that Davenport was not guilty of capital murder. (R.T. 463-64.) There was no other evidence of a "deal" between Davenport and the State in exchange for his testimony.
After reviewing the record, we find no evidence that Blanche Bankhead testified pursuant to a deal with the State. Blanche Bankhead allegedly had outstanding criminal charges pending against her. Even if charges were pending against her, this fact would not prove that a deal existed between her and the State. Although during cross-examination she was asked about past convictions, she was not asked about an arrest for these pending charges. There was no other evidence presented concerning any alleged deals with Blanche Bankhead.
Bankhead argues that the admission, for impeachment purposes, of his prior convictions was improper. Bankhead contends that his prior convictions, four convictions of obtaining merchandise by false pretenses and two convictions of sale of a controlled substance, were not crimes of moral turpitude and were too remote to be admissible.
Generally, a defendant who testifies in his own behalf during criminal prosecution can be questioned on cross-examination about convictions of crimes involving moral turpitude. Evidence of prior criminal acts, which is admitted for impeachment purposes, relates to the witnesses's veracity. § 12-21-162, Code of Alabama 1975; Ex parte McIntosh, 443 So. 2d 1283 (Ala.1983).
A crime of moral turpitude is one that is contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties that a man owes his fellowman or society. Sims v. Callahan, 269 Ala. 216, 112 So. 2d 776 (1959). It is a crime that is immoral in itself, regardless of the fact that it is punishable by law. Sims, supra; Ex parte McIntosh, supra.
Bankhead had previously been convicted of using a credit card to obtain merchandise under false pretenses. Larceny (now known in our Code as theft), petit or grand, is a crime of moral turpitude and a conviction of larceny may be used for impeachment purposes. Stahlman v. Griffith, 456 So. 2d 287 (Ala.1984). Bankhead also had been convicted twice of the unauthorized sale of a controlled substance, which is a crime of moral turpitude.
As to the issue of remoteness, the trial court has discretion in deciding whether a conviction is too remote in time to be admissible for impeachment purposes. Bankhead's convictions were 12 years old. The admission of evidence of crimes 20 years old, Davenport v. State, 50 Ala.App. 321, 278 So. 2d 769 (1973), and even 30 years old, Lanier v. State, 43 Ala.App. 38, 179 So. 2d 167 (1965), has been upheld as within the trial court's discretion.
Bankhead alleges that he was absent during a pretrial suppression hearing and argues that it was a violation of his constitutional rights to conduct the hearing in his absence. Bankhead made this claim during the hearing on a motion for a new trial. However, the record clearly shows that Bankhead was present at the suppression hearing, along with the other two defendants. (R.T. 40-41, R.T. 1133-34.)
Bankhead contends that the testimony by Blanche Bankhead was hearsay and was not within any exception to the hearsay rule. We find that her testimony fit within the coconspirator exception to the hearsay rule.
Blanche Bankhead testified that when Bankhead, the other two defendants, and Davenport arrived at the Bankhead home, *123 she heard Bynum say "And Archie handed me the knife, said you have to cut his throat." (R.T. 495.) She also testified that Bankhead responded to Bynum's statement, saying "You weren't doing it right. I had to take the knife and slice his jugular vein." (R.T. 497.) These statements fall within the coconspirator exception to the hearsay rule.
Any act or statement by an accused's coconspirator in the commission of the crime, done or made before the commission of the crime, during the existence of the conspiracy, and in furtherance of a plan or design, is admissible. Leonard v. State, 459 So. 2d 970 (Ala.Cr.App. 1984). "If it is reasonably inferable from the evidence that the conspiracy embraced the disposition, or the division among the conspirators, of the fruits of the crime, an act or statement of a coconspirator in furtherance of such disposition or division is admissible against the accused notwithstanding the fact that the statement also referred to an act committed in the execution of the crime." C. Gamble, McElroy's Alabama Evidence, § 195.03(6) (3d ed. 1977); see also Ingle v. State, 415 So. 2d 1225 (Ala.Cr.App.1982); Williams v. State, 383 So. 2d 547 (Ala.Cr. App.1980), aff'd, Ex parte Williams, 383 So. 2d 564 (1980), cert. denied, 449 U.S. 995, 101 S. Ct. 534, 66 L. Ed. 2d 293 (1980).
Proof of a conspiracy must exist, Nance v. State, 424 So. 2d 1358 (Ala.Cr. App.1982), but the prosecution need only present prima facie evidence independent of the statements made by the coconspirator to establish that the conspiracy existed. Bright v. State, 485 So. 2d 398 (Ala.Cr.App. 1986).
In the instant case, a finding of the existence of the conspiracy was supported by evidence other than the coconspirators' statements. Jimmy Davenport testified that Bankhead, Bynum, and Brown first discussed killing McGraw and then went to McGraw's trailer, grabbed him, beat him, and pulled him inside the trailer. They later emerged from the trailer covered with blood and carrying appliances. The group went to the Bankhead home, where they discussed what they (Bynum, Bankhead, and Brown) had done. Blanche Bankhead testified that when the three defendants and Davenport arrived at her home, they were carrying appliances and were covered with blood. The group divided up the money stolen from the victim. In furtherance of their plan, Brown and Bankhead took some of the appliances to another person's apartment. Blanche Bankhead's testimony fit within the coconspirator exception to the hearsay rule.
Bankhead makes three arguments relative to the jury charges during the sentencing phase, concerning § 13A-5-49(8), Code of Alabama 1975. Under § 13A-5-49(8), the jury, in a capital case, can consider whether "the capital offense was especially heinous, atrocious or cruel compared to other capital offenses." The trial judge charged the jury as follows:
First, Bankhead argues that the trial judge erred in failing to adequately explain the "unnecessarily torturous" finding required by State and Federal Constitutions. Second, Bankhead contends that the trial court's instructions, by not restricting the "especially heinous, atrocious or cruel" aggravating circumstance to Bankhead's personal conduct in the crime, subverted the mandate for individualized capital sentencing. Third, Bankhead asserts that in order to find an aggravating circumstance under § 13A-5-49(8), the jury needs evidence of other capital offenses to compare with the instant capital offense.
Bankhead's first argument is that the jury charges concerning § 13A-5-49(8), were improper because the jury was not required to find that the crime was "unnecessarily torturous" to the victim before applying § 13A-5-49(8). Bankhead relies heavily on Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988). In Maynard, the Supreme Court held that Oklahoma's "especially heinous, atrocious, or cruel" aggravating circumstance was unconstitutionally vague because it gave little guidance to the jury's discretion in deciding whether to impose the death penalty. In that case, the jury was given few or no limiting instructions as to the meaning of the words "especially heinous, atrocious, or cruel." Also, the state appellate court in Maynard had failed to declare any standard of review in affirming the death penalty. The Oklahoma appellate court had merely affirmed the imposition of the death penalty because the facts of the case were so plainly heinous, atrocious, or cruel.
In Ex parte Kyzer, 399 So. 2d 330, 334 (Ala. 1981), this Court held that the standard applicable to the "especially heinous, atrocious, or cruel" aggravating circumstance under § 13A-5-49(8) is that for a crime to fit within that section it must be one of "those conscienceless or pitiless homicides which are unnecessarily torturous to the victim."
This Court has affirmed a decision by the Court of Criminal Appeals that addressed jury instructions on this aggravating circumstance. The jury instructions in Bui v. State, 551 So. 2d 1094 (Ala.Cr.App.1988), aff'd, Ex parte Bui, 551 So. 2d 1125 (Ala. 1989), were very similar to the jury instructions in the present case. The jury charges in the instant case clearly meet the Kyzer standard.
The trial court specifically found that two of the aggravating circumstances existed and that no mitigating factors were present. The trial court did not specifically cite the Kyzer standard in its findings but stated that the findings were based on "applicable case law." (R.T. 1180.) The Supreme Court has indicated that, in this context, it can be presumed that the trial court has applied a previously announced standard. See Walton v. Arizona, ___ U.S. ___, ___, 110 S. Ct. 3047, 3057, 111 L. Ed. 2d 511 (1990). Also, the Court of Criminal Appeals expressly relied upon the *125 Kyzer standard, which limits § 13A-5-49(8) to those killings that are unnecessarily torturous to the victim.
Second, Bankhead argues that the trial court incorrectly charged the jury as to Bankhead's personal participation in the murder. Bankhead contends that the trial court did not sufficiently restrict the applicability of § 13A-5-49(8) to Bankhead's conduct in the crime. This is not a valid argument.
In § 13A-5-49(8), the emphasis is on the manner of the killing, not on the defendant's actual participation. In the sentencing phase of a bifurcated trial under § 13A-5-43, the jury has already determined that the crime is a capital offense. That is, the jury has determined that the killing was intentional, because an intentional killing is a necessary element of capital murder. The State does not have to prove that the defendant inflicted the wounds or assign any particular wound to the defendant. Once the jury determines that the defendant has committed a capital offense, the sentencing phase can begin. It is during the sentencing phase that the jury considers whether "the capital offense was especially heinous, atrocious or cruel compared to other capital offenses." § 13A-5-49(8).
Third, on the issue of aggravating circumstances, Bankhead suggests that the jury should have had the opportunity to compare the capital offense in this case with other capital offenses for purposes of § 13A-5-49(8).
Although a very narrow and literal reading of the statute may suggest that such a comparison is required, it would be virtually impossible for the court to implement. Charging the jury on pertinent facts of "other capital cases" would unduly burden the court. It would be unworkable for the court and would thoroughly confuse the jury.
This Court has decided upon an approach for the purposes of § 13A-5-49(8). In comparing capital offenses for the purposes of determining whether a capital offense was "especially heinous, atrocious or cruel," the court uses the Kyzer standard. Capital offenses falling under § 13A-5-49(8) are, pursuant to the Kyzer standard, those "conscienceless or pitiless homicides which are unnecessarily torturous to the victim." Kyzer, 399 So. 2d at 334. The trial court clearly followed the Kyzer standard in its instructions to the jury.
Bankhead relies on Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977), in arguing that the use of his presentence report was unconstitutional. He claims that the presentence report consisted primarily of biased statements made by his ex-wife, who was also a main witness for the State. He asserts that the report was improperly prepared and, therefore, that its use denied him due process and fair sentencing under state law and the Fourteenth Amendment.
Bankhead's reliance on Gardner is misplaced. In Gardner, the presentence report was not disclosed to the defendant. The Court in Gardner concluded that the defendant was denied due process when the death sentence was imposed, at least in part, based on information that he had had no opportunity to deny or to explain. In the instant case, the presentence report was fully disclosed to the defendant, as provided for in § 13A-5-47(b), Code of Alabama 1975. Bankhead was given an opportunity during the final sentence proceeding to contest the information contained in the report. There was no objection made in the trial court on this issue. Thus, reversal is required only if plain error exists, and there was no plain error concerning the presentence report.
Bankhead argues that the trial court erred in failing to immediately disqualify a juror who had a private conversation with the judge. During the trial, the judge was in the courtroom and a juror, who had remained in the jury room during the lunch recess, spoke to him. The juror stated that he did not remember much pretrial publicity about the case and that there had not been much press coverage of the trial. (R.T. 642-43.) The judge told him *126 that he could not discuss the case with him. The juror said he was a salesman and that he knew a local attorney. The juror also stated that he had been summoned for jury duty twice but had been released. The judge notified all parties as to the conversation. The judge offered to make the juror an alternate or to dismiss him altogether. The State and defense counsel agreed that there was no need for any action by the court. The defendant specifically declined to have the juror questioned at that time.
Later, the juror was questioned about the conversation. He acknowledged what the judge had said about the nature of the conversation. (R.T. 715-18.) The trial court then dismissed the juror, out of an abundance of caution.
The Supreme Court has held that an unrecorded ex parte communication between a judge and juror can be harmless error. Rushen v. Spain, 464 U.S. 114, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983). In that case, a juror had an ex parte communication with the judge. However, defense counsel was not made aware of the communication until after the trial was completed. The Court found the conversation to be innocuous because the participants did not discuss any fact in controversy or any law applicable to the case and, therefore, the communication could not have prejudiced the defendant.
In the instant case, the judge notified the defendant of the communication. The only part of the discussion that in any way related to the case concerned the juror's surprise as to the lack of pretrial publicity and press coverage during the trial. The judge then stated that he could not discuss the case. The parties to the conversation did not discuss any fact in controversy or any applicable law. Defense counsel was told about the communication and was offered the opportunity to question the juror at that point. Defense counsel specifically said he was satisfied at that point, and no further action was taken. Later, the juror was questioned and was dismissed and an alternate took his place. This occurred before the jury began deliberations. We see no prejudice to Bankhead caused by the delay in dismissing the juror.
Also, defense counsel failed to object to not having the juror removed immediately. Assuming, arguendo, that it was error to allow the juror to remain on the jury for that brief period of time after the conversation was made known but before deliberations began, it was invited error. An invited error is waived, unless it rises to the level of plain error. Johnson v. State, 507 So. 2d 1337, 1344 (Ala.Cr.App. 1985), rev'd on other grounds, this issue reserved, Ex parte Johnson, 507 So. 2d 1351 (Ala. 1986). Here, it was not plain error to allow the juror to remain on the jury for a short period before dismissing him. If any error occurred, it was harmless.
Bankhead claims that his statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Bankhead alleges that he requested an attorney before he was questioned by the police. We find this claim to be without merit.
The record reflects that Bankhead never requested an attorney before making a statement. A police sergeant testified at the suppression hearing that Bankhead was given his Miranda rights. (R.T. 43.) Bankhead also signed a waiver of his right to an attorney, before answering questions or making a voluntary statement. (R.T. 606-07.) Bankhead's statement was also recorded and transcribed. The transcript shows that Bankhead understood his rights and voluntarily waived them. (R.T. 1200.)
The question whether a confession is voluntary is initially to be determined by the trial court. Ex parte Singleton, 465 So. 2d 443 (Ala.1985). Thereafter, the voluntariness, as affecting the credibility and weight to be given any statement that an accused has made, is a determination for the jury. Id. The finding of the trial court will not be disturbed on appeal unless it appears contrary to the great weight of the evidence or is manifestly wrong. Magwood, 494 So. 2d at 136. Here, the evidence indicated that Bankhead did not request an attorney and that he voluntarily waived his *127 rights. The trial court's decision on the voluntariness of the statement was correct.
There are three issues presented here as to which we summarily approve the Court of Criminal Appeals' holdings: Whether there was prosecutorial misconduct, whether Bankhead had the intent to kill, and whether the judge erred in failing to strike a juror for cause. We find the ruling of the Court of Criminal Appeals to be correct on these three issues, which were specifically presented to this Court.
We find all other issues presented by the defendant to be without merit. We have also examined the record for plain error, and have found none.
APPLICATION GRANTED AS TO PART I; ORIGINAL OPINION AND DISSENTING OPINION WITHDRAWN; OPINION SUBSTITUTED; REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
the State of Alabama
Criminal Division
CC86-3178
The State of Alabama
Criminal Division
Defendant Bankhead was charged by indictment with the capital offense of murder during a robbery in the 1st degree, 13A-5-40(2), wherein one Jack David McGraw was intentionally killed.
A petit jury, duly impaneled and sworn as required by law, after hearing the evidence [and] the court's charge as to the applicable law, including the lesser included offense of felony murder and manslaughter, found the defendant guilty of capital murder.
The same jury, sequestered throughout the entire proceedings, heard evidence, counsel's argument and the court charge during the "punishment" phase and returned an advisory verdict [fixing] the defendant's punishment at death.
The vote was eleven for death and one for life without parole, as reflected in the verdict form and confirmed by individually polling the jury.
This court commends the respective attorneys for putting aside any attempt to emotionally influence the jury with passion, prejudice or other arbitrary factors in arriving at their advisory verdict.
The trial record abundantly supports the court's findings that the jury's advisory verdict was not imposed under the influence of passion, prejudice or any arbitrary factor.
The court makes the following findings of fact from the evidentiary portions of the trial proceedings.
STATE'S CASE: The thrust of the state's case against defendant Bankhead was bottomed on Bankhead's inculpatory statement, the testimony of Jimmy Davenport and defendant's ex-wife, Blanche Bankhead.
BANKHEAD'S STATEMENT: The court admitted into evidence, over objections, defendant's July 15, 1986 inculpatory statement. The statement as a whole may be summarized thusly.
Defendant states that he knowingly accompanied his companions to the deceased's *128 home for the avowed purpose of burglarizing the home. Defendant goes [on] to state that he personally removed certain items from the deceased's home, that he observed co-defendant Brown subdue the deceased outside the trailer home, that he (Bankhead) assisted in pulling the deceased back into the trailer, that he observed Brown repeatedly stab the deceased, [and] that he continued to transport items out of the trailer after the deceased had been stabbed.
Quoting from defendant's statement at pages 5 through 8:
"A: And uh, I don't remember who it was, one of them pointed at the t.v. so I just grabbed the wires and snatched on them, and I picked up the t.v. and started out the door and James was over getting a microwave thing and this man walked out of the bedroom door and when he did Gary jumped on him, and uh we went out the door and started loading up and when we come back in, that guy tried to get out the door or something. Gary pulled him back in and then uh they told me to get some beer or something out of the refrigerator and uh he got a stereo or something, James got another stereo and was carrying that out and I got a t.v., I didn't get no ... the beer. I got another t.v. set and was carrying that out and we loaded it up in the car and then in a few minutes Gary come out and we got in the car and we left.
"Q: Okay, now when y'all went in and started getting these items and Mr. McGraw came out, you said Gary jumped him ... how did this take place?
*130 "Q: Okay, was Mr. McGraw conscious or unconscious at that time when y'all drug him back in that trailer?
Defendant goes on to state that he and his companions, Brown, Bynum and Davenport stashed some of their loot at a friend's house and then went to defendant's home where they burned their bloody clothing and boiled the defendant's knife (the murder weapon). Defendant further stated that he sold some of the stolen items and decided to flee the Jefferson County areathat he went to Mobile, traveled to Gulfport, Mississippi; Pensacola, Florida; and Panama City, Florida, before being captured at the bus station in Mobile.
Davenport: Jimmy Davenport, the driver, testified that he drove the defendant and two other companions, Brown (convicted and sentenced to death for his role in these events) and Bynum (convicted of felony murder arising out of these facts and sentenced to life) over to the victim's mobile home; that en route there were discussions about "killing a queer," that defendant Bankhead inquired of Bynum if he could hit hard, that he wanted Bynum to take the old guy out with one punch and that if he couldn't then he (Bankhead) could. Davenport testified that after arriving at the trailer he stayed in the car but could see what happened outside the trailerthat he saw Bankhead grab the old man and throw him to the ground and that Brown and Bynum began to punch the man. That then Bankhead, Bynum and Brown picked up the prostrate body of the victim and carried him into the trailer. That he next observed defendant, Bankhead, coming out of the trailer with some object that he put in the car, that Bankhead had blood all over his arms, hands and face, that Bankhead stated "shut up or you'll get the same as the old man"; Davenport describes the defendant's companions as carrying items out of the trailer and also as being smeared with blood. That ultimately when the car was so loaded with the victim's property that Brown had to ride in the trunk, that they proceeded to defendant Bankhead's home where the goods were divided, clothes burned and the murder weapon boiled in water.
Davenport leaves with Bynum by car and only talks with Bankhead one time subsequent to the murder relative to Brown being picked up by the police.
Blanche Bankhead: Divorced from defendant Bankhead subsequent to the murder, testified that she was putting her children to bed when she saw the blood smeared defendants enter her home, defendant Bankhead carrying a t.v. in his arms, that the defendant says "`get out of here, don't ask me nothing, just get out of the room'" that she retired to her bedroom but sees the men bring in stereo equipment, a VCR, a microwave, etc.
Mrs. Bankhead described her husband talking to Brown and asking "are you sure he's dead, we've got to make sure he was dead." That Bynum stated "when Archie (Bankhead) handed me that knife, he told me to cutyou have to cut his throat." Further, that defendant, Bankhead, stated to Bynum "you weren't doing it rightI had to take the knife and slice his jugular vein."
The witness described how the defendants divided the money and appliances and how they ultimately separated.
Mrs. Bankhead described how her husband left town a few days later, described making a statement to law enforcement officers re what she had witnessed and heard the night of the murder. Mrs. Bankhead did not see her husband again until he appeared in court.
*131 DEFENDANT'S CASE: Deputy Hatter testified that previous to the night of the murder the deceased had requested a neighbor to call the Sheriff's office for help, the deceased complained that someone had tried to kill him. Upon arriving at the McGraw residence, Deputy Hatter and her partner were advised by Mr. McGraw that everything was under control, that the offending party had left.
Additional evidence re previous burglaries at the McGraw residence were admitted into evidence by way of stipulation.
Robert Honeycutt testified that he had previously observed co-defendant Gary Brown at the McGraw trailer; that Brown appeared to be living at McGraw's trailer at one time.
Mrs. Yarbrough testified that she introduced Brown to Bankhead in connection with some roofing work.
Defendant Bankhead testified generally about his background, the events of the day leading up to the fateful ride to Mr. McGraw's trailer. Defendant states that he did not stab or hit the deceased and denies that he was blood-spattered and denies burning his clothes.
Defendant admitted fleeing from the Birmingham area and described the different geographical areas where he lived until being captured at the bus station in Mobile.
On cross-examination, defendant Bankhead states that he had previously been an instructor in four different karate schools, that he had traveled extensively, that on the night of the murder he and his companions were drunk and generally denied again being directly involved in the killing of the deceased.
Upon conviction for the capital offense, the case proceeded to the punishment phase before the jury wherein Dr. Robert Brissie was recalled for testimony relative to the wounds received by the deceased. No other testimony was adduced before the "punishment phase" jury.
At the final sentencing phase, a GED teacher in the county jail testified, stating that the defendant scored well on the GED exam, that defendant was cooperative and helpful in the work with other inmates.
Mrs. Yarbrough testified that the defendant was a good father, that he kept his children in church and that at one time the defendant was a good member of society.
Defendant Bankhead stated at the final sentencing that he was unhappy with his lawyers in that he felt that they had not spent enough time with him or handled his trial appropriately.
In conclusion, at the punishment phase of the trial before the jury and at the final sentencing hearing, the State was allowed to show aggravating circumstances and the defendant to show mitigating circumstances.
Relative to aggravating circumstances the court finds that the State has proven beyond a reasonable doubt:
§ 13A-5-49(A)
The capital offense was committed while the defendant was engaged ... in the commission of a robbery.
The court finds this aggravating circumstance to exist.
§ 13A-5-49(8)
The capital offense was especially heinous, atrocious or cruel compared to other capital offenses.
In addition to the factual findings above, the undersigned notes that the deceased was 59 years of age at his death, lived alone, was unarmed and unsuspecting of his assailants' foul purposes.
Dr. Robert Brissie, coroner/medical examiner, testified that the deceased received 16 incised wounds to the neck, 59 stab wounds in the back deep enough to allow probing, the deepest of which approximated 2.0 inches, three stab wounds to the face and an incised wound to the scalp ... as well as extensive areas of abrasion and contusion consistent with the attack outside the mobile home.
The most extensive injuries observed by Dr. Brissie were to the neck, the carotid artery and jugular vein being severed. Dr. Brissie opined that the deceased was, in all probability, alive throughout the course of *132 the homicidal acts"all wounds depicted were ante mortem or prior to decedent's death."
The undersigned concludes that, based on evidence and the applicable case law, this capital offense is in fact especially heinous, atrocious and cruel compared to other capital cases.
The court finds no other aggravating circumstances to exist.
Mitigating Circumstances
At the punishment phase before the jury, the jury was afforded the opportunity to independently assess the existence of each statutory mitigating circumstance referenced at § 13A-5-51(2) through (7), plus the opportunity to find mitigation by way of § 13A-5-52.
At the final sentencing hearing before the undersigned, a presentence report was submitted by probation services and admitted into evidence.
The court makes the following findings relative to mitigation:
§ 13A-5-51. Mitigating circumstances Generally.
(1) The defendant has no significant history of prior criminal activity;
Does not apply. Defendant admitted on the stand to six (6) prior felony convictions, the probation report in "record of arrests" also depicts numerous other incidents of illegal conduct.
(2) The capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance;
Does not apply. There is absolutely no evidence supportive of this circumstance. Defendant has never been treated for mental or emotional disturbances.
The court is not unmindful that at final sentencing defendant stated that he was under emotional duress at the time of the murderout of work, alcoholic wife in trouble with the law, four kids at home, no electricity.
(3) The victim was a participant in the defendant's conduct or consented to it;
Does not apply.
(4) The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor;
Does not apply. Defendant Bankhead was the oldest of the three defendants, Bankhead's home was utilized after the murder for the division of spoils, burning of clothes and general "covering of tracks"; according to state witnesses Davenport and Blanche Bankhead, defendant Bankhead played a major role in the killing and the events subsequent to the killing, culminating in Bankhead's "flight."
(5) The defendant acted under duress or under the substantial domination of another person;
Does not apply. No persuasive evidence whatsoever was adduced to suggest that this circumstance exists.
(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired;
Does not apply. The undisputed evidence adduced at trial was that Bankhead had ingested beer and alcohol over the course of the day preceding this killing, yet the court does not deem that said ingestion diminished the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
(7) The age of the defendant at the time of the crime;
Does not apply. Defendant was 35 at the time of the offense, date of birth, September 6, 1950.
§ 13A-5-52. SameInclusion of defendant's character, record, etc.
Does not apply.
In conclusion, I hold that the aggravating circumstances discussed earlier, weighed against the absence of mitigating circumstances, compel the court to uphold the jury's advisory verdict affixing punishment at death.
DONE AND ORDERED this 19th day of November, 1987.
[1] Gary Leon Brown was convicted of capital murder and was sentenced to death. This Court upheld the conviction. Brown v. State, 545 So. 2d 106 (Ala.Cr.App.1988), aff'd, Ex parte Brown, 545 So. 2d 122 (Ala.1988), cert. denied, 493 U.S. 100, 110 S. Ct. 257, 107 L. Ed. 2d 206 (1989). James Lynn Bynum was convicted of the lesser offense of murder and was sentenced to life imprisonment. Bynum v. State, 527 So. 2d 177 (Ala.Cr.App.1988). | May 24, 1991 |
65515b50-1843-4c65-be31-8272a267b087 | Ross v. State | 581 So. 2d 495 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 495 (1991)
Ex parte State of Alabama.
(Re Judge ROSS, Jr. v. STATE).
89-1800.
Supreme Court of Alabama.
April 19, 1991.
Don Siegelman, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for petitioner.
John Bertolotti, Jr., Mobile, for respondent.
MADDOX, Justice.
The issue presented by this petition is whether an appellant may raise a Batson[1] claim under the posture of an allegation of ineffective assistance of counsel. More than three months after he was sentenced, the defendant, Judge Ross, Jr., alleged in his untimely pro se motion for new trial *496 that his trial counsel had failed to adequately prepare for trial and had failed to challenge, under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the prosecutor's use of peremptory strikes to strike "several" blacks from the jury venire. In his motion, Ross also challenged the trial court's charge to the jury.
On November 28, 1988, Ross was convicted in the Mobile Circuit Court of murder and on December 16, 1988, the trial court sentenced him under the Habitual Felony Offender Act to life imprisonment without the possibility of parole and appointed Barbara A. Brown as his counsel on appeal. Ms. Brown filed a written notice of appeal and on March 29, 1989, more than three months after he was sentenced, Ross filed a pro se motion for new trial, making the aforementioned allegation of ineffective assistance of counsel. The trial court denied his motion, and Ross appealed. The Court of Criminal Appeals, 581 So. 2d 494, reversed the judgment and remanded the case for the trial court to hold a full evidentiary hearing with reference to Ross's allegation that a Batson violation occurred and also with regard to Ross's claim of ineffective assistance of counsel. We granted the State's petition for the writ of certiorari.
This Court has expressly held that "in order to preserve the issue for appellate review, a Batson objection, in a case in which the death penalty has not been imposed, must be made prior to the jury's being sworn." (Emphasis added.) Bell v. State, 535 So. 2d 210, 212 (Ala.1988); see Robinson v. Birmingham-Jefferson County Transit Authority, 555 So. 2d 173 (Ala.1989); McGruder v. State, 560 So. 2d 1137, 1142 (Ala.Cr.App.1989); Saffold v. State, 536 So. 2d 970, 971 (Ala.Cr.App.1988); and Williams v. State, 530 So. 2d 881, 884 (Ala.Cr.App.1988). In this case, Ross made no Batson objection until three months after he was sentenced, in an untimely motion for new trial. Thus, in light of our decision in Bell and in those cases expressly adopting its holding, we must conclude that Ross did not properly preserve for appellate review the issue of the composition of the jury under Batson.
The issue then becomes whether Ross's untimely motion for new trial is sufficient to raise his claim of ineffective assistance of counsel. An appellate court's review on appeal is limited to matters seasonably raised in the trial court. "Even questions involving constitutional rights must be seasonably raised at the trial court level." Johnson v. State, 480 So. 2d 14, 17-18 (Ala.Crim.App.1985); see Spradley v. State, 414 So. 2d 170, 172-73 (Ala.Cr.App. 1982); and Smoke v. State, 347 So. 2d 564 (Ala.Cr.App.1977). Rule 24.1(b), Ala.R. Crim.P., states the following:
Ross delayed more than 90 days from his date of sentencing before filing his motion for new trial. The trial court has no jurisdiction to consider an issue raised in an untimely motion for new trial. Ex parte Hayden, 531 So. 2d 940, 941 (Ala. Crim.App.1988). A claim first presented in an untimely motion for new trial is not preserved for appellate review and may not be considered on appeal from the judgment of conviction. Ex parte O'Leary, 417 So. 2d 232, 240 (Ala.1982).
Thus, for purposes of Ross's appeal, both his claim under Batson and his claim of ineffective assistance of counsel are procedurally barred. In all but capital cases, alleged error in a criminal proceeding must be properly preserved before an appellate court will examine it; therefore, it is incumbent upon defense counsel to adequately preserve alleged errors in a proceeding by making an appropriate and timely objection.
Perhaps judicial time and energy could be conserved by remanding this case and requiring the trial court to hold a hearing, rather than leaving the defendant to file a *497 Rule 32, Ala.R.Crim.P. (Temp. Rule 20), petition at a later date. However, it is possible that Ross's issues may be barred completely, both now and upon a Rule 32 petition.
The Alabama Rules of Criminal Procedure are intended to "secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare." Rule 1.2, Ala.R.Crim.P. In drafting these rules, the Court's advisory committee recognized that "rules of law are difficult to administer unless they are set forth in a form which is intelligible to the officers who are to act under them and to all persons whose rights are affected by them and who are required to conform to them." (Emphasis added.) Committee Comments, Rule 1.2, Ala.R.Crim.P.
For the foregoing reasons, we hold that the trial court correctly denied the defendant's motion for new trial, because the trial court was without jurisdiction to consider it. Therefore, we reverse the Court of Criminal Appeals' ruling remanding the case to the trial court for an evidentiary hearing and we remand the case to the Court of Criminal Appeals for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
KENNEDY, J., dissents.
[1] Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), states:
"[P]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure. The very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds."
476 U.S. at 86, 106 S. Ct. at 1717. | April 19, 1991 |
05cb599f-3c7d-47e4-ac9c-3b3148e6123f | Tidwell v. Waldrop | 583 So. 2d 243 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 243 (1991)
Betty H. TIDWELL and Frank W. Tidwell
v.
Hugh Don WALDROP, et al.
89-1220.
Supreme Court of Alabama.
April 26, 1991.
Rehearing Denied June 7, 1991.
William R. Murray, Northport, for appellants.
John W. Kelley III of Sikes & Kelley, Selma, and John B. Butts, Tuscaloosa, for appellees.
PER CURIAM.
This matter was here once before on an appeal and a cross-appeal. Tidwell v. Waldrop, 554 So. 2d 1009 (Ala.1989). Frank and Betty Tidwell had sued attorneys Hugh Don Waldrop and John B. Butts in a legal malpractice action. As to the appeal, we affirmed the trial court's summary judgment entered in favor of the defendants. As to the cross-appeal brought by defendant Butts, we remanded for treatment of an issue concerning the adequacy of the amount of attorney fees awarded to Butts by the trial court. The evidence was *244 undisputed that Butts had incurred attorney fees of more than $3,000 in defending the suit. The trial court awarded Butts $500, pursuant to the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq.
The remand order directed the trial court to reconsider the award of attorney fees and to set forth, in a statement, its reasons both for the award and for the amount to be assessed, as required by § 12-19-273.
Section 12-19-273 specifically requires a trial court to consider, among other factors, those set out in the statute and requires a trial court to recite in its order its reasons for awarding attorney fees and costs. The Colorado Court of Appeals, in interpreting a statute similar to § 12-19-273, said that a trial court was required to consider:
Ruffing v. Lincicome, 737 P.2d 440, 441 (Colo.App.1987). The Colorado court went on to hold that "[a] party does not have an absolute right to attorney fees incurred, but rather is entitled only to the reasonable attorney fees which the court, in its discretion, deems just." Id. at 442 (citing Colo. Sess.Laws 1977, ch. 189, §§ 13-17-101 and -102).
The Alabama Litigation Accountability Act is similar to the Colorado act and allows a trial court to assess reasonable attorney fees and costs when the court determines that an action, claim, or defense is without substantial justification, in whole or in part. § 12-19-272(a). A trial court has discretion in determining the amount of an award; however, it must specifically set forth the reasons for its award. § 12-19-273. Section 12-19-273 lists the factors the trial court must consider. Those factors basically fall into five groups: (1) those dealing with whether the plaintiff or the plaintiff's attorney made a reasonable inquiry prior to and after commencement of the suit, see id. (1), (2), (10), (11), (12); (2) one dealing with the availability of facts to the plaintiff or the plaintiff's attorney, see id. (3); (3) one dealing with the financial position of the parties, see id. (4); (4) one dealing with whether there were factual issues "reasonably in conflict," see id. (6); and (5) one dealing with whether the plaintiff or the plaintiff's attorney acted in bad faith or with a lack of good faith, see id. (5), (8). The Alabama statute also requires the court to consider the extent to which the party seeking an award of attorney fees prevailed, see id. (7), and the relationship between the amount or conditions of an offer of judgment or settlement and the amount or conditions of the ultimate relief granted, see id. (9).
In its order on remand, the trial court considered each relevant factor and found that the action should never have been instituted against Butts and certainly should have been dismissed after commencement. The evidence presented by Butts as to the amount of his attorney fees (over $3000) was not contested, and the trial court, on remand, awarded Butts $3,125 for his attorney fees, to be paid by the plaintiffs' attorney.[1]
The question presented by the present appeal is whether the trial court abused its discretion as to the amount of the award. We find that the trial court did not abuse its discretion. We further find that the trial court's entry of the statement required by § 12-19-273 is adequate compliance with our remand order and with § 12-19-273.
*245 The trial court's order awarding attorney fees is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, STEAGALL and INGRAM, JJ., concur.
[1] This appeal was brought in the name of the plaintiffs. In an appeal from awards of attorney fees brought under the Alabama Litigation Accountability Act assessed against the attorney only, it is proper to bring the appeal in either the attorney's name or the name of the party he was representing at the time attorney fees were assessed against him. | April 26, 1991 |
1d0f8926-c28d-41a2-b705-90eeea0750b9 | Livingston v. Auto Owners Ins. Co. | 582 So. 2d 1038 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 1038 (1991)
Wanda LIVINGSTON
v.
AUTO OWNERS INSURANCE COMPANY, et al.
89-829.
Supreme Court of Alabama.
April 19, 1991.
Rehearing Denied June 14, 1991.
Jere L. Beasley and Kenneth J. Mendelsohn of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellant.
Michael B. Beers and Michael S. Jackson of Beers, Anderson, Jackson & Smith, Montgomery, for appellees.
ADAMS, Justice.
This is an appeal from a summary judgment entered in favor of Auto Owners Insurance Company (hereinafter "Auto Owners") on Wanda Livingston's claim for damages based on an alleged bad faith failure to pay benefits under a fire insurance policy. Mrs. Livingston's claim based on breach of contract was settled shortly before trial when Auto Owners stipulated that she was entitled to a judgment as a matter of law on that claim. We reverse and remand.
Viewed most favorably to the plaintiff, the evidence before the court on the summary judgment motion would suggest the following facts:
In 1983, Wanda Livingston, who owned a house in Montgomery, purchased a second house in Tallassee, Alabama, and she and *1039 her husband, William K. Livingston, moved into that house. Sometime later, due to an automobile accident in which Mr. Livingston was injured, the Livingstons moved back to their Montgomery house so that they could be closer to Mr. Livingston's bail bond business, which was located in Montgomery. While the Livingstons initially contemplated selling the Tallassee house, they decided that they wanted to live there after retirement and decided to rent the house rather than sell it. Mrs. Livingston rented the house to Mr. and Mrs. Doug Goodwin for $600 per month.
When Mrs. Livingston first purchased the Tallassee house, she insured it through the Cousins Insurance Agency. In 1988, Cousins refused to renew the policy because the Livingstons were not occupying the house. Mrs. Livingston then contacted the Palomar Insurance Company seeking to insure the house. Mrs. Livingston informed the Palomar agent, Gayle Coltrain, that the Livingstons were not living in the Tallassee house at that time. Ms. Coltrain contacted Auto Owners to see if it would write a policy for 100% replacement cost coverage even though the Livingstons were not living in the house at the time. Auto Owners informed Ms. Coltrain that it would write such a policy. Ms. Coltrain filled out and submitted an Auto Owners application and an "Auto Owners Residential Replacement Cost Estimator" pursuant to the "Auto Owners Residential Replacement Cost Guide."
While the house had originally been insured with the Cousins Agency for $156,000, Ms. Coltrain determined that the replacement cost of the house was in excess of $186,000 and that the house had been underinsured at the previous coverage of $156,000. Ms. Coltrain submitted the application for coverage based on a $185,000 replacement cost. Auto Owners issued the policy, with an effective date of February 18, 1988. The premiums were based on the $185,000 replacement cost.
During the night of May 14, 1988, Mrs. Livingston's Tallassee house was totally destroyed by fire. At this time, the Goodwins were occupying the house. It was later determined that the fire was caused by flammable liquids that had been poured throughout the house. Mrs. Livingston was told of the fire on the morning of May 15, 1988. After visiting the scene, she notified Ms. Coltrain, who informed Auto Owners of the loss. The Auto Owners adjuster, Mr. Ken Vaughn, determined that the house was a total loss. Apparently, because of the suspicious nature of the fire and because it could not handle the investigation, Auto Owners hired an independent adjuster, an appraiser, and a fire investigator to investigate the cause of the fire and to investigate the claim filed by Mrs. Livingston. Auto Owners' own agents also did some investigation regarding the claim, and the state fire marshal also investigated the fire and its cause.
Auto Owners asked the fire investigator, Mr. Richard Keith, to conduct a "cause and origin" investigation and a full "courthouse and financial" check. Mr. Keith conducted a full investigation of the scene, which included removing debris and sending it to a testing laboratory for analysis. Mr. Keith also met with the Livingstons, who executed an authorization form allowing him access to records and information pertaining to the Livingstons' financial transactions with banks, savings institutions, governmental agencies, and creditors. While the Livingstons authorized Mr. Keith to investigate their personal affairs, Mr. Livingston would not allow an examination of records relating to his business. However, Mr. Keith never requested specific records from the Livingstons, but rather requested only that they sign the blanket authorization form.
Mr. Keith submitted several reports to Auto Owners detailing his findings. Included in these reports were recorded statements of the Livingstons and the Goodwins, diagrams of the house, and various items related to the Livingstons' finances. Mr. Keith found that while there appeared to be some items belonging to the Goodwins missing from the Tallassee house, such as guns and some clothes, there was no direct evidence that indicated that the Livingstons had started the fire. On July 6, 1988, in his final report, Mr.
*1040 Keith indicated that he had completed his work and had uncovered no evidence as to who started the fire. On August 9, 1988, Mr. Keith closed his file on the matter.
The independent adjuster hired by Auto Owners, Mr. Fountain, was conducting his investigation at the same time Mr. Keith was conducting his investigation. Mr. Fountain also spoke with the Livingstons and visited and examined the burned house. He measured the house and photographed it. He determined that the house had contained 5,200 square feet. Mr. Fountain never found any evidence, and did not indicate in any of his reports that the Livingstons were responsible for the fire.
As part of his report to Auto Owners, Mr. Fountain estimated the total replacement cost of the house at $260,000. This figure was calculated by multiplying 5,200 square feet by $50, an estimated building cost per square foot. Mr. Fountain further determined the actual cash value of the house (replacement cost minus depreciation) to be $208,000. The policy issued by Auto Owners provided that if the owner decided to rebuild the house then the owner was entitled to the full replacement cost. If, however, the owner chose not to rebuild, the owner was entitled only to the cash value.
The appraiser hired by Auto Owners, Ms. O'Daniel, appraised the destroyed house as Mr. Fountain completed his work. She based her appraisal on a $40 per square foot value. Her appraisal also reduced the value of one room of the house to $15 per square foot and showed a lower total square footage than Mr. Fountain's calculations.
By July 15, 1988, the investigations of Mr. Keith and Mr. Fountain were complete. Also, on July 15, 1988, the state fire marshal completed his investigation. His report specified that the cause of the fire was incendiary, but he reported no evidence to indicate that the Livingstons were responsible. Auto Owners, nevertheless, continued its investigation. Pursuant to the request of Auto Owners' attorney, the Livingstons provided sworn statements and made certain personal financial information available to Auto Owners. Auto Owners still had no evidence indicating that the Livingstons were responsible for the fire.
On August 16, 1988, with her claim unpaid, Mrs. Livingston sued Auto Owners, alleging breach of contract, misrepresentation, and bad faith failure to pay, and seeking compensatory and punitive damages. Auto Owners petitioned to have the case removed to federal district court and filed its answer in federal court. Auto Owners counterclaimed, seeking declaratory relief in the form of an order dismissing Mrs. Livingston's complaint. The case was remanded to the state court. Once back in the state court, and before any discovery, Auto Owners filed a motion for summary judgment and a motion to stay all proceedings until the trial court could rule on the motion for summary judgment. The trial court granted the motion to stay for 30 days to allow Auto Owners to decide whether to adjust the claim or to deny payment. Auto Owners decided to proceed with adjustment of the claim.
Auto Owners' adjuster, Mr. Vaughn, offered Mrs. Livingston $138,400 based on the appraisal Auto Owners had received from Ms. O'Daniel. This figure was about $70,000 less than the value calculated by Mr. Fountain. Mrs. Livingston refused this offer.
Auto Owners then petitioned this Court for a writ of mandamus to address the following issues:
The petition was denied on August 30, 1989. Auto Owners renewed its petition for removal to federal court, which was again denied, and the case was again remanded. On February 7, 1990, the trial court granted Auto Owners' motion for summary judgment as to the bad faith claim, but denied it as to the breach of contract claim, which was set for trial. On the morning of trial, Auto Owners stipulated that Mrs. Livingston was entitled to a judgment as a matter of law on the contract claim, and it settled that claim. The trial court entered judgment on the settlement of the contract claim and made the summary judgment on the Livingstons' bad faith claim final pursuant to Rule 54(b), A.R.Civ.P.
The only issue raised on this appeal is whether the trial judge properly granted Auto Owners' motion for summary judgment. Before specifically examining the propriety of the summary judgment, we must review our prior decisions regarding the tort of bad faith failure to pay insurance benefits.
This Court has, on numerous occasions, delineated what is required of a plaintiff asserting bad faith failure to pay. The elements of a bad faith claim were most clearly set out by this Court in National Sec. Fire & Cas. Co. v. Bowen, 417 So. 2d 179 (Ala.1982). In Bowen, we stated:
Id. at 183. (Emphasis original.) See also Chavers v. National Sec. Fire & Cas. Co., 405 So. 2d 1 (Ala.1981). We conclude that Mrs. Livingston has established the first two elements. There is no dispute that an insurance contract existed between Mrs. Livingston and Auto Owners or that there was a breach of that contract. Just prior to the scheduled trial on the breach of contract claim, Auto Owners stipulated that Mrs. Livingston was entitled to a judgment as a matter of law on the contract claim, thereby admitting that it had breached the contract. Whether Auto Owners ever actually denied Mrs. Livingston's claim is not as clear; we conclude, however, that Auto Owners' investigative tactics amounted to a denial of the claim.
Auto Owners' investigation of Mrs. Livingston's claim consisted of work by an independent fire investigator, an independent *1042 insurance adjuster, and an independent appraiser and a consideration of the report of the state fire marshal. The investigation began after the fire on May 14, 1988, and was apparently completed around July 15, 1988. Auto Owners believed that the cause of the fire was suspicious, and its in-house adjuster, Mr. Vaughn, believed the fire was deliberately set. While the reports of Mr. Keith, Mr. Fountain, and the fire marshal all confirmed Auto Owners' belief that the fire was deliberately set, there was no evidence indicating that the Livingstons were responsible. Nevertheless, Auto Owners wanted to take sworn statements from the Livingstons, although this had been done previously both by Mr. Keith and by Mr. Fountain. Although these additional statements did not reveal any new evidence, Auto Owners continued its investigation in the hope of finding some evidence upon which it could deny the claim because it believed the fire to have been the result of arson by the Livingstons.
While Auto Owners never directly denied Mrs. Livingston's claim, the evidence was such that a jury could find that its prolonged investigation after all the facts had been gathered amounted to a last-ditch effort to find some evidence to support its suspicions that the Livingstons started the fire and, thus, to deny the claim. A jury could find that this effectively amounted to a denial of the claim. Auto Owners asserts that Mrs. Livingston's suit was premature because, it says, it had not completed its investigation when the suit was filed. However, based on the evidence a jury could find there was nothing more that Auto Owners could investigate. While we agree that Auto Owners had the right to conduct a reasonable investigation into the loss, it did not have the right to prolong the investigation and delay action in such a manner as to defeat the rights of its insured. Moreover, Auto Owners could not continue an investigation based solely on its unsupported suspicions and its hopes that it would turn up evidence that the Livingstons were responsible for the fire when nothing had been discovered that pointed to that conclusion. We hold, therefore, that under the facts of this case, a jury could find that Auto Owners' investigation was protracted and that its delay was unwarranted and amounted to a denial of Mrs. Livingston's claim.
The third element of Bowen requires that the plaintiff establish the absence of any reasonably legitimate or arguable reason for the refusal to pay. In other words, the nonpayment must be more than mere nonpayment; it must be a bad faith nonpayment. Because this case comes to us on a summary judgment in favor of Auto Owners on Mrs. Livingston's bad faith claim, we must determine whether Mrs. Livingston presented substantial evidence that Auto Owners acted in bad faith. In short, for Mrs. Livingston to defeat Auto Owners' properly supported motion, she had to produce substantial evidence of Auto Owners' bad faith failure to pay.
A.R.Civ.P. 56 sets forth the two-tiered standard for granting a motion for 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. This standard is read in conjunction with the "substantial evidence" rule in Ala.Code 1975, § 12-21-12, for cases filed after June 11, 1987. Section 12-21-12 provides that in order to defeat a properly supported motion for summary judgment a party must present substantial evidence in support of his claim. 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." See also Bass v. Southtrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989), and Economy Fire & Cas. Co. v. Goar, 551 So. 2d 957 (Ala.1989).
As we have stated, there was evidence that Auto Owners unceasingly attempted to uncover evidence that would indicate that the Livingstons were responsible for the fire. The evidence indicates that this was done even after the reports submitted by the investigators and the adjusters, as *1043 well as the state fire marshal, presented nothing to indicate culpability on the part of the Livingstons. We find no evidence in the record that could even remotely tie the Livingstons to the setting of the fire. All that Auto Owners had was its suspicions.
In the analogous case of Chavers v. National Sec. Fire & Cas. Co., 405 So. 2d 1 (Ala.1981), we stated that where evidence of arson by the insured was slight, mere suspicion and speculation that new evidence will present itself at some future date is not reasonable grounds upon which to deny a claim. Specifically, we stated:
Id. at 10. In the present case, there is evidence that Auto Owners followed the same practice followed by the insurer in Chaversstalling, with the hope that some evidence would be revealed to indicate that the insured was responsible for the fire.
Given the fact that Auto Owners based its denial solely on its unsupported suspicions of arson by the insured, Mrs. Livingston presented more than substantial evidence that Auto Owners' failure to pay was made in bad faith. The evidence presented by Mrs. Livingston could raise an inference that Auto Owners' denial was made in bad faith, as the facts tend to show it had no legal, justifiable, arguable, or debatable reason for the denial, and her evidence easily satisfies the substantial evidence requirement. Moreover, as we stated in Chavers:
Id. at 10. While we do not presume to decide the merits of this case, the evidence presented by Mrs. Livingston substantially supported her allegation that Auto Owners acted in bad faith in denying her claim. The evidence is of such quality and weight that, if believed, it would clearly support the claim of bad faith failure to pay. That evidence must be submitted to the jury.
For the reasons set out above, the judgment is reversed and the cause is remanded for a trial on Mrs. Livingston's claim of bad faith failure to pay.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and KENNEDY and INGRAM, JJ., concur.
STEAGALL, J., concurs in the result.
MADDOX and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
The action seeking damages for bad faith was filed within 60 days of the date that Ms. Livingston filed her proof of loss with Auto Owners Insurance Company. The policy issued to Ms. Livingston by Auto Owners contained the following provision:
At the time suit was filed alleging bad faith against Auto Owners, Auto Owners had not made any final decision as to the adjustment or denial of Ms. Livingston's claim. In order to determine the sufficiency of Ms. Livingston's evidence of bad faith, we must view only the actions of Auto Owners prior to August 16, 1988, the date this suit was filed.
The fire occurred on May 14, 1988; the proof of loss was filed on June 23, 1988; and this action was filed on August 16, 1988.
The house was intentionally set on fire by the pouring of flammable liquids throughout the house. The fire occurred three months after Auto Owners had issued the fire insurance policy. The policy provided $30,000 more coverage than Ms. Livingston had previously had on the house. This increase was based on the *1044 insurance agent's recommendation that Ms. Livingston should obtain 100% replacement coverage to replace the Livingstons' "dream house," in which they hoped to retire. After the fire, Auto Owners learned that the house was actually in poor condition and had shown evidence of substantial termite damage and roof leakage damage shortly before the fire. The house had been placed on and off of the market for sale without successinitial sales price being $149,500, which price was later reduced by Ms. Livingston. There were two mortgages on the house. One mortgage had a monthly payment of $438 a month; the other had a payment of $8,000 due in July of each year. The house was leased to a former employee of Mr. Livingston, who had had numerous fire and theft claims with various insurance companies. The tenant paid $600 a month rent, which was $6,056 less annually than the combined mortgage payments on the house. Ms. Livingston's former employee was the last known person to leave the house, and he admitted that the house was fully locked and secured when he left. There was no evidence of forcible entry to the house. After the fire, all doors to the house were found locked except one. Mr. Livingston testified that the Livingstons did not have a key to the house. Ms. Livingston testified that they did have a key and that the Livingstons and the tenant were the only ones who had keys to the house. The Livingstons had refused to furnish Auto Owners financial information, other than the fact that Mr. Livingston's annual salary was approximately $13,000 and that Mr. Livingston's only source of income came from his bail bonding company. Upon advice of counsel, the Livingstons had refused to furnish any information concerning the finances of the bail bonding company.
I must hold that the trial court ruled properly in granting Auto Owner's motion for summary judgment on Ms. Livingston's claim based on an alleged bad faith failure to pay. Certainly, under the facts in this case, Auto Owners should have had at least 60 days from the date the proof of loss was filed (the period of time provided in the policy of insurance) to evaluate the claim.
Insurance companies should exercise good faith. The bedrock of our bad faith causes of action is:
Chavers v. National Sec. Fire & Cas. Co., 405 So. 2d 1, 6 (Ala.1981). However, a bad faith action should rest on a firmer foundation than the evidence in this case, even considering the undisputed facts and the most favorable view that could be taken of the disputed evidence.
MADDOX, J., concurs. | April 19, 1991 |
fe448b7b-1424-4aec-b5dc-8023a7a8cdbc | Valentine v. Ireland | 580 So. 2d 581 | 1900030 | Alabama | Alabama Supreme Court | 580 So. 2d 581 (1991)
Richard VALENTINE
v.
Judson R. IRELAND.
1900030.
Supreme Court of Alabama.
April 19, 1991.
James R. McKoon, Jr., Phenix City, for appellant.
Kenneth L. Funderburk, Phenix City, for appellee.
SHORES, Justice.
This is a boundary line dispute between the coterminous owners of Lots 5 and 6 of Byrd Shores Subdivision, on Lake Oliver, Section 22, Township 18, Range 30, Lee County, Alabama. On September 28, 1989, *582 Dr. Judson R. Ireland, owner of Lot 6, filed a complaint pursuant to Alabama Code 1975, § 35-3-1 et seq., against Dr. Richard Valentine, owner of Lot 5. Ireland sought to have the court determine the boundary line and sought ejectment. Valentine counterclaimed, asserting his claim to portions of Lot 6 based upon a claim of adverse possession.
This case was tried on May 1, 1990, ore tenus. The trial judge entered a judgment in favor of Ireland, establishing the disputed boundary line in accordance with the survey made by Bobby R. Hobbs, a registered land surveyor. He held that Valentine had acquired no portion of Lot 6 by adverse possession. Valentine filed a motion for a new trial, or, in the alternative, to alter or amend the judgment. That motion was denied. Valentine appeals. We affirm.
When a trial judge, without a jury, hears ore tenus evidence in a boundary line dispute, the judgment determining the boundary line is presumed correct and will be upheld if supported by credible evidence. Bell v. Jackson, 530 So. 2d 42 (Ala.1988); Nelson v. Styron, 524 So. 2d 353 (Ala.1988); Helms v. Powell, 514 So. 2d 1025 (Ala.1987); Chamblee v. Weeks, 557 So. 2d 1215 (Ala.1989); Waldrop v. Knight, 562 So. 2d 234 (Ala.1990).
We have carefully reviewed the record in this case and find credible evidence that supports the judgment. The trial judge determined the boundary line on the basis of a survey by a registered land surveyor made in accordance with the 1962 Byrd Shores Subdivision plat filed in the Probate Court of Lee County, Alabama. This survey showed Valentine to have encroached on Ireland's property.
We find no merit in Valentine's claim of adverse possession. This Court has explained the requirements of proof to establish adverse possession as follows:
Doss v. Duggan, 555 So. 2d 116, 117 (Ala. 1989). Valentine does not qualify under either theory of adverse possession.
For the reasons stated above, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | April 19, 1991 |
064c88c0-6577-407f-accf-0d3f1c070c01 | Morris v. Strickling | 579 So. 2d 609 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 609 (1991)
Steve MORRIS and Jack Morris
v.
John R. STRICKLING and Sue S. Strickling.
89-1166.
Supreme Court of Alabama.
April 26, 1991.
*610 Steven E. Haddock of Hardwick, Knight & Haddock, Decatur, for appellants.
Samuel H. Franklin and E. Glenn Waldrop, Jr. of Lightfoot, Franklin, White & Lucas, Birmingham, for appellees.
ADAMS, Justice.
This is an appeal from a summary judgment in favor of the defendants, John and Sue Strickling. In 1986, the Stricklings purchased a tract of unimproved land in Decatur, which they intended to develop into a residential subdivision known as Sherwood Oaks. The Stricklings cleared the land and constructed curbs, gutters, drainage ditches, sewer mains, etc. The plaintiffs, Steve Morris and his father, Jack, purchased a vacant lot in the recently developed subdivision for the purpose of building a house to sell. At the time of the purchase, the Morrises did not question the Stricklings regarding the suitability of the lot for the construction of a house, nor did they request that any subsurface soil tests be performed. After the house was constructed, they began to notice that there was excessive leakage in the crawl space under the house. Subsequently, a crack developed along the foundation of the house and the Morrises discovered all types of trash near the base of the house. Thereafter, they discovered that the lot on which the house was situated had, at some time previously, been a trash dump site.[1] They sued the Stricklings, alleging breach of an implied warranty with respect to the sale of the lot; fraudulent misrepresentation; suppression of a material fact; deceit; negligent development or construction of the lot; and strict liability in tort. The trial judge entered a summary judgment as to all claims, holding that the doctrine of caveat emptor applied to the sale of the lot and, therefore, that the Stricklings were entitled to a judgment as a matter of law. See Rule 56(c), A.R.Civ.P. The Morrises appeal. We affirm.
The Morrises argue that the exception to the caveat emptor rule as stated in Cochran v. Keeton, 287 Ala. 439, 252 So. 2d 313, 314 (1971) (holding that the rule of caveat emptor would no longer be applicable to the sale of a newly constructed house, and recognizing an implied warranty of fitness and habitability with regard to such sales), should be extended to situations, such as the one at bar, involving the purchase of an unimproved piece of property. We disagree.
The Court of Civil Appeals has addressed the purchase of real estate as follows:
Scott v. Gill, 352 So. 2d 1143, 1145 (Ala.Civ. App.1977). While the Morrises argue that the Scott case dealt with "raw, vacant and unimproved land" as opposed to land improved for the purpose of building houses, we are unwilling to extend the Cochran exception to land with no dwelling, because *611 we are of the opinion that the dispositive question would then become the often difficult question of whether a particular parcel is "improved" or "unimproved" and, if "improved," then for what purpose. Thus, we conclude that the trial court did not err in entering the summary judgment as to the breach of warranty claim.
Likewise, the trial court did not err in entering summary judgment with regard to the Morrises' claims for misrepresentation, deceit, and suppression. The Morrises did not question the Stricklings regarding the suitability of the lot that was purchased; and, in addition, the subdivision plans were public records and, as such, were available to the Morrises.
With regard to the Morrises' claim of strict liability in tort, again, the doctrine of caveat emptor precludes recovery and, therefore, summary judgment was proper. The Morrises' claim that the Alabama Extended Manufacturer's Liability Doctrine should be applied to this case is rejected.
For the foregoing reasons, the judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
MADDOX, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] The fact that the lot purchased by the Morrises had previously been a dump site was a matter of public record, because it was disclosed on the subdivision site plan filed with the Decatur City Planning Commission. | April 26, 1991 |
73e433d9-b747-4429-aacf-0aaff0080234 | Fitzner Pontiac v. Perkins and Assoc. | 578 So. 2d 1061 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1061 (1991)
FITZNER PONTIAC-BUICK-CADILLAC, INC.
v.
PERKINS AND ASSOCIATES, INC.
89-827.
Supreme Court of Alabama.
April 26, 1991.
*1062 Thomas A. Nettles IV of Espy, Nettles and Scogin, Tuscaloosa, and Michael R. Farrow, Columbus, Miss., for appellant.
Ritchie L. Tipton of deGraffenried, Tipton & Donaldson, Tuscaloosa, for appellee.
ALMON, Justice.
This is an appeal from a judgment entered in favor of the plaintiff, Perkins and Associates, Inc. ("Perkins") in the amount of $22,514.23, and against the defendant, Fitzner Pontiac-Buick-Cadillac, Inc. ("Fitzner"), in an action based on work and labor done.
Perkins, an advertising agency located in Tuscaloosa, entered into an agreement with Fitzner, an automobile dealership located in Columbus, Mississippi, wherein Perkins promised to produce and place television, radio, and newspaper advertisements for Fitzner. The parties did not execute a written contract. A substantial dispute arose over the amount of money Fitzner was obligated to pay Perkins. A brief explanation of how Perkins billed Fitzner is necessary for an understanding of the dispute.
According to the testimony of Perkins's witnesses, advertising costs are divided into two main components: "production" costs and "media" costs. Production costs are those incurred in the actual production of commercials and advertisements. They include salaries to "in-house" artists and technicians and other miscellaneous expenses. Production costs also include fees charged by "outside" artists, production crews, and studios. Media costs are those incurred in placing the advertisements in newspapers and in obtaining broadcast time for television and radio commercials.
Fitzner contended at trial, and continues to argue, that under the terms of its agreement with Perkins it was obligated to pay, with respect to production costs, only a one-time fee of $10,000 for all of the production costs incurred in the advertising campaign. Perkins disagreed, arguing that the $10,000 fee paid only for the production costs incurred during the initial phase of the campaign. An additional disagreement arose over the amount of media costs charged by Perkins. Although the parties tried to resolve their dispute, Fitzner refused to pay all additional production cost invoices. However, Perkins apparently continued to produce and place advertisements and to send invoices to Fitzner.
Over the course of their relationship, Perkins billed Fitzner a total of $71,576.42. Of that amount, production cost invoices totaled approximately $32,000. Fitzner paid Perkins a total of $48,181.66, leaving a difference claimed by Perkins of $23,394.76. Fitzner consistently refused to pay any portion of that amount that represented production costs in excess of $10,000. Perkins filed a complaint asserting a number of theories of recovery, including work and labor done. After hearing oral testimony and considering documentary evidence, the court held that Perkins was entitled to $22,514.23 under its theory of work *1063 and labor done, and entered a judgment for Perkins in that amount.
Fitzner appeals from that judgment, arguing that: (1) the trial court erred by awarding Perkins any production cost damages in excess of $10,000, because, it says, that was the price orally agreed on for all production costs; and (2) it was entitled to a "directed verdict"[1] because, it says, Perkins failed to produce any evidence regarding the reasonable value of the services performed by it.
The ore tenus rule applies to this case. Therefore, the trial court's judgment, and all supporting findings of fact, are presumed correct, and the judgment will be reversed only if, after a consideration of the evidence and all reasonable inferences that can be drawn therefrom, it is found to be plainly and palpably wrong. McInnis v. Lay, 533 So. 2d 581 (Ala. 1988).
The trial court did not make specific findings of fact addressing Fitzner's first argument. Because this case was tried ore tenus, this Court will assume that the trial court made the findings that were necessary to support its judgment, unless such findings would be clearly erroneous or against the great weight of the evidence. Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538 (Ala.1988). A review of the record reveals conflicting evidence regarding the terms of the oral agreement. Ivy Hunter, a former bookkeeper for Perkins, testified that the $10,000 payment agreed to by Fitzner paid only for production costs for the initial "image" phase of the advertising campaign. That evidence supports the court's implicit finding that Perkins did not agree to accept $10,000 as payment for the production costs incurred in all of the phases of the campaign. Because that finding is not plainly and palpably wrong, it does not provide a basis for reversing the judgment. McInnis, supra; Justice, supra.
Fitzner's second argument is that Perkins did not produce sufficient evidence of the reasonable value of its services, a crucial element of the theory of work and labor done. Jones v. Mullin, 251 Ala. 501, 504, 38 So. 2d 281, 284 (1949); Terry Realty Co. v. Martin, 220 Ala. 282, 283, 124 So. 901, 903 (1929); Knox v. Moore, 475 So. 2d 1199, 1201 (Ala.Civ.App.1985). It contends that that alleged failure warranted an involuntary dismissal of Perkins's action. However, Hunter testified in some detail about the methods Perkins used to bill Fitzner for its services. She further testified that she had at least five years of experience in the advertising industry, and that Perkins's methods for computing costs were consistent with the customary practice in the industry in the southeastern United States. This evidence supports the implicit finding that Perkins's charges were, on the whole, consistent with the reasonable value of the services performed. Although Fitzner presented evidence tending to show that the production costs were, in its opinion, unreasonably high, that evidence simply created a fact question for the trial court to decide. Therefore, the court correctly denied Fitzner's motions for an involuntary dismissal.
For the reasons set out above, this Court cannot say that the judgment was against the great weight of the evidence or was otherwise plainly and palpably wrong. Therefore, it is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Fitzner's motion was denominated a motion for a directed verdict. However, because this was a nonjury trial, it would properly be construed as a Rule 41(b), Ala.R.Civ.P., motion for involuntary dismissal. Mareno v. Board of Adjustment, 495 So. 2d 1109 (Ala.Civ.App.1985), cert. denied, 495 So. 2d 1112 (Ala.1986). | April 26, 1991 |
0435d2eb-b873-446e-b8e7-8ee25d6a4ce6 | Tate v. Kennedy | 578 So. 2d 1079 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1079 (1991)
Sherley TATE
v.
Frank KENNEDY, et al.
89-1355.
Supreme Court of Alabama.
May 3, 1991.
*1080 Jack B. Sabatini of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
Daniel C. Boswell of Wolfe, Jones & Boswell, Huntsville, for appellees.
KENNEDY, Justice.
A. Lonnie Nix died in 1953. In his will, he devised all his property to his wife, Osie Cantrell Nix. Mrs. Nix died in 1960. Lonnie Nix's will further provided as follows:
W.M. Nix died in 1987, having no children. Thus, by operation of the will, the tracts of land devised in the will to Lonnie Nix's estate were to revert to Lonnie Nix's estate and be divided "as if [he] had died intestate."
During the course of the administration of Lonnie Nix's estate, some of his heirs filed a petition to remove the administration of the estate to the circuit court and filed a petition for sale of the property in the estate for a division of the proceeds.[1] The circuit court ordered that the administration of the estate be removed to that court. Jimmie Sue Spencer, who was Lonnie Nix's daughter and the executrix of the estate, filed an amendment to a pleading in which she asked the circuit court, inter alia, to "determine the rightful owners of said lands in fee simple." In response, Sherley Tate, who until that time was not a party to the action, filed an answer to Spencer's amended pleading in which he claimed an interest in Lonnie Nix's estate. It is not disputed that Tate was a devisee under the will of Roy Fred Nix, who was Lonnie Nix's brother and who had died in 1979.
A hearing was held to determine the identity of Lonnie Nix's heirs and to decide whether to order a sale for division. Tate claims that, because he is Roy Fred Nix's devisee and because Roy Fred Nix was an heir of Lonnie Nix, he has an interest in Lonnie Nix's estate. The circuit court ordered that Lonnie Nix's heirs were to be determined, not as of the date of Lonnie Nix's death, but as of the date of W.M. Nix's death in 1987. At the time of W.M. Nix's death, Roy Fred Nix was deceased. The circuit court also ordered that the land be sold at public auction. It is from the order setting the date of the determination of heirs that Tate appeals.[2]
*1081 The sole issue before this Court is whether the circuit court erred in holding that the heirs of Lonnie Nix were to be determined as of the date of W.M. Nix's death.
The appellees argue that because the evidence in this case was presented ore tenus this Court must presume that the findings of the circuit court are correct. While this statement is true when ore tenus evidence has been presented, 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 on the evidence. McCulloch v. Roberts, 292 Ala. 451, 296 So. 2d 163 (1974). See Turner v. Clutts, 565 So. 2d 92 (Ala.1990).
In Cole v. Plant, 440 So. 2d 1054 (Ala.1983), this Court stated the following concerning the time at which a deceased's heirs should be determined:
440 So. 2d at 1056-57.
In Cole, Robert Dickson died in 1949. He was survived by his wife and four children. He devised certain real property in fee simple to his daughter, Doris Dickson Plant, provided that at the time of her death she left "bodily issue." The will provided that in the event Plant did not leave "bodily issue," then "the title to said lands shall revert to [the testator's] other heirs or descendants, according to the present Laws of Descent & Distribution, in the Statutes of Alabama."
Subsequently, Dickson's wife and his children (other than Plant) and their spouses conveyed to Plant all of their right, title, and interest in the real property. Plant attempted to sell the property, and the prospective purchaser required, as a condition of the sale, that she institute a quiet title proceeding to establish her right to the subject lands. The circuit court held that Dickson's "heirs or descendants" were to be determined as of the time of the testator's death rather than as of the time of Plant's death.
This Court affirmed, holding that in the context of Dickson's will the term "descendants" was equivalent to the term "heirs." In reviewing the specific provision in the context of the entire will, this Court stated:
440 So. 2d at 1057 (emphasis added in Cole).
In this case, the circuit court found, and we agree, that "other language in the will sheds no light" on the question whether Lonnie Nix's heirs should be determined as of the date of his death or as of the date of W.M. Nix's death. The circuit court then stated as follows:
(Footnote omitted; emphasis in original.)
We disagree with the reasoning of the circuit court. Cole provides that the class of persons who are to take an intestate's estate is to be ascertained as of the time of the intestate's death unless there are "clear and unambiguous indications of a different intention." Cole, at 1056. Such clear and unambiguous indications of a different intention are to be derived from the "context of the will, read in the light of the surrounding circumstances." Cole, at 1056.
The will at issue here states that if W.M. Nix dies without children or their descendants, then the land "shall revert to my estate and be divided as if I had died intestate." There is in this provision nothing clear or unambiguous that indicates an intention to ascertain Lonnie Nix's heirs as of a time other than at his death. On the contrary, we interpret the provision to indicate that Lonnie Nix intended for his heirs to be ascertained as of the time of his death. Moreover, the circuit court found that "[a]lthough the language in the will may indicate that heirs should be determined at Lonnie's death, it is very ambiguous." This finding is notable for two reasons. First, it reveals that the circuit court read the will to indicate that the heirs of Lonnie Nix should be determined as of his death and not as of W.M. Nix's death. Second, the statement indicates that the circuit court misapplied the language in Cole to the controlling provision in Lonnie Nix's will. Cole requires that the heirs of Lonnie Nix be ascertained as of the time of his death unless there is a clear and unambiguous indication to the contrary. Thus, if a will is ambiguous as to when the testator intended his heirs to be ascertained, then courts shall ascertain the heirs as of the time of his death. Only a clear and unambiguous indication of a different intention would allow courts to ascertain the heirs as of a different time. As the circuit court found, Lonnie Nix's will indicates an intention that his heirs be determined as of the time of his death.
The circuit court also found in its order that Lonnie Nix took "every precaution to ensure that only blood relations would acquire his property," and that to ascertain the heirs of his estate as of the time of his death would not achieve that result. We recognize that courts must determine the time at which the heirs of a testator are to be ascertained from the context of the will, "read in light of the surrounding circumstances." See Cole, supra, at 1056. We also recognize that the testator's intent is the polestar in the construction of a will. Smith v. Smith, 387 So. 2d 134 (Ala.1980). See Galin v. Johnson, 457 So. 2d 359 (Ala. 1984). However, we do not agree that surrounding circumstances indicate that ascertaining Lonnie Nix's heirs at the time of his death will achieve a result not intended by him. Lonnie Nix wrote his will in 1938 and he died in 1953. Roy Fred Nix died in 1979, and W.M. Nix died in 1987. The surrounding circumstances indicate that, at the time the will was executed, Lonnie Nix intended to include his brother, Roy Fred Nix, as a beneficiary of his will should W.M. Nix die without children. The *1083 fact that Roy Fred Nix chose to devise his estate to a person not a blood relative does not change the fact that the circumstances surrounding the execution of Lonnie Nix's will indicate an intention to include Roy Fred Nix as a beneficiary under the facts of this case.
Based on the foregoing, we hold that the heirs of Lonnie Nix are to be determined as of the time of his death. The judgment of the circuit court is due to be, and it is hereby, reversed, and the cause is remanded to that court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] Because a full recitation is not necessary, we will set out only that portion of the procedural history of this case necessary to frame the issue raised.
[2] Tate petitioned this court for permission to appeal from an otherwise unappealable order of the circuit court. Although Ala.Code 1975, § 12-22-21(7), provides a right to appeal from a probate court order on an application for a sale for division of real property, that section does not specifically provide a right to appeal from a similar order of the circuit court. However, this Court has traditionally treated such orders of the circuit court as though they were orders of the probate court. Accordingly, in this case, we will treat the petition for permission to appeal as a timely filed notice of appeal from an appealable order. | May 3, 1991 |
f3a26920-106d-42fb-ad57-0c0bcd22fe64 | Michael v. Beasley | 583 So. 2d 245 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 245 (1991)
Marvin MICHAEL and Betty Michael
v.
Murray BEASLEY.
89-1360.
Supreme Court of Alabama.
May 3, 1991.
Rehearing Denied June 28, 1991.
Thomas Allan Wingo, Jr., Birmingham, for appellants.
Stanley E. Munsey, Tuscumbia, for appellee.
HORNSBY, Chief Justice.
This Court's original opinion, dated January 11, 1991, is withdrawn and the following is substituted therefor:
This case involves a suit brought by former clients who allege that their lawyer negligently handled their case. On March 18, 1986, Murray Beasley filed a personal injury suit on behalf of Marvin and Betty Michael against Gunnin Pulpwood, Inc., and Caril Preston Holland. On August 13, 1987, a jury returned a verdict in favor of the defendants and against the Michaels. A judgment was entered on that verdict. *246 The judgment was affirmed by this Court on September 16, 1988. Michael v. Gunnin Pulpwood, Inc., 533 So. 2d 588 (Ala. 1988).
On February 26, 1990, the Michaels brought this suit against Beasley, alleging that he had negligently performed legal services while representing them in the Gunnin Pulpwood case. Beasley filed a motion to dismiss and a motion for judgment on the pleadings. After a hearing on the motion to dismiss, the circuit court dismissed the action with prejudice, on the ground that the action had not been timely filed pursuant to Ala.Code 1975, § 6-5-570 et seq.[1]
The issue presented for review is whether the action was timely filed. Resolution of this issue depends on a determination of the correct statute of limitations. The parties and the trial court indicated that the primary section at issue is § 6-5-574, which limits the time for commencing "legal service liability actions" to two years after the act or omission or failure giving rise to the claim. We do not consider whether Beasley was negligent in his representation of the Michaels.
The Michaels argue that the statutory period of limitations commenced to run either on September 16, 1988, when this Court affirmed the trial court's judgment in Gunnin Pulpwood, or on March 22, 1989, when Beasley informed them of the affirmance. Beasley argues that the statutory period of limitations began to run on the date on which the injury resulting from the negligence occurred, which he says was August 13, 1987, when the jury returned the verdict against the Michaels. We affirm the judgment of the trial court for the reasons set forth below.
Section 6-5-574 provides:
(Emphasis added.)
The Alabama Legal Services Liability Act, § 6-5-570 et seq. (hereinafter "LSLA"), was passed by the Legislature in response to the perceived crisis threatening the delivery and quality of legal services to Alabama citizens. See § 6-5-570. The LSLA, however, applies only to actions against legal service providers based on "acts or omissions accruing [occurring?] after April 12, 1988." § 6-5-581. It is unclear whether the legislature intended the LSLA to apply to acts or omissions occurring after April 12, 1988, or causes of actions accruing after that date. However, in reading § 6-5-574(a) and § 6-5-581 together, in considering the legislative intent expressed in § 6-5-570, and in comparing the LSLA to the Alabama Medical Liability Act, § 6-5-480 et seq. (hereinafter "the AMLA) and the Alabama Medical Liability Act of 1987," § 6-5-540 et seq. (hereinafter "the 1987 Act"), we determine that *247 the legislature intended the LSLA to apply to causes of actions "accruing" after April 12, 1988, and not to acts or omissions "occurring" after that date.[2]
Prior to the passage of the LSLA, this Court had held that the statutory period of limitations applicable to malpractice actions against attorneys at law was six years, pursuant to § 6-2-34(8). Baker v. Ball, 446 So. 2d 39 (Ala.1984); see also T. Hoff, Alabama Limitations of Actions and Notice Provisions 18 (1984), and Note, The Attorney's Liability for Negligence: An Alabama Perspective, 7 Cumb.L.Rev. 69, 71, 79 (1976). Section 6-2-34(8) provides that "[m]otions and other actions against attorneys-at-law for failure to pay over money of their clients or for neglect or omission of duty" must be commenced within six years.
Before determining the applicable statutory period of limitations in this case, we must first determine the legislature's intent in enacting the LSLA. This Court has stated that in ascertaining legislative intent courts are entitled to consider conditions that may arise under the statutory provisions in question and to examine results that may flow from giving ambiguous language one meaning over another. Studdard v. South Central Bell Tel. Co., 356 So. 2d 139 (Ala.1978); Wright v. Turner, 351 So. 2d 1 (Ala.1977); League of Women Voters v. Renfro, 292 Ala. 128, 290 So. 2d 167 (1974). In regard to the LSLA, there appears to be a conflict between § 6-5-574(a) and § 6-5-581. In § 6-5-574(a), the legislature stated: "[E]xcept, that an act or omission or failure giving rise to a claim which occurred before August 1, 1987, shall not in any event be barred until the expiration of one year from such date." (Emphasis added.) In § 6-5-581, the legislature provided: "This article applies to all actions against legal service providers based on acts or omissions accruing [occurring?] after April 12, 1988." (Emphasis added.)
In Street v. City of Anniston, 381 So. 2d 26 (Ala.1980), a medical malpractice case, this Court considered whether the statutory period of limitations in effect at the time the cause of action arose or the statutory period of limitations in effect at the time the action was brought applied. In addressing this issue the Street Court examined Ala.Code 1975, § 6-5-482(a), included as part of the AMLA. That subsection provides:
(Emphasis added.)
In Street, the plaintiff's cause of action accrued[3] on April 15, 1974, when the defendants issued an incorrect pathology report. The plaintiff commenced her action on August 11, 1978, under the AMLA. The defendants moved for summary judgment on several grounds, including the ground that the plaintiff's claims were barred by § 6-5-482(a). In analyzing the question of which statutory period of limitations applied, this Court stated that statutes of limitations are generally viewed as remedial statutes, and that "the statute of limitations in effect at the time the suit is filed, as opposed to one in effect at the time of the accrual of the cause of action, has been held to apply unless the later statute clearly states the contrary." 381 So. 2d at 29. See also Watson v. Trail Pontiac, Inc., 508 So. 2d 262 (Ala.1987).
In determining the legislative intent behind § 6-5-482(a), this Court stated:
381 So. 2d at 30.
We believe that the Court in Street was correct in determining that the legislature intended that § 6-5-482(a) replace the prior medical malpractice act, Title 7, § 25(1), Code 1940, and apply retrospectively. Although the Court in Street addressed only the issue whether the exception language in § 6-5-482(a), language similar to the exception language in § 6-5-574(a), was retrospective or prospective, the case is instructive.[4]
We agree that such language, without more, indicates the legislature's intent that the legislation including that language apply retrospectively. Nevertheless, the inclusion of § 6-5-581 in the LSLA is, to the contrary, evidence that the legislature intended the LSLA to apply prospectively. As stated in N. Singer, 1A Sutherland Statutory Construction § 20.24, at 110 (4th Ed.):
See also Street v. City of Anniston, 381 So. 2d at 29; Webster v. Talley, 251 Ala. 336, 37 So. 2d 190 (1948); Sills v. Sills, 246 Ala. 165, 19 So. 2d 521 (1944); Harlan v. State, 31 Ala.App. 478, 18 So. 2d 744 (1947).
If this Court were to view the exception portion of § 6-5-574(a) in the LSLA without reference to § 6-5-581, Street would control and we would hold that the legislature clearly intended the LSLA to apply retrospectively. However, we are confronted with an act that contains a separate provision indicating that the LSLA is to apply prospectively, § 6-5-581. Both provisions are specific, and each indicates a *249 different legislative intention. Because there is an ambiguity created by the legislature in the LSLA, we must delve further into what the legislature intended in passing this Act.
The general rule of statutory construction is that effect should be given, if possible, to each word and each section of the statute being construed. See Alabama State Board of Health ex rel. Baxley v. Chambers County, 335 So. 2d 653 (Ala. 1976); In re Ashworth, 291 Ala. 723, 287 So. 2d 843 (1974). If we were to construe the language in § 6-5-574(a) as controlling, we would essentially nullify § 6-5-581. Conversely, if we were to construe the language in § 6-5-581 as controlling, we would nullify the exception language contained in § 6-5-574(a). Clearly, neither result is what the legislature intended in enacting the LSLA, and it is this Court's duty to give effect to both irreconcilable provisions if such a construction is reasonable. Reid v. City of Birmingham, 274 Ala. 629, 150 So. 2d 735 (1963). To determine the legislature's intent in passing the LSLA, we must look beyond the language contained in the LSLA. To do this, we compare the LSLA with the AMLA and the 1987 Act.[5]
In comparing the exception language in § 6-5-574(a) in the LSLA to the similar language contained in § 6-5-482(a) of the AMLA, we note that in the AMLA the legislature provided that "an error, mistake, act, omission or failure to cure giving rise to a cause of action which occurs before the effective date of this act shall not in any event be barred until the expiration of one year from the effective date of this act." See Ala. Acts 1975, Act No. 513, p. 1150-51, § 4. The effective date of the AMLA was September 23, 1975; therefore, any potential plaintiff with a cause of action accruing before September 23, 1975, was given until September 23, 1976, before his or her claim was barred under the shorter statute of limitations period. Thus, this provision served its purpose as a saving provision for causes of actions that had accrued before the AMLA was passed. Also, the one-year period was reasonable. Street v. City of Anniston, 381 So. 2d 26 (Ala.1980). See also Reese v. Rankin Fite Memorial Hosp., 403 So. 2d 158, 163 (Ala. 1981) (Jones, J., concurring) (in viewing changes in statutes of limitations, the validity of any changes is subject only to the test of reasonableness).
In United States Veterans Administration v. Walker, 356 So. 2d 631 (Ala.1978), a medical malpractice case, this Court interpreted the language "except that an error, mistake, act, omission or failure to cure giving rise to a cause of action which occurs before the effective date of this article shall not in any event be barred until the expiration of one year from the effective date of this article" in § 6-5-482(a) of the AMLA. In Walker, this Court stated:
Id. at 633. The Court in Walker concluded:
Id. at 634.
In regard to the LSLA, however, the legislature stated: "[A]n act or omission or failure giving rise to a claim which occurred before August 1, 1987, shall not in any event be barred until the expiration of one year from such date." Ala.Acts 1988, Act No. 88-262, p. 408-09, § 5(1). The effective date of the LSLA was April 12, 1988. Reading these two dates together, one would conclude that a potential plaintiff with a claim that accrued before August 1, 1987, is given until August 1, 1988, to bring an action. If the effective date of the LSLA had been August 1, 1987, then this one-year provision would serve its purpose as a saving provision for causes of action accruing before August 1, 1987. See Reese v. Rankin Fite Memorial Hosp., 403 So. 2d 158 (Ala.1981) (Jones, J., concurring); Street v. City of Anniston, 381 So. 2d 26 (Ala.1980). However, the actual period provided by the legislature, i.e., the period between April 12, 1988, and August 1, 1988, provides a potential plaintiff whose claim accrued before August 1, 1987, approximately three and one-half months from April 12, 1988, the effective date of the LSLA, to bring an action before being barred under the new two-year statute of limitations. This period of time is unreasonable. This could not logically be the result intended by the legislature in enacting the LSLA.
In Musgrove v. United States Pipe & Foundry Co., 290 Ala. 156, 274 So. 2d 640 (1972), on remand, 274 So. 2d 644 (1973), overruled on other grounds, Tetter v. State, 358 So. 2d 1046 (Ala.1978), this Court stated that where the legislature in a new statute uses language that has previously been construed by the judiciary, the construction given in a prior decision must be accepted as part of the statute. In addition, this Court may examine any prior statutes or other laws that deal with the same subject in clarifying the legislature's intent. See Board of Dental Examiners v. King, 364 So. 2d 311 (Ala.Civ.App.1977), reversed on other grounds, 364 So. 2d 318 (Ala.1978).
To prevent finding a statute unconstitutional, this Court has stated:
Hamilton v. Smith, 264 Ala. 199, 201, 86 So. 2d 283, 285 (1956). Additionally:
Guy H. James Constr. Co. v. Boswell, 366 So. 2d 271, 273 (Ala.1979).
Because the LSLA is clearly modeled after the AMLA and the 1987 Act, we conclude that the legislature intended § 6-5-574(a) to apply to a cause of action that accrued before the effective date of the LSLA and that such an action would not in any event be barred until the expiration of one year from that effective date. That is, a cause of action that accrued before April 12, 1988, shall not in any event be barred until the expiration of one year from that date. Compare Ala.Acts 1975, Act No. 513, p. 1150-51, § 4. This one-year saving provision provides a reasonable time for a party with a cause of action accruing before *251 the effective date of the LSLA, April 12, 1988, to bring a claim. If we were to construe literally the language in § 6-5-574(a) with the language in § 6-5-581, we would have only a three-and-one-half-month saving provision. This would be unreasonable, especially in light of the time provided in the AMLA for similarly situated plaintiffs.[6]
Under this construction of the LSLA, we follow the rationale set forth in Street v. City of Anniston, supra, whereby a statute of limitations, which is generally viewed as remedial, is to apply retrospectively. This means that the statute of limitations in effect at the time the suit is filed, as opposed to the one in effect at the time of the accrual of the cause of action, applies. From the foregoing analysis we conclude that the legislature, in enacting the LSLA, a traditional statute of limitations, intended to shorten the time period for bringing an already existing cause of action and that it intended to provide a one-year saving provision, that one year to run from the effective date of the LSLA for all causes of actions accruing before April 12, 1988.
In light of the foregoing discussion, we must now determine whether the Michaels timely filed their action on February 26, 1990. To do this, we must decide when the Michaels' claim against Beasley accrued, i.e., whether it accrued on August 13, 1987, the date of the jury's verdict in Gunnin Pulpwood; on September 16, 1988, the date this Court affirmed the judgment in that case; or on March 22, 1989, the date Beasley informed the Michaels of that affirmance. If the Michaels' action accrued on August 13, 1987, then their claim would be barred under § 6-5-574(a). If, however, the accrual date was September 16, 1988, or March 22, 1989, then their claim would not be barred under § 6-5-574(a) because they would have filed their claim within the two-year limitations period.
In Cofield v. Smith, 495 So. 2d 61 (Ala. 1986), the plaintiff appealed from a summary judgment in favor of the defendant attorneys in a legal malpractice action. The defendants had represented the plaintiff in a felony prosecution that resulted in the plaintiff's conviction and sentencing. The plaintiff alleged that the defendants negligently advised him to plead guilty. The defendants denied the allegation and also raised the statute of limitations as an affirmative defense. They filed a motion for summary judgment, which was granted. The issue presented on appeal was whether the plaintiff's action was barred by the statute of limitations. The applicable limitations period was the six-year period in Ala.Code 1975, § 6-2-34.
In Cofield, we relied on and quoted Payne v. Alabama Cemetery Ass'n, Inc., 413 So. 2d 1067 (Ala.1982), which discussed Alabama's law relating to the accrual of a cause of action:
495 So. 2d at 62 (emphasis added). See also Garrett v. Raytheon Co., 368 So. 2d 516 *252 (Ala.1979). In holding that the plaintiff's action was time barred, this Court stated:
495 So. 2d at 62-63 (citations omitted). See also Payne v. Alabama Cemetery Ass'n, Inc., supra (statutory period of limitations will not begin to run until a party suffers an injury entitling him or her to maintain a cause of action); Garrett v. Raytheon Co., supra (statutory limitations period begins to run when a party suffers an injury entitling the party to maintain an action).
We hold that in the present case the Michaels' claim accrued at the time of the jury verdict on August 13, 1987. It was at this time that they sustained a legal injury sufficient for them to maintain an action against Beasley. The limitations period should have been measured from the time of the jury verdict on August 13, 1987; therefore the Michaels' claim is barred under § 6-5-574(a) because they failed to file their claim within two years after the accrual of their cause of action. The Michaels filed their action against Beasley on February 26, 1990approximately six months after the expiration of the two-year limitations period. Consequently, we affirm the trial court's judgment.
To summarize, we first hold that the time limits in the LSLA are to be measured from the date of the accrual of a cause of action and not from the date of the occurrence of the act or omission. Second, we hold that the legislature intended that the one year given by the saving provision in Ala.Code 1975, § 6-5-574(a), should be measured from the "effective date" of the Act. The effective date of the LSLA is April 12, 1988. Ala.Code 1975, § 6-5-581. Third, because the legislature measured the saving provision from the effective date (April 12, 1988), which provides a reasonable period of time, we hold that the legislature intended the LSLA to apply retrospectively.
Consequently, § 6-5-574(a) provides that a cause of action against a legal service provider must be commenced within whichever of the following limitations periods would provide the longest time in which to bring an action: (1) within two years after the cause of action accrued; (2) if the cause of action could not reasonably be discovered within two years, then within six months from the date of discovery of the cause of action or the date of the discovery of facts that would reasonably lead to discovery, provided that in no event can the action be commenced more than four years after the cause of action accrued; or (3) if the cause of action accrued before the effective date, then within one year after the effective date of April 12, 1988.[7]
Based on this construction of the LSLA, we conclude that the Michaels' claim was not timely filed.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The trial court's judgment reads as follows:
"The defendant having filed a Motion to Dismiss and for Judgment on the Pleadings and the Court having held a hearing on said motion and the Court being of the opinion that this cause should be dismissed, this action not having been filed timely, pursuant to Section 6-5-570 et seq., Code of Alabama of 1975, as amended;
"It is therefore ORDERED that this cause be and it hereby is dismissed with prejudice.
"Done and ORDERED at Tuscumbia, Alabama, this the 25th day of April, 1990."
[2] In enacting the 1987 Act, Act No. 87-189, Ala. Acts 1987, codified at Ala.Code 1975, § 6-5-540 et seq., the legislature included § 13 (codified at § 6-5-552), a provision similar to § 6-5-581: "This article applies to all actions against health care providers based on acts or omissions accruing [occurring?] after June 11, 1987." This Court had previously interpreted the statute of limitations in medical malpractice actions as being based on accrual and not occurrence.
In Street v. City of Anniston, 381 So. 2d 26, 31 (Ala.1980), the Court stated that "the Medical Liability Act contains a traditional statute of limitations, one which commences the running of the statute from the accrual of the cause of action, and is not subject to constitutional infirmity under § 45." (Emphasis added.) See Bowlin Horn v. Citizens Hosp., 425 So. 2d 1065 (Ala.1982); Thomas v. Niemann, 397 So. 2d 90 (Ala.1981) (Jones, J., concurring); Ramey v. Guyton, 394 So. 2d 2 (Ala.1980). This same rationale applies to the LSLA.
[3] See explanation in footnote 2.
[4] It was not until 1987 that the legislature enacted what became § 6-5-552, a provision similar to § 6-5-581 in the LSLA. Consequently, the exact problem presented to the Court in the case at bar did not exist at the time Street was decided.
[5] We note that the LSLA is modeled after both the AMLA, which was enacted in 1975, and the 1987 Act, which was enacted to supplement the AMLA.
In Alabama Industrial Bank v. State ex rel. Avinger, 286 Ala. 59, 62, 237 So. 2d 108, 111 (1970), this Court stated:
"To justify a departure from the language of the statute, there must be a moral conviction that its practical effect under existing law, the spirit of the whole statute and its legislative history, as well as the purpose to be accomplished, duly disclose the Legislature could not have intended such result under a rational, sensible construction."
We believe that we are justified in departing from the language in the LSLA and comparing that Act with the AMLA and the 1987 Act, because the legislature could not have intended the result that occurs when one reads the LSLA in its present form.
[6] We recognize an apparent anomaly created by the saving provision. For those persons who, on the effective date of the statute, had less than one year remaining on the six-year limitation period, the effect of the saving clause is to lengthen the time for filing their actions (i.e., to give them more than six years). However, the language of the saving clause suggests that the legislature did not intend to distinguish between those potential plaintiffs whose actions, by the six-year statute, would have been barred within one year of the effective date of the new statute and those potential plaintiffs who, by the six-year statute, could have sued at a time more than one year later than the effective date of the new statute.
[7] We are aware of § 6-5-574(b); however, that subsection is not relevant to the issue in this case. | May 3, 1991 |
c5a168b9-3e0a-4f45-99ad-c3abfd31e6a4 | Dickinson v. Echols | 578 So. 2d 1257 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1257 (1991)
Rodger C. DICKINSON
v.
Robert M. ECHOLS, Jr.
89-1503, 89-1630.
Supreme Court of Alabama.
April 19, 1991.
Lee R. Benton of Schoel, Ogle, Benton, Gentle and Centeno, Birmingham, for appellant.
William M. Dawson, Jr., Birmingham, for appellee.
ADAMS, Justice.
These appeals are from malicious prosecution actions. Case No. 89-1630, being a duplicate cause of action, is hereby dismissed, and the facts of Case No. 89-1503 are set forth below.
This case arises out of the prosecution of a malpractice action by Nell Crosswy and her attorney, Robert M. Echols, Jr., wherein a summary judgment was entered in favor of Ms. Crosswy's physician, the defendant, Dr. Rodger C. Dickinson. The complaint in the malpractice action contended that Dickinson had deviated from the acceptable standard of care during his treatment of Ms. Crosswy for pains in her hip and in her back. Following the entry of summary judgment in his favor in that action, Dickinson filed this malicious prosecution action, alleging that Echols had not had probable cause to file the malpractice action and, that, even if he had had probable cause to file, he lacked probable cause to proceed against Dickinson because, Dickinson *1258 argues, there was no evidence that Echols investigated Ms. Crosswy's claims while the malpractice case was pending.
The trial judge, at the close of Dr. Dickinson's case, directed a verdict in favor of Echols because of Dickinson's failure to offer proof of malice and lack of probable cause. Dickinson appeals, contending that he did make an offer of proof of malice and lack of probable cause sufficient to warrant the submission of the case to a jury.[1] At the outset, we note:
Eidson v. Olin Corp., 527 So. 2d 1283, 1284 (Ala.1988). Furthermore, in order to establish a prima facie case of malicious prosecution, the plaintiff must make an offer of proof of the following:
Id. The only elements in dispute in this case are (2) and (3). During the trial, Dr. Dickinson offered evidence that, prior to filing this malpractice lawsuit, Echols had not talked with Dickinson himself or with Dr. Langford, the physician who treated Crosswy subsequent to Crosswy's consultations with Dickinson. Dr. Langford testified by deposition that he had never indicated to Ms. Crosswy that Dr. Dickinson had, in any way, deviated from the standard of care; however, Echols contended in his answer that Ms. Crosswy told him that Langford had so indicated, and that that was the basis for his filing of the lawsuit. The fact of Echols's failure to talk with Dickinson or Langford was basically the plaintiff's only evidence of lack of probable cause; it falls far short of tending to show that Echols did not in any way investigate the merits of the case. Simply because he failed to interview Dickinson and Langford does not, by implication, tend to show that Echols failed to consult other doctors or medical books, etc., in order to establish whether Ms. Crosswy had a valid medical malpractice cause of action. The fact that he had not presented testimony of an expert witness before the motion for summary judgment was filed in the malpractice case also does not imply that no investigation was made while the action was pending. Dickinson could have called Echols to the stand to determine exactly what Echols had done by way of investigation with regard to the malpractice case; however, he did not do so.
The plaintiff simply failed to make a prima facie case of malicious prosecution, and, therefore, the directed verdict was proper.
89-1503AFFIRMED.
89-1630DISMISSED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur.
[1] Because this case was pending on June 11, 1987, the "scintilla rule" of evidence is applicable. See Ala.Code 1975, § 12-21-12. | April 19, 1991 |
3e187a92-297b-41eb-87e6-1f2c170b0a1a | Thomas v. Diversified Contractors, Inc. | 578 So. 2d 1254 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1254 (1991)
Alvin THOMAS d/b/a Thomas Construction Company
v.
DIVERSIFIED CONTRACTORS, INC.
89-1366.
Supreme Court of Alabama.
April 19, 1991.
Richard A. Lawrence, Montgomery, for appellant.
Marvin H. Campbell, Montgomery, for appellee.
MADDOX, Justice.
This case returns to us after having been remanded to the trial court for a hearing pursuant to the jury selection standards set out in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). See Thomas v. Diversified Contractors, Inc., 551 So. 2d 343 (Ala.1989).
On the prior appeal, this Court addressed only the issue of whether the jury selection standards of Batson v. Kentucky apply to civil cases, and the Court concluded that the Batson standards do apply to civil cases, following Fludd v. Dykes, 863 F.2d 822 (11th Cir.1989).[1] This Court remanded *1255 the case to the trial court for a hearing pursuant to those standards.
After remand, the trial court conducted a hearing and concluded, after quoting a portion of Ex parte Branch, 526 So. 2d 609 (Ala.1987),[2] that even though Thomas did show that he was a member of a cognizable group and that plaintiff's counsel used his peremptory challenges to remove from the venire the members of defendant's race, he did not show any other relevant factors that would raise an inference of purposeful discrimination, noting that "[t]his case was a breach of contract," that it "dealt with business relations between two businesses," and that "[r]ace had nothing to do with it." The court found that "the defendant failed to meet his burden of showing the necessary inference of purposeful discrimination," which plaintiff's counsel sought to prove by calling various members of the jury venire to testify, but the trial court would not permit this procedure. The trial judge did note in his order on remand that the attorneys during the trial of the case had conducted voir dire examination of the prospective jurors, but that this voir dire examination was not recorded.
Thomas again appeals, and argues that the trial court erred in holding that he had not proven a prima facie case of discrimination at the Batson hearing. We agree.
The facts show that Thomas is black, and that Dennis Thompson, the owner of Diversified, the plaintiff, is white. In selecting the jury, each side was allowed 8 peremptory strikes. The jury venire consisted of 4 black members and 24 white members. All 4 black members of the venire were struck by the plaintiff.
Because the trial judge concluded that Thomas had failed to establish a prima facie case, we again set out the requirements of the law in this regard. The burden of persuasion is initially on the party alleging a discriminatory use of peremptory challenges to establish a prima facie case of discrimination. Only after a prima facie showing of discrimination has been established is a trial court under a duty to require an opposing party to provide racially neutral reasons for his peremptory strikes.
In Ex parte Branch, 526 So. 2d 609 (Ala.1987), this Court set out the requirements for establishing a prima facie case of racial discrimination in the exercise of peremptory strikes. We hold that Thomas proved a prima facie case under the Branch requirements. Thomas is black, and he proved that Thompson used 4 of his peremptory challenges to remove all of the blacks from the jury venire. Branch requires the trial court to consider such factors as striking persons from a jury because of race, along with any other relevant circumstances that might raise an inference that a party used his peremptory strikes to exclude veniremen from the petit jury on account of their race.
Branch supplies an incomplete list of factors that might be used to raise an *1256 inference of discrimination. The first factor listed is the use of evidence that the "jurors in question share[d] only this one characteristictheir membership in the groupand that in all other respects they [were] as heterogenous as the community as a whole." Quoted from People v. Wheeler, 22 Cal. 3d 258, 280, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905 (1978). The blacks that were struck from this venire were men and women ranging in age from 35 to 72. The only thing they had in common was the fact that they were black.
Another factor listed in Branch considers the pattern of strikes used against black jurors on any particular venire. In this case, Thompson used his second, third, and fourth strikes to exclude the black males, and his sixth to exclude the black female, thereby removing all of the blacks from the jury.
Another factor listed in Branch is the type and manner of the opposing counsel's questions and statements during voir dire, including a consideration of whether counsel conducts nothing more than desultory voir dire. In this case, Thompson's attorney asked the members of the jury venire 16 questions. All of these questions concerned whether the venire members knew anyone connected to the case or had ever been connected with a contract dispute. No questions of any other kind were asked by Thompson's attorney. Specifically, no questions were asked to determine whether the race of the defendant would affect in any way any particular prospective juror.
Another factor listed in Branch states that circumstantial evidence of discriminatory intent may be proven by a showing of a disparate impact on blacks where all or most of the challenges were used to strike blacks from the jury. Only half of Thompson's available strikes were used to strike blacks from the venire. However, he did use four of his first six strikes to eliminate all of the blacks from the venire.
Another factor listed in Branch covers the situation in which a party uses his peremptory challenges to dismiss all or most black jurors. Here, Thompson used his peremptory challenges to strike all of the blacks from the venire.
Thomas clearly met the requirements set forth in Branch in order to establish a prima facie case of discriminatory use of peremptory strikes. In addition, he showed the presence in this case of 5 of the 9 factors that Branch considered indicative of discrimination.
We have reviewed the record and find it apparent that the trial judge was clearly wrong in ruling that Thomas had failed to prove a prima facie case of discriminatory use of peremptory strikes, but our inquiry does not end there. The trial court was aware that the law required that once a prima facie showing of discrimination has been established, the opposing party must provide racially neutral reasons for his strikes.
During the hearing, the trial judge stated that although he found that Thomas had failed to establish a prima facie showing of discrimination, he would, out of an abundance of caution, require that Thompson provide reasons for his strikes of the four blacks, but the trial court would not allow Thomas to examine Thompson's attorney concerning his reasons for his strikes. In this, the trial court again erred. In Ex parte Lynn, 543 So. 2d 709 (Ala.1988), cert. denied, ___ U.S. ___, 110 S. Ct. 351, 107 L. Ed. 2d 338 (1989), this Court recognized the right of an attorney to examine an opposing attorney regarding his use of peremptory strikes, when, of course, the court has found a prima facie showing of discrimination. At that time, an attorney may examine the opposing party or that party's counsel regarding his use of peremptory strikes in order to determine if sufficient race-neutral reasons exist for the strikes.
By refusing to require the plaintiff's counsel to state his reasons for his peremptory challenges, the trial judge erred.
Based on the foregoing, the case must once again be remanded to the trial court for further proceedings consistent with this opinion. Upon remand, Thomas should be allowed to examine Thompson's attorney as to the reasons for his peremptory strikes, or the court should require Thompson's *1257 attorney to state his reasons for the record. After this is done, the trial court can then determine whether Thompson had sufficient race-neutral reasons for the exercise of the peremptory strikes of the black jurors.
REVERSED AND REMANDED.
ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs in part and dissents in part.
ALMON and SHORES, JJ., dissent.
HOUSTON, Justice (concurring in part and dissenting in part).
I concur with the affirmance in part.
I dissent as to the reversal and remand. I would affirm. See my dissent in Thomas v. Diversified Contractors, Inc., 551 So. 2d 343, 349-53 (Ala.1989).
[1] In Polk v. Dixie Ins. Co., 897 F.2d 1346, 16 Fed.R.Serv.3d 209 (5th Cir.1990), petition for certiorari granted, ___ U.S. ___, 111 S. Ct. 2791, ___ L.Ed.2d ___ (1991), the Fifth Circuit Court of Appeals held that Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), does not apply to civil suits solely between private parties. The Polk case is still pending in the Supreme Court of the United States, but the Supreme Court of the United States has given further guidance of the scope of Batson in Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).
The Supreme Court of the United States held in Powers that in criminal cases the Batson principles apply to white defendants, and stated as follows:
"Jury service is an exercise of responsible citizenship by all members of the community, including those who otherwise might not have the opportunity to contribute to our civic life. Congress recognized this over a century ago in the Civil Rights Act of 1875, which made it a criminal offense to exclude persons from jury service on account of their race. See 18 U.S.C. § 243. In a trilogy of cases decided soon after enactment of this prohibition, our Court confirmed the validity of the statute, as well as the broader constitutional imperative of race neutrality in jury selection. See Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1880); Virginia v. Rives, 100 U.S. 313, 25 L. Ed. 667 (1880); Ex parte Virginia, 100 U.S. 339, 25 L. Ed. 676 (1880). In the many times we have confronted the issue since those cases, we have not questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of person and the integrity of the court. Despite the clarity of these commands to eliminate the taint of racial discrimination in the administration of justice, allegations of bias in the jury selection process persist. In this case, petitioner alleges race discrimination in the prosecution's use of peremptory challenges. Invoking the Equal Protection Clause and federal statutory law, and relying upon well-established principles of standing, we hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race."
[2] The trial court quoted the following sentences from Branch: "The burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges to establish a prima facie case of discrimination. In determining whether there is a prima facie case, the court is to consider `all relevant circumstances' which could lead to an inference of discrimination." 526 So. 2d at 622. | April 19, 1991 |
9ab85dac-fa69-4496-82c3-d2bd22ba7534 | Dixon v. Hardey | 591 So. 2d 3 | N/A | Alabama | Alabama Supreme Court | 591 So. 2d 3 (1991)
Patricia DIXON and Louise Thompson, as Co-Administratrixes of the Estate of Anita Louise Thompson, Deceased
v.
Dr. Kim A. HARDEY.
89-973.
Supreme Court of Alabama.
May 24, 1991.
Rehearing Denied November 27, 1991.
*4 J. Keith Givens of Cherry, Givens, Tarver, Aldridge, Peters, Lockett & Diaz, Dothan, and Allen G. Woodard, Jackson, Miss., for appellants.
Thomas H. Keene and Frank J. Stakely of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
ADAMS, Justice.
The plaintiffs, Patricia Dixon and Louise Thompson, co-administratrixes of the estate of Anita Thompson, appeal from a judgment against them entered after a jury *5 returned a verdict for the defendant, Kim A. Hardey, M.D., in an action alleging medical malpractice. We reverse.
On July 6, 1987, Anita Thompson entered Southeast Alabama Medical Center ("Hospital") for the treatment of uterine fibroid tumors. The following day, Dr. Hardey, an obstetrician and gynecologist, successfully removed a benign tumor. Following surgery, Dr. Hardey administered an epidural injection of morphine sulfate ("Duramorph") for pain control. Ms. Thompson was removed from the recovery room at approximately 1:00 p.m. and was taken to a room on the post-surgical floor, where she was monitored by the nursing staff at 15-to 30-minute intervals. At 4:48 p.m., Ms. Thompson was found devoid of pulse or respiration. Efforts at resuscitation were unsuccessful.
On June 21, 1988, Ms. Dixon sued the Hospital for damages, alleging that it had been negligent and that its negligence had caused the death of Ms. Thompson. On August 2, 1988, she amended her complaint to add a claim against Dr. Hardey. The claim alleged negligence in the administration of the post-operative pain medication and in the instruction of hospital personnel regarding procedures for monitoring the patient during recovery. On July 26, 1989, the trial court dismissed the claims against the Hospital, after the Hospital had reached a pro tanto settlement with the plaintiff. Ms. Louise Thompson was added as a plaintiff on February 22, 1990. On March 7, 1990, the jury returned a verdict for Dr. Hardey.
At trial, the central issue was the standard of care for the postoperative monitoring of a patient treated with Duramorph. The plaintiffs contended that proper monitoring should have involved the use of an apnea monitor or other instrument to detect the onset of Duramorph-induced respiratory depression, the condition from which the plaintiffs say Ms. Thompson died.
To offer proof that Dr. Hardey had violated written standards of care applicable at the time of the alleged malpractice, the plaintiffs attempted, unsuccessfully, to introduce into evidence a number of documents, including one marked as plaintiffs' Exhibit 14, which was entitled "Nursing Service Department Labor & Delivery Procedure." Exhibit 14 reflected policies and procedures adopted by the Hospital in February 1986. The plaintiffs contend that the trial court's exclusion of the exhibits was error. With regard to exhibit 14, we agree.
Exhibit 14 would be relevant, upon proper authentication, to the standard of care applicable in 1987. It provided guidelines for the use of an apnea monitor in the post-operative surveillance of a patient treated with an epidural injection of morphine. The fact that Exhibit 14 expressly refers to labor and delivery does not preclude testimony regarding the similarity, and, thus, the relevance of procedures for monitoring patients after injections of morphine for pain control are administered where such procedures would logically overlap or concur.
Although the exclusion of the exhibit was error, a videotape of a deposition of the plaintiffs' expert, Dr. Martin Wingate, was introduced at trial. That videotape reveals the following testimony:
(Emphasis added.) Dr. Wingate, who then testified regarding the need for an apnea monitor, thus acknowledged that his opinion was based in part upon evidence contained in Exhibit 14 regarding the use of such instruments. We will not ground a reversal solely on the erroneous exclusion of a document when the general contents of the document were subsequently introduced through oral testimony. See Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So. 2d 254, 259 (Ala.1982); McLemore v. Alabama Power Co., 289 Ala. 643, 648, 270 So. 2d 657, 661 (1972). We have carefully considered the plaintiffs' arguments regarding the other excluded exhibits and conclude that their contentions regarding those exhibits are without merit.
More troubling, however, is the plaintiffs' contention that the trial court erred to reversal when it refused to strike, for cause, juror Rhonda Hedrick, a regular patient of the defendant physician. The record reveals the following colloquy during voir dire:
(Emphasis added.) The plaintiffs insist that they should not have been required to expend a peremptory challenge to eliminate a juror who (1) was Dr. Hardey's regular patient, (2) was employed by a dentist, and (3) consequently expressed reservations about her ability to serve the "best interest of justice." We agree.
The principle of impartiality requires that the prospective juror "`be indifferent as he stands unsworn.'" Wilson v. State, 243 Ala. 1, 10, 8 So. 2d 422, 430 (1942). A challenge for cause must be sustained upon a showing of "probable prejudice" on the part of a veniremember. See Knop v. McCain, 561 So. 2d 229, 234 (Ala.1989); Alabama Power Co. v. Henderson, 342 So. 2d 323, 327 (Ala.1977); Grandquest v. Williams, 273 Ala. 140, 146, 135 So. 2d 391, 395 (1961).
In applying this test, we are cognizant of the "time-honored sympathy between doctor and patient." Gray v. Sherwood, 436 So. 2d 836, 837 (Ala.1983). In Gray, we reversed the judgment of the trial court on the ground that two prospective jurors who had requested exclusion from the case on grounds that they were patients of the defendant physician should have been excused for cause. In that case we explained:
Id. at 837 (emphasis added) (footnotes omitted).
As the plaintiffs in this case point out, "[i]t is difficult to imagine a more intimate or trusted relationship than [that which exists] between a gynecologist and patient." The relationship of physician and patient constitutes prima facie evidence of probable prejudice on the part of the veniremember. The inference of bias is strengthened where, as here, the prospective juror "volunteers her doubts." See Knop v. McCain, 561 So. 2d 229, 234 (Ala. 1989).
Once prima facie evidence of prejudice has been presented, "it is the trial judge's function to question the juror further, so as to ascertain whether the juror can be impartial." Knop, 561 So. 2d at 234. However, even if a juror eventually states that she could obey the judge's instructions or render a verdict exclusively upon the evidence, "the simple extraction of an affirmative response ... does not necessarily absolve that juror of probable prejudice." Wood v. Woodham, 561 So. 2d 224, 228 (Ala.1989).
Even if a prospective juror never unequivocally admits bias, to disregard her apprehensions would be to ignore the realities of human nature. Where a juror vacillates in her response to voir dire, her answers must be "taken as a whole." Knop, 561 So. 2d at 233; Ex parte Beam, 512 So. 2d 723, 724 (Ala.1987). Thus, when the aggregate effect of her response tends to verify the existence of "deep-seated impressions," she must be excluded for cause. Knop, 561 So. 2d at 233.
*8 The plaintiffs urge this Court to hold that, as a matter of law, a patient may never serve as a juror in a case against his or her personal physician. We decline to adopt such an absolute rule of exclusion. We do hold, however, that under the facts of this case, the plaintiffs' challenge for cause should have been granted.
Ms. Hedrick's response to voir dire questioning by the plaintiffs' counsel did nothing to rebut the inference of probable prejudice arising out of the physician-patient relationship. On the contrary, her answers reflected considerable apprehension regarding her relationship with her physician and her ability to render an impartial verdict in the case against him. Not only was she unable to state with assurance that the relationship would not influence her deliberation, but her remark "I think it [i.e., the fact that I am being considered for jury service in this case] should be known to him" betrayed a personal concern for that relationship. Such a concern is inconsistent with "the complete freedom from bias which should be present in the minds of all jurors." Ballard v. State, 225 Ala. 202, 203, 142 So. 668, 668 (1932).
Ms. Hedrick's misgivings eventually culminated in her affirmative reply to the question whether justice would be better served by her discharge. In addition, the trial judge not only failed to engage in any voir dire of the juror, but prevented further inquiry into the subject by the plaintiffs' counsel. See Knop, 561 So. 2d at 234.
Because we hold that the denial of the plaintiffs' challenge for cause necessitates reversal of the judgment of the trial court, we pretermit any discussion of issues urged as further reasons for reversal. For the foregoing reasons, the judgment is reversed and the case is remanded to the trial court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | May 24, 1991 |
e26be1bb-7d9a-48e2-9e98-8495c9ed45a3 | Ex Parte Loyd | 580 So. 2d 1374 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 1374 (1991)
Ex parte Walter LOYD.
(Re Walter Loyd v. State).
89-1423.
Supreme Court of Alabama.
April 19, 1991.
Gary A. Hudgins, Dothan, for petitioner.
Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
Walter Loyd was convicted of sodomy in the first degree, in violation of Ala.Code 1975, § 13A-6-66. He was sentenced to 10 years in prison and was ordered to pay a fine and a victim's compensation assessment totalling $5,500. The Court of Criminal Appeals affirmed. See Loyd v. State, 580 So. 2d 1370 (Ala.Cr.App.1990). We reverse and remand with instructions.
The evidence presented by the State tended to show the following facts:
Susan Marie Loyd, Walter Loyd's 16year-old daughter, had been living with her father and stepmother in her father's trailer in Rehobeth, Alabama. On January 10, 1988, Susan Loyd was sunbathing behind the trailer. Susan was lying in the sun in her bathing suit when Walter Loyd approached her and stated that he wanted to put baby oil on her. Susan protested, but he began rubbing her with the oil. He then held her down and ripped the back of her bathing suit and tore the bottom off. Susan continued to protest and attempted to free herself, but Walter climbed on top of her and pinned her to the ground. He then put his tongue into her vagina. Susan was eventually able to free herself and run into the trailer.
Walter Loyd was later indicted and charged with first degree sodomy. During *1375 his trial, he attempted to elicit testimony and to introduce evidence that Susan Loyd had, on prior occasions, falsely accused some men of sexual misconduct and had threatened others with like false accusations. The trial judge ruled that this evidence was inadmissible because it violated the rape shield statute.
On this certiorari review, Walter Loyd raises the issue of whether evidence of the victim's prior false allegations and threats of false allegations of sexual misconduct by persons other than the defendant may be introduced to show a "common plan, scheme, design or system" by the victim. Loyd argues that evidence of Susan Loyd's prior false charges and threats would show a common plan or scheme whereby she falsely accused and/or threatened charges of sexual misconduct to manipulate others. Loyd asks this Court to carve out an exception to the rape shield statute, Ala.Code 1975, § 12-21-203; to overturn Webb v. State, 455 So. 2d 223 (Ala.Cr.App.1984); and to allow this evidence to be admitted.
In our opinion, the evidence Loyd sought to introduce is admissible, not because it constitutes an exception to the rape shield statute, but, rather, because it falls outside the scope of that statute. That statute was not intended to prevent the admission of this kind of testimony. Alabama's rape shield statute, Ala.Code 1975, § 12-21-203, provides, in part:
While this statute is intended to protect the victim and prevent the defendant from shifting the focus of the trial to the victim's past sexual conduct, the evidence that Loyd sought to introduce in this case did not inquire into the areas of protection that this statute provides. Loyd sought to introduce evidence of prior occasions when the complaining witness either falsely accused someone of sexual misconduct or threatened such an accusation. Loyd did not seek to introduce any evidence of the sexual behavior or past sexual conduct of the complaining witness, but, rather, sought to introduce evidence of the witness's behavior in either falsely accusing someone or threatening an accusation as part of a common plan designed to achieve her wishes. Such evidence of false accusations or charges of sexual misconduct by other persons or threats of false charges does not delve into the victim's past sexual behavior or conduct and, therefore, does not violate the rape shield statute and is admissible.
The Court of Criminal Appeals has had occasion to examine a similar situation. In Phillips v. State, 545 So. 2d 221, 223 (Ala. Cr.App.1989), that court adopted the following rule:
The Court of Criminal Appeals noted that the introduction of prior false charges did not "highlight the victim's past sexual conduct" but "exposes her corrupt state of mind." Id. In Phillips a nolle prosequi had been entered in an earlier case based on charges of sexual misconduct. The Court went on to hold that such an entry does not necessarily mean the prior charges were false; therefore, evidence of them could not be admitted. In the present case, however, the evidence that Loyd sought to introduce concerned a prior false allegation of sexual misconduct, as well as prior threats of such allegations. Unlike the witness in Phillips, the complaining witness here admitted to the falsity of the *1376 prior charges and to the threats. This evidence does not violate the rape shield statute and does not expose or relate to the victim's past sexual behavior or conduct. The evidence, instead, reveals her state of mind and her manipulative use of false charges and threats of sexual misconduct to achieve her desires.
The State argues that this evidence is inadmissible, not only because it violates the rape shield statute, but also because it reveals contents of confidential juvenile records and constitutes an attempt to impeach the victim based on her prior bad acts. The state is correct in its argument that Loyd may not introduce the contents of confidential juvenile records. However, our holding in this case is not intended to nor does it have the effect of permitting the defendant to introduce the contents of confidential records protected under other rules of evidence. We merely hold that evidence of a victim's prior threats and false allegations of sexual misconduct does not violate Alabama's rape shield statute and in that sense is admissible. While there may be other rules of evidence that a defendant must overcome in order to introduce this evidence, this opinion only addresses the question of whether this evidence violates the rape shield statute.
The state also argues that this evidence is inadmissible because it constitutes an attempt to impeach the victim based on her prior bad acts. We disagree. McElroy's Alabama Evidence states the general rule that "a witness may not be cross-examined for impeachment as to specific acts of misconduct by him which have no relevancy except as tending to show that he is a person of bad character as a whole or with respect to truth and veracity." C. Gamble, McElroy's Alabama Evidence, § 140.01(10) (3d ed. 1977). This general exclusion operates only to prevent impeaching the witness's character. In the present case, however, Loyd sought to cross-examine the victim on her prior bad acts, threats, and false allegations of sexual misconduct, which are relevant to the issue of whether Loyd committed the crime which he is accused or whether the victim was merely continuing her habit of making threats and false accusations to manipulate persons around her. This does not amount to an attempt to impeach the victim's character based on her prior bad acts and is, therefore, admissible.
For the reasons stated in this opinion, the conviction is reversed and the case is remanded for the Court of Criminal Appeals to order a new trial consistent this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, ALMON, HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., concurs in the result. | April 19, 1991 |
d7ed4234-cf4e-4f40-a4a8-ff4f0d4081b9 | Ex Parte Dysart | 581 So. 2d 545 | 1900763 | Alabama | Alabama Supreme Court | 581 So. 2d 545 (1991)
Ex parte Samuel L. DYSART.
(Re Samuel L. Dysart v. State of Alabama).
1900763.
Supreme Court of Alabama.
May 10, 1991.
David A. Simon, Bay Minette, for appellant.
James H. Evans, Atty. Gen., for appellee.
Prior report: Ala.Cr.App., 581 So. 2d 541.
*546 HOUSTON, Justice.
WRIT DENIED.
HORNSBY, C.J., and ALMON, SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX and ADAMS, JJ., dissent.
MADDOX, Justice (dissenting).
The Court of Criminal Appeals, with one Judge dissenting, has held that the rule of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), does not apply to a prosecutor's use of peremptory strikes to exclude women from jury service.
The Court of Criminal Appeals cites in support of its conclusion the case of United States v. Hamilton, 850 F.2d 1038 (4th Cir.1988) (Murnaghan, J., dissenting); cert. dismissed sub nom. Washington v. United States, 489 U.S. 1094, 109 S. Ct. 1564, 103 L. Ed. 2d 931 (1989), and several state cases. Those cases do hold that gender-based peremptory challenges do not offend any provision of the United States Constitution, but I think the better reasoned view on the constitutional issue of purposeful gender discrimination is contained in United States v. DeGross, 913 F.2d 1417 (9th Cir. 1990), in which the Ninth Circuit Court of Appeals, although recognizing that the Fourth Circuit, in Hamilton, had reached a different conclusion, squarely held that the Fifth Amendment's equal protection principles prohibited gender-based peremptory challenges.[1]
The reasoning of DeGross is so cogent that I quote from that case extensively:
913 F.2d at 1421-23.
I think that the Court of Criminal Appeals erred in concluding that the state may engage in purposeful gender discrimination in the exercise of its peremptory challenges. Consequently, I would grant the writ in this case.
[1] In Hamilton, the court had discussed the equal protection clause of the Fourteenth Amendment, but that case involved a federal prosecution. However, as pointed out in footnote 7 of DeGross, 913 F.2d at 1421, while Batson involved a state defendant, the Batson principle is applicable to federal prosecutions under the Fifth Amendment's due process clause. | May 10, 1991 |
e1b3963c-cf6c-4678-93c0-f08ba8ab9de6 | N & C PROPERTIES v. Windham | 582 So. 2d 1044 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 1044 (1991)
N & C PROPERTIES
v.
Dr. Thomas L. WINDHAM and Linda T. Windham.
89-1283.
Supreme Court of Alabama.
April 19, 1991.
Rehearing Denied June 7, 1991.
*1045 Charles Cleveland of Cleveland & Cleveland, Birmingham, for appellant.
W. Howard Donovan III, Birmingham, for appellees.
PER CURIAM.
This Court's original opinion of January 11, 1991, is withdrawn, and the following is substituted therefor.
This appeal is from a summary judgment entered in favor of Dr. Thomas Windham and Linda Windham, husband and wife, and against N & C Properties. Because we find no genuine issue of material fact in the evidence presented, we affirm.
N & C Properties sued AmSouth Bank, N.A., the Windhams, and Vanguard Bank and Trust Company,[1] alleging breach of four real estate purchase contracts by the Windhams. The Windhams counterclaimed, alleging N & C's failure to comply *1046 with the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq. ("ILSFDA" or "the Act"). In its answer to the counterclaim, N & C claimed it was exempt from compliance with the Act under three provisions of the Act: 1) § 1702(a)(2), which allows an exemption for properties to be completed in less than 2 years; 2) § 1702(b)(1), which allows an exemption for properties containing fewer than 100 unexempt units; and 3) § 1702(b)(5), allowing an exemption for properties requiring a warranty deed to be delivered to the purchaser within 180 days from the signing of the sales contract.
The Windhams filed a motion for summary judgment, arguing that the exemptions contained in § 1702(a)(2) and (b)(1) were inapplicable.[2] The trial court granted the Windhams' motion for summary judgment, basing its holding on the res judicata effect of this Court's decision in N & C Properties v. Pritchard, 525 So. 2d 1346 (Ala.), cert. denied, 488 U.S. 856, 109 S. Ct. 146, 102 L. Ed. 2d 118 (1988), in which we held that East Pass Towers, the condominium development in this case, had more than 100 unexempt units, placing it outside the exemption of § 1702(b)(1) and within the requirements of the Act. In its summary judgment, that trial court stated that "by issue preclusion or collateral estoppel [it was] foreclosed from letting another trier of the facts, in a different circuit, determine ... whether or not there are more than 100 units in the same development in Florida."
On appeal in the instant case, N & C presents one issue: Whether the Windhams were entitled to a summary judgment based on the doctrine of collateral estoppel. In reply, however, the Windhams raise the issue of N & C's "claimed" exemption from the requirements of the Act under the specific provisions originally pleaded by N & C, which issue N & C addresses in its reply brief to this Court.
We hold that, while the doctrine of collateral estoppel (sometimes referred to as the doctrine of issue preclusion) does not apply, there is no evidence to support an exemption under § 1702(a)(2), (b)(1), or (b)(5). Therefore, we affirm the judgment of the trial court.
We will first discuss the issue of collateral estoppel and then discuss the specific exemptions as pleaded by N & C.
This Court has frequently discussed the doctrine of collateral estoppel, addressing the requirements necessary for application of that doctrine. In Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190 (Ala.1978), we stated that "[c]ollateral estoppel operates where the subsequent suit between the same parties is not on the same cause of action," and that the "[r]equirements for collateral estoppel to operate are (1) issue identical to one involved in previous suit; (2) issue actually litigated in prior action; and (3) resolution of the issue was necessary to the prior judgment." (Emphasis supplied.) Id. at 1199 (citing Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir.1975)). The Wheeler requirements were refined in Constantine v. United States Fidelity & Guaranty Co., 545 So. 2d 750 (Ala.1989), in which we enunciated two requirements for the application of the doctrine of collateral estoppel:
Id., at 755-56. (Emphasis original.)
Although the issue in N & C Properties v. Pritchard, supra, concerned the applicability of § 1702(b)(1), which section is at issue in the instant case, collateral estoppel will not preclude the trial court from hearing the case between N & C and the Windhams. The Windhams were not parties to *1047 the Pritchard case, nor are they affected by the decision in that earlier case. Questions were raised in this case regarding exemptions for two of the Windhams' condominium units under § 1702(a)(2), which could have affected the exemption provided by § 1702(b)(1), thereby rendering nonidentical the issues in Pritchard and the issues in the instant case.
Moreover, § 1702(b)(1) exempts certain "sales" and not, as the Windhams contend, an "entire development." Therefore, the question whether the sales to the Pritchards were part of a common promotional plan to sell 100 or more units is not identical to the issue presented here (i.e., whether the sales to the Windhams were part of such a plan).
Because issue preclusion is one aspect of res judicata and is frequently referred to as collateral estoppel, the same rationale that bars the operation of collateral estoppel, under these facts, likewise bars the operation of issue preclusion.
N & C pleaded exemptions under § 1702(a)(2), (b)(1), and (b)(5). On appeal, however, neither party argued the applicability, or nonapplicability, of § 1702(b)(5). Therefore, because there was no evidence presented to support such an exemption, we will not discuss that subsection.
N & C further asserted an exemption under § 1702(a)(2). N & C argued that, because two of the sales contracts provided a completion date within two years, it is exempt from the registration and disclosure provisions of the Act. The Windhams, however, argue that the language in those sales contracts does not create an "unconditional commitment" to complete the units within two years and, therefore, does not place the units within the exemption. We agree. The contracts state that in the event the units are not completed by the date established, "each party shall be relieved of all obligations to the other" and the Windhams' deposit will be refunded. This language serves to limit any action that could be taken by the Windhams in the event the units were not completed within the two-year period. As was stated in Dorchester Development, Inc. v. Burk, 439 So. 2d 1032, 1034 (Fla.Dist.Ct. App.1983):
See, also, Schatz v. Jockey Club Phase III, Ltd., 604 F. Supp. 537 (S.D.Fla.1985). Clearly, the language in the contracts between N & C and the Windhams merely limits the remedies available to the Windhams. Because there is no unconditional commitment to complete the units within the two-year period, the units do not fall within the exemption provided under § 1702(a)(2).
The third exemption asserted by N & C is based on § 1702(b)(1) of the Act. Section 1702(b)(1) provides an exemption to the disclosure and registration requirements of the Act when the lots in a subdivision containing fewer than 100 lots, which are not exempt under subsection (a) of this section, are offered for sale or lease. N & C argues that it is exempted under (b)(1) because: (1) phase I has 55 units and should not be combined with phase II, which has 46 units, for purposes of determining whether there were more than 100 lots for exemption purposes under § 1702(b)(1); or (2) if the two phases are counted together, the two units sold to the Windhams that had completion dates within two years are not to be included in the "100 lots" because they would be exempt units under subsection (a) for purposes of determining whether there were more than 100 unexempt units.
An "offer" is defined as including "any inducement, solicitation, or attempt to encourage a person to acquire a lot in a subdivision." 15 U.S.C. § 1701(11) (Emphasis added.) A "subdivision" is defined as "any land which is ... divided or is *1048 proposed to be divided into lots ... for the purpose of sale or lease as part of a common promotional plan." § 1701(3). A "common promotional plan" under the Act is
§ 1701(4).
Under the terms of the Act, which are to be applied liberally in favor of broad coverage, De Luz Ranchos Inv., Ltd. v. Coldwell Banker & Co., 608 F.2d 1297 (9th Cir.1979), phase II of East Pass Towers is part of the common promotional plan. N & C admits that it had retained the option to build the second phase and had reserved the land. The promotional materials depicted twin towers joined by a common lobby. The "Declaration of Condominium" contained a provision stating that the developer had this option.
This Court in Pritchard relied on a Florida decision, Grove Towers, Inc. v. Lopez, 467 So. 2d 358 (Fla.Dist.Ct.App.), cert. denied, 480 So. 2d 1294 (Fla.1985). Grove Towers held that "[a]s long as appellant wanted that option to build [over 100 units], it was obligated to comply with [the ILSFDA]. Grove Towers, 467 So. 2d at 361. N & C, by its own statements, admits that it wanted the option to build phase II. Its argument that these units were not formally offered for sale and that they were not advertised is insufficient in this case to overcome the presumption of coverage under ILSFDA. The evidence before the trial judge on the motion for summary judgment showed, as a matter of law, following this Court's decision in Pritchard, that the two phases were to be treated as part of a common promotional plan.
N & C alternatively argues that the two units claimed to be exempt under § 1702(a)(2) are to be deducted from the total units in determining whether the number of units is over 100. The registration and disclosure requirements of ILSFDA do not apply to "the sale or lease of lots in a subdivision containing fewer than one hundred lots which are not exempt under subsection (a)."
Because we find that N & C is not entitled to the exemption under § 1702(a), we hold that these two units cannot be subtracted from the total units in determining the total units for § 1702(b) purposes.
For the reasons stated herein, we affirm the judgment of the trial court.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] AmSouth Bank issued letters of credit on behalf of the Windhams in a condominium sales transaction. A summary judgment was entered in favor of AmSouth Bank, and that judgment was affirmed in N & C Properties v. AmSouth Bank, N.A., 558 So. 2d 906 (Ala.1990). Vanguard Bank and Trust Company was the escrow agent for the condominium complex and had attempted to call in the letters of credit issued by AmSouth, which letters AmSouth refused to fund. Neither AmSouth nor Vanguard is a party to this appeal.
[2] Neither party argues, in any detail, the applicability of § 1702(b)(5) in this appeal. | April 19, 1991 |
ffd6caba-68b2-4ec5-b386-637e6d86ecf7 | Garris v. Federal Land Bank of Jackson | 584 So. 2d 791 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 791 (1991)
Edward Daniel GARRIS, Sr., et al.
v.
FEDERAL LAND BANK OF JACKSON, a Corporation.
89-1708.
Supreme Court of Alabama.
April 26, 1991.
Rehearing Denied July 26, 1991.
*792 John W. Parker and L. Bratton Rainey III of Parker & McNair, Mobile, for appellants.
E. Elliott Barker and J. Stuart Wallace of Barker & Janecky, Mobile, for appellee.
MADDOX, Justice.
This is a companion case to Garris v. A & M Forest Consultants, Inc., 534 So. 2d 577 (Ala.1988). The principal issue in this case is whether the defendant properly executed a foreclosure sale of the plaintiffs' property, specifically whether the property sold at foreclosure should have been offered in parcels rather than en masse.
On March 15, 1977, Edward D. Garris, Sr., and his wife, Joyce F. Garris, and Samuel B. Garris, Sr., and his wife, Carolyn M. Garris, executed to the defendant, Federal Land Bank of Jackson ("the Bank"), a mortgage covering approximately 458 acres described as several separately owned parcels of property. All four Garrises had signed a single promissory note that was being secured by this mortgage.
The land covered by the mortgage included a parcel of land known as the "river property" (approximately 365 acres along the Tombigbee River), owned by Samuel and Carolyn Garris and other parcels of land, totaling approximately 93 acres, owned by Edward and Joyce Garris. Edward and Joyce had no ownership interest in the property owned by Samuel and Carolyn, and vice-versa.
The Garrises defaulted on their mortgage and the Bank began foreclosure proceedings. The Bank held a foreclosure sale on the property and sold it en masse. The Bank was the highest bidder and purchased the property for $362,425.32. The Bank then sold the river property to A & M Forest Consultants, Inc., which then sold a ¾ interest in that property to Nelson B. Moseley, James F. Butts, and Joseph C. McCorquodale III. After giving written notice of his intention to do so, Samuel B. Garris, Jr., the son of Samuel B. Garris, Sr., and Carolyn Garris, redeemed the river property on February 24, 1986, and on March 15, 1986, he reconveyed the river property to A & M Forest Consultants, Moseley, Butts and McCorquodale.
On August 29, 1986, Edward D. Garris, Sr., Carolyn M. Garris, and their son, Edward D. Garris, Jr. ("the plaintiffs"), filed a complaint seeking to set aside both the partial redemption of the river property made by Samuel B. Garris, Jr., and the Bank's foreclosure sale of the property. The trial court found that Samuel B. Garris, Jr., had given notice of his intent to redeem only the river property and entered summary judgment for the defendants who had purchased the river property from Samuel B. Garris, Jr. (See Garris v. A & M Forest Consultants, Inc.)
Count two of the plaintiffs' complaint, wherein the plaintiffs alleged that at the foreclosure sale the Bank had greatly exaggerated the amount due on the mortgage, remained pending. The plaintiffs alleged that as late as 60 days prior to the foreclosure, the total amount due on the mortgage was $271,684.35, and, thus, that the Bank's foreclosure bid of $362,425.32 exceeded the amount due on the mortgage by approximately $90,000. The plaintiffs asked the court to order the Bank to make an accounting and to either void the foreclosure sale or alter the purchase price at foreclosure to reflect the correct amount due on the mortgage at the time of the foreclosure.
The Bank, after discovering an error in computing the bankruptcy attorney fees, paid the difference of $3,710.56 to the junior *793 lienholder, the Farmers Home Administration, and then moved for a summary judgment. On December 14, 1988, the trial court entered a summary judgment for the Bank. After the plaintiffs moved to alter, amend, or vacate the summary judgment, the trial court set aside the summary judgment for 30 days to allow for additional evidence to be submitted and to hold another hearing. The trial court then took the Bank's motion for summary judgment under submission again.
While the trial court had the Bank's summary judgment motion under submission, the plaintiffs filed an amended complaint in which they further alleged that upon foreclosure the Bank had improperly offered the property en masse rather than by separate parcels, and that as a result the Bank had not generated the highest bid. The Bank filed a motion to dismiss or, in the alternative, to strike the plaintiffs' amended complaint. On July 2, 1990, the trial court dismissed with prejudice both the plaintiffs' original complaint and their amended complaint for failure to state a cause of action. The plaintiffs appealed.
Motions to dismiss should be granted sparingly, and dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Hill v. Kraft, Inc., 496 So. 2d 768 (Ala.1986). Additionally, matters outside the pleadings should not be considered in deciding whether to grant a motion to dismiss for failure to state a claim. Hales v. First Nat'l Bank of Mobile, 380 So. 2d 797 (Ala.1980).
In this case, however, because the Bank's motion for summary judgment had been considered by the trial court and was under submission at the time the trial court granted the Bank's motion to dismiss, we will treat the trial court's dismissal as a summary judgment. Rule 12(b), Ala.R.Civ.P.[1]
We conclude that the trial court properly dismissed the plaintiffs' original complaint and we agree with its determination that the Bank's accounting of the amount due on the mortgage at the time of foreclosure was correct. Although the plaintiffs alleged that the Bank provided them with a statement of the balance due on the mortgage prior to foreclosure showing that they owed $271,684.35, this balance reflected only unmatured principal. In addition to the mortgage debt, payment of interest and other lawful charges may be necessary to redeem property. Garvich v. Associates Financial Services Co. of Alabama, Inc., 435 So. 2d 30 (Ala.1983). Thus, after adding the plaintiffs' insurance premiums, accrued interest, late fees, and attorney fees to the principal, the total balance due at foreclosure was $362,425.32, as the Bank maintained. Accordingly, we affirm the trial court's dismissal of the plaintiffs' original complaint, which under Rule 12(b)(6) constituted a summary judgment for the Federal Land Bank.
The plaintiffs' amended complaint alleges that upon foreclosure, the Bank improperly offered the property en masse rather than by separate parcel.
This Court recognizes the rule stated in George v. Federal Land Bank of Jackson, 501 So. 2d 432 (Ala.1986):
501 So. 2d at 436, quoting Ames v. Pardue, 389 So. 2d 927, 930-31 (Ala.1980). (Emphasis added in (George.)
After reviewing the law regarding the duty of the mortgagee to offer mortgaged property for sale by separate parcels rather than en masse, we hold that the trial court erred in dismissing the plaintiffs' amended complaint, which alleged that the Bank should have offered the property by separate parcels.
When property subject to a mortgage consists of distinct tracts, the mortgagee, as a quasi trustee, has a duty first to offer the property for sale as parcels rather than en masse. The reason for this rule is as follows:
George v. Federal Land Bank, 501 So. 2d at 437.
In this case, the Bank failed to offer the property subject to the mortgage in parcels. By law, it had a duty to do so. Normally, we would instruct the Bank to hold another foreclosure sale and to offer the property by separate parcels. However, to do so here would not do justice, for after the Bank purchased the property en masse at the foreclosure sale, the Bank sold each parcel to a bona fide purchaser: the river property to A & M Forest Consultants, Inc., on November 12, 1985, and the farm property to Mr. and Mrs. J.P. McKey on September 29, 1986.
To void a foreclosure sale, the mortgagor must show that the trust imposed on the mortgagee has been abused and that he has been injured by the sale. Ames v. Pardue, 389 So. 2d at 931. Under the particular circumstances in this case, because there are bona fide purchasers of the property subject to the foreclosure, because significant time has elapsed since the foreclosure sale, and because the plaintiffs have already received an adjudication concerning the sale and redemption of the river property (see Garris v. A & M Forest Consultants, Inc.), we hold that the foreclosure sale should not be voided.
However, when a court takes jurisdiction for one purpose, it will extend that jurisdiction so as to do complete justice and will mold its judgment to adjust the equities of the parties and to meet the necessities of each situation. Ex parte Handley, 460 So. 2d 167 (Ala.1984); First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415 (Ala.1982), cert. denied, 461 U.S. 938, 103 S. Ct. 2109, 77 L. Ed. 2d 313 (1983).
*795 In their original complaint, the plaintiffs challenged the amount bid by the Bank at foreclosure, and in their amended complaint filed four years later, challenged the sale en masse. Traditionally, in "ordinary cases," the period within which a mortgagor could elect to disaffirm a sale of lands under a mortgage was two years. This period was fixed by analogy to the period allowed for statutory redemption, and after this period, in the absence of special circumstances, the court presumed that during that two-year period the mortgagor had elected to ratify the sale. Cloud v. Gamble, 264 Ala. 270, 86 So. 2d 836 (1956); Hawk v. Moore, 260 Ala. 228, 69 So. 2d 419 (1954); Dozier v. Farrior, 187 Ala. 181, 65 So. 364 (1914); Alexander v. Hill, 88 Ala. 487, 7 So. 238, 16 Am.St.Rep. 55 (1890). In 1969, the Alabama Legislature adopted Ala.Code 1975, § 6-5-230,[2] which limited the time to redeem to one year from the date of confirmation of the foreclosure sale.
In this case, the Bank held a foreclosure sale on August 30, 1985, and the plaintiffs complied with the statute by filing their lawsuit on August 29, 1986, less than one year after the sale. The plaintiffs' amended complaint challenging the sale en masse relates back to the date of the original complaint. Rule 15(c), Ala.R.Civ.P. We recently reiterated that where the amendment adds an additional theory and that theory is based on the same facts (as is the situation in this case), no prejudice is worked on the other party by allowing the amendment. E & S Facilities v. Precision Chipper Corp., 565 So. 2d 54 (Ala.1990); see Money v. Willings Detroit Diesel, Inc., 551 So. 2d 926 (Ala.1989); and McCollough v. Warfield, 523 So. 2d 374 (Ala.1988).
Here, the trial court dismissed the plaintiffs' original and amended complaints with prejudice. In reviewing such a dismissal, this Court must view the allegations of the complaint most strongly in favor of the plaintiffs, to determine whether any set of facts could be proven in support of the claim that would entitle the plaintiffs to the relief requested. Parker v. Miller Brewing Co., 560 So. 2d 1030, 1037 (Ala.1990) (Kennedy, J., dissenting); Jones v. Lee County Comm'n, 394 So. 2d 928 (Ala.1981); Phillips v. Opp & Micolas Cotton Mills, Inc., 445 So. 2d 927 (Ala.Civ.App.1984). Viewing the facts most favorably for the plaintiffs, we hold that there is a set of facts that could be proven to show that the Bank's sale en masse injured the plaintiffs, and thus we reverse the trial court's dismissal of the plaintiffs' complaint as amended and remand the cause to the trial court for further proceedings consistent with this opinion. By reversing and remanding the case, we do not suggest that the trial court may not, after a hearing, determine that the plaintiffs have failed to prove that they are entitled to relief. In determining whether plaintiffs are entitled to relief, the court can apply equitable principles.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
MADDOX, Justice.
On application for rehearing, the appellants contend that "while there is a set of facts that can be proven to show that the bank's sale en masse injured the plaintiffs, there is also a set of facts that can be proven to show that in fact the purchasers were not bona fide purchasers, so that the foreclosure sale should be voided."
Because of the facts presented by the record on appeal, we held that we could not void the foreclosure sale, but we permitted the plaintiffs to have a hearing on their amended complaint, and we specifically authorized the trial court to "apply equitable principles" in fashioning a remedy and stated that "when a court takes jurisdiction *796 for one purpose, it will extend that jurisdiction so as to do complete justice and will mold its judgment to adjust the equities of the parties and to meet the necessities of each situation."
If, after a full hearing, the trial court, applying equitable principles, should determine that the purchasers were not, in fact, bona fide purchasers for value, then the trial court would have the power to fashion a judgment that would do equity in the premises.
OPINION EXTENDED; APPLICATION OVERRULED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The Alabama Rules of Civil Procedure were adopted to "effect an integrated procedural system" and "shall be construed to secure the just, speedy and inexpensive determination of every action." Rule 1, (b) and (c), Ala.R.Civ.P.
If matters outside the pleadings are considered by the trial court in regard to a motion to dismiss, then the motion shall be treated as one for summary judgment and shall be disposed of as provided in Rule 56. Rule 12(c), Ala.R.Civ.P. Under the scintilla rule, applicable to suits filed on or before June 11, 1987, if a scintilla of evidence exists to support the position taken by the party against whom the motion for summary judgment is made, summary judgment must be denied. Morris v. Birmingham Southern R.R., 545 So. 2d 34 (Ala.1989).
[2] By Act 88-441, approved on May 3, 1988, the Legislature repealed § 6-5-230. That Act, by § 11, "applies only to mortgages foreclosed after the effective date." The effective date of that Act was January 1, 1989. Thus, for purposes of this case, § 6-5-230 is controlling. | April 26, 1991 |
6cc20fc4-8d49-48b3-bdea-8db3a1b95660 | Seales v. State | 581 So. 2d 1192 | 1900355 | Alabama | Alabama Supreme Court | 581 So. 2d 1192 (1991)
Ex parte State of Alabama.
(Re Theron SEALES v. STATE of Alabama).
1900355.
Supreme Court of Alabama.
April 19, 1991.
Don Siegelman, Atty. Gen., and Rosa H. Davis, Asst. Atty. Gen., for petitioner.
J. Scott Boudreaux, Birmingham, for respondent.
HOUSTON, Justice.
Theron Seales was convicted in the Circuit Court of Jefferson County of the first degree rape of his seven-year-old stepdaughter. The Court of Criminal Appeals reversed the conviction and rendered a judgment in Seales's favor. Seales v. State, 581 So. 2d 1188 (Ala.Crim.App.1990). The State's application for rehearing in that court was overruled. The State then filed a petition for a writ of certiorari, which was granted. We reverse and remand.
See the opinion of the Court of Criminal Appeals for a full explanation of the facts and circumstances surrounding this case.
The State maintains that the Court of Criminal Appeals erred to reversal in holding that Seales was entitled to a judgment of acquittal. Specifically, the State contends that it was reasonably inferable from the evidence that Seales was guilty beyond a reasonable doubt; therefore, it argues, the question of Seales's guilt or innocence was one properly reserved for the jury. We agree.
The standard for appellate review of an issue regarding the sufficiency of the evidence in a case such as this one was set out in Dolvin v. State, 391 So. 2d 133 (Ala. 1980):
"`[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):
391 So. 2d at 137-38, quoting Cumbo v. State, 368 So. 2d 871, 874 (Ala.Crim.App. 1978), cert. denied, Ex parte Cumbo, 368 So. 2d 877 (Ala.1979). See, also, Robinette v. State, 531 So. 2d 697 (Ala.1988). (Emphasis added in Dolvin.)
The indictment in the present case charged that Seales, who was over 16 years of age, had engaged in "sexual intercourse" with his stepdaughter, who was under 12 years of age. This charge was based on Ala.Code 1975, § 13A-6-61(a)(3), which reads, in pertinent part, as follows:
"Sexual intercourse" is defined in Ala.Code 1975, § 13A-6-60(1) (1990 Cum.Supp.), as follows:
The sole issue presented for our review is whether the State presented sufficient evidence of penetration to support the jury's guilty verdict.
The opinion of the Court of Criminal Appeals in this case correctly states the law with respect to the amount of penetration that is necessary to constitute rape:
The opinion of the Court of Criminal Appeals also adequately summarizes the evidence relied upon by the State in support of its argument that penetration was sufficiently proved:
581 So. 2d at 1189-90.
To this we add only the following testimony from the minor victim:
The jury could have, and obviously did, find from the evidence that Seales had attempted *1197 to force his erect penis into the victim's vagina. Dr. Fesenmeier testified that there was "redness, erythema, around the outside of the [victim's] vagina, [the] opening of her vagina and along the labia." There was certainly sufficient evidence from which the jury could have reasonably inferred that Seales's penis had penetrated the victim's "pudendum" or "vulva," and, consequently, that Seales had had "sexual intercourse" with the victim within the meaning of § 13A-6-61(a)(3). The terms "pudendum" or "vulva," as generally applied, include the parts of the external genital organs of the human female such as the labia majora, the labia minora, and the vaginal orifice. See C.M. Goss, Gray's Anatomy, Ch. 17, pp. 1328-29 (28th ed. 1966).
The Court of Criminal Appeals appears to have taken the view that the evidence could be reasonably explained under a theory consistent with Seales's claimed innocence (i.e., that Seales had only "touched" the victim's genitalia with his penis).[2] In so doing, the court substituted its view of the evidence for that of the jury. The jury, by finding Seales guilty of the offense charged, was obviously satisfied that the evidence excluded every reasonable hypothesis except that of guilt. As in Robinette v. State, supra, it was the jury's call. See, also, Tedder v. State, 547 So. 2d 601 (Ala.1989).
For the foregoing reasons, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Testimony at trial indicated that Marvel Seales had had a second child and had been hospitalized for a short time a couple of weeks following the delivery.
[2] We are at a loss to explain why the following sentence was included in the court's opinion as support for its holding:
"The testimony of Dr. Fesenmeier established, as best as we can determine from the record, that the redness and irritation was around the `outside' of the vagina, along the `opening' of the vagina, and along the `sides' of the vagina."
In the paragraph preceding this sentence the court correctly noted that penetration of the vagina did not have to be shown. It is clear that the "redness" testified to by Dr. Fesenmeier was within the victim's pudendum or vulva. | April 19, 1991 |
dc872f34-8fa8-45d5-b480-f382bf1f960e | Allen v. Storie | 579 So. 2d 1316 | 1900248 | Alabama | Alabama Supreme Court | 579 So. 2d 1316 (1991)
John C. ALLEN
v.
Leonard STORIE.
1900248.
Supreme Court of Alabama.
April 5, 1991.
*1317 Randall O. Gladden, Huntsville, for appellant.
James M. Gaines of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellee.
STEAGALL, Justice.
On April 30, 1987, Leonard Storie entered into a "Real Estate Purchase Option Agreement" with John C. Allen that involved a parcel of real estate in Madison County. Storie and Allen also entered into a mortgage agreement, involving the same parcel of property, that provided for a mortgage note in the principal sum of $165,000 and that required Allen to pay monthly installments of $1,750 to Storie on the first of each month until the note was "paid." [1]
The option agreement provided that Storie could exercise his option to purchase the property upon the happening of either one of two events. First, Storie could exercise his option during a one-month period no sooner than one year from the date of the option agreement and no later than 13 months from the date of the option agreement. During this one-month time period, known as a "window," the option could be exercised either by sending written notice of its exercise by certified mail, return receipt requested, or by hand delivery of written notice to Allen at the address set forth in the option agreement. Second, Storie could exercise his option if Allen became more than 10 days delinquent on any monthly payment due on the mortgage note. The option agreement also provided that following the exercise of the option by Storie, Allen had an option to rent the real estate from Storie for a period of one year at a monthly rental equal to the monthly payment on the note.
On April 25, 1988, Allen received a hand-delivered letter from Storie that purported to serve as written notice of Storie's intent to exercise his option. That letter clearly was sent before the one year had expired. Nothing more was done at that time by either party involving the option.
On December 12, 1988, Storie sent a letter to Allen by certified mail, return receipt requested, informing Allen of his intent to exercise his option. On that occasion, Storie was exercising his option pursuant to the delinquent-payment provision in the option agreement. Two days later, Storie met with Allen and they discussed plans to resolve the December delinquent payment problem. After several unsuccessful attempts to collect the payment from Allen, Storie demanded that Allen comply with the option agreement and convey the real estate described in the agreement.
On April 25, 1989, Storie filed a complaint against Allen, seeking specific performance of the option for the sale of the real estate in question. Allen responded with a motion to dismiss the complaint, *1318 alleging that Storie had failed to state a claim; the trial court denied the motion. Allen then filed an answer denying "each and every material allegation" in Storie's complaint, demanded a jury trial, and made an offer of judgment pursuant to Rule 68, A.R.Civ.P. Both parties then moved for summary judgment and, on March 2, 1990, the trial court held a hearing on the matter.
Nothing further occurred until June 5, 1990, when Allen amended his answer to include the affirmative defenses of estoppel and waiver, amended his motion for summary judgment, and amended his response to Storie's motion for summary judgment.
On June 11, 1990, the trial court issued an order granting Storie's motion for summary judgment and denying Allen's motion for summary judgment. The court's summary judgment ordered Allen to convey to Storie the real estate in question. Allen appeals.
As we have stated on numerous occasions, 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. Rule 56(c); 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 evidence offered by the moving party in support of his motion in the light most favorable to the nonmovant.
Allen argues that Storie "missed" the "window" in the option agreement and, therefore, that Storie could not possibly have exercised his option under the "window" provision. We need not address this issue because Storie concedes that his attempt to exercise the option under the "window" provision occurred too soon and, thus, that the April 25, 1988, attempt to exercise the option was ineffectual.
As to Storie's December 12, 1988, exercise of the option agreement, Allen does not contend that that exercise was improper. Instead, he argues that Storie had waived his right to specific performance of the option agreement by his conduct after the 10-day default.
We have stated before that time is of the essence in an option contract unless it is expressly stated otherwise. Colonial Baking Co. of Alabama v. Pine Dale, Inc., 436 So. 2d 856 (Ala.1983). "A specified time within which the option may be exercised is one of the essentials of an option contract." Id. at 858. The record shows clearly that 2 days after the 10-day default period had run, Storie exercised his option and did so by strict compliance with the requirements of the agreement. The December exercise of the option was valid.
Allen contends that Storie waived any right to specific performance when he and Storie met to discuss plans to resolve the delinquent payments. This contention by Allen is not supported by the facts. The record is not clear whether any payments were ever delivered by Allen or received by Storie after the exercise of the option in December. There is evidence that Storie attempted to collect an amount equal to a mortgage payment, but it is not clear whether Storie was attempting to collect a mortgage payment or a rent payment. The option agreement contained a provision allowing Allen to retain possession of the property and to pay monthly rent at the same amount as the monthly mortgage payment, even after Storie had exercised his option to purchase. Nonetheless, the record does not reveal that any money was exchanged after Storie exercised his option. The evidence would not support a finding that Storie's conduct constituted a waiver of his right to specific performance or worked an estoppel. Cf. Henderson v. Winkler, 454 So. 2d 1358 (Ala.1984).
The equitable remedy of specific performance rests largely in the discretion of the trial judge, and whether relief shall *1319 be granted depends upon a consideration of the particular circumstances of each case. Stringfellow Materials, Inc. v. Lee, 438 So. 2d 1387 (Ala.1983). Furthermore, the trial court's ruling may not be overturned unless it is shown to be palpably erroneous. Gulf City Body & Trailer Works, Inc. v. Phoenix Properties Trust, Inc., 531 So. 2d 870 (Ala.1988).
Because of the result reached on other grounds, we find it unnecessary to address the other issues raised on appeal by Storie.
Thus, construing the evidence in the light most favorable to Allen, we do not find substantial evidence to rebut Storie's prima facie showing that no genuine issue of material fact exists. Therefore, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] Allen owned the real estate in question, but mortgaged the property to Storie. The option agreement stems out of the mortgage agreement. | April 5, 1991 |
e4a89e22-c51b-49d1-a7d5-74e4b0dc4905 | Gollotte v. Peterbilt of Mobile, Inc. | 582 So. 2d 459 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 459 (1991)
Walter GOLLOTTE, d/b/a Walter Gollotte Trucking
v.
PETERBILT OF MOBILE, INC.
89-1600.
Supreme Court of Alabama.
April 19, 1991.
Rehearing Denied May 31, 1991.
*460 Edward P. Turner, Jr. and E. Tatum Turner of Turner, Onderdonk, Kimbrough & Howell, Chatom, for appellant.
Broox G. Holmes and William Steele Holman II of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
INGRAM, Justice.
Walter Gollotte, d/b/a Walter Gollotte Trucking, sued Peterbilt of Mobile, Inc., alleging that Peterbilt had failed to install an air filter in the engine of one of Gollotte's trucks when the truck was in Peterbilt's shop for repairs to a "dropped valve," and that, as a result, the engine had been damaged. Gollotte's complaint alleged both negligence and breach of contract by Peterbilt. Following discovery, Peterbilt filed a motion for summary judgment, which the trial court granted. Thereafter, Gollotte filed a motion to alter, amend, or vacate the summary judgment. The motion was denied and Gollotte appealed.
Gollotte argues that the trial court erred in entering the summary judgment because, he argues, there was substantial evidence that Peterbilt failed to install an air filter in Gollotte's truck. Gollotte also argues that the trial court erred in refusing to compel Peterbilt to produce documents relating to an investigation done by a Peterbilt employee. The trial court found that the documents were made in anticipation of litigation and were, therefore, a part of Peterbilt's work product.
The pertinent evidence in this case indicates that on August 17, 1988, Gollotte took a 1982 Kenworth K100 diesel tractor-truck to Peterbilt for repairs after the engine began "skipping," losing power, and blowing white smoke. Peterbilt determined that the problem with the truck was a dropped valve in the engine. In authorizing Peterbilt to make the necessary repair, Gollotte says, he instructed Peterbilt to "fix whatever needs repairing." Peterbilt repaired the dropped valve. On three later occasions in August and September 1988, Gollotte brought the truck back to Peterbilt for other repairs on specified items, such as the air conditioner, the motor mount, the lube refiner oil lines, the speedometer, the tachometer, and the fuel pressure mechanism.
On March 17, 1989, six months and 62,000 miles after Peterbilt's last repairs on the truck, the truck broke down. It was towed to Yankee Kenworth in Hartford, Connecticut, for repairs. Donald LaPlante, the service manager at Yankee Kenworth, stated in his deposition that when he inspected the truck after it had arrived at Yankee Kenworth, there was no air filter in the canister on the engine. LaPlante further stated that the cylinder walls of the engine were "extremely dusted" as a result of foreign materials entering the engine through the air intake system. Gollotte spent $6,777.40 to have the truck towed and repaired.
The principal question presented in this appeal is whether there was a genuine issue of material fact either as to whether *461 Peterbilt negligently failed to install an air filter in Gollotte's truck while the truck was being repaired for a dropped valve, or as to whether a contract existed between Gollotte and Peterbilt requiring Peterbilt to install an air filter in Gollotte's truck. There is no dispute that Gollotte suffered damage to his truck.
Initially, we note that a motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Southern Guar. Ins. Co. v. First Alabama Bank, 540 So. 2d 732, 734 (Ala.1989). The burden is, therefore, upon the moving party to clearly show that there is no material fact in dispute, and all reasonable inferences from the evidence are to be viewed most favorably to the nonmovant. Southern Guar. Ins. Co., supra, at 734.
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 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., 547 So. 2d 870, 871 (Ala.1989).
In the present case, Peterbilt supported its motion for summary judgment with the following: (1) the deposition of Paul Marlow, the Peterbilt mechanic who worked on the truck in August 1988, wherein he states that when Peterbilt worked on the truck there was an air filter on it and that he personally inspected that filter and determined that there was no need to replace it with a new one; (2) the deposition of Larry Johnson, Peterbilt's service manager, who stated that the repair order, dated August 17, 1988, provided that Peterbilt was to check the engine for a possible dropped valve on Gollotte's truck and also stated that changing the air filter was not ordinarily part of repairing a dropped valve; (3) the deposition of Donald LaPlante, service manager for Yankee Kenworth, stating that if Gollotte had followed the engine manufacturer's recommended service checks, the damage to the engine could have been avoided, because, he stated, the engine's air filter should have been checked by the operator at least once every 12,000 miles.
In opposition to Peterbilt's motion for summary judgment, Gollotte, like Peterbilt, filed the depositions of Paul Marlow, Larry Johnson, and Donald LaPlante. In addition, Gollotte also filed the answers he had given to Peterbilt's first set of interrogatories, his dispatch sheets and his drivers' daily logs, and his own deposition, in which he stated that when he took his truck to Peterbilt in August 1988, he told the mechanics to "fix whatever needs repairing." Gollotte further stated in his deposition that shortly after the truck broke down, he checked the air filter canister and found that "the bolts hadn't even been off of it." He continued: "The paint was still new on it. See, before I bought [the] truck, Peterbilt had it painted. The nuts had never been even cracked on the air breather from the day I got it."
In response to a question regarding how often he changed the air filter in his trucks, Gollotte stated:
In order to prove a claim of negligence, a plaintiff must establish a breach of a duty owed by the defendant to the plaintiff which proximately caused damage to the plaintiff. Thompson v. Lee, 439 So. 2d 113, 115 (Ala.1983). Proof of injury *462 or damage alone is, therefore, generally insufficient to establish negligence. Id.
Here, Gollotte attempts to argue that because his truck broke down on March 17, 1989, as a result of the absence of an air filter, and because Peterbilt performed work on the truck on August 17, 1988, Peterbilt must have been negligent in its repair. However, we agree with the trial court that no duty was owed by Peterbilt to replace the air filter. Nothing in Gollotte's deposition testimony presents substantial evidence of a material fact to rebut the prima facie showing made by Peterbilt that summary judgment was proper, because his deposition does not establish that Peterbilt owed a duty to him to replace the air filter element in his truck engine when the truck was in Peterbilt's shop for repairs in August 1988.
We also do not agree with Gollotte's argument that Paul Marlow's deposition testimony shows that Peterbilt owed a duty to Gollotte regarding replacement of the air filter. Although Marlow testified that he voluntarily inspected the air filter element and found it to be "about brand new," we find nothing in his testimony that indicates that he inspected the air filter because he had a duty to do so. Furthermore, Marlow's testimony regarding his inspection of the air filter is contradicted by Gollotte's own deposition testimony wherein he stated that based upon his inspection of the truck's air filter canister, he believed that the bolts had not been loosened since before he had purchased it.
The evidence presented to the trial court causes us to agree that the summary judgment was properly entered on the question of negligence.
As to Gollotte's claim alleging breach of contract, we find that it too must fail because of the lack of substantial evidence that a contract existed between Gollotte and Peterbilt requiring the installation of an air filter element in the truck as a part of the work Peterbilt performed or agreed to perform for Gollotte during August and September 1988.
The second issue raised by Gollotte regards the propriety of a discovery order by the trial court refusing to compel Peterbilt to produce certain notes made during an investigation by its service manager after Gollotte's complaint was filed. Peterbilt contends that the discovery order is not properly before this Court on appeal because, it argues, the order was not expressly mentioned in the notice of appeal, and Gollotte's intention to appeal as to that order cannot be reasonably inferred from the text of the notice.
Gollotte's notice of appeal, filed on July 24, 1990, reads, in pertinent part, as follows:
This Court has, on many occasions, manifested a willingness to construe notices of appeal liberally. See, e.g., Curtis v. Bill Byrd Automotive, Inc., 579 So. 2d 590 (Ala.1990). In Edmondson v. Blakey, 341 So. 2d 481, 483 (Ala.1976), this Court observed that Rule 3(c), A.R.App.P., like its federal counterpart, provides for a simple notice of appeal specifying the party or parties taking the appeal and states that the notice shall designate the judgment, order, or part thereof appealed from. Rule 3(c); Edmondson, supra, at 483. The federal courts have been very liberal in entertaining appeals even where the notice fails to comply literally with the requirements of Rule 3(c). Edmondson, supra, at 483. The test for dismissal for failure to comply seems to be whether the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice. Id.
In Threadgill v. Birmingham Board of Education, 407 So. 2d 129 (Ala.1981), this *463 Court considered a question similar to that presented here. There, the trial court granted summary judgment on December 17, 1980, for the defendant school board, but the summary judgment in favor of the co-defendant superintendent was not entered until March 12, 1981. Id. at 131. Threadgill's notice of appeal stated that she was appealing from the order of March 12, 1981. Id. This Court, quoting Edmondson, supra, held that Threadgill had appealed from a specified judgment or only a part thereof and that this Court had no jurisdiction to review other judgments or issues that were not expressly referred to and that were not impliedly intended for appeal. Id. at 132.
Gollotte appealed from the final judgment entered against him. Until that judgment was entered, the ruling on the discovery order was not subject to appeal. The entry of a final judgment made all rulings leading up to that judgment subject to appeal, and an appeal from that judgment allows the appellant to argue on appeal any alleged error at any point in the proceedings that led to that judgment. See Rule 3(c), A.R.App.P. The discovery order in this case is, thus, very different from the summary judgment for the school board in Threadgill; that summary judgment was in no way incorporated into, or a necessary element leading up to, the summary judgment for the superintendent, even though it was the entry of the later summary judgment that made the first one final and appealable. Therefore, we will address the issue whether Gollotte should have had access to certain documents and notes made by Peterbilt, which Peterbilt insists were made in anticipation of litigation and were, therefore, its work product.
The record reveals that in August 1989, Gollotte noticed the deposition of Peterbilt's employee, Larry Johnson, and attached to the notice a subpoena duces tecum requesting production of any and all notes, correspondence, reports, or other documents made during Peterbilt's investigation of this incident. Peterbilt immediately filed its objection to Gollotte's request for materials relating to its investigation, stating that the information had been prepared in anticipation of litigation and was, therefore, a part of its work product. Gollotte moved to compel discovery. The trial court denied the motion. Gollotte moved the court to reconsider its denial. The trial court, thereafter, ordered Peterbilt to produce those documents that had been prepared by Peterbilt prior to the filing of a complaint by Gollotte.
Gollotte insists on appeal that he was entitled to discovery of the documents he had requested and that the trial court abused its discretion in not allowing discovery of the notes and other documents made by Peterbilt after suit was filed. However, Gollotte failed to comply with Rule 56(f), A.R.Civ.P., and Peterbilt contends that Gollotte's failure to comply makes his discovery request moot.
A question similar to that presented under the facts relating to this issue was answered by this Court in Government St. Lumber Co. v. AmSouth Bank, N.A., 553 So. 2d 68 (Ala.1989). There, this Court, quoting Reeves v. Porter, 521 So. 2d 963, 965 (Ala.1988), noted that the mere pendency of a discovery request does not bar the entry of a summary judgment. The Court further held that if the trial court can ascertain from the record that the matter sought by a discovery request was crucial to the nonmovant's case, then it would be error for the trial court to enter a summary judgment before the items had been produced. Government St. Lumber Co., supra, at 71. The Government St. Lumber Co. Court went on to state that the burden of showing that these items are crucial is upon the nonmoving party. Id.
In the present case, the trial court's adverse ruling on Gollotte's discovery motion placed upon Gollotte the burden of persuading the trial court that the discovery he sought was, or might be, crucial to his opposition to Peterbilt's motion for summary judgment. We do not find where Gollotte met his burden of showing that the items not produced were crucial to his case, and we are otherwise unable to determine, from the record before us, that they were crucial. Therefore, we find that the *464 issue of whether the trial court abused its discretion in relation to the discovery order is moot because Gollotte did not comply with Rule 56(f) by proving that the matter sought by discovery was or might be crucial to his opposition to Peterbilt's motion for summary judgment.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | April 19, 1991 |
35e108a0-b91a-4252-a915-0ab6638243dd | Cornett v. Johnson | 578 So. 2d 1259 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1259 (1991)
Paul CORNETT
v.
Marshall JOHNSON and Johnson Insurance Agency, Inc.
89-1612.
Supreme Court of Alabama.
April 19, 1991.
Beverly J. Paschal of Paschal & Collins, Cullman, for appellant.
Rennie S. Moody of Lanier, Ford, Shaver & Payne, Huntsville, for appellees.
MADDOX, Justice.
This appeal presents the questions whether an insurance agency, under the facts of this case, owed any duty to notify an insured that his homeowner's policy had been canceled and whether there was evidence that the agency had agreed to procure insurance for its insured and had failed to do so.
*1260 The appeal is from a summary judgment entered in favor of the defendants, Marshall Johnson, individually, and the Johnson Insurance Agency, a corporation. Appellant, Paul Cornett, in his complaint, alleges that Marshall Johnson and the Johnson Insurance Agency, Inc. ("the Johnson Agency"), negligently failed to notify him that his insurance had been canceled and that each defendant had breached a duty owed to him as an insured and as an applicant for insurance. We find that there is a genuine issue of fact whether there existed, under the facts of this case, an agency relationship between Cornett and the Johnson Agency. We also find that there is a genuine issue of fact as to whether the Johnson Agency owed Cornett a duty to procure new insurance for him once his policy with Capital Assurance, Inc., had been canceled; therefore, we reverse this cause as to the Johnson Agency on both Cornett's claim of alleged negligence and on his claim of a breach of a fiduciary duty. However, we hold that summary judgment was appropriate as to Cornett's claims against Marshall Johnson personally.
The suit arose from the following facts.
On March 16, 1986, the Johnson Insurance Agency, Inc., procured a homeowner's insurance policy for Paul Cornett, covering his mobile home. Federal Guaranty Financial Corporation was named as the loss payee in the policy, because it had provided Cornett with the financing he needed to purchase the mobile home. Alfa Financial Corporation is the successor in interest to Federal Guaranty Financial Corporation. In March 1987, the Johnson Agency informed Cornett that his annual insurance premium was due. Cornett promptly paid his premium. At that time, the Johnson Agency procured a homeowner's insurance policy on behalf of Cornett with Capital Assurance Inc., through J.R. Kitchens, Inc. ("the Kitchens Company"), an agent of Capital Assurance, Inc. Alfa was listed as a loss payee on this policy, as its predecessor had been on the 1986 policy.
Over the next year, Cornett filed two claims involving theft with the Johnson Agency. These claims were handled entirely by employees of the Johnson Agency. At all times, the Johnson Agency was the company Cornett contacted to pay his premiums, to add additional coverage, and to submit claims.
After the second theft claim had been filed by Cornett, the Johnson Agency made on the claim form a notation that it involved the second theft claim within a year. The Kitchens Company decided to investigate Cornett's use of the mobile home. At that time, there was some speculation that Cornett was not using the mobile home as a personal residence, as he had stated in the application, but that he was, in fact, using the mobile home as an office for a used automobile lot. Such a use would increase the amount of risk that the insurance company would have to bear. Based on its investigations, the Kitchens Company decided to terminate Cornett's coverage with Capital Assurance because of misrepresentations he had made on his application for insurance. The Kitchens Company claims that it sent notice of the cancellation to Cornett, the Johnson Agency, and Alfa. Cornett denies that he received any notification of the cancellation.
In July 1988, Capital Insurance refunded the unused portion of Cornett's premium by crediting the amount to the Johnson Agency account. This was acknowledged by the Johnson Agency in August 1988; however, the money was not returned to Cornett until November 1988, one day after he had made a claim with the agency for a loss by fire.
There is evidence that when Alfa learned of the cancellation, Ms. Pamela Dent, an agent of Alfa, wrote a letter to Cornett informing him that his insurance had been canceled because of nonpayment of the premium. There is evidence that Ms. Dent sent a second letter to Cornett stating that Alfa had purchased insurance to protect its interest in Cornett's mobile home. Ms. Dent testified that Alfa did not purchase insurance to protect Cornett's interest in the mobile home because she thought that Cornett was protected by another insurance policy. Ms. Dent said she based this belief on the fact that Mr. Ron Stone, the *1261 local Alfa agent who had lent the money to Cornett, had telephoned the Johnson Agency and talked to an employee there. That employee allegedly stated that Cornett's policy had been canceled because of the claims that he had submitted, but that the Johnson Agency was going to place his insurance with another company. That employee denies having that conversation with Ron Stone.
Cornett testified that he did not receive the notice of cancellation mailed by the Kitchens Agency. However, he did state that he had received the letter from Ms. Dent stating that his insurance had been canceled because of the nonpayment of his premiums. Cornett testified that he called the Johnson Agency and was informed that the cancellation of his insurance policy had been a mistake, and that the mistake would be taken care of. Cornett testified that he did not worry about the cancellation, because he had received letters similar to this one previously.
On November 21, 1988, Cornett's mobile home burned. When he made a claim with the Johnson Agency, he learned that his policy had been canceled. On the day after he learned that his policy had been canceled, he received the refund of his unused insurance premium from the Johnson Agency. The Kitchens Company had credited Johnson Agency's account with the amount of Cornett's unearned premium when it canceled the policy.
Cornett asserts two separate claims against Marshall Johnson and the Johnson Insurance Company. He first claims that they negligently failed to notify him that his insurance policy had been canceled. Second, he claims that they breached a fiduciary duty that was owed him in not obtaining insurance for him once his policy had been canceled by Capital Assurance. Even though Cornett named Marshall Johnson as a defendant in this lawsuit, he does not allege any wrongs committed by Marshall Johnson individually, and the evidence submitted on the motion for summary judgment does not indicate that Cornett ever had any dealings of any kind with Marshall Johnson. We hold that summary judgment was appropriate as to Marshall Johnson.[1]
We now address Cornett's claims that the Johnson Agency negligently failed to inform him that his insurance policy had been canceled and that the agency had breached a fiduciary duty owed him by not obtaining new insurance for him once his insurance policy had been canceled by Capital Assurance.
Cornett seeks to fasten liability on the Johnson Agency because he claims that an agency relationship existed between him and the Agency, and that, based on that agency relationship, Johnson Agency had a duty to inform him that his policy had been canceled. The Johnson Agency denies that there was such a relationship between it and Cornett as to place it under a duty to inform Cornett of any policy cancellations.
Section 27-23-25, Code of Alabama 1975, provides that adequate notice of cancellation exists when the notice of cancellation has been mailed to the insured, and Alabama case law has interpreted this Code section as meaning that an insurance company can prove adequate notice of cancellation by proving that it mailed the notice, regardless of whether the insured actually received the notice. Strickland v. Alabama Farm Bureau Mutual Cas. Ins. Co., 502 So. 2d 349 (Ala.1987), Hilliar v. State Farm Mutual Auto. Ins. Co., 451 So.2d *1262 287 (Ala.1984). Those cases, of course, involved situations where an insured had dealt directly with an insurance company or that company's agent. As we understand Cornett's theory of liability, he contends that the Johnson Agency, under the facts of this case, established an agency relationship with him. He contends that the Johnson Agency agreed to obtain an insurance policy that would insure his mobile home, and that the Agency did, in fact, obtain insurance for him with Capital Assurance, through its agent, the Kitchens Company. He claims that the Johnson Agency handled any claims that he made on his insurance policy, informed him when his premiums were due, and answered any questions that he had regarding his insurance policy, and he claims that when he inquired about the cancellation notice he admitted receiving from Dent, he was told to ignore the notice because it was a mistake.
Based on these facts, we find that substantial evidence exists to support the conclusion that an agency relationship existed between the Johnson Agency and Cornett. Therefore, summary judgment should not have been entered on his negligence claim. Under Alabama case law, the existence and scope of a principal-agent relationship are questions of fact to be determined by a jury. Potomac Leasing Co. v. Bulger, 531 So. 2d 307 (Ala.1988); Calvert v. Casualty Reciprocal Exchange Ins. Co., 523 So. 2d 361 (Ala.1988).
We hold that the question whether the Johnson Agency, under the facts of this case, was acting solely as a broker or was acting as an agent of Cornett, was a fact question for a jury. If the jury finds that an agency relationship did exist, then a genuine issue of fact exists as to whether the Johnson Agency was negligent, as alleged.
Cornett asserts also that the Johnson Agency breached a fiduciary duty that it owed him when it failed to procure insurance for him after his policy with Capital Assurance, Inc., had been canceled. He cites several cases involving the responsibility of an insurance agent or broker to obtain insurance for an applicant or insured once an agreement has been reached wherein the insurance agent or broker has agreed to obtain the required insurance.
There is evidence that Cornett and the Johnson Agency reached an agreement by which the Johnson Agency was to procure insurance for Cornett after Cornett's policy had been canceled with Capital Assurance, Inc. For example, there is evidence that a statement was made by a Johnson Agency employee to a representative of Alfa that the Johnson Agency would place Cornett with another insurance company. Cornett claims that this evidence would support a finding that the Johnson Agency had a duty to find him another insurance company; and he claims that the Johnson Agency breached this duty when it failed to procure insurance for him with another company.
Cornett cites Montz v. Mead & Charles, Inc., 557 So. 2d 1 (Ala.1987) in support of his contention. In that case the insurance company had agreed to procure insurance for the applicant, had accepted the premium for the insurance, and had issued the applicant a binder. The insurance was canceled because the insurance company had failed to supply the applicant with the necessary forms in order to obtain the insurance. In the Montz case, there was an agreement between the insurance company and the applicant for insurance that insurance would be procured for the applicant. In our review of the Montz case, we held:
557 So. 2d at 4, quoting Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So. 2d 1060 (Ala.1978).
We find a jury question as to whether there was an agreement to procure insurance; therefore, this case is similar to the Montz case. In addition to the evidence that the Johnson Agency assumed the responsibility of procuring insurance for Cornett after his policy was canceled by Capital Assurance, there was evidence that the Johnson Agency, after the insurance policy had been canceled, retained the unearned premium and did not refund it to Cornett until after the loss had occurred. This evidence tends to support Cornett's claim that the Johnson Agency was under a duty to obtain new insurance for him once his policy with Capital Assurance, Inc., had been canceled, and that the agency breached this duty when it failed to obtain the new insurance.
Based on the evidence, we find that a genuine issue of fact exists concerning whether Johnson Agency breached a duty owed to Cornett by not procuring insurance for him.
Therefore, we affirm in part; reverse in part; and remand.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The Johnson Insurance Agency, Inc., is a corporation legally doing business in Cullman County, Alabama. Under Alabama law, corporations are treated as entities separate and distinct from the individuals who own them as stockholders or who manage them as directors or officers. Read News Agency, Inc. v. Moman, 383 So. 2d 840, 843 (Ala.1980). Individual responsibility is not imposed upon the officers of a corporation unless there is a showing that, through abuse or manipulation, the corporate form was used to evade personal responsibility. Jefferson Pilot Broadcasting Co. v. Hilary & Hogan, Inc., 617 F.2d 133, 136 (5th Cir.1980). In Cohen v. Williams, 294 Ala. 417, 318 So. 2d 279 (1975), this Court stated that the determination of whether a person will be held individually responsible will be determined on a case-by-case basis. | April 19, 1991 |
9baf1971-9263-4365-a4d2-be0f1699dece | OK BONDING CO., INC. v. Milton | 579 So. 2d 602 | 1900628 | Alabama | Alabama Supreme Court | 579 So. 2d 602 (1991)
O.K. BONDING COMPANY, INC.
v.
Debbie MILTON, et al.
R.C. McCAIN and O.K. Bonding Company, Inc.
v.
Debbie MILTON, et al.
88-1426, 1900628.
Supreme Court of Alabama.
April 26, 1991.
H. Jadd Fawwal of Fawwal & Fawwal, Bessemer, for appellants.
Richard C. Shuleva, Pelham, and William E. Swatek, Alabaster, for appellees.
*603 ALMON, Justice.
O.K. Bonding Company ("O.K.") and R.C. McCain ("the appellants") appeal from judgments rendered against them and another defendant in an action alleging assault and trespass brought by Debbie Milton and eight other plaintiffs.[1] The jury returned separate verdicts for each plaintiff, awarding compensatory and punitive damages. The trial court entered a separate judgment on each verdict.
At approximately 9:00 p.m. on February 16, 1984, four individuals hired by O.K. went to the homes of Debbie and William Milton and Brenda and Christy Hyde for the purpose of arresting a defendant for whom O.K. had undertaken to provide bail. The individuals hired by O.K. were armed with shotguns or pistols. At least one of them, James Coleman, entered both houses without permission, while armed with a shotgun. The person who was the object of O.K.'s search was not in either of the houses. However, there were a number of minor children and women in both houses. It does not appear that any of the residents knew why a man brandishing a shotgun had burst into their homes.
Milton and the other residents of the two houses filed a complaint against O.K., McCain, and the agents of O.K. who entered the plaintiffs' property, alleging trespass and assault. O.K. and McCain filed a third-party complaint against another bonding company, A-O.K. Bonding, and its owner, alleging that the individuals who entered the plaintiffs' property were acting as agents for A-O.K. Bonding. At the conclusion of the trial, the jury returned verdicts in favor of the various plaintiffs and against O.K. and its agents, assessing damages totalling $225,000. The jury also returned a verdict against O.K. and McCain on their claim against A-O.K. Bonding and its owner. O.K. and McCain appeal, raising a number of issues.
At the outset, we note that the legislature has passed laws that allow sureties such as O.K., and their agents, to arrest defendants who "jump bail." By extending this power to sureties, the legislature did not intend to "deputize" sureties or to otherwise clothe them in the authority given to police officers. Rather, the laws were passed to allow sureties to protect private rights established by the bail contract between the accused and the surety. Livingston v. Browder, 51 Ala.App. 366, 285 So. 2d 923 (1973). However, because those laws confer a power normally held only by agents of the state, the individuals attempting to use that power must be sure to follow the procedure, and abide by the restrictions set out by the legislature and the courts of this State. Failure to do so can render the arrest or attempted arrest unlawful. Nicholson v. Killpatrick, 188 Ala. 258, 66 So. 8 (1914); Watkins v. City of Mobile, 549 So. 2d 575 (Ala.Cr.App.1989); Ala.Code 1975, §§ 15-13-62 and -63.
The first requirement for a lawful arrest by a surety is the possession, by the surety, of a certified copy of the bond at the time the arrest is made. Gray v. Strickland, 163 Ala. 344, 50 So. 152 (1909); Livingston, supra. That bond serves as the surety's legal process, Livingston, supra; § 15-13-62, and the surety must be sure to give the accused notice of the authority under which he is being arrested. Shine v. State, 44 Ala.App. 171, 204 So. 2d 817 (1967). If the surety wants to authorize another person to make the arrest, as in this case, he must delegate his authority to arrest by means of a written endorsement on the certified copy of the bond. Watkins, supra; § 15-13-62.[2] Although it appears that one of the agents of O.K. who entered the plaintiffs' property had a copy of the bond, it was not endorsed by the surety as required by law. Therefore, the agents were not authorized to make an *604 arrest, and their presence on the Milton and Hyde properties was not privileged or protected.
The appellants' first argument is that the trial court erred by refusing to direct a verdict for McCain on each of the plaintiffs' claims. They contend that the plaintiffs failed to present sufficient evidence showing that McCain was individually liable for the acts of the agents. We do not agree. Two witnesses testified that those agents acted on McCain's instructions and that McCain was aware of the methods they planned to employ in their attempt to apprehend the person for whom O.K. had undertaken to provide bail. That evidence justified submitting the plaintiffs' claims against McCain to the jury.
Second, the appellants argue, in a general manner, that the amount of punitive damages awarded by the jury was excessive and should have been reduced by the trial court. We do not agree. The security of an individual in his home is one of the foremost concerns of the law. Unlawful, armed intrusions into homes occupied by women and children are indefensible, and it is well within the province of juries to determine that the parties responsible for such egregious breaches of the peace deserve to be rigorously punished. After reviewing the record, we find that the awards of damages, except for the punitive damages awarded to one of the plaintiffs, were amply supported by the evidence and are due to be affirmed.
However, the jury's verdict on Justin Earl Hyde's trespass claim cannot be upheld. The jury assessed punitive damages of $15,000 for Justin, but awarded him "$0" in nominal or compensatory damages. The appellants filed a post-trial motion challenging the award of punitive damages to Justin. It is settled that punitive damages cannot be awarded unless the jury also awards nominal or compensatory damages. Therefore, the portion of the judgment awarding punitive damages to Justin, as entered against O.K. and McCain, must be reversed.[3]Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So. 2d 312 (1975).
The appellants' third argument is that the trial court erred by refusing to instruct the jury on the authority that is conferred on an individual in possession of a certified copy of a bond that contains a written endorsement by the surety delegating his authority to arrest. Although one of O.K.'s agents in the instant case had a certified copy of the bond, it had not been endorsed by the surety. As a result, the agents were without authority to arrest, see Watkins, supra, and § 15-13-62. Therefore, the requested instruction was not applicable, and the trial court did not err in refusing to read it to the jury.
The appellants make arguments relating to their third-party claim against A-O.K. and its owner, Roy McMahan. Those arguments pertain only to the trial court's initial failure to enter a judgment on the verdict in favor of A-O.K. and McMahan. The jury did not sign the verdict form that would have awarded damages on the third-party claim. Rather, the foreman stated in open court:
The court entered specific judgments on the separate verdicts for the plaintiffs, but did not enter a judgment on the third-party claim. After the notice of appeal was filed, this Court remanded the cause for entry of a final judgment. The trial court on remand effectively entered a judgment on the verdict in favor of A-O.K. and McMahan.[4] Because the appellants' arguments are *605 based on a mistaken interpretation of the procedural posture regarding the third-party claims, we will not set them forth or address them in detail. We hold simply that those arguments have no merit and present no ground for reversal.
For the reasons set out above, this Court concludes that the judgment against O.K. and McCain, except for that portion awarding punitive damages to Justin Earl Hyde, is due to be affirmed. Because the jury's award of punitive damages to Justin was not supported by the award of any nominal or compensatory damages, that portion of the judgment against O.K. and McCain is reversed, and the cause is remanded for entry of a judgment for O.K. and McCain on Justin's claim.
88-1426AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
1900628DISMISSED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The other defendant against whom the jury returned a verdict, James Coleman, did not appeal.
[2] Although Watkins was decided after the jury returned its verdicts in this case, the holding in Watkins was based on the plain language of § 15-13-62, which says that a surety "may arrest the defendant on a certified copy of the undertaking at any place in the state, or may authorize another person to arrest him by an endorsement in writing on such copy."
[3] The other defendant against whom punitive damages were assessed is not a party to this appeal. Therefore, the judgment will not be disturbed as it concerns him.
[4] The appellants filed a new notice of appeal, which was docketed and submitted as case number 1900628. The new notice of appeal was inappropriate, see Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala.1984), overruled on other grounds, Ex parte Andrews, 520 So. 2d 507 (Ala. 1987), so that appeal is due to be dismissed. | April 26, 1991 |
78b9ebcd-f1c1-4409-b455-12db828a2301 | Duren v. Northwestern Nat. Life Ins. Co. | 581 So. 2d 810 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 810 (1991)
Christine DUREN
v.
NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY.
89-944.
Supreme Court of Alabama.
May 17, 1991.
*811 Bryan G. Duhé, Mobile, for appellant.
Sandy Grisham Robinson of Coale, Helmsing, Lyons, Sims & Leach, Mobile, for appellee.
ALMON, Justice.
Christine Duren, as beneficiary of a life insurance policy on her deceased husband, Dale Duren, filed an action in tort and in contract against the insurer, Northwestern National Life Insurance Company. Northwestern defended on the grounds that its denial of benefits and return of premiums were proper because, it claimed, Mr. Duren had misrepresented material facts in applying for the policy. After discovery, including depositions of Mr. Duren's treating physicians, the trial court entered a summary judgment for Northwestern.
Mr. Duren applied for the policy on March 25, 1986; he died of lung cancer on June 15, 1987. On the application, he disclosed that he had been treated for pneumonia in May 1985 by Dr. Dietze at Thomas Hospital in Fairhope and listed his regular physician as Dr. Neil Wimberley[1] of Mobile, whom he said he had last consulted on February 17, 1986, for a "check-up." In answers to other questions on the form, he denied that he had ever had any disease of the lungs, any heart or chest pains, or cancer, and denied that he was "presently under [his] doctor's care for any condition." He answered "no" to the question, "Have you in the past 12 months had any known or suspected heart attack, stroke, or cancer, other than of the skin, or been treated by any physician or other practitioner for any of these conditions?"
Because Mr. Duren was over 50 years old, Northwestern required a paramedical examination, which was performed on April 2. The report of that examination includes the following notations:
Northwestern did not contact either Dr. Dietze or Dr. Wimberley for more information on, or for verification of, Mr. Duren's treatment for pneumonia. On April 16, 1986, it issued a policy at a smoker's rate, because his examination showed the presence of nicotine in his urine. Mr. Duren complained that, as shown in his application, he had quit smoking a year earlier, but said that he was chewing nicotine gum. Northwestern reissued the policy effective August 4, 1986, at a nonsmoker's rate and sent him a form entitled "Change in Application and Statement of Continued Insurability Status by Applicant." Part A of that form amended his answer to the question "Have you used tobacco in any other form in the last 12 months?" to read, "No, chews nicorette gum." Part B included the statement "I have not been ill or injured and my health and physical condition [have] not changed since the date I made the said application." He signed this form on August 28, 1986. On June 6, 1986, Dr. Wimberley had definitively diagnosed Mr. Duren as having lung cancer and had started him on radiation therapy.
The claim was made within the contestability period of the policy, and Northwestern conducted an investigation. In its letter denying coverage, Northwestern informed Mrs. Duren of the following:
The evidence developed during discovery tended to support these assertions. Although it is unclear exactly what Mr. Duren's doctors had told him before he made the initial application, it is clear that he knew his lung condition involved more than pneumonia. In May 1985, Dr. Dietze had told him that he had a chronic lung condition over and above his acute condition of pneumonia. Dr. Wimberley stated that Mr. Duren had complained of severe chest pain prior to March 1986. Mr. Duren did not mention having seen Dr. Barnard, Dr. Percy Howard, or Dr. Robert McGinley. Certainly, by the time he stated in August that there had been no change in his health, he knew that he had cancer.
In Bankers Life & Casualty Co. v. Long, 345 So. 2d 1321 (Ala.1977), the Court affirmed a judgment for the beneficiary over the insurer's argument that the deceased insured had misrepresented material facts in his application and that, therefore, it was entitled to void the policy. The insured had disclosed that he had been treated for hepatitis for six months in 1966, had given his doctor's name and address, and had stated that he was in good health and free from disease. In fact, he had also been treated for cirrhosis of the liver, and he died of that ailment. The Court cited the rule that "an intentional misrepresentation by the applicant of material facts relied on by the insurer permits the insurer to avoid the policy," but also cited the *813 exception that "the policy is not avoided if the insurer knows the true facts, or the falsity of the statements, or has sufficient indications that would put a prudent person on notice so as to induce an inquiry which, if done with reasonable thoroughness, would reveal the truth." 345 So. 2d at 1323 (citations omitted).
The Court held that, because his liver had been tested as functioning normally, "Long had every right to believe that his liver disease was under control and thus the jury had ample evidence before it to conclude that he was not guilty of fraud in completing the application." Id. The Court also held that "there was sufficient notice that he had suffered from, and was treated for, a liver disease, to put the insurer on sufficient notice to impose a duty of inquiry." Id.
Bankers Life was decided under Ala. Code 1940, tit. 28, § 6, which allowed a misrepresentation to void a policy only if "made with actual intent to deceive" or if "the matter misrepresented increase[d] the risk of loss." Effective January 1, 1982, that section was replaced by what is now Ala.Code 1975, § 27-14-7, which reads, in pertinent part:
This Court construed that language in National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357 (Ala.1982), and held that a new trial was required on Dutton's contract claim because the trial court had erroneously instructed the jury that the insurer could not void the policy if Dutton "was truthful in her answer ... to the best of her knowledge." This Court quoted § 27-14-7 and said:
419 So. 2d at 1361.
Mrs. Duren's arguments that her husband did not know the true nature of his disease at the time he filed the original application[3] are therefore beside the point at issue here. Northwestern was entitled to void the policy if Mr. Duren made even an innocent misrepresentation of the kind specified in § 27-14-7, unless the principle of Bankers Life is still operative and is applicable to the evidence in this case so as to create a genuine issue of material fact precluding Northwestern from being entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.
The change from the language of Code 1940, tit. 28, § 6, as applied in Bankers Life, to the language of Code 1975, § 27-14-7, may have broadened the types of misrepresentation that could prevent a recovery under the contract, but it did not touch on the question before us, that is, whether an insurer may be prevented from voiding a policy based on a misrepresentation otherwise applicable under § 27-14-7 *814 if the application put the insurer on notice of facts material to the applicant's true medical condition and it conducted no inquiries to verify those facts. Thus, the amendment to the statute did not effectively overrule Bankers Life.
Northwestern contends that Inglish v. United Services Gen'l Life Co., 394 So. 2d 960 (Ala.Civ.App.1980), cert. denied, 394 So. 2d 967 (Ala.1981), establishes that the holding of Bankers Life is no longer the law. If the two cases are inconsistent, the opinion of this Court would govern over the opinion of the Court of Civil Appeals. Moreover, this Court denied certiorari with an express reminder that "[b]y denying the petition, we should not be understood as agreeing with the treatment of the evidentiary issue in this case by the Court of Civil Appeals." Ex parte Inglish, 394 So. 2d 967 (Ala.1981). Finally, we do not view the two cases as inconsistent: Inglish cites Bankers Life in holding that
394 So. 2d at 966. Thus, the two cases recognize that an application containing sufficient indications to put an insurer on notice of an applicant's health problems or false answers might preclude the insurer from rescinding its contract if it disregarded that notice and did not make reasonable inquiries to confirm or refute those indications, and that the question of what constitutes "sufficient indications" for this purpose is ordinarily one for the trier of fact.
Nor is Old Southern Life Ins. Co. v. Spann, 472 So. 2d 987 (Ala.1985), inconsistent with Bankers Life. Spann told the soliciting agents about some of her medical treatments, and she asserted that they agreed to contact her physicians regarding the exact nature of her abdominal surgeries. She did not mention her prior psychiatric treatment, but this Court agreed with her position that an issue was presented on whether the application was ambiguous regarding disclosure of psychiatric treatment. The Court held that, although jury questions were presented on her contract and fraud claims, Old Southern was entitled to a directed verdict on the bad faith claim.
The Court's opinion includes the following:
472 So. 2d at 989-90 (emphasis added).
Although Northwestern contends that the emphasized statements are inconsistent with Bankers Life, we do not construe them as being so, for three reasons. First, the statements regarded the bad faith claim, which requires that the insurer have no arguable defense to the contract claim, and the defense of misrepresentation on the application is ordinarily arguable even if the insurer has some notice of the truth. Second, if they are read as saying that an insurer has an unqualified right to rely on statements in an application, they are inconsistent with the holding that the contract claim presented triable issues. Third, they were made in regard to the complete failure to mention the psychiatric treatment, *815 and, thus, there was no question of notice sufficient to provoke further inquiry.
Similarly, the applicant's complete failure to disclose her history of mental illness provided a defense on the contract and raised no question of notice in Hess v. Liberty National Life Ins. Co., 522 So. 2d 270 (Ala.1988). The Court impliedly recognized that a fact question on notice could be presented, but held that Hess's contention that Liberty National was estopped to deny the claim because its agent had notice of her mental illness was not supported by the evidence submitted in opposition to the summary judgment motion. Also, in Reserve Life Ins. Co. v. Haster, 500 So. 2d 1052 (Ala.1986), and Richerzhagen v. National Home Life Assur. Co. of New York, 523 So. 2d 344 (Ala.1988), judgments for the insurance companies were affirmed where the applicants had completely failed to disclose significant medical history.
The fact that the principle of Bankers Life is still the law is apparent, however, from such cases as Reliance Ins. Co. v. Substation Products Corp., 404 So. 2d 598 (Ala.1981), in which the Court cited Bankers Life for its exception to the general rule that misrepresentations on an application allow an insurer to void a policy. The Court phrased the exception thusly:
404 So. 2d at 604. The Court held that Reliance's agent "had sufficient indications so as to induce further inquiry, and, therefore, [to] fall within the exception to the general rule." Id.
American Gen. Life & Acc. Ins. Co. v. Lyles, 540 So. 2d 696 (Ala.1988), is similar to Spann, supra, in that the Court reversed the judgment because of the denial of a directed verdict motion on the bad faith count. The Court listed several issues of fact that would be present on a retrial of the contract claim, including "whether American General was presented with information that would have prompted a reasonably prudent insurer to investigate the application further." Id., at 699. The Court said: "While the information available to American General may have imposed upon it the duty to investigate the application further, its failure to do so does not preclude it from raising as a defense [to the bad faith claim] Mr. Lyles's failure to mention the 1981 hospitalization." Id.
In Taylor v. Golden Rule Ins. Co., 544 So. 2d 932 (Ala.1989), the Court affirmed a judgment rescinding the contract in a case tried without a jury. Taylor's argument was that the insurance company, by relying on a pre-existing condition to deny a claim, had waived the right to void the policy based on misrepresentations in the application of which it arguably had learned by the time it denied the claim. Cf. Old Southern Life Ins. Co. v. Woodall, 295 Ala. 235, 326 So. 2d 726 (1976). The Court in Taylor observed that "the point at which Golden Rule learned of Taylor's history of mental disturbance was a disputed fact at the ore tenus hearing, and the trial court resolved that issue in Golden Rule's favor." 544 So. 2d at 936. The Court distinguished Bankers Life on the grounds that Taylor had provided no information about his mental condition on four proof-of-loss forms and had "withheld the information called for on the application in response to a specific question on the subject." Id. The Court concluded:
Id.
Thus, the cases have consistently held that where an insurance company has no knowledge or indications of a condition concealed by a misrepresentation in an application, it is entitled to void the policy, but *816 where it knows the facts, knows the falsity of the statements on the application, or has "sufficient indications that would put a prudent person on notice so as to induce an inquiry which, if done with reasonable thoroughness, would reveal the truth," a question of fact is presented as to whether the insurer is entitled to void the policy. Reliance Ins. Co., supra, 404 So. 2d at 604; Bankers Life, supra, 345 So. 2d at 1323.
Mr. Duren clearly made misrepresentations that would ordinarily support avoidance of the policy. Having held that Bankers Life has not been overruled by the statutory amendment that is now § 27-14-7 or by cases such as Spann and Hess, we must determine whether the summary judgment was proper on the grounds that Northwestern did not have indications of a condition concealed by those misrepresentations sufficient to impose on it a duty to inquire further into Duren's medical history before issuance of the policy.
Because many of the pertinent facts are set out at the beginning of this opinion, we shall simply cite those which allegedly put Northwestern on notice of Mr. Duren's true condition. He stated in March 1986 that he had been hospitalized in May 1985 for pneumonia. In April 1986 he told the paramedical examiner that he was still under observation by Dr. Wimberley for pneumonia, that Dr. Wimberley had taken chest X-rays as part of that observation, and that he had had a CAT scan for that condition in September 1985. These facts cannot be said to be "sufficient indications" that he had cancer so as to constitute such notice as would prompt a prudent insurer to conduct further inquiries. Thus, even under the rule of Bankers Life and the other cases discussed herein, Northwestern was entitled to a summary judgment on this record. The judgment is therefore affirmed.
AFFIRMED.
SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs in part and dissents in part.
HORNSBY, C.J., and ADAMS, J., dissent.
MADDOX, Justice (concurring in part; dissenting in part).
After reviewing the evidence presented, I believe that summary judgment was appropriate on the tort claim. Therefore, I concur in that portion of the opinion that affirms the granting of summary judgment on the tort claim. However, I believe summary judgment was not appropriate on the contract claim.
The insurer required a paramedical examination as a pre-condition to issuing a policy of insurance; the insurer was told that the insured had been hospitalized with a lung condition, and was under the care of a pulmonary expert. Based on these facts, a fact finder could conclude that the insurer should be estopped to claim that it had the right to rely upon the insured's statements made in the application and that it had no duty to investigate further. I think that a properly instructed jury should determine the reasonable expectancies of the parties in this case.
HORNSBY, Chief Justice (dissenting):
I must respectfully dissent. Although I concur with the statements of law in the majority's opinion, I cannot agree that the law stated in that opinion requires an affirmance of the summary judgment in this case. The opinion correctly recognizes that Ala.Code 1975, § 27-14-7, does not overrule the principle expressed in Bankers Life & Casualty Co. v. Long, 345 So. 2d 1321 (Ala.1977), that an insurer may not avoid a policy on the grounds of a misrepresentation by the applicant where the insurer "knows the true facts, or the falsity of the statements, or has sufficient indication that would put a prudent person on notice so as to induce an inquiry which, if done with reasonable thoroughness, would reveal the truth." Id. at 1323.
The central issue becomes whether the determination that Northwestern had a duty of inquiry or did not have such a duty *817 should be resolved by the court or by the jury. Here the basic facts are that Duren discussed the advisability of replacing a life insurance policy he had with insurance agent Harry Snitkin when both men were present at a social occasion. On March 25, 1986, a few weeks after that conversation, Snitkin made a presentation to Duren and persuaded him to purchase a more cost effective policy issued by Northwestern. Snitkin understood that the primary purpose for the policy was to provide adequate funds for the payment of the debt secured by a mortgage on Duren's house in the event of his death. Duren further informed Snitkin that once the Northwestern policy was issued, Duren would cease premium payments on his earlier policy.
On the initial application, Duren indicated that he had been hospitalized in May 1985 for pneumonia, and that he was still under medical observation for that condition at the time he made the application, which was 11 months later. That program of observation included chest X-rays performed at various times and a CAT scan performed approximately four months after the initial hospitalization. Duren listed Drs. Wimberley and Dietze as involved in his treatment.
Upon his receipt of the policy, Snitkin notified Duren that the policy was in force from the date of the application, March 25, 1986, but that Snitkin was returning it for an adjustment in the premium to reflect a nonsmoker's rate. When Northwestern failed to respond after about two months, Snitkin contacted Northwestern directly and found that the underwriter who had handled the application was no longer employed at Northwestern and that the policy with the adjusted premium had not been issued. After discussing the situation with Northwestern, Snitkin received the policy with the change in premium in July.
Snitkin stated in his deposition that he had understood that the original policy was being corrected and mailed back. Snitkin also stated that in his subsequent meeting with Duren, Snitkin treated this "new" policy as a correction of the original. Snitkin stated that he and Duren discussed only the change in the premium made to reflect the nonsmoker's rate. Snitkin further stated that he did not review the other paragraphs in the corrected policy with Duren because he understood the corrected policy to address only the change to a nonsmoker's rate and not any other provision.
Snitkin's recollections and testimony with respect to the corrected policy are best reflected in his letter of September 30, 1987, to Northwestern:
These facts support a number of inferences: (1) since Duren was already insured at the time of Snitkin's sales presentation, Duren did not misrepresent any aspect of his health in order to obtain insurance; (2) the information on the initial application supports an inference to a reasonably prudent life insurer that Mr. Duren was suffering from a chronic lung condition; (3) Duren had been a smoker in the past; (4) *818 investigation of Duren's medical records at the time of the application would have revealed the possibility of cancer but would not have revealed a positive diagnosis to that effect; and (5) both the agent, Snitkin, and Duren treated the corrected policy for a change in premium as being a modification to an extant policy where additional medical information was no longer relevant.
I note that some of these inferences support the plaintiff's argument that any misrepresentations by Duren were innocent. However, I agree with the majority opinion that the innocence of the misrepresentations is not crucial to our analysis. The crucial question is whether the initial application, including the subsequent paramedical examination, revealed enough indications of disease to impose on Northwestern a duty of inquiry. I would hold that the question of whether there were sufficient indications in these disclosures to impose on Northwestern a duty of inquiry is a question of fact, and that the responsibility for answering that question lies with the jury.
Although this Court has not directly addressed the issue of whether summary judgment on an insurer's duty of inquiry is appropriate under similar facts, our law does offer an analogy with respect to the general duty to discover the basis for a cause of action. 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)); Hickox v. Stover, 551 So. 2d 259 (Ala.1989). In short, the determination of when one has sufficient indications to impose a duty of inquiry as to the truth of a representation, whether in regard to a fraud action or in regard to an insurance application, is a determination to be made by the jury. Summary judgment would be appropriate in this case only if the plaintiff had failed to present sufficient evidence of facts that would have imposed a duty of inquiry on Northwestern.
In applying our standard for review of a summary judgment, I note that this action was filed after June 11, 1987. Therefore, Ala.Code 1975, § 12-21-12 (1975) mandates that the plaintiff meet her burden of proof by "substantial evidence." Bass v. South-Trust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test, the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
I also note that all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against Northwestern. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990). Here, the initial application indicates that Duren had had lung problems for at least 11 months prior to the application and that he was still under observation for lung problems at the time of the application. The application also indicates various X-ray tests, a CAT scan, and hospitalization for pneumonia. The subsequent paramedical test indicated at least that Duren was or had been a smoker. Based on the testimony of Duren's doctors, I would conclude that an investigation by Northwestern would have revealed at least a tissue abnormality in the lung and that lung cancer was a possibility.
I would hold that these facts are substantial evidence to support a finding that Northwestern had a duty of inquiry. In light of the disclosure indicating the duration and extent of Duren's lung condition, I would answer "yes" to the question whether reasonable persons might conclude that Northwestern had a duty to further inquire into Duren's lung condition. Accordingly, I would hold that the trial court improperly entered the summary judgment in this *819 case, reverse that judgment, and remand the cause for further proceedings.
ADAMS, J., concurs.
[1] This doctor's name is also spelled "Neal Wimberly" at some points in the record.
[2] The report appears to indicate that Mr. Duren said, "I go to Dr. Wimberley for observation," not that he suggested that the paramedic or other agents of Northwestern should go to Dr. Wimberley for further information.
[3] She also argues that his failure to mention it on the "Change in Application and Statement of Continued Insurability" is not grounds for voiding the policy because, she says, the specific purpose for which that form was sent was for Mr. Duren to record his use of the nicorette gum. This argument relates again to whether he intentionally failed to disclose more accurate information and does not raise an issue materially different from that treated in the text of the opinion. | May 17, 1991 |
32f80007-c79f-42cb-9edc-c856feb8dfe7 | Storage Equities, Inc. v. Kidd | 579 So. 2d 605 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 605 (1991)
STORAGE EQUITIES, INC., and PS Partners VI, Ltd.
v.
Jack W. KIDD.
89-844.
Supreme Court of Alabama.
April 26, 1991.
*606 Albert L. Jordan and William A. Ratliff of Wallace, Brooke & Byers, Birmingham, for appellants.
Edward L. Hardin, Jr. of Hardin, Taber & Tucker, Birmingham, for appellee.
PER CURIAM.
This is an appeal from a default judgment entered against Storage Equities, Inc., a California corporation, and PS Partners VI, Ltd., a California limited partnership ("the appellants"), in the amount of $226,050.14.[1] The issue is whether the trial judge abused his discretion in denying the appellants' motion to set aside the default judgment under Rule 55(c), A.R.Civ.P.
The underlying dispute concerns a promissory note executed by the appellants as part of an agreement to purchase 12 mini-warehouses located in Alabama from the plaintiff, Jack W. Kidd.[2] The sale price was approximately $13,700,000 plus the contingent note at issue here. The note was contingent because there would be no liability on it if qualifying rentals did not exceed $2,020,000. The principal amount of the note was not to exceed $768,000 and was to be determined based on the amount of "qualifying rentals" accruing during the year commencing May 1, 1986, and ending April 30, 1987.[3] The note was due and *607 payable on July 15, 1987, and, when executed, provided that "[q]ualifying [r]entals of $702,919.00 have been collected during the period commencing on May 1, 1986 and ending on August 30, 1986."
Shortly before the note was to become due, a dispute arose concerning what accounts should be included as "qualifying rentals" under the note. The appellants contended that the $702,919 amount improperly included rentals for a period prior to May 1, 1986. Kidd, on the other hand, contends that those rentals were properly included as qualifying rentals because they were collected between May 1, 1986, and August 30, 1986, or that the $702,919 became the agreed-upon amount of qualifying rentals from May through August by virtue of the appellants' calculation of that figure and their inclusion of it in the note.
When the parties could not resolve the dispute, Kidd brought an action on September 19, 1988, to collect any money due him under the note. The appellants were served by certified mail in California on October 17, 1988, and, they contend, they immediately forwarded the summons and complaint to their attorneys in California. In fact, the summons and complaint were eventually found in a file in these attorneys' office. The attorney who represented the appellants stated in an affidavit, however, that she was not aware that she had received the summons and complaint and therefore she had filed no appearance or response on behalf of the appellants. Kidd obtained a default judgment on January 24, 1989. On February 10, 1989, after having received a demand for payment, the appellants filed a motion to set aside the default judgment. On April 14, 1989, the appellants also filed an answer and counterclaim seeking reformation of the note due to an alleged fraud or mistake. The motion to set aside the default was denied by the trial judge. The trial judge, in response to another post-judgment motion filed by the appellants, reduced the judgment.
This Court, in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala.1988), outlined the policy considerations involved in determining whether a default judgment should be set aside. Rule 55(c) contemplates a liberal exercise of the trial court's discretion in favor of setting aside default judgments. Ex parte Illinois Central Gulf R.R., 514 So. 2d 1283 (Ala.1987). In light of the litigant's paramount right to a trial on the merits, this Court has repeatedly held that questions involving the trial court's use of its discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Fries Correctional Equipment, Inc. v. Con-Tech, Inc., 559 So. 2d 557 (Ala.1990); Creel v. Gator Leasing, Inc., 544 So. 2d 936 (Ala.1989); Kirtland, supra, at 604; Johnson v. Moore, 514 So. 2d 1343 (Ala.1987); Oliver v. Sawyer, 359 So. 2d 368 (Ala.1978); Knight v. Davis, 356 So. 2d 156 (Ala.1978).
When exercising his discretion under Rule 55(c), a trial judge should consider the following three-factor analysis set forth in Kirtland: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct.
Several recent opinions from this Court have elaborated on the meritorious defense element. Hannah v. Blackwell, 567 So. 2d 1276 (Ala.1990); Gilley v. Crawford, 549 So. 2d 457 (Ala.1989); Appalachian Stove & Fabricators, Inc. v. Roberts, 544 So. 2d 893 (Ala.1989). To meet this element, the appellants have the burden of satisfying the trial judge only that they are prepared to present a plausible defense, not that they would necessarily prevail at a trial on the merits. Ex parte Illinois Central Gulf R.R., supra. The appellants can meet this factor of the analysis by a clear and specific showing not through a conclusory statement, but by *608 a definite presentation of factsthat the judgment was probably unjust because there was no valid debt or demand; that there was a valid defense; or that on a trial there would be a reasonable likelihood of a different result. Kirtland, supra, at 606.
While the appellants' motion to set aside the default judgment merely contains conclusory statements that they have a meritorious defense, the brief in support of that motion, the accompanying affidavits, and the appellants' counterclaim show the existence of a meritious defense. In those materials, the appellants have alleged that the note should be reformed because, they say, it was the product of a mutual mistake of the parties or of a fraud perpetrated by Kidd. The appellants' evidence tended to show that Kidd had given them figures for qualifying rentals in May 1986 and that those figures had included $18,343 in rents that were collected in May 1986 but that had accrued earlier. The appellants assert that they derived the $18,343 figure from the daily reports of charges, receipts, and deposits from May 1986, which apparently were in Mr. Kidd's possession until after the note was executed. They argue that those rentals were not in fact "qualifying rentals" because they did not accrue in the period covered by the note. Although the contested $18,343 formed part of the $702,919 recited in the note as qualifying rentals from May 1, 1986, through August 30, 1986, the appellants contend in their answer and in their counterclaim that the note is due to be reformed because of a mutual mistake, because of a unilatered mistake by the appellants of which Kidd had knowledge, or because of a fraud by Kidd. See Ala.Code 1975, § 8-1-2. It appears that if the $18,343 is deleted from the qualifying rentals, the total qualifying rentals will be reduced below $2,020,000 and no payment will be due under the note.
The allegations of fraud and mistake were averred with such specificity that the trial court could have reasonably inferred that allowing the defense to be litigated could foreseeably alter the outcome of the case at a trial on the merits. Kirtland, supra, at 606. Thus, the appellants have met their burden of showing that a meritorious defense exists.
Prejudice warranting the denial of a Rule 55(c) motion must be substantial. Kirtland, supra, at 607. In the present case, Kidd asserts that the appellants are unable to locate two of their former employees: one who executed the note and another who made an initial determination that Kidd was owed money on the note. However, a thorough review of the record reveals no evidence that these employees are unavailable. In fact, in a memorandum filed in the trial court, the appellants state that they "have located these witnesses and will make them available for deposition at a time convenient to [Kidd]." Thus, it does not appear that Kidd would be substantially prejudiced by the setting aside of the default judgment.
This Court recognizes that the setting aside of the default judgment delays a termination of this litigation and causes Kidd to incur additional costs. Such prejudice, however, is not substantial and can be effectively offset by requiring the appellants to provide a bond to secure costs, to pay court costs, or to cover expenses of the appeal. Kirtland, supra, at 607, quoting C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, Civil, § 2200 (2d ed. 1983).
Conduct committed willfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Kirtland, 524 So. 2d at 607. Willful or bad faith conduct is "characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness." Kirtland, 524 So. 2d at 608; see e.g., Jones v. Hydro-Wave of Alabama, Inc., 524 So. 2d 610 (Ala.1988) (defaulting party's pattern of intentional evasion of the court). Negligence alone can be a reasonable explanation for inaction, particularly at the initial stage of litigation. Ex parte Illinois *609 Central Gulf R.R., 514 So. 2d 1283 (Ala. 1983).
The circumstances of this case that led to the entry of the default judgment are similar to those in Illinois Central Gulf. In both cases the summons and complaint were sent by certified mail to proper agents of the defendants, and in both cases the agents promptly forwarded the summons and complaint to the defendants' attorneys. In Illinois Central Gulf the summons and complaint did not come to the attention of the responsible attorney until he returned from a month-long trial in another city. In this case, the appellants' attorney, in her affidavit attached to the appellants' motion to set aside the default judgment, stated:
This affidavit contains no evidence of bad faith or willful disregard for court rules. Rather, it is evidence that, as in Illinois Central Gulf, the failure of the appellants' attorney to answer constitutes excusable attorney neglect. Kidd has not made a substantial showing to the contrary that would support a finding of willful or bad faith failure to respond.
Upon reviewing the appellants' motion to set aside the default judgment, the brief in support of that motion, and the accompanying affidavits, this Court holds that the three-factor analysis of Kirtland has been satisfied. Therefore, we hold that the trial judge's denial of the appellants' Rule 55(c) motion to set aside the default judgment was an abuse of discretion. That judgment is reversed and this cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The trial court originally entered a default judgment in favor of Jack W. Kidd and against the appellants in the amount of $454,000. After a hearing on the appellants' post-judgment motion, the court set aside the original award and entered a corrected judgment of $226,050.14. This corrected judgment was certified as final under A.R.Civ.P. 54(b).
[2] The appellants are two of five buyers involved in the sale of these mini-warehouses. The remaining three buyers were also named as defendants in Kidd's complaint but were not parties to the note, and the trial court did not enter the default judgment against them.
[3] The note provided:
"As used in this Note, the term `Qualifying Rentals' shall mean (i) rental from bona fide lessees which accrues during the period commencing May 1, 1986 and ending April 30, 1987, exclusive of any such rental not actually collected by May 31, 1987, (ii) late charges relating to rent becoming delinquent during the period commencing May 1, 1986 and ending April 30, 1987, and collected during the period commencing May 1, 1986 and ending May 31, 1987, and (iii) the amount of any tenant deposits applied during the period commencing May 1, 1986 and ending May 31, 1987, to rental which accrued during the period commencing May 1, 1986 and ending April 30, 1987...." | April 26, 1991 |
90c0cb29-de03-4fb1-a48e-c4025ef50f8e | Moore v. BROWN BY AND THROUGH SIMMONS | 579 So. 2d 611 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 611 (1991)
Henry MOORE and Catherine J. Moore
v.
Minnie Lee BROWN, By and Through her curator, Ella Bell SIMMONS.
89-1773.
Supreme Court of Alabama.
April 26, 1991.
J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders, Williams & Pettaway, Selma, for appellants.
William C. Brewer III, Livingston, for appellees.
ADAMS, Justice.
This is an appeal from a judgment setting aside a conveyance of 55 acres based on a finding of undue influence and inadequate consideration. Henry and Catherine Moore appeal, arguing that the trial judge erred in finding that the conveyance, made to them by Minnie Lee Brown in consideration of $3,000 plus payment of a $1,860.20 debt owed by Ms. Brown, was made as a result of undue influence. We affirm.
Ms. Brown, according to the evidence provided by both parties, was a poor woman, uneducated and illiterate. She inherited approximately 80 acres from her father; that property had been mortgaged and Henry Moore, a cousin of Brown, and another cousin of Brown, prior to the events in question in this appeal, redeemed the *612 property for Ms. Brown following its foreclosure. In return, Ms. Brown conveyed approximately 3 acres to Moore and to the cousin. There was evidence that Ms. Brown later conveyed some of her property to one Josephine Jenkins, for less than $150 per acre, and also conveyed one acre to Ella Bell Simmons for a nominal consideration. Ella Bell Simmons was later appointed curator of Ms. Brown's affairs; in that capacity, she brought this suit to set aside Brown's conveyance of 55 acres to Moore and his wife for $3000 plus payment of a $1860.20 debt owed by Ms. Brown.
At the outset, we note that "[w]hat constitutes undue influence in procuring a deed depends upon the facts and circumstances of each case. Jones v. Boothe, 270 Ala. 420, 119 So. 2d 203." Skinner v. Todd, 283 Ala. 279, 215 So. 2d 721 (1968). See also, Terry v. Terry, 336 So. 2d 159, 162 (Ala.1976). In the present case, there was evidence that Ms. Brown had suffered a fall and that after that fall her mental condition deteriorated so that often she would not recognize other people until she had talked with them for a while. Despite her fall, however, she refused to leave her home to reside with anyone else, and she continued to attend to most of her basic needs herself. A review of the record indicates that testimony regarding Ms. Brown's fall was first given by Ella Bell Simmons and that the date given for the fall was 1982 or 1983. On cross-examination, Ms. Simmons indicated that she had been previously confused, and she then testified that the fall occurred sometime in 1985. There was conflicting evidence from various witnesses as to whether the fall occurred in 1983 or in 1985, so the actual date is never made clear in the record.
Each person who testified indicated that Ms. Brown knew nothing of business affairs and depended on the advice of others with regard to her financial matters. There were various people who assisted her in this regard, one of whom was Henry Moore. Moore himself testified that he read letters regarding financial affairs to Ms. Brown on occasion and advised her occasionally with regard to financial matters. He testified that he read to her a letter stating that she was three months behind on the payments on a debt secured by a mortgage on her house and that the total debt amounted to $1,860.20. Moore testified that Brown told him that if he would pay off the $1,860.20 note that was secured by the mortgage on her house and would give her $3,000 in addition, then she would deed him 55 acres.
This case was tried ore tenus; therefore, the trial court's judgment will not be reversed unless its findings were plainly and palpably wrong. See McInnis v. Lay, 533 So. 2d 581, 582 (Ala.1988). There was testimony that the value of the property in question exceeded the amount that was paid by the Moores, and there was also evidence that Ms. Brown depended on Moore with regard to her business affairs. Furthermore, there was contradictory evidence as to exactly when Ms. Brown suffered the fall that led to the deterioration of her mental abilities. There was evidence that that fall occurred after the transaction in question; however, there was also evidence that the fall occurred before the transaction. We cannot say, therefore, that the trial judge's findings were plainly and palpably wrong. Therefore, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | April 26, 1991 |
c5c82dc8-bef1-484e-9c27-7f59191641cd | Ex Parte Williamson | 584 So. 2d 1289 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 1289 (1991)
Ex parte Billie Joe WILLIAMSON.
(Re Billie Joe Williamson v. State).
89-1559.
Supreme Court of Alabama.
April 19, 1991.
Fred W. Teague, Ashville, for petitioner.
Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
Billie Joe Williamson was convicted in the Circuit Court of Etowah County on counts of attempted rape and the unlawful breaking and entering of a vehicle. He was sentenced to imprisonment on each count.
On appeal, the Alabama Court of Criminal Appeals reversed his conviction of attempted rape. 570 So. 2d 722. However, it failed to address his conviction of breaking and entering. Consequently, he petitioned this Court for a writ of certiorari on the ground that the Court of Criminal Appeals' opinion essentially affirmed the breaking and entering conviction and thereby created a conflict with that court's prior decisions requiring proof of intent where intent is an element of the offense. See, e.g., Gantt v. State, 356 So. 2d 707 (Ala.Crim. App.), cert. denied, 356 So. 2d 712 (1978) (substantial evidence required for every element of the offense charged); Talbot v. State, 23 Ala.App. 559, 129 So. 323 (1930) (proof beyond a reasonable doubt required for every element of the offense). We granted the petition for the writ of certiorari and, to the extent that the Court of Criminal Appeals affirmed the breaking and entering conviction, we reverse.
The pertinent facts as stated in the opinion of the Court of Criminal Appeals reveal that the victim was accosted by a man as she got into her automobile. Before she could close the door, he allegedly forced his way into the vehicle and grappled with her, struck her, choked her, and burned her cheek with a cigarette. She was eventually able to free herself, and the assailant abandoned the attack.
At trial, the defendant requested jury instructions on the offense of third degree assault on the ground that that offense constituted a lesser included offense as to rape. The trial court refused those instructions. The Court of Criminal Appeals, without addressing the conviction of breaking and entering, reversed the attempted rape conviction and remanded, holding that the jury should have been instructed on the offense of third degree assault. Before this Court, the defendant contends that the *1290 State failed to prove the intent necessary to support a conviction for breaking and entering. Under the procedural posture of this case, we agree.
Under Ala.Code 1975, § 13A-8-11(b), "[a] person commits the crime of unlawful breaking and entering a vehicle if, without the consent of the owner, he breaks into and enters a vehicle or any part of vehicle with the intent to commit any felony or theft." (Emphasis added). However, Ala. Code 1975, § 13A-6-22, provides:
Id. (emphasis added). Third degree assault, therefore, is neither a felony nor a theft as required by § 13A-8-11(b). Because the Court of Criminal Appeals determined that the defendant was entitled to a new trial in which the jury should receive instructions on third degree assault, the defendant's contention that the State has failed to prove the intent necessary to support a conviction under § 13A-8-11(b) is well founded.
This conclusion follows from the possibility that, upon retrial, the defendant may be convicted merely for the misdemeanor offense of third degree assault. Such a result would be inconsistent with his conviction under § 13A-8-11(b), since a conviction under that section requires a finding of intent to commit a felony or a theft. Consequently, the holding of the Court of Criminal Appeals also compels reversal of the conviction for breaking and entering under § 13A-8-11(b). The judgment of the Court of Criminal Appeals, to the extent that it affirms the conviction for breaking and entering is reversed, and the cause is remanded with instructions to remand to the trial court for retrial on both counts.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., dissents. | April 19, 1991 |
5f61c1ea-e943-4b32-ad9e-b943bdb4b787 | Keith v. Witt Auto Sales, Inc. | 578 So. 2d 1269 | 1900267 | Alabama | Alabama Supreme Court | 578 So. 2d 1269 (1991)
Donald KEITH and Patricia Keith
v.
WITT AUTO SALES, INC.
Donald KEITH and Patricia Keith
v.
HARTFORD INSURANCE COMPANY OF CONNECTICUT, et al.
1900267, 89-1633.
Supreme Court of Alabama.
April 19, 1991.
*1271 William A. Robinson and Cecil H. Macoy, Jr. of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellants.
John W. Clark, Jr. and Judith E. Dolan of Clark & Scott, Birmingham, for appellee Witt Auto Sales, Inc.
Stanley K. Smith and H.C. Ireland III of Porterfield, Harper & Mills, Birmingham, for appellees Hartford Ins. Co. of Connecticut, David A. Blackmon and Robert D. Henry.
HOUSTON, Justice.
The Court's original opinion dated March 15, 1991, is withdrawn and the following is substituted therefor.
David and Patricia Keith sued Witt Auto Sales, Inc. ("Witt"), alleging negligence, fraud, conversion, and conspiracy; they sued Hartford Insurance Company of Connecticut ("Hartford"), alleging negligence, fraud, conversion, and conspiracy; they sued Robert D. Henry, a representative of Hartford, alleging negligence; and they sued David A. Blackmon, a representative of Hartford and Henry's supervisor, alleging negligence, conversion, and conspiracy. The trial court granted Witt's motion for summary judgment on the conspiracy claim against it and granted Hartford and Blackmon's motions for summary judgment on all claims against them except those for negligence. There remain claims of negligence against all defendants and claims of fraud and conversion against Witt. The trial court entered Rule 54(b), A.R.Civ.P., orders making the summary judgments final. The Keiths filed separate appeals from the two judgments. The appeals have been consolidated for purposes of writing this opinion. We affirm.
This suit was filed before June 11, 1987; therefore, the "scintilla of evidence" rule is applicable. Ala.Code 1975, § 12-21-12. In accordance with our standard of review, we must view the evidence in the light most favorable to the Keiths (the non-movants) and resolve all reasonable doubts against Hartford, Witt, and Blackmon (the movants). Sanders v. Kirkland & Co., 510 So. 2d 138 (Ala.1987).
On March 13, 1987, the Keiths were involved in an automobile collision with Russell J. Bueger near Crivitz, Wisconsin. Bueger was insured by Hartford. After the accident, Mr. Keith signed an authorization to repair his automobile, which he said he believed was simply an authorization form to have his car towed and secured at the Witt dealership in Crivitz, Wisconsin.
The Keiths returned to their home in Birmingham in an automobile that they had rented from Witt. Within a week of the accident, Hartford sent Henry to the Keiths' home to discuss the collision, at which time Henry assured Mr. Keith that "Hartford would take care of everything." There was no discussion about whether the automobile would be "totalled" or repaired and, if repaired, where the repairs would be made. Sometime later, Henry told Mr. Keith that, in all probability, the automobile would be totalled. Mr. Keith had no objection to the automobile being totalled, if he received what he thought was a fair amount for it.
Several weeks later, after talking with Blackmon, who was Henry's supervisor, Henry told Mr. Keith that Hartford could not afford to total the automobile. At that time, Mr. Keith told Henry that they (the Keiths) did not want to have their car repaired in Crivitz, Wisconsin. Henry then told the Keiths that their automobile would be repaired but that Hartford would load the automobile on a flat-bed truck and transport it to Alabama for the repairs. This conversation between Henry and the Keiths occurred several days subsequent to Hartford's reaching an agreement with Witt on the estimated amount Witt would charge to repair the automobile and subsequent *1272 to Hartford's becoming aware that Witt had already begun those repairs. Mr. Keith contends that although his signature is on the authorization form,[1] he never read the form but simply took the word of someone at the scene of the collision that it was only an authorization to tow his car.
Nonetheless, Witt completed the repairs and after much discussion about how to return the Keiths' repaired automobile to the Keiths and how to return Witt's rental vehicle to Witt, two Witt employees drove the Keiths' automobile to Birmingham in order to deliver it to the Keiths, to retrieve the rented automobile, and to obtain payment for repairs. In order to pay for the repairs, Hartford had issued the Keiths a check payable to the Keiths and Witt. Upon the arrival of Witt's employees in Birmingham, the Keiths did not inspect their vehicle and were instructed by counsel not to, and they did not, endorse the check or give it to Witt's employees. Because Witt did not receive payment, Witt's employees drove both the rental automobile and the Keiths' automobile back to Crivitz, Wisconsin.
The Keiths argue that there was a scintilla of evidence that Hartford made fraudulent promises to, and fraudulently withheld material information from, the Keiths and that that scintilla precluded the entry of a summary judgment on Hartford's behalf. We disagree.
Benetton Services Corp. v. Benedot, Inc., 551 So. 2d 295, 298 (Ala.1989).
As to the Keiths' argument that Hartford fraudulently promised to "total" their car, the most favorable testimony for the Keiths was Mr. Keith's deposition testimony:
(Emphasis added.)
The above-quoted testimony does not evince a promise to perform a future act. *1273 Rather, the statement by Hartford constitutes a statement of opinion, not of fact, that Hartford's act of totalling the automobile was likely to occur. Such a statement of opinion, without the requisite element of intent to deceive, will not support an action for fraud. See Fraser v. Reynolds, [Ms. 88-1466, -1522, September 14, 1990] (Ala. 1990); Reynolds v. Mitchell, 529 So. 2d 227 (Ala.1988); see, also, Prosser & Keeton on the Law of Torts, n. 6 § 109, at 762 (5th ed. 1984).
Even if Hartford's statement that the automobile would probably be totalled was, in fact, a promise to perform in the future, the Keiths would have had to present evidence to show that Hartford, at the time it made the promise, did not intend to perform and had an intent to deceive. Benetton Services Corp. v. Benedot, Inc., supra. The Keiths failed to do this. Rather, the undisputed evidence presented by Hartford reveals that after Henry told Mr. Keith that the automobile would probably be totalled, Henry called Witt to notify it of that probability. At this time Witt informed Henry that it had already completed onehalf of the repair work under an authorization executed by Keith when Keith was in Crivitz, Wisconsin; Witt also told Henry that Mr. Keith had told Witt to proceed with the repair work as authorized and that it had done the work after being told that. After this conversation with Witt, however, Henry did not call Mr. Keith back to inform him of the situation. Even though Henry did not notify the Keiths that Witt had undertaken to repair their automobile, the Keiths presented no evidence to prove that at the time Hartford made the statement that the automobile would probably be totalled, it had no intention of totalling the automobile but rather had the present intent not to total it.
Likewise, the Keiths also failed to present evidence that Hartford's statement that it would "take care of everything" was made with an intent not to perform. "The failure to perform a promised act is not in itself evidence that the defendant, at the time the promise was made, intended to deceive." Russellville Production Credit Ass'n v. Frost, 484 So. 2d 1084, 1086 (Ala. 1986).
The Keiths also contend that Hartford fraudulently concealed the fact that Witt had begun and would complete the repair work on the Keiths' automobile, rather than transporting the automobile to Alabama for repairs. We find no merit to this claim.
An obligation to communicate is one of the requisite elements of fraudulent concealment. Ala.Code 1975, § 6-5-102. When Hartford contacted Witt concerning the Keiths' automobile, Witt informed Hartford that it had already begun repairs pursuant to an authorization executed by Mr. Keith. Although the Keiths have challenged the validity of that authorization in connection with their various claims,[2] the undisputed evidence shows that, at the time the obligation to communicate allegedly arose, no representative of Hartford had any information indicating that the authorization was not valid. Under the circumstances of this case, Hartford, which was not the Keiths' insurer, had no legal obligation to go behind the authorization and to question the statement that Witt had begun and would complete the repair work on the Keiths' automobile.
Based on the foregoing, we hold that the trial court properly entered the summary judgment in favor of Hartford on the Keiths' fraud claims.
The Keiths also allege that both Hartford and Blackmon are guilty of conversion, because, the Keiths say, Hartford and Blackmon directed, authorized, induced, and ratified unauthorized repair work performed by Witt on the Keiths' automobile and deprived the Keiths of the use of their automobile by attempting to coerce them to accept the repair work and to endorse a three-party check issued by Hartford to the Keiths and Witt.
In order to substantiate their claim of conversion against Hartford and Blackmon, *1274 the Keiths had to present evidence of "a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse" of their property by Hartford. Ex parte SouthTrust Bank of Alabama, N.A., 523 So. 2d 407, 408 (Ala.1988). The gist of a cause of action based on conversion is "the wrongful exercise of dominion over property in exclusion or defiance of a plaintiff's rights, where the plaintiff has a general or special title to the property or the immediate right to possession. Ott v. Fox, 362 So. 2d 836 (Ala.1986)." Id.
It is undisputed that Witt performed the repair work on the Keiths' automobile and that it began those repairs without ever discussing the matter with Hartford. In fact, Witt contends that it began the repairs on written and oral authorization from Mr. Keith, and, as previously noted, it is undisputed that neither Hartford nor its agents who are named as defendants had anything to do with Mr. Keith's signing the authorization for repair or had a legal obligation to question the validity of the authorization. In addition, there is no evidence that Hartford ever had the authority to, or that it did in fact, instruct Witt to perform the repairs. Furthermore, the fact that Hartford issued a three-party check for the repair work Witt had performed on the automobile does not, in itself, indicate wrongful or illegal conduct on the part of Hartford. From our review of the evidence presented in the instant case, any detainer of the Keiths' automobile, whether wrongful or not, was committed by Witt and not by Hartford. A conversion count against Witt is still pending in the trial court.
Based on the foregoing, because the Keiths presented no evidence that Hartford and Blackmon wrongfully exercised dominion over their automobile, we cannot hold the trial court in error for entering summary judgment in favor of Hartford and Blackmon on the Keiths' claims of conversion against them.
The Keiths also allege that Hartford, Blackmon, and Witt conspired to convert the Keiths' automobile and that Hartford, Blackmon, and Witt conspired to injure the Keiths by performing unauthorized work on their automobile and by forcing them to accept unauthorized repairs and Hartford's three-party check. Civil conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Eidson v. Olin Corp., 527 So. 2d 1283 (Ala.1988). The gist of an action alleging civil conspiracy is not the conspiracy itself, but rather, the wrong committed. Sadie v. Martin, 468 So. 2d 162 (Ala. 1985).
As mentioned above in the discussion of the Keiths' conversion claims against Hartford and Blackmon, Witt initiated the repair work on the Keiths' automobile pursuant to an authorization executed by Mr. Keith, and neither Hartford nor Blackmon was involved in any decision concerning whether, or when, Witt was to begin the repairs on the Keiths' automobile. In fact, Hartford and Blackmon had no communication with Witt concerning the repair work until after Witt had begun those repairs.
Thus, after thoroughly reviewing the record, we hold that because the Keiths failed to present evidence that Hartford, Blackmon, and Witt combined to convert the Keiths' automobile, the trial court properly entered the summary judgment in favor of Hartford, Blackmon, and Witt on the Keiths' claims of conspiracy.
For the foregoing reasons, the judgment of the trial court is affirmed.
OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED; APPLICATION OVERRULED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] The authorization form that Mr. Keith executed contained the following language:
"I HEREBY AUTHORIZE the above repair work to be done along with necessary materials. You and your employees may operate above vehicle for purposes of testing, inspection or delivery at my risk. An express mechanic's lien is acknowledged on above vehicle to secure the amount of repairs thereto. You will not be held responsible for loss or damage to vehicle or articles left in vehicle in case of fire, theft, accident, or any other cause beyond your control or for any delays caused by unavailability of parts or delays in parts shipments by the supplier or transporter. I understand that all charges are due upon delivery of the vehicle. I acknowledge receipt of a copy of this agreement."
[2] We note that the Keiths did not amend their complaint to add a fraud-in-the-inducement claim against Witt until after the summary judgment for Hartford had been entered. | April 19, 1991 |
10b2d2bd-6df6-4201-a545-a477b3762168 | Hawkins v. State | 585 So. 2d 154 | N/A | Alabama | Alabama Supreme Court | 585 So. 2d 154 (1991)
Ex parte State of Alabama.
(Re Dwayne Lamar HAWKINS
v.
STATE).
89-1528.
Supreme Court of Alabama.
April 19, 1991.
Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for petitioner.
S. Alec Spoon, Montgomery, for respondent.
KENNEDY, Justice.
Dwayne Lamar Hawkins was convicted of possession of a controlled substance, in violation of § 13A-12-212, Ala.Code 1975. The Court of Criminal Appeals reversed the conviction. We reverse and remand.
*155 The issue is whether the cocaine found in Hawkins's possession was the product of an illegal search and seizure.
Hawkins was stopped by two City of Montgomery police officers for a routine traffic violation. One of the police officers asked Hawkins for his driver's license. Hawkins informed the officer that he did not have his driver's license with him. The police officer began to issue a Uniform Traffic Ticket and Complaint (hereinafter "UTTC") for driving without a license.[1] While completing the UTTC, the officer asked Hawkins for certain information, including his name, address, date of birth, Social Security number, height, weight, eye color, and hair color. Hawkins told the officer that his name was Dwayne Henderson, which was false. The rest of the information that Hawkins gave to the officer was correct.
The other officer recognized Hawkins and told the first officer that his correct name was Dwayne Hawkins. When asked if his name was really Dwayne Hawkins, he admitted that it was. Another UTTC for driving without a license was then issued in the name of Dwayne Hawkins. Hawkins signed both citations. The police officers then arrested Hawkins for giving false information to a city official in violation of § 29-18, Montgomery City Code. During a custodial search at the city jail, the police found cocaine in Hawkins's possession. Hawkins was indicted for possession of a controlled substance.
The trial court denied the motion to suppress the cocaine, and the case was submitted to the court on stipulated facts after Hawkins waived the right to a jury trial. Hawkins was found guilty. The Court of Criminal Appeals reversed the conviction.
The Court of Criminal Appeals found that Hawkins was illegally placed under arrest and, consequently, that the cocaine should have been suppressed as being the product of an unlawful search and seizure. We disagree.
The Court of Criminal Appeals wrote:
Hawkins v. State, 585 So. 2d 152, 153-154 (Ala.Cr.App. 1990).
The Court of Criminal Appeals relied upon Morton v. State, 452 So. 2d 1361 (Ala. Cr.App.1984). In Morton, the defendant was arrested for two traffic violations after he had signed a summons to appear in court for the traffic violations. The Morton court held that, because both traffic violations charged against Morton were misdemeanors, § 32-1-4, Ala.Code 1975, was applicable. In discussing § 32-1-4, the court held that "the clear import of this section is that the police have no authority to take a motorist into custody and then require him to go to the local stationhouse when that motorist has committed a misdemeanor traffic violation but is willing to sign the summons to court." Morton, 452 So. 2d at 1364.
In this case, Hawkins was stopped for a traffic violation. He was then given a citation for driving without a license and he gave the officer writing the citation a false name. Hawkins was then given a second citation for driving without a license. He signed both citations in lieu of going to jail on the traffic charges. Hawkins was then arrested for giving false information to a police officer, a separate non-traffic related misdemeanor. We note that the Morton case specifically refers to Title 32, Ala.Code 1975, Motor Vehicles and Traffic, and does *156 not involve non-traffic related misdemeanors. Therefore, we cannot agree that Hawkins's arrest for giving false information to a city official was illegal.
Section 15-10-3, Ala.Code 1975, provides that "an officer may arrest a person without a warrant when any public offense has been committed in his presence." In State v. Phillips, 517 So. 2d 648 (Ala.Cr.App. 1987), the court held that pursuant to § 15-10-3, an officer may arrest a person without a warrant if a misdemeanor, the violation of a city ordinance, or a threat to breach the peace occurs in his presence. Giving false information to a police officer in violation of § 29-18, Montgomery City Code, is a misdemeanor.
Based on the foregoing, we find that Hawkins's arrest was legal and that the trial court correctly denied the motion to suppress the cocaine as a product of an illegal arrest.
The judgment of the Court of Criminal Appeals is reversed and the case is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] The UTTC allows the offender to sign a summons agreeing to appear in court instead of going to jail. | April 19, 1991 |
338ba7ef-f0d5-4f38-9cec-72f7e46d3f5a | Luken v. BancBoston Mortg. Corp. | 580 So. 2d 578 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 578 (1991)
James B. LUKEN and Gertrude Luken
v.
BANCBOSTON MORTGAGE CORPORATION.
89-1001.
Supreme Court of Alabama.
April 19, 1991.
*579 Myron K. Allenstein and Charles C. Hart, Gadsden, for appellants.
T. Thomas Cottingham III and Paul P. Bolus of Burr & Forman, Birmingham, for appellee.
KENNEDY, Justice.
The plaintiffs, James B. and Gertrude Luken, appeal from a summary judgment entered in favor of the defendant, BancBoston Mortgage Corporation.[1]
In 1979, the Lukens purchased a house in Boaz, Alabama, for $26,800. In order to finance the purchase of the house, the Lukens borrowed the amount of the purchase price from BancBoston; the loan was secured by a mortgage on the house and land. The Veterans Administration guaranteed payment to BancBoston of up to 60% of the amount of the loan.
The Lukens paid on the loan for six years. In August 1985, the Lukens sold the house to Alexander Leps. At the time of the sale, the remaining balance on the note secured by the mortgage was $23,375.57. Leps assumed the mortgage and payment of the note, and the Lukens remained personally liable for payment on the note in the event Leps did not meet his obligation.
In October 1985, the house, which was insured by Allstate Insurance Company, was partially destroyed by fire. As compensation for the loss, Allstate issued a check jointly to Leps (the mortgagor) and BancBoston (the mortgagee), in the amount of $21,547.56. The remaining balance on the note to BancBoston at that time was $23,311.48. According to the terms of the mortgage, BancBoston could apply the insurance proceeds to the reduction of the indebtedness or to the restoration or repair of the damaged property. Of the insurance proceeds, BancBoston applied $14,047.56 to the reduction of the indebtedness and released $7,500 to Leps so that he could restore the house to its original condition.
In February 1986, Leps requested additional funds from BancBoston to complete the restoration of the house. After independent inspection of the restoration progress, BancBoston refused to disburse additional funds to Leps until it was satisfied with the rate of progress of the restoration. Subsequently, Leps abandoned the property and made no more payments on the note. A foreclosure sale resulted in a deficiency of $8,360.91 for BancBoston. BancBoston sought and received a deficiency payment in that amount from the Veterans Administration. The Veterans Administration notified the Lukens of their obligation to pay the deficiency in the event Leps did not do so. The Lukens applied to the Veterans Administration for a waiver of payment. In August 1988, the Veterans Administration denied the request. The Lukens appealed from that decision by filing a "Notice of Disagreement." In April 1989, the Lukens received a document from the Board of Veterans Appeals in Washington, D.C., styled "In the Appeal of James *580 B. Luken," in which their request for a waiver was seemingly denied. However, in May 1989, the Lukens received a letter from the Veterans Administration Regional Office and Insurance Center in St. Paul, Minnesota, stating that their appeal had been certified to the Board of Veterans Appeals in Washington, D.C., for a final decision. Since then, the Lukens have received no final decision from the Veterans Administration in this matter, nor have they made any deficiency payments to the Veterans Administration.
The Lukens filed an action in Etowah Circuit Court against BancBoston, alleging in three counts that, in paying $7,500 to Leps for restoration costs, BancBoston (1) breached a fiduciary duty to the Lukens, (2) breached a duty to conduct business in a reasonable manner, and (3) breached the mortgage contract. Bancboston filed a motion for summary judgment. In their response to that motion, the Lukens conceded that the first count was without merit, but they argued that counts two and three should be submitted to a jury. The trial court entered a summary judgment as to all counts, and, thereafter, denied the Lukens' motion for a new trial and their motion to alter, amend or vacate that judgment. The Lukens appeal from the summary judgment as to counts two and three.
In its motion for summary judgment and in its brief on appeal, BancBoston argues that the summary judgment was proper for several reasons. BancBoston first argues that because the Veterans Administration has not yet notified the Lukens of its final decision and because the Lukens have not paid the amount of the deficiency to the Veterans Administration, the Lukens have suffered no damages. Unless and until the Board of Veterans Appeals renders a final decision ordering the Lukens to pay the amount of the deficiency, BancBoston argues, the Lukens have suffered no damages.
In support of its position, BancBoston cites our opinion in Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 309 So. 2d 424 (1975). In that case, a corporation filed an action seeking a declaratory judgment upholding a proposed retirement plan for certain employees of the corporation. Named as defendants were certain individual stockholders in the corporation who voted against the proposed retirement plan and who were expected to contest the legality of any payments made pursuant thereto. The trial court entered a summary judgment for the corporation and the defendants appealed. This Court stated that there must be a bona fide existing controversy of a justiciable character or the court is without jurisdiction. The Court said that the lack of a justiciable controversy may be raised either by a motion to dismiss under Rule 12, A.R.Civ.P., or by a motion for summary judgment under Rule 56. We held that no justiciable controversy existed, and we dismissed the appeal:
Smith, 293 Ala. at 651, 309 So. 2d at 429 (emphasis added).
In this case, the Lukens last received correspondence from the Veterans Administration in May 1989. In that letter, the Regional Office and Insurance Center of the Veterans Administration stated:
Since that time, the Lukens have received no final decision from the Veterans Administration in this matter, nor have they made a deficiency payment to the Veterans Administration. As it stands at this time, it is not certain that they will be required to make the payment at all. We hold that a mere allegation that the Lukens anticipate that they will be required to pay the deficiency to the Veterans Administration in the future is not sufficient to invite a judicial declaration of their rights. See Smith, supra.
Because the judgment of the trial court was void for lack of a justiciable controversy between the parties, and because a void judgment will not support an appeal, the appeal is dismissed. Smith, supra; State ex rel. Baxley v. Johnson, 293 Ala. 69, 300 So. 2d 106 (1974); City of Mobile v. Scott, 278 Ala. 388, 178 So. 2d 545 (1965). We note, however, that should the Lukens be required to pay the deficiency to the Veterans Administration in the future, our decision in this case will not diminish their right to seek a judicial declaration of their rights in regard to that deficiency.
APPEAL DISMISSED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] Formerly Mortgage Corporation of the South. | April 19, 1991 |
c06320d7-aea1-4869-9483-589ef692f72b | Knight v. Alabama Power Co. | 580 So. 2d 576 | 1900285 | Alabama | Alabama Supreme Court | 580 So. 2d 576 (1991)
Joe Hardy KNIGHT
v.
ALABAMA POWER COMPANY.
1900285.
Supreme Court of Alabama.
April 11, 1991.
C. Knox McLaney III, Montgomery, for appellant.
Sterling G. Culpepper, Jr. and John S. Bowman, Jr., Montgomery, for appellee.
HOUSTON, Justice.
Joe Hardy Knight sued Alabama Power Company, alleging that Alabama Power was negligent in the location of a transmission wire and that its alleged negligence resulted in injury to Knight. Alabama Power raised, among other things, the defense of contributory negligence. Thereafter, Alabama Power filed a motion for summary judgment. At the hearing on Alabama Power's motion, Knight filed an amended response to the motion, asking the trial court to adopt the doctrine of comparative negligence. The trial court granted Alabama Power's motion for summary judgment and denied Knight's motion to adopt the doctrine of comparative negligence. Knight appeals. We affirm.
Summary judgment was proper in this case if there was no genuine issue of material fact and Alabama Power was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Alabama Power to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to Knight to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. See, Stafford v. Mississippi Valley Title Insurance Co., 569 So. 2d 720 (Ala.1990); see, also, DuPont *577 v. Yellow Cab Co. of Birmingham, Inc., 565 So. 2d 190 (Ala.1990). In determining whether there was a genuine issue of material fact, we must view the evidence in a light most favorable to Knight and must resolve all reasonable doubts against Alabama Power. Because this case was filed after 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 fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Viewing the evidence in the light most favorable to Knight, as we are required to do under the applicable standard of review, we find the following:
Knight was an electrician by trade and had been so employed for approximately 8-10 years at the time of the accident. His work as an electrician involved control work, computer work, and running conduit. Knight was familiar with Alabama Power's transmission line located behind his residence and approximately two feet from his property line. According to his deposition testimony, Knight assumed the line was in use and that electricity was flowing through the line; however, because the line appeared to Knight to be black, he assumed that the line was insulated. As an electrician, Knight was familiar with the National Electrical Safety Code, which provides that trees interfering with supply conductors are to be trimmed or removed and that when that is not possible, the tree should be separated from the conductor in order to avoid grounding through the tree. Knight had purchased and installed a swimming pool for his children. However, the shade from a tree located on Knight's property prevented the sun from sufficiently warming the water in the pool. Thus, Knight's wife called Alabama Power and requested that it trim the limbs. Alabama Power refused, stating that it worked on a set trimming program of five to seven years and that it was not time to trim in that area. Thereafter, Knight, who previously had trimmed low limbs from the tree, borrowed tree climbing spikes, a lineman's belt, and a chainsaw from his employer. Then, around 10 o'clock on the morning of the accident, a day when the sun was shining and there was no wind, Knight climbed the tree and proceeded to cut limbs. He cut three or four limbs without incident. He then observed the line from a distance, and because the line had no background to enable one to judge its distance and because Knight thought that there was sufficient clearance, he began to cut a limb that grew upwards. While he was cutting the limb, the limb came into contact with the line; electric current travelled through the limb and caused Knight to suffer second and third degree electrical burns to the back of both of his legs.
The sole issue for our review is whether the trial court erred in holding that Knight was contributorily negligent as a matter of law.
The law is well settled concerning a power company's duty to maintain insulated lines. Alabama Power Co. v. Foster, 555 So. 2d 174 (Ala.1989). However, as Judge Joseph D. Phelps correctly points out in his well-written order:
While contributory negligence is no defense to a claim based on wanton misconduct on the part of the defendant, contributory negligence is a complete defense to a claim based on negligence. Creel v. Brown, 508 So. 2d 684 (Ala.1987). Contributory negligence is an affirmative defense that the defendant bears the burden of proving. Rule 8(c), A.R.Civ.P. In order to prove contributory negligence, there must be a finding that the party charged 1. had "knowledge of the dangerous *578 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." Brown v. Piggly-Wiggly Stores, 454 So. 2d 1370, 1372 (Ala.1984); see Watters v. Bucyrus-Erie Co., 537 So. 2d 24 (Ala.1989); see, also, Cowley & Brothers, Inc. v. Brown, 569 So. 2d 375 (Ala.1990).
The record in the instant case indicates that Knight was experienced in working with electricity; that he was aware of the location of the line; that he assumed that the line was live; and that he was aware of the danger of working with electricity generally. The record further indicates that having looked at the limb in relation to the line, thus having approximated the distance of the limb from the line, Knight chose to cut down the limb, erroneously calculating that it would miss the line. Based on the foregoing, we find that the trial court correctly determined that Knight was contributorily negligent as a matter of law, on authority of the majority opinions authored by Justice Almon in Electric Service Company of Montgomery, Inc. v. Dyess, 565 So. 2d 244 (Ala.1990); Campbell v. Alabama Power Company, 567 So. 2d 1222 (Ala.1990); Wilson v. Alabama Power Company, 495 So. 2d 48 (Ala. 1986).
We note that in his amended response to Alabama Power's motion for summary judgment, Knight asked the trial court to "adopt the doctrine of comparative negligence in this case." However, Knight did not extensively argue comparative negligence before the trial court; in fact, except for the one sentence requesting the trial court to adopt the doctrine of comparative negligence, Knight presented nothing in the way of argument on that issue. In its final order, the trial court granted Alabama Power's motion for summary judgment and denied what it considered to be Knight's "Motion for the Adoption of the Doctrine of Comparative Negligence." On appeal, Knight, as an alternative to his extensive arguments concerning the issue of the trial court's holding that he had been contributorily negligent as a matter of law, only briefly argues that this Court should adopt the doctrine of comparative negligence. This issue was not sufficiently argued to the trial court, and it has not been sufficiently argued on appeal. Therefore, we hold that the trial court correctly denied Knight's "Motion for the Adoption of the Doctrine of Comparative Negligence."
AFFIRMED.
MADDOX, ALMON, SHORES, STEAGALL and INGRAM, JJ., concur. | April 11, 1991 |
67aeb6cd-0d2c-4598-b305-d618b45d3512 | Gaines v. Huntsville-Madison County Airport Auth. | 581 So. 2d 444 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 444 (1991)
Bill L. GAINES and Janet L. Gaines
v.
HUNTSVILLE-MADISON COUNTY AIRPORT AUTHORITY, a/k/a Huntsville-International Carl T. Jones Airport.
89-1597.
Supreme Court of Alabama.
April 11, 1991.
Lindsey Mussleman Davis of Holt, McKenzie, Holt & Mussleman, Florence, for appellants.
Michael L. Fees of Watson, Gammons & Fees, Huntsville, for appellee.
HORNSBY, Chief Justice.
On December 15, 1988, Bill Gaines was a passenger aboard an airplane that had landed at the Huntsville-International Carl T. Jones Airport. He alleges that as he was walking through the Airport he was injured when he slipped and fell on a flight of stairs. He sued the Huntsville-Madison *445 County Airport Authority (hereinafter "Airport Authority"), alleging that it had negligently maintained the flight of stairs on which he fell. Janet Gaines, Bill Gaines's wife, sued the Airport Authority for loss of consortium.
On July 20, 1989, the Airport Authority moved to dismiss the complaint pursuant to Rule 12(b)(6), A.R.Civ.P., on the grounds that the enabling legislation creating the Airport Authority, Acts of Alabama 1961, Act No. 780 (amended by Acts of Alabama 1969, Act No. 1219), granted it immunity from negligence actions. The trial court granted the Airport Authority's motion to dismiss.
Bill Gaines subsequently amended his complaint. The amendment asserted a claim based on negligence and wantonness against the Airport Authority and alleged that Act No. 780 was unconstitutional. Gaines also averred in his amended complaint that the attorney general of the State of Alabama must be served with a copy of the action and all pleadings, pursuant to Ala.Code 1975, § 6-6-227. The record reflects that the attorney general was served with the proceedings in this case, but it does not indicate that the State made any response.
The Airport Authority again moved to dismiss the action on the grounds that Act No. 780, as amended by Act No. 1219, granted it immunity from actions alleging negligence and those alleging wantonness as well. The trial court granted the Airport Authority's motion, holding that Act No. 780 "provided the Authority with immunity for negligence and wantonness and immunity from this action sounding in tort." We affirm in part; reverse in part; and remand.
The Airport Authority is a public corporation organized and existing pursuant to Act No. 780. The title to the act reads as follows:
Section 10 of that act provides as follows:
Section 10 of this act was later amended by Acts of Alabama 1969, Act No. 1219, to provide:
Airport authorities created under Article 1 of Chapter 3 of Title 4 and Chapter 4 of Title 4 (Ala.Code 1975, §§ 4-3-1 through -24, and §§ 4-4-1 through -16) are immune from negligence actions brought against them or their directors. Ala.Code 1975, § 4-3-7, § 4-4-4.
Gaines argues that Act No. 780 and Act No. 1219 unconstitutionally deny him the due process and equal protection guaranteed under the Fourteenth Amendment to the United States Constitution and Article I, § 13, of the Alabama Constitution. Specifically, Gaines alleges that these acts are arbitrary and capricious because, he says, the legislature has "unreasonably divided airport patrons and airport tort-feasors into *446 arbitrary classes." He says, "If one were injured at an airport where the county population was less than 110,000 through the willful negligence of an airport employee, conceivably he could recover while an identically injured patron at Appellee's airport could not."
In considering the plaintiff's constitutional challenge to Act No. 780 and Act No. 1219, this Court must apply the following standard:
Home Indemnity Co. v. Anders, 459 So. 2d 836, 840 (Ala.1984), quoting Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944).
This Court has recognized that "[i]t is the prerogative of the legislature, within constitutional limits, to authorize a public corporation to sue or be sued." Weeks v. East Alabama Water, Sewer & Fire Protection Dist., 401 So. 2d 26, 27 (Ala.1981), citing Scotti v. City of Birmingham, 337 So. 2d 350 (Ala.1976). In regard to municipalities and counties, "[n]either is the creation of the Constitution, both are creatures of statute. The fact and nature of their respective existence, as well as the duties, powers, and limitations, are governed solely by legislative mandate...." Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So. 2d 631 (1975); see also Nix & Vercelli, Immunities Available in Alabama for Cities, Counties and Other Governmental Entities, and Their Officials, 13 Am.J.Trial Advoc. 615 (1989).
In Jackson v. City of Florence, 294 Ala. 592, 600, 320 So. 2d 68, 75 (1975), this Court abolished municipal tort immunity and in doing so emphasized "the authority of the legislature to enter the field, and further recognize[d] its superior position to provide with proper legislation any limitations or protections it deems necessary." In this case the legislature has exercised its authority. Through Act No. 780, it has provided for the establishment of airport authorities in counties with populations between 110,000 and 165,000 and, through Act No. 1219, has seen fit to accord those authorities immunity from all actions in tort.
Although we have often recognized that the legislature has the authority to enact legislation limiting municipal, county, or public corporation liability (see, for example, Weeks, supra) we have also held that there are constitutional limits to the legislature's authority to do so. In Chandler v. Hospital Authority of Huntsville, 500 So. 2d 1012 (Ala.1986), this Court addressed the issue of discriminatory classification as it related to tort immunity for municipal hospital building authorities. In Chandler, we held that Article 5 of Chapter 21 of Title 22 ("Municipal Hospital Building Authorities") (Ala.Code 1975, § 22-21-130 et seq.) was unconstitutional because it denied equal protection to patients of hospital building authorities established under Article 5.
Of the five Articles authorizing the establishment of public hospitals and facilities (Articles 3, 4, 5, 6, and 11 of Chapter 21 of Title 22) (Ala.Code 1975, §§ 22-21-50 through -191, §§ 22-21-310 through -344), only Article 5 prescribes immunity from tort actions. In Chandler the plaintiff alleged that negligence and wanton conduct on the part of Huntsville Hospital and its administrators caused her baby's death. The trial court granted the defendant's motion for summary judgment on various grounds, including the ground that Huntsville Hospital was organized under Article 5, which provided the hospital authority with immunity from tort actions.
The plaintiff appealed, arguing that the statute granting tort immunity to hospital building authorities created by Article 5 was unconstitutional. The plaintiff argued that Article 5 deprived persons injured by *447 the negligence of a hospital organized under it of a remedy that was available to those injured by the negligence of hospitals organized under Articles 3, 4, 6, and 11. The lead opinion in Chandler held that the tort immunity provision of Article 5 was unconstitutional because Article 5, in comparison with Articles 3, 4, 6, and 11, created a classification that afforded unequal protection to patients injured in an Article 5 hospital by depriving them of a remedy in tort for such injuries.
Likewise, the issue in this case is whether Act No. 780, as amended by Act No. 1219, unconstitutionally creates a classification that affords unequal protection to persons injured in an airport operated by an authority organized under Act No. 780 by depriving them of a remedy in tort[1] that is available to persons injured in airports operated by an authority organized under Article 1 of Chapter 3 and Chapter 4 of Title 4 (Ala.Code 1975, §§ 4-3-1 through -24, §§ 4-4-1 through -16).
The analysis employed in the lead opinion in Chandler is equally applicable to this case:
"In Tyson, supra, the Court, in applying the test quoted above, found:
500 So. 2d at 1015-16.
In this case, Article 1 of Chapter 3 and Chapter 4 of Title 4 accomplish the same basic purpose as Act No. 780. However, airports organized under Article 1 of Chapter 3 and under Chapter 4 are immune only from negligence actions, but airports organized under Act No. 780, as amended by Act No. 1219, are immune from all actions in tort. As noted above, the proper standard in analyzing an allegation of unequal protection is the "rational basis" standard. Applying this "relaxed standard," we look to see if, under any perceivable facts, the statutory discrimination in Act No. 1219, which gives complete tort immunity to airport authorities organized under Act No. 780, is relevant to and justified by a permissible legislative purpose.
In this case, counsel for the Airport Authority has been unable to suggest a rational basis for the statutory discrimination that exists between Act No. 780, as amended by Act No. 1219, and Article 1 of Chapter 3 and Chapter 4, and we are unable to discern any. Therefore, we find that Act No. 780, as amended by Act No. 1219, by its terms and by comparison to Article 1 of Chapter 3 and to Chapter 4, does create a classification that affords unequal protection to persons injured in an airport operated by an authority organized under Act No. 780 by depriving them of a remedy for any tort.
Because Act No. 780 and Act No. 1219 create an impermissible classification, we now address the issue of remedying the constitutional infirmity. We adopt the same approach taken by the lead opinion in Chandler and strike as unconstitutional that portion of Act No. 1219 (amending section 10 of Act No. 780) that provides the Airport Authority immunity as to torts other than negligence. Chandler, 500 So. 2d at 1018. Therefore, that portion of the trial court's judgment dismissing the claim alleging wantonness is hereby reversed.
*449 The judgment is affirmed insofar as it dismisses the claim based on negligence. The cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
ALMON, SHORES, ADAMS and INGRAM, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., concur in part and dissent in part.
MADDOX, Justice (concurring in part; dissenting in part).
I concur in the judgment insofar as it affirms the judgment of the trial court; but I dissent from the judgment insofar as it reverses on the constitutional issue presented, for the same reasons stated in my dissenting opinion in Chandler v. Hospital Authority of Huntsville, 500 So. 2d 1012 (Ala.1986).
HOUSTON and STEAGALL, JJ., concur.
[1] Persons injured in an airport operated by an authority organized under Article 3 or 4 could sue the authority for injuries caused by its wanton conduct, whereas persons injured in an airport operated by an authority organized under Act 780, as amended by Act No. 1219, may not sue the airport authority for any action in tort. | April 11, 1991 |
e62ff831-7e1f-438b-939c-6d782b48bccc | Parks v. State | 587 So. 2d 1012 | 1900462 | Alabama | Alabama Supreme Court | 587 So. 2d 1012 (1991)
Ex parte State of Alabama.
Re Samuel L. PARKS
v.
STATE.
1900462.
Supreme Court of Alabama.
April 11, 1991.
Rehearing Denied June 7, 1991.
Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for petitioner.
Donald R. Harrison, Dadeville, for respondent.
SHORES, Justice.
We granted the State's petition for the writ of certiorari in this case to determine if the Court of Criminal Appeals, 587 So. 2d 1010, erred in reversing Samuel Parks's conviction of rape in the first degree and remanding for a new trial. As a result of his conviction, Parks received a sentence of 15 years' imprisonment and was ordered to pay $150 to the Victims' Compensation Fund, along with court costs. We reverse the Court of Criminal Appeals' judgment and remand the case.
*1013 In reversing Parks's conviction, the Court of Criminal Appeals relied upon Anonymous v. State, 507 So. 2d 972 (Ala. 1987), in holding that Parks was prevented from establishing a good character defense because of the trial court's ruling that S.P.'s sister and other of Parks's victims would be allowed to testify to Parks's prior bad acts.
The facts of the case, as set out in the Court of Criminal Appeals' opinion, are as follows: The victim, S.P., lived at home with her parents and siblings. On the morning of January 17, 1987, Parks, who is S.P.'s father, got everyone but S.P. out of the house. Parks then approached S.P. and asked her if she was going to "give him some." When she refused, Parks threatened her by telling her that he would hurt her "Mama." S.P. and Parks then had sexual intercourse. A.P., Parks's grandson, testified that on the morning of January 17, 1987, Parks instructed him to clean out the car. A.P. did so. Upon entering the house after he had finished, he witnessed Parks lying on top of S.P., who was wearing a shirt but no pants. Parks jumped to pull up his overalls and asked A.P. "where in the hell [he] was going." A.P. ran out of the house and did not tell anyone what he had seen.
Parks argues that the trial court committed reversible error in ruling that, if he attempted to establish proof of a good reputation in the community via character witnesses, the court would allow the State to introduce evidence of alleged prior acts of sexual misconduct by him with S.P. and her sister.
At the close of the State's evidence, Parks made, in effect, a motion in limine concerning the prior acts before he presented any evidence in his defense. A discussion concerning the motion was held between defense counsel (Mr. Harrison), the prosecutor (Mr. Belser), and the trial judge:
(R. 131-35.)
In its opinion, the Court of Criminal Appeals stated:
"`"Cofer, 440 So. 2d at 1123 (quoting C. Gamble, McElroy's Alabama Evidence § 69.01(1) (3d ed. 1977)...."' Id. at 973-74, quoting State, v. State, 547 So. 2d 603, 605 (Ala.Cr.App.1988)."
Then the Court of Criminal Appeals stated that, based upon the principles of Anonymous, Parks's conviction was due to be reversed. We disagree.
Parks presented the trial court with a hypothetical question: What would the trial court do if he, Parks, offered evidence of his good reputation in the community? Parks, however, never offered any character evidence. This hypothetical question was presented in the form of a motion in limine, and was denied by the trial court. As was stated by the Court of Criminal *1015 Appeals in White v. State, 527 So. 2d 1349, 1350 (Ala.Crim.App.1988):
A party who suffers an adverse ruling on a motion in limine can preserve the ruling for post-judgment and appellate review only by objecting to the introduction of the proferred evidence and assigning specific grounds at the time of trial, unless he or she obtains the express acquiescence of the trial judge that a subsequent objection and assignment of grounds are not necessary. Liberty National Life Insurance Co. v. Beasley, 466 So. 2d 935, 936 (Ala.1985). Parks failed to preserve for review the denial of his motion of limine, because the evidence of Parks's bad acts was never introduced. There was no reversible error on the part of the trial court; therefore, the judgment of the Court of Criminal Appeals is reversed and the case is remanded for the entry of an order consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | April 11, 1991 |
6653e285-7e4f-4f6d-9262-bb514da87d44 | Ex Parte Salter | 578 So. 2d 1097 | 1900655 | Alabama | Alabama Supreme Court | 578 So. 2d 1097 (1991)
Ex parte Frank Marion SALTER, Sr.
(Re Frank Marion Salter, Sr. v. State).
1900655.
Supreme Court of Alabama.
April 11, 1991.
Albert C. Bowen, Jr. of Beddow, Erben & Bowen, Birmingham, for petitioner.
James H. Evans, Atty. Gen., for respondent.
STEAGALL, Justice.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, HOUSTON, KENNEDY and INGRAM, JJ., concur.
ADAMS, J., dissents.
ADAMS, Justice (dissenting).
While I agree with the Court of Criminal Appeals' decision as to the petitioner's first issue, I believe that the second issue raised by the petitioner has merit. From the information provided to us in the Court of Criminal Appeals' opinion, it is apparent that Frank Marion Salter, Sr., decided to remain silent after his arrest until he could speak with his lawyer. The only statement Mr. Salter made at the time of his arrest was that he did not sell anything and that he had just tried to trick someone. Mr. Salter was not questioned after his arrest and refused to sign the form stating that he understood his rights "without his attorney looking at it first."
During Mr. Salter's cross-examination, the prosecutor asked him why he did not tell the arresting officer what he was telling the jury. The trial judge sustained defense counsel's objection as to why Mr. Salter did not tell the officer something. During closing arguments, the prosecutor referred to the fact that Mr. Salter did not tell the police what he had just testified to. The trial judge again sustained defense counsel's objection and instructed the jury to disregard the prosecutor's remarks.
In its opinion, the Court of Criminal Appeals held that Mr. Salter waived his right to remain silent by making a statement and, consequently, that the prosecution could challenge the testimony. The Court of Criminal Appeals appears to have examined the issue only in one respectwhether Mr. Salter had waived his rights by making the statement he made. There exist, however, other areas of concern. The prosecution, in its closing argument, referred to the fact that Mr. Salter did not tell the police what he told the jury while testifying in his own behalf, even after the trial judge had sustained defense counsel's objections to this line of questioning. The Court of Criminal Appeals' opinion does not, in my opinion, adequately resolve this issue and does not provide us with enough information from the record to make a satisfactory ruling on this petition. Therefore, I would grant the petition in order to more closely examine the record in this case. | April 11, 1991 |
a0af31a4-1d93-4b55-9d3d-02778ec8e700 | Ex Parte Perry | 586 So. 2d 242 | N/A | Alabama | Alabama Supreme Court | 586 So. 2d 242 (1991)
Ex parte Waylon Dwight PERRY.
(Re Waylon Dwight Perry v. State).
89-1534.
Supreme Court of Alabama.
April 19, 1991.
Rehearing Denied June 7, 1991.
*244 Richard M. Payne and Pamela Wilkinson Tucker, Scottsboro, for Waylon Dwight Perry.
Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for the State.
KENNEDY, Justice.
Waylon Dwight Perry was convicted of capital murder, and the trial court, accepting the jury's recommendation, sentenced Perry to life imprisonment without parole. The Court of Criminal Appeals affirmed the judgment of the trial court. Perry v. State, 586 So. 2d 236 (Ala.Cr.App.1990). We granted certiorari review to address one issue: Whether DNA evidence, which was used to identify Perry as the perpetrator of the crime, is admissible in Alabama. The Court of Criminal Appeals held it admissible. ("DNA" stands for deoxyribonucleic acid. DNA exists in the nucleus of most cells of the body; it is unique to the individual, except in the case of identical twins.)
In July 1988 Bryce Wallace was strangled to death in his house. When law enforcement officers investigated, they found bloodstains on Wallace's clothing and on the front doorknob of Wallace's house. Those bloodstains were later analyzed with a procedure called "DNA print analysis" by Lifecodes Corporation ("Lifecodes"), a New York corporation that performs DNA tests in relation to criminal and paternity lawsuits.
In October 1988 Perry was indicted for Wallace's murder, and in December 1988 he was tried for that offense. The record does not indicate when Perry discovered that Lifecodes had performed the DNA print analysis. By the time the case went to trial, however, Perry's lawyers apparently knew that the State might attempt to introduce that DNA evidence, because, when the State, at the beginning of its case, requested that two Lifecodes scientists be allowed to testify out of order, Perry's lawyers knew who they were and had a cross-examination prepared. Perry's trial lawyers never asked for a hearing outside the presence of the jury to challenge the admissibility of the DNA evidence.
At trial the State called as its first two witnesses Joanne Squeglia and Dr. Kevin McElfresh. Squeglia testified at some length concerning how she performed the DNA testing procedures comparing the DNA of the individual whose blood was on Wallace and on Wallace's front doorknob to Perry's DNA. Dr. McElfresh, the assistant manager of Lifecodes' forensics laboratory, testified that he interpreted the results of the tests Squeglia performed. Dr. McElfresh explained the procedures that Lifecodes normally performs in DNA analysis; when the State asked Dr. McElfresh to state the conclusions that he drew from that analysis, Perry's attorney objected, with this statement:
Dr. McElfresh testified that Perry's DNA "matched" the DNA of the blood found on Wallace and on Wallace's front doorknob. We refer to this testimony as testimony concerning DNA "matching" evidence. Dr. McElfresh also testified that based on a certain chromosome pattern, the probability of finding similar DNA was 1 in 209,100,000. We refer to this testimony as evidence of "DNA population frequency statistics."
Perry argues that the trial court erred by submitting the DNA evidence to the jury without first holding a hearing outside the presence of the jury as to its admissibility. Such a hearing is necessary, Perry argues, because, the trial court otherwise is presuming that the evidence is admissible, *245 although DNA evidence is novel scientific evidence that this Court has never held to be admissible. Such a holding, Perry contends, turns the only contention about the DNA evidence to an argument over its proper weight without ever addressing the threshold issue of admissibility.
The State contends that Perry never requested a hearing outside the jury's presence concerning the DNA evidence and that Perry did not object to the introduction of the evidence until the State asked Dr. McElfresh to give his opinions and conclusions concerning the DNA print analysis. The record supports that contention. Perry objected to the admission of Dr. McElfresh's testimony based on the DNA print analysis that identified his blood as the blood on Wallace's body and on Wallace's front doorknob, however. Perry's objection may be viewed as ambiguousit says in substance that Dr. McElfresh's testimony is inadmissible because Lifecodes' "test" has not been proved "trustworthy," but it does not explain specifically what Perry challenges about Lifecodes' DNA print analysisbut inasmuch as it challenges the admissibility of the DNA evidence because such evidence has not previously been held admissible by this Court and because there is the possibility that DNA testing can produce flawed results, it preserves those issues for review.
Many courts have stated that the general scientific theory underlying DNA print analysis is almost universally accepted in the scientific community. See, e.g., Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990); People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (Sup.Ct.1989); State v. Schwartz, 447 N.W.2d 422 (Minn.1989); Andrews v. State, 533 So. 2d 841 (Fla.Dist. Ct.App.1988). That underlying scientific theory was well explained in Castro, 144 Misc.2d at 961-63, 545 N.Y.S.2d at 988-89:
Techniques for implementing DNA print analysis based on the theory above have also been discussed by other courts. In Schwartz, the Minnesota Supreme Court stated:
*247 "Three commercial laboratories in the United States currently perform DNA analysis: Cellmark (the company that did the testing in this case) Lifecodes Corporation, and Cetus Corporation. Both Cellmark and Lifecodes employ restriction fragment length polymorphism (RFLP) analysis in their DNA testing. RFLP analysis involves the following steps:
447 N.W.2d at 425. Schwartz's description of the procedures involved in the DNA print analysis technique employed by Lifecodes is consistent with Dr. McElfresh's description of the same techniques.
The interpretation of the autorads is the basis for DNA "matching" evidence and DNA population frequency statistical evidence. Castro, 144 Misc.2d at 967, 545 N.Y.S.2d at 992, provides this explanation concerning interpretation of autorads:
144 Misc.2d at 967, 545 N.Y.S.2d at 992.
In Alabama, whether novel scientific evidence is admissible is determined normally by using the test established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). In Frye, a criminal defendant sought to introduce evidence concerning a systolic blood pressure lie detector test. In affirming the trial court's exclusion of the evidence, the court wrote:
293 F. at 1014.
Other courts have discussed what Frye requires to permit the introduction of DNA evidence and whether the Frye requirements should be modified somewhat in relation to the admission of DNA evidence. Cf. State v. Pennington, 327 N.C. 89, 393 S.E.2d 847 (1990); State v. Ford, 392 S.E.2d 781 (S.C.1990); Castro; Cobey v. State, 80 Md.App. 31, 559 A.2d 391 (1989); United States v. Two Bulls, 918 F.2d 56 (8th Cir.1990). For example, in Castro, the court, addressing the admissibility of DNA evidence, wrote:
144 Misc.2d at 959-60, 545 N.Y.S.2d at 987-88.
In Two Bulls, a case of first impression in the federal circuit courts, the Eighth Circuit Court of Appeals adopted a standard similar to Castro's. After holding that Frye and Rule 702 of the Federal Rules of Evidence would require the establishment of similar foundations to allow the admission of DNA evidence, the court wrote:
918 F.2d at 61.
The Supreme Court of South Carolina, addressing the admissibility of DNA testing, described its modified Frye standard for admissibility of novel scientific evidence:
Pennington, 393 S.E.2d at 853.
Each of the cases from which we have quoted, as well each case that we have reviewed concerning the admissibility of DNA evidence, including cases from jurisdictions that do not follow Frye, note one similar concern with the admission of the evidence: however accepted and proper the scientific theory underlying DNA evidence analysis is, and however acceptable the techniques for DNA testing based on that theory, there remains the possibility for error in the interpretation and performance of the tests. Caldwell; Pennington; Ford; Castro; Schwartz; Cobey; Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 759, 107 L. Ed. 2d 775 (1990); Andrews; People v. Harbold, 124 Ill.App.3d 363, 79 Ill.Dec. 830, 464 N.E.2d 734 (1984); Two Bulls. As the court in Castro said, "`Perhaps the most important flaw in the Frye test is that by focusing attention on the general acceptance issue, the test obscures critical problems in the use of a particular technique.'" 144 Misc.2d at 960, 545 N.Y.S.2d at 987, quoting Gianelli, The Admissibility of Novel Scientific Evidence; *250 Frye v. United States, a Half-Century Later, 80 Col.L.Rev. 1197, 1201 (1980). As regards the concern for the problems in the use of a particular technique, the sole source of disagreement seems to be whether Frye or some other source of law requires that for DNA evidence to be admissible, it must be shown that there was no error in the interpretation and performance of the tests.
We do not determine whether it is Frye's standard of "general acceptance in the particular field in which it belongs" that makes it a requisite to admissibility to prove that there was no error in the interpretation and performance of the tests. Like every other court that has addressed the admissibility of DNA evidence, we recognize the possibility of error in the interpretation and performance of the tests as a legitimate concern, however. Accordingly, considering both this concern and the Frye test, we hold that the following three-pronged test, substantially similar to that announced in Castro, is the test by which to determine the admissibility of the contested evidence:
We believe that our statement of the third prong says in substance what the court in Castro meant.
Prong I: The theory.
Considering both the record in this case and the holdings of other courts that have addressed this issue, we hold that as to the DNA "matching" evidence there is a theory, generally accepted in the scientific community, that supports the conclusion that DNA forensic testing can produce reliable results. Caldwell; Pennington; Ford; Castro; Schwartz; Spencer; Andrews; see also People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643 (N.Y.Co.Ct. 1988). We described that theory earlier. As we explain in detail presently, we do not hold that this portion of the test was met concerning the DNA population frequency statistical evidence (e.g., in Perry's case, Dr. McElfresh's testimony that the probability of finding similar DNA was 1 in 209,100,000).
Prong II: Techniques.
Considering the holdings of other courts that have addressed this issue, we hold that there are current techniques that are capable of producing reliable results in DNA "matching" and that are generally accepted in the scientific community. Caldwell; Ford; Pennington; Castro; Schwartz; Spencer; Andrews. Again, we do not hold that this portion of the test was met concerning DNA population frequency evidence.
The third prong asks: In this particular case, did the testing laboratory perform generally accepted scientific techniques without error in the performance or interpretation of the tests?
In order to answer this question, we must make two inquiries. First, were the techniques used by the testing laboratory generally accepted in the scientific community? Second, was there error in the performance or interpretation of the tests?
Regarding the first inquiry, we recognize and are almost persuaded by the holdings in other cases that have involved the question whether Lifecodes' techniques are generally accepted in the scientific community. In each instance, Lifecodes' techniques were held to be generally accepted in the scientific community. Caldwell; Ford; Castro; Spencer; Andrews. The *251 record before us does not support such a holding, however. Apart from specific testimony on the "Southern transfer" portion of the procedures used by Lifecodes (step 4 in the description of DNA analysis, supra), Squeglia and Dr. McElfresh testified in a limited, conclusory manner that the techniques they used were generally accepted in the scientific community. Considering the import of this issue, we will not hold that that testimony of Squeglia and Dr. McElfresh, who both have an obvious interest in validating Lifecodes' techniques, was sufficient to support a holding that those techniques are generally accepted in the scientific community.
We note that if in the future it is proved to this Court that certain techniques are generally accepted in the scientific community and then those same techniques are exclusively used in other cases, it may be possible to hold as a matter of law that the techniques are generally accepted in the scientific community.
The evidence in the record before us is not sufficient for us to determine whether there was error in the performance or interpretation of the tests.[1] Perry cross-examined Dr. McElfresh on this issue, but Perry did not provide his own evidence to establish that there was error in the performance or the interpretation of the tests. The cases that we have discussed in relation to other issues of admissibility strongly suggest that DNA evidence can meet every other requirement of admissibility but nevertheless fail on this requirement. Caldwell; Ford; Castro; Schwartz; Pennington; Two Bulls. Caldwell and Castro exemplify this.
In Caldwell, the Supreme Court of Georgia addressed a defendant's "concerns [about] Lifecodes' quality control [and] the manner in which it declares a `match.'" 260 Ga. at 279, 393 S.E.2d at 437. Addressing those concerns, the court wrote:
260 Ga. at 286-87, 393 S.E.2d at 441-42. The court ultimately concluded that in Caldwell Lifecodes' declaration of a "match" was proper. 260 Ga. at 288-89, 393 S.E.2d at 443.
In Castro, the court held a portion of the DNA evidence admissible and a portion inadmissible because Lifecodes, the testing laboratory, had made errors in the performance of the tests. The court discussed potential problems with the performance and interpretation of DNA tests:
144 Misc.2d at 969-70, 545 N.Y.S.2d at 993-94.
Finally, in regard to whether there was error in the performance or interpretation of the tests, we note that this challenge to admissibility will be available even if the challenge under the first portion of the third prong is determined as a matter of law.
To summarize our discussion of the third prong of the admissibility test, we hold that the evidence in the record before us is insufficient for us to determine whether there was error under either of the two inquiries that must be addressed in the third prong of the analysis. As in the preceding sections, we do not address our discussion in this section to the DNA population frequency statistical evidence.
Dr. McElfresh testified that in his analysis to determine whether Perry's blood "matched" the blood found on Wallace's clothing and front doorknob, he examined three sets of chromosome groupings. In relation to that testimony, Dr. McElfresh also testified:
Courts addressing the admissibility of DNA evidence have distinguished between the admission of testimony that one sample of DNA "matches" another sample of DNA (the kind of testimony discussed in other sections of this opinion) and the admission of testimony concerning the frequency with which a given DNA pattern might occur statistically or might occur in a given population, which we denominate "DNA population frequency statistics." See, e.g., Caldwell; Castro; Schwartz; Harbold; Two Bulls. We explain presently why proper proof of DNA population frequency statistics requires additional evidence from DNA "matching" evidence.
We use the same three-pronged test that we stated earlier for testing the admissibility of evidence of DNA population frequency statistics. Restated specifically for this purpose, the test is:
The entire foundation for Dr. McElfresh's statistical testimony was his testimony that "We have a database of blood samples from all over the country and we *254 ask the question have we ever seen bands in this position.... We have asked the question `How many people would we have to look at before we saw another person like this?'" Such limited, conclusory evidence is insufficient to allow admissibility under any of the individual parts of the test stated above, much less all of it.
There are both scientific/mathematical and legal reasons for distinguishing between the admissibility of DNA "matching" evidence and the admissibility of DNA population frequency statistics. Stated simply, the evidence necessary to show a "match" does not by itself indicate the frequency with which a given DNA pattern might occur statistically or might occur in a given population; to establish population frequency generally requires data on the relevant populations involved as well as data for the mathematical, statistical analysis.
The legal reasons for distinguishing between the admissibility of DNA "matching" evidence and the admissibility of DNA population frequency statistics involve the potential impact of the population frequency testimony on the jury: DNA "matching" testimony may say that everyone's DNA is unique, but the impact of that testimony is not as strong as quantitatively stating that 1 in 209,100,000 people might have DNA similar to the DNA in the blood found at the scene of the killing. In Schwartz, the Minnesota Supreme Court, addressing DNA population frequency statistics, wrote:
447 N.W.2d at 428.
We agree with Schwartz's assessment that DNA population frequency evidence creates a "potentially exaggerated impact on the trier of fact." We are concerned that the testimony unduly encourages the trier of fact in its determination of whether the State has proven guilt beyond a reasonable doubt to focus solely upon a numerical conclusion and to disregard the weight of other evidence. See Harbold, 124 Ill.App.3d at 382-83, 79 Ill.Dec. at 845, 464 N.E.2d at 749.
These concerns can be properly addressed in an analysis of whether the probative value of the evidence outweighs its prejudicial effect. Even if population frequency statistics are otherwise admissible under the test set out in this discussion, if the prejudicial impact of the evidence outweighs its probative value, the evidence is not admissible. Ex parte Smith, 581 So. 2d 531 (Ala.1991). See also Two Bulls, at 61 (trial court should determine "whether statistics used to determine the probability of someone else having the same genetic characteristics is more probative than prejudicial under [Federal] Rule [of Evidence] 403").
Procedures for challenging DNA evidence.
Earlier, we stated that Perry contends that the trial court erred by submitting the DNA evidence to the jury without first holding a hearing concerning its admissibility. As we explain presently, we do not hold that the trial court has necessarily erred.
We do hold, however, that if the admissibility of DNA evidence is challenged, *255 the trial court should conduct a hearing outside the presence of the jury to address the considerations raised in this opinion. That hearing can be conducted either as a preliminary hearing or when the court chooses, but it should be held outside the presence of the jury, because the admissibility of the evidence is what is challenged. This is not an unusual or unduly burdensome procedure; trial courts routinely hear motions in limine prior to the offer of evidence at trial and routinely conduct evidentiary hearings. See Two Bulls, at 60.
DNA evidence is discoverable, at least by the defendant. The defendant's fair trial and due process rights, Art. I, § 6, Alabama Constitution, as well as Rule 16.1, A.R.Crim.P., clearly require that the prosecution allow the defendant access to the DNA evidence. See also Schwartz, 427-28. Discovery by the State of DNA evidence in the possession of the defendant should be conducted in accordance with Rule 16.2, A.R.Crim.P.
To produce uniformly sufficient information to allow a proper, well-informed determination of the admissibility of DNA evidence and to produce uniformity in DNA evidentiary hearings, we further suggest the following guidelines, which we take substantially from Castro, 144 Misc.2d at 978-79, 545 N.Y.S.2d at 999:
Perry has not proved that the trial court committed reversible error; the State did not prove that either the DNA matching evidence or the population frequency statistical evidence was admissible under the tests established in this opinion. Normally, if the appellant does not prove reversible error, we simply affirm the judgment. Because of the novelty of the issues presented in this case, because only with this opinion have we established methods for admitting DNA evidence in Alabama, because the record does not sufficiently indicate whether the evidence was admissible, and considering the potentially devastating impact on Perry's defense caused by the DNA evidence presented at trial, we remand this cause to the Court of Criminal Appeals with instructions for it to remand for the trial court to conduct an evidentiary hearing to determine the admissibility of *256 both the DNA "matching" evidence and the DNA population frequency statistical evidence. If the trial court determines that either the "matching" evidence or the population frequency statistical evidence is inadmissible, then the admission of the testimony was improper and the trial court should enter an order granting Perry a new trial. If the trial court determines that the contested evidence is admissible under the tests prescribed in this opinion, it should then determine if the admission was otherwise proper. It should then enter an appropriate order, either modifying or leaving undisturbed its judgment of conviction.
REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] We are aware of the testimony of Squeglia and Dr. McElfresh that a DNA test cannot indicate a match when there is no match, because the test will simply fail to provide any results if it is improperly performed. Similar claims were made by scientists in Wesley, Andrews, and Castro. From these statements, the State contends that a match, if made, cannot be flawed. We strongly reject both this contention and the testimony supporting it as hyperbole. Our discussion, particularly of Castro and of Caldwell, indicates that there can be errors in both the performance of the tests and their interpretation, both of which can lead to an improper "match." | April 19, 1991 |
ef67a560-bd4e-4115-931f-6311fb0705d9 | BASS Coal, Inc. v. BLACK WARRIOR MINERALS | 579 So. 2d 1325 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1325 (1991)
B.A.S.S. COAL, INC., and Roger Cupps
v.
BLACK WARRIOR MINERALS, INC.
89-1080.
Supreme Court of Alabama.
April 19, 1991.
Jack E. Held of Sirote & Permutt, Birmingham, for appellants.
Rodney A. Max and Allan L. Armstrong of Najjar Denaburg, Birmingham, for appellee.
ADAMS, Justice.
Roger Cupps and B.A.S.S. Coal, Inc., ("BASS") appeal from a judgment entered against them in favor of Black Warrior Minerals, Inc., ("Black Warrior") on claims of breach of contract, conversion, and fraud. We affirm.
This case arose out of the following facts:
On August 17, 1987, Black Warrior and BASS signed an agreement in which Black Warrior agreed to "reclaim" the site of a former strip-mine operation. The operation contemplated backfilling, regrading, and replanting the area. The agreement recited consideration in the amount of "ten dollars and other good and valuable consideration." It was signed by Roger Cupps, president and 50% shareholder of BASS. Black Warrior, after an unsuccessful attempt to hire a third party to reclaim the area, undertook the reclamation, using its own equipment. Black Warrior spent approximately $128,658 on the reclamation project.
On May 13, 1988, Black Warrior filed suit against BASS and Cupps. Count one of the complaint alleged that BASS breached its contract of August 17, 1987, to assign, as remuneration for Black Warrior's reclamation work, BASS's rights to a $46,000 performance bond that BASS had previously filed with the Alabama Surface Mining Commission to ensure the reclamation of the site of a former mining operation. Count two alleged conversion as a result of BASS's retention of $26,648 of that bond, which the Commission had already released to BASS. Count three alleged fraud in the inducement.
*1326 On March 2, 1990, a jury returned a verdict against BASS and Mr. Cupps on all three counts. The damages, assessed to each count on separate verdict forms, were broken down as follows:
The defendants' counsel made no objections to the court's jury instructions and filed no post-judgment motions. On April 12, 1990, the defendants, through new counsel, filed a notice of appeal. On appeal, the defendants argue two issues: First, they contend that the trial court erred in admitting into evidence an exhibit that they insist confused the jury, and second, they argue that the verdict, allegedly based on the improperly admitted exhibit, was illegal and excessive in that, they say, it made multiple awards of compensatory damages and awarded unwarranted punitive damages.
BASS and Mr. Cupps contend that the trial court erred in allowing Black Warrior to introduce Exhibit 7, a sheet containing an itemization of Black Warrior's total reclamation cost, in the amount of $128,658. The defendants contend that because Black Warrior's breach of contract and fraud counts alleged only $46,000 in damages for failure to assign the performance bond, the exhibit was irrelevant, prejudicial, and confusing to the jury. BASS and Cupps bolster this contention by pointing out that the damages assessed, as distributed among the three counts, represented the exact amount that appeared on the exhibit. Black Warrior, however, contends that BASS and Mr. Cupps waived their right to assert the error in the admission of the exhibit that they now attempt to assert. Specifically, Black Warrior contends that, at trial, the defendants objected to the evidence on a specific ground other than that of relevancy the ground they argue on appeal. We agree.
The record reveals the following exchange regarding the admission of the exhibit:
(Emphasis added).
"The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial." Ex parte Frith, 526 So. 2d 880, 882 (Ala. 1987); see also State v. Holloway, 293 Ala. 543, 307 So. 2d 13 (1975); Scarbrough v. State, 528 So. 2d 890 (Ala.Crim.App.1988). In other words, "if only a specific objection is made and overruled, the appellate court will not consider any other grounds of objection." C. Gamble, McElroy's Alabama Evidence, § 426.01(11) (3d ed. 1977).
In this case, BASS and Mr. Cupps objected to the admission of the exhibit on the ground that the proponent had failed to establish the basis on which the figures were based and, therefore, the legitimacy of the total amount claimed by Black Warrior for its reclamation work. That ground was the one understood by the trial judge, as indicated by his remarks. Therefore, the defendants may not now contend that the trial judge erred on the ground that the exhibit bore no relevancy to the right of Black Warrior to BASS's performance bond as alleged in the complaint.
BASS and Mr. Cupps insist that the verdict of $101,236 for compensatory damages and $27,422 in punitive damages was excessive in view of the fact that the complaint sought compensatory damages in the amount of only $46,000, the value of the performance bond. They argue that the jury improperly apportioned the damages among the breach of contract, fraud, and conversion counts in order to reach a figure comprising the full cost of Black Warrior's reclamation operation an amount that Black Warrior had not sought in its complaint.
BASS and Mr. Cupps concede that in the absence of a motion for a new trial, this Court may not review a claim that the verdict was excessive. See Fallaw v. Flowers, 274 Ala. 151, 146 So. 2d 306 (1962); State v. Ferguson, 269 Ala. 44, 110 So. 2d 280 (1959); Humphrey v. Boschung, 47 Ala.App. 310, 253 So. 2d 760 (Ala.Civ.App. 1970), aff'd, 287 Ala. 600, 253 So. 2d 769 (1971). They contend, nevertheless, that "there is not a scintilla of evidence to justify the amount" of damages awarded in this case. This argument, which, in effect, merely offers us a "back door" through which to review the excessiveness of the verdict, invites us to review the sufficiency of the evidence as though the trial court had denied a motion for judgment notwithstanding the verdict.[1]Black Belt Wood Co. v. Sessions, 514 So. 2d 1249, 1251 (Ala. 1986). We can not do this, because no such motion was filed with the trial court. See Ala.R.Civ.P. 50(b); Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877 (Ala. 1979); see also University Computing Co. *1328 v. Lykes-Youngstown Corp., 504 F.2d 518 (5th Cir.1974); Porter v. Eckert, 465 F.2d 1307 (5th Cir.1972).
Winn-Dixie Montgomery, Inc. v. Henderson, 371 So. 2d 899 (Ala.1979), is not contrary to this holding and affords the defendants no support. There, as here, we declined the appellant's invitation to review the excessiveness of the verdict and reversed the judgment in that case solely on the issue of erroneous jury instructions instructions to which the appellant had properly objected. Because the defendants in this case failed to object to the court's jury instructions, we are not here presented with similar grounds upon which to examine the verdict.
The peculiar procedural posture of this case precludes appellate review of the excessiveness of the verdict or of the sufficiency of the evidence and requires us to affirm the judgment of the trial court. As to the possibility of post-judgment relief under Ala.R.Civ.P. 60(b), we offer no opinion, but for the foregoing reasons, the judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur.
[1] Although the appellants, in their reply brief, state that they "do not ask this Court in the first instance to review the excessiveness of the jury verdict or to weigh the sufficiency of the evidence," the thrust of their arguments is clearly otherwise. Indeed, the brief of appellants is rife with statements both expressly challenging the sufficiency of the evidence (pp. 16, 18, 20, 23, 24, 25, 26, 27, 28) and alleging excessiveness of the verdict (pp. 24, 29). | April 19, 1991 |
c35b08b8-4b90-46c9-8c1c-d8c5294d27a9 | Friendly Credit Union v. Campbell | 579 So. 2d 1288 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1288 (1991)
FRIENDLY CREDIT UNION
v.
Freddie B. CAMPBELL.
89-1081.
Supreme Court of Alabama.
March 1, 1991.
As Modified on Denial of Rehearing April 19, 1991.
Benjamin H. Brooks III and Thomas H. Nolan, Jr. of Brown, Hudgens, Richardson, Mobile, for appellant.
*1289 Ronnie L. Williams, Mobile, for appellee.
SHORES, Justice.
Freddie B. Campbell sued Friendly Credit Union, which had financed the purchase of Campbell's 1986 GMC truck and had subsequently repossessed it, to recover damages for conversion of the truck, which Campbell alleged the defendant disposed of in a commercially unreasonable manner. The credit union counterclaimed, seeking a deficiency judgment based upon its loan agreement with Campbell. A jury in the Circuit Court of Mobile County found for Campbell and awarded him $15,000. The trial court denied the credit union's motions for a directed verdict and for j.n.o.v. and the Credit Union appeals. We affirm.
Campbell, an employee of International Paper Company, borrowed approximately $12,000 from Friendly Credit Union in February 1986 to purchase his truck. Campbell signed a security agreement with the credit union, giving it a security interest in the vehicle to secure the loan. Monthly payments of $337.50 were regularly deducted from Campbell's paychecks until March 21, 1987, when a lockout occurred at International Paper.
As a result of the lockout, the credit union posted a notice in the union hall that stated: "1. The monthly payments on all loans are waived after March 31, 1987." It is apparent that the credit union was proceeding under Paragraph 15 of its security agreement, which provided in pertinent part:
The lockout continued after this 90-day period had expired. On June 25, 1987, the credit union issued another notice allowing the payment of interest only on all loans. In July 1987, Campbell contacted David Flott, a credit union employee, concerning the payment of interest on his loan. In order to make the interest payments, Campbell turned over to the credit union $465.29 from his Christmas savings account and approximately $900 from a personal and holiday vacation fund.
In December 1987, Campbell was told that his "interest only" payments were no longer sufficient to satisfy his obligation under the original purchase agreement. The credit union had come under severe pressure from the regulatory agencies, the National Credit Union Administration, and the Alabama Credit Union League. A report prepared by the NCUA stated:
The NCUA directed the credit union to change its collection policies and practices regarding the delinquent accounts of the locked-out members, and to require that loan payments, including all amounts in arrears, become due no later than July 31, 1987.
As a result of the NCUA's advice, the credit union gave Campbell three options: (1) to catch up the payments on his loan by paying the amount in arrears and making the $337.50 monthly payments called for by his original loan obligation; (2) to pay off the total balance of the loan; or (3) to refinance the loan.
Campbell, still unemployed, could choose only the refinancing option. He tried to refinance by applying for a loan with another institution. Campbell's application was denied by that other institution because of insufficient income. Friendly Credit Union also denied his request for refinancing because of insufficient income.
Due to his inability to meet the credit union's demands, which had been increased from those originally agreed upon, Campbell's vehicle was peaceably repossessed. On March 14, 1988, the credit union notified Campbell that he had 14 days in which to pay the balance of his loan, amounting to $10,650.38 plus interest, in order to redeem *1290 his truck. Still unemployed, Campbell could not redeem his truck under the terms of this notice. The credit union sold his truck for $6417.00, on March 24, 1988 before the end of the period in which Campbell had been told he could redeem his truck. That sale resulted in a deficiency of $4277.04.
Campbell's complaint alleged that he was not in default according to the modified "interest only" agreement he had made with David Flott of Friendly Credit Union. Due to the existence of the agreement which modified Campbell's duty to pay interest only, Campbell asserted that the credit union should be estopped from requiring the payment of the total amount or the amount in arrears plus the current monthly payments. Campbell's estoppel theory was supported by his alleged reliance on the contract modifications he made with Friendly Credit through its employee, David Flott. Campbell asserted that the repossession was, therefore, invalid and amounted to a conversion of his vehicle.
Campbell's complaint also alleged that the sale of the truck was commercially unreasonable. The credit union's notice concerning his period of redemption indicated that he had until March 28, 1988, to redeem his truck. It is undisputed that the period in which he was told he could redeem his truck was cut short, because the truck was sold on March 24, 1988. Because the sale of the truck left Campbell with a deficiency of $4277.04, he claims he suffered injury.
Campbell was not in default under the terms of the modified July 1987 contract. The credit union's written notice allowing "interest only" payments amounted to a written public offer satisfying § 7-2-201, Code of Alabama 1975. Campbell's payment of the interest by payment with money taken from his vacation and Christmas funds amounted to an acceptance of the credit union's modified offer.
The facts of this case are similar to those in Bank of Huntsville v. Witcher, 336 So. 2d 1384 (Ala.Civ.App.1976). Witcher had financed the purchase of his Ford pickup truck by giving the bank a promissory note. He obtained several extensions from the bank in order to delay his monthly payments, and he paid by the agreed-upon later date. When Witcher requested a delay for his March and April payments, the bank told him that if he did not pay within 10 days his truck would be repossessed. The bank repossessed the truck on April 11.
Because the bank had previously accepted Witcher's late payments, he assumed that he would be again be granted a delay. He claimed that he did not make his March and April payments because he was awaiting the bank's decision as to whether he would be granted the extension. However, the bank repossessed his truck.
The Court of Civil Appeals affirmed the trial court's judgment, holding that, based upon the bank's prior conduct, Witcher had a right to believe his requested extension would be granted or that the late payments would be accepted. Witcher was led to believe that his truck would not be repossessed without further contact with the bank, so that the bank was estopped from asserting its statutory and contractual right to demand payment in full. The Court of Civil Appeals affirmed the trial court's holding that the bank's repossession amounted to a conversion of Witcher's property.
In this case, there is evidence supporting Campbell's argument that he relied on the modified "interest only" arrangement. For example, Campbell released his Christmas and vacation funds to the credit union in order to satisfy the modified agreement allowing interest payments only. Campbell made these interest-only payments from July through December 1987. Thus, there was evidence from which the jury could find that Friendly Credit Union was therefore estopped from changing the terms of Campbell's payment, based upon his reliance on the credit union's past actions.
According to the modified agreement with the credit union, Campbell was not in default. Friendly Credit Union's repossession of his truck, when he was not in *1291 default, constituted conversion. Ala. Code 1975, § 7-9-504. Only the property of a defaulting party may be validly repossessed by a creditor. Jackson v. General Motors Acceptance Corp., 549 So. 2d 38 (Ala.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 549, 107 L. Ed. 2d 545 (1989).
The defendant argues that the trial court erred by not instructing the jury on the "unclean hands" doctrine. This defense is sometimes applied in an equitable proceeding to deny relief to a plaintiff who has himself acted improperly, i.e., with "unclean hands," in regard to the very transaction as to which he is seeking the aid of equity, the conscience of the court. See Draughon v. General Finance Credit Corp., 362 So. 2d 880, 884 (Ala.1978). Even if this were an equitable proceeding, it would be clear that the "unclean hands" defense would not be applicable, because there is no evidence that Campbell acted improperly with regard to the transaction at issue here.
Friendly Credit Union also argues that its motions for directed verdict and j.n.o.v. should have been granted by the trial court. The credit union argues that the evidence considered by the jury did not indicate that Campbell had suffered any injury and, therefore, that he was not entitled to a punitive damages award. Because the verdict did not specify how much of the $15,000 award, if any, was punitive, how much was actual, or how much was nominal, Friendly Credit Union argues that the verdict was improper.
If a jury infers from the evidence presented that the plaintiff suffered actual injury or loss, then the plaintiff is entitled to at least nominal damages. Wilson v. Draper, 406 So. 2d 429, 433 (Ala.Civ.App. 1981). Furthermore, we have stated, "Plaintiff's right to recover nominal damages supports the jury's award of punitive damages" when the defendant's actions are oppressive and malicious. Pihakis v. Cottrell, 286 Ala. 579, 243 So. 2d 685, 692 (1971). The evidence in this case supports an award of punitive damages.
There was evidence that Campbell suffered actual loss; therefore, the jury could have awarded nominal or actual damages, and because it could have awarded such damages, it could also have awarded punitive damages, if the circumstances of the defendant's actions would otherwise support such an award. Thomas v. C.J. Gayfer & Co., 504 So. 2d 267 (Ala.1987). The jury's verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of the motion for a new trial. Stokes v. Long-Lewis Ford, Inc., 549 So. 2d 51, 52 (Ala.1989); Merrell v. Joe Bullard Oldsmobile, Inc., 529 So. 2d 943, 946 (Ala.1988).
Therefore, Campbell's judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | April 19, 1991 |
e0faa110-ae53-47a3-9d7a-aab947760360 | Whisenant v. NATIONWIDE MUT. FIRE INSURANCE COMPANY | 577 So. 2d 909 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 909 (1991)
Katherine WHISENANT
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
89-1839.
Supreme Court of Alabama.
March 29, 1991.
*910 Carol J. Millican, Rainsville, for appellant.
Donna S. Pate of Lanier, Ford, Shaver & Payne, Huntsville, for appellee.
STEAGALL, Justice.
Katherine Whisenant and her husband, Herman Whisenant, sued their insurance carrier, Nationwide Mutual Fire Insurance Company (hereinafter "Nationwide"), based on the uninsured motorist provision of their automobile insurance policy, claiming damages arising out of two alleged automobile accidents. Mrs. Whisenant's claim was based on alleged personal injuries sustained in both accidents, and Mr. Whisenant's claim was based on an alleged loss of consortium resulting from his wife's injuries in both accidents and on personal injuries allegedly sustained in the second accident. The jury returned verdicts in favor of Nationwide on both claims arising out of the first accident; a verdict in favor of Nationwide on Mrs. Whisenant's claim arising out of the second accident; and a general verdict for $2,000 in favor of Mr. Whisenant on his claims arising out of the second accident. The trial court entered a judgment pursuant to the jury verdicts. Mrs. Whisenant filed a motion for new trial, which was denied. She appeals from that portion of the judgment entered for Nationwide on her claim arising out of the second accident.
Only Mrs. Whisenant was involved in the first accident, which occurred on December 13, 1986. Mr. and Mrs. Whisenant were both involved in the second accident, which occurred on March 20, 1988. Mr. Whisenant presented evidence of the personal injuries he sustained in the second accident. Mrs. Whisenant presented evidence of medical problems with her back and neck; however, there was conflicting evidence as to whether Mrs. Whisenant's medical problems resulted from either of the accidents.
The deposition of Mrs. Whisenant's chiropractor, Dr. Roger Lee Ingram, was read into evidence. In his deposition, Dr. Ingram stated that his initial treatment of Mrs. Whisenant began in November 1985. He testified as to Mrs. Whisenant's initial complaints:
*911 Dr. Ingram treated Mrs. Whisenant on other occasions prior to the accidents and after the accidents. He stated that some of Mrs. Whisenant's treatment after the accidents could have been related to some other problem that was not the result of the accident. Dr. Ingram also stated that the medical records kept by his office indicated that on September 10, 1986, someone from his office spoke with Mr. Whisenant during a routine follow-up on Mrs. Whisenant's condition. The records, which were admitted into evidence under the business records exception to the hearsay rule, indicate that Mr. Whisenant said that Mrs. Whisenant "is having some trouble and needs to be in, but [she] doesn't have time." Mrs. Whisenant argues that the trial court erred in allowing the statement made by Mr. Whisenant to be admitted into evidence.
A judgment will not be reversed on the ground of improper admission of evidence unless, after an examination of all of the evidence, it appears that the error complained of has injuriously affected substantial rights of a party. Rule 61, A.R. Civ.P.; Slay v. McKean Paint & Hardware Store, Inc., 55 Ala.App. 487, 317 So. 2d 326 (Ala.Civ.App.1975). Even if the trial court erred in admitting the evidence, it would have been harmless error because there was sufficient evidence to show that Mrs. Whisenant had had "some trouble" prior to the accidents and that Dr. Ingram had treated her prior to the accidents. The evidence would have been cumulative, at most, and merely supports a fact that was clearly shown by other evidence.
Mrs. Whisenant also argues that the verdict is against the great weight of the evidence.
A jury verdict is presumed to be correct, and this presumption is strengthened by the trial court's denial of a motion for new trial. Charter Hosp. of Mobile v. Weinberg, 558 So. 2d 909 (Ala.1990). A judgment based on a jury verdict will not be reversed unless it is plainly and palpably wrong. Bussey v. John Deere Co., 531 So. 2d 860 (Ala.1988).
Both Mr. and Mrs. Whisenant testified that Mrs. Whisenant had never had trouble with her back prior to the accidents. Sandra Rogers and Louise Mayfield, friends of Mrs. Whisenant, testified that, before the first accident, they never knew of any complaints Mrs. Whisenant had concerning her back. However, Dr. Ingram testified that he had treated Mrs. Whisenant for lower and "some" upper back pain in November 1985.
The record reveals that Mrs. Whisenant was treated by Dr. Michael Lyons, a medical doctor, on July 24, 1989. When Dr. Lyons asked Mrs. Whisenant if she had ever hurt her back before the two accidents, Mrs. Whisenant said no. Based on the information he was given about the accidents, Dr. Lyons related Mrs. Whisenant's problems to the two accidents. Dr. Lyons was unaware of the fact that Mrs. Whisenant had suffered three falls prior to the accidents and that she had been treated for neck soreness and back and shoulder pain prior to the accidents.
Based on the foregoing, we find that there was sufficient evidence to support the jury verdict. We conclude that the judgment was not plainly and palpably wrong. See Bussey, supra.
Finally, Mrs. Whisenant argues that the verdict for Nationwide on her claim regarding the second accident is inconsistent with the verdict in favor of Mr. Whisenant.
The jury returned a general verdict in favor of Mr. Whisenant on his claims arising out of the second accident, without specifying whether the verdict was on his claim based on personal injuries or was on his loss-of-consortium claim. A verdict for Mr. Whisenant on his loss-of-consortium claim would be inconsistent with the verdict for Nationwide on Mrs. Whisenant's personal injury claim; however, this Court has held that when more than one claim is submitted to a jury and the jury returns a general verdict without reference to a specific claim, the verdict will be referred to any of the claims that are supported by the evidence. Sparks v. Milligan, 295 Ala. 358, 330 So. 2d 417 (1976).
*912 The evidence supports Mr. Whisenant's claim based on personal injuries sustained in the second accident. The evidence also supports the verdict against Mrs. Whisenant's claim based on personal injuries; assuming the correctness of that verdict, we must conclude that the jury did not find for Mr. Whisenant on his loss-of-consortium claim. Accordingly, we hold that the verdict can be referred to Mr. Whisenant's claim based on personal injuries and, therefore, that the verdicts are not inconsistent.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur. | March 29, 1991 |
322e6f6a-3f11-4e5a-a547-8578ad32cbaf | Armstrong v. McGee | 579 So. 2d 1310 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1310 (1991)
Lillian T. ARMSTRONG, et al.
v.
Jason R. McGEE, Jr., and Claudia McGee Scott, individually and as co-executors of the Estate of Allen M. McGee, deceased.
89-1268.
Supreme Court of Alabama.
April 5, 1991.
*1311 Joana S. Ellis and W.H. Brittain II of Ball, Ball, Matthews & Novak, Montgomery, for appellants.
Sterling G. Culpepper, Jr. and Donald R. Jones, Jr. of Balch & Bingham, Montgomery, for appellees.
KENNEDY, Justice.
Lillian T. Armstrong, Mary T. Browning, Mildred T. Marsh, Lucille T. Magaha, and Theron Frank Taylor (all hereinafter referred to as the "Taylors") filed a contest of the August 1, 1985, will of Allen M. McGee. The Taylors contend that the disposition of Allen McGee's property in that will resulted from undue influence exercised upon Allen McGee by Jason R. McGee, Jr.
Allen was married to Clara Taylor McGee. They had no children, and all the disputed assets are the product of their joint earnings and investments. The Taylors are Clara's sisters and nephew. Jason McGee and Claudia McGee Scott (hereinafter called the "McGees"), who are named as defendants in the Taylors' action, are Allen's brother and sister. Clara died before Allen, leaving her marital assets to Allen in trust during Allen's life and upon his death to the Taylors and the McGees to be divided equally among all of them. Allen's August 1, 1985, will leaves all his estate to the McGees.
The trial court entered a summary judgment for the McGees. The standard used to determine the propriety of the grant of a motion for summary judgment is found in Rule 56(c), A.R.Civ.P.:
The burden placed on a party by this rule has often been stated:
Schoen v. Gulledge, 481 So. 2d 1094, 1096-97 (Ala.1985).
In determining whether there was 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).
*1312 To establish undue influence, the will contestant must prove (1) the existence of a confidential relationship between a favored beneficiary and the testator; (2) dominant influence of the beneficiary; and (3) active interference or undue activity by the beneficiary in procuring the execution of the will. Kelly v. Donaldson, 456 So. 2d 30 (Ala.1984); Price v. Norris, 428 So. 2d 609 (Ala.1983).
We first discuss the McGees' attempt to make a prima facie showing that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law, and we hold that they did make such a prima facie showing. We then discuss the Taylors' attempt to produce substantial evidence of their claims and the McGees' response.
The first element that the Taylors must prove to establish undue influence is the existence of a confidential relationship between the testator, Allen, and the allegedly favored beneficiary, Jason. Kelly, at 33; Price, at 610. The McGees acknowledge that Jason had a confidential relationship with his brother, but they contend that Jason is not a "favored beneficiary." In Windham v. Pope, 474 So. 2d 1075, 1077 (Ala.1985), this Court defined "favored beneficiary":
The McGees argue that Jason has not been favored over others with equal claims. The McGees contend that Jason took care of Allen after Clara's death and that the Taylors ignored Allen and never came to see him, so he naturally wanted to give everything to the McGees. Accordingly, the McGees argue, there is no "unnatural discrimination" and Jason is not a favored beneficiary.
The next element that the Taylors must prove to establish undue influence is Jason's domination or control over Allen. Kelly, at 33; Price, at 610. In 1973, Allen suffered a stroke that paralyzed most of his body, and after that he was mostly bedridden. Rosa Patton, one of Allen's nurses who stayed at his home, described Allen, despite his physical condition, as a "stubborn" man, and she said "if he did not want to do something, no one could make him do it." Will contestant Mary Browning testified that Allen, as of July 23, 1985, "very definitely" had "a mind of his own." Will contestant Mildred Marsh testified that at the time of Clara's death, July 21, 1985, Allen "had a mind of his own." Will contestant Frank Taylor testified that in August 1985 Allen "had a mind of his own." Clark Campbell, who along with Jim Davis drafted Allen's August 1, 1985, will, offered evidence suggesting that Jason did not dominate or control Allen.
The third element that the Taylors must prove to establish undue influence is that Jason was unduly active or actively interfered in procuring the will. Kelly, at 33; Price, at 610. Windham, at 1077, described the type of evidence necessary to prove undue activity or active interference:
Campbell testified that Jason was not present when Allen discussed his testamentary desires with Campbell or Davis; that Jason never instructed him or Davis concerning Allen's August 1, 1985, will; and that Jason was not present when that will was executed.
Considering the evidence the McGees presented in support of their summary judgment motion, we hold that they *1313 made a prima facie showing that there was no genuine issue of material fact and that they were entitled to a summary judgment as a matter of law. Schoen v. Gulledge, at 1096-97. Accordingly, the burden then shifted to the Taylors to present substantial evidence of their claim, so as to prove that there were genuine issues of material fact. Id.
To begin, the Taylors cite Crump v. Moss, 517 So. 2d 609, 612 (Ala.1987), holding that undue influence can be proved by circumstantial evidence as well as by direct evidence. We stated in that opinion:
517 So. 2d at 613, quoting Smith v. Moore, 278 Ala. 173, 177, 176 So. 2d 868, 871 (1965). Keeping in mind that statement, as well as the requirement that we review the evidence in the light most favorable to the Taylors, we now review the Taylors' arguments and evidence.
The Taylors contend that Jason must be found to be a favored beneficiary, given the circumstances of this particular case. Windham, at 1077. On May 23, 1985, Allen and Clara executed similar wills; those wills were drafted by David R. Byrne, Jr. Both wills named Robert E. Taylor, Clara's nephew, as executor, and each will devised the property to the surviving spouse in trust and after the death of the surviving spouse to the Taylors and the McGees, to be divided equally among all of them. Clara died of cancer two months later, on July 21, 1985. On August 1, 1985, Allen executed the contested will that excluded the Taylors and named the McGees as the executors and as the only beneficiaries. The Taylors argue that in Nottage v. Jones, 388 So. 2d 923, 927 (Ala. 1980), the Court held that evidence of a major conflict between the challenged will and a testator's prior will or plan to distribute his property can indicate an "unnatural disposition" of the property:
The Taylors argue that Windham, at 1077, indicates that whether a beneficiary is "favored" by a will can also be proved by evidence that the disposition was procured by an individual shown to "have been busy in getting such will executed."
Viewing the evidence in the best light for the Taylors, it indicates that two hours after Clara was buried, Jason went to David Byrne's office and asked to see Clara's will. Byrne was not there; Jason talked to another lawyer in Byrne's firm about the will, but was unsatisfied with that lawyer's explanation of the will. Jason made a copy of the will and took that copy to Campbell and Davis's office. They explained the will's provisions to him and advised him that if he was to conduct Allen's financial transactions he would need a power of attorney. Campbell's notes regarding the power of attorney consist of one-half page of handwriting; the other half of that page contains the notations "will Allen McGee," and "leave everything to brother Jason R. McGee, Jr., and sister Claudia McGee Scott, co-executors." Around July 26, 1985, Allen executed a power of attorney in favor of Jason.
Jason had Allen temporarily moved into Jason's house on July 28, 1985. Thereafter, Jason contacted Campbell and Davis about writing a new will for Allen, and they came to the house to discuss with Allen what he would want in a new will. Other than what we have already discussed, the evidence about the extent of Jason's contact with the attorneys and with Allen prior to the execution of the new will is too extensive to be summarized for the purposes of this opinion.
On August 1, 1985, Allen executed the will that is the subject of this dispute. *1314 Jason arranged for two of his neighbors to be witnesses. After the will was signed, Campbell made copies and gave Jason the original. Jason kept that original will in Jason's safe deposit box, to which only he had access.
Finally, regarding whether Jason is a favored beneficiary, the Taylors contend that Jason did not provide enough care for Allen to support a holding that as a matter of law Jason is not a favored beneficiary because he was the natural object of Allen's bounty as a result of having helped care for Allen. The evidence indicates that on July 28, 1985, one week after Clara died, Jason moved Allen, without objection by Allen, into Jason's home. Two months later, Jason returned Allen to Allen's home, where he was cared for by a nurse, who stayed with him 24 hours a day. Allen paid the nurse to stay with him, and she stayed in his house until she could no longer take care of him. Allen was occasionally hospitalized and he finally moved to a nursing home, for which he paid the bill, and he continued to reside at the nursing home until he died.
The McGees concede that a confidential relationship existed between Jason and Allen. The evidence indicates that between May 23, 1985, and August 1, 1985, Clara died and Jason temporarily moved Allen in with him. On August 1, 1985, Allen executed a will that made a major change in his prior testamentary disposition, and that change favored Jason. The evidence indicates that Jason was indeed "busy in getting [Allen's] will executed." Windham, at 1077. The evidence does not indicate that Jason helped his brother so much that the change in the testamentary disposition is proper as a matter of law.[1] Accordingly, we hold that the Taylors presented substantial evidence of the existence of a confidential relationship between a favored beneficiary, Jason, and the testator, Allen, Kelly, at 33; Price, at 610, and that as to this issue there exist genuine issues of material fact, suitable for jury determination.
The Taylors contend that they presented substantial evidence that Jason's influence on Allen was dominant. Kelly, at 33; Price, at 610. Jason testified that Allen was a "physical invalid" after his 1973 stroke and that physically Allen was "totally and completely helpless" at the time of Clara's death. It is undisputed that Allen was bedridden, unable to live alone, and needed full-time care. He could not bathe himself and had difficulty controlling his bowel and bladder functions. Allen had little or no use of one of his arms and one of his legs as a result of the stroke and had to sign his name with an "X." Claudia testified that Allen did not have glasses and therefore could not read. After Clara's death, Jason personally handled all financial transactions relating to Allen's assets and Allen relied on him to do so. Campbell agreed in his deposition that Jason was "very active" in helping his brother manage his affairs.
The Taylors cite Rabon v. Rabon, 360 So. 2d 971 (Ala.1978), for the proposition that evidence similar to that set out above can be used to indicate that an individual is dominant and controlling for the purposes of establishing undue influence. In Rabon, the court held that the following evidence would "tend to prove the favored beneficiary [was] dominant and controlling": "[T]he testator was 86 years old and in a rapidly deteriorating state of health. He was described as being feeble and childlike, could not drive, read, or even feed himself. In short, he was almost completely dependent upon his wife." 360 So. 2d at 972.
The Taylors further contend that Jason exercised domination and control over Allen by approaching Allen about his will within a week after Clara had died, during an extremely emotional time for Allen, who had just lost his wife of 39 years and who had just moved out of the house that he had lived in for 30 years. The Taylors contradict the McGees' evidence that Allen "had a mind of his own" with Jason's deposition testimony that he refused to allow *1315 Allen, immediately after Clara's death, to remain at Allen's home with G.L., who had been Allen's nurse for a year and a half:
Although some of the Taylors themselves testified that Allen "had a mind of his own," they challenge the McGees' assertions that Allen "had a mind of his own" with evidence that Jason was further concerned about undue influence on Allen, probably by the Taylors: They presented evidence that Jason had instructed Allen's housekeepers and nurses not to allow him to sign anything unless Jason was present.
Considering the record, we hold that the Taylors presented substantial evidence that Jason's influence was dominant, Kelly, at 33; Price, at 610; thus, as to this issue, there exist genuine issues of material fact, suitable for jury determination.
There is much conflicting evidence in the record concerning the third element that the Taylors must prove, that Jason actively interfered or was unduly active in procuring the will. For brevity's sake, we summarize the evidence as succinctly as possible. The Taylors again cite Jason's knowledge of and participation in the procurement of Allen's will and argue that evidence shows that he interfered and was unduly active in the procurement of the August 1, 1985, will. The Taylors argue that the timing of the execution of that will indicates active interference by Jason, because Jason learned shortly after Clara's death that Clara's will and Allen's will were similar and then helped Allen change his will less than a week later. The Taylors argue that by taking Allen out of his home, away from the nurse that Jason feared might unduly influence Allen, Jason created his own opportunity to influence Allen unduly.
The Taylors also argue that the evidence indicates that Allen acted in a manner similar to the improper manner in which the proponent of the trust in Crump v. Moss acted. In Crump, the Court held that the following facts sufficiently supported the jury's finding of undue activity or interference in the procurement of a trust:
517 So. 2d at 612.
The record indicates that when Jason decided to move Allen to his house, he told his sister and G.L., but no one else. Asked if he told any of Clara's relatives, Jason answered "No, of course not," that it was not important that they know where Allen was, and that it was not anyone else's business where Allen was. When Jason *1316 moved Allen back to Allen's home, Jason had the locks changed and had the telephone number unlisted. Additionally, Jason testified that he felt that the Taylors did not have a right to know the status of Allen's physical condition. The record indicates that Jason instructed the personnel at the Veterans Administration Hospital, where Allen was treated on occasions, not to give any information concerning Allen's condition to anyone except Jason, Jason's wife, Millie, and Claudia. The record also indicates that Millie instructed the personnel at the nursing home where Allen resided not to give any information about Allen to anyone except her, Jason, and Claudia.
The Taylors also point to a transaction involving Allen's house as evidence of Jason's allegedly improper activities. Allen owned his house in fee simple after Clara died. In September 1985, while Allen was still living at Jason's house, Allen executed a warranty deed to Jason that conveyed title to Allen's house to Jason and reserved only a life estate for Allen. Jason paid Allen $100 for the house, which he valued at $50,000 in his deposition. The Taylors argue that "this deed undoubtedly took from Allen for a mere pittance a valuable asset that could have provided needed security for costly long-term care." Additionally, the Taylors point out that in an October 21, 1985, answer filed on behalf of Allen McGee to a motion by the Taylors for an accounting and the appointment of a guardian ad litem (that motion involved separate litigation from the present case), the answer claimed that Allen McGee held fee simple title to the house, although one of Allen's lawyers of record in that separate litigation was a witness to the very deed that one month earlier had transferred title to Jason and reserved only a life estate in Allen.
The Taylors also presented evidence that Jason had an animosity toward them and evidence suggesting an improper dual representation of Allen and Jason by Campbell and Davis.
We hold that the Taylors presented substantial evidence that Jason actively interfered or was unduly active in the procurement of Allen's will. Kelly, at 33; Price, at 610. Thus, the Taylors presented substantial evidence of all the elements necessary to prove their claim. We note that the McGees offered evidence contradictory to most of the Taylors' evidence. Clearly, there exist genuine issues of material fact suitable for jury determination.
The trial court erred by entering the summary judgment. That judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] We do not necessarily mean to imply that evidence of "help" can by itself sufficiently support such a holding as a matter of law. | April 5, 1991 |
07455fe6-fac1-4ee8-a42a-3742eda61148 | Silva v. Hodge | 583 So. 2d 231 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 231 (1991)
Eloy SILVA
v.
Wilma HODGE and Ernest Hodge.
W. Vernon BROWN
v.
Wilma HODGE and Ernest Hodge.
UNITED STATES FIDELITY & GUARANTY COMPANY
v.
Wilma HODGE and Ernest Hodge.
89-1270, 89-1271 and 89-1272.
Supreme Court of Alabama.
April 19, 1991.
Rehearing Denied June 14, 1991.
*232 James H. Starnes and E. Martin Bloom of Starnes & Atchison, Birmingham, for appellants.
Roger Lucas of Lucas, Alvis & Kirby, Birmingham, for appellees.
ADAMS, Justice.
United States Fidelity and Guaranty Company (hereinafter "USF & G") appeals from a judgment entered on a jury verdict assessing damages of $500,000 for Wilma Hodge and $20,000 for Ernest Hodge. We affirm.
The facts relevant to this case are as follows:
USF & G was the workmen's compensation insurance carrier for Sunbelt Wood Components. Sunbelt Wood Components manufactures trusses, or roof supports. The process of converting the raw lumber into the trusses entailed bringing the lumber into the building by forklifts; the forklift operator would place the lumber onto carts to be rolled to the presses by the individual press operators. USF & G's policy to Sunbelt went into effect on July 1, 1984. USF & G's loss control inspector, Mr. Heath McMeans, made a "prospect inspection" of Sunbelt's plant on June 12, 1984. If Mr. McMeans identified any hazards during his inspection, they would be written up in a report. This report would contain recommendations with regard to any hazards or potential hazards discovered during the inspection and would be submitted to USF & G once the policy was written. Mr. McMeans's inspection lasted three to four hours and involved an inspection of the entire one-room plant. The report prepared by Mr. McMeans following his inspection did not identify the carts as a potential hazard and did not contain any recommendations as to the use of the carts.
On October 15, 1984, Wilma Hodge was injured when a cart holding a load of lumber broke apart and caused the lumber to fall on her. At the time, Mrs. Hodge was employed as a press operator at the Sunbelt plant and was working at her station when the cart broke apart behind her.
The carts used to transport the lumber were constructed of a rectangular steel framework with four uprights welded together. Some of the carts were apparently built in the plant by the maintenance man. Carts built when the plant first opened were still being used when this accident occurred. Newer carts had been built periodically as they were needed. The carts held a load consisting of 300 to 350 pieces of wood 14 feet long and weighing a total of 1200 to 1700 pounds.
Just before the accident that injured Mrs. Hodge occurred, uprights on the cart involved had been bent when a load of wood was placed on it by a forklift operator. A maintenance man had attempted to straighten the uprights by turning the cart on its side and banging the uprights with the forklift. Once this was done, the load of lumber was placed on the cart again. Shortly thereafter, as the cart was being rolled past Mrs. Hodge to one of the presses, it broke apart and dumped the load onto Mrs. Hodge.
Apparently, there had been previous problems with these carts. The uprights on the carts were often bent, the carts were hard to roll, and when the steel bands holding the wood were cut, wood would sometimes fly out. One worker had been injured when a piece of wood flew out of a cart and struck her on the head. The maintenance man responsible for repairing these carts had, on previous occasions, straightened the uprights and welded broken carts back together.
Mrs. Hodge sustained injuries to her pelvic area and lower back. Five years after this accident, Mrs. Hodge suffered a stroke that rendered her partially paralyzed and unable to speak. One of her treating physicians, *233 who testified at trial, linked the stroke to the load of wood falling on her.
On October 11, 1985, Wilma Hodge and her husband, Ernest Hodge, sued USF & G; James Green, a Sunbelt employee; Eloy Silva, the plant manager; and Vernon Brown, the general manager of Sunbelt, pursuant to Ala.Code 1975 § 25-5-11, alleging that Mrs. Hodge's injuries were caused by the negligent inspection of the Sunbelt plant by USF & G and the failure of her co-employees to provide her with a safe place to work. Mr. Hodge sued for loss of consortium resulting from his wife's injuries. A summary judgment was entered in favor of USF & G, and the Hodges appealed to this Court. This Court reversed the judgment and remanded the case for a new trial. Hodge v. United States Fidelity & Guaranty Co., 539 So. 2d 229 (Ala.1989). On remand, the case was mistried because of improper remarks made in the plaintiffs' opening statement. The next day the case proceeded to trial, and on February 9, 1990, the jury returned its verdict in favor of the Hodges. USF & G timely filed a motion for a new trial and alternative motions for a judgment notwithstanding the verdict and for remittitur, all of which were denied. The trial court entered a judgment on that verdict.
USF & G now appeals, asking this Court to reverse and remand for a new trial. The two co-employees, Silva and Brown, also appeal, adopting the briefs of USF & G. USF & G raises four issues for our review: (1) whether the trial court erroneously admitted testimony of Mrs. Hodge's treating physician relating the stroke she suffered to the accident at Sunbelt five years earlier; (2) whether USF & G can be held liable for negligent inspection where, it says, there was no proof that its inspector saw the injury-producing hazard; (3) whether the trial court erroneously required USF & G to strike a second jury from the venire that, it says, was tainted by statements made by the plaintiffs' counsel; and (4) whether the trial court erred in admitting a logbook kept pursuant to requirements of the Occupational Safety and Health Administration (known as the "OSHA 200 log") (USF & G argues that the evidence indicated this logbook was not in existence at the time of the USF & G inspection).
USF & G first argues that the trial court erred by admitting the testimony of Dr. Santos, one of Mrs. Hodge's treating physicians. Specifically, USF & G contends that Dr. Santos's testimony relating the stroke Mrs. Hodge suffered in 1989 to the accident at the Sunbelt plant in 1984 was inadmissible. We disagree.
Dr. Santos testified that because of Mrs. Hodge's inability to move and her inactivity as a result of the injuries she sustained in the accident at Sunbelt, the degenerative process leading to the stroke was hastened. When asked if he related the stroke to the accident, Dr. Santos testified in pertinent part:
USF & G contends that Dr. Santos's connection of the stroke to the prior accident is merely speculation and conjecture. However, in this case, while USF & G correctly points out that there were other possible causes of this stroke, Dr. Santos's testimony points to a specific theory of causation, the accident at Sunbelt. In Bradford v. McGee, 534 So. 2d 1076 (Ala.1988), this Court was faced with a similar situation where expert testimony indicated a causal connection while there existed other potential causes of the disease. In rejecting the defendant's argument that the testimony was merely conjecture on the part of the expert, this Court stated:
Id. at 1085. In the present case, the evidence regarding Mrs. Hodge's stroke, established through her treating physician, has selective application to a single theory of causation, that being the earlier accident at Sunbelt. The mere fact that there exist other plausible causes of the stroke does not make Dr. Santos's testimony inadmissible or speculative. Dr. Santos had been treating Mrs. Hodge for some time and he stated that he believed the accident hastened the degenerative process that ultimately caused the stroke. His testimony established sufficient evidence that the accident at Sunbelt caused the stroke and, therefore, that testimony was properly admitted into evidence for the jury to consider.
USF & G's second argument is that it cannot be held liable for negligent inspection, because, it says, the Hodges presented no proof that the USF & G inspector inspected the alleged hazard. USF & G maintains that an essential element of the tort of negligent inspectiona voluntary undertaking by the insurance company to inspect the injury-producing hazardwas not established by the plaintiffs. USF & G maintains that the injury-producing hazard was the straightening of the uprights of the carts with the forklift and that, because USF & G's inspector, Mr. McMeans, testified that he never saw this practice or specifically inspected the carts, there was no inspection of the injury-producing hazard and, therefore, that the plaintiffs' claims should not have been submitted to the jury. While USF & G's argument is well taken, we conclude that the record does, in fact, indicate that USF & G voluntarily undertook an inspection of the injury-producing hazard.
In order for a claim of negligent inspection to be submitted to a jury, a plaintiff must present substantial evidence of the following: (1) that the defendant had a duty, or assumed a duty, by voluntarily undertaking the inspection; (2) the scope of that duty; (3) that the duty was breached; (4) that there was damage or injury; and (5) that the injury was proximately caused by that breach. Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334, 349 (Ala.1980).
In our opinion, the injury-producing hazard was the cart itself, rather than the practice of banging the carts with the forklifts, as USF & G maintains. From a careful examination of the record, it is apparent that the plaintiffs did present sufficient evidence that USF & G's inspector, Mr. McMeans, inspected the injury-producing hazard. While Mr. McMeans testified that he did not specifically inspect the carts, he did carefully inspect the entire work area and remembered seeing the carts.
USF & G presents several cases in support of its argument that because no proof was offered showing that Mr. McMeans ever specifically inspected the carts, there can be no basis for a claim of negligent inspection. However, this case presents a different scenario. All of the cases cited by USF & G deal with situations where the inspector either conducted a general inspection, did not inspect the work area where the injured employee was working, or conducted the inspection while the plant was not in operation. See Clark v. Floyd, 514 So. 2d 1309 (Ala.1987); Adams v. Travelers Insurance Co., 494 So. 2d 401 (Ala.1986); Barnes v. Liberty Mutual Insurance Co., 472 So. 2d 1041 (Ala.1985). In the case at hand, Mr. McMeans conducted a very detailed and thorough inspection of the entire work area while the one-room plant was in operation. He observed the entire process of manufacturing trusses from the raw lumber. Although he testified that he did not inspect the carts, he said that he did remember seeing them in use throughout the work area. This evidence, established by the record, is, in our opinion, substantial evidence of a voluntary undertaking by USF & G to inspect the injury-producing hazard, and is sufficient for the plaintiffs' claims to be submitted to the jury.
Moreover, this Court has established that the plaintiffs presented sufficient evidence *235 to create a jury question as to whether USF & G had inspected the injury-producing hazard. In reversing the summary judgment entered in favor of USF & G in Hodge v. United States Fidelity & Guaranty Co., 539 So. 2d 229, 231 (Ala.1989), this Court stated:
Because we have found that the record in the case now before us establishes sufficient evidence of a voluntary undertaking by USF & G to inspect the injury-producing hazard, and because this Court in Hodge v. United States Fidelity & Guaranty Co., 539 So. 2d 229 (Ala.1989), in reversing a summary judgment, similarly found that there was evidence of an undertaking to inspect the hazard, we hold that the trial court did not err in regard to this contention.
USF & G next argues that the trial court committed error by requiring it to strike a jury from the venire that it alleges was tainted by statements made by opposing counsel the previous day that had resulted in a mistrial. The trial court declared a mistrial after the plaintiffs' counsel made improper remarks in the opening statement. The next day a new jury was selected from the same venire from which the previous jury had been selected. USF & G argues that those 13 jurors who had been on the previous jury tainted the entire venire when they were returned to the venire and that the trial judge abused his discretion in refusing to grant a continuance and requiring USF & G to select another jury from this allegedly tainted venire.
We do not believe that the trial judge abused his discretion in requiring the parties to select a new jury from the same venire. The trial judge made every effort to ensure that USF & G would not be prejudiced in any way by selecting a new jury from the same venire. The record reflects that the trial judge excluded jurors that USF & G expressed concern over. The trial court stated:
Furthermore, at the time of the mistrial, the trial judge instructed the jurors not to discuss the events of the trial when they returned to the venire. The trial judge was also very specific in instructing the plaintiffs' counsel not to go into the issue that had caused the mistrial on the previous day. The trial judge's actions indicate to us that he protected the interests of USF & G by ensuring that no prejudice would result from selecting another jury from the same venire, as well as the interests of the plaintiffs in seeing that the case was not delayed. We find no evidence of prejudice suffered by USF & G as a result of the trial judge's actions, nor any evidence that the trial judge abused his discretion in refusing to grant a continuance.
USF & G's final argument is that the judge erred in allowing into evidence Sunbelt's OSHA 200 log, because, it maintains, the evidence indicated that the log was prepared after the USF & G inspection. *236 USF & G argues that its inspector could not possibly have been made aware of prior safety problems cited by OSHA if the log was not in existence at the time of Mr. McMeans's inspection. Sunbelt was cited by OSHA in February 1984 for not keeping injury statistics. The evidence presented indicated that the log had been maintained prior to this citation because the log contained entries dating back to January 1984.
USF & G's argument seems to center on the fact that the entries in the OSHA log do not appear in chronological order and appear to have been photocopied backward. The trial court conducted its own examination of the witness through whom this log was offered into evidence. During this examination that witness testified that in his "best judgment" the log was in existence prior to the USF & G inspection. The trial judge also ordered that all entries prior to January 1984 be deleted before the log was admitted into evidence. Thus, the only part of the log given to the jury was the part containing those entries made from January 1984 until the accident that caused Mrs. Hodge's injuries. We believe that this testimony established sufficient evidence that the log book was in existence prior to USF & G's inspection and was properly admitted into evidence.
The judgment is affirmed as to all three appeals.
89-1270AFFIRMED.
89-1271AFFIRMED.
89-1272AFFIRMED.
HORNSBY, C.J., and KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs in the result. | April 19, 1991 |
7a7eb032-88a3-4362-9b9f-183f627c5159 | Haines v. Tonning | 579 So. 2d 1308 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1308 (1991)
A.B. HAINES and Marguerette D. Haines
v.
Wayland A. TONNING and Mildred T. Tonning.
89-741.
Supreme Court of Alabama.
April 5, 1991.
James Marks of Hewlett, Black & Marks, Tuscumbia, for appellants.
James D. Hughston, Tuscumbia, for appellees.
ADAMS, Justice.
A.B. and Marguerette Haines appeal from a judgment in favor of Wayland and Mildred Tonning based on an alleged misrepresentation regarding the state of title to a tract of land conveyed to the Tonnings by the Haineses. We reverse.
On April 12, 1974, A.B. and Marguerette D. Haines conveyed to W.G. Burleson by warranty deed a tract of land located on the western shore of the Bear Creek embayment of Pickwick Landing Lake in Colbert County. (This tract will be referred to as the "Burleson tract.") Mr. Burleson immediately recorded the deed. On July 28, 1975, A.B. and Marguerette D. Haines conveyed to Wayland A. and Mildred T. Tonning by warranty deed a tract of land adjacent to the Burleson tract. (This second tract will be referred to as the "Tonning tract.") In 1977, the Tonnings began *1309 building a house on their tract and drilled a well for a water supply.
In May 1987, a real estate broker who had been hired to sell the Burleson property visited the Burleson tract and discovered a 110-foot "overlap" in the deeds to Mr. Burleson and the Tonnings. Both deeds purported to pass the same strip of land at the point where the Burleson and Tonning tracts joined. The well drilled by Mr. Tonning was on the disputed strip of land. On June 29, 1987, Rosabel Burleson, successor to W.G. Burleson, conveyed the Burleson tract, including the disputed strip, by warranty deed to C.M. and Mary Whitaker.[1]
On April 5, 1988, the Tonnings sued Mr. and Mrs. Haines. The three-count complaint alleged that the defendants had (1) failed to clear the title to the property, (2) misrepresented that they possessed "good and marketable title" to the disputed strip, and (3) failed to disclose the fact of the prior conveyance. On October 20, 1988, the Tonnings amended their complaint to add C.M. and Mary Whitaker as parties-defendant. The amended complaint alleged that the Whitakers were in unlawful possession of the disputed strip as a result of their deed of June 29, 1987.
The Whitakers answered the amended complaint and defended the allegations on the ground that their title was superior to that of the Tonnings. On December 30, 1988, the Whitakers filed a counterclaim against the Tonnings, in which they claimed title by adverse possession. In addition, the Whitakers also filed a cross-claim against Mr. and Mrs. Haines, alleging (1) breach of the covenants of possession and quiet enjoyment, and (2) slander of title.
On February 21, 1989, the Tonnings restated Count I of their complaint expressly to allege breach of covenants of title and the covenant for possession and quiet enjoyment. On July 21, 1989, the Whitakers added Rosabel Burleson as an additional defendant and filed a cross-claim against her, seeking indemnity under the warranties of the deed of June 29, 1987, in case the Tonnings were successful in their claim of adverse possession.
Mr. and Mrs. Haines defended the various allegations on the grounds that the claims by the Tonnings were barred by the statute of limitations and that the overlap was the result of a mutual mistake by the parties. They also sought a reformation of the deed to the Tonnings.
The case was tried on all issues on October 12, 1989. On November 17, 1989, the Tonnings and the Whitakers signed a settlement agreement in which the Tonnings agreed to quitclaim their interest in the disputed property to the Whitakers in return for an easement for the use and operation of the well that the Tonnings had drilled on the disputed property. Under the agreement, the Tonnings were entitled to all damages awarded by the court against Mr. and Mrs. Haines. The two parties also agreed to dismiss their mutual claims and counterclaims.
On November 21, 1989, the Honorable Inge Johnson, Colbert County Circuit Court Judge, dismissed the claims of the Whitakers and the Tonnings against each other, pursuant to the settlement agreement. In addition, Judge Johnson entered an interlocutory order expressly finding that the Tonnings were "entitled to recover damages [in the amount of $15,000] from the Defendants, A.B. Haines and wife, Marguerette Haines under Count II of their complaint as amended." (Emphasis added.) The judge then certified her ruling on the Tonnings' claim for misrepresentation as a final judgment, pursuant to Ala.R.Civ.P. 54(b). On appeal, Mr. and Mrs. Haines reassert their contention that the misrepresentation claim, as stated in Count II of the amended complaint, is barred by the statute of limitations. We agree.
An action based on misrepresentation must be commenced within two years of the date of the plaintiff's actual or constructive notice of the misrepresentation. Ala.Code 1975, §§ 6-2-3, 6-2-38(l); Allen Group Leasing Corp. v. McGugin, 537 So. 2d 22 (Ala.1988). Thus, the period *1310 prescribed by the statute for filing a claim begins to run when the plaintiff, in the exercise of ordinary care, should have discovered the misrepresentation. Geans v. McCaig, 512 So. 2d 1308 (Ala.1987); Seybold v. Magnolia Land Co., 376 So. 2d 1083 (Ala.1979).
Under Ala.Code 1975, § 35-4-90, the proper recordation of an instrument constitutes "conclusive notice to all the world of everything that appears from the face" of the instrument. Christopher v. Skockley, 199 Ala. 681, 682, 75 So. 158, 158 (1917). Thus, purchasers of real estate are "presumed to have examined the title records and knowledge of the contents of those records is imputed [to them]." Walker v. Wilson, 469 So. 2d 580, 582 (Ala. 1985) (quoting J.H. Morris, Inc. v. Indian Hill, Inc., 282 Ala. 443, 212 So. 2d 831 (1968)).
As the Tonnings concede, the fact that Mr. and Mrs. Haines did not possess marketable title to the disputed tract at the time of the purported conveyance to the Tonnings was apparent on the face of the duly recorded deed from the Haineses to W.G. Burleson. The recordation of that deed provided constructive notice to the Tonnings regarding the alleged misrepresentation. Therefore, the period prescribed by the statute during which to file a claim alleging misrepresentation began no later than the execution of the deed from the Haineses to the Tonnings in 1975, and it ended in 1977 11 years before the initiation of this action.
Because only the misrepresentation claim is presented for review, we restrict our opinion to that issue and do not address any questions regarding the plaintiffs' other claims. For the foregoing reasons, the judgment is reversed and the case is remanded to the trial court for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur.
[1] The extent of the Whitakers' knowledge of the title defect was disputed at trial. | April 5, 1991 |
685b5c8e-3339-4923-a796-5eb9531658b3 | Davis v. State Farm Mut. Auto. Ins. Co. | 583 So. 2d 225 | 1900058 | Alabama | Alabama Supreme Court | 583 So. 2d 225 (1991)
Melvis C. DAVIS, Sr., and Melvis C. Davis, Jr.
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
1900058.
Supreme Court of Alabama.
April 11, 1991.
Rehearing Denied June 7, 1991.
*226 Patrick M. Lavette of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
Edgar M. Elliott III, LaBella S. Alvis and Rhonda K. Pitts of Rives & Peterson, Birmingham, for appellee.
HOUSTON, Justice.
State Farm Mutual Automobile Insurance Company ("State Farm") filed a complaint for a declaratory judgment against Melvis C. Davis, Sr. ("the father"), and his son, Melvis C. Davis, Jr. ("Chuck"). State Farm sought a judgment declaring that Chuck was not an insured under the father's policies of insurance with State Farm. Chuck and his father counterclaimed, alleging breach of contract, asserting that State Farm had failed to pay certain uninsured motorist benefits and medical payments benefits pursuant to the terms of the policies. Thereafter, State Farm filed a motion to sever the counterclaim, which the trial court granted. Subsequently, the trial court entered a judgment in favor of State Farm, holding that Chuck was not insured under the policies of insurance issued by State Farm to his father, because Chuck "did not maintain his residence [with his father]." Chuck and his father appeal. We reverse and remand.
Chuck's father was the named insured on three policies of insurance with State Farm that covered vehicles owned by him, with each of these policies providing for uninsured motorist coverage. On November 30, 1986, Chuck received severe injuries as the result of an automobile accident with an uninsured driver. At the time of the accident, Chuck was 28 years old and divorced. All of the policies issued to Chuck's father provided coverage for relatives of the named insured under the uninsured motorist coverage, as follows:
(Emphasis added.) In the definition section of each policy designated "DEFINED WORDS WHICH ARE USED IN SEVERAL PARTS OF THE POLICY," the term "relative" is defined as "a person related to you or your spouse by blood, marriage or adoption who lives with you. It includes *227 your unmarried and unemancipated child away at school."
We must determine whether the trial court properly determined that Chuck did not "live with" his father at the time of the accident, within the meaning of the policy provisions.[1] We note that the trial court's order specifically reads, in pertinent part, as follows:
In Crossett v. St. Louis Fire & Marine Insurance Co., 289 Ala. 598, 269 So. 2d 869 (1972), the Court held that the word "reside" was ambiguous. Thus, according to State Farm, in an attempt to avoid using a "flexible, elastic, or slippery" term to designate those who are insured under the policy, it substituted the words "live with" for "resident of." By substituting the phrase "living with you" (which State Farm contends is susceptible of only one interpretationactually living in factand is therefore not ambiguous), State Farm contends that it modified the language in its policies in order to address the ambiguity analysis in Crossett v. St. Louis Fire & Marine Insurance Co., supra, and in order to restrict coverage.
Therefore, although the trial court made its determination based on a finding as to where Chuck "maintain[ed] his residence," the issue for our review is not "where [Chuck] maintained his residence," but whether Chuck was "living with" his father at the time of the accident so as to be covered under his father's policies of insurance for uninsured motorist coverage.
Chuck and his father contend that just as the word "resides" was found to be ambiguous, the phrase "lives with" is also ambiguous. They also contend that a person can live in more than one place and that the evidence establishes that Chuck lived with his father at the time of the accident for purposes of uninsured motorist coverage; they, thus, argue that the phrase "lives with" is ambiguous and that the ambiguity should be resolved in favor of the father as the insured.
According to Chuck and his father, the facts are as follows:
In 1978, Chuck married Ravena Davis ("Ravena") and, with his parents' help, leased an apartment at 1309 21st Street North in Birmingham, Alabama, where he and Ravena lived until they divorced in July 1980. Ravena, who had custody of their children, moved out of the apartment and moved into her grandmother's apartment, taking most of the furniture with her. Sometime thereafter, Ravena returned and took the remaining furniture. There was no bedroom furniture in the apartment, but there was a couch, a dinette set, and a television. With virtually no furniture in the apartment, specifically no bedroom furniture, Chuck began spending nights at his parents' house, which was located at 3102 27th Court North in Birmingham. At the time of his divorce, Chuck was working at Stockham Valves & Fittings in Birmingham. However, in 1984 (four years after his divorce from Ravena), Chuck suffered an on-the-job injury for which he received workmen's compensation benefits but which prevented him from working for approximately one year. Thus, after his on-the-job injury, Chuck began to spend more time at his parents' house, where he had his own bedroom; where he ate his meals; where he kept all of his clothing, toiletries, and personal possessions; where he kept his automobile; and where his friends visited and telephoned *228 him before they would try anywhere else. The apartment remained in Chuck and Ravena's names; and although Chuck did not spend his nights at the apartment or keep food, clothes, or personal possessions there, he and his friends began to use it as a "hangout." Chuck also continued to receive mail at the apartment and continued to use the apartment address on various documents, e.g., tax forms, job applications, and his driver's license. In late 1985, Chuck began working part-time, earning approximately $100 per week. However, because he was still unable to be independent, Chuck continued to stay with his parents; but because his parents also were willing to maintain the apartment, he continued to use it as a "hangout."
State Farm contends that the overwhelming weight of the evidence reveals that Chuck was "living" at his apartment at the time of the accident and that, at best, Chuck was a frequent and welcome visitor at his parents' house. According to State Farm, the "demonstrative" evidence reveals that Chuck kept furniture at the apartment; spent nights at the apartment; occasionally kept his children at the apartment, where they would spend the night; listed his apartment address for his driver's license, for a traffic ticket, and for hospital emergency room records after his accident; and claimed himself for income tax purposes until after the accident. According to State Farm, in addition to this "demonstrative" evidence, the "credible" evidence reveals that Chuck's neighbor in the apartment complex observed Chuck on a regular basis at the apartment; that Ravena would call the apartment first when trying to locate Chuck; and that some mornings before work, as early as 7:30 a.m., Ravena would bring the children to the apartment, at which time Chuck would be present.
It is apparent from the brief recitation of the facts above, from the perspective of both Chuck and his father and from the perspective of State Farm, that there is no substantial conflict in the evidence and that any conflict that exists is immaterial. Therefore, we must determine whether the trial court correctly applied the law to the facts.
It is well settled that insurance contracts are to be construed liberally with regard to coverage and that any doubt in coverage should be resolved in favor of the insured:
(Citations omitted.) Crossett v. St. Louis Fire & Marine Insurance Co., 289 Ala. 598 at 603-04, 269 So. 2d 869 at 873 (1972), quoting State Farm Mutual Automobile Ins. Co. v. Hanna, 277 Ala. 32, 37, 166 So. 2d 872, 876 (1964) (emphasis added in Crossett); see Bayles v. Southern Guaranty Insurance Co., 484 So. 2d 1065 (Ala. 1986).
In Crossett v. St. Louis Fire & Marine Insurance Co., supra, the Court examined the meaning of the words "resident" and "residence" within the context of an insurance policy and, having found the term "resides" to be ambiguous, construed the insurance policy so as to provide coverage:
(Citations omitted.) (Emphasis in last paragraph added; other emphasis original.) 289 Ala. at 602-03, 269 So. 2d at 873, quoting State Farm Mutual Automobile Ins. Co. v. Hanna, 277 Ala. at 37, 166 So. 2d at 876; see Bayles v. Southern Guaranty Insurance Co., supra.
In the Crossett case, the Court denotes "residence" as being synonymous with where one "actually lives" and defines "resident" as a family member who "lives under the same roof." In addition, the Court in Crossett, determined that one as a matter of fact may have more than one residence (his actual dwelling place or where he actually lives). See, also, Bayles v. Southern Guaranty Insurance Co., supra.
This Court has not previously examined the precise contract language presented in the policies at issuethe term "living with." In fact, both Chuck and his father and State Farm acknowledge that there are no Alabama cases that have interpreted the language "living with." However, in support of its position, State Farm cites us to a number of cases from other jurisdictions in which such language has been considered: State Farm Mutual Automobile Insurance Co. v. Novak, 167 Ariz. 363, 807 P.2d 531 (Ct.App.1990); Coley v. State Farm Mutual Automobile Insurance Co., 178 Ill.App.3d 1077, 128 Ill.Dec. 200, 534 N.E.2d 220 (1989); McDonough v. State Farm Mutual Automobile Insurance Co., 755 S.W.2d 57 (Tenn.App.1988); Stoner v. State Farm Mutual Automobile Insurance Co., 780 F.2d 1414 (8th Cir.1986). In support of their position, Chuck and his father attempt to distinguish those cases cited by State Farm and cite us to Fisher v. Novak, Superior Court of Delaware (June 11, 1990, Case No. 88C-MY-21), 1990 WL 82159.
After thoroughly reviewing the above-cited cases, we find the cases cited by State Farm to be distinguishable from the instant case;[2] and although we find none of those cases to be directly on point, we find the legal reasoning of the Delaware Superior *230 Court in Fisher v. Novak, supra, to be sound and persuasive:
(Emphasis added.)
In addition to our exhaustive research into the law of other jurisdictions for their interpretations of the term "live with" as it relates to insurance coverage, we independently researched the definition of the word "live" to determine if it had a technical meaning and/or a fixed meaning applicable to all cases. We found neither. Black's Law Dictionary 934 (6th ed. 1990) states that "[t]o live in a place, is to reside there, to abide there, to occupy as one's home"; it defines "living" as "to abide, to dwell, to reside," id. at 935; and it defines "reside" as "[l]ive, dwell, abide, sojourn, stay, remain, lodge." Id. at 1309. The American Heritage Dictionary of the English Language 1106 (1969) defines "reside" as "[t]o live in a place for an extended or permanent period of time; [t]o be inherently present; exist," and it defines "live" as "[t]o reside." Id. at 763. In Roget's International Thesaurus 187.8 (3d ed. 1962), the words "reside," "live," and "dwell" are listed as synonyms.
Thus, not only is the word "live" susceptible of more than one meaning, but it is also synonymous with the word "reside," a term found to be ambiguous in Crossett v. St. Louis Fire & Marine Insurance Co., supra. Therefore, we hold that the term "live with," as used in the policy in question, is an "ambiguous, elastic, or relative term, and includes a very temporary, as well as a permanent, abode." Therefore, we must follow the rule governing provisions in insurance contracts that are susceptible of plural constructions; that is, we must construe the policy in question in favor of the insured, the father. Although we cannot hold the trial court clearly erroneous in finding that Chuck "lived" at the apartment, there was no evidence from which the trial court could reasonably infer that Chuck did not also "live with" his father at the time of the accident for purposes of uninsured motorist coverage.
Based on the foregoing, we hold that the trial court erroneously applied the law to the facts of the instant case. Therefore, we reverse and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
[1] We note, at this point, that there are no allegations of misrepresentation as to who is or is not a resident of the father's household. See Bayles v. Southern Guaranty Insurance Co., 484 So. 2d 1065 (Ala.1986).
[2] In State Farm Mutual Automobile Insurance Co. v. Novak, supra, the holding was based on the court's determination that the policy language at issuewhether the person "lives with" the named insuredwas equivalent to policy language reading "resident of the same household," a phrase found to be unambiguous in Mid-Century Ins. Co. v. Duzykowski, 131 Ariz. 428, 641 P.2d 1272 (1982).
In McDonough v. State Farm Mutual Automobile Insurance Co., supra, the court found "lives with" to be commonly used as a synonym for "reside," which it held was not ambiguous, and focused on whether the deceased's presence in his parents' house qualified him as a resident.
In Coley v. State Farm Mutual Automobile Insurance Co., supra, the court defined the term "lives with," which it had determined to be unambiguous, as "`to dwell, i.e., to remain for a time, to live as a resident,'" and to "`cohabit, i.e., to live together.'" (Citation omitted.) The court then held that, under the facts of that case, the decedent did not live with his grandfather at the time of his death within the meaning of the policy.
In Stoner v. State Farm Mutual Automobile Insurance Co., supra, the court dismissed the plaintiff's argument that "lives with" was ambiguous, holding that "the phrase `lives with you' was susceptible of only one interpretation," but equated the words "residence" and "domicile," calling them synonyms. | April 11, 1991 |
bdff73ec-683e-4f3c-b40e-a66e4afe7af4 | HUNTSVILLE AVIATION CORPORATION v. Ford | 577 So. 2d 1281 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 1281 (1991)
HUNTSVILLE AVIATION CORPORATION
v.
Thomas S. FORD and Madison Investment Company, Inc.
89-898.
Supreme Court of Alabama.
March 29, 1991.
Randy Myers and Richard Jordan, Montgomery, for appellant.
*1282 Gary C. Huckaby, Stuart M. Maples and J. Jay Cheatwood of Bradley, Arant, Rose & White, Huntsville, for appellees.
ALMON, Justice.
Huntsville Aviation Corporation appeals from a summary judgment against it on its claims against two defendants, Thomas S. Ford and Madison Investment Company, Inc., for damages based on an alleged breach of a lease or for the value of the defendants' use and occupation of its premises. Its claims against a third defendant, Aviation Services, Inc., remained pending when this appeal was taken.[1] Ford is the majority stockholder of Madison Investment and the sole stockholder of Aviation Services. The principal question is whether Huntsville Aviation should be held to have dealt solely with Aviation Services and so to have recourse solely against that corporation, or whether, under the evidence submitted, Aviation Service's separate corporate existence might be disregarded and Huntsville Aviation allowed to recover against Ford and Madison Investment. The complaint also included claims alleging that Huntsville Aviation was a third-party beneficiary to a contract between Madison Investment and the Huntsville-Madison County Airport Authority ("the Airport Authority") and that it was a victim of fraud committed by Ford, and Huntsville Aviation also appeals from the judgment against it on those claims.
Huntsville Aviation is a fixed-base operator[2] at the Huntsville-Madison County Airport and rents a hangar and other space from the Airport Authority. Aviation Services was incorporated on January 17, 1984. Beginning about that time, Ford did business with Huntsville Aviation concerning a Cessna 182 airplane, primarily purchases of fuel and repairs. Ford asserted in deposition that those purchases were made through Aviation Services, which owned the airplane, but William Whatley, the vice president and general manager of Huntsville Aviation, stated in deposition that "We had a separate account set up for him for Madison Investment Company that we billed his fuel and maintenance on his airplane to that account."
The present controversy had its origins in 1986, when Ford proposed starting an avionics shop at the Huntsville-Madison County Airport. After initial negotiations to lease a hangar directly from the Airport Authority were unsuccessful, Ford began discussing with the officers of Huntsville Aviation the possibility of subleasing space in Huntsville Aviation's hangar. On March 24, 1986, Ford and Gary Fuller, who was to be the primary avionics technician at the proposed shop, sent Whatley a letter on stationery with a typed "Aviation Services, Inc.," letterhead. The letter included the following:
"Dear Bill:
"Rental Rate: $500.00 per month.
(Emphasis added.) The attached financial statement showed the net worth of Ford and his wife to be $1,716,757, including ownership of 1000 shares of Madison Investment valued at $994,676.
Without a written lease other than as exhibited by the above-quoted letter, Aviation Services began subleasing from Huntsville Aviation office space for the avionics shop and hangar space for its airplane. The rent of $500 per month for the office space and $750 per month for the hangar space was paid regularly.
Negotiations continued among the officers of Huntsville Aviation, officers of the Airport Authority, and Ford and Fuller about the proposed addition to Huntsville Aviation's building for the avionics shop. On June 24, 1987, Richard Tucker, acting executive director of the Airport Authority, sent a letter to Ford in his capacity as president of Madison Investment:
(Emphasis added.) At the end of the letter, under the word "ACCEPTANCE," was a blank space for Ford's signature as president of Madison Investment. He signed and dated the letter on June 29, 1987, and the Airport Authority received the accepted copy on June 30.
On September 8, 1987, Huntsville Aviation[3] and the Airport Authority executed the following addendum to their lease:
(Emphasis in original.)
Construction commenced on the avionics shop addition and was completed in time for the avionics shop to move in by January 1988. Under the formula, accepted by Ford as president of Madison Investment, for establishing the amount of rent according to actual cost of the building, Huntsville Aviation's lease addendum was amended to increase the additional rent to $1,334.60, effective January 1, 1988.
On April 11, 1988, Ford, as president of Aviation Services, wrote the Airport Authority, requesting it to "consider rescheduling the lease payments" because Aviation Services was operating at a loss and needed time to establish its business. The financial statement attached to that letter contained the following:
The Airport Authority responded by saying that its lease was with Huntsville Aviation and that Ford would have to request relief from Huntsville Aviation.
About June 1988, Aviation Services began falling behind in its payments to Huntsville Aviation. Whatley stated in his deposition that, at that time, Ford repeatedly reassured him that he would pay the rent. For example, the deposition includes the following excerpt:
Goodwin confirmed, saying "I can remember at least twice Mr. Ford assuring Mr. Whatley that the rent would be paid, that he would guarantee him that the rent would be paid."
In September 1988, Ford met with Robert P. Hudgens, the president of Huntsville Aviation; William T. Hudgens, the secretary of Huntsville Aviation; and Goodwin. Goodwin stated in deposition that Ford "again assured the Hudgenses, much in the same way that he had assured Mr. Whatley in the two previous meetings in his offices, that, you know, he was committed to this thing and that he was going to pay the bills." Robert Hudgens stated that "the thing that I remember most is that Tom said he was going to see that we got paid." William Hudgens's deposition included the following:
William Hudgens was shown a copy of the March 24, 1986, letter quoted at the beginning of this opinion and was asked if it was the letter he recalled. He answered that it was, and his deposition continued:
In reference to Huntsville Aviation's execution of the addendum to its lease, William Hudgens stated:
Huntsville Aviation filed this action on February 7, 1989, originally stating only two causes of action, one for breach of the agreement "to pay rent on the newly constructed addition for the term of Plaintiff's lease, including all renewal terms, or ten years, whichever is less," and the other as third-party beneficiary of the letter agreement between Madison Investment and the Airport Authority.
Ford's deposition was taken on April 24, 1989, and he denied having made any statements indicating that he would personally guarantee payment for the addition or that he was "good for the payment of that rent." Thereafter, on May 17, 1989, Huntsville Aviation amended its complaint, adding a count seeking the value of the defendants' use and occupation of the premises since they stopped paying rent in June 1988, and a count alleging fraud, as follows:
On June 23, 1989, Huntsville Aviation filed an unlawful detainer action and, pursuant thereto, Aviation Services was evicted from the premises. Discovery continued in this action, and the trial court later entered the summary judgment at issue.
Summary judgment should be entered only if the materials submitted in *1287 support of, and those in opposition to, the motion for summary judgment "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala.R.Civ.P.
In order to determine whether Huntsville Aviation's claims based on breach of the lease and on unlawful use and occupation of the premises will lie against Ford or Madison Investment, we turn to the law with respect to the disregarding of separate corporate existence.
Ordinarily, a corporation's separate existence will be recognized so that liability for the corporation's debts will be limited to the corporate assets. Co-Ex Plastics, Inc. v. AlaPak, Inc., 536 So. 2d 37 (Ala. 1988); Cohen v. Williams, 294 Ala. 417, 318 So. 2d 279 (1975). On the other hand, "the legal fiction of separate corporate entity should not be so extended `as to enable the corporation to become a vehicle to evade just responsibility.'" Kwik Set Components, Inc. v. Davidson Industries, Inc., 411 So. 2d 134, 136 (Ala.1982), quoting Forest Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23, 27, 29 So. 2d 298, 300 (1947).
Barrett v. Odom, May & DeBuys, 453 So. 2d 729, 732 (Ala.1984), citing Woods v. Commercial Contractors, Inc., 384 So. 2d 1076 (Ala.1980), and Cohen v. Williams, supra.
The evidence set out above shows that a fact question was presented on the question of whether Ford so conducted the business of Aviation Services as to be the alter ego of the corporation. The statement in the March 24, 1986, letter that "I will provide the financial backing for the project personally or through other partners" might suffice on its own to make Ford personally liable for the payments necessary to amortize the cost of the building addition.[4] It is especially significant in light of the deposition testimony of William Hudgens that the letter conveyed to him a distinction between "rent," such as for Huntsville Aviation's existing hangar space or the office space to be used until the addition was completed, and "the project," which he took (and which reasonably could be taken) to mean the addition to the building.
In addition to that letter, the evidence indicated that Ford acted as the alter ego of Aviation Services and used his corporations interchangeably. Setting aside for the moment the question of fraud, we note that the deposition testimony of the Huntsville Aviation employees that Ford repeatedly assured them that he would be responsible for the debts of Aviation Services presents a jury question on the "breach of lease" and "use and occupation" claims as against Ford. Ford raised a defense of the Statute of Frauds, Ala.Code 1975, § 8-9-2, asserting that the alleged promise was a promise to pay the debt of another. That defense can be answered by two points: one, the March 24, 1986, letter did provide written evidence of the promise, and two, if the jury were to accept the evidence that Aviation Services was merely Ford's alter ego, the promise would be to pay his own debt, not that of another.
On November 10, 1988, after the meeting described above, Ford wrote a letter on Madison Investment stationery to Robert Hudgens, stating that he was considering whether to put more money into Aviation Services or to close the shop, and he signed the letter simply as "president." This is susceptible to the interpretation that Ford was holding himself out as transacting the *1288 business at hand with Huntsville Aviation in his capacity as president of Madison Investment.
There was also evidence that, in obtaining credit from suppliers of equipment for the avionics shop, Ford used Madison Investment's credit to secure the goods and referred to Aviation Services as a "captive leasing company of Madison Investment." Gary Fuller executed the following affidavit:
The exhibit "A" mentioned in the affidavit was a letter to a supplier requesting credit for Aviation Services based on Madison Investment's financial statement and credit rating.
For the foregoing reasons, Huntsville Aviation's claims against Ford and Madison Investment based on breach of the lease and seeking the value of the use and occupation of the premises should have withstood the summary judgment motions.
Huntsville Aviation should also be allowed to proceed with its claim against Madison Investment as a third-party beneficiary to the agreement between Madison Investment and the Airport Authority.
Mutual Benefit Health & Acc. Ass'n of Omaha v. Bullard, 270 Ala. 558, 563, 120 So. 2d 714, 719 (1960).
Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So. 2d 99, 101-02 (Ala.1987) (citations omitted); Collins Co. v. City of Decatur, 533 So. 2d 1127 (Ala. 1988).
Madison Investment contends that its contract was not made for the benefit of Huntsville Aviation. However, Huntsville Aviation's increased liability in its lease addendum was based on Madison Investment's contract with the Airport Authority. Later, the amendment to the addendum further increased the rent based expressly on Madison Investment's agreement that the amortization rent would increase proportionally to increases in the cost of the building. Although the contract between Madison Investment and the Airport Authority did not expressly refer to Huntsville Aviation's increased rent obligation, that agreement did lead directly to Huntsville Aviation's becoming obligated to pay for a building that it did not propose to use and for which Madison Investment had contracted. The heading of the agreement stated that it regarded "Fixed Base Facilities Improvements/Avionics Shop Addition." A jury could find, therefore, that it was within the contemplation of the parties that Huntsville Aviation would have primary responsibility for improvements to its facilities and that, by agreeing to make payments "through" Huntsville Aviation, Madison Investment was conferring a direct benefit on Huntsville Aviation. Madison Investment's promise to make the payments "through Huntsville Aviation" could clearly be found to have been made for Huntsville Aviation's benefit, that is, to relieve it of the obligation that it was undertaking for Madison Investment's sake. Thus, the trial court erred in entering summary judgment on this claim.
*1289 Finally, Huntsville Aviation argues that the trial court erred in entering summary judgment for Ford on the fraud claim. The alleged fraud involved a promise to perform an act in the future. Therefore, it involved, in addition to the usual elements of reliance on a fraudulent misrepresentation to the plaintiff's detriment, the elements that the promise was made with an intent not to perform the act promised and with an intent to deceive the plaintiff. Porter v. Hook, 554 So. 2d 382 (Ala. 1989). The allegation is that Ford assured Huntsville Aviation's officers in the fall of 1988 that he would pay "what he owed." Huntsville Aviation alleges that Ford thereby promised to be personally liable for the amortization payments on the building addition, that he had no intention of making any such payments out of his personal funds, and that he thereby intended to deceive Huntsville Aviation into allowing the avionics shop to remain on the premises.
The materials submitted would support a finding that Ford intentionally implied that he personally would pay the amount owed on the building, or that he would continue to put money into Aviation Services, or that funds in Madison Investment would be used to support the avionics shop. A jury could also find that, while making such promises, Ford intended to make payments only out of funds already at Aviation Services' disposal or funds generated by the business. Thus, a fact question was presented as to whether Ford intended not to perform the promised acts, but rather to deceive Huntsville Aviation into believing that continuance of the avionics shop would be backed by his personal net worth or by the net worth of Madison Investment. Thus, the trial court erred in entering summary judgment on the fraud claim.
For the foregoing reasons, the judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, KENNEDY and INGRAM, JJ., concur.
[1] Pursuant to Rule 54(b), Ala.R.Civ.P., the trial court made the summary judgment for Ford and Madison Investment final.
[2] A fixed-base operator is "an individual or firm operating at an airport and providing general aircraft services such as maintenance, storage, ground and flight instructions, etc." Aviation/Space Dictionary, E.J. Gentle, ed. (6th ed. 1980). See Epps Aircraft, Inc. v. Montgomery Airport Authority, 570 So. 2d 625 (Ala.1990).
[3] As can be seen, the addendum was actually executed by Montgomery Aviation Corporation, which owns all the stock of Huntsville Aviation. Huntsville Aviation was incorporated after Montgomery Aviation entered into the lease. In 1981, Huntsville Aviation was given all rights held by Montgomery Aviation under the lease, although Montgomery Aviation was still bound by its obligations thereunder. Therefore, for simplicity, we shall refer to Huntsville Aviation as the lessee under the addendum.
[4] Of course, Ford contends that he intended to provide financial backing only in the capitalization of Aviation Services and the purchase of the equipment mentioned in the letter. The letter is not necessarily subject to that interpretation, however, so Ford's contentions do not support the summary judgment. | March 29, 1991 |
dc6ec8d7-5ce4-458e-8cdd-daa8008cd653 | Ladd v. State | 577 So. 2d 927 | 1900548 | Alabama | Alabama Supreme Court | 577 So. 2d 927 (1991)
Ex parte State of Alabama.
(Re Robert Eric LADD v. STATE).
1900548.
Supreme Court of Alabama.
March 22, 1991.
Martha Gail Ingram, Asst. Atty. Gen., for the State.
Robert Eric Ladd, pro se.
Prior report: Ala.Cr.App., 577 So. 2d 926.
ALMON, Justice.
The petition for writ of certiorari is denied as prematurely filed. See Ex parte Pierce, 576 So. 2d 258 (Ala.1991).
*928 PETITION DENIED AS PREMATURELY FILED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | March 22, 1991 |
fb4f25c8-ff0c-455e-98b1-f22807e20022 | Hilliard v. SouthTrust Bank of Alabama, NA | 581 So. 2d 826 | 1900288 | Alabama | Alabama Supreme Court | 581 So. 2d 826 (1991)
Earl F. HILLIARD
v.
SOUTHTRUST BANK OF ALABAMA, N.A. and Marguerite W. Stewart, as Co-Executors of the Estate of Robert Chauncey Stewart, Deceased.
1900288.
Supreme Court of Alabama.
May 24, 1991.
*827 Henry L. Penick of Penick & Brooks, Birmingham, for appellant.
Raymond C. Winston and Joyce E. May, Birmingham, for appellees.
PER CURIAM.
This is an appeal from the denial of a motion for relief from judgment made pursuant to Rule 60(b), A.R.Civ.P.
The issue in this case is whether the trial court denied Hilliard the 10-day notice required by Rule 56(c), A.R.Civ.P., and, if so, whether Hilliard was prejudiced by that denial. We hold that the court did violate the 10-day requirement of Rule 56(c) and that Hilliard was prejudiced. We reverse the denial of the Rule 60(b) motion.
In 1988, the plaintiffs sued Earl F. Hilliard for allegedly defaulting on payments due under a real estate mortgage note. The case was settled pursuant to an agreement executed in November 1989.
The plaintiffs filed a motion to enforce the terms of the settlement agreement on June 27, 1990. The trial court scheduled a hearing on the motion for August 23, 1990. On July 30, 1989, the plaintiffs filed an amendment to the motion and filed a motion for summary judgment. The hearing on the amended motion and on the summary judgment motion was then set for August 9, 1990.
On August 9, 1990, the trial court entered a summary judgment in favor of the plaintiffs with leave to prove damages. We note that Hilliard's counsel failed to attend this hearing.
After damages were assessed, a final judgment was entered on September 12, 1990, in the amount of $293,967.86 plus costs. Hilliard filed his Rule 60(b) motion for relief from that judgment on September 18, 1990.
In his motion, Hilliard claimed that the court, in entering the summary judgment, had violated Rule 56(c), which requires that the motion for summary judgment be served at least 10 days before the time set for the hearing. The trial court denied the motion on October 10, 1990, with an order stating that the 10-day notice requirement had been complied with because the original motion to enforce the settlement agreement had been filed on June 27, 1990, and the hearing was on August 9, 1990.
On October 30, 1990, Hilliard appealed from the summary judgment. However, that appeal was dismissed as untimely.
*828 This present appeal is from the denial of the Rule 60(b) motion. The issue, as stated earlier, relates to whether the trial court denied Hilliard the 10-day notice he was entitled to before the court could rule on the summary judgment motion. Whether a Rule 60(b) motion should be granted or denied is a matter within the sound discretion of the trial court, and its judgment will not be disturbed unless it abuses that discretion. Ex parte Lang, 500 So. 2d 3 (Ala.1986). An appeal from an order denying a Rule 60(b) motion presents for review only the correctness of that order and does not present for review the correctness of the final judgment from which the appellant seeks relief under the Rule 60(b) motion. Cockrell v. World's Finest Chocolate Co., 349 So. 2d 1117 (Ala. 1977).
The basis of Hilliard's Rule 60(b) motion is the contention that the trial court erred in holding the summary judgment hearing less than 10 days after the motion was served. Rule 56(c) states that the service of the summary judgment motion must have been made at least 10 days before the date set for the hearing. We have held, because of due process considerations, that this provision is not to be applied literally, but that it will be applied to require a minimum of 10 days between the date the hearing is set and the date of the hearing. Kelly v. Harrison, 547 So. 2d 443 (Ala.1989). Pursuant to Rule 6(a), the date on which the hearing is set is not included in the 10 days required for notice. Therefore, in this case, only 9 full days had elapsed between notice of the hearing and the hearing itself, instead of the required 10 days.
Once a party shows noncompliance with the notice requirement, the party then must show that the trial court abused its discretion by failing to comply with that requirement. To demonstrate an abuse of discretion, the party need only come forth with any showing that the denial of the full 10-day notice period worked to his prejudice. Kelly, 547 So. 2d at 445. Hilliard argues that the violation of the 10-day rule did prejudice him.
The record reveals that on August 9, 1990, the trial court held:
(Emphasis added.)
Although the trial court held in its October 10, 1990, order that the hearing on the motion for summary judgment complied with the 10-day requirement, we do not agree. The trial court specifically entered a summary judgment on August 9, 1990, on the amended motion and on the motion for summary judgment. We find that the trial court did not comply with the 10-day requirement. We must now consider whether Hilliard has been prejudiced by the trial court's failure to comply.
Hilliard argues that he was prejudiced by the rescheduling of the hearings. The hearing on the original motion was scheduled for August 23, 1990. The hearing on the amended motion and the summary judgment motion was on August 9, 1990, 14 days earlier than the hearing on the original motion had been scheduled.
Hilliard also argues that he was prejudiced by his counsel's failure to attend the hearing. The record indicates that Hilliard's counsel was in a federal court in another state on August 9, 1990, and did not have sufficient time to reschedule the federal court appearance.
We find that Hilliard was prejudiced by the failure to comply with the 10-day notice requirement. We reverse and remand.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur. | May 24, 1991 |
b481c4d2-a72c-4139-867f-09f381ca8915 | Dynasty Corp. v. ALPHA RESINS CORPORATION | 577 So. 2d 1278 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 1278 (1991)
DYNASTY CORPORATION, et al.
v.
ALPHA RESINS CORPORATION.
89-771.
Supreme Court of Alabama.
March 29, 1991.
*1279 G. Douglas Jones of Polson, Jones, Bowron & Robbins, Birmingham, for appellants.
Deborah S. Ashe and Conrad C. Pitts of Keller & Pitts, Florence, for appellee.
ALMON, Justice.
This is an appeal from a summary judgment entered in favor of the plaintiff, Alpha Resins Corporation ("Alpha"), and against the defendants, Dynasty Corporation ("Dynasty"), Alfred Wilhite, and Peggy Wilhite, in an action to recover a debt that was secured, in part, by personal guaranties signed by the Wilhites.
The Wilhites were officers and the majority stockholders of Dynasty, a manufacturer of floor tiles. From 1984 to 1988 Alpha was the principal supplier of the resins that Dynasty used in its manufacturing process. Dynasty began to have problems paying for its resin shipments in 1985 and was soon substantially in debt to Alpha. In order to ensure a continued supply of resins, the Wilhites signed personal guaranties on August 20, 1985, and July 28, 1986.
Although those guaranties stated that they were signed by the Wilhites in consideration of a potential extension of credit by Alpha to Dynasty and the extension of time for payments toward "existing indebtedness," they expressly limited the Wilhites' personal liability under the guaranties to debts incurred as a result of resin shipments made after August 20, 1985, but prior to May 16, 1987. The first guaranty stated, in part:
The second guaranty used the same language, except that the Wilhites' personal liability was limited to purchases made after July 28, 1986, but prior to May 16, 1987.
Dynasty continued to have problems servicing its debt to Alpha after the guaranties were executed. In 1989 Dynasty stopped buying resins from Alpha, switched to a new supplier, and apparently stopped making payments on its debt.
Alpha then filed a complaint against Dynasty and the Wilhites, demanding $71,291.68, the amount it contended was owed on the debt. The claim against the Wilhites was based solely on their guaranties.
Alpha filed a motion for summary judgment. The defendants then amended their answer, alleging that the guaranties had been signed without consideration and were therefore invalid. However, that amendment was stricken. The defendants then filed their first motion in opposition to summary judgment on October 10, 1989. That motion was supported by affidavits from Alfred Wilhite and Bob Droke, Dynasty's treasurer, as well as by other materials filed with the court, including materials submitted by Alpha. In his affidavit Alfred stated that Dynasty had been required to pay "collect on delivery" for the *1280 shipments it received during the period covered by the guaranties and therefore had not received any credit during that period. Droke's affidavit generally corroborated the statements contained in Alfred's affidavit.
Dynasty and the Wilhites also filed a second motion in opposition to summary judgment, along with a supplemental affidavit by Droke, on October 24, 1989. However, because it appears that the motion and affidavit were filed with the circuit court clerk's office only two minutes before that office received the trial court's order granting Alpha's motion for summary judgment and were not before the court when it ruled on Alpha's motion, they cannot be considered by this Court. Greene v. Thompson, 554 So. 2d 376, 379 (Ala.1989).
The burden on a party moving for summary judgment is clearly set out in Rule 56(c), Ala.R.Civ.P. Summary judgment should be entered only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has satisfied its burden by making a prima facie showing that there is no issue of material fact. Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989).
When ruling on a motion for summary judgment, the court should consider all evidence of record, including that evidence formally submitted in support of, or in opposition to, the motion. Spiegle v. Lott, 423 So. 2d 163 (Ala.1982). Since the burden of proof is initially on the moving party, evidence received by the trial court should be construed most strongly in favor of the opposing party, and that party should be given the benefit of all favorable inferences that can be drawn from the evidence. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981). In addition, when reviewing the propriety of a summary judgment, this Court must view the motion and the evidence in a light most favorable to the opposing party. Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala.1985).
Dynasty and the Wilhites argue that summary judgment was improper because, inter alia, they say there was a genuine issue regarding whether the total amount claimed by Alpha pursuant to the guaranties was attributable to debts arising from orders placed during the periods covered by the guaranties, or if a portion of the amount claimed was attributable to debts incurred by Dynasty outside those periods. As stated earlier, the guaranties expressly limited the Wilhites' personal liability to debts arising from shipment orders placed between August 20, 1985, and July 25, 1986, and between July 28, 1986, and May 16, 1987. Therefore, Alpha's judgment against the Wilhites cannot stand unless it is clear that the total amount it claimed represented debt incurred within those two periods.
After reviewing the record in a light most favorable to the defendants, including the invoices submitted by Alpha in support of its claim for $71,291.68, it appears that two of those invoices, invoices 19109 and 21453, were charges for shipment orders placed after May 16, 1987, the last date covered by the Wilhites' personal guaranties. The evidence submitted by Alpha created a genuine issue of material fact concerning what portion of the amount claimed by Alpha was covered by the guaranties. Therefore, the summary judgment was improper as to the Wilhites. Berner, supra. However, as to Dynasty, that judgment is not affected by the personal guaranties; therefore, it is due to be affirmed as to Dynasty.
For the reasons stated above, the judgment is affirmed in part and reversed in part, and the cause is remanded.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | March 29, 1991 |
3264c5a6-8580-4f73-bfc1-7931f736ddb1 | Ex Parte Coffee County Com'n | 583 So. 2d 985 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 985 (1991)
Ex parte COFFEE COUNTY COMMISSION, et al.
(Re COFFEE COUNTY COMMISSION, et al. v. Dale T. TOWNSEND, et al.)
89-1479.
Supreme Court of Alabama.
June 14, 1991.
James W. Webb and Daryl L. Masters of Webb, Crumpton, McGregor, Sasser, Davis & Alley, Montgomery, for petitioners.
*986 Paul A. Young, Jr., Enterprise, for respondents.
ADAMS, Justice.
The Coffee County Commission ("Commission") petitions this Court for a writ of certiorari to review a judgment of the Court of Civil Appeals that affirmed a judgment invalidating a local ordinance providing for a county sales tax. We affirm.
On June 2, 1989, a class action suit was filed in the United States District Court for the Middle District of Alabama on behalf of inmates incarcerated in the Coffee County jail. The complaint alleged that the condition of the jail facilities resulted in a deprivation of the prisoners' constitutional rights. Acknowledging the need for better facilities, the Commission voted to build a new jail. In order to augment its sources of financing for the construction, the Commission, on July 24, 1989, passed an ordinance imposing a "privilege or license tax... against all business activities in the county, the amount to be determined by the application of rates against the gross sales or gross receipts." Coffee County Commission v. Townsend, 583 So. 2d 983, 984 (Ala.Civ.App.1990).
On November 1, 1989, the effective date of the ordinance, a group of taxpayers brought an action in the Circuit Court of Coffee County seeking a declaration that the sales tax ordinance was invalid. On January 3, 1990, the circuit court held the ordinance to be void and unenforceable[1] and the Commission appealed.[2]
On May 23, 1990, the Court of Civil Appeals affirmed the judgment of the circuit court. The Commission, contending that the disposition of this case turns on a conclusion as to the "particular tax or taxes that may be deemed a `special' or `county tax' for purposes of [Ala.Code 1975, §§ 11-14-10 to -17], sought certiorari review of the validity of its sales tax. We granted certiorari review in order to determine the proper construction of those sections.
It is well settled in this state that the power to tax does not inhere in county governmental bodies. Jefferson County v. City of Birmingham, 248 Ala. 319, 325, 27 So. 2d 584, 589 (1946); State v. Street, 117 Ala. 203, 23 So. 807 (1898); Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627 (1897). Consequently, authority for the imposition of county taxes must proceed from an express legislative grant. Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So. 2d 487 (1948); State ex rel. Chilton County v. Butler, 225 Ala. 191, 142 So. 531 (1932). One author describes the sources of county taxation authority as follows:
T. Dickson, Jr., Trends in Legal Authority to Raise RevenueAlabama Counties 2 (1977); see also Alabama Law Institute, Handbook for Alabama County Commissioners 82-83 (1989 6th ed.).
The Commission concedes that its sales tax was not passed pursuant to any local legislation or special enabling act. However, it contends that Ala.Code 1975, § 11-14-14 constitutes a general legislative grant of taxation authority for the limited purpose of building or repairing a jail. Section 11-14-14 provides: "It is the duty of the county commission, if there is not a sufficient jail in its county, to levy a county tax for the erection thereof and cause *987 proposals to be issued for building or repairing the same within 12 months thereafter." (Emphasis added.) Consequently, it insists that it needs no special legislation or enabling act in order to authorize the tax.
In support of its argument that § 11-14-14 provides general authority for the levy of a sales tax, the Commission asserts that § 11-14-14 stands in contrast to §§ 11-14-10, -11, -16, and -17, which specifically authorize the assessment of a "special tax." Sections 11-14-10, -11, -16, and -17 provide as follows:
Id. (emphasis added).
Sections 11-14-10, -11, -14, -16, and -17 all refer expressly to the means of financing county buildings, of which county jails are a subspecies; therefore, those sections must be "construed together to ascertain the meaning and intent of each." Locke v. Wheat, 350 So. 2d 451, 453 (Ala.1977) ("Sections of the code dealing with the same subject matter are in pari materia"); see also Kelly v. State, 273 Ala. 240, 139 So. 2d 326 (1962).
All parties agree that the special taxes authorized in §§ 11-14-10, -11, -16, and -17 for the building and repair of public buildings refer to ad valorem taxes on the value of property in the county. Reply Brief of Petitioners, at 3. They are, therefore, subject to the restrictions of Ala. Const. § 215, which prohibits the legislature from authorizing an assessment of county taxes in excess of 7½ mills for the purposes authorized in §§ 11-14-10, -11, -16, and -17.[3]
*988 The Commission contends, however, that the "county tax" authorized in § 11-14-14 is not the "special tax" authorized by §§ 11-14-10, -11, -16, and -17. Thus, the Commission argues, in effect, that the "special" taxes authorized in §§ 11-14-10, -11, -16, and -17 constitute a species of tax separate and distinct from the "county" tax for which § 11-14-14 provides. Therefore, it insists, the taxation authority granted to counties by the legislature in § 11-14-14 as a county tax is not confined to ad valorem taxes and the consequent restrictions imposed by § 215 of the Constitution. We disagree.
Whether a tax is general or special depends on the purpose for which it is levied or assessed. Special taxes are those that are imposed for a "special purpose" or which are "impose[d] in addition to the general levy." 71 Am.Jur.2d State and Local Taxation § 21 (1973). Thus, in McDaniel v. State, 31 Ala. 390 (1858), we explained:
Id. at 391 (emphasis added). A tax for the special county purpose of erecting a jail is merely a special county tax. As such, it falls squarely within the ambit of §§ 11-14-10, -11, -16, and -17.
Viewing these sections in this light, we conclude that in the absence of local or special enabling legislation, counties are restricted by § 215 of the Constitution and by §§ 11-14-10, -11, 16, and -17 to the imposition of ad valorem taxes for the special county purpose described in § 11-14-14. Section 11-14-17, which authorizes only ad valorem taxes "in all cases in which the... commission is ... empowered to levy a special tax for county purposes," should, therefore, be read as defining the perimeters of the taxation authority conferred in § 11-14-14. Any other construction of these sections allows § 11-14-14 to sweep too broadly.
Statutes in pari materia must be "resolved in favor of each other to form one harmonious plan and give uniformity to the law." League of Women Voters v. Renfro, 292 Ala. 128, 131, 290 So. 2d 167, 169 (1974). Sections so related should be construed so as to accord to each a "field of operation." B.F. Goodrich Co. v. Butler, 56 Ala.App. 635, 647, 324 So. 2d 776, 787 (Civ.App.1975), cert. quashed, 295 Ala. 401, 324 So. 2d 788 (1976). In this case, if § 11-14-14 constituted such a general grant of power as that proposed by the Commission, a county could conceivably levy virtually any kind of tax, other than ad valorem taxes, at any rate, for the purpose described in the section. Such a result is inconsistent with the limited grant of authority for county jail financing expressed in §§ 11-14-10, -11, -16, and -17. The legislature could not have intended such a result.
This conclusion is also consistent with the principle generalibus specialia derogant, that is, that where sections in pari materia are general and specific, the more specific controls the more general. See Ivey v. Railway Fuel Co., 218 Ala. 407, *989 118 So. 583 (1928). While § 11-14-14 sets forth in general terms the duty of county commissioners to provide suitable jail facilities, §§ 11-14-11, -16, and -17 specify the amount of the tax and the source from which it may derive. It follows, therefore, that the broad description of the Commission's duty in § 11-14-14 is further refined by the specific directions and limitations imposed in §§ 11-14-16 and -17. In short, the Commission has cited no authority or precedent for such power and our independent research in that respect has proven equally unfruitful.
In this connection, we note that the legislature, following the proposal and subsequent ratification of Ala. Const. amends. 442 and 444, enacted Act No. 84-30, 1984 Ala. Acts 33. That act authorized Randolph County to levy a "privilege or license tax ... in the amount to be determined by the application of rates against gross sales or gross receipts ... upon every person, firm or corporation ... engaged ... in the business of selling at retail any tangible personal property." The tax was authorized for the construction and financing of facilities for a courthouse and for the "housing, confinement, detention, ... and training of persons held in ... custody." If § 11-14-14 authorizes Coffee County to do unilaterally what Randolph County essentially accomplished only after extensive legislation, it may well be said that the actions taken by the Alabama legislature on behalf of Randolph County involved an injudicious use of its resources. We have concluded, however, that this is not the case.
The Commission does not, in fact, contend that it has reached the statutory limit on ad valorem taxes or that it will be unable to finance the new jail without resort to the sales tax. It does argue, however, that in the event existing tax resources, as augmented by the recent increases in court costs and fines, are insufficient, it may incur criminal liability under § 11-14-15 for failure to furnish adequate jail facilities. Section 11-14-15 provides:
Id. The Commission thus contends that if the mechanisms now in place fail to supply the needed revenue, it could find itself "statutorily trapped with absolutely no means or route of escape" from criminal liability.
The Commission cites no authority in support of such a proposition, and our research has likewise produced none. On the contrary, in McDaniel v. State, 31 Ala. 390 (1858), this Court reversed convictions of the Cherokee County commissioners under Ala.Code 1852, § 771, the predecessor of § 11-14-15. In that case, the commissioners found themselves "statutorily trapped" between § 771 and Act No. 104, 1854 Ala. Acts, which placed a limit on the amount of taxes that might be assessed by a county for "general or particular purposes." This Court held that where the statutory limit is "insufficient to pay for the erection of a county jail, it follows, that the ... county commissioners ... are not liable to the penalties prescribed by section 771." McDaniel, 31 Ala. at 391.
We have carefully considered all the arguments and contentions of the Commission, and we find no error in the judgment of the Court of Civil Appeals. For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
INGRAM, J., recused.
[1] Following the decision of the Commission to impose the sales tax, the defendants named in the prisoners' class action suit consented to judgment. After the judgment of the trial court, which invalidated the ordinance imposing the sales tax, the consent judgment was withdrawn.
[2] While the appeal was pending, the Alabama Legislature approved legislation authorizing Coffee County to submit for a referendum an increase in court costs and fines in specified cases to augment funding for the jail construction. Act No. 90-435, 1990 Ala. Acts. On July 5, 1990, the proposed increases were approved by the voters of Coffee County.
[3] Section 215 of the Constitution, as amended by Amendment 208, provides:
"No county in this state shall be authorized to levy a greater rate of taxation in any one year on the value of the taxable property therein than one-half of one percentum; provided, that to pay debts existing on the sixth day of December, eighteen hundred and seventy-five, an additional rate of one-fourth of one per centum may be levied and collected which shall be appropriated exclusively to the payment of such debts and the interest thereon; provided, further, that to pay any debt or liability now existing against any county, incurred for the erection, construction, or maintenance of the necessary public buildings or bridges, or that may hereafter be created for the erection of necessary public buildings, bridges, or roads (a) any county may levy and collect such special taxes, not to exceed one-fourth of one per centum, as may have been or may hereafter be authorized by law...."
Id.; see also Alabama Law Institute, Handbook for Alabama County Commissioners 77 (6th ed. 1989). | June 14, 1991 |
f224f114-767d-42a4-8135-2bebd2435e85 | Brown v. State | 592 So. 2d 621 | 1900094 | Alabama | Alabama Supreme Court | 592 So. 2d 621 (1991)
Ex parte State of Alabama.
(Re Leroy BROWN v. STATE.)
1900094.
Supreme Court of Alabama.
March 22, 1991.
*622 Don Siegelman, Atty. Gen., and Norbert H. Williams, Asst. Atty. Gen., for the State.
Leroy Brown, pro se.
MADDOX, Justice.
This case presents the issue of whether due process requires that prison officials tape record disciplinary proceedings that result in a prisoner's loss of "good-time" credit.
Leroy Brown, an inmate at Easterling Correctional Center, filed a petition for a writ of habeas corpus to challenge the Alabama Department of Corrections Disciplinary Committee's decision to deprive him of 12 months' good time[1] for an alleged escape from a Montgomery work release facility. The circuit court granted the State's motion to dismiss Brown's habeas corpus petition. Brown appealed the dismissal of his petition to the Court of Criminal Appeals, which reversed the judgment and remanded the cause to the circuit court for a determination of whether the prison officials denied Brown due process because there was no evidence that Brown's prison disciplinary hearing was tape recorded, as required by Rule 403, IV. 2, Alabama Department of Corrections Administrative Regulations. We granted the State's petition for writ of certiorari.
In reversing and remanding, the Court of Criminal Appeals stated:
*623 Brown v. State, 592 So. 2d 618 (Ala.Crim. App.1990).
The State argued as follows:
From our examination of the State's petition for the writ certiorari, we cannot tell whether the argument now made in this Court was made to the Court of Criminal Appeals and we cannot tell whether, in fact, disciplinary proceedings were required to be tape recorded. We have examined the record for a better understanding of the facts, however, and we conclude that the trial court did not err in dismissing the original habeas corpus petition.
Even assuming that the taping requirement was in effect when the disciplinary hearing was conducted, the Court of Criminal Appeals' decision would be erroneous. The Department of Corrections was not required by the Constitution or by statute to tape record the disciplinary procedures in order to comply with due process requirements.
It is well settled that a violation of an administrative regulation is not tantamount to a constitutional violation unless the regulation is mandated to protect a constitutional right. United States v. Caceres, 440 U.S. 741, 99 S. Ct. 1465, 59 L. Ed. 2d 733 (1979). Particularly where the internal regulations merely facilitate the administrative internal agency policies and are not necessary to afford significant procedural protections, we do not insist on strict compliance. See Caceres.
Moreover, the taping of disciplinary proceedings is not required in order to comply with due process requirements. Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (cited with approval in Williams v. Davis, 386 So. 2d 415 (Ala. 1980). In Wolff, the United States Supreme Court stated that due process required that prisoners in disciplinary proceedings resulting in loss of good-time be afforded advance (no less than 24 hours) notice of the charges; a written statement of the evidence relied on and reasons for the decision of the disciplinary body; the right to be present; the right to present documentary evidence on the prisoner's behalf; a qualified right to have a representative present on the prisoner's behalf; and a qualified right to call witnesses. Wolff, 418 U.S. at 541-42, 94 S. Ct. at 2967-68.
As indicated, Wolff does not require the tape recording of disciplinary actions. Nor is the tape recording of disciplinary actions required under Williams and its progeny. See Ex parte Floyd, 457 So. 2d 961 (Ala. 1984); Owens v. State, 507 So. 2d 576 (Ala. Crim.App.1987); Diaz v. State, 474 So. 2d 171 (Ala.Crim.App.), writ denied, 474 So. 2d 173 (1985). The United States Court of Appeals for the Fifth Circuit specifically addressed recording prison disciplinary proceedings in Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.1982), modified, 688 F.2d 266, cert. denied, 460 U.S. 1042, 103 S. Ct. 1438, 75 L. Ed. 2d 795 (1983).[2] The Fifth Circuit correctly pointed out: "Wolff v. McDonnell holds that the Constitution requires only a `written statement by the factfinders as to the evidence relied on and reasons for the *624 disciplinary action.' It does not require tape recordings." Id. at 1155.
In view of the foregoing, 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, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison, but Alabama has provided a statutory right to earn a deduction from the term of sentencing for those prisoners whose record of conduct shows that they have faithfully observed the rules for a specified period. Ala. Code 1975, § 14-9-40 et seq.
[2] Ironically enough, the issue in Ruiz concerned the propriety of instituting the tape recording requirement. The federal court held that the district court did not abuse its discretion by requiring the disciplinary proceedings to be recorded, even though the Constitution itself does not require it. | March 22, 1991 |
473af955-9b92-44b1-a0db-ce00597dc753 | Ex Parte Jones | 582 So. 2d 456 | 1900012 | Alabama | Alabama Supreme Court | 582 So. 2d 456 (1991)
Ex Parte Dr. James C. JONES, Dr. Mark Choquette, Dr. Phillip K. Hurst, and Dr. James L. Bellone.
(Re ALABAMA EMERGENCY ROOM ADMINISTRATIVE SERVICES, P.C. v. Dr. James C. JONES, et al.)
1900012.
Supreme Court of Alabama.
March 29, 1991.
Rehearing Denied May 24, 1991.
Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for petitioner.
Edward B. Parker II of Parker, Brantley & Wilkerson, Montgomery, for respondent.
KENNEDY, Justice.
Alabama Emergency Room Administrative Services, P.C. ("AERAS"), filed an action *457 in Montgomery County against Dr. James C. Jones, Dr. Phillip K. Hurst, Dr. Mark Choquette, and Dr. James L. Bellone ("the doctors"), alleging tortious interference with contractual relations, misappropriation or usurpation of corporate opportunity, and breach of fiduciary duty. AERAS is based in Montgomery County; all of the defendants reside in Dothan, Alabama, which is located in Houston County. According to the averments of the complaint, AERAS entered into a contractual arrangement with South Alabama Medical Center in Dothan ("the hospital"), under the terms of which AERAS agreed to provide emergency room services for the hospital. In turn, AERAS contracted with each of the doctors to provide emergency room services for the hospital. The complaint alleged that the doctors terminated their contractual relations with AERAS and then entered into contracts directly with the hospital.
The doctors filed a motion requesting that the trial court transfer the action to Houston County because, they argued, among other reasons, venue was improper in Montgomery County under Ala.Code 1975, § 6-3-2(a)(3). After discovery on the venue issue, the trial court denied the motion to transfer and held that venue was proper in Montgomery County. The doctors petition for a writ of mandamus to order the trial court to transfer the case to Houston County.
Section 6-3-2(a)(3), which the parties deem to be the appropriate venue section concerning this action,[1] provides that if one of the defendants has a permanent residence in Alabama, then an action "may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred." All the doctors reside in Houston County, so, for venue purposes, the action may properly be brought in Houston County. Venue is proper in Montgomery County only if the "act or omission complained of may have been done or may have occurred" in Montgomery County. § 6-3-2(a)(3). The evidence indicates, and the parties argue on appeal, that the sole "acts or omissions" that might have occurred in Montgomery County related to AERAS's claim of breach of fiduciary duty based on Dr. Jones's actions in Montgomery County.
"The burden of proving improper venue is on the party raising the issue, and, on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial court." Ex parte Ralston, 519 So. 2d 488 (Ala.1987), citing Ex parte Finance America Corp., 507 So. 2d 458 (Ala.1987).
The evidence indicates that in early 1987 representatives of AERAS were negotiating with Mike Blackmon and Jim Layfield, administrators of the hospital, concerning the hospital's desire to provide staffing for its emergency room. The hospital intended to replace its emergency room staff with new personnel around July 1, 1987. Layfield and Blackmon were also negotiating with Dr. Jones to get him to come to Dothan and head a staff of emergency room doctors. At some point, still in early 1987, Dr. Jones signed a contract with the hospital.
As negotiations between the hospital and AERAS progressed, the hospital and AERAS decided that it would be to their mutual advantage to have Dr. Jones work for AERAS. The reasons for this decision are disputed. In any event, Layfield and Blackmon told Dr. Jones that they wanted him to work for AERAS.
Jones did not agree to work for AERAS at first, in part because he did not know who at AERAS he would be working for. Sometime prior to July 1, 1987, Jones visited Montgomery to talk to Drs. Moorehouse and Tanaka, the principal officers and shareholders of AERAS.
*458 The evidence indicates that later on the same day that Dr. Jones visited Drs. Moorehouse and Tanaka in Montgomery, Dr. Jones drove to Dothan. He said that he still had reservations about working for AERAS, because he was "not sure of how AERAS would contribute to [his] building of a group of Dothan-based emergency room physicians." Layfield told Dr. Jones that the AERAS arrangement would be "temporary ... until sufficient full-time physicians had been recruited to staff the emergency department." Blackmon said that the AERAS contracts with both the hospital and with Dr. Jones would contain a 90-day termination clause and would not contain a non-competition clause, thus leaving open all avenues for him to contract later directly with the hospital.
After a few modifications done by mail, Dr. Jones signed the contract with AERAS. The contract contained this provision:
The contract between AERAS and the hospital contained this provision:
Dr. Jones's contract with AERAS became effective on July 1, 1987. Dr. Hurst's contract also became effective that day. Drs. Choquette and Bellone signed contracts that became effective July 1, 1988, and January 1, 1989, respectively. The evidence indicates that the hospital recruited all of these doctors. Between July 1, 1987, and September 1988, AERAS and Drs. Jones, Hurst, and Choquette disagreed concerning AERAS's compensation of the doctors.
In September 1988, Dr. Jones went to Montgomery in Montgomery County to talk to Drs. Tanaka and Moorehouse about AERAS's relationship with him and Drs. Hurst and Choquette. They negotiated a profit-sharing arrangement between AERAS, Dr. Jones, and Dr. Hurst. There is no evidence that Dr. Jones told Drs. Tanaka and Moorehouse at that meeting that Layfield and Blackmon had indicated as early as July 1, 1987, that Layfield and Blackmon viewed the association with AERAS as temporary. The evidence indicates that Dr. Jones was in Montgomery on one other occasion, to attend Dr. Moorehouse's wedding, and there is no evidence that Dr. Jones on that occasion told representatives of AERAS anything concerning whether the doctors' association with AERAS was temporary.
In the spring of 1989, AERAS and the hospital terminated their agreement concerning emergency room services, effective June 30, 1989. Contemporaneously with the termination of the contract between AERAS and the hospital, the doctors terminated their contracts with AERAS by giving 90 days' notice, as the contracts required. The doctors then entered into new contracts with the hospital.
AERAS contends that Dr. Jones's omission to tell it of the "temporary," "stop-gap" way that the hospital perceived and treated its contracts with AERAS was sufficient evidence of a breach of fiduciary duty to create proper venue in Montgomery County. We disagree. Assuming, for the purposes of discussion only, that AERAS proved that Dr. Jones owed it a fiduciary duty, the evidence still, at best for AERAS, indicates that in order to assure Dr. Jones that his long-term position with the hospital would be unaffected by his signing a contract with AERAS, representatives of the hospital told him that the contractual arrangement between the hospital, the doctors, and AERAS would be temporary. At best, that evidence might imply that Dr. Jones also regarded the contractual arrangement with AERAS as temporary. The hospital's representatives told Dr. Jones of specific contractual provisions that would allow the arrangement to be temporary; those provisions were clearly stated in the contract that AERAS entered *459 with the doctors and the hospital. Dr. Jones was in Montgomery only two times after he had the discussion with the representatives of the hospital that indicated that the hospital viewed the arrangement as temporary. One occasion was Dr. Moorehouse's wedding and the other was in September 1988, when he was negotiating with AERAS concerning a profit-sharing arrangement.
The evidence does not sufficiently support AERAS's argument that Dr. Jones violated a fiduciary duty in Montgomery County and thereby created proper venue in Montgomery County. The ruling of the trial court was clearly erroneous. The petition for a writ of mandamus ordering the trial court to transfer the case to Houston County is due to be granted.
WRIT GRANTED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] It is not clear if AERAS's claim of "breach of fiduciary duty" is a contract claim or a tort claim. The doctors do not seem to dispute on appeal that the claim is one upon which relief can be granted. If that claim is based in contract, § 6-3-2(a)(2) might be the proper venue provision. Regardless, inasmuch as the parties seem to agree that § 6-3-2(a)(3) is the appropriate provision, we will treat that provision as the proper law of the case. | March 29, 1991 |
dce3d9f7-b59f-4683-8100-a1bfa0594d86 | Thorne v. C & S SALES GROUP | 577 So. 2d 1264 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 1264 (1991)
Rex THORNE
v.
C & S SALES GROUP.
89-1404.
Supreme Court of Alabama.
March 22, 1991.
*1265 Woodford W. Dinning, Jr. of Lloyd, Dinning, Boggs & Dinning, Demopolis, for appellant.
Sandra R. Segal and G. Dennis Nabors of Anderson, Graddick & Nabors, Montgomery, for appellee.
SHORES, Justice.
This is a breach of contract action. Rex Thorne of Diesel Repower Systems, Inc. ("Diesel Repower"), contracted to sell five phase 1710 Cummings Diesel engines to C & S Sales Group ("C & S"), a partnership owned by Don Crosby and Dennis Stringer. C & S planned to resell the engines to Oregon Parts Company ("Oregon Parts"). The engines were not delivered by Diesel Repower as promised. When Oregon Parts did not receive the engines, it sued C & S in an Oregon court and received a judgment against C & S for $32,121.76. In response, C & S sued Rex Thorne and Diesel Repower Systems, Inc., for the amount it had to pay Oregon Parts. The jury returned a verdict against Rex Thorne, individually, for $32,121.76 in compensatory damages. The court entered a judgment on that verdict and Thorne appeals. We affirm.
Thorne had provided Crosby with the serial numbers of the particular engines during a phone conversation. Thorne had agreed to inspect the engines and have them ready for shipment no later than November 4, 1987. C & S sent $2,000 to Diesel Repower Systems, Inc., on October 19, 1987. On October 28, 1987, C & S sent the balance of $23,000 to Rex Thorne.
After the engines were not delivered when promised, Stringer went to get the engines from Thorne in Montgomery. Upon arrival, Stringer discovered that Thorne did not have the engines with the serial numbers he had promised. Thorne agreed to give Stringer three incomplete engines and to supply the missing parts. Thorne claimed that he had obtained an agreement from Oregon Parts that these replacements would be satisfactory. C & S received three engine portions, none of which was complete. One of the engines had been burned and could not be used at all.
C & S filed its complaint against Rex Thorne and Diesel Repower Systems, Inc., in January 1989. It alleged the following causes of action against Thorne and Diesel Repower: breach of contract, detrimental reliance, intentional misrepresentation, and breach of implied warranty for a particular purpose. Diesel Repower filed a motion to dismiss, alleging that the issues between the parties had already been resolved by the Oregon court. The trial court denied this motion. After a trial on November 17, 1989, the jury awarded C & S compensatory damages of $32,121.76 against Rex Thorne, individually.
*1266 Thorne filed a motion for a new trial or, in the alternative, for j.n.o.v. The trial court denied that motion. Thorne appealed. Thorne argues three errors by the trial court. First, Thorne argues that the admission of a copy of the Oregon judgment into evidence was error. Second, because the C & S partnership had been dissolved before the complaint was filed, he argues that C & S lacked the capacity to file a complaint. Finally, Thorne argues that the evidence was contrary to the verdict, which pierced the corporate veil and held Thorne personally liable.
The trial court did not err in admitting the copy of the Oregon judgment into evidence. While testifying, Don Crosby of C & S stated that a judgment had been rendered in favor of Oregon Parts and against C & S, Dennis Stringer, and Don Crosby. Diesel Repower and Thorne were not parties to the Oregon action. The trial court correctly admitted into evidence a printed copy of the judgment to which Crosby was referring. The "best evidence" rule allows such evidence. According to C. Gamble, McElroy's Alabama Evidence § 212.02 (3d ed. 1977), the admission of the writing helps to prevent any misconstruction of the written provisions, because a writing is deemed more reliable than oral testimony.
A copy of the original judgment rendered in Oregon is admissible under the rule stated in § 217.01, McElroy's Alabama Evidence, supra. That section states in pertinent part:
Thorne's second contention of error is that C & S lacked the capacity to sue and receive a judgment. Because C & S had been dissolved before the lawsuit was filed, Thorne argues that the trial court should have granted his motion for a directed verdict. Thorne also claims that the judgment rendered against him is void and unenforceable. We disagree.
First, Thorne's argument fails because he did not raise this issue in the trial court. A.R.Civ.P. 9(a). Even if the issue had been raised, however, the argument would fail. "On dissolution, the partnership is not terminated, but continues until the winding up of partnership affairs is completed." Alabama Code 1975, § 10-8-93. Despite Thorne's allegations, C & S, a dissolved partnership winding up business, had the right to pursue claims such as this one under Alabama Code 1975, § 10-8-95(a). In the present case, Thorne had not completed performance of his obligations under the contract. C & S, as a party to the contract, could continue to pursue the enforcement of its rights under the contract after dissolution. Thorne's obligation to C & S was a partnership asset. Like liabilities, assets continue to exist after dissolution of the partnership.
A decision to pierce the corporate veil is based on the facts of a particular case. Where a corporation's assets and stock are controlled by persons who use the corporation as a mere instrumentality, a court is not required to recognize the corporation as a separate entity. Barrett v. Odom, May & DeBuys, 453 So. 2d 729 (Ala.1984).
In the present case, Rex Thorne and his wife equally own all of Diesel Repower's stock. Thorne owns all of the vehicles used by the corporation. The rent he received from the corporation was the sum of the cost of insurance, maintenance expenses, and loan payments. Once the loans for the vehicles were repaid, the vehicles were owned by Thorne. The corporation also failed to follow corporate formalities. The only corporate minutes are those that contain approval for leasing vehicles from Thorne.
The corporation was heavily subsidized by Thorne and his wife. Over a two-year period, Thorne and his wife made approximately 15 to 20 loans to the corporation.
*1267 Thorne and his wife received very modest salaries from the corporation in comparison to their contributions. Thorne's sign, located above his business, did not indicate the existence of a corporation. The sign read "Thorne's Diesel Service."
"The function of the jury, which is authorized to draw all reasonable inferences from the evidence, is to resolve controverted factual inferences." George v. Nevett, 462 So. 2d 728 (Ala.1984). Having heard the evidence and having received proper instructions, the jury decided that Thorne had used his corporation as an alter ego and held him individually liable. The jury's verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of the motion for a new trial. Stokes v. Long-Lewis Ford, Inc., 549 So. 2d 51, 52 (Ala.1989); Merrell v. Joe Bullard Oldsmobile, Inc., 529 So. 2d 943, 946 (Ala.1988).
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | March 22, 1991 |
00b45ca3-8571-418b-84af-6f91b6fe1400 | Ex Parte WTK | 586 So. 2d 850 | N/A | Alabama | Alabama Supreme Court | 586 So. 2d 850 (1991)
Ex parte W.T.K.
(Re W.T.K. v. State).
89-1521.
Supreme Court of Alabama.
April 19, 1991.
Rehearing Denied June 7, 1991.
*851 Richard A. Lawrence and Paul Lowery, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
This is a review of an order transferring a juvenile, W.T.K., to circuit court for prosecution as an adult. 567 So. 2d 1375.
The issues are (1) whether W.T.K.'s confession was admissible at a transfer hearing, over an objection that it was the fruit of an unlawful arrest, and (2) whether the complaints filed against W.T.K. were defective.
W.T.K. was in the custody of the Department of Youth Services at the Mt. Meigs campus, when he left the campus without permission on October 17, 1989. That same day, the Department of Youth Services issued a "pickup order" for W.T.K. to all Alabama law enforcement officers.
On October 17, 18, and 19, a series of crimes occurred in Montgomery County involving the burglary of three houses and the shooting death of Helen Rhodes. W.T.K. was taken into custody on October 19, 1989. W.T.K., who was 17 years old at the time, was advised of his rights pursuant to 11(A), A.R.Juv.P. W.T.K. expressly waived his rights and gave Montgomery County Sheriff's Department investigators a statement in which he admitted committing these crimes.
Six petitions were then filed against W.T.K. charging him with capital murder, third degree burglary, two counts of first degree burglary, and two counts of second degree theft. The State filed a motion to transfer W.T.K. to circuit court for prosecution as an adult.
A transfer hearing was held on November 17, 1989. At the hearing, the State offered the statement made by W.T.K. in order to prove that there was probable cause to believe the allegations in the petitions. W.T.K. objected to the admission of the statement on the grounds that the statement was the fruit of an unlawful arrest and that, therefore, the statement was inadmissible. He also argued that the State had the burden of proving that there had been a lawful arrest.
The juvenile court requested briefs from both parties on the issue of whether W.T.K.'s statement was admissible at a transfer hearing to prove probable cause. The court ruled that it was. The court held that, based on the statement and the testimony from the transfer hearing, there was probable cause to transfer W.T.K. to the circuit court. On appeal from the petition to transfer, the Court of Criminal Appeals affirmed.
At the outset, we note that a transfer hearing is a "`critically important' proceeding" in juvenile criminal procedure. Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). A transfer hearing "must measure up to the essentials of due process and fair treatment." Kent, 383 U.S. at 562, 86 S. Ct. at 1057.
A transfer hearing is not designed to determine the guilt or innocence of the juvenile accused of the crime, but is, instead, a probable cause hearing to determine whether the juvenile should be transferred out of the juvenile court for criminal prosecution as an adult. Ex parte Whisenant, 466 So. 2d 1006 (Ala.), on remand, Whisenant v. State, 466 So. 2d 1013 (Ala.Cr. App.1985). Probable cause, in the context of a transfer hearing, is defined as that which would warrant a man of reasonable prudence and caution in believing that the offense has been committed and that the juvenile in question is the offender. Bragg v. State, 416 So. 2d 715 (Ala.1982).
In transfer hearings, greater latitude is permitted in admitting evidence than would be allowed in a criminal prosecution. Gulledge v. State, 419 So. 2d 219 (Ala.1982) (hearsay evidence was admissible to show probable cause in transfer hearing). However, in Ex parte Whisenant, 466 So. 2d 1006 (Ala.1985), the Court *852 found that the juvenile's confession was not knowingly, intelligently, and voluntarily made and that it was therefore inadmissible in the juvenile transfer hearing. Ex parte Whisenant requires that when a juvenile is taken into custody, he must be informed of his rights pursuant to Rule 11(A), A.R.Juv.P. Those rights include his Miranda rights and the right to be informed that "if his counsel, parent, or guardian is not present, [then] he has a right to communicate with them, and that, if necessary, reasonable means will be provided for him to do so." Rule 11(A)(4).
In Scott v. State, 501 So. 2d 1273 (Ala.Cr. App.1986), the juvenile was informed of his rights as set forth in Whisenant. The Court of Criminal Appeals found his confession voluntary for Fifth Amendment purposes and found that the confession was admissible to prove probable cause in a transfer hearing. See also Smith v. State, 475 So. 2d 633 (Ala.Cr.App.1985).
In the instant case, W.T.K. was informed of his rights under Rule 11(A), A.R.Juv.P. W.T.K. voluntarily waived those rights and confessed to the crimes. However, W.T.K. objected to the use of the confession at the transfer hearing not because it violated the privilege against self-incrimination, but because the confession was a product of an illegal arrest. Thus, the argument here does not involve the Fifth Amendment, but the Fourth Amendment to the United States Constitution and Art. I, § 5, of the Alabama Constitution, which protect against illegal searches and seizures.
A confession obtained as a result of an illegal arrest is inadmissible. Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982). The State bears the burden of proving that a confession is admissible as a product of a lawful arrest. Id.
In Brown, the defendant filed a pretrial motion to suppress statements he had made after an illegal arrest. The Court found that the confession should have been excluded from the evidence as the fruit of an illegal arrest. Specifically, the Supreme Court stated that "the exclusionary rule of the Fourth Amendment serves interests and policies that are distinct from those it serves under the Fifth. It is directed at all unlawful searches and seizures, and not merely those that happen to produce incriminating material or testimony as fruits. In short, exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment, but it would not be sufficient fully to protect the Fourth." 422 U.S. at 601, 95 S. Ct. at 2260.
In Taylor, the illegality of the initial arrest was not cured by the fact that the confession may have been "voluntary" for Fifth Amendment purposes simply because Miranda warnings were given before the confession was made.
In Alabama, a confession obtained as a result of an illegal arrest is inadmissible as a violation of the Fourth Amendment and also as a violation of Art. I, § 5, of the Alabama Constitution. Crittenden v. State, 476 So. 2d 626 (Ala.Cr.App.1983), aff'd, 476 So. 2d 632 (Ala.1985). The burden is on the State to prove that a challenged arrest was lawful. Ex parte Brownlee, 535 So. 2d 218 (Ala.1988), citing Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965).
Section 12-15-66(b), Alabama Code 1975, states:
Section 12-15-66(b) has been interpreted to mean that before evidence can be properly introduced, over objection, it must be shown that the evidence was constitutionally obtained. Ash v. State, 424 So. 2d 1381 *853 (Ala.Cr.App.1982). In Ash, there was no evidence that the defendant's confession was improperly induced and therefore it was admissible. A juvenile's statement, which was unconstitutionally obtained, was inadmissible in Ex parte Whisenant. As we stated earlier, this Court held in Ex parte Whisenant that the defendant's statement was not admissible in a probable cause hearing to determine whether the juvenile should be transferred to circuit court and tried as an adult. Although the purpose of a transfer hearing is not to determine innocence or guilt and strict rules of evidence do not apply, the proposition that a determination of the constitutionality of a child's statement is inappropriate at a transfer hearing "overlooks an essential element in the nature of the evidence in question." 466 So. 2d at 1008. "To relax the strict rules of evidence for purposes of the transfer hearing, when its application is restricted to matters ordinarily governed by the rules of evidence, is one thing; but to carry its application to the extent of allowing the admission of an otherwise inadmissible statement of the accused is constitutionally impermissible." Id.
Although Whisenant dealt with Fifth Amendment rights, a juvenile's Fourth Amendment rights should be given the same protection at transfer hearings. It is particularly important to protect a juvenile's constitutional rights at a transfer hearing. To transfer a juvenile and subject him to adult treatment without protecting his constitutional rights is impermissible. See § 12-15-66(b), Ala.Code 1975. Although a transfer hearing is in the nature of a probable cause hearing, certain protections must be afforded the juvenile, including protecting him from unreasonable searches and seizures.
The second issue in this case involves the six complaints filed against W.T.K. by the arresting officers. Section 12-15-50, Alabama Code 1975, provides that juvenile court cases be initiated by the filing of a petition by the juvenile intake officer after that officer has received a verified complaint. W.T.K. argues that the complaints against him were defective and, therefore, that the petitions based upon the complaints were also defective. W.T.K. then argues that because the petitions were defective, the juvenile court did not have jurisdiction over him, which is required under § 12-15-30, Ala.Code 1975.
The alleged defects were as follows: In case JU-89-1840.01 (capital murder) the complaint was unsigned; in JU-89-1840.02 (third degree escape), the complaint was signed only by the juvenile intake officer and not by the arresting officer. The complaint was properly signed in JU-89-1840.03 (first degree burglary) and JU-89-1840.04 (second degree theft), but those two complaints were combined on one form. There were no complaints filed for JU-89-1840.05 (first degree burglary) and JU-89-1840.06 (second degree theft). We are aware that each of the criminal charges was supported by a signed affidavit and that all six petitions were properly signed and verified.
In Shedd v. State, 505 So. 2d 1306 (Ala.Cr.App.1987), the Court of Criminal Appeals held that the form of a petition is governed by § 12-15-52, Ala.Code 1975, and that Rule 12, A.R.Juv.P., governs the initiation of cases. That court also held that a complaint in a juvenile matter is not governed by the Code of Alabama or by the A.R.Juv.P. We conclude that those holdings were correct.
"In this case, the juvenile court acquired jurisdiction when the intake officer filed the verified petition. Rule 12(C)(2), A.R.J.P." Shedd, 505 So. 2d at 1307. In the instant case, we agree with the Court of Criminal Appeals that the complaints do not have to be verified. In order for the court to have jurisdiction, only the petitions need be verified. We find that the juvenile court obtained exclusive original jurisdiction when the verified petitions were filed with the juvenile court by the juvenile intake officer.
Because of our holding as to the first issue, the order transferring W.T.K. to circuit court is due to be set aside. This case is due to be remanded to the juvenile court for proceedings consistent with this opinion. *854 If the State should offer W.T.K.'s statement to prove probable cause at the transfer hearing and it is challenged, the State has the burden of proving that the juvenile's arrest was lawful under the Fourth Amendment to the United States Constitution and Art. I, § 5, of the Alabama Constitution.
REVERSED AND REMANDED.
SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | April 19, 1991 |
4162c51e-ae4d-4b93-b430-57362df0a79f | Smith v. Fruehauf Corp. | 580 So. 2d 570 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 570 (1991)
Freddie R. SMITH and Lila R. Smith
v.
FRUEHAUF CORPORATION.
89-1637.
Supreme Court of Alabama.
April 5, 1991.
*571 William R. Lewis and Roger K. Fuston of Pate, Lewis & Lloyd, Birmingham, for appellants.
Bennett L. Pugh and Deborah Alley Smith of Rives & Peterson, Birmingham, for appellee.
STEAGALL, Justice.
Plaintiffs Freddie R. Smith and Lila R. Smith appeal from a summary judgment entered in favor of defendant Fruehauf Corporation.
Freddie Smith was injured on October 2, 1984, when the vehicle he was driving went out of control and overturned. He was driving a tractor (truck) and pulling two tandem trailers manufactured by Fruehauf. The front trailer was connected to a converter dolly by a coupling assembly, and the converter dolly was connected to the rear trailer. There was also a safety chain connecting the two trailers.
As Mr. Smith was traveling on a fourlane highway, in the left lane of the two lanes for his direction of travel, the left front tire of the truck blew out. When the tire blew out, the truck and trailers were pulled toward the median. Mr. Smith managed to pull the truck and trailers back onto the road; however, the rear trailer began to swerve back and forth and then overturned. The truck and front trailer then overturned and the vehicle came to rest.
The accident was investigated by Trooper Billy Mayes. In his deposition, Trooper Mayes testified that his inspection of the truck and trailers at the scene of the accident revealed that the "hitch" connecting the two trailers was unhitched, but that the trailers were still connected by the safety chain. Trooper Mayes was unable to tell whether the "hitch" had been broken, but did state that he did not see any metal to suggest a broken hitch.
After the accident, the two trailers and the converter dolly were towed to the Birmingham terminal of Mr. Smith's employer, Bowman Transportation, Inc., where James Robert Baynes, the safety supervisor at Bowman Transportation in Birmingham, inspected them. In Mr. Baynes's deposition, he testified that the "lock mechanism" or the coupling assembly was broken during the accident and that the "piece" was never found.
The trailers were eventually sent to Bowman Transportation in Atlanta for inspection and repair. Benjamin Brown, the trailer manager for Bowman Transportation in Atlanta, testified in his deposition that both trailers were badly damaged as a result of the accident and that the coupling assembly had to be replaced. Mr. Brown also stated that the coupling assembly holds the two trailers together.
On August 25, 1985, Mr. Smith sued Fruehauf and Goodyear Tire and Rubber Company (hereinafter "Goodyear"), the manufacturer of the tires on the truck. He claimed damages against Fruehauf under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), alleging that Fruehauf designed, manufactured, marketed, and/or sold trailers that were defective and not reasonably safe for their intended use; that Fruehauf knew or should have known that the trailers were imminently dangerous when used in a reasonable and foreseeable manner; that Fruehauf failed to warn him that the trailers "were designed to fail"; that Fruehauf negligently manufactured and assembled the trailers; and that, as a result of Fruehauf's negligence and/or wantonness, he was injured.
*572 His wife joined the complaint, suing for loss of consortium and for reimbursement for medical expenses she had incurred for her husband. The Smiths also claimed damages against Goodyear, alleging that it had negligently designed, manufactured, marketed, and/or sold the left front tire on the truck.
Both Fruehauf and Goodyear answered the Smiths' complaint, denying the allegations thereof and raising the affirmative defense of contributory negligence.
On December 19, 1988, Goodyear was voluntarily dismissed with prejudice.
On April 4, 1990, Fruehauf filed a motion for summary judgment. On May 25, 1990, the trial court entered for Fruehauf what it called a "nonfinal" summary judgment. That summary judgment was, however, in all respects final. Therefore, it was appealable. The rule in this State is that an order that disposes of all pending issues as to all parties, so that by the general rules of procedure it is final and appealable, will not be made nonfinal by the trial court's calling it nonfinal. See Rule 54(b), A.R.Civ.P. Thus, the May 25, 1990, judgment was appealable.
Fruehauf points out that the Smiths did not appeal within 42 days of May 25, and therefore argues that their appeal was untimely. See Rule 4, A.R.App.P. However, the filing of a proper and timely post-judgment motion pursuant to Rule 59(e), to "alter, amend, or vacate" the judgment, will suspend the running of the time for appeal. See Rule 4(c), A.R.App.P. We find such a motion in this case. Therefore, the appeal, which was brought within 42 days of the trial court's ruling on that motion, was timely. See Rule 4(c).
In Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132-33 (Ala.1976), this Court held that in order to establish liability under the AEMLD, the plaintiff must show:
In Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala.1981), this Court, explaining further the plaintiff's burden of proof in establishing liability under the AEMLD, stated:
395 So. 2d at 995 (citations omitted). See, also, Sapp v. Beech Aircraft Corp., 564 So. 2d 418 (Ala.1990) (citing Casrell, supra, and Sears, Roebuck & Co., supra).
*573 This case was pending on June 11, 1987; accordingly, the "scintilla of evidence rule" applies to the ruling on the motion for summary judgment. See Ala.Code 1975, § 12-21-12. The question before this Court is whether there was a scintilla of evidence before the trial court that the trailers or the coupling assembly left Fruehauf's control "in a defective condition unreasonably dangerous to the plaintiff" (see Casrell, supra) and, if so, whether the defective condition caused Mr. Smith's injuries.
Fruehauf based its motion for summary judgment on the pleadings, the interrogatories and answers thereto, and the depositions of Freddie Smith, Billy Mayes, James Robert Baynes, and Benjamin Brown. The only evidence offered by the Smiths in opposition to Fruehauf's motion for summary judgment was the affidavit of their expert witness, John E. Sims, which reads, in pertinent part:
In Sapp v. Beech Aircraft Corp., supra, this Court reviewed a summary judgment entered for the defendant in a wrongful death suit alleging a defect in a seatbelt. In opposition to the defendant's motion for summary judgment, the plaintiff in that case offered the affidavit of her expert, which read, in pertinent part:
564 So. 2d at 420. In affirming the summary judgment, this Court stated:
564 So. 2d at 464 (citations omitted).
Based on our holding in Sapp, supra, we conclude that the Smiths have not presented a scintilla of evidence that the trailers or the coupling assembly were in a defective condition and were unreasonably dangerous when they left Fruehauf's control. The trial court correctly entered Fruehauf's summary judgment. We affirm.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur. | April 5, 1991 |
330befa5-44e2-42de-8338-c01a7c76ea82 | Camaro Trading v. Nissei Sangyo America | 577 So. 2d 1274 | 1900124, 1900254 | Alabama | Alabama Supreme Court | 577 So. 2d 1274 (1991)
CAMARO TRADING COMPANY, LTD.
v.
NISSEI SANGYO AMERICA, LTD.
NISSEI SANGYO AMERICA, LTD.
v.
CAMARO TRADING COMPANY, LTD.
1900124, 1900254.
Supreme Court of Alabama.
March 22, 1991.
William W. Anderson, Jr. and Lewis E. Bell of Lanier, Ford, Shaver & Payne, Huntsville, for appellant/cross-appellee.
Gary C. Huckaby and Stuart M. Maples of Bradley, Arant, Rose & White, Huntsville, and Stephen A. Gorman of Foran, Wiss & Schultz, Chicago, Ill., for appellee/cross-appellant.
HOUSTON, Justice.
Nissei Sangyo America, Ltd. ("Nissei"), filed this declaratory judgment action in the Circuit Court of Madison County against Camaro Trading Company, Ltd. ("Camaro"), seeking a declaration that a contract entered into by Nissei and Camaro was void. In its complaint, Nissei alleged that the contract was executed in Alabama and was to be performed in Alabama and that Camaro was a foreign corporation that had not qualified to do business in Alabama. Camaro filed a motion to compel arbitration pursuant to an arbitration clause in the contract that is the subject of the declaratory action. The trial court denied this motion. Camaro appeals as a matter of right from the denial of that motion. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990). We affirm.
No Alabama case has been cited in the briefs, and our independent research has not revealed any Alabama case addressing the issue of whether the court or the arbitrator determines the validity of a contract that contains a provision requiring that "[a]ny controversy or claim arising out of or relating to [the agreement], the breach thereof or the applicability of [the] arbitration provision" be submitted to arbitration.
The issue presented to us is substantially identical to the issue presented to Judge Marvin H. Shoob, United States District Court, Northern District of Georgia, in A.J. *1275 Taft Coal Co. v. S & H Contractors, Inc., [Ms. 1-88-CV-436-MHS, October 5, 1988] ___ F.Supp. ___ (N.D.Ga.1988), aff'd on other grounds, 906 F.2d 1507 (11th Cir. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 677, 112 L. Ed. 2d 669 (1991), where the coal company sought to void an Alabama contract that contained an arbitration clause on the same ground that Nissei seeks to void the contract at issue here. Judge Shoob, in his well-reasoned opinion, wrote:
We agree with Judge Shoob.
6 C.J.S. 184 Arbitration § 14 (1975). (Emphasis added.)
5 Am.Jur.2d 531 Arbitration and Award § 15 (1962). We agree with these legal encyclopedias.
In Finsilver, Still & Moss v. Goldberg, Maas & Co., 253 N.Y. 382, 171 N.E. 579, 581, 69 A.L.R. 809, 813 (1930), Chief Judge Cardozo wrote:
We agree with Chief Judge Cardozo. If in truth there is no contract at all (the absence of a valid contract that provides for arbitration), it would be a violation of Alabama Constitution 1901, Article I, § 13, to deny Nissei access to the courts of Alabama:
The trial court did not err in denying Camaro's motion to compel arbitration. The judgment of the trial court is affirmed.
Nissei cross-appealed the trial court's denial of its motion for summary judgment. This is an interlocutory order and there was no statement of the trial judge pursuant to Rule 5(a), A.R.App.P., which is essential for us to grant permission to appeal an interlocutory order. The cross-appeal is dismissed.
1900124, AFFIRMED.
1900254, CROSS-APPEAL DISMISSED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | March 22, 1991 |
6eb5a492-9c7a-4f4f-a32e-1f0a79c2c6c1 | Williamson v. Stephens | 577 So. 2d 1272 | 1900115 | Alabama | Alabama Supreme Court | 577 So. 2d 1272 (1991)
W.W. WILLIAMSON
v.
Johnny Howard STEPHENS.
1900115.
Supreme Court of Alabama.
March 22, 1991.
Wesley L. Laird of Laird and Mock, Opp, for appellant.
Ab Powell III and John M. Peek of Powell, Powell & McKathan, Andalusia, for appellee.
MADDOX, Justice.
The plaintiff, W.W. Williamson, appeals from a judgment based on a directed verdict in favor of the defendant, Johnny Howard Stephens. The legal question presented is whether the plaintiff sufficiently proved the value of certain property *1273 he claimed did not go with the sale of a house.
On June 14, 1988, Sidney Williamson, son of the plaintiff, sold a house and approximately two acres of land to Stephens. Shortly thereafter, the plaintiff came to the house to retrieve some personal belongings that he had stored at the house. At that point, Stephens's wife informed W.W. Williamson that she and her husband had bought the house "contents and all". W.W. Williamson testified at the trial that he had several items stored at the house when the Stephenses bought the house, and that he had not agreed to sell his belongings to the Stephenses. Sidney Williamson testified that he had not agreed to sell any of his father's belongings to the Stephenses, either. There was no notation on the deed indicating that the contents of the house were to be sold with the house and land. Stephens introduced a document stating that Sidney Williamson was selling the house "contents and all." However, Sidney Williamson testified that he had never seen the document and had not signed it.
In his complaint Williamson demanded (1) a return of the specific property alleged to have been wrongfully detained, (2) in the alternative, its value, (3) general damages for the wrongful detention, and (4) punitive damages, costs, and certain equitable relief. After the presentation of all of the evidence, the trial court granted Stephens's motion for a directed verdict. In directing a verdict, the court stated that the action was in detinue, and that Williamson had failed to meet all of the requirements for proving the elements of that action or had failed to prove the property's value.
At the outset, we note that it is not clear from the pleadings or the record whether the plaintiff sought to recover in detinue or in conversion. The pleadings and record contain elements of both actions. Under either theory, however, the complaining party has the burden of proving the value of the property wrongfully detained or converted.
At the trial, W.W. Williamson testified to the value of some of the items he had stored in the house bought by Stephens. At the conclusion of his testimony, a written document containing Mr. Williamson's valuation of the items was offered into evidence, but the trial court refused to allow the document into evidence. We find that he erred.
Under the statutory law of this state it is provided:
Ala.Code 1975, § 12-21-114.
Construing this section, the Court of Civil Appeals has held that the question of whether a witness has had ample opportunity of forming a correct opinion of the value of an article is a preliminary question for the court; that a determination on that question is a matter largely within the court's discretion; and that such a determination will not be overturned unless it is clearly unjust. Hamrick v. Daniel, 449 So. 2d 1247 (Ala.Civ.App.1984). We think the Court of Civil Appeals correctly construed that statutory provision. Applying this rule of review, and examining the record, we find that the trial court erred in directing a verdict for the defendant.
The record shows that W.W. Williamson testified to the value of some of the items allegedly wrongfully retained by Stephens. In addition, he testified that he knew the value of most of the items he had left in the house. A list of all the articles wrongfully detained, along with their value as determined by W.W. Williamson, was offered into evidence, but was excluded by the trial court. Because we find that the trial court erroneously excluded the document, we hold that the trial court's action was clearly unjust. Although a court is permitted to direct a verdict when there has been no proof of value of the property, Gwin v. Emerald Co., 201 Ala. 384, 78 So. 758 (1918); Graham v. Fincher, 21 Ala. App. 276, 107 So. 327 (1926); Mackey v. Hall Auto Co., 27 Ala.App. 557, 176 So. *1274 318 (1937), we find that W.W. Williamson did offer sufficient proof of value.
Because we reverse the judgment of the trial court, we do not need to address the question raised concerning punitive damages. This issue may not present itself in a retrial. The judgment is due to be, and it is hereby, reversed and remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | March 22, 1991 |
8cf4f57f-66a8-41e2-add3-9fda56fe55a8 | Combs v. ALABAMA GAS CORPORATION | 577 So. 2d 1269 | 1900316 | Alabama | Alabama Supreme Court | 577 So. 2d 1269 (1991)
Logan COMBS,
v.
ALABAMA GAS CORPORATION.
Logan COMBS,
v.
ALABAMA GAS CORPORATION, et al.
89-1843, 1900316.
Supreme Court of Alabama.
March 22, 1991.
*1270 Logan Combs, pro se.
Charles H. Rice, Anniston, for appellees.
KENNEDY, Justice.
These two cases have been consolidated on appeal. They involve two separate causes of action for trespass. In the first action, the plaintiff, Logan Combs, is appealing from the denial of a Rule 60(b) A.R.Civ.P., motion for relief from a judgment. The appeal in the second action is from a judgment of dismissal entered in favor of the defendant, Alabama Gas Corporation. We affirm.
In the first trespass action, Combs filed a complaint on September 22, 1987, against Alabama Gas Corporation. Specifically, Combs claimed that Alabama Gas had installed a gas pipeline across his property without his consent.
Combs's counsel withdrew on September 6, 1988, at the request of Combs. Because he was unable to retain other counsel, Combs represented himself during the rest of the proceedings.
On the date scheduled for trial, February 27, 1989, Combs appeared in court and asked for a continuance. The case was then set for trial on August 7, 1989. Combs failed to appear at the trial on August 7, 1989, and Alabama Gas Corporation moved to dismiss the action under Rule 41(b), A.R.Civ.P. The trial court granted the motion on the basis that Combs had failed to diligently prosecute the case.
On September 18, 1989, Combs filed a motion that, although not specifically so styled, was, in effect, a Rule 60(b) motion for relief from the Rule 41(b) dismissal. The trial court denied that motion on September 29, 1989.
On November 15, 1989, Combs filed a notice of appeal with this Court from the denial of the Rule 60(b) motion. That notice of appeal was filed 47 days after the September 29, 1989, order denying the motion. On January 8, 1990, Combs was notified by this Court that his appeal was untimely, and the appeal was subsequently dismissed.
Before that untimely appeal was dismissed, Combs filed on December 14, 1989, a second motion for relief from the judgment specifically citing Rule 60(b)(6). In this motion, Combs requested that the trial court set aside the August 7, 1989, judgment of dismissal. On January 2, 1990, the trial court denied the motion. On April 3, 1990, Combs filed a motion demanding a ruling on the December 14, 1989, Rule 60(b)(6) motion. On April 20, 1990, the trial court informed Combs that a ruling had been made on that motion on January 2, 1990.
On May 10, 1990, Combs filed a third Rule 60(b)(6) motion for relief and requested a hearing in open court. The hearing was held on August 29, 1990. The trial court heard testimony on the Rule 60(b)(6) motion and subsequently denied the motion on September 6, 1990. On September 19, 1990, Combs filed a notice of appeal to this Court. This is the appeal from the Rule 60(b)(6) motion that is now before us (case 89-1843).
Pending the disposition of the first action, Combs filed a second complaint on May 1, 1990, in the circuit court. In that second complaint, Combs alleged that Alabama Gas Corporation had abandoned the gas pipeline on his property and that that abandonment was a separate trespass. On May 17, 1990, Alabama Gas Corporation filed an answer stating that Combs had failed to state a claim on which relief could be granted and filed a motion to dismiss the action. Alabama Gas Corporation also stated in its answer that Combs's claim was barred by res judicata, contending that his complaint was based on the same cause of action as the complaint that had been dismissed on August 7, 1989.
At the August 29, 1990, hearing on the third Rule 60(b) motion that was filed in the first action, the court also heard evidence on the motion to dismiss filed by Alabama Gas Corporation in the second action. Combs filed a motion for a summary judgment on August 31, 1990, which was later denied. The trial court dismissed the second trespass action on October 3, 1990. Then, on November 19, 1990, Combs *1271 appealed to this Court from the October 3, 1990, order dismissing the second trespass action.
On November 20, 1990, Combs filed a motion for an extension of time to file a notice of an appeal, pursuant to Rule 77(d), A.R.Civ.P. The trial court granted the motion, finding that there was a showing of excusable neglect by Combs that has caused his late filing.
First, we will discuss the appeal from the denial of the Rule 60(b)(6) motion in the first trespass action, which was filed September 22, 1987. Then, we will consider whether the motion to dismiss the second trespass action, filed May 1, 1990, was properly granted.
The Rule 60(b)(6) motion in the first action sought to have the trial court set aside an order dismissing the action for lack of prosecution. Combs contends that the trial court should not have dismissed the action because of his failure to appear at the trial on August 7, 1989.
An order denying a motion for relief from judgment is an appealable order, but presents for review only the correctness of the trial court's order on the motion. Alabama Farm Bureau Mutual Casualty Ins. Co. v. Boswell, 430 So. 2d 426 (Ala.1983). The grant or denial of Rule 60(b)(6) relief is discretionary, and the ruling of the trial court will be reversed only if there is an abuse of that discretion. Textron, Inc. v. Whitfield, 380 So. 2d 259 (Ala. 1979). In Smith v. Clark, 468 So. 2d 138, 140 (Ala.1985), this Court stated that "Rule 60(b)(6) is reserved for `extraordinary circumstances,' and is available only in cases of `extreme hardship or injustice,' or when the case involves `aggravating circumstances.' " (Citations omitted.)
Combs had failed to appear in court on the date of trial. Although he was representing himself, he was bound by the order to attend the trial docket on August 7, 1989, at 9:00 a.m. Alabama Gas Corporation moved to dismiss for Combs's failure to diligently prosecute the case. The trial court waited until 12:00 p.m. to see if Combs would appear or at least notify the court. When Combs had failed to notify the court by 12:00 p.m., the court granted the motion to dismiss the action. We find that the trial court did not abuse its discretion in denying the third Rule 60(b) motion for relief from the judgment of dismissal in the first trespass action.
Because Combs must necessarily lose on the merits of that third Rule 60(b) motion, we need not discuss the question whether that third motion was properly before the trial court. It is not necessary to decide in this case whether the filing of that motion was procedurally barred by the fact that he had not timely appealed as to the ruling on his first Rule 60(b) motion and had not appealed at all from the ruling on the second such motion.
The second issue in these consolidated appeals is whether the May 1, 1990, trespass action was properly dismissed. Combs claims that on April 26, 1988, Alabama Gas Corporation abandoned the gas pipeline on his property. While his argument is not a model of clarity, Combs seems to contend that the abandonment was a separate trespass upon his property or in the alternative that because the gas pipeline remained on his property, it was a continuous trespass.
As to Combs's first contention, we conclude that the abandonment of the gas pipeline was not a separate trespass upon his property. Combs's first trespass complaint, dated September 22, 1987, alleged that the installation of the pipeline was a trespass. Alabama Gas Corporation's later abandonment of that same pipeline did not give rise to a separate trespass cause of action. The abandonment of the pipeline was a part of the same alleged trespass that originally interfered with his possession of his property.
Combs's second contention is that the abandonment of the pipeline was a continuous trespass. The abandonment was not a separate cause of action, but was a part of the original trespass. The date set for trial of the action based on the alleged trespasswhich included any aspects of the subsequent abandonmentwas August *1272 7, 1989. The trespass action, which, again, we note, would have included the abandonment, was determined upon the merits on August 7, 1989, under Rule 41(b), A.R. Civ.P. The principle of res judicata applies to this case, estopping Combs from asserting a separate cause of action for abandonment. See McGruder v. B & L Construction Co., 331 So. 2d 257 (Ala.1976).
We affirm.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | March 22, 1991 |
cf55e4c7-4803-4bea-bbf0-48d381742c78 | Jones v. Merrill Lynch | 604 So. 2d 332 | N/A | Alabama | Alabama Supreme Court | 604 So. 2d 332 (1991)
Mary E. JONES
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., and J. Edward Porter.
89-1574.
Supreme Court of Alabama.
April 19, 1991.
Rehearing Denied June 14, 1991.
*333 Alton B. Parker, Jr. and Maston E. Martin, Jr. of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellant.
A. Inge Selden III, Walker Percy Badham III and Mark Strength of Maynard, Cooper, Frierson & Gale, Birmingham, for appellees.
ADAMS, Justice.
Mary Jones appeals from a judgment dismissing her suit for failure to comply with an order to arbitrate her claims against Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch"), and J. Edward Porter. We affirm conditionally.
On August 12, 1982, Mrs. Jones opened account number XXX-XXXXX with Merrill Lynch for the investment and management of proceeds from the settlement of a wrongful death action and an insurance policy on the life of her deceased husband. In doing so, she signed a "Customer Account Agreement" ("Agreement"), a copy *334 of which she received by mail with blank spaces for her signature, each of which was marked with an "X." The Agreement contained the following pertinent language:
(Emphasis added). By May 1983, the plaintiff had deposited with Merrill Lynch a total of $350,000. In March 1984, Merrill Lynch also opened in her name, allegedly without her consent, another account, account number XXX-XXXXX.
On November 4, 1988, she sued Merrill Lynch and Mr. Porter, its representative, alleging that improper activities of the defendants had resulted in a loss of over half of her $350,000 investment. More specifically, the plaintiff contended that "beginning on or about September 29, 1983, and continuing until on or about July 27, 1988, [the defendants] wrongfully, intentionally, fraudulently, maliciously, and deceptively manipulated ... and `churned'" her accounts. Count one of her seven-count complaint alleged excessive trading of securities, which, she contended, amounted to a violation of Ala.Code 1975, § 8-6-17.[1] Count two alleged fraudulent conversion of securities from a cash account to a "margin" account, in violation of § 8-6-17. Count three alleged breach of fiduciary duty. Count four alleged conversion of the $350,000 investment to the use of the defendants. Counts five through seven alleged, respectively, knowing, reckless, and innocent misrepresentation of material facts regarding the $350,000 investment.
On December 6, 1988, the defendants filed a "Motion to Compel Arbitration and for Stay Pending Arbitration" of the dispute pursuant to Clause 11 of the Agreement. On March 3, 1989, the plaintiff filed an amended and restated complaint that contained the same counts as alleged in her original complaint. On April 10, 1989, the Honorable Stuart Leach, Jefferson County Circuit Court judge, conducted a pretrial hearing to consider various motions, including the defendants' motion to compel arbitration. After considering affidavits, briefs, and "heated argument from counsel for both parties," the trial judge, on June 16, 1989, granted the defendants' motion to compel arbitration.
On June 21, 1989, following the trial court's denial of a motion for "reconsideration," the plaintiff filed a motion requesting the trial court to provide a statement, pursuant to Rule 5, A.R.App.P., that would allow her to seek to appeal from the order compelling arbitration. The judge, on June 29, 1989, granted her motion, provided the statement required by Rule 5, and certified a number of questions to this Court for immediate appeal. On July 11, 1989, we denied the plaintiff's petition for permission *335 to appeal the interlocutory order compelling arbitration.
On August 28, 1989, the plaintiff filed a motion to set aside the order compelling arbitration. On September 22, 1989, the judge heard arguments on that motion; on September 28, 1989, the court denied the motion, but expressly retained jurisdiction of the case pending a decision by the arbitration board to take jurisdiction.
On November 3, 1989, the plaintiff submitted a statement of claims to the National Association of Securities Dealers, Inc. ("NASD"). However, she refused to sign the "NASD Uniform Submission Agreement," requisite to submitting her claims to arbitration, because, she argues, "by execution of the agreement she would consent to arbitrate her claims against Merrill Lynch and would thereby waive any objection [that] she might have to the validity, enforceability and revocability" of Clause 11 of the Agreement.[2] Consequently, on January 25, 1990, the NASD notified her that it was "closing the case."
On March 14, 1990, Merrill Lynch filed a "Motion to Dismiss for Failure to Comply with Court Orders and for Want of Prosecution." The plaintiff, on March 28, 1990, responded by filing a second amended complaint, containing an eighth count, in which she sought to reform the Agreement pursuant to Ala.Code 1975, § 8-1-2, by the deletion of Clause 11.[3]
With her second amended complaint, the plaintiff also filed a motion to stay arbitration, supported by a supplemental brief and various affidavits. On April 5, 1990, the trial judge conducted a hearing on all motions, including the "Motion to Dismiss for Failure to Comply with Court Orders and for Want of Prosecution." On June 19, 1990, the judge entered the following order:
On appeal, the plaintiff contends that the Agreement must be reformed to eliminate Clause 11 because (1) the agreement was procured by fraud; (2) there was no mutual assent to the agreement to arbitrate; (3) no agreement was made to arbitrate any disagreements involving account number XXX-XXXXX; (4) the agreement is unconscionable; and (5) the agreement constitutes an impermissible waiver of the right to a jury trial provided under Alabama law. In addition, she insists that the arbitration request is time-barred.
The plaintiff first insists that state law controls the disposition of this case. In particular, she contends that the defendants waived any federally created rights arising under the Federal Arbitration Act, 9 U.S.C. §§ 1-15 (1982) ("FAA"), as a result of Mr. Porter's execution of "Form U-4," the "Uniform Application for Securities Industry Registration or Transfer," in which he agreed to "abide by, comply with, and adhere to all the provisions, conditions and covenants of the statutes, constitutions,... and rules and regulations" of Alabama in consideration for registration by this state as a representative of Merrill Lynch. Consequently, she insists, the defendants "agreed to be bound by the law of Alabama."
Her reliance on Volt Information Sciences, Inc. v. Board of Trustees of Stanford Junior University, 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989), as support for this argument is misplaced. The contract involved in Volt Information Sciences *336 contained a choice of law clause providing for the application of California law in the event of a dispute. That case merely held that where a contract contained a choice of law clause, specifically providing for the application of California law in the event of a dispute, California's statute providing for a stay of arbitration "pending resolution of related litigation" was not preempted by the FAA. Id. at 471, 477, 109 S. Ct. at 1251, 1255. The Court concluded that the parties had not waived their federally created rights because their "agreement did not require arbitration to proceed in [that] situation." Id. at 475, 109 S. Ct. at 1253 (emphasis added).
Not only does the Agreement at issue in this case contain no clause providing for the application of Alabama law, but the practical and unacceptable result of the plaintiff's argument would be to render the FAA inoperative in all similar disputes within this state. Moreover, it is well settled that the FAA applies to cases, such as this one, in which transactions in securities are involved. Ex parte Merrill Lynch, Pierce, Fenner & Smith, 494 So. 2d 1, 2 n. 1 (Ala.1986). We are thus constrained to apply federal law insofar as the FAA has circumscribed the sphere of operation of state law. See Southland Corp. v. Keating, 465 U.S. 1, 16, 104 S. Ct. 852, 861, 79 L. Ed. 2d 1 (1984); Ex parte Alabama Oxygen Co., 433 So. 2d 1158, 1168 (Ala.1983), (Maddox, J., dissenting), vacated, 452 So. 2d 860 (Ala.1984) (adopting dissenting opinion of Maddox, J., as opinion of the Court).
The FAA, in pertinent part, provides:
9 U.S.C. §§ 2, 4 (1982) (emphasis added). In the context of allegations of fraud in the inducement of a contract involving interstate commerce, these sections involve an interrelationship of federal and state law. See, generally, R. Connell, The Federal Arbitration Act: The Expanding Impact of State Law Upon Rigorous Enforcement, 20 J.Mar.L. & Com. 327 (1989).
The polestar in our analysis of this interrelationship is Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S. Ct. 1801, 18 L. Ed. 2d 1270 (1967). In that case, the parties entered into a "Consulting Agreement" containing a comprehensive arbitration clause. After a dispute arose, Flood & Conklin served notice of "intention to arbitrate." Id. at 398, 87 S. Ct. at 1803. Prima Paint responded *337 by filing suit in federal court, seeking rescission of the contract on the grounds that it had been procured by fraud. In particular, Prima Paint alleged that Flood & Conklin "had fraudulently represented that it was solvent and able to perform its contractual obligations, whereas it was in fact insolvent." Id. In holding that the dispute was subject to arbitration, the United States Supreme Court stated:
Prima Paint, 388 U.S. at 403-04, 87 S. Ct. at 1806 (footnotes omitted; emphasis added). The Court reasoned that as long as the arbitration clause was broad enough to encompass claims of fraud in the inducement of the contract, such claims were, themselves, subject to arbitration. Id. at 402, 406, 87 S. Ct. at 1805, 1807; see also Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272, 1276 (Ala.1986).
Since Prima Paint, it has become clear that in cases involving claims of fraud in the inducement of a contract affecting interstate commerce, the court must first determine whether the fraud claim is directed solely at the arbitration clause itself. Coleman v. Prudential Bache Securities, Inc., 802 F.2d 1350, 1352 (11th Cir.1986) (must be asserted that "arbitration clause itself, standing apart from the whole agreement, was induced by fraud"); Bhatia v. Johnston, 818 F.2d 418, 422 (5th Cir.1987) (must be asserted that "arbitration clause alone, as opposed to the Customer Agreement generally," had been induced by fraud); see also Schact v. Beacon Ins. Co., 742 F.2d 386, 390 (7th Cir.1984). If so, the party opposing arbitration is entitled to a trial involving state law issues relating to the making of the arbitration clause. See Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282, 286 (9th Cir.1988); Curtis v. Newhard, Cook & Co., 725 F. Supp. 1072, 1074 (E.D.Mo.1989).
If, however, looking beyond the ad hoc arguments of counsel, the court concludes that the claim of fraud actually bears upon the entire agreement and upon the activities of the parties in general, the provision in § 2 regarding the revocation of contracts does not preclude the federally created right to specific enforcement of the arbitration clause. See Villa Garcia v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 833 F.2d 545, 548 (5th Cir.1987); Benoay v. Prudential-Bache Sec., Inc., 805 F.2d 1437, 1441 (11th Cir.1986); Coleman, 802 F.2d at 1352; Schact, 742 F.2d at 389. Were it otherwise, a skillfully crafted complaint would, in every case, necessitate a trial thus effectively eviscerating the FAA and circumventing the strong policy favoring arbitration. See Perry v. Thomas, 482 U.S. 483, 491, 107 S. Ct. 2520, 96 L. Ed. 2d 426 (1987); Moses H. Cone Memorial Hosp. v. Mercury Const., 460 U.S. 1, 24, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765 (1983); An examination of the case at hand demonstrates the reality of that prospect.
In her original 19-page complaint, Mrs. Jones devoted only three paragraphs in the statement-of-facts section to the arbitration clause, alleging merely that the arbitration clause constituted an unenforceable contractual waiver of the right to a jury trial. Her first "amended and restated complaint," filed four months later, alleged that the arbitration clause itself had been "procured by fraud and [was] unenforceable pursuant to Section 2 of the Federal Arbitration Act." Furthermore, her second complaint alleged that the arbitration clause served as the vehicle through which *338 the defendants sought to perpetrate their various fraudulent schemes by "browbeat[ing] Mary Jones into accepting much less than the value of her claim." Finally, with the filing of the second amended complaint on March 28, 1990, she added Count eight, which averred that the arbitration clause was due to be rescinded because of "fraud of the defendant, inequitable conduct of the defendant, or a mistake of the plaintiff which defendant at the time knew or suspected." The ability of competent counsel to sharpen the issue relating to the arbitration clause progressively over time is readily apparent.
However, even ignoring, momentarily, the evolution of the arbitration issue in this case, we are troubled by the theory urged by the plaintiff that the defendants used that clause as a shield behind which to carry out fraudulent schemes. A similar theory was expressly rejected in Western Hospitals Federal Credit Union v. E.F. Hutton & Co., 700 F. Supp. 1039 (N.D.Cal. 1988). In that case, the credit union signed an agreement containing an arbitration clause with E.F. Hutton a year after E.F. Hutton had allegedly churned and mismanaged the credit union's investments. When a dispute arose two years after the agreement was executed, the credit union filed suit in a federal district court, alleging that E.F. Hutton had "fraudulently induced plaintiffs to agree to arbitrate in an effort to minimize its liability for improper acts performed before the agreement was signed." Id. at 1041-42. (Emphasis added.)
Finding no "independent challenge" to the arbitration clause itself, the district court rejected the credit union's contentions and enforced the arbitration clause. In so doing, the court succinctly remarked that if it "accepted [the credit union's] argument, almost all investors would be able to circumvent arbitration clauses by alleging that the broker's improper conduct not only gives rise to specific causes of action, but voids the arbitration agreement designed to process such disputes." Id. at 1043 n. 1.
We believe that the logic of the district court is even more persuasive where, as here, the agreement was signed before the allegedly fraudulent activity. To countenance the contention that Merrill Lynch induced Mrs. Jones to sign the agreement in anticipation of fraudulent activity would allow the plaintiff to "bootstrap" her various claims and theories "into a separate reason for voiding the arbitration clause." See id. at 1042.
The plaintiff contends that the "central issue in this case is whether Merrill Lynch owed a duty to [her] to disclose the... material facts regarding the arbitration agreement." Reply brief of appellant, p. 6 (emphasis in original). The omission to do so, the argument goes, constituted fraud in the making of the arbitration clause itself. Cf. Ala.Code 1975, § 6-5-104. We also reject that argument because Mrs. Jones's claim of breach of a fiduciary duty to disclose material facts applies as cogently to all of her claims as to the arbitration clause itself. For example, Count three, in all three of her complaints, alleges:
(Emphasis added.) Thus, the allegations of breach of fiduciary duty clearly encompass the full scope of the defendants' activities in connection with the plaintiff's investments and are not limited to the making of the agreement to arbitrate.
The plaintiff also cites Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51 (3d Cir.1980), in support of her argument for a jury trial on the alleged arbitration *339 clause issue. In that case, a dispute arose between Par-Knit Mills, a garment manufacturer, and Stockbridge Fabrics, its distributor, regarding the enforceability of an arbitration clause contained in a series of forms signed by Par-Knit's "production manager." The forms preceded delivery of textiles purchased on the basis of a series of oral contracts. Par-Knit contended that the production manager's signature on the forms in a space designated "Buyer's Acceptance," merely represented a confirmation of delivery dates. Because the court was thus confronted with a number of genuine issues of fact, including issues of agency and the actual or apparent authority of the production manager to bind the company to any type of agreement, Par-Knit was entitled to a jury trial on those issues.
No such issues are here presented. Here, the plaintiff merely signed, in her own capacity, the Agreement she had received through the mail. Therefore, the trial judge, having correctly found no triable issues, properly concluded that the fraud claim was not directed solely at the arbitration clause. Therefore, because we have concluded that the plaintiff has failed to satisfy the threshold requirement articulated in the FAA, we need not and, therefore, do not, reach the issue of whether the defendants' failure to explain the consequences of the arbitration clause constituted fraud or breach of a fiduciary duty.
The plaintiff insists that Clause 11 is unenforceable because there was no agreement to arbitrate. However, she argues not that the defendants affirmatively misrepresented the existence or the effects of the arbitration clause, but merely that the defendants failed to provide any explanation at all regarding the consequences of Clause 11. The absence of an explanation, she insists, constituted a breach of fiduciary duty that would constitute grounds for rescission of the clause pursuant to Ala. Code 1975, § 8-1-2.
The plaintiff's contention is, therefore, merely a restatement of the fraud and breach-of-fiduciary-duty arguments previously discussed. To allow the disposition of this case to turn on a bare restatement of an allegation would clearly place form over substance. Because we have already determined that this case is not about fraud in the inducement as to the arbitration clause itself, we also reject the plaintiff's argument that the arbitration clause is unenforceable because of the absence of mutual assent.
It is undisputed that the plaintiff did not sign a separate agreement expressly authorizing the opening of the second account account number XXX-XXXXX. She alleges that the defendants not only improperly opened that account, but transferred her securities and property from one account to the other without proper authorization. Consequently, she insists, transactions involving account number XXX-XXXXX, such as unauthorized purchases made in account number XXX-XXXXX and transferred to and sold in account number XXX-XXXXX, are not subject to arbitration under the terms of the Agreement that she signed upon the opening of account number XXX-XXXXX.
In support of her argument, the plaintiff refers to Clause 12 of the Agreement, which provides that the "agreement ... shall cover individually and collectively all accounts which the undersigned may open or reopen with [Merrill Lynch]." She insists that because the second account was not one that she opened or reopened, the second account is not subject to the arbitration provision. Merrill Lynch, however, contends that the phrase in Clause 11 providing for arbitration of "any controversy... arising out of [its] business" is sufficiently broad to encompass the transactions connected with the disputed account.
The question thus becomes a "matter of contractual interpretation to be determined by the intent of the parties." Ex parte Warrior Basin Gas Co., 512 So. 2d 1364, 1367-68 (Ala.1987). A determination by the trial judge regarding the intent of the parties to arbitrate is a question of fact and, as such, will not be disturbed unless *340 clearly erroneous. Id. at 1368 (citing Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1348-49 (11th Cir.1982).
We are unable to conclude that the trial judge's findings, based on the language of the Agreement itself, numerous affidavits, and the oral arguments of both parties, were clearly erroneous. For example, the language of the Agreement fairly supports a finding that the parties intended to arbitrate disputed claims. This is especially true with regard to the plaintiff's allegations that the defendants used the second account as a repository or transfer point for securities purchased through the first account. The transactions arising out of account number XXX-XXXXX are thus so inextricably intertwined with those involving account number XXX-XXXXX as to be inseparable absent resort to mere sophistry.
In addition, we note that the trial judge, in properly applying "federal substantive law of arbitrability," was constrained to construe the intent of the parties generously in favor of arbitrability. Ex parte Warrior Basin Gas Co., 512 So. 2d at 1369; see also, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985). Moreover, "federal policy favoring arbitration and requiring courts to `rigorously' enforce arbitration agreements," mandates the finding of intent to arbitrate absent "positive assurance" that the parties did not so intend. Ex parte Warrior Basin Gas Co., 512 So. 2d at 1370. We, therefore, conclude that the trial judge's findings were not clearly erroneous.
Likewise, we find no merit in the plaintiff's contention that the arbitration clause is due to be rescinded on the ground of unconscionability. Arbitration clauses are not "inherently unfair or oppressive." See Coleman v. Prudential Bache Securities, Inc., 802 F.2d 1350, 1352 (11th Cir.1986); see also Surman v. Merrill Lynch, Pierce, Fenner & Smith, 733 F.2d 59, 61 n. 1 (8th Cir. 1984). Furthermore, because the plaintiff's claims of fraud and breach of fiduciary duty are directed at the entire contract, the issue of unconscionability is also subject to arbitration. See Coleman, 802 F.2d at 1352.
Neither does the clause constitute an unenforceable waiver of the right to trial by jury under Ala. Const. 1901, Art. I, § 11. As this Court has stated: "The Federal Arbitration Act ... creates a federal right to specific enforcement of arbitration agreements which are a part of contracts involving interstate commerce, notwithstanding any state substantive or procedural policies to the contrary." Ex parte Alabama Oxygen Co., 433 So. 2d at 1168. Moreover, the "public policy of this state is to encourage arbitration and amicable settlements of differences between parties." Wells v. Mobile County Bd. of Realtors, 387 So. 2d 140, 144 (Ala.1980); see also Ex parte Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 So. 2d 1, 4 (Ala.1986). Arbitration clauses contained in contracts subject to §§ 2 and 4 of the FAA, which provide for judicial intervention and revocation "upon such grounds as exist at law or in equity," do not violate public policy or constitute an unenforceable waiver of the right to trial by jury. See Wells, 387 So. 2d at 144.
More problematic, however, is the plaintiff's contention that § 15 of the NASD Code of Arbitration Procedure bars submission to arbitration of the "dispute, claim or controversy regarding Paragraph 11 ... due to the fact that more than six years have elapsed from the occurrence or event giving rise to the claim."[4] That section provides:
Id. She insists that the "occurrence or event giving rise to the dispute" is the execution, on August 12, 1982, of the Agreement containing the arbitration clause. The defendants, however, contend that the events of which § 15 speaks are the alleged instances of churning, unauthorized trading, and similar acts of the defendants as set forth in the plaintiff's complaints.
It cannot seriously be maintained that the plaintiff would have averred a cause of action for relief from the effects of the arbitration clause in the absence of the overriding substantive claims succinctly set forth in her complaintsclaims that arose well within the period prescribed by § 15. For example, the plaintiff's complaints allege that "beginning on or about September 29, 1983, and continuing until on or about July 27, 1988, [the defendants] wrongfully, intentionally, fraudulently, maliciously, and deceptively manipulated Plaintiff's accounts, and `churned' Plaintiff's accounts." (Emphasis added.) As we have already determined, based on our discussion of the issue of fraud, supra, this case is not about the arbitration clause. Therefore, on the strength of the plain language of § 15, the arbitration request does not appear to be time-barred.
This conclusion is buttressed by the fact that the NASD did not refuse to take jurisdiction of the dispute when, on November 3, 1989, Mrs. Jones submitted a statement of claims to the NASD. Instead, the NASD responded on January 3, 1990, with a memorandum requesting a properly executed copy of the Uniform Submission Agreement. Only when the plaintiff refused to submit the Uniform Submission Agreement did the NASD notify her that it was "closing the case."
Finally, we consider whether the trial judge erred in granting the defendants' "Motion to Dismiss for Failure to Comply with Court Orders and for Want of Prosecution." Ala.R.Civ.P. 41(b) provides for the involuntary dismissal of an action upon "failure of the plaintiff to prosecute or to comply with [the Rules of Civil Procedure] or any order of [the] court." Although dismissal for failure to comply with a court order is a "harsh sanction," it is warranted where there is a "clear record of delay, willful default or contumacious conduct by the plaintiff." Selby v. Money, 403 So. 2d 218, 220 (Ala.1981). Because the trial judge is in the best position to assess the conduct of the plaintiff and the degree of noncompliance, his decision to grant a motion to dismiss for failure to prosecute will be accorded considerable weight by a reviewing court. Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947 (9th Cir.1976); Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051 (9th Cir.1971), cert. denied, 404 U.S. 1039, 92 S. Ct. 715, 30 L. Ed. 2d 731 (1972). Therefore we will reverse that decision only upon a showing of abuse of discretion. Selby, at 220; Smith v. Wilcox County Bd. of Educ., 365 So. 2d 659 (Ala.1978).
Under the facts of this case, we are unable to say that the trial judge abused his discretion in dismissing the plaintiff's case with prejudice. On June 16, 1989, the trial judge granted the defendants' "motion to compel arbitration and for stay pending arbitration." The plaintiff never properly sought a review of that decision,[5] nor did she take the necessary steps to comply with the order. Instead, five months later, after she had submitted a statement of claims to the NASD, she refused to sign the Uniform Submission Agreement, a prerequisite for compliance with the order to arbitrate.
After another four months had elapsed, during which the NASD gave notice that it was closing the case for failure properly to begin the arbitration process, Merrill Lynch *342 filed its "motion to dismiss for failure to comply with court orders and for want of prosecution." In response, the plaintiff began a new round of litigation in the trial court by filing another complaint, a motion to stay arbitration, a brief, and affidavits all directed at an issue that had been adjudicated in the trial court nine months earlier. On June 19, 1990, a year after the original order to arbitrate, the judge dismissed the case with prejudice.
Considering the issues presented, the conduct of the plaintiff, the patience of the trial judge, the strain on the court docket, and the cost to the defendants of prolonging the litigation, we conclude that the judge did not abuse his discretion in granting the defendants' motion to dismiss. Our holding is specifically conditioned, however, upon the willingness of the NASD to take jurisdiction of the plaintiff's claims and to reopen her case. Otherwise, the judgment will be reversed and the cause remanded for trial on the plaintiff's claims.
AFFIRMED CONDITIONALLY.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur.
[1] Section 8-6-17 provides:
"It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly, to:
"(1) Employ any device, scheme or artifice to defraud;
"(2) Make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
"(3) Engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person."
[2] Brief of appellant, p. 4.
[3] Section 8-1-2 provides:
"When, through fraud, a mutual mistake of the parties or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention...."
[4] Brief of appellant, at 51.
[5] It is now well settled in this state that a "petition for a writ of mandamus is the proper means to test a trial court's granting of a motion to arbitrate or the granting of a stay pending arbitration." Ex parte Alexander, 558 So. 2d 364, 365 (Ala.1990) (footnote omitted) (emphasis in original); see also A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360 (Ala.1990). | April 19, 1991 |
a393496f-7be8-4ad8-8049-401bd772d766 | East v. Wal-Mart Stores, Inc. | 577 So. 2d 459 | 1900037 | Alabama | Alabama Supreme Court | 577 So. 2d 459 (1991)
Dorothy Jean EAST
v.
WAL-MART STORES, INC.
1900037.
Supreme Court of Alabama.
March 15, 1991.
*460 E. Paul Jones, Alexander City, for appellant.
Marda W. Sydnor of Parsons, Lee & Juliano, Birmingham, for appellee.
INGRAM, Justice.
The plaintiff, Dorothy Jean East, appeals from a summary judgment entered in favor of the defendant, Wal-Mart Stores, Inc., in her action to recover damages for personal injuries sustained in a slip and fall accident at the defendant's store. She alleged that Wal-Mart had wantonly and negligently maintained the floor of its store and that its wantonness and negligence had caused her injuries.
The record shows the following facts: On October 20, 1987, Mrs. East and her husband, Billy R. East, were shopping at a Wal-Mart store in Alexander City, Alabama. While pushing a shopping cart through the store, Mrs. East slipped and fell on a foreign substance, which appeared to be either liquid soap or lotion, and, as a result of the fall, suffered injuries to her neck and lower back. The substance was located two or three feet from the edge of an aisle leading directly to a check-out register. The source of the substance was never found. Mr. East reported the accident to a Wal-Mart employee working at the customer service desk. Both Mr. and Mrs. East testified that the substance was in one puddle before the fall and that it was white in color. They testified that, before Mrs. East's fall, the puddle did not have any "skid marks" in it, and that it appeared to them that no one else had stepped in the substance. Neither Mrs. East nor her husband knew how long the substance had been on the floor before the accident. The Easts further testified that they did not believe that Wal-Mart had any notice that the substance was on the floor until the accident was reported.
In support of its motion for summary judgment, Wal-Mart submitted the depositions of Mr. and Mrs. East. Wal-Mart also filed a memorandum brief on the date set for a hearing on the motion. Mrs. East submitted nothing in opposition to Wal-Mart's motion for summary judgment. The trial court entered a summary judgment in favor of Wal-Mart.
The only issue presented is whether, under these circumstances, the summary judgment was proper. 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. Because the action in the present case was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12.
In Maddox v. K-Mart Corp., 565 So. 2d 14 (Ala.1990), this Court summarized the applicable law in "slip and fall" cases as follows:
565 So. 2d at 16.
Because Wal-Mart made a prima facie showing that it had no actual or constructive notice of the presence of the substance and that it was not derelict in failing to discover and remove the substance, and because the plaintiff presented no evidence to rebut that showing, the trial court properly entered the summary judgment in favor of Wal-Mart.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | March 15, 1991 |
2cea1d43-da1f-4ad7-b914-641ee5e08290 | Barnes v. Oswalt | 579 So. 2d 1319 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 1319 (1991)
Bobby D. BARNES, individually and as Administrator of the Estate of Nora Lee Barnes, deceased
v.
Nadelia R. OSWALT, as Executrix of the Estate of William Elrod Oswalt, deceased.
89-1640.
Supreme Court of Alabama.
April 11, 1991.
*1320 Lanny S. Vines and D. Bruce Petway of Emond & Vines, Birmingham, for appellant.
Wilbor J. Hust, Jr. of Zeanah, Hust, Sumerford, Davis & Frazier, Tuscaloosa, for appellee.
HORNSBY, Chief Justice.
This case involves claims for damages based on personal injury and wrongful death. The issue is whether the trial court erred in denying the plaintiff's motion for new trial; that motion asserts that the jury verdict for the plaintiff on his personal injury claim and its verdict for the defendant on the plaintiff's wrongful death claim are inconsistent. We agree that the verdicts are inconsistent, and we reverse and remand.
Bobby D. Barnes ("Barnes"), individually and as administrator of the estate of Nora Lee Barnes, his deceased wife, sued the estate of William Oswalt ("Oswalt") for damages based on injuries he sustained and based on the death of his wife resulting from an automobile collision. On September 9, 1988, Barnes and his wife were on their way to work when their automobile collided with that of Oswalt, who Barnes alleges was traveling in the wrong lane. Barnes was driving at the time of the accident. Oswalt was the only person in his automobile at the time of the accident. The jury returned a verdict of $15,000 for Barnes's injuries and a verdict for the estate of Oswalt on the wrongful death claim.
Barnes argues that the jury's verdicts are inconsistent because both claims arose from the same act of negligence. He also argues that the issue of inconsistent verdicts was timely raised in his motion for new trial.
Oswalt argues that the jury's verdicts are not inconsistent because the kinds of damages sought on the two claims differ, i.e., damages for personal injury claims are compensatory while damages for wrongful death are punitive. Oswalt also argues that Barnes is precluded from raising the issue of inconsistent verdicts because Barnes failed to object to the trial court's oral charge to the jury and thus waived the right to raise the issue in a motion for new trial.
We must first decide whether Barnes timely raised his inconsistent-verdicts argument in his motion for new trial.[1] We find that the cases of Lewis v. Moss, 347 So. 2d 91 (Ala.1977), and A.L. Williams & Assocs., Inc. v. Williams, 517 So. 2d 596 (Ala.1987), are dispositive of this issue, and we hold that Barnes's inconsistent-verdicts argument was timely raised in the motion for new trial. See also Stinson v. Acme Propane Gas Co., 391 So. 2d 659 (Ala.1980).
In Lewis, where the jury returned a verdict for the wife but not the husband in a consolidated negligence action, this Court stated:
347 So. 2d at 93 (emphasis in original). Additionally, in Williams, where a jury returned a plaintiff's verdict on the wife's loss of consortium claim but not on the husband's interference-with-business-relations claim, this Court, relying on Lewis, stated that, after the discharge of the jury, objection to the verdict in a post-judgment motion for new trial was not filed too late.[2]
*1321 In this case, neither party objected to the verdict forms submitted to the jury. Instead, Barnes objected to the jury's verdicts because of the alleged inconsistency. This objection was not raised until Barnes made his motion for new trial. Because Barnes's objection was directed to the actual verdicts rendered by the jury and not to the verdict forms submitted to the jury, we hold that Barnes's inconsistent-verdicts argument was timely raised in the motion for new trial and that that argument was not waived.
We next consider whether the trial court erred in denying Barnes's motion for new trial on the ground that the jury verdicts were inconsistent. We conclude that the trial court did err, because we conclude that the verdicts are inconsistent.
In Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965), this Court considered whether the same jury could find the defendant not negligent in one case but negligent in another case where the evidence was the same. In Smith, Theresa Smith sued Arnett Richardson, alleging negligence and willful and wanton conduct. Theresa was a minor and she sued through her father as next friend. Her father, Coy Smith, sued Richardson also, alleging negligence. The two cases were consolidated for trial. The jury returned a verdict for Richardson in Theresa's case, and a $5,165 verdict for Coy Smith in his case. The trial court denied both parties' motions for new trial. The parties alleged that the jury verdicts were inconsistent because the verdicts were based on the same evidence, both cases involved the same defendant, and the same jury rendered the verdicts.
In reversing the trial court's denial of the motions for new trial, this Court stated:
Also, in Lewis v. Moss, supra, this Court addressed the Court of Civil Appeals' opinion in Harden v. Alabama Great Southern R.R., 45 Ala.App. 301, 229 So. 2d 803 (1969),[3] and stated:
347 So. 2d at 94 (emphasis supplied). See also Lindsay v. Hackney, 283 Ala. 372, 217 So. 2d 238 (1968).
In the present case, the jury returned a verdict for Barnes on his personal injury claim but returned a verdict for Oswalt on the wrongful death claim. The jury reached its decision based upon the same alleged negligent act of driving on the wrong side of the road. In essence, the jury found the defendant negligent on the personal injury claim, but not negligent on the wrongful death claim, even though both claims arose from the same circumstances. We recognize that damages under personal injury actions and wrongful death actions differ. In personal injury actions damages are compensatory in nature, while damages in wrongful death actions are punitive in nature. Although the jury has discretion in awarding punitive damages, an award of punitive damages cannot stand where the jury has mistaken the rules of law in awarding such damages. United States Fid. & Guar. Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149, 274 So. 2d 615 (1973); Hardin v. Sellers, 270 Ala. 156, 117 So. 2d 383 (1960); Shirley v. Shirley, 261 Ala. 100, 73 So. 2d 77 (1954); Board of Trustees of the Univ. of Alabama v. Harrell, 43 Ala.App. 258, 188 So. 2d 555 (1965), cert. denied, 279 Ala. 685, 188 So. 2d 558 (1966). See also C. Gamble, Alabama Law of Damages § 37.10 (1988); L. Jeffries, Wrongful Death Actions: The Law in Alabama § 13-7 (1979 and 1989 Supp.). In this case it appears that the jury misconceived the issues presented to *1323 it. As this Court stated in Underwriters Nat'l Assurance Co. v. Posey, 333 So. 2d 815, 817 (Ala.1976):
The verdicts in the present case are not consistent, nor are they reconcilable under these facts. Consequently, the trial court erred in not granting Barnes's motion for new trial, and we reverse the judgment and remand the case for a new trial.
REVERSED AND REMANDED.
ADAMS, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice (concurring in the result).
If the act or omission of William Elrod Oswalt proximately caused the automobile collision and, consequently, the injury to Mr. Barnes, whose contributory negligence was alleged to have been the proximate cause of both his injury and his wife's death, then Mr. Oswalt's act or omission proximately caused Ms. Barnes's death, for there was no contention, or evidence suggesting, that Ms. Barnes's death was caused by any force other than the automobile collision. However, as the trial court noted, the jury could have found Mr. Oswalt's act or omission to be the proximate cause of Ms. Barnes's death, but still award zero damages to her estate under the trial court's instructions, which have been approved over and over again by this Court. The trial court's instructions in this case were, in pertinent part, as follows:
(Emphasis added.) The jury returned the following verdicts:
I understand completely the trial court's dilemma. If I viewed our wrongful death *1324 statute as the majority of this Court does, I would have to vote to affirm and to hold that the verdicts were not necessarily inconsistent. We have made the damages recoverable for death different in kind from the damages recoverable for personal injuries. That is, damages recoverable for death cannot compensate and are completely optional with the jury, even though death was caused by a wrong of the defendant. We have required trial courts to so instruct juries, as this learned trial court instructed this jury. It is confusing to me, and it was confusing to me and to the other eleven jurors who served with me when, while a member of this Court, I served as a juror in the trial of a personal injury case and a wrongful death case that had been consolidated for trial. As in this case, an automobile passenger's administrator sought damages for wrongful death; the affirmative defense of contributory negligence was raised as to the plaintiff/driver. As was the jury in this case, we were given separate verdict forms on which a finding in favor of each plaintiff could have been indicated and separate verdict forms on which a finding in favor of the defendant could have been indicated as to the claim of each plaintiff. As was the jury in this case, we were instructed that the imposition of punitive damages in a wrongful death case is entirely discretionary with the jury. This appears to me to make the jury's unbridled desire to punish or deter an essential element in a wrongful death action, an element that is distinct from anything in an action for personal injuries, in which the jury must fully compensate an injured plaintiff for all injuries proximately caused by the defendant's wrongful act or omission.
My view of what damages should be recoverable in wrongful death cases, first expressed in my dissent in Tatum v. Schering Corp., 523 So. 2d 1042 (Ala.1988) (which I authored two years after my experience as a juror), and further expressed in my dissent in Alabama Power Co. v. Turner, 575 So. 2d 551 (Ala.1991), is based upon my attempt at legal reasoning. It is not aimed at large punitive damages verdicts for death, or at defense verdicts in death cases. It is not intended to be pro-plaintiff or pro-defendant. In my opinion, the majority's major premise in interpreting Ala.Code 1975, § 6-5-410, is wrong and does not have the hallmark of legal authority in light of the constitutional text that declares that there is a right to life. See Alabama Constitution of 1901, Article I, § 1. We have looked so long at the common law that we fail to recognize rights that are created by our source document, the Constitution. This same source document grants a right to a remedy for an injury done to a person. See Alabama Constitution of 1901, Article I, § 13. To me, these provisions require a remedy for the ultimate injury to a person: death. Yet, in construing Alabama's wrongful death statute as allowing only the imposition of punitive damages, and in making the imposition of those damages optional with the jury, the majority of this Court consistently denies a remedy for death. This could have led to what, in my opinion, is the ultimate inconsistent verdict in this case, a verdict that is based upon a jury's finding that the defendant's act or omission was the proximate cause of the death of the plaintiff's decedent, but that awards no damages because the jury, exercising its discretion, elected not to punish the defendant. I surmise from the majority opinion that a decision on the jury's part not to impose punishment in this case would have made the verdict for Mr. Barnes, individually, and against Mr. Barnes, as administrator of his wife's estate, consistent. Because I simply cannot approve of the manner in which we presently treat wrongful death cases, whereby no remedy is afforded for the violation of a right that is protected by the Alabama Constitution, I must concur in the result.
[1] A third issue raised by the parties is whether Barnes led the trial court into error. Because we reverse on other grounds, we do not address this issue.
[2] In the recent case of Norman Properties v. Bozeman, 557 So. 2d 1265 (Ala.1990), this Court stated that because the defendants in that case failed to object to the choice of verdict form, not the substance, presented to the jury, and because the defendants failed to object to the verdicts before the jury was discharged, any objection to the inconsistency of the verdict forms was waived. In Norman Properties, the form submitted to the jury allowed two possibilities: (1) that the actions complained of were committed by the defendants in their individual capacity; or (2) that the actions complained of were committed in the line and scope of the partnership activities, thus obligating the defendant partnership. Based upon this jury form, the jury returned a verdict against the defendant partnership and for the individual defendants. The verdicts in Norman Properties were not inconsistent, because the jury, in finding against the partnership, decided that the partners were liable in their partnership capacity and that the liability was a partnership obligation rather than an obligation outside the line and scope of the partnership activities.
In the present case, the situation is different. As was stated in Stinson v. Acme Propane Gas Co., 391 So. 2d 659, 662 (Ala.1980):
"Appellants' asserted objection is not grounded on the `form,' `irregularity,' or `informality' of the verdict; rather, it is grounded on the `inadequacy' or `inconsistency' thereof. Likewise, Appellants' failure `to object' is not within the purview of Appellees' cited authority and did not constitute nonfeasance on Appellants' part. Appellants' challenge to the jury's verdict on grounds of `inadequacy' and `inconsistency' was properly made in their motion for a new trial."
We find the reasoning in Stinson, and not Norman Properties, to apply in the present case, because in this case there was an objection to the verdict as to substance, i.e., that the verdicts were inconsistent, rather than an objection on the basis that the verdict forms were defective.
Moreover, Norman Properties did not address the issue of whether an objection based on a claim of inconsistent verdicts could be raised for the first time in a motion for new trial. Norman Properties addressed whether such an objection could be raised for the first time on appeal.
[3] "`If damage to the husband in some measurable amount must necessarily follow proof of personal injury and right to recover by the wife, there would be no defense to the derivative action by the husband. It must follow that the husband would be entitled to the affirmative charge without hypothesis as to damages in some amount. This would be true in consolidated actions. It would then follow that right to recover, and damages in some amount, would be due in separate but nonconsolidated suits brought by the husband if it has been previously determined that the wife was entitled to recover for personal injuries. The matter of injury and right to damages would be res judicata and only the amount of damages would remain to be determined.
"`We do not believe this to be the law nor should it be the law in this State.'"
Lewis v. Moss, 347 So. 2d 91, 93 (Ala.1977), quoting Harden v. Alabama Great Southern R.R., 45 Ala.App. 301, 305, 229 So. 2d 803, 806 (1969) (emphasis added in Lewis). | April 11, 1991 |
f8cf0b60-2541-4c84-9b1f-002bea81f1b7 | Tyler v. City of Enterprise | 577 So. 2d 876 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 876 (1991)
James R. TYLER, as Administrator of the Estate of Raymond Tyler, Jr., deceased
v.
CITY OF ENTERPRISE and Carl Watson.
89-1370.
Supreme Court of Alabama.
March 15, 1991.
Joey Hornsby of Buntin, Cobb & Shealy and Thomas D. Motley, Dothan, for appellant.
Joe S. Pittman and Richard W. Whittaker of Pittman, Whittaker & Pittman, Enterprise, for appellees.
SHORES, Justice.
This case is before us for the second time. In the first appeal, from a summary judgment in favor of the defendants (the City of Enterprise and one of its police officers), we reversed the judgment and *877 remanded the case because discovery had not been completed and the summary judgment was, at the least, premature. See Tyler v. City of Enterprise, 521 So. 2d 951 (Ala.1988).
Discovery has now been completed, and the trial court has again entered a summary judgment in favor of the defendants. The plaintiff appeals. We affirm.
On the night of May 10, 1985, Raymond Tyler, Jr., and his girl friend, Mary Hoffman, were in a bar drinking. They started home in Tyler's automobile around 4 a.m. and on the way got into an argument. Mary opened the door on the passenger side and fell out of the car. Officer Watson saw Tyler's car travelling down the street with the passenger-side door open. He turned around to pursue the car and saw that it had stopped, the passenger door still open. He stopped behind the car and approached Mary, who was lying on the side of the road, between the car and the curb. He asked her what was going on and if she was hurt. She said her leg was hurt, and, according to her, she told him that she and Tyler had been arguing and that she fell out of the car. She said she wanted to drive Tyler home because he was too intoxicated to drive himself. According to Mary, Officer Watson would not let her drive Tyler home, instead directing her to get into his patrol car. Mary said that Officer Watson talked to Tyler, who got out of his car; Mary said that Watson should have noticed that Tyler was intoxicated because, she said, he was unsteady on his feet and his speech was slurred. Mary says that Officer Watson told Tyler to go home, and then drove her to the police station. Watson says that he did not talk to Tyler, and that as he was helping Mary into his patrol car Tyler made a U-turn and drove off.
When Watson and Mary arrived at the police station, they learned that there had been an accident and later learned that Tyler had run head-on into a tractor-trailer within minutes of leaving the scene where Mary fell out of the car. Tyler was killed.
Tyler's father, James R. Tyler, as administrator, brought this wrongful death action against Watson and the City of Enterprise, alleging negligence and wantonness on the part of the City. On appeal from a summary judgment in favor of the defendants, the plaintiff argues that, because there is a dispute in the facts as to whether Officer Watson knew or should have known that Tyler was intoxicated, the summary judgment in favor of the officer and the City was improper.
Before a plaintiff may recover against a defendant tortfeasor on theories of negligence or wantonness, the plaintiff must show that the law imposed on the defendant a duty, that that duty has been breached, and that the plaintiff has suffered an injury as a proximate result of the defendant's breach of the duty imposed by law. In Luker v. City of Brantley, 520 So. 2d 517 (Ala.1987), we held that, from the evidence, a factfinder could reasonably find that the officers had been negligent and that therefore the city could be found liable to a third party injured by the acts of the intoxicated driver. This holding of necessity recognizes a duty on the part of a police officer (and the city on whose behalf he acts) to a third party who may be injured by the intoxicated driver to take steps to keep the intoxicated driver off the public roads. Luker stands for the proposition that once a police officer, acting in the line and scope of his duty, knows that a driver is intoxicated, he has a duty to restrain him, and if he does not restrain him and a third party is injured by the intoxicated driver, the city may be liable for the negligence of the officer in allowing the intoxicated driver to proceed. Tyler argues that the duty extends to the intoxicated driver himself and that if he is injured as a result of his intoxication, the officer and the city should be liable.
It is true, as Tyler argues, that in Luker we said that the factfinder reasonably could have found that the cause of the injury was the negligence of the city in allowing the intoxicated driver to proceed to drive. A more accurate statement would have been: the proximate cause of the injury to the third party was the combined negligence of the intoxicated driver *878 and the city. That distinction is material to this case. Assuming, without deciding, that the duty of the city extends to the intoxicated driver as well as to third parties who may be injured by an intoxicated driver, the intoxicated driver can not recover on a theory of negligence against the city because the driver's negligence will have contributed to his injury and thus will bar a claim against the city and its officer.
In Carroll v. Deaton, Inc., 555 So. 2d 140 (Ala.1989), we held that a plaintiff who swerved off the road and rear-ended a boat trailer could not recover, although the boat trailer had no rear light as required by statute, because the plaintiff was shown to have been, in legal effect, intoxicated at the time of the accident (i.e., he had a blood alcohol limit in excess of .10%). We said:
We quoted from Alabama Power Co. v. Scholz, 283 Ala. 232, 238, 215 So. 2d 447, 452 (1968):
In this case, the evidence, viewed most favorably to the plaintiff, shows that Officer Watson, acting in the line and scope of his duty, knew or should have known that Tyler was intoxicated and that his continued driving would constitute a danger to himself and to others using the public roads. Assuming, without deciding, that he had a duty to Tyler to restrain him, and that his failure to do so was negligence, nevertheless, there can be no recovery against the officer or the city by Tyler's administrator for Tyler's own wrongful death, because the proximate cause of his death was the combined negligence of the officer and Tyler. Tyler's contributory negligence is a complete bar to his claim. Brown v. Piggly Wiggly Stores, 454 So. 2d 1370, 1372 (Ala.1984). Accordingly, the trial court properly entered the summary judgment in favor of the defendants in this case, because they were entitled to a judgment as a matter of law.
While contributory negligence, of course, is not a bar to a wantonness claim, the wantonness claim is not argued on appeal. The only issue raised on appeal is the propriety of the summary judgment on the plaintiff's negligence claim. Although the complaint contains allegations of wantonness on the part of the city, there is no evidence to support this claim. In fact, the plaintiff seems to concede that there is no evidence to support a wantonness claim, and he has apparently abandoned this claim, because the argument on appeal is limited to the negligence issue.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | March 15, 1991 |
0e7ceb7f-fa34-4c09-9ca7-e28daaf8275e | Ex Parte Smith | 581 So. 2d 531 | 1900153 | Alabama | Alabama Supreme Court | 581 So. 2d 531 (1991)
Ex parte James Wyman SMITH.
(Re James Wyman Smith v. State).
No. 1900153.
Supreme Court of Alabama.
March 15, 1991.
Rehearing Denied May 10, 1991.
J. Michael Williams, Sr. and Thomas E. Jones, Auburn, for petitioner.
Don Siegelman, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for respondent.
KENNEDY, Justice.
James Wyman Smith was indicted for capital murder committed during a kidnapping in the first degree, Ala.Code 1975, § 13A-5-40(a)(1).[1] The jury found Smith "guilty as charged in the indictment" and recommended that he be sentenced to death. The trial court, accepting the jury's recommendation, sentenced Smith to death. The Court of Criminal Appeals affirmed the judgment of the trial court, with an opinion, and we granted certiorari review.
*532 On August 31, 1984, Linda Talbert was abducted from her place of employmenta convenience store in Smith's Station, a few miles northwest of Phenix Cityand was subsequently strangled to death. Her body was discovered several days later. Despite great effort, law enforcement officials could not immediately determine definite suspects for the crime. On December 4, 1984, Smith burglarized an apartment in Auburn, and he was arrested on December 5, 1985, for the burglary. He pleaded guilty to that burglary and was sentenced to life imprisonment without parole. While Smith was in prison, a cellmate of his was Marion Enfinger, whose testimony both helped to secure an indictment against Smith for Talbert's murder and provided a substantial portion of the State's case against Smith.
At trial, during the State's case-in-chief, the prosecution called J.F., a resident of Columbus, Georgia, who testified that on the morning Talbert was abducted and killed, Smith came to J.F.'s office, where she worked alone, and forced his way into the office; that he had a pistol and that he made her take off her clothes; that "he got on top of [her]"; that he forced her to perform oral sex on him four or five times; that she took the gun away and tried to shoot him, but the gun malfunctioned and he took the gun back and tried to shoot her, but it again malfunctioned; and that Smith was "impotent" the entire time. Smith was indicted for this alleged assault, but he was never tried for it. J.F. is married to a detective; Enfinger testified that Smith had once told him that Smith had an incident with a policeman's wife in Columbus, Georgia. Before J.F. took the stand, Smith objected to her entire testimony as irrelevant and as being more prejudicial than it was probative of any material or relevant fact.
During closing argument at the guilt stage of the trial, the prosecutor made this statement:
Smith did not object to that argument.
Smith argues numerous grounds of error, but we address only two of the grounds to resolve this case: (1) whether the prosecutor's argument set out above was reversible error; and (2) whether the admission of J.F.'s testimony was reversible error. By not addressing the other grounds of error, we do not mean to imply that we necessarily agree with the rulings of the Court of Criminal Appeals regarding them.
Smith did not object to the prosecutor's guilt-phase closing argument that he now claims is reversible error. Nevertheless, because this is a death penalty case, we are directed by Rule 39(k), A.R.App.P., to "notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." "Plain error" exists when the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the proceedings, Ex parte Womack, 435 So. 2d 766 (Ala.1983); see United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982), and United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981); in other words, "plain error" exists when a substantial right of the defendant has or probably has been adversely affected. Ex parte Johnson, 507 So. 2d 1351, 1356 (Ala.1986); Tell v. State, 285 Ala. 234, 231 So. 2d 107 (1970).
The State acknowledges that the challenged portion of the prosecutor's closing argument at the guilt phase is error; as the State said at the oral argument of this case, "it's not proper to argue that you should convict somebody because he's going to kill again." The State argues that the error is not sufficiently prejudicial to be plain error, however, because, the State says, the prosecutor is entitled to make a *533 general appeal to the jury for the need for law enforcement as a deterrent to crime.
Unquestionably, we have consistently held that as long as a prosecutor does not comment on the possibility that the defendant will commit future illegal acts, he may legitimately argue to the jury the need for law enforcement as a deterrent to crime. Berard v. State, 486 So. 2d 476, 479 (Ala. 1985); Ex parte Waldrop, 459 So. 2d 959, 962 (Ala.1984); Cook v. State, 369 So. 2d 1251, 1255 (Ala.1978). However, we have never indicated that a prosecutor may properly argue for the purpose of proving guilt that a defendant will commit future illegal acts.
In Cook, Recardo Cook was convicted of committing a murder during the robbery of a store. He was sentenced to death. Cook argued that his conviction should be set aside because, in closing, the prosecutor had argued that both storeowners and criminals were watching the case, the criminals wondering if the jury was "going to say to them, ... `we're going to give you a license to kill.'" Cook, at 1254. The Court noted that "a district attorney in closing argument may make a general appeal for law enforcement," id., and that "since the argument complained of did not imply that Cook himself would commit other illegal acts in the future the comment did not overstep the bounds of legitimate argument." Cook, at 1255.
In Ex parte Waldrop, another death penalty case, Waldrop argued that the prosecutor's argument at the sentencing hearing was reversible error because he told the jurors it was up to them whether to allow killers to live in society and that society had the right to defend itself against killers. Waldrop, at 961-62. The Court stated:
459 So. 2d at 962.
In Berard v. State, Jerome Berard had been convicted of capital murder and after a second conviction and appeal, both he and the State petitioned this Court for certiorari review. 486 So. 2d at 477. At trial Berard had pleaded not guilty by reason of insanity. The prosecutor, on cross-examination of the defense's psychologist, asked if Berard could have another bout of insanity and "Is he capable of shooting somebody else?" 486 So. 2d at 478.
The Court noted that it is more prejudicial to a defendant to allow this kind of testimony than it is even to make such an argument in closing and held, as in Waldrop and Cook, that "as long as a prosecutor does not comment on the possibility that the defendant will commit future illegal acts, he may legitimately argue to the jury the need for law enforcement as a deterrence to crime." 486 So. 2d at 479. The Court reversed Berard's conviction and stated the following as one of the reasons:
486 So. 2d at 479.
Consider again the statement the prosecutor made in the closing argument at the guilt phase of Smith's trial:
This statement exemplifies the kind of statement proscribed by Cook, Waldrop, and Berard. The prosecutor directly stated *534 that Smith would kill again in the future "if [he] ever gets loose" and that "only you [the jury] can stop him for sure." The statement sought "by inflammatory appeal to arouse in the jurors a personal hostility towards, or fear of, the defendant." Waldrop, at 962. Like the testimony elicited in Berard, this closing argument at the guilt phase could have shifted the focus of the jury's attention from the central question of whether the State had proved its case beyond a reasonable doubt and to the issue of punishment, which is an improper consideration at the guilt phase of the trial. Berard, at 479; see also, State v. Barksdale, 590 S.W.2d 931 (Tenn.1979). Accordingly, we hold both that the error involved in the prosecutor's argument would seriously affect the fairness and integrity of the proceedings and that substantial rights of Smith have been adversely affected. Berard; Waldrop; Cook; see also Johnson; Womack; Tell. Pursuant to the wording of either standard for determining plain error previously described, the prosecutor's argument was plain error, for which the judgment is due to be reversed and the cause remanded.[2]
Although we reverse for the reasons above, for the sake of judicial economy we address the propriety of J.F.'s testimony, because this issue is almost certain to recur on the remand for new trial.
J.F.'s testimony was evidence of a collateral or corollary crime. See, e.g., Johnson, supra. On numerous occasions, Alabama courts have addressed the admission of such testimony in relation to the general exclusionary rule. In Ex parte Arthur, 472 So. 2d 665 (Ala.1985), a death penalty case, this Court stated:
"Thus, the purpose of the rule is to protect the defendant's right to a fair trial by preventing convictions based on the jury's belief that the defendant is a `bad' person or one prone to commit criminal acts. See Ex parte Cofer, 440 So. 2d 1121, 1123 (Ala.1983)."
472 So. 2d at 668.
In Ex parte Cofer, 440 So. 2d 1121, 1124 (Ala.1983), the Court further stated:
*535 In Robinson v. State, 528 So. 2d 343 (Ala. Cr.App.1988), the Court of Criminal Appeals explained that even if the proffered evidence fits within an exception to the general exclusionary rule, its probative value must outweigh its prejudicial effect for the evidence to be admissible:
528 So. 2d at 347. (Emphasis added.)
The Court of Criminal Appeals held that J.F.'s testimony was admissible under both the res gestae exception and the motive exception to the general exclusionary rule. That court said that J.F.'s testimony had probative value in relation to the res gestae because her testimony indicated a series of related sexual assaults by Smith on the day Talbert was abducted, that is, that J.F.'s testimony indicated that Smith had sexually assaulted J.F. an hour before the abduction of Talbert and that the assault on Talbert could be taken as a sexual assault because she was found nude.
The Court of Criminal Appeals also said that J.F.'s testimony had probative value to show motive. In closing, the prosecutor took J.F.'s testimony that Smith was "impotent" during the entire assault and argued that because Smith was frustrated and obsessed with that "impotence," he abducted Talbert, tried to rape her, and then killed her when he was unsuccessful. Marion Enfinger, one of Smith's cellmates called by the prosecution, testified to the effect that Smith told him that he had attempted to rape a woman, but "could not," so he strangled her. Based on the use of the evidence to prove res gestae and motive, the Court of Criminal Appeals held that the probative value of the evidence outweighed its prejudicial effect.
We disagree. The undue and unfair prejudice caused by J.F.'s testimony is almost self-evident: to defend against J.F.'s testimony, the defense, in the middle of a capital murder trial, would have had to conduct a full-blown trial and defense of the alleged sexual assault. J.F. did not summarily testify that Smith had sexually assaulted her (even summary testimony might have been inadmissible); her testimony alone might well have allowed a jury to convict Smith for a sexual abuse crime.
Although we do not determine whether the Court of Criminal Appeals erred by holding that the evidence was relevant to prove the res gestae, we are less convinced than the Court of Criminal Appeals of the probative value of the evidence to prove the res gestae. J.F.'s testimony indicated that the assailant had a pistol; J.F. was not kidnapped or murdered. Unlike J.F.'s situation, Talbert was both kidnapped and murdered; also, Talbert was strangled, not shot. No doubt, as in J.F.'s case, there were sexual overtones in Talbert's case: Talbert was found nude and Enfinger testified that Smith said he had tried to rape a woman but could not, so he strangled her.
*536 Finallyand this fact is persuasive in regard to the prejudicial effect of J.F.'s testimony outweighing its probative valueat the hearing on the motion for a new trial, Detective Jennifer Rowe of the Columbus, Georgia, police department testified concerning a statement made by J.F. in the police interview immediately after the sexual assault:
Accordingly, there was evidence that in the version of the assault that J.F. gave to the police, she totally contradicted her later trial testimony on the very point that the Court of Criminal Appeals held would allow the testimony to be admissible pursuant to the motive exception to the general exclusionary rule. Considering the undue and unfair prejudice that J.F.'s testimony created, compared to its dubious probative value, we hold that J.F.'s testimony in its entirety is inadmissible, because its prejudicial effect outweighs its probative value. Arthur; Cofer; Robinson. Accordingly, the admission of the testimony was error.
The judgment of the Court of Criminal Appeals is due to be reversed and the cause remanded to that court with directions to order a new trial.
REVERSED AND REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and ALMON, HOUSTON and INGRAM, JJ., concur.
MADDOX, SHORES and STEAGALL, JJ., concur in the result.
[1] The indictment stated:
"The Grand Jury of said County charge that before the finding of this Indictment James Wyman Smith, alias James Smith, whose true Christian name is otherwise unknown to the Grand Jury, did intentionally cause the death of Linda Darlene Talbert by strangling her with an article of clothing, and James Wyman Smith cause[d] said death during James Wyman Smith's abduction of, or attempt to abduct, Linda Darlene Talbert with intent to inflict physical injury upon her or to violate her sexually, in violation of § 13A-5-40(a)(1) of the Code of Alabama."
[2] Although we do not make this a basis for our holding, we question the propriety of arguing that Smith will "kill, and ... kill again," inasmuch as Smith is already serving a sentence of life without parole. He was serving that sentence at the time of the trial. We further question the propriety of an argument that Smith would "kill and kill again," when there is no evidence to that effect and the prosecutor is merely giving his personal psychiatric analysis. Of course, evidence that Smith will at some future time "kill and kill again" is likely to be irrelevant at the guilt phase of the trial. | March 15, 1991 |
fa32a06e-6a0e-49e9-acab-36f3a7b67e0b | Talladega Little League, Inc. v. Anderson | 577 So. 2d 1293 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 1293 (1991)
TALLADEGA LITTLE LEAGUE, INC., Little League Baseball, Inc., and City of Talladega
v.
James W. ANDERSON, as next friend of Blake G. Anderson, a minor.
89-1109, 89-1119.
Supreme Court of Alabama.
March 29, 1991.
*1294 Charles P. Gaines of Gaines, Gaines & Gaines, Talladega, for appellant Talladega Little League, Inc.
George C. Douglas, Jr. of Gaines, Gaines & Gaines, Talladega, for appellant Little League Baseball, Inc.
J.N. Montgomery, Jr., Talladega, for appellant City of Talladega.
Huel M. Love, Sr. of Love, Love & Love, Talladega, for appellee.
INGRAM, Justice.
This Court's original opinion of December 7, 1990, is withdrawn, and the following is substituted therefor.
On May 15, 1989, James Anderson filed a complaint and a request for a temporary restraining order against the City of Talladega and Little League Baseball, Inc., a Pennsylvania corporation, enjoining them from prohibiting his son, Blake G. Anderson, from playing baseball on a Talladega Little League minor league team. The temporary restraining order was issued on May 15, 1989. On May 28, by order of the trial court, the temporary restraining order was made effective through the 1989 baseball season. On June 2, in a separate action, Talladega Little League was enjoined after Anderson determined that neither the City of Talladega nor Little League Baseball, Inc., had control over Talladega Little League. The defendants, City of Talladega, Little League Baseball, Inc., and Talladega Little League, petitioned this Court for a writ of mandamus requiring the trial court to consolidate the cases and to either dissolve the injunction or to dismiss the case. On January 5, 1990, this Court denied the writ in Ex parte Talladega Little League, Inc., 556 So. 2d 386 (Ala.1990), because the underlying action, to determine whether Blake had been arbitrarily prohibited from playing little league baseball, had become moot with the end of the 1989 baseball season. Id. at 387. On March 20, 1990, the trial court entered the following order: "The court, after hearing extensive argument of counsel, finds that the issues complained of have become moot and the case is dismissed."
Talladega Little League, Little League Baseball, Inc., and the City of Talladega appealed from that dismissal on the grounds that the trial court had improperly denied them a judicial determination of whether the injunctions had been wrongfully issued and, if so, whether they were *1295 entitled to recover costs, damages, and attorney fees from Anderson.
In Ex parte Talladega Little League, supra, this Court held that the issues presented by the defendants were moot and, therefore, that mandamus would not issue. Id. at 387 (citing State ex rel. Gallion v. Emmet, 285 Ala. 511, 234 So. 2d 47 (1970); Ex parte Kaiser Jeep Corp., 283 Ala. 165, 214 So. 2d 908 (1968)). The majority did not address the question whether the injunction had been wrongfully issued. That question is again before this Court on this appeal because the injunction was not dissolved until the trial court dismissed the entire action on the ground that it was moot.
While it is true that this Court's denial of the petition had the same effect as an order dissolving the injunction, i.e., a termination of the action, it is also true that the appellants would have obtained a more complete result if the injunction had been dissolved on the ground that it had been wrongfully issued. This difference would have provided access by the appellants to costs, damages, and attorney fees from the two $1,000 bonds Anderson posted to secure the injunctions. It is clear that this Court, in Ex parte Talladega Little League, Inc., did not adjudicate the propriety of the issuance of the injunction in that mandamus proceeding. Mandamus will usually not be issued to review a lower court's order granting or denying a temporary injunction, because the order is generally appealable. Ex parte Perry County Board of Education, 278 Ala. 646, 180 So. 2d 246 (1965).
Based on the facts and circumstances in this case, we conclude that the injunctions were, as a matter of law, wrongfully issued; therefore, the appellants, having obtained a dissolution of the injunctions, are entitled to whatever costs, damages, and attorney fees they are able to prove to the trial court. Justice Maddox, in his dissent in Ex parte Talladega Little League, felt that the Court should have addressed the question of the propriety of the issuance of the injunctions, and he set out his reasons for believing that the injunctions had been wrongfully issued. We agree with his conclusion on the wrongful issuance question, and we now adopt, as the law of this case, the following pertinent parts of his dissent in Ex parte Talladega Little League, supra:
Id. at 387-88 (Maddox, J., dissenting) (footnote omitted).
In concluding that the injunction was wrongfully issued, Justice Maddox stated:
Ex parte Talladega Little League, Inc., supra, at 389 (Maddox, J., dissenting).
In the line of cases involving the Alabama High School Athletic Association, *1296 this Court has held that jurisdiction over these cases is invoked
Alabama High School Athletic Association v. Rose, 446 So. 2d 1, 5 (Ala.1984) (citing Scott v. Kilpatrick, 286 Ala. 129, 237 So. 2d 652 (1970)).
The plaintiff, Anderson, averred that Talladega Little League's decision not to allow his son Blake to play little league baseball was arbitrary. However, by his own admission, Anderson did not properly register Blake for Talladega Little League's minor league, the league for children Blake's age. He admits that he registered Blake for the T-ball league, which is a league administered by the City of Talladega for children younger than Blake. The record does not indicate that Anderson produced any evidence that the decision of Talladega Little League was arbitrary, as Anderson claimed. In fact, the record shows that the decision of Talladega Little League not to allow Blake to play baseball was based upon Anderson's own failure to properly register Blake.
Also, the record reveals that the City of Talladega and Little League Baseball, Inc., had no control over Talladega Little League's minor league program and, therefore, could not possibly have prevented, arbitrarily or otherwise, Blake from participating in the baseball program. In the order making the temporary injunction against the City of Talladega and Little League Baseball, Inc., permanent and releasing the sureties, the trial court said that the conduct complained of was a result of mistake on both sides and that the decision of the defendants, Little League Baseball, Inc., and the City of Talladega, to deny Blake the opportunity to participate in the minor league program was arbitrary and without justification. However, Anderson had produced no evidence that the City of Talladega or Little League Baseball, Inc., had any control or influence over the decision of Talladega Little League as to who would play minor league baseball. Therefore, we hold that the injunction was wrongfully issued and that the trial court prematurely released the sureties.
Because both injunctions were wrongfully issued, as a matter of law, the defendants have a cause of action for recovery under the surety bonds posted in accordance with Rule 65(c), A.R.Civ.P. Rule 65(c) provides:
Ala.R.Civ.P. 65(c). This court has held that "[t]he bond is the contract of the parties executing it, [and that] the [rule] prescribes its terms and conditions, and the right of action arises immediately upon its breach." Miller v. Wood, 257 Ala. 594, 595, 60 So. 2d 353, 354 (1952). The bonds in this case were conditioned upon a determination that the temporary injunction be found to have been wrongfully issued. The injunctions were wrongfully issued, as a matter of law, and the defendants are entitled to recover costs, damages, and reasonable attorney fees under the security bonds.
The judgment of the trial court dismissing Anderson's complaint against the defendants, City of Talladega, Little League Baseball, Inc., and Talladega Little League, is reversed. The trial court is directed forthwith to conduct an evidentiary hearing and determine the amount of costs, damages, and attorney fees incurred by the defendants to be paid out of the bonds.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION *1297 FOR REHEARING GRANTED; REVERSED AND REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | March 29, 1991 |
77767c26-b8d8-40fd-8585-06e1fe955142 | Friar v. McCrary | 578 So. 2d 1249 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1249 (1991)
Vikki L. FRIAR
v.
Leon A. McCRARY, as Executor of the Estate of Homer Gay McCrary, Deceased.
89-1269.
Supreme Court of Alabama.
April 5, 1991.
Kenneth W. Hooks and Ralph Bohanan of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellant.
Robert O. Cox and Preston S. Trousdale, Jr. of Poellnitz, Cox & Jones, Florence, for appellee.
KENNEDY, Justice.
The plaintiff, Vikki L. Friar, appeals a judgment based on a jury verdict for the defendant, Leon A. McCrary, executor of the estate of Homer Gay McCrary, deceased. The suit arose out of an automobile accident that occurred in Florence, Alabama. We reverse.
The accident occurred on December 6, 1986, on Cox Creek Parkway. The suit was filed on October 9, 1987. Mr. Homer G. McCrary died on February 10, 1988, and Leon McCrary was appointed executor of his estate. Prior to his death, Homer McCrary had answered interrogatories served upon him by Vikki Friar. The acknowledgement on his answers bears the date December 16, 1987. At trial, these *1250 interrogatories were read to the jury by Ms. Friar's attorney, without objection. McCrary had answered questions concerning the location of the accident, his actions before and after the accident, and statements made by Ms. Friar. Ms. Friar then took the witness stand to testify. Outside the presence of the jury, her counsel made an offer of proof as to her testimony. Once the jury returned, the direct examination continued and defense counsel objected to three specific questions asked her by her counsel: "Where did the wreck occur?"; "Did your car ever leave the outside lane?"; and "Was your vehicle ever in the inside lane?" The basis of each of the objections was the Dead Man's Statute, Ala.Code 1975, § 12-21-163. The issue presented here is whether the trial court erred in excluding the evidence based upon the Dead Man's Statute.
The purpose of the Dead Man's Statute is to prevent a witness who has a pecuniary interest in the estate of a deceased from testifying as to transactions with, or statements made by, the deceased. Lett v. Watts, 463 So. 2d 138, 142 (Ala. 1984). The statute reads as follows:
For the Dead Man's statute to apply, there must have been a transaction between the deceased and the person who is testifying or there must have been statements allegedly made by the deceased to the witness. It is clear that an automobile accident can be a "transaction" for the purposes of this statute. Southern Natural Gas Co. v. Davidson, 225 Ala. 171, 142 So. 63 (1932). It also appears that, depending on the relationship of the parties to each other in regard to the accident, an automobile accident is not necessarily a "transaction" for purposes of the statute. Gibson v. McDonald, 265 Ala. 426, 91 So. 2d 679 (1956).
Nevertheless, assuming that the automobile accident constituted a transaction between Friar and Homer McCrary, we note that from the record it appears that the answers to the questions objected to would have been known to Vikki Friar before she had that transaction with Homer McCrary. She would have known where her car was, what lane it was in, and where she was going, prior to the accident. As Mr. McCrary's counsel points out, the location of the accident was already known to the jury, so it is not clear what harm it would have caused for Vikki Friar to testify to that. In Moore v. Moore, 212 Ala. 685, 686, 103 So. 892, 893 (1925), it was held that the Dead Man's Statute would not apply to "any matter of fact coming to [the witness's] knowledge in any other way than through personal dealings with the deceased or communications made by the deceased to the witness in person." That principle was applied in Gibson v. McDonald, supra. Certainly, Vikki Friar had knowledge of the location of her car before the accident with Mr. McCrary. Even if this testimony did fall within the reach of the statute, however, it still would have been admissible under the statute. The statute provides an exception to its bar if the testimony of the deceased person in relation to the transaction "has been taken and is on file in the case." Here, the *1251 deceased's answers to interrogatories regarding the accident were on file and were introduced into evidence by the plaintiff, without objection by the defendant. Thus, the testimony of Vikki Friar would have been admissible on the points objected to. It was error for the trial court to prevent Ms. Friar from answering the questions posed by her counsel.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | April 5, 1991 |
2b21d01a-ff06-4a41-88b4-c1ba648fb6ae | Ex Parte Sattari | 577 So. 2d 540 | 1900312 | Alabama | Alabama Supreme Court | 577 So. 2d 540 (1991)
Ex parte Hamid and Mary SATTARI.
(Re Hamid Sattari and Mary Gibson Sattari v. State of Alabama).
1900312.
Supreme Court of Alabama.
March 8, 1991.
Dennis N. Balske, Montgomery, for petitioners.
Don Siegelman, Atty. Gen., for respondent.
Prior report: Ala.Cr.App., 577 So. 2d 535.
HORNSBY, Chief 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.
ALMON, SHORES, STEAGALL and INGRAM, JJ., concur. | March 8, 1991 |
9eb61dae-3f19-45c2-a029-8c5cf9a02562 | State v. Brown | 577 So. 2d 1256 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 1256 (1991)
STATE of Alabama
v.
James Clyde BROWN, et al.
89-1812.
Supreme Court of Alabama.
March 8, 1991.
Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for appellant.
William J. Baxley and Joel F. Dillard of Baxley, Dillard & Dauphin, Birmingham, and J. Doyle Fuller and George L. Beck, Jr., Montgomery, for appellees.
David R. Boyd, W. Joseph McCorkle, Jr. and Dorman Walker of Balch & Bingham, Montgomery, amici curiae in support of the State.
SHORES, Justice.
This case is here after our remand of Brown v. State, 565 So. 2d 585 (Ala.1990), to the trial court for the setting of attorneys fees. The Honorable Charles Price, Circuit Judge for Montgomery County, held a hearing and awarded the sum of $1,197,186.88 to the attorneys for the plaintiff class. The State of Alabama appeals. We affirm.
The class action that became Brown I[1] and Brown II[2] on earlier appeals, and now becomes Brown III, was an outgrowth of this Court's decision in Ex parte Dison, 469 So. 2d 662 (Ala.1984), which reversed a defendant's conviction for driving under the influence in violation of Code 1975, § 32-5A-191, because the Uniform Traffic Ticket and Complaint ("UTTC") issued to the defendant had not been verified before a judicial officer and the defendant had raised that issue at the time of trial.
A class action was filed by James Clyde Brown and Terry P. Duncan against the State of Alabama, the City of Montgomery, and others, on behalf of themselves and all those who were convicted of traffic offenses based upon improperly verified UTTCs. Two classes of plaintiffs were certified by the trial judge. Subclass A contained those persons whose tickets were not verified and that fact was apparent on the face of the ticket. Subclass B contained *1257 those persons whose UTTCs appeared to be properly verified on the face of the ticket but, in fact, were not. See Brown II, supra, at 586.
In Brown I, the trial judge entered a summary judgment in favor of the plaintiffs as to Subclass A only. On the authority of City of Dothan v. Holloway, 501 So. 2d 1136 (Ala.1986), this Court reversed the judgment of the circuit court as to Subclass A and remanded the cause.
The defendants then filed a motion to dismiss the plaintiffs' claims as to Subclass B. The trial judge dismissed the claims of Subclass B on the authority of the appeal in Brown I. This dismissal was appealed to this Court as Brown II. We affirmed the judgment of the trial court insofar as it denied the relief sought by the members of Subclass B. We did, however, award attorney fees to the plaintiff class, explaining as follows:
"....
565 So. 2d at 590-91. We then remanded the case to the trial court for proceedings to determine the amount of attorney fees to be awarded. The question before the trial court was not whether to award attorney fees, but what amount should be awarded.
A hearing was held on September 4, 1990, to determine the amount of these fees. The State of Alabama did not file a motion for a new trial; instead, it filed a notice of appeal from the order awarding fees.
On appeal, the State attempts to reargue Brown II. It contends that the plaintiff class was not entitled to attorney fees as a matter of law, and second, that the plaintiff class was not entitled to attorney fees because the plaintiffs did not prevail. These are the same matters that were the subject of the State's application for rehearing in Brown II. Rule 40, A.R. App.P., prohibits us from revisiting these issues.
We observed in Glasscock v. Wallace, 488 So. 2d 1346 (Ala.1986), that an attempt *1258 in a subsequent appeal to overturn a ruling on an issue that has been decided in a prior appeal is improper. We stated as follows:
488 So. 2d 1348.
Accordingly, the only issue before us is whether the award of attorney fees was excessive. The record reflects that Judge Price held a hearing on the matter on September 4, 1990, and issued this order:
*1259 "One expert witness testified for each of the parties, affidavits from additional attorneys were introduced into evidence, and Montgomery County District Court records reflecting a total fine and costs amount in controversy were submitted to the Court by stipulation of the parties. The sum stipulated was $4,788,747.55.
"The attorneys for the plaintiff class have applied to the Court for an attorney fee of $2,394,373.77. This application is DENIED because the Court finds it excessive. In denying the fee requested by counsel for the plaintiff class, the Court is mindful of the undisputed evidence that counsel for the plaintiff class enjoy excellent reputations, have particular expertise in cases of this nature, devoted thousands of hours to this case for five years without any payment whatsoever, and did so in spite of the undesirability of the case and its contingent nature.
"Counsel for the plaintiffs in Mashburn, supra, recommends to this Court an attorney fee of $2,215,631.20 on an hourly lodestar basis, or in the alternative, $1,915,499.02 on a percentage basis, opining that any lesser fee would constitute a rejection of the Supreme Court's judgment that the attorneys for plaintiffs accomplished much more than mere establishment of a common fund. While the Court agrees that attorneys for Brown did, in fact, accomplish much more than the mere establishment of a common fund, it also REJECTS each of the amounts recommended by counsel for Mashburn as excessive. As unique as this case is, the Court is not persuaded that hourly lodestar calculationseven though in this case such calculations would reasonably result in an attorney fee of $2,215,631.20were mandated by the Supreme Court. The Court has, as ordered, considered the many hours expended by counsel for Brown with commendable zeal as but one of the thirteen guidelines required in its analysis.
"The Court is particularly impressed by the scholarly opinion and judgment of United States District Judge Joel Dubina in Mashburn, supra. Judge Dubina has provided not only the Alabama Supreme Court, but also this Court, with an invaluable comprehensive collection of case law, logically and intellectually interpreted, which is of enormous benefit in cases like this. In this case, the Court is convinced that application of Judge Dubina's hourly lodestar analysis would result in a substantially higher award to counsel for Brown, but nevertheless REJECTS such a method of determining the fee in this case as excessive.
"The Reynolds case cited in the Supreme Court's remand instructions is familiar to this Court; it involved a one-third percentage award ordered by this Court. The attorneys for Reynolds were no more successful than the attorneys for Brown, but the judicial task of determining an award of an attorney fee was simplified by the establishment of a common fund.
"The fact that no common fund exists in this case has been dealt with effectively by Justice Shores' majority opinion, which, like Justice Adams' opinion in Reynolds, supra, cites Mills v. Electric Auto-Lite, 396 U.S. 375, 90 S. Ct. 616, 24 L. Ed. 2d 593 (1970), as follows:
"396 U.S. at 392 [90 S. Ct. at 625].
"Judgment is hereby entered in favor of William J. Baxley, Joel E. Dillard, J. Doyle Fuller and George L. Beck, collectively, against the State of Alabama in the sum of $1,197,186.88.
"Each party to this action is ordered to bear its own costs.
"Done this 7th day of September, 1990.
This order reflects that Judge Price heard evidence concerning the question of the appropriate amount to award as attorney fees. He had before him the fact that the total amount of fines and costs in controversy was stipulated to be $4,788,747.55. The attorneys for the plaintiff class had applied to the trial court for attorney fees of $2,394,373.77. In addition, he had the testimony of one expert witness for each of the parties. Judge Price weighed this testimony against the 13 guidelines this Court had given him and the cases cited for his consideration, and he awarded attorney fees of $1,197,186.88.
This Court has recognized that, in a proper case, a reasonable attorney fee may be set by the court in its discretion, and that the trial court's decision can be reversed only for an abuse of discretion. Robbins v. Smith, 495 So. 2d 577, 580 (Ala.1986); Ingalls v. Hare, 266 Ala. 221, 96 So. 2d 266 (1957). We have carefully reviewed the record and the trial court's reasoning. We find that the award of attorney fees is due to be affirmed. See Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala.1983); Peebles v. Miley, 439 So. 2d 137 (Ala.1983); Mashburn v. National Healthcare, Inc., 684 F. Supp. 679 (M.D.Ala.1988); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
AFFIRMED.
ALMON, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
In Brown v. State, 565 So. 2d 585 (Ala. 1990) ("Brown II"), I expressed, in a dissenting opinion, the reasons why I thought that attorney fees should not be awarded in this case. I desire to add additional reasons why I think that the awarding of attorney fees in this case is inappropriate. Statement in Brown II that Litigation Caused Change In Practice of Handling Traffic Tickets Not Supported in Record
In the opinion in Brown II this Court stated as a basis for the award of attorney fees that "[t]his litigation clearly resulted in a benefit to the general public," because "[i]t is unquestionable that plaintiffs' attorneys rendered a public service by bringing an end to an improper practice," and that "[t]he public nature of the services rendered by these lawyers justifies an award of attorney fees."
The inference from that statement in the majority opinion in Brown II is that the filing of this lawsuit was what caused the change in the practice used in Montgomery County to verify traffic tickets. With all due respect to the majority, I must point out that there was no evidence in the record that was before the Court in Brown II to support that finding. This record shows affirmatively that it was not this lawsuit that caused the practice to change, but the release of this Court's opinion in Ex parte Dison, 469 So. 2d 662 (Ala.1984), which was released before this case was filed,[3] and was later overruled by City of *1261 Dothan v. Holloway, 501 So. 2d 1136 (Ala. 1986).
I wish to make one further point. The State of Alabama, by and through the attorney general, raised in the trial court, and in this Court, a constitutional issue of the right of this Court to award attorney fees against the State of Alabama, in view of the provisions of Section 14 of the Constitution of Alabama, 1901.[4] Unfortunately, the Court has elected not to address this important constitutional question, by stating that it is an issue that was decided adversely to the State on original deliverance and on rehearing, and that the State is attempting to raise the issue for a second time. I believe the Court is mistaken in thinking that the constitutional issue was raised in the State's application for rehearing in Brown II. I have checked the original briefs and the application for rehearing in that case, and I conclude that the constitutional issue was not raised. Normally, this Court will address a constitutional claim that is properly raised in the trial court. Delview Meadow Gold Division Beatrice Foods Co. v. Alabama Dairy Comm'n, 383 So. 2d 511 (Ala.1978).
Based on the foregoing reasons, I dissent.
STEAGALL, J., concurs.
[1] State v. Brown, 514 So. 2d 836 (Ala.1987), cert. denied, 485 U.S. 961, 108 S. Ct. 1225, 99 L. Ed. 2d 425 (1988).
[2] Brown v. State, 565 So. 2d 585 (Ala.1990).
[3] The State of Alabama filed a motion for summary judgment in Brown II and for a denial of attorneys' fees, on the grounds that "[t]he State of Alabama is immune from the award of attorney's fees, pursuant to Article I, Section 14, Constitution of Alabama, 1901," and that "[t]he defendants are entitled to summary judgment as a matter of law, because the undisputed facts show that the District Court of Montgomery County began to properly verify UTTCs in accordance with the decision in Ex parte Dison, 469 So. 2d 662 (Ala.1984), [when] the Clerk of the District Court learned of the decision in Dison on November 28, 1984, more than two months before the [instant] lawsuit was filed." The State attached affidavits of the district court clerk, the circuit court clerk, certified copies of "Legal Notes" from the Administrative Office of Courts, and certified copies of UTTCs.
[4] As shown in footnote 2, supra, the constitutional issue was raised in a motion for summary judgment, supported by affidavits and other evidence. | March 8, 1991 |
6af63345-f970-41e4-af2b-35403fd93965 | Casey v. Oliver | 577 So. 2d 453 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 453 (1991)
Marty CASEY, as father and next friend of Felicia Nell Casey, a minor
v.
Ethel M. OLIVER.
89-1356.
Supreme Court of Alabama.
March 15, 1991.
J. Robert Bentley, Oneonta, for appellant.
W.J. McDaniel and John F. McDaniel of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.
MADDOX, Justice.
This appeal presents a question of the liability of the defendant for injuries suffered by her 22-month-old great-granddaughter, when the child ingested tranquilizers that the defendant had left on a shelf *454 over the bed in which the child was to sleep.
The trial court directed a verdict for the great-grandmother on the ground that the plaintiff had failed to prove, by substantial evidence, that the great-grandmother had been guilty of willfulness or wantonness.
The basic facts giving rise to the action are that in May 1988, the infant, Felicia Casey, and her parents spent the night at the home of the infant's great-grandmother, Ethel Oliver, who was the grandmother of Felicia's mother, Melissa Casey.
The sleeping arrangements were that Felicia and her mother, Melissa, were to sleep in Ms. Oliver's bed, and Marty, Felicia's father, was going to sleep in a back bedroom. Ms. Oliver was going to sleep in another bedroom in the house. Even though when she left her own bedroom Ms. Oliver took with her a bag containing her medicine, it is undisputed that a sample bottle containing Sinequan, a trade name for the generic drug Doxepin, was left on a small wicker shelf about 12 inches above Ms. Oliver's bed, in which Felicia was to sleep with her mother.
Just before the family went to bed, Melissa was in the bathroom and Marty was in the back bedroom. Ms. Oliver was in the front bedroom preparing for bed. Upon entering Ms. Oliver's bedroom, Melissa saw Felicia with five pills in her hand and an open medicine bottle on the bed. Melissa examined Felicia's mouth and throat but found nothing. She then summoned Marty and Ms. Oliver to come into the room. When Melissa asked Ms. Oliver how many pills had been in the bottle, Ms. Oliver said that she had two sample bottles, and that each bottle contained five pills, that she had combined the two bottles, and had taken a total of five pills, which would have left five pills in the bottle. Ms. Oliver also told Melissa that "it wouldn't hurt her if she had taken it [the medication] ... [i]t was just cold medicine, and she knew there was only five pills in the bottle." Melissa and Marty discussed taking Felicia to the emergency room or to the poison control center. Ms. Oliver said, according to the record, "there is no reason to [take Felicia to the emergency room or poison control center] because there were only five pills in the bottle, and even if she had taken any, it won't hurt her." Melissa and Marty claimed that they relied upon these statements and did not take Felicia to receive any emergency treatment at that time. After her parents talked to Felicia and checked her mouth, everyone went to bed.
The next morning, Felicia could not be awakened. She was rushed to the emergency room at Guntersville Hospital where she was treated for a drug overdose. After Felicia had a grand mal seizure, she was transported to the pediatric intensive care unit at Children's Hospital in Birmingham, where she was treated further for Sinequan ingestion. There was evidence presented that, based on tests, Felicia could have swallowed as many as four of the Sinequan pills.
In his complaint, Marty Casey, as next friend of Felicia, alleged that Ms. Oliver had "negligently left the [Sinequan] out where the two (2) year old guest could easily get it"; that after the child had swallowed the pills, she represented to the parents that "she knew how many pills had been in the medicine bottle and that the minor had not swallowed any"; and that the parents had relied on this representation and had delayed seeking medical assistance for several hours.
It is apparent from the record that the trial judge, based on the evidence, was of the opinion that the plaintiff had failed to show, by substantial evidence, that Ms. Oliver was guilty of willfulness or wantonness. He, therefore, directed a verdict in favor of Ms. Oliver.
On appeal, Casey argues that "the trial judge probably would not have granted the Defendant's motion for a directed verdict had he used a standard of care which required simple negligence." Our examination of the record convinces us that this statement in Casey's brief is probably true. Consequently, our review must be based upon the law as it applies to children of tender years who are licensees.
We begin our review by stating the law concerning the quantum of proof required *455 in order for a party to defeat a motion for a directed verdict. Our law provides that "[i]n all civil actions ... proof by substantial evidence shall be required to submit an issue of fact to the trier of fact." Ala.Code 1975, § 12-21-12; see Ala.R.Civ.P. 50; Ex parte Oliver, 532 So. 2d 627 (Ala.1988).
We begin our analysis of the directed verdict by stating that all of the parties agree that the child was a social guest and had the status of a licensee. In view of this fact, the only question presented is whether there was substantial evidence that Ms. Oliver had breached a duty owed to the infant licensee.
In order to decide this issue, we must examine, once again, the principles of law dealing with a premises owner's duty to a child of tender years who is on the premises. This Court, in Tolbert v. Gulsby, 333 So. 2d 129, 131 (Ala.1976), set out the principle of law to be applied, as follows:
Based on these principles of law, Ms. Oliver's owed to Felicia the duty "not [to] willfully or wantonly injure her, or not to allow her to be negligently injured after becoming aware of her peril." Raney v. Roger Downs Ins. Agency, 525 So. 2d 1384 (Ala.1988). See also Copeland v. Pike Liberal Arts School, 553 So. 2d 100 (Ala.1989).
In Raney, a child of tender years had gone with her parents to the offices of an insurance agency that her parents had contracted to clean over the weekend. While using the bathroom in the offices, the child found an open container of lye on the bottom shelf of the bathroom and, mistakingly thinking it was sugar, put a spoonful of it in her mouth, and was injured. In that case, this Court, pointing out that the defendant had no knowledge that the child would be on the premises, held that the trial court correctly entered a summary judgment in favor of the defendant insurance agency. The Court noted that "plaintiffs' second cause of action was based upon the theory that the lye constituted a dangerous instrumentality" and that "[t]he standard of care that the defendants owed with respect to storage of lye was to exercise care commensurate with the risk of injury," but that "[t]he storage of the container of lye within locked offices, presumably not accessible to children, [met] that standard."
In Raney, this Court also mentioned the doctrine of "attractive nuisance" discussed by this Court in Tolbert v. Gulsby, and, quoting from Republic Steel Corp. v. Tillery, 261 Ala. 34, 38, 72 So. 2d 719 (1954), stated:
525 So. 2d at 1388. (Citation omitted.)
In Raney, this Court quoted a definition of "wantonness" in a context of liability to *456 licensees that was contained in a previous case:
525 So. 2d at 1387.
There is yet another reason why a directed verdict was inappropriate in this case. There was evidence that after Ms. Oliver knew that the child had opened the bottle containing the medication, she told the child's parents that "it wouldn't hurt her if she had taken it [the medication] ... [i]t was just cold medicine, and [that] she knew there was only five pills in the bottle." Casey claims that this evidence shows that Ms. Oliver was guilty of "active negligence," which would remove this case from the standard of care generally used with licensee cases, and place it under the standard set out in Orr v. Turney, 535 So. 2d 150, 152 (Ala.1988):
In Orr the plaintiff, a 15-month-old boy visiting the home of the defendant, was playing outside with some other children at the bottom of the steps that led out of the defendant's kitchen. While the defendant was cooking, a pan of grease caught on fire. The defendant grabbed the pan and flung open the kitchen door. The pan apparently became too hot to hold, and the defendant dropped it, splattering hot grease on the plaintiff and burning him severely.
This Court held that the trial court erred in directing a verdict for the defendant, because the evidence indicated that she committed an affirmative act, which would have increased her duty to act with reasonable care, and "the jury could conclude that [the defendant's] acts were done consciously with reckless indifference for their consequences." Id.
The distinction between liability based upon the affirmative conduct of the premises owner (Orr) and the liability of an owner for a condition of the premises (Raney) is somewhat blurred. In Raney, this Court stated that the landowner owes to the licensee a duty "not to allow [the licensee] to be *457 negligently injured after becoming aware of [the licensee's] peril." 525 So. 2d at 1387. The facts of this case, we find, require the application of the principles of law set out in Raney. The facts are somewhat similar, in that a condition was created and a child came in contact with it and was injured. In that case, of course, there was no evidence that the defendants had any knowledge, either actual or constructive, that the minor plaintiff was on the premises. In this case, the jury could infer from the evidence that the premises owner had knowledge that the pills were on the shelf over the bed in which the child would be sleeping and knew that if the child came in contact with them, the child would likely or probably be injured as a result. The jury could further infer that the premises owner, after becoming aware that the child had possibly ingested some of the pills and was in a position of peril, was negligent in representing to the child's parents that immediate medical attention was unnecessary.
Therefore, we hold that the trial court committed reversible error when it directed a verdict for Ms. Oliver on Casey's claims of negligence. The judgment of the trial court is, therefore, reversed and the cause is remanded to the trial court.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | March 15, 1991 |
4ee1e24d-f6b4-4595-b9c6-1a4e54329347 | Lee v. Ledsinger | 577 So. 2d 900 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 900 (1991)
Albert Charles LEE, Jr., and Karen Lee
v.
Rick LEDSINGER, et al.
89-1827.
Supreme Court of Alabama.
March 15, 1991.
J. Zach Higgs, Jr. of Higgs, Conchin & Emerson, Huntsville, for appellants.
D. Edward Starnes III and Rennie S. Moody of Lanier, Ford, Shaver & Payne, Huntsville, for appellees.
HOUSTON, Justice.
The plaintiffs, Albert Charles Lee, Jr., and his wife, Karen Lee, appeal from the *901 summary judgment entered in favor of the defendants, Rick Ledsinger, Dick Robinson, and Perry Ellison, Jr., in this action to recover damages based on personal injury to Mr. Lee. The action was brought under Ala.Code 1975, § 25-5-11 (part of the Alabama Workmen's Compensation Act).[1] We affirm.
Summary judgment was proper in this case if there was no genuine issue of material fact and the defendants were entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the defendants to make a prima facie showing that no genuine issue of material fact existed and that they were entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to the plaintiffs to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against them. In determining whether there was a genuine issue of material fact, this Court must view the evidence in the light most favorable to the plaintiffs and must resolve all reasonable doubts against the defendants. Wakefield v. State Farm Mutual Automobile Ins. Co., 572 So. 2d 1220 (Ala. 1990). Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
The evidence, viewed in the light most favorable to the plaintiffs, shows the following: Albert Charles Lee, Jr., who had a history of neck and back problems, which included two operations, had been an employee of Dunlop Tire Corporation at its rubber processing and tire manufacturing plant in Madison County for approximately 12 years when, on June 24, 1988, he suffered two ruptured disks in his neck while lifting and pulling a metal pallet that was used to transport "mixed rubber" from the "mixer" to a conveying system for further processing. Lee, who had transferred to Department 701, "A" shift, in March 1988, used a forklift to carry the pallet, which weighed approximately 130 to 135 pounds, from the "mixer" to the conveyor. However, pursuant to a procedure that had been officially instituted in Department 701 in 1987, Lee was required to manually position the pallet on the conveyor. That procedure had been implemented by Ellison, who was Lee's shift supervisor; it had been instituted by Robinson, who was Ellison's supervisor. Ledsinger was the plant's production manager and Robinson's supervisor. Lee was injured as he was manually lifting and pulling the pallet into position on the conveyor.
A great deal of discussion between the plant's managers and supervisors, which included the defendants, and representatives of Lee's union had taken place on June 23, the day before Lee's injury, and on the morning of June 24, prior to Lee's injury, concerning the propriety of the plant's procedure requiring the manual positioning of the pallets on the conveyor in Department 701. That procedure was applicable to all of the forklift operators in Department 701 whose jobs were to transport rubber from the "mixer" to the conveyor, and the discussion between the plant's managers and supervisors and the representatives of the union was the result of complaints that had been made by Lee on June 23 and 24, and by a number of other forklift operators. Those complaints stemmed from the fact that the procedure that had been instituted in 1987, requiring the manual positioning of the pallets, had not been enforced for a period of time, resulting in the fact that the forklift operators in Department 701 had been allowed to follow a different procedure for positioning the pallets on the conveyor with the forklifts. Lee had transferred to Department 701 in March 1988, during the period when employees were being allowed to use this *902 alternative procedure. However, enforcement of the procedure that had been instituted in 1987 was commenced again on June 23, 1988, out of concern that the procedure of allowing the use of the forklifts to position the pallets was damaging the equipment.
The defendants were generally aware when Lee transferred to Department 701 in March 1988, that he had a history of neck and back problems. In fact, Robinson had been concerned that Lee might not be physically capable of doing the job. At that time, however, Lee was under no restrictions as to the amount of weight that he could lift; but, after working for several months and after experiencing discomfort in his neck and back, Lee had seen his doctor on June 21, 1988, and the doctor had told him not to lift more than 50 pounds. When the procedure for positioning the pallets manually went into effect again on June 23, Lee informed Ellison that he had been restricted by his doctor to lifting no more than 50 pounds. Ellison told Lee that the procedure for positioning the pallets with the forklifts had been changed on orders from "upstairs" and that Lee had to manually position the pallets. It was at that point that Lee, and the other forklift operators, began to complain. By the end of the day on June 23, Ledsinger and Robinson had also been told of the weight restrictions that had been placed on Lee by his doctor. The procedure requiring the manual positioning of the pallets was officially changed on June 24, within approximately 24 hours of the initial complaints. In fact, at the time Lee was injured on the morning of June 24, the decision had already been made by Ledsinger to have the forklift operators in Department 701 return to the procedure of using forklifts to position the pallets on the conveyor. Unfortunately, that decision had not been communicated to Ellison.
The substance of the plaintiffs' complaint charges the defendants with "willful conduct" with the intent to injure, under § 25-5-11(c)(1), supra. In Reed v. Brunson, 527 So. 2d 102, 119-20 (Ala.1988), this Court set out what constitutes "willful conduct":
"Section 25-5-11(c)(1) ... reads as follows:
"`(c) As used herein, "willful conduct" means:
"Under § 25-5-11, an employee may be liable in damages for the death of, or injuries sustained by, a fellow employee; however, such liability can be based only on injury or death proximately caused by the offending employee's `willful conduct.'
"Section 25-5-11(c)(1) clearly defines `willful conduct' in terms of a `purpose or intent or design to injure another.' The plaintiff need not show that the co-employee defendant specifically intended to injure the person who was injured. What must be shown, however, is that the co-employee defendant set out purposefully, intentionally, or by design to injure someone, and that his actions in furtherance of that purpose, intent, or design, resulted in, or proximately caused, the injury or death upon which suit was brought. In defining `willful conduct' in these terms, the Legislature recognized the clear distinction that has developed in Alabama between `wanton conduct' and `willful conduct':
The evidence in this case, when considered in the light most favorable to the plaintiffs, shows that Lee and certain other forklift operators in Department 701 of the Dunlop plant were required for approximately a day and a half (June 23 and part of June 24, 1988) to follow the procedure that had been officially instituted in 1987, but that had not been enforced for a period of time, that required them to lift and pull heavy metal pallets. The evidence also shows that the defendants were generally aware of Lee's history of neck and back problems when he transferred to Department 701 in March 1988, but that they did not learn of the weight restrictions that had been placed on him by his doctor until June 23, when Lee and the other forklift operators began to complain. The decision to return to the procedure of positioning the pallets with the forklifts was made within approximately 24 hours of the initial complaints; however, that decision did not reach Lee's shift supervisor until after Lee had injured his neck. Although we might agree that this evidence shows that the defendants were negligent, or perhaps even wanton, in their conduct toward Lee, it falls short of showing that the defendants set out purposefully, intentionally, or by design to injure Lee, or anyone else. In other words, we view the evidence as being insufficient to show the existence of a state of mind on the part of any of the defendants above and beyond that required to establish negligence or wantonness. See Reed v. Brunson, supra; see, also, Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala. 1987).
While we recognize that intent is a matter peculiarly within the province of the jury and that it may be shown by any condition or circumstance from which it may be reasonably inferred, see Walker v. Woodall, 288 Ala. 510, 262 So. 2d 756 (1972), we do not think that "willful conduct," as that term is defined in the statute, can be reasonably inferred from evidence like that introduced in this case. See Reed v. Brunson, supra; see, also, Williams v. Price, 564 So. 2d 408 (Ala. 1990). It was not intended that a purpose, intent, or design to injure another be reasonably inferable from evidence showing only knowledge and appreciation of a risk of injury or death and not showing a substantial certainty that injury or death would occur.
A careful reading of the Workmen's Compensation Act reveals that the Act was promulgated to ensure that cases where a plaintiff was compelled to work under circumstances that posed foreseeable risks of harm to himself or others or under circumstances from which harm could likely or even probably would result would not be submitted to a jury without evidence sufficient to show either 1) the reason why the co-employee defendant would want to intentionally injure the plaintiff, or 2) that a reasonable man in the position of the defendant would have known that a particular result (i.e., injury or death) was substantially certain to follow from his action. See Reed v. Brunson; see, also, Williams v. Price, supra.
*904 After carefully reviewing the record in this case, we conclude that the evidence, when considered in its entirety, fails to show that any of the defendants had a reason to injure Lee or anyone else, or that any of the defendants should have known that it was substantially certain that Lee would suffer ruptured disks in his neck before the procedure requiring the manual positioning of the pallets could be changed. The tendencies of the evidence in this case were perhaps best summed up by Lee in his deposition:
Because the plaintiffs failed to rebut the defendants' prima facie showing of a lack of "willfulness," as that term is defined in § 25-5-11(c)(1), the defendants were entitled to a judgment as a matter of law and the trial court, therefore, properly entered the summary judgment.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and STEAGALL, JJ., concur.
ALMON and ADAMS, JJ., concur in the result.
KENNEDY, J., dissents.
[1] Lee is presently receiving benefits under the Workmen's Compensation Act. Karen Lee filed a derivative claim for loss of consortium. | March 15, 1991 |
8124a8d5-4ddf-47eb-8677-4751aa7732eb | Ex Parte Nissei Sangyo America, Ltd. | 577 So. 2d 912 | 1900022 | Alabama | Alabama Supreme Court | 577 So. 2d 912 (1991)
Ex parte NISSEI SANGYO AMERICA, LTD.
(Re TWENTIETH CENTURY MARKETING, INC. v. Jerry Scott TAYLOR).
1900022.
Supreme Court of Alabama.
March 29, 1991.
*913 Gary C. Huckaby and Stuart M. Maples of Bradley, Arant, Rose & White, Huntsville, and Stephen A. Gorman of Foran, Wiss & Schultz, Chicago, Ill., for petitioner.
David H. Meginniss of Hornsby, Watson & Meginniss, Huntsville, for respondent.
INGRAM, Justice.
Twentieth Century Marketing, Inc., sued Jerry Scott Taylor, a former employee, alleging that Taylor had breached a fiduciary duty to Twentieth Century and that he had violated his agreement not to compete with Twentieth Century after he was no longer employed by the company. During his employment with Twentieth Century, Taylor was responsible for the company's contract to act as the sales representative for Nissei Sangyo America, Ltd. (NSA), in its business dealings with the Chrysler Corporation. NSA, an Illinois-based electronics importer with operations in Alabama, sells cassette tape player mechanisms to Chrysler for installation at Chrysler's plant in Huntsville, Alabama.
In an attempt to gain more information about NSA's business dealings with Chrysler, Twentieth Century deposed Hideo Wakashita, an employee of NSA. Wakashita appeared voluntarily for the deposition, which was taken in Chicago, Illinois. During the deposition, however, a dispute arose regarding the confidentiality of certain information sought by Twentieth Century. Wakashita's counsel instructed him not to answer questions calling for information that NSA believed to constitute trade secrets. As a consequence, Twentieth Century filed a notice of intent to serve a nonparty deposition subpoena on NSA. The subpoena sought to compel a representative of NSA, designated under Rule 30(b)(6), A.R. Civ.P., to testify in Huntsville and to furnish the information that was not obtained through the deposition of Wakashita in Chicago.
NSA responded to the deposition subpoena with a motion for a protective order under Rule 26(c). The trial court ordered the deposition of NSA, but subject to a confidentiality order.
NSA petitions this Court for a writ of mandamus compelling the trial court to issue a protective order excluding from discovery specific information that it claims constitutes trade secrets and requiring that any deposition of its corporate representatives be taken in Chicago, Illinois.
The Alabama Rules of Civil Procedure vest broad discretionary power in the trial court to control the discovery process and to prevent its abuse. Ex parte Mack, 461 So. 2d 799 (Ala.1984). That power is not unlimited, however, and mandamus is the proper means of review to determine whether the trial court has abused its discretion. Ex parte Sargent Indus., Inc., *914 466 So. 2d 961 (Ala.1985). The utilization of an extraordinary writ is restricted, and, therefore, mandamus will not issue unless the right to the relief sought is clear and certain, with no reasonable basis for controversy. Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981).
The general rule regarding petitions for the writ of mandamus in cases involving discovery was stated in Assured Investors Life Ins. Co. v. National Union Assoc., Inc., 362 So. 2d 228, 231-32 (Ala.1978):
In support of its request for the writ, NSA cites to us Ex parte Leverton, 536 So. 2d 41 (Ala.1988). In Leverton, the defendant in a medical malpractice action sought to compel the plaintiff to produce his expert medical witness for deposition in Jefferson County. The witness was a resident of Atlanta, Georgia. The defendant had attempted to depose the witness in Atlanta, but the witness was uncooperative in his answers. The defendant sought to continue the deposition in Jefferson County so that the questioning could be monitored by the Circuit Court of Jefferson County. The plaintiff filed a petition for a writ of mandamus, seeking to prevent the trial court from enforcing its order that he produce his out-of-state witness for deposition in Alabama.
In determining whether issuance of that writ was warranted, this Court held that an Alabama trial court does not have jurisdiction over a nonparty, out-of-state witness. This Court noted, however, that the trial court order did not require the out-of-state, nonparty witness to appear in Jefferson County for deposition, but ordered the plaintiff to make his expert witness available for deposition in Jefferson County. This Court determined that the trial judge, under his general power to control his court and his trial docket, had the power to require the plaintiff to produce the recalcitrant witness for deposition in Jefferson County. Leverton, supra.
We find the facts in Ex parte Leverton to be distinguishable from this case, because here, unlike the witness in Leverton, NSA has submitted itself to the jurisdiction of the courts of this state. The basis of the trial court's jurisdiction of NSA comes from its being qualified under § 10-2A-226, Ala.Code 1975, to do business in Alabama. It has, by its qualification, submitted itself to the jurisdiction of the trial court. One of the purposes of the qualification statute is to compel foreign corporations to submit themselves to the jurisdiction of the courts of this state. See Jones v. Martin, 15 Ala.App. 675, 74 So. 761 (1917). Once a foreign corporation designates a place of business and an agent residing at that place, the corporation is deemed to have submitted to the jurisdiction of the state courts. Jefferson Island Salt Co. v. E.J. Longyear Co., 210 Ala. 352, 98 So. 119 (1923).
Moreover, even if NSA is not qualified under the statute to do business in Alabama, it nevertheless has done business in Alabama. The record reflects that NSA has maintained an office and employees in this state since 1984. It has paid corporate income taxes, corporate franchise taxes, and unemployment compensation taxes to the State of Alabama, as well as license fees to the cities of Huntsville and Madison. Also, NSA has submitted itself to the jurisdiction of the courts of this state by previously initiating civil litigation in this state. Therefore, we find that our prior *915 holding in Ex parte Leverton is inapplicable under the facts of this case.
Ultimately, NSA directs our attention to the general rule that the depositions of a corporation through its officers or agents should ordinarily be taken at the corporation's principal place of business, Ex parte Armstrong, 412 So. 2d 772 (Ala. 1982). As stated in Armstrong, however, there may be circumstances that would justify the taking of a deposition somewhere other than the corporation's principal place of business. The trial court has the discretion to determine whether the facts in a given case justify a change in the place of taking the deposition. Ex parte McNally, 537 So. 2d 928 (Ala.Civ.App.1988). The circumstances of each case, therefore, are important in determining whether a trial judge has abused his discretion in determining the location at which a deposition is to be taken. Ex parte Old Mountain Properties, Ltd., 415 So. 2d 1048 (Ala.), cert. denied, 459 U.S. 909, 103 S. Ct. 215, 74 L. Ed. 2d 171 (1982).
In the present case, NSA itself presents one of the most cogent reasons justifying the taking of the deposition in Huntsville. NSA asserts that much of the subject matter of the deposition may be confidential. There appears to be a conflict, however, as to precisely how much of the information requested is confidential. By allowing the deposition of NSA to be taken at the Madison County Courthouse, the trial court would have the unique ability to control this important phase of the discovery process; therefore, it could assure that the deposition could proceed with minimal interruption when a dispute arose regarding the confidentiality of certain matters. In view of this, we find no abuse of discretion in the trial court's determination that the deposition should be taken at a location other than the witness's principal place of business.
NSA also seeks, through its petition for writ of mandamus, to require the trial court to issue a protective order excluding certain trade secret information from discovery.
Rule 26(c), A.R.Civ.P., specifically provides for the protection of trade secret information as follows:
Here, the trial court refused to order that the information NSA claims is confidential not be disclosed. However, a detailed protective order outlining how the confidential information is to be disclosed is embodied in the trial court order permitting the deposition of NSA in Huntsville. This protective order was issued by the trial court pursuant to a motion by NSA. Therefore, we find that the trial court complied with the requisites of Rule 26.
In view of the foregoing, the petition for the writ of mandamus is due to be denied.
WRIT DENIED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | March 29, 1991 |
bfc7158e-561b-4142-a7e9-7aae35cf6580 | Slade v. City of Montgomery | 577 So. 2d 887 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 887 (1991)
Gaines B. SLADE
v.
CITY OF MONTGOMERY, Alabama.
89-1568.
Supreme Court of Alabama.
March 15, 1991.
*889 William G. McKnight, Montgomery, for appellant.
J. Bernard Brannan, Jr. of Brannan & Guy, Montgomery, for appellee.
INGRAM, Justice.
Gaines B. Slade filed an action against the City of Montgomery (city), alleging that the city negligently or wantonly maintained a public street and that, as a result, he was injured. Slade brought the suit after he suffered a knee injury when his foot slipped through the bars of a broken storm sewer grate located adjacent to his residence. The city answered Slade's complaint by denying that it was responsible for Slade's injury. The city also asserted the affirmative defense of contributory negligence. Following discovery, the case was tried before a jury, with a verdict returned in favor of the city. The trial court entered judgment on the jury verdict, and Slade's motion for a new trial was denied. This appeal followed.
On appeal, Slade raises seven issues for our review. The first four issues that will be addressed concern whether the trial court erred in refusing to allow certain testimony and exhibits into evidence. The remaining three issues relate to the propriety of certain instructions given to the jury by the trial court.
Slade's first issue is whether the trial court erred in refusing to allow the deposition of Robert Jones, a city maintenance employee, to be read to the jury. Slade contends that Jones was a managing agent whose deposition was taken pursuant to the terms of Rule 30(b)(6), Alabama Rules of Civil Procedure. Therefore, Slade argues that Jones's testimony should have been admitted "for any purpose," pursuant to Rule 32(a)(2), rather than simply for purposes of impeachment as provided in Rule 32(a)(1).
Rule 32(a)(2) governs the admissibility of the deposition of a person representing an organization when the deposition is taken pursuant to Rule 30(b)(6), by providing:
The procedure for the taking of a deposition of a representative of a governmental agency, such as the city in this case, is outlined in Rule 30(b)(6), which provides that:
The record in the present case reveals that Slade filed two notices to take a deposition. The first notice, which was filed simultaneously with Slade's complaint, named the "Chief Maintenance Officer or Engineer for Montgomery City streets; and/or other person most familiar with subject of suit" as the deponent. However, no deposition was ever taken as the result of this notice; rather, Slade filed a second notice to take a deposition, naming Robert Jones, Jim Wilder, and Lindel Jones as deponents. The record shows that these three individuals were employees of the city maintenance department. However, at no time did Slade ever file a notice to take a deposition naming the city itself as the deponent as provided in Rule 30(b)(6). Furthermore, neither of the notices to take a deposition contained a description of the matters upon which examination was requested, as provided in Rule 30(b)(6). Therefore, we find that the deposition of Robert Jones, which Slade insists was improperly excluded from evidence by the trial court, was not a deposition of the City of Montgomery taken pursuant to Rule 30(b)(6), and was properly excluded from admission for use "for any purpose" under the provisions of Rule 32(a)(2).
We further note that even if the deposition of Robert Jones had been taken according to the procedure outlined in Rule 30(b)(6), the trial court's refusal to admit the deposition for use for any purpose by Slade is harmless error. In Century Plaza Co. v. Hibbett Sporting Goods, Inc., 382 So. 2d 7 (Ala.1980), we were confronted with a situation where the plaintiff sought to introduce the deposition of an agent of the defendant corporation. Although the plaintiff had used the deposition for purposes of impeachment, the plaintiff there, like the plaintiff here, wished to have the entire deposition entered into evidence. The trial court refused, and the issue was raised on appeal. In reviewing the trial court's ruling, we held that the failure of the trial court to admit the deposition of a party for use "for any purpose" under Rule 32(a)(2) does not necessarily and inevitably result in reversible error. In reaching our conclusion that the trial court's refusal to admit the deposition in Century Plaza was not reversible error, we first noted that Alabama Rule 32 is patterned after Federal Rule 32. We also noted that in federal cases involving the application of Rule 32, the courts have concluded that the failure to admit the deposition of a party is merely harmless error, particularly in those situations where, as in Century Plaza, the party had testified and the deposition was used extensively during cross-examination. Century Plaza, supra.
In the present case, Robert Jones was called by Slade to testify as an adverse witness. The record reflects that Slade made repeated use of Jones's deposition for purposes of impeachment, when Jones's testimony at trial conflicted with his answers to questions propounded during the deposition. In light of this, we find that even if Jones's deposition was improperly excluded from evidence, the exclusion was harmless error as to Slade.
The second issue is whether evidence of remedial measures, taken by the city subsequent to Slade's injury, was properly excluded from evidence. The evidence that Slade sought to introduce was the fact that, subsequent to the incident, a city repair crew made alterations to the storm sewer catch basin so that two three-foot grates would be used to cover the catch basin, rather than one six-foot grate.
In his brief, Slade concedes the general rule that evidence of subsequent remedial measures taken by a defendant is inadmissible as tending to show the defendant's antecedent negligence. Hyde v. Wages, 454 So. 2d 926 (Ala.1984). As we noted in Hyde, the rationale for this rule is that evidence of subsequent repairs and safety precautions is immaterial and irrelevant on the issue of a defendant's antecedent negligence and that, as a matter of public policy, *891 subsequent repairs and safety precautions are to be encouraged in order to prevent future accidents. Indeed, if the improvements or precautions could be introduced against the party making them as proof of prior negligence, that party would be discouraged from improving the place or thing that caused the injury. Hyde, supra. Nevertheless, Slade argues that the evidence in question was due to be admitted as an exception to the general rule.
The exceptions to the general rule of inadmissibility of evidence of subsequent repairs were noted by this court in Banner Welders, Inc. v. Knighton, 425 So. 2d 441 (Ala.1982), where we stated:
The admissibility of evidence of subsequent remedial measures offered for one of these purposes depends on three factors: (1) whether the purpose is material, that is, at issue in the case; (2) whether it is relevant to the issue, that is, whether the evidence tends to prove the purpose for which it is offered; and (3) whether the probative value of the evidence is substantially outweighed by its prejudicial effect. Holland v. First Nat'l Bank of Brewton, 519 So. 2d 460 (Ala.1987). Furthermore, the burden is on the party seeking to admit evidence of subsequent remedial measures to establish materiality, relevancy, and probative value in excess of prejudicial effect. Holland, supra.
In the present case, we find that Slade did not offer evidence of subsequent repairs under any of the exceptions set forth in Knighton. Here, the city acknowledged that there was a six-foot grate covering the storm drain in front of Slade's home on the date that Slade's injury occurred. The city further admitted that it had a duty to properly maintain the street and the storm sewer catch basin, including the grate in front of Slade's home (qualifying its admission, however, to the extent that it claimed it did not have a legal duty creating liability on the part of the city to someone injured by the grate before the city had notice that there was a defective condition).
Clearly, because of the city's admission of these facts, the issues of ownership and control were not in controversy at trial. Also, there was no testimony at the trial that conflicted with the evidence Slade sought to introduce, so as to make it admissible for purposes of impeachment. Furthermore, the city's admission that a six-foot grate was in place removed from controversy the conditions existent at the time of the injury. In view of this, we find that Slade failed to establish the relevancy, materiality, and probativeness of the evidence that he sought to introduce, and that the trial court, therefore, properly excluded evidence of subsequent repairs made by the city.
Slade's third issue is whether the trial court erred in refusing to allow him to testify as to a conversation he had with a member of the city maintenance department work crew who repaired the broken grate after Slade was injured. Slade contends that this testimony should have been admitted because, he says, during the conversation, the employee made an admission against the interest of the city.
We first note that generally, to be admissible against a principal, declarations of an agent must be made within the scope of the authority conferred upon the agent and must be made while the agent is in exercise of his authority. Mutual Sav. Life Ins. Co. v. Hall, 254 Ala. 668, 49 So. 2d 298 (1950). Furthermore, the admissions of a party made directly by him, or through his agent duly authorized to speak for him relative to the subject matter of a suit, are admissible in evidence against that party where they are inconsistent with the claim he asserts in the action. Dixie Elec. Co. v. Maggio, 294 Ala. 411, 318 So. 2d 274 (1975).
*892 Here, the statements as to which Slade wanted to testify were made by James Herndon, a laborer in the city maintenance department. Although the city did admit, in the pretrial order, that Herndon was, at the time of the incident, an agent, servant, or employee of the city at all times complained of in the suit, we hold that the trial court did not err in finding that Herndon was not acting within the scope of his authority and that his statements therefore could not be used as an admission against the city's interest. The trial court could have concluded that Herndon was authorized by the city to perform repairs to the city's streets, not to act as its spokesman. Therefore, we reject Slade's argument that he was improperly denied the opportunity to testify as to his conversation with Herndon.
Slade also raises the issue of whether the trial court erred in refusing to allow into evidence a photograph of another damaged six-foot grate that was allegedly located one block from Slade's home. However, Slade has not directed our attention to a ruling by the trial court in the record prohibiting the introduction of the photograph. Therefore, there is nothing before this court demonstrating that the trial court erred.
Next, Slade insists that the trial court improperly instructed the jury on the issue of contributory negligence. Slade argues that the trial court failed to correctly define "contributory negligence" for the jury and that the evidence presented at trial did not merit an instruction on contributory negligence.
In the present case, the record reflects that the trial court defined contributory negligence for the jury in the following manner: "Contributory negligence, of course, is negligence on the part of the plaintiff, Mr. Slade, which proximately contributed to the alleged injury." Slade asserts that contributory negligence should have been defined for the jury as consisting of: (1) knowledge by the plaintiff of a dangerous condition; (2) the plaintiff's appreciation of the danger; and (3) thereafter, the plaintiff's failure to exercise reasonable care.
In Cooper v. Bishop Freeman Co., 495 So. 2d 559 (Ala.1986), overruled on other grounds, Burlington N. R.R. v. Whitt, 575 So. 2d 1011 (Ala.1990), we pointed out that this court has continued to recognize a distinction between assumption of risk and contributory negligence as defenses to actions in simple negligence. We further noted in Cooper that, in Alabama, the term "assumption of risk" has been used to describe a form of contributory negligence applicable to factual situations in which it is alleged that the plaintiff failed to exercise due care by placing himself or herself into a dangerous position with appreciation of a known risk. The elements of assumption of risk are: (1) knowledge by the plaintiff of the condition; (2) appreciation by the plaintiff of the danger under the surrounding conditions and circumstances; and (3) the plaintiff's failure to exercise reasonable care in the premises, and, with such knowledge and appreciation, the plaintiff's putting himself into the way of danger. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So. 2d 847 (1972). On the other hand, contributory negligence, in the context of actions in simple negligence, is negligence on the part of a plaintiff that proximately contributes to the plaintiff's injury. Cooper, supra.
At trial, the city was not attempting to make use of the assumption of risk defense; rather, the city was attempting to assert the affirmative defense of contributory negligence as a defense to a simple negligence action. The record reveals that Slade testified that, although he was walking in the gutter at the edge of the street, he had no reason to feel that he needed to be careful. Furthermore, the evidence revealed that Slade occasionally mowed the grass around the location of the sewer grate and that Slade or other members of his family placed their garbage can on the curb directly above the sewer grate approximately twice each week. Although Slade was not under a duty to keep a vigilant watch for unknown defects and obstructions that cannot be observed by *893 the use of ordinary care, he was required to exercise such ordinary care as the situation on the whole would lead a reasonably prudent person to observe in respect to conditions immediately ahead. See Jacks v. City of Birmingham, 268 Ala. 138, 105 So. 2d 121 (1958). In view of the above, we find no error in the trial court's instructions to the jury on the issue of contributory negligence.
The penultimate issue raised by Slade in his appeal is whether the trial court erred in refusing to instruct the jury that the city had a duty to inspect city sewer grates. Municipal liability is governed by § 11-47-190, Ala.Code 1975, which provides, in relevant part:
Clearly, § 11-47-190 does not impose upon a municipality a duty to inspect. Furthermore, we can find no prior cases holding that municipalities are under an affirmative duty to seek out defective conditions and rectify them. The cases cited by Slade merely address issues of whether there was constructive notice on the part of the municipality. Here, the trial court instructed the jury that Slade could recover if the city had actual notice of a defect or if the defect had existed for such an unreasonable length of time that the city could have obtained notice or knowledge of the defect by the use of ordinary diligence. We find no error in the trial court's failure to give the requested instruction.
The final issue raised for our consideration is whether the trial court erred in refusing to instruct the jury regarding situations in which actual notice is not required. Slade argues that the jury should have been instructed as to those situations where notice to the city of a street defect either is imputed to the city by its failure to inspect or is not required under the circumstances.
The record reveals that the trial court did instruct the jury that notice would be imputed to the city if the defect was shown to have existed for such an unreasonable length of time that the city could have obtained notice or knowledge of the defect by the use of ordinary diligence. Furthermore, the court instructed the jury that notice to its employees is deemed to be notice to the city. Therefore, we find no merit in Slade's final argument that the jury was not instructed as to situations in which notice to the city is either imputed to the city or is not required.
In light of the foregoing, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | March 15, 1991 |
3f81ceea-c983-490b-b951-52ce739149a7 | Garrett v. Sun Plaza Development Co. | 580 So. 2d 1317 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 1317 (1991)
Frank B. GARRETT, Jr., and B.G. Garrett
v.
SUN PLAZA DEVELOPMENT COMPANY, et al.
89-1287.
Supreme Court of Alabama.
April 5, 1991.
*1318 Mark N. Chambless of Parnell, Crum & Anderson, Montgomery, for appellants.
Wade H. Baxley of Ramsey, Baxley, McDougle & Collier, Dothan, for appellees.
MADDOX, Justice.
This appeal involves the question of the amount of damages a party is entitled to recover for the breach of a "buy back" contract by a developer of an office condominium development. The buyers appeal, claiming that they were entitled to introduce evidence of the amount of money, including interest, they paid on the note (secured by a mortgage) they had executed to obtain the money for the purchase price for the condominium, and damages they allegedly suffered because they chose to invest in this development instead of in two others.
This case arises from the following facts:
The developers of an office condominium complex called Sun Plaza started construction of that development with the intent to build and sell office condominiums in an area called Wiregrass Commons, in Houston County. In furtherance of that goal, the developers entered into separate contracts for the sale of the individual condominium units.
The buyers entered into one of these contracts with Sun Plaza Development Company, and others, on May 21, 1986. An addendum to this contract was added on December 30, 1986, which specified that the developers would pay the buyers $500.00 rental per month for a period of one year if the buyers were unable to rent the condominium to anyone else, and also provided that the developers of Sun Plaza would, at the request of the buyers, buy back the condominium unit within one year of the purchase.[1]
The developers of Sun Plaza failed to pay the promised rental and failed to buy the condominium unit back from the buyers when they were requested to do so within the year permitted by the contract. The buyers sued. The developers admit that they breached the contract. The only issue between them is the amount of the damages. The buyers' argument is summed up in their reply brief, as follows:
At trial, the parties were able to agree on an amount computed by the judge as the amount of the damages that they were due according to the trial judge's view of the law regarding the amount of the damages that could be recovered. The buyers essentially assert that the trial court, by granting the developers' motion in limine, erred in not allowing the buyers to introduce into evidence facts pertaining to the extent of their damages. They specifically argue that the trial court prohibited them from introducing, in regard to the issue of damages, evidence of total debt incurred, financial hardship incurred, additional damages, strained personal life, reliance on family members, mental suffering, extra work, the developers' ability to pay, and lost profits from business opportunities that the buyers had been considering before they chose Sun Plaza as a form of investment.
The developers first assert that the buyers failed to preserve the claimed error for appeal because they did not offer proof of their claimed damages at the trial. The author of a treatise on Alabama evidence has stated the law as follows: "An offer of proof is required in order to isolate the error for appeal," and that "[i]t is this refusal at trial to accept the proffered evidence, not the granting of the motion in limine, that serves as the basis for reversible error." See C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981).
We have examined the colloquy between the trial court and the buyers concerning the motion in limine and we think that the two issues pertaining to damages discussed in the motion in limine were related to the amount paid on the note, including interest, that the buyers had to pay when they obtained financing for this investment, and to the possibility that other investment opportunities existed when the buyers chose to invest in the Sun Plaza development and that they lost the opportunity to invest in those by investing in the Sun Plaza development. The record indicates that the buyers attempted to introduce evidence concerning the payments of principal and interest that they had made on the note given to obtain financing for this project, but that they did not attempt to introduce evidence concerning the alternate investment possibilities.
The buyers rely on Killingsworth v. Killingsworth for the proposition that it would have been useless for them to make an offer of proof relating to the other two developments in which they were considering investing. In Killingsworth, this Court held:
283 Ala. 345, 354, 217 So. 2d 57 (quoting 4 C.J.S. Appeal and Error § 291).
In our review of the record, we find that the buyers, in accordance with Killingsworth, preserved the damages issues relating to the note payments and potential investment opportunities for our review. The trial court specifically ruled that evidence of the amount of payments the buyers had made before they requested the developers to buy back was not admissible.
The trial judge included in his computations of the damages the amount of money the buyers had borrowed to buy the condominium unit, interest on the money from the date of the breach, the rental value as stated in the contract, and the *1320 interest on the rent due. We conclude that the buyers were not entitled to recover any other damages for the breach. The buyers' assertion that the buyers and the sellers contemplated at the outset that the buyers had to borrow money to finance this investment and that they therefore are due the interest on this borrowed money as damages even though the interest accrued before the breach occurred, has no support in Alabama law so far as we can determine.
In Alabama, the rule regarding damages for the breach of a contract has often been stated. Damages should return the injured party to the position he would have been in had the contract been fully performed. Boyett v. Oakes, 518 So. 2d 37 (Ala.1987); Trimble v. Todd, 510 So. 2d 810 (Ala.1987); Cobbs v. Fred Burgos Const. Co., 477 So. 2d 335 (Ala.1985). These damages are generally those that flow naturally from the breach. Hutchinson v. South Montgomery Academy, 535 So. 2d 189 (Ala.Civ. App.1988); Chastain v. Baldwin Mut. Ins. Co., 495 So. 2d 684 (Ala.Civ.App.1986). However, the injured party is not to be put in a better position by a recovery of damages for the breach than he would have been in if there had been performance. Curacare, Inc. v. Pollack, 501 So. 2d 470 (Ala.Civ.App.), writ quashed, 501 So. 2d 472 (Ala.1986). In this case, the buyers are entitled to be placed in the position they would have been in if the contract had not been breached. Therefore, the developers of Sun Plaza should be required to pay the rental value called for in the contract and should be required to "buy back" the condominium unit and to pay interest on the "buy back" price from the date that price should have been paid. This would place the buyers in the position they would have been in if the contract had not been breached. To require the developers to pay interest on a debt incurred before the breach occurred, however, would place on the developers a burden not provided for in the contract. In the case of Mall, Inc. v. Robbins, 412 So. 2d 1197 (Ala.1982), this Court cited Amason v. First State Bank of Lineville, 369 So. 2d 547 (Ala.1979), for the proposition that "payment of a debt that a person is under a pre-existing duty to pay is not a legal injury for which one may be recompensed." Although the buyers claim that the note they executed to secure the money to purchase the condominium was not a "pre-existing debt," we conclude that it was. Clearly, there were no terms in the agreement that entitled the buyers to recover the money they had paid on the note.
The buyers were awarded the contract price of the condominium plus interest on that price from the date of the breach. To charge the developers with interest accruing on the note before the breach occurred would be requiring them to pay interest on the buyers' pre-existing debt.
The buyers next contend that they should have been allowed to introduce evidence concerning the profits they claim they lost by investing in this project rather than in another investment opportunity. In Dickerson v. Finley, 158 Ala. 149, 48 So. 548 (1908), this Court held that profits are too remote and cannot be recovered when they are not the immediate fruits of the principal contract, but are dependent on collateral engagements not brought to the notice of the contracting parties.[2] In addition, this Court has held that compensatory damages for lost profits are not allowed if they are too speculative. Lapeyrouse Grain Corp. v. Tallant, 439 So. 2d 105 (Ala.1983); Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 182 So. 2d 880 (1966). These cases are analogous to the one at hand. Profits from business ventures that could have been entered into had this one not been undertaken are too speculative to be considered when awarding damages.
Based on the foregoing, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES and HOUSTON, JJ., concur.
KENNEDY, J., concurs in the result.
[1] The addendum, in pertinent part, reads:
"Addendum No. 1: This entire contract and agreement is contingent upon the purchaser obtaining suitable financing. The purchaser shall obtain permanent financing within sixty (60) days from the date that the seller furnishes the purchaser with a certificate of occupancy.
"Addendum No. 2: The seller agrees to repurchase from the purchaser at any time that the purchaser should so desire within one (1) year, for the amount of the total investment involved. The one (1) year period shall begin on the date that the seller furnishes to the purchaser a certificate of occupancy.
"Addendum No. 3: The seller guarantees the purchaser rent in the amount of $500.00 per month for one year from the date of the purchaser closing his permanent financing."
[2] Lost profits are recoverable, of course, if they can be proved with reasonable certainty. Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala. 1987). | April 5, 1991 |
702bcd9b-c573-443a-a226-7e018836f153 | Garner v. Walker | 577 So. 2d 1276 | 1900292 | Alabama | Alabama Supreme Court | 577 So. 2d 1276 (1991)
Donnie Ray GARNER and Glenda Ann Garner
v.
Carl WALKER, et al.
1900292.
Supreme Court of Alabama.
March 22, 1991.
Julia McCain Lampkin Asam, Northport, for appellants.
Gordon Davis, Tuscaloosa, for appellees CH & W Excavating Co., Carl Walker, Betty Walker and Raiford Poe Logging.
HOUSTON, Justice.
The plaintiffs appeal from a dismissal of their complaint. The defendantsCH & W Excavating Company, Carl Walker, Betty Walker, and Raiford Poe Logginghad moved to dismiss on the grounds that the plaintiffs, Donnie Ray Garner and Glenda Ann Garner, had failed to properly amend their complaint. The trial court's final judgment of dismissal reads, in pertinent part, as follows:
The Garners contend that the trial court erroneously dismissed as to Count 2 (trespass) and Count 3 (nuisance).
The well settled law in Alabama as it relates to the standard of review applicable to motions to dismiss is set forth in Seals v. City of Columbia, 575 So. 2d 1061 (Ala. 1991), quoting from Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985):
(Emphasis in original.)
The defendants contend that the trial court correctly dismissed the Garners' *1277 amended complaint. They contend that the amended complaint failed to state a cause of action against the defendants on the theory of nuisance or trespass by the hauling of logs by Raiford Poe Logging or the hauling of gravel by CH & W Excavating Company, Carl Walker, and Betty Walker, causing dust emissions or micro-particulates to be deposited on the Garners' property as the defendants' trucks operated along the access strip of land in question. The defendants also contend that the amended complaint failed to allege any facts that would support a verdict against any of the defendants.
Although the Garners' brief at times is somewhat difficult to follow, it appears that they are arguing that the trial court prematurely entered judgment for the defendants as a matter of law. They contend that their amended complaint was sufficient to state a claim upon which relief could be granted and that the trial court, therefore, erroneously granted the defendants' motion to dismiss. We agree.
Counts 2 and 3 of the amended complaint read as follows:
These allegations were sufficient under our rules of notice pleading to put the defendants on notice of the claims against them.
Sanders v. Judson College, 514 So. 2d 890, 891-92 (Ala.1987), quoted as authority in Seals v. City of Columbia, supra. (Emphasis in original.)
We cannot say, as a matter of law, that the Garners can prove no set of facts that would entitle them to relief; therefore, the judgment is due to be, and it is hereby, reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | March 22, 1991 |
4fde2303-be90-4699-bcb9-33cdd12d96df | Lappan v. Lovette | 577 So. 2d 893 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 893 (1991)
Valerie J. LAPPAN
v.
Laveina M. LOVETTE.
Laveina M. LOVETTE
v.
Valerie J. LAPPAN.
89-1698, 89-1699.
Supreme Court of Alabama.
March 15, 1991.
*894 Edward P. Turner, Jr. and Halron W. Turner of Turner, Onderdonk, Kimbrough & Howell, Chatom, for appellant/cross-appellee.
William L. Utsey of Utsey, McPhearson and Christopher, Butler, for appellee/cross-appellant.
INGRAM, Justice.
Valerie J. Lappan filed an action against Laveina M. Lovette, seeking to have a portion of a probate court judgment set aside as void. The probate court judgment awarded to Lovette a life estate in the northern one-half of a 160-acre tract of real property owned by her husband, Virgil G. Lovette (decedent), who had died intestate on June 21, 1975. The award of the life estate was made in satisfaction of Lovette's claims to a homestead interest. The part of the probate court judgment awarding that life estate in the northern one-half of the property is not challenged by Lappan.
In addition to granting the life estate, however, the probate court judgment also awarded to Lovette fee simple interest in *895 the southern one-half of the 160-acre tract. According to the judgment, this fee simple award was made in satisfaction of Lovette's claim to a dower interest and claims for the value of improvements that she had made (after her marriage to the decedent) to the dwelling located on the property. The part of the judgment relating to the southern one-half of the property is the subject of the suit filed by Lappan.
Prior to filing the present action, Lappan (then known as Valerie Springer), the decedent's daughter by a previous marriage, appealed from the probate court judgment to the circuit court, pursuant to the provisions of § 12-22-21(5), Ala.Code 1975. On January 14, 1983, the circuit court set aside that part of the probate court judgment relating to the southern one-half of the decedent's property. Lovette then appealed from the circuit court's judgment to this Court. On that appellate review, we found that Lappan's appeal to the circuit court had not been filed within 42 days after the entry of the judgment of the probate court, as mandated by § 12-22-21(5), and that the circuit court, therefore, was without jurisdiction to hear the case. We held that the circuit court judgment setting aside the probate court judgment was coram non judice and void, and we dismissed the appeal. See Lovette v. Springer, 444 So. 2d 850 (Ala.1984).[1]
Thereafter, the circuit court set aside its judgment. Lappan then filed the present action in the circuit court, directly attacking the probate court judgment. Lovette filed an answer to Lappan's complaint and later amended her answer to assert a counterclaim seeking to have a constructive trust impressed in favor of her and her children upon 120 acres of the 160-acre tract.
Following an ore tenus proceeding, the circuit court entered a final judgment setting aside that part of the probate court judgment vesting in Lovette fee simple title to the southern one-half of the 160-acre tract. The circuit court also granted the relief sought by Lovette in her counterclaim. Specifically, the circuit court awarded to Lovette fee simple title to the decedent's house and 40 acres of land surrounding it, gave Lovette's two children by a previous marriage fee simple title to 80 acres, and awarded the remaining 40 acres to Lappan in fee simple. Both Lappan and Lovette appeal.
The two primary issues in this appeal are whether the circuit court was correct in setting aside that part of the probate court judgment awarding Lovette a fee simple interest in the decedent's house and one-half of the 160-acre tract, and whether the circuit court correctly awarded Lovette and her two children fee simple title in a total of 120 acres of the 160-acre tract by way of a constructive trust.
Before turning to our analysis of the issues, we note that the record reveals the following pertinent facts: At the time Lovette and the decedent were married, the decedent owned a 160-acre tract of land in Choctaw County that was encumbered by a mortgage. The amount owing on the mortgage was slightly over $2,200. Although the decedent had begun construction of a house on the southeast one-quarter of the southern one-half of the property, the house was only partially completed when Lovette married the decedent. When the couple married, Lovette contributed her personal funds toward the completion of the house and toward the retirement of the mortgage. In return, she said, the decedent allegedly agreed to make a will devising the house and 40 acres of land to her, 40 acres of land to each of her two children from a previous marriage, and 40 acres of land to Lappan. During the years between Lovette's marriage to the decedent in 1971 and the decedent's death in 1975, Lovette spent approximately $15,000 of her savings and her personal earnings on improvements to the property. However, the decedent, who was killed in a tractor accident, died without making a will.
The first issue raised in this appeal is whether the circuit court correctly set aside that part of the probate court judgment vesting in Lovette fee simple title in the *896 decedent's house and one-half of the 160-acre tract in satisfaction of her then existing statutory right to dower. Lappan asserts that the probate court judgment was void to the extent that it awarded a fee simple interest and was, therefore, properly set aside by the circuit court.
Initially, we wish to clarify that we are not to be understood as indicating that the action of the probate court (awarding fee simple title to real property in satisfaction of dower) is at long-last appealable. Time has closed the opportunity for review; however, because an attempt by the probate court to assume jurisdiction beyond its statutory powers is void, State v. Grayson, 220 Ala. 12, 123 So. 573 (1929), its action is susceptible to a direct attack in the circuit court. This is the present state of the matter.
Section 12-13-1(b)(5), Ala.Code 1975, gives the probate court original and general jurisdiction over the sale and disposition of the real and personal property comprising an intestate's estate. Furthermore, at the time of the decedent's death, probate courts were specifically vested with the jurisdiction to allot dower interests. See § 12-13-1(b)(8). The statutory right to dower, which has since been abolished, was still intact at the time of the decedent's death. §§ 43-5-1 through 43-5-5, Ala. Code 1975, repealed by § 43-8-57, effective January 1, 1983.
Dower was defined as a life estate for the widow in a certain portion of her husband's real estate to which she had not relinquished her right during the marriage. The land subject to the wife's dower interest included all land of which the husband was seised during the marriage. If the decedent left lineal descendants, a widow was entitled to a one-third interest in the real property that was subject to dower.
Our first conclusion is that the part of the judgment awarding the fee simple interest to Lovette clearly exceeded the statutory authority of the probate court to set aside a dower interest. This conclusion rests upon the limited jurisdiction of the probate court as provided by statute. See Wallace v. State, 507 So. 2d 466 (Ala. 1987). The probate court cannot take jurisdiction of a cause or administer remedies except as provided by statute. Longshore v. City of Homewood, 277 Ala. 444, 171 So. 2d 453 (1965). The probate court is a court of law and, therefore, generally does not possess jurisdiction to determine equitable issues. Byars v. Mixon, 292 Ala. 657, 299 So. 2d 259 (1974); Sharpe v. Booker, 263 Ala. 592, 83 So. 2d 313 (1955).
In this case, it is apparent that the probate court was attempting to use its statutory jurisdiction to allot dower interests to grant Lovette equitable relief based on her claims that she had made improvements to the house and to the land in reliance on the decedent's inter vivos promise to make a will conveying the property to her and to her children. However, the actions by the probate court were not authorized by any statutory grant of power. Therefore, we find that the circuit court correctly set aside that portion of the probate court judgment awarding Lovette a fee simple title to the southern one-half of the 160-acre tract.
The second issue presented is whether the circuit court correctly awarded to Lovette and to her two children fee simple interest in the decedent's real property through her constructive trust counterclaim. Lappan argues that the circuit court erred in impressing a constructive trust on the property, because, she argues, the only evidence relating to the alleged agreement between Lovette and the decedent was Lovette's own testimony concerning her conversations with the decedent. Lappan asserts that the admission of Lovette's testimony regarding the alleged agreement violated the Dead Man's Statute.
The Alabama Dead Man's Statute, § 12-21-163, Ala.Code 1975, provides, in pertinent part:
The policy objective underlying this statute is to prevent testimony by living witnesses as to transactions with a person who is no longer alive to contradict such testimony. Walling v. Couch, 292 Ala. 33, 288 So. 2d 435 (1973).
The competency of a witness under the Dead Man's Statute is dependent upon the nature of the action and upon whether the estate of the deceased is interested in the proceeding; if the estate is not interested in the outcome of the proceeding, there is no incompetency under the section. Niehuss v. Ford, 251 Ala. 529, 38 So. 2d 484 (1949). An estate is not "interested," within the meaning of the Dead Man's Statute, in disputes between rival claimants to the estate. Kemp v. Kroutter, 531 So. 2d 854 (Ala.1988). Therefore, where the estate of the deceased cannot be increased or diminished by the testimony, the evidence is not barred. See Finch v. York, 294 Ala. 382, 318 So. 2d 249 (1975).
In the instant case, Lovette would have us characterize this case as a dispute between rival claimants to an estate that cannot be increased or diminished by her testimony. Here, however, rather than attempting to establish her claim to the decedent's property under the applicable laws of intestacy, Lovette sought to establish her claim through the imposition of a constructive trust. The imposition of a constructive trust would cause the property to pass to Lovette outside the estate, thereby diminishing the estate. In light of this, we conclude that the estate of the decedent was "interested" within the meaning of the Dead Man's Statute and that the circuit court, therefore, improperly admitted Lovette's testimony regarding statements by, or transactions with, the decedent concerning their alleged agreement. See C. Gamble, McElroy's Alabama Evidence § 102.01 (3d ed. 1977).
In support of our holding, we find two prior decisions instructive. In Cannon v. Cannon, 345 So. 2d 288 (Ala.1977), we held that testimony seeking to reform a deed to the deceased or to establish a constructive trust in the property deeded was barred by the Dead Man's Statute. Furthermore, in Walling v. Couch, supra, we held that the Dead Man's Statute, in an action seeking to impose a constructive trust, barred testimony by a husband regarding an alleged agreement with his deceased wife whereby she promised to convey to him the proceeds of the sale of a parcel of real property.
In both Cannon and Walling, as in the present case, if the testimony had been allowed and a constructive trust been imposed, the property in dispute would have passed outside the estate, thereby diminishing the estate and making the estate an interested party. Therefore, we hold that the Dead Man's Statute rendered incompetent all testimony by Lovette concerning conversations between her and the decedent respecting an alleged agreement to devise the property. In view of the fact that the only evidence in the record supporting the circuit court's imposition of a constructive trust was testimony given by Lovette in violation of the Dead Man's Statute, we find that the circuit court erred in imposing a constructive trust.
In consideration of the foregoing, the judgment of the circuit court is due to be affirmed to the extent that it sets aside that part of the probate court judgment awarding Lovette a fee simple interest in the southern one-half of the 160-acre tract and in the house located thereon. However, the judgment of the circuit court is due to be reversed to the extent that it imposes a constructive trust on the decedent's property, and the cause is remanded for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] In that first appeal, Lovette's first name was erroneously spelled "Lavenia." | March 15, 1991 |
3cf9fee2-c6c1-4dcd-9272-514b51aa91db | Popham v. City of Talladega | 582 So. 2d 541 | 1900592 | Alabama | Alabama Supreme Court | 582 So. 2d 541 (1991)
Kathy Roberts POPHAM, as administratrix of the Estate of Ronnie Edward Popham, deceased
v.
CITY OF TALLADEGA, et al.
1900592.
Supreme Court of Alabama.
May 31, 1991.
Robert L. Wiggins, Jr. and Ann K. Norton of Gordon, Silberman, Wiggins & Childs, Birmingham, for appellant Kathy Roberts Popham.
William Anthony Davis III and E. Martin Bloom of Starnes & Atchison, Birmingham, for appellee City of Talladega.
David A. Lee of Parsons, Lee & Juliano, Birmingham, for appellees Police Chief Mike Hamlin, Officer Randy Jones, Officer Mark Williams, Mayor George Montgomery, Councilman Robert Duncan, Councilwoman Edith Sims, Councilman Charles Miller and Councilman Ken Payne.
SHORES, Justice.
The plaintiff appeals from a summary judgment for the defendants in a lawsuit arising out of a Christmas Eve 1987 suicide in the Talladega city jail. Kathy Roberts Popham, as administratrix of the estate of Ronnie Edward Popham, deceased, first filed a complaint in a federal court against the City of Talladega, Police Chief Mike Hamlin, Officer Randy (Ronnie) Jones, Officer Mark Williams, Mayor George Montgomery, and council members Robert Duncan, Edith Sims, Charles Miller, and Ken Payne.
Her federal court complaint stated a claim under Alabama's Wrongful Death *542 Statute, Ala.Code 1975, § 6-5-410, and alleged that the defendants were liable for damages pursuant to 42 U.S.C. § 1983. The United States district court entered a summary judgment for the defendants on June 1, 1989. Popham v. City of Talladega, 742 F. Supp. 1504 (N.D.Ala.1989). The district court dismissed without prejudice the claims made pursuant to the Alabama Wrongful Death Act. The plaintiff appealed that ruling to the Eleventh Circuit Court of Appeals, and that court affirmed. Popham v. City of Talladega, 908 F.2d 1561 (11th Cir.1990).
Thereafter, on June 9, 1989, the plaintiff filed the present wrongful death action in the Circuit Court of Talladega County. On December 4, 1990, the trial court granted the defendants' motion for summary judgment. The plaintiff appeals. We affirm.
On December 24, 1987, Kathy Roberts married Ronnie Edward Popham. During a post-wedding celebration at the home of James and Christine Wilson, Kathy Roberts Popham called the Talladega Police Department and reported a disturbance involving her husband. At approximately 9:07 p.m., Officers Jones and Williams responded to the call and notified Officer Watson for backup. The officers arrested Ronnie Popham for public intoxication. Popham resisted violently, and the officers were required to use force.
Before placing him in a holding cell, the officers removed his belt, his shoes and shoelaces, and the contents of his pockets. Officer Jones testified that before he left Popham in his cell, Popham had calmed down and had begun to cry or whimper.
Sergeant Steven Palmer was on duty at the time Popham was incarcerated. He said that he heard Popham talking, but could not understand what Popham was saying. Palmer stated that he checked on Popham in his cell around 10:18 p.m.
From 10:00 p.m. on December 24, 1987, until 6:00 a.m. on December 25, 1987, David Brooks was the dispatcher; he monitored Popham through a closed-circuit television monitor. Brooks had locked the camera monitor on the holding cell containing Popham. Brooks testified that, from 10:00 p.m. until 11:00 p.m., he saw Popham through the monitor walking around the cell and that he did not notice anything unusual. Brooks said that there were several spots in the cell where a person could lie down and not be observed by the camera. Popham was not seen after 11:00 p.m. from the monitor. Brooks stated that he believed Popham to be "sleeping it off" out of view. Brooks said Popham had been incarcerated in the Talladega city jail several times before and that his behavior that evening was not unusual.
Incarcerated at the same time was Randy Langley, a lifelong friend of Popham's, who had been incarcerated with Popham on several prior occasions. On December 24, 1987, Langley was confined in the second cell down from Popham. Langley said that the officers had to struggle with Popham in order to get him into the cell. Langley also said that Popham sounded drunk and that he cursed, kicked, and spat at the officers who tried to confine him. He said that after the officers left him, Popham screamed and invited them to come back and fight with him.
According to Langley, Popham got very quiet around 11:00 p.m. and told Langley to "make sure my wife and my kids get what they deserve out of this because I'm going to kill myself." Langley said he did not take Popham's threat seriously. Several minutes later, Langley said, he heard a gagging or choking sound coming from Popham's cell. Langley said he was not alarmed because Popham had been spitting and coughing since his admission to the jail that evening. Langley did not attempt to alert the police; he went to sleep. Langley said that Popham had never mentioned suicide to him before. Langley said that if he had believed that Popham was serious about committing suicide, he would have made an effort to alert the guards.
Jailer Thurman Smith discovered Popham hanging from his blue jeans beside the shower stall in his cell at 5:30 a.m. This particular area was outside the range of the monitor.
According to the plaintiff, Popham had attempted suicide one week before the arrest, *543 by taking an overdose of Thorazine. The plaintiff said that on that prior occasion Popham had left a suicide note. The plaintiff testified that she did not believe Popham to be suicidal on the night of December 24, 1987. The plaintiff called the police station around 11:00 p.m. to find out how much it would cost to bail him out of jail. She went to the police station and left some cigarettes for her husband, but at no time did she tell the officers that her husband had recently attempted suicide.
Officers Ronnie Jones and Mark Williams said that Popham never threatened or mentioned suicide during his arrest on December 24, 1987. Chief Mike Hamlin did not participate in the arrest, but was aware that Popham had been incarcerated previously on charges of assault, battery, and public intoxication. Chief Hamlin said he had no knowledge that Popham had suicidal tendencies. Mayor George Montgomery stated that none of the members of the Talladega City Council had participated in Popham's arrest. He had no knowledge of Popham's prior attempt at suicide.
We must determine whether the trial court erred in entering the summary judgment for the defendants. Rule 56, A.R. Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. In determining whether a summary judgment was properly entered, the reviewing court must view the motion in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981).
Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Code 1975), for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
The question before the trial court was whether, in response to the defendants' properly supported motion, the plaintiff produced substantial evidence of a duty owed to the deceased, and that the defendants breached this duty. The controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated that the deceased would attempt to harm himself. Annot., 11 A.L.R.2d 751, 782-92 (1950). In Keebler v. Winfield Carraway Hospital, 531 So. 2d 841 (Ala.1988), this Court held "that foreseeability of a decedent's suicide is legally sufficient only if the deceased had a history of suicidal proclivities, or manifested suicidal proclivities in the presence of the defendant, or was admitted to the facility of the defendant because of a suicide attempt." Keeton v. Fayette County, 558 So. 2d 884, 887 (Ala.1989).
Our review of the record shows us that the plaintiff failed to produce substantial evidence that the defendants had the "slightest suspicion" that Popham was going to commit suicide. See Popham v. City of Talladega, supra. Popham had been incarcerated several times in the Talladega city jail. The plaintiff did not tell the corrections officers of his recent suicide attempt. His wife did not inform the defendants of his suicide attempt.
A review of the record shows that defendants used the reasonable care of a jailer in ordinary circumstances in guarding against any suicidal possibility. Officers Jones and Williams removed Popham's belt, his shoes and shoelaces, and the contents of his pockets. Sergeant Palmer also personally checked on Popham at the end of his shift. The cell where Popham was confined was monitored 24 hours a day by closed-circuit television.
*544 Plaintiff argues that, for summary judgment purposes, the fact that there was no night watchman is sufficient to create an inference of negligence per se under Alabama Code 1975, § 14-6-105, which states in pertinent part:
We do not agree. The record reflects that a dispatcher was on duty at the jail 24 hours a day and that a television monitor was in the cell.
The plaintiff also argues that she presented substantial evidence, through the expert testimony of Dr. Charles Lindquist, that the defendants breached the standard of care that a reasonably competent jailer would ordinarily observe. She contends that his testimony was sufficient to defeat the summary judgment motion. We do not agree, because the suicide was not foreseeable.
The plaintiff cites us to Keeton v. Fayette County, 558 So. 2d 884 (Ala.1989), in which this Court overturned the trial court's summary judgment for the defendants. The two cases are easily distinguished. Timothy Keeton, a minor, was incarcerated for the first time because he had failed to return to his father's home after having spent the weekend with his mother. The evidence presented at trial showed that the intercom system used to provide audio monitoring of the cell was broken. There were no television monitors or personal checks made by corrections officers. Keeton ended his life by hanging himself with his own belt.
In contrast, Popham had been in jail several times. Popham's belt, his shoes and shoelaces, and the contents of his pockets had been removed. There had been constant visual monitoring of his cell, as well as a personal check made at approximately 11:00 p.m.
The summary judgment is due to be affirmed.
AFFIRMED.
MADDOX, ADAMS and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
As the author of the opinions in both Keebler v. Winfield Carraway Hospital, 531 So. 2d 841 (Ala.1988), and Keeton v. Fayette County, 558 So. 2d 884 (Ala.1989), I think this case is controlled by Keebler. In the case at issue, and in Keebler and Keeton, the plaintiff's decedent committed suicide while incarcerated in a jail cell. In Keeton, it was reasonably foreseeable, as a matter of law, that minor prisoners might attempt to harm themselves while incarcerated in a county jail, based upon Ala.Code 1975, § 12-15-61, and the "Manual of Operating Procedures: Fayette County Jail Detention Program" adopted by Fayette County to obtain approval by the Department of Youth Services to use cells in the Fayette County jail for adult prisoners for the detention of juveniles. In my opinion, there is no statute or ordinance involved in the case at issue applicable to foreseeability; therefore, in accordance with the general case law, foreseeability of this adult decedent's suicide is a factual issue only if there is substantial evidence that (1) the deceased had a history of suicidal proclivities, or (2) manifested suicidal proclivities in the presence of the defendant, or (3) was admitted to the facility of the defendant because of a suicide attempt. There being no substantial evidence of any of these three conditions, the trial court did not err in granting the City of Talladega's motion for summary judgment. Keebler v. Winfield Carraway Hospital, supra. | May 31, 1991 |
6f275ab3-d758-4dd8-a0e9-82e872fcb0b8 | Busby v. TRUSWAL SYSTEMS CORP., INC. | 596 So. 2d 562 | N/A | Alabama | Alabama Supreme Court | 596 So. 2d 562 (1991)
Jean BUSBY, et al.
v.
TRUSWAL SYSTEMS CORPORATION, INC.
89-1504.
Supreme Court of Alabama.
June 7, 1991.
Rehearing Denied March 27, 1992.
Richard W. Bell, Pelham, for appellants.
John W. Clark, Jr. and Judith E. Dolan of Clark & Scott and Judy Whalen Evans and Susan Rogers of Harris, Evans, Berg & Morris, Birmingham, for appellee.
ADAMS, Justice.
This is an appeal from a judgment based on a directed verdict in favor of Truswal Systems Corporation.[1] The plaintiffs, Jean Busby, Doris Money, Bobbie Pitts, Leisa Livingston Vincent, and Sandra Clements, raise one issue on appeal: whether the trial judge erred in granting the defendant's motion in limine, thereby excluding their testimony with regard to certain transactions and statements made to them by DuWayne Deaton, an employee of the defendant who was deceased at the time of the trial. The defendant, Truswal Systems Corporation (hereinafter "Truswal"), contends that the trial judge did not err because, in light of § 12-21-163, Code of Alabama (1975), otherwise known as the Dead Man's Statute, an interested party is not allowed to testify regarding statements made by a decedent if certain conditions are met. Contending that those necessary conditions were met, Truswal argues that there was no error.
This Court has considered certain issues in this case on a prior occasion. See Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala.1989). In that case, the plaintiffs (hereinafter collectively referred to as "Busby"), appealed from a summary judgment, arguing that they had offered sufficient evidence to warrant submission to a jury of their claims of invasion of privacy and the tort of outrage. This Court affirmed the summary judgment as it related to the outrage claim; however, it was reversed as it related to the claim for invasion of privacy, and the cause was remanded. See Busby, supra. The facts of the *563 case that are pertinent to this appeal are set forth in our earlier opinion as follows:
Joyner v. AAA Cooper Transportation, 477 So. 2d 364, 365 (Ala.1985).
551 So. 2d at 323-24 and 326-27. Upon remand, Truswal filed a motion in limine requesting that, pursuant to the Dead Man's Statute, any statements made by Deaton to the plaintiffs be excluded at trial. That motion was granted and, at trial, Truswal's objections to the plaintiffs' attempts to offer such testimony were upheld. The plaintiffs offered no testimony other than that of Jean Busby and Doris Money, and at the close of their case, the trial judge entered the directed verdict.
Section 12-21-163, Code of Alabama (1975), states:
Section 12-21-163 (emphasis added). Truswal contends that because of that portion of the statute emphasized above, the only way the plaintiffs could have offered testimony of statements made to them by Deaton would have been via the testimony of a disinterested third party who overheard Deaton. Because the plaintiffs failed to present such testimony, Truswal contends that it was entitled to the directed verdict.
The plaintiffs' claims against Truswal assert that Truswal ratified the actions of Deaton. Even if the actions of Deaton were outside the line and scope of his employment at the time he allegedly made them, if Truswal is deemed to have ratified those actions and statements, then Truswal should be entitled to the protection of the Dead Man's statute, in particular that portion *565 of the statute that excludes statements made by a deceased party "act[ing] in any representative or fiduciary relation whatsoever" to Truswal. See § 12-21-163, supra. For these reasons, the judgment of the trial court is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and STEAGALL and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
[1] In the appeal, the parties refer to the trial judge's ruling as a summary judgment; however, the judge's ruling was made after a presentation of evidence had been made by the plaintiff. Therefore, in effect, the judge granted a directed verdict in favor of the defendant. | June 7, 1991 |
26eaf8ae-8628-42fc-88e6-8bf66d97fda8 | Manning v. Wingo | 577 So. 2d 865 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 865 (1991)
Annie Nell MANNING
v.
Oscar L. WINGO, et al.
89-997.
Supreme Court of Alabama.
March 15, 1991.
*866 Edward W. Drinkard, Prattville, for appellant.
Clifford W. Cleveland of Cleveland & Colley, Prattville, for appellees.
STEAGALL, Justice.
This appeal is from a final judgment entered in a proceeding for the sale of real property for division.
The property in question was the marital residence of Annie Nell Manning and Robert M. Manning. They were divorced on April 19, 1979. In their divorce judgment, the trial court reserved any determination on the question of real estate owned by the Mannings. Robert Manning died in 1980. At the time of his death, he and Annie Nell Manning each owned an undivided one-half interest in the property. The Mannings had one child.
After Robert Manning's death, two purported wills were offered for probate. The first, dated June 6, 1979, named Hobson L. Nelson as the "administrator" of Robert Manning's estate. It was never admitted to probate. The second, dated July 7, 1979, contained no provision for the appointment of an executor. The second will became the subject of a will contest proceeding that was removed to circuit court. Under both wills, Robert Manning devised $1.00 to his son, Milton Manning, and the remainder of his estate to his brother, Clinton H. Manning. On May 8, 1981, while the will contest proceeding was pending, Clinton H. Manning purported to convey by warranty deed the former marital residence of Robert and Annie Nell Manning to Oscar L. Wingo and Myrtis M. Wingo.
On August 9, 1983, Judge Joe Macon, pursuant to a settlement, entered a consent judgment in the will contest proceeding; that judgment, however, did not deal with the former marital residence. On March 12, 1986, Judge Macon set aside the consent judgment pursuant to Rule 60(b), A.R. Civ.P. In his Rule 60(b) order, Judge Macon awarded Robert Manning's interest in the marital residence to Annie Nell Manning, subject to any rights the Wingos "may establish as bona fide holders [sic] for value." Pursuant to the Rule 60(b) order, Robert Manning's interest in the marital residence was conveyed to Annie Nell Manning by Fred Posey, as circuit clerk of Autauga County.
*867 On March 7, 1985, Annie Nell Manning brought an action seeking the sale of the marital residence for a division of the proceeds; she named the Wingos and the estate of Robert M. Manning as defendants.[1] In her complaint, Annie Nell Manning alleged that she was the owner of an undivided one-half interest in the property and asked the court to declare whether the Wingos or the Manning estate was the owner of the other undivided one-half interest. She amended her complaint on November 6, 1986, as a result of Judge Macon's March 12, 1986, final order setting aside the consent judgment in the will contest proceeding. She amended her complaint by striking the Manning estate as a defendant and by adding a challenge to the validity of the May 8, 1981, conveyance of the property to the Wingos by Clinton H. Manning.
On February 26, 1990, Judge John B. Bush entered a judgment in the sale-for-division case, setting aside Judge Macon's Rule 60(b) order and holding that the Wingos had been bona fide purchasers for value as to Robert Manning's one-half undivided interest. In his judgment, Judge Bush wrote:
Judge Bush ordered the Wingos to pay $2,500 to Annie Nell Manning for her undivided interest in the property.
Annie Nell Manning first argues that Judge Bush erred in setting aside Judge Macon's Rule 60(b) order in the will contest proceeding. "It is well settled in Alabama that the judgment of a court that has jurisdiction of the subject matter and the parties and possesses the power to render the particular judgment is immune from collateral attack." Greene v. Thompson, 554 So. 2d 376, 380 (Ala.1989) (citations omitted). "[A] collateral attack on a judgment is an attack made by or in an action or proceeding that has an independent purpose other than impeaching or overturning the judgment." Black's Law Dictionary 237 (5th ed.1979). A judgment is subject to collateral attack for lack of jurisdiction if a jurisdictional defect is apparent on the face of the record. Balboa Ins. Co. v. Sippial Elec. Co., 379 So. 2d 579 (Ala.1980).
The record reveals that the August 9, 1983, judgment was set aside on March 12, 1986, approximately 2 ½ years after it was entered. The record does not disclose the filing date of the Rule 60(b) motion to set the judgment aside. In his Rule 60(b) order, Judge Macon held that Annie Nell Manning was entitled to relief from the prior judgment under Rule 60(b)(3) and (5), and held that Annie Nell Manning was entitled to Robert Manning's one-half interest in the marital residence, which was excluded from the 1983 settlement because of misrepresentation. There was no appeal from that Rule 60(b) order. Judge Bush set aside that order on the ground that the Rule 60(b) motion had been untimely and, therefore, that Judge Macon had been without jurisdiction to rule on it. He also held that the Wingos should have been notified of the filing of the motion and should have been made parties to the will contest proceeding.
The only time limitation for a Rule 60(b)(5) motion is that the motion must be brought "within a reasonable time." See Rule 60(b), A.R.Civ.P. Therefore, no jurisdictional defect in the Rule 60(b) motion and order is apparent on the face of the record. We find that this proceeding was tantamount to a collateral attack on Judge Macon's final judgment entered pursuant to the Rule 60(b) motion, and we conclude that because it was within Judge Macon's jurisdiction to rule on the motion, it was *868 error for Judge Bush to set aside that final judgment.
Annie Nell Manning's second contention is that the Wingos were not bona fide purchasers for value as to the marital residence. In Rolling "R" Constr., Inc. v. Dodd, 477 So. 2d 330 (Ala.1985), this Court stated:
477 So. 2d at 331-32 (citations omitted).
Oscar Wingo testified that Clinton Manning told him that he (Clinton Manning) owned the property as a result of the will of Robert Manning. Wingo further testified that he was told that Hobson Nelson was the executor of the Manning estate and that no one explained to him that a will had to be admitted to probate.
The Wingos purchased the property from Clinton H. Manning in May 1981. The consent judgment in the will contest proceeding was entered in August 1983. At the time of the conveyance to the Wingos, the property was owned by Annie Nell Manning and the estate of Robert Manning. The deed conveying the property to the Wingos was signed by Clinton H. Manning and by "Hobson C. Nelson as Executor of the Estate of Robert Maddox Manning"; however, only Clinton H. Manning was named as the grantor. Hobson Nelson was never appointed as executor of the Robert Manning estate.
"When a conveyance is subscribed by more than one person and one of the signers' names is not shown in the granting clause or body of the instrument, such conveying instrument is void as to that person." Bank of Gadsden v. Dixie Heating & Cooling Co., 425 So. 2d 491, 493 (Ala.Civ.App.1983). We hold, therefore, that even if Hobson L. Nelson had been appointed as executor of the Manning estate, the deed was void as to the estate. Because Clinton H. Manning did not own the property at the time of the conveyance and because the Wingos had constructive notice that he did not own the property, we cannot conclude that the Wingos were bona fide purchasers for value.
Annie Nell Manning next contends that the Wingos are not entitled to the value of the improvements they made to the property. Oscar Wingo testified that at the time he and his wife took the deed to the property, the house was in poor condition and that, in his opinion, the property was worth only $4,000 to $5,000 at that time. There was evidence that the Wingos substantially improved the property after taking their deed. Wingo testified that the majority of the improvements came prior to his knowledge of Annie Nell Manning's claimed interest in the property; however, some improvements were made after he knew of her claimed interest.
Oscar Wingo testified that he knew there was a will contest pending, but that he did not learn of Annie Nell Manning's claimed interest in the property until March 7, 1985, when he was served with the complaint seeking a sale of the property for division. Wingo testified that he believed that he and his wife owned the house. He made the back payments on the outstanding mortgage and has continued to make the monthly mortgage payments since taking his deed in 1981. He has paid the back taxes, has had the property assessed in his name for tax purposes, and has paid the taxes on the property since 1981. He has never paid rent on the property.
Under the strict rule of common law, one who made improvements upon property that he did not own could not recover for the value of the improvements except to set off the value of the improvements against the profits during occupancy. Kerret v. Nicholas, 88 Ala. 346, 6 So. 698 *869 (1889). Several jurisdictions have developed an equitable rule of recovery to alleviate the harsh result of the common law rule. In Somerville v. Jacobs, 153 W.Va. 613, 170 S.E.2d 805 (1969), the Supreme Court of Appeals of West Virginia noted that whether one can recover the value of improvements placed mistakenly upon land owned by another depends upon the circumstances and the equities involved in each particular case. That court stated:
153 W.Va. at 629, 170 S.E.2d at 813.
Some jurisdictions have allowed recovery for the value of improvements made by persons who in good faith but mistakenly believe that they own the land, even though the true owner has not sought relief or requested a judgment against the improver. See Coos County v. State, 303 Or. 173, 734 P.2d 1348 (1987). Other jurisdictions have allowed recovery for the value of improvements only when the true owner seeks to recover possession or profits and rents. For example, in General Greene Inv. Co. v. Greene, 48 N.C.App. 29, 268 S.E.2d 810 (1980), review denied, 301 N.C. 235, 283 S.E.2d 132 (1980), the Court of Appeals of North Carolina held that the right to recover for improvements is a defensive right that accrues to a party in possession of land under color of title when the true owner seeks to recover possession of the land.
Alabama has limited its equitable rule of recovery to the following situations: (1) where an improver, acting in good faith and under the mistaken belief that he owns the land, makes improvements on the land of another, being induced to do so by "fraud, duress, undue influence, or mistake of such character that he is entitled to restitution," Hewett v. McGaster, 272 Ala. 498, 133 So. 2d 189 (1961) (citing earlier cases); (2) where the true owner of land makes a demand for the rents and profits, a bona fide occupant under a claim of title who has made valuable improvements on the land is entitled to compensation by way of set-off against the rents or profits accruing during his occupancy, Gresham v. Ware, 79 Ala. 192 (1885); and (3) where a true owner brings an action to recover possession of land, the defendant may recover for permanent improvements by way of set-off against the value of the use and occupation of the land, upon the defendant's suggestion and proof of adverse possession for three years preceding the complaint, Ala.Code 1975, § 6-6-286. In Gresham v. Ware, supra, this Court held that knowledge of an adverse claim to the title is fatal to the improver's claim for compensation.
The Wingos would not be entitled to recover for the improvements under any of those situations; however, based on the circumstances of this case, and balancing the equities involved under these facts, we hold that the Wingos are entitled to recover the value of their improvements. See Somerville v. Jacobs, supra. We therefore remand this cause to the trial court for a determination of the value of the improvements made before the Wingos were served with Annie Nell Manning's complaint in the sale-for-division action, and we direct the trial court to award to the Wingos *870 the value of the improvements and an equitable lien on the property for the value of the improvements or, alternatively, to order Annie Nell Manning to convey the property to the Wingos upon payment by the Wingos of the value of the land less the value of the improvements they made.
Finally, Annie Nell Manning contends that Judge Bush erred in denying her motion for a partial summary judgment. Because of our resolution of the other issues, however, we need not address that contention.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, KENNEDY and INGRAM, JJ., concur.
ALMON, J., concurs in part and dissents in part.
ALMON, Justice (concurring in part and dissenting in part).
I agree that, from all that appears in the record before us, Judge Macon had jurisdiction over Annie Manning's Rule 60(b), Ala. R.Civ.P., petition. I also agree that, therefore, Judge Bush, although attempting to adjust the equities between the parties, erred in setting aside Judge Macon's order and judgment, which awarded the property to Mrs. Manning subject to any interest the Wingos might hold as bona fide purchasers for value.
The August 1983 settlement agreement approved by Judge Macon contemplated that Clinton Manning would deed certain properties to Annie Manning in exchange for her deeding other property to him. The one-acre tract at issue here was not included in that settlement agreement, but the transcript of the hearing at that time includes the following statement by Annie's attorney: "[T]here is one acre, 210 by 210, that is referred to that's excluded from this property already by reason of a mortgage foreclosure by a mortgagee.... Hopefully [Milton Manning, the minor son,] might still have an opportunity to redeem it." The action we now have on review was filed on March 7, 1985, partially on the theory that, during proceedings pursuant to the settlement agreement, Annie discovered that Clinton had fraudulently misrepresented that the one-acre parcel had been foreclosed upon but that, in fact, he had purported to convey it to the Wingos.
The record before us indicates that, before Clinton executed any deed pursuant to the settlement agreement, he became incompetent, and that he died in the spring of 1984. Although the motion for relief under Rule 60(b) is not before us, the Wingos assert that it was filed on February 26, 1986. On March 12, 1986, Judge Macon relieved Annie from any duty under the August 1983 settlement to convey property to Clinton Manning and ordered that, as her son Milton Manning was the only heir of both his father Robert Manning and his uncle Clinton Manning, all property that was to have been disposed of in the settlement agreement would be conveyed by a clerk's deed to Annie and Milton Manning. The one acre tract at issue here, and an adjoining 4.4-acre tract that Clinton and Hobson Nelson had similarly purported to convey to the Wingos, were ordered to be conveyed
In all these respects, Judge Macon acted properly in granting relief under Rule 60(b)(5).
In her original petition for declaratory relief and sale for division, Annie had asserted that she owned a one-half interest in the subject property by virtue of a 1962 deed to her and Robert Manning and by virtue of a reservation in her divorce judgment as to the title to the real property. She asked the court to declare whether the estate of Robert Manning or the Wingos owned the other one-half interest. On November 6, 1986, she filed an amendment to her petition, asserting that the Wingos were not bona fide purchasers for value *871 and so held no interest in the property, and that the one-half interest owned by the Robert Manning estate had been conveyed to her and Milton pursuant to Judge Macon's March 12, 1986, order. She added a claim for damages for the rental value of the Wingos' use of the property. In addition to defending against her claims, the Wingos counterclaimed for the value of their improvements.
On February 23, 1990, Judge Bush entered an order in this action that included the following:
I have shown above why I agree with the majority opinion that Judge Bush erred in holding that Judge Macon did not have jurisdiction to rule on the Rule 60(b) motion. I also believe that Judge Bush erred in holding that the Wingos were bona fide holders for value.
Rolling "R" Construction, Inc. v. Dodd, 477 So. 2d 330, 331-32 (Ala.1985) (citations omitted).
At the time of the deed to the Wingos, the chain of title to this parcel reflected that Robert and Annie Manning were co-owners of the property by a 1962 deed. There was no instrument divesting Annie Manning of her interest. Furthermore, there was no instrument in the chain of title reflecting that Robert Manning's estate had been probated, that Hobson Nelson had been named executor or administrator, or that Clinton Manning had been declared the beneficiary of the estate or devisee under a will. There was evidence that Mr. Wingo attended the 1983 hearing on the settlement agreement at which the property he had purchased was referred to as having been foreclosed upon. He admitted having transported Clinton Manning to a hearing on the will contest, although he said he did not remember the date and did not learn anything about the contest. Because the Wingos had record notice of title contrary to that asserted by their grantor, they could not be bona fide purchasers for value.
The majority opinion proceeds to observe that the Wingos are not in a posture in which parties have traditionally been allowed compensation for the value of improvements, but nevertheless holds that they are entitled to such relief "based on the circumstances of this case and balancing the equities involved under these facts." Perhaps this is based on the idea *872 that Mrs. Manning unreasonably delayed any attempt to redeem the property under her misunderstanding (apparently caused by Clinton's fraud) that the mortgage had been foreclosed. I can see no other basis for holding that, although the Wingos purchased with notice that their grantor did not hold or have authority to convey title and that Mrs. Manning owned an interest, they have an equitable claim. I would hold that the Wingos purchased the property and made improvements to it at their own risk.
Even if I agreed with the majority that the Wingos should be entitled to some relief, I would not hold that the Wingos can obtain the property by payment of the value of the lands less the value of the improvements. Furthermore, under the majority's result, an award of the value of the improvements should be offset by the reasonable rental value of the property during the time the Wingos have held it.
[1] J.O. DeVaughn, the tax collector of Autauga County, was also named as a defendant, but no claim was stated against him, and he is not a party to this appeal. | March 15, 1991 |
d3298aec-0730-4a93-8ed7-0558225a95ea | Carter v. Beaver | 577 So. 2d 448 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 448 (1991)
Clayton CARTER, Jr., individually and as administrator of the estate of Christopher Carter
v.
Mary BEAVER.
89-1502.
Supreme Court of Alabama.
March 8, 1991.
*449 George M. Barnett of Barnett, Hundley & Driskell, Guntersville, and Mark W. Lee of Parsons, Lee & Juliano, Birmingham, for appellant.
Harvey B. Morris of Morris, Smith, Siniard, Cloud & Fees, Huntsville, for appellee.
MADDOX, Justice.
This case presents two issues relating to the distribution of the proceeds of a recovery for the wrongful death of a minor:
On July 28, 1980, Clayton Carter, Jr., and Mary Beaver were divorced. Pursuant to the judgment of divorce, Beaver was awarded custody of the couple's children. On February 11, 1987, Christopher Carter, their minor son, was killed in an automobile accident. As the custodial parent, Beaver filed a lawsuit in the Circuit Court of Marshall County, Alabama, seeking damages for the alleged wrongful death of Christopher. She received a settlement in the amount of $620,000.
At the time of Christopher's death, Carter had obligations for his support, maintenance, and education, as set forth in the divorce judgment. Those obligations, in addition to the payment of child support, included the payment of all medical and dental expenses incurred by, and for the benefit of, Christopher. Additionally, Carter had the obligation to maintain life insurance on his own life, naming the parties' minor children, including Christopher, as beneficiaries. Carter claims that he was current in all of his obligations, but Beaver says that the record does not support his claim in this regard.
On February 8, 1989, Carter filed a declaratory judgment action, asking the court to declare that any proceeds received by Beaver in the underlying wrongful death action must be distributed in accordance with the laws of descent and distribution as provided for in § 43-8-42. The trial court ruled that Beaver was entitled to all of the proceeds; Carter appeals.
Carter's basic argument is that the legislature, when it amended § 6-5-390 in 1979, giving to a father and a mother, provided they are lawfully living together as husband and wife, an equal right to commence an action for the wrongful death of a minor, did not intend that the damages recovered in such an action be distributed only to the parent authorized to bring the action. Carter, in his brief, contends that the proceeds should be "shared equally between the parents" and that "the case law decided prior to 1979, relied upon by Beaver in her briefs supporting her motion for summary judgment, is inapplicable to this case because of the amendment to Section 6-5-390."
In order to determine what the legislature intended when it amended §§ 6-5-390 and -391 in 1979, we believe that a brief history of the statutes that authorize the *450 filing of a wrongful death action would be appropriate.
A significant amount of the history of the statutes is contained in Cofer v. Ensor, 473 So. 2d 984 (Ala.1985), a case involving a question of whether a one- or a two-year statute of limitations should apply, but we briefly restate some of the history of these statutes for the purpose of deciding the issues here presented.
There was no right of action at common law for the death of a child, and the right to recover damages therefor is purely statutory. Taylor v. City of Clanton, 245 Ala. 671, 18 So. 2d 369 (1944). The original act giving the parents a right of action for the wrongful death of a minor was enacted in 1872 and was codified in 1876.[1]
A code commissioner's note to Code 1907, § 2485, quoted in Cofer, 473 So. 2d at 989-90, sets out the history of what is now § 6-5-391; that history will not be repeated here, but a summary of it shows that when the original cause of action for wrongful death was legislatively created in 1852, it did not exclude wrongful death of minors, and, as was stated in Cofer, "the statute that gave the right of action for wrongful death of a minor directly to the parent (presently § 6-5-391) did not create a cause of action for wrongful death; it allowed the parents to sue for any child's wrongful death." This Court reasoned: "To conclude otherwise would be to hold that between 1852 and 1876 [sic, 1872] no cause of action existed in Alabama for the wrongful death of a minor."
Based on this history, therefore, prior to 1872, only the personal representative could maintain a cause of action for the death of a minor or of an adult, and when parents were given the right to sue for the wrongful death of a minor child, the legislature made no provision, as it had done in the original wrongful death act, for the distribution of the proceeds from any recovery had in such an action.
Alabama cases discussing the distribution of the proceeds of wrongful death actions based on the death of minor children decided under the unamended version of § 6-5-390 held that "`[w]hen a minor child is killed by the wrongful act of another, and he leaves surviving his father, the damages recoverable [under Title 7, § 119, Code of Alabama 1940, which is now § 6-5-391] are for the benefit of the father, where the suit is by the father personally or by an administrator.'" Jones v. Jones, 355 So. 2d 354, 355 (Ala.1978), quoting Peoples v. Seamon, 249 Ala. 284, 287, 31 So. 2d 88, 89 (1947). These cases, of course, were decided prior to the adoption of the 1979 amendment.
Sections 6-5-390 and -391 were amended in 1979 to eliminate the priority of right given to the father to bring an action for the personal injury (or wrongful death) of his minor child. Sections 6-5-390 and -391 now give "[a] father or a mother, ... [who] are lawfully living together as husband and wife, ... an equal right to commence an action for an injury to their minor child" or the wrongful death of such a child. These Code sections were also amended to provide that "in the event such mother and father are not lawfully living together as husband and wife, or in the event legal custody of such minor child had been lawfully vested in either of the parties or some third party, then and in either event the party having legal custody of such child shall have the exclusive right to commence such action." The second phrase of the statute is applicable here.
Carter contends that, although the custodial parent has the exclusive right to bring the wrongful death action, that parent does not have the exclusive right to the proceeds from that action. He argues that the proceeds should be distributed according to Alabama's general wrongful death statute, § 6-5-410, which states that all proceeds are to be distributed according to the statute of distribution. If Carter's construction of legislative intent is correct, he would be entitled to receive one half of the proceeds awarded in the wrongful death action. If not, he would be entitled to *451 nothing, the custodial parent being entitled to the complete recovery made.
Before the 1979 amendment that allowed both a father and a mother to recover for the wrongful injury or death of a child, the courts looked to the common law to see who was to receive the benefits awarded in such an action. The common law recognized the obligation of the father touching the maintenance, education, and care of his family, and, in return, the right of the father to the services of the child. In recognition of the father's right to the services of his child, he was given the sole right to bring the wrongful death suit. Because the father had the exclusive right to bring suit, he also had the exclusive right to the proceeds. Mattingly v. Cummings, 392 So. 2d 531 (Ala.1980); Jones v. Jones, 355 So. 2d 354 (Ala.1978); Thorne v. Odom, 349 So. 2d 1126 (Ala.1977); Peoples v. Seamon, 249 Ala. 284, 31 So. 2d 88 (1947). Prior to the 1979 amendment, when the father was dead, had deserted the family, or had become insane or otherwise unable to perform his parental obligations, he lost the right of action, and a right of action then accrued to the mother. Ex parte Roberson, 275 Ala. 374, 155 So. 2d 330 (1963). But the mother had a right of action only when the father had lost his right to bring the action. When the mother accrued the right to bring suit, she also accrued the exclusive right to the proceeds from the action.
The 1979 amendment to § 6-5-391 allows a mother an equal right to bring an action for the wrongful death of her child. A mother no longer has to wait for the father to abandon his right to bring an action before she is allowed to bring suit. The cause of action now belongs to both parents, and if one declines or is unable to commence the action, the other parent may bring the action. Lee v. Lee, 535 So. 2d 145 (Ala.1988). However, the amendment also made it clear that, if the parents are not living together, the custodial parent has the exclusive right to bring the wrongful death action. Carter does not dispute that the custodial parent has the exclusive right to bring the action, but he still insists that the legislature intended that he should share in any recovery. He argues essentially that the provisions of § 6-5-410, as they apply to the distribution of wrongful death proceeds, should apply.
It has long been settled that if a deceased child leaves a parent in the exercise of parental care, a wrongful death action based on the child's death is controlled entirely by § 6-5-391, and § 6-5-410, the section providing for an action for the wrongful death of an adult, does not apply. Adkison v. Adkison, 46 Ala.App. 191, 239 So. 2d 555, reversed on other grounds, 286 Ala. 306, 239 So. 2d 562 (1970); Peoples v. Seamon, 249 Ala. 284, 31 So. 2d 88 (1947).
Carter cites Coleman v. Stitt, 514 So. 2d 1007 (Ala.1987), and especially the special concurrence of Mr. Justice Beatty in that case, in support of his argument. In Coleman, this Court recognized the fact that a father or a mother, but not both, could bring an action for the wrongful death of a child, and Mr. Justice Beatty, in his special concurrence, did state that "the father and the mother, however, now have an equal right to commence such an action, and, it follows, an equal right to any recovery of the proceeds." Coleman is distinguishable. There, both the father and the mother had a right to bring the action, because they were married and were living together. In this case, it is undisputed that the father and mother were divorced; therefore, the parent having the custody of the minor had the exclusive right to bring the action.
Based upon the history of § 6-5-391, the cases construing that section prior to the 1979 amendment, and the cases decided after the amendment was adopted, we conclude that the legislature, in giving the custodial parent the exclusive right to sue, intended that that party also have the exclusive right to any recovery, and we so hold. The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] For reasons not material here, the first act was found to be unconstitutional in Smith v. Louisville & N. R.R., 75 Ala. 449 (1883). | March 8, 1991 |
c53628d5-5237-437f-8bf5-ccf3dc1d7e97 | Norris v. Alabama State Bar | 582 So. 2d 1034 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 1034 (1991)
Robert McKim NORRIS, Jr.
v.
ALABAMA STATE BAR.
89-1463.
Supreme Court of Alabama.
March 29, 1991.
Rehearing Denied June 21, 1991.
*1035 Ralph Ogden of Wilcox, Ogden & Cox, Denver, Colo., and David Norris, Birmingham, for appellant.
J. Anthony McLain, Montgomery, for appellee.
PER CURIAM.
This case involves an action brought by the Disciplinary Board of the Alabama State Bar against Robert McKim Norris, Jr., alleging violations of DR 1-102(A)(6), 2-102(B), and 2-103 of the Alabama Code of Professional Responsibility.[1] The case was heard on May 24, 1990, and the Disciplinary Board found Norris guilty of all three charges. Following the introduction of evidence as to the appropriate discipline, the Disciplinary Board imposed a two-year suspension from the practice of law. Norris appeals.
The facts in this case stem out of a tragic incident that occurred in the Birmingham area during the summer of 1987. Randy Allen Carter, 19 months old, died after having been left for over 6 hours in the summer heat in a van operated by a day care center. Within a day or two after the incident, Norris claims, his law office received a telephone call from an anonymous female who claimed that she personally knew the Carter family and that out of concern for them, she urged that Norris's firm help the Carter family. She stated that the family was "broke" and "didn't even have enough money to buy flowers for [Randy's] funeral." Robert Taylor, a nonlawyer representative of the firm, explained to the caller that absent a request from the Carters for the firm's services, the firm could do nothing more than "make sure they [the Carters] get a pot of flowers."
Because of the high profile of the case, Taylor met with Norris to discuss the call. They decided to have a flower wreath delivered to the funeral home where the ceremonies for Randy Carter were to take place and to attach to that wreath a letter. Taylor prepared the following letter and gave it to Norris for his approval:
The letter was signed by Taylor and his home telephone number was provided. Norris claims he then reviewed the Disciplinary Rules to ensure that he was acting within the boundaries of the rules. Norris read the letter, gave his approval, folded the letter, placed it in the envelope, together with a copy of a brochure describing his firm's services, sealed the envelope, handed it to Robert Watts, another nonlawyer employee, and instructed him to attach the letter to the wreath and to deliver both to the funeral home. Watts delivered the items as requested and, upon returning, he reported that none of the Carter family members was present at the funeral home when he delivered the items.
After news media reports surfaced concerning Norris's gesture, the Birmingham Bar Association's Grievance Committee began an investigation, which ultimately led to a complaint being filed with the Alabama State Bar against Norris. Approximately four or five days after Norris had sent the letter with the brochure to the Carters, he submitted a copy of the brochure to the Alabama State Bar for approval pursuant to DR 2-102(B).
Initially, we point out the applicable standard of review in disciplinary proceedings:
Courtney v. Alabama State Bar, 492 So. 2d 1002, 1003 (Ala.1986).
Norris first contends that the Disciplinary Board has acted unconstitutionally in interpreting DR 2-103 to allow it to punish him for conduct that he says the Bar has previously and "repeatedly approved in published ethics opinions." Norris cites a number of ethics opinions released by the Bar approving of solicitation by Alabama licensed attorneys to prospective clients by way of "direct mail." See Rule 7.2, Alabama Rules of Professional Conduct.[2] Norris concedes that the Bar has not approved "in-person" solicitation by an attorney to prospective clients, but he claims that he has not engaged in any "in-person" solicitation.
We find no authority in the "direct mail" cases Norris cites to support his constitutional claims. The facts in this case do not concern "direct mail" or even the "mail" at all. Rather, this case is concerned with other conduct undertaken in an effort to reach a prospective client.
DR 2-103 reads as follows:
It is undisputed that neither Norris nor any of his representatives ever made contact by telephone or in person with any of the members of the Carter family. Norris contends that because there was no such contact, he cannot be found to have violated DR 2-103. However, the broad language of DR 2-103 is not limited to only those two forms of solicitation. The listing of those two forms of solicitation was not intended to be exhaustive but, rather, was intended to specify two particular types of conduct.
R. Thigpen, Alabama Moves To "New Rules" Adoption, 40 Ala.L.Rev. 80-81, n. 622 (1988).[3] We acknowledge that a better practice might have been to use the phrase "includes, but without limitation," instead of simply the term "includes." Nonetheless, DR 2-103 is clear as to its purpose and spirit, and Norris clearly violated the purpose and spirit of the rule.
Norris also contends that there was no independent factual basis for his conviction under DR 1-102(A)(6) and that this provision *1037 is unconstitutionally vague. DR 1-102(A)(6) reads as follows:
The purpose of this subpart 6 is to ensure a good faith effort by attorneys to abide by the disciplinary rules. Comments, Rule 8.4, Alabama Rules of Professional Conduct.[4] Norris claimed at trial that he consulted the Disciplinary Rules and attempted to comply with DR 2-102 and 2-103. We can only guess that Norris consulted the Disciplinary Rules because he was unsure of the ethics of his plans. As stated earlier, Norris's actions were clearly conduct that was not specifically permitted by the rules, but were actions that a literal reading of the rule would not prohibit. This conduct from an attorney shows an indifference to the purpose and spirit of the rule. This is an independent basis to support a DR 1-102(A)(6) violation.
As to Norris's claim that DR 1-102(A)(6) is unconstitutionally vague on the grounds that it fails to establish any standards by which one might evaluate contemplated behavior, we disagree. In Dowling v. Alabama State Bar, 539 So. 2d 149 (Ala. 1988), cert. denied, 490 U.S. 1081, 109 S. Ct. 2102, 104 L. Ed. 2d 663 (1989), this Court addressed a challenge to DR 2-101(A) and DR 1-102(A)(4) as being vague and overbroad and we held that those rules were written precisely enough that the attorney in that case knew or should have known that his conduct was prohibited. In determining whether a statute is unconstitutionally vague, a court must not consider it in isolation and abstraction; instead, the constitutional standard for vagueness is the practical criterion of fair notice to those to whom the statute is directed. Rathle v. Grote, 584 F. Supp. 1128 (M.D.Ala.1984).
DR 1-102(A)(6) clearly puts attorneys on notice to exercise great discretion so as not to engage in conduct that would adversely reflect on their fitness to practice law.
Norris finally contends that his two-year suspension was "too harsh" a punishment for a "de minimus violation of DR 2-102(B)." Although Norris failed to timely submit to the Bar the brochure explaining the services of his firm, a violation for which he was cited, he does not challenge on appeal the Disciplinary Board's decision as to his guilt. However, Norris does challenge the punishment he received for violating DR 2-102(B), which we now address.
When a member of the Bar is found guilty by the Disciplinary Board, it may impose punishment in one of the following ways: disbarment, suspension, public censure, private reprimand, or a private informal admonition. Rule 3, Alabama Rules of Disciplinary Enforcement. On appeal, this Court may affirm the Disciplinary Board's order regarding punishment or it may modify the order if necessary. Courtney v. Alabama State Bar, supra; Perloff v. Disciplinary Board of the Alabama State Bar, 424 So. 2d 1305 (Ala.1982).
There is undisputed evidence that Norris knew his conduct bordered on what is permissible and what is prohibited by the Bar. Norris admitted that he failed to timely submit the brochure describing his firm's services for the Bar's approval. Norris admitted that his sending the flowers and letter were wrong and said that he would not "do it" again. In light of these facts, we find that there is sufficient evidence that Norris's acts and omissions constituted violations of DR 1-102(A)(6), 2-102(B), and 2-103. Thus, the decision of the Disciplinary Board to impose a two-year suspension was not error.
Based on the foregoing, the decision of the Disciplinary Board is due to be, and it is hereby, affirmed.
AFFIRMED.
*1038 HORNSBY, C.J., and ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Norris's appeal concerns complaint ASB-87-424. However, we note that the Disciplinary Board entertained three other complaints against Norris, ASB 86-409, 86-561(A), and 88-209. ASB 88-209 was disposed of by way of a summary judgment in favor of Norris. Norris was found not guilty by the Disciplinary Board of the charges contained in ASB 86-409 and 86-561(A).
[2] Although Rule 7.2, which replaced DR 2-102, did not go into effect until January 1, 1991, the substance of the two rules is identical.
[3] Again, although Rules 7.2 and 7.3, Alabama Rules of Professional Conduct, which replaced DR 2-102 and DR 2-103, respectively, did not go into effect until January 1, 1991, the substance of those two rules is identical to that of DR 2-102 and DR 2-103.
[4] There were no Comments to DR 1-102(A)(6). However, Rule 8.4, which replaced DR 1-102(A)(6), is identical to DR 1-102(A)(6). | March 29, 1991 |
ae0d9149-932f-4f88-bee3-686baf38b74e | Vreeland v. Marshall | 584 So. 2d 809 | N/A | Alabama | Alabama Supreme Court | 584 So. 2d 809 (1991)
Al L. VREELAND, as administrator ad litem of the Estate of Eliska Marshall Cooper, deceased, et al.
v.
Jesse E. MARSHALL, as conservator of the Estate of Eliska Marshall Cooper, non compos mentis, et al.
89-1844.
Supreme Court of Alabama.
June 7, 1991.
Rehearing Denied August 2, 1991.
*810 Al L. Vreeland, adm'r ad litem, pro se.
Roy F. King, Jr. of Sirote & Permutt, Birmingham, for appellants Sarah Marshall and Lowery Parker.
Jack Drake of Drake & Pierce, Tuscaloosa, for appellees.
INGRAM, Justice.
Jesse E. Marshall ("guardian") was appointed guardian of his mother, Eliska Marshall Cooper ("ward"), in November 1984.[1] The ward died in January 1985, and, following protracted litigation over the validity of her will, the guardian, in December 1989, petitioned for settlement of the guardianship. Attorney Al Vreeland was appointed administrator ad litem by the trial court to represent the interests of the ward's estate in the settlement proceedings. The guardian's petition for settlement was opposed by the ward's daughter, Sarah Marshall, and the ward's grandson, Lowery Parker, Jr. Following a pretrial conference, the trial court, by a written order, set a hearing on the settlement for June 5, 1990.
Following the June 5 hearing, at which only the guardian and Vreeland appeared, the trial court approved the settlement of the guardianship. Thereafter, Marshall and Parker filed a motion to alter, amend, or vacate the order approving the settlement. *811 The trial court denied the motion. Parker, Marshall, and Vreeland appealed.
Three issues are raised in this appeal. First, each of the appellants argues that the trial court did not give them an adequate opportunity to present, before the trial court, their arguments in opposition to the settlement of the guardianship, and, by that failure, erred. Second, appellants Marshall and Parker argue that the trial court erred in the procedure it followed in approving the guardian's settlement petition. Third, appellants Marshall and Parker argue that they were improperly deprived of a right to a jury determination of their claims in opposition to the settlement of the guardianship.
As to each appellant's argument that they were not given the opportunity to be heard on the matter, they assert that they were not made aware that a hearing set by the trial court for June 5, 1990, was to be the final settlement hearing. Vreeland contends that because he was led to believe that the June 5 court date was to be a second pretrial conference, he was not adequately prepared to present his concerns as to the ward's estate. Likewise, Marshall and Parker give the same reason as Vreeland for their failure to personally attend the June 5 hearing or to be represented by counsel.
Before addressing this first argument, however, we must examine the issue of whether the trial court erred in refusing to accept Vreeland's written statements concerning conversations that took place at the April 10, 1990, pretrial conference. The statements here advanced by Vreeland, purportedly made pursuant to Rule 10(d), A.R.App.P., outline the reasons the appellants say they believed that the June 5 court date was to be another pretrial conference.
In refusing to approve these statements by Vreeland, the trial court concluded:
The plain language of Rule 10(d) indicates that it pertains only to "evidence or proceedings at a hearing or trial." Here, rather than reconstructing the proceedings or evidence at a hearing or trial, the statements put forth by Vreeland recount conversations that took place at a pretrial conference that was held in the trial judge's chambers. Conversations at a pretrial conference do not fit within the meaning of "evidence or proceedings" as used in Rule 10(d). We hold that Rule 10(d) was not intended to provide a means by which to reconstruct statements that were made at a pretrial conference and that contradict the written orders of the court. Therefore, we find no error by the trial court in refusing to approve the statements of evidence advanced by Vreeland.
Because we affirm the trial court's refusal to approve the statements of the evidence offered by Vreeland, as well as the appellee's response to those statements, we will not consider the statements in reaching our decision on the merits of this appeal, even though they are included in the record on appeal. See State ex rel. Gibson v. Gibson, 555 So. 2d 1092 (Ala.Civ.App.1989).
Disregarding the parties' statements of the evidence, we find nothing in the record to suggest that it was ever contemplated that the June 5, 1990, hearing be anything other than a hearing on the merits of the settlement. To the contrary, the trial court's order of April 13, 1990, clearly indicates that on June 5, 1990, at 9:00 a.m., a hearing on the settlement of the guardianship would be held. The trial court ordered the guardian to cause proper notice of the settlement to be given as *812 required by law. The record further indicates that publication of notice of the hearing on the settlement was given in accord with § 26-5-33, Ala.Code 1975. In light of this evidence contained in the record, we find no merit in the appellants' contention that they were denied the opportunity to present their case regarding the settlement of this guardianship.
The second issue raised is whether the trial court erred in the procedure it followed in approving the guardian's petition for settlement. The record reveals that the guardian filed his petition for final settlement of the guardianship in December 1989. The petition contained a listing of the assets of the ward and the distribution of those assets that had been made by the guardian. The settlement hearing was then set for April 10, 1990. However, because proper notice was not given prior to the April 10 hearing, the parties, with the trial court's approval, agreed to use the April 10 court date for a pretrial conference. At that conference, the attorney for Marshall and Parker agreed to supply the court and the guardian with his clients' objections to the guardian's petition, specifying in particular those disbursements from the ward's assets that Marshall and Parker opposed.
In its order following the pretrial conference, the trial court instructed Marshall and Parker to restate their claims for relief for the court and for the other parties. The trial court also ordered that the hearing on the settlement of the guardianship be held on June 5, 1990. Marshall and Parker failed to appear, or to be represented by counsel, at the June 5, 1990, hearing. Furthermore, between the pretrial conference on April 10 and the settlement hearing on June 5, Marshall and Parker did not file with the trial court or provide to the guardian any statement of relief sought or any statement as to which disbursements made by the guardian were disputed by them.
Section 26-5-8, Ala.Code 1975, provides that upon final settlement of a guardianship, a guardian must file "a full account of the guardianship, accompanied by the vouchers and verified by affidavit." According to § 26-5-10, on the day appointed for the settlement of the guardianship, the court is to "examine the vouchers and ... audit and state the account." While we have found no Alabama cases interpreting the terms "voucher" and "audit and state the account" in the context of the statute regarding settlement of guardianships, we find no error by the trial court in the procedure it followed in approving the settlement of the guardianship in this particular case.
The record shows that at the settlement hearing, the trial court had before it the guardian's settlement petition detailing the assets of the guardianship as well as the manner in which those assets were distributed. The guardian had also set forth a listing of the charges that had been made against the guardianship assets. Furthermore, at the time of the settlement, no challenge to specific disbursements by the guardian had been properly presented. Under these facts, we conclude that the trial court properly approved the settlement of the guardianship.
Marshall and Parker further contend that the trial court erred by refusing to grant a jury trial in this case. They assert that they brought the jury demand to the attention of the trial court in at least two pleadings filed prior to the settlement hearing. The guardian, on the other hand, asserts that the appellants' jury demand was not properly made. The guardian also contends that there was no right to a jury trial in this case.
Assuming, without deciding, that Marshall and Parker properly made their jury demand, we find no error by the trial court in ignoring the demand. The relief sought by Marshall and Parker in their opposition to the guardian's petition for settlement is equitable in nature. It is well settled that there is no right to a jury trial on a claim that is equitable in nature. See Pugh v. Calloway, 295 Ala. 139, 325 So. 2d 135 (1976); Shelton v. Shelton, 376 So. 2d 740 (Ala.Civ.App.1979). Therefore, we find no error by the trial court in refusing to grant Marshall and Parker's demand for a jury trial.
*813 The judgment of the trial court is due to be affirmed.
AFFIRMED.
ALMON, ADAMS, STEAGALL and KENNEDY, JJ., concur.
[1] Subsequent to Marshall's appointment as his mother's guardian, the Alabama legislature adopted the Alabama Uniform Guardianship and Protective Proceedings Act. Although the Act, which became effective on January 1, 1988, did not change the substance of the law regarding the procedure to be followed in the settlement of guardianships, it does recognize two fiduciary capacitiesnamely, that of a "guardian," who is "of the person" and analogous to a parent, and that of a "conservator," who is "of the property" and more closely analogous to a trustee. However, at the time Marshall was appointed, the term "guardian" was used to encompass both of these capacities. Therefore, throughout this opinion, we will refer to Marshall as his mother's "guardian." See § 26-2A-1, Ala.Code 1975, official comment; 1987 Ala. Acts, Act No. 87-590, § 2-332. | June 7, 1991 |
513acd76-6762-4b0c-aac7-80368534163f | West v. Law | 577 So. 2d 445 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 445 (1991)
James H. WEST and Kathleen West
v.
David LAW and Dorothy Law.
89-995.
Supreme Court of Alabama.
March 8, 1991.
*446 Clarence F. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellants.
Gary E. Davis, Centre, for appellees.
ALMON, Justice.
David and Dorothy Law filed an action to reform the description of land contained in an instrument in which the Laws agreed to lease from James H. and Kathleen West certain land with an option to purchase.
The land was described as "[t]hree acres evenly off of the East side of the following described tract of land: ..." The Wests contend that the parties intended that the parcel was to run the entire length of the east boundary of the 10-acre tract owned by the Wests and to be of whatever width necessary to form a 3-acre tract. Conversely, the Laws contend that this description was intended to refer to a parcel of land "one acre wide" and "three acres deep." It is apparent that they mean by those phrases that the width was to be equal to a side of a square acre and the length was to be three times that distance, i.e., approximately 208.71 feet by 626.13 feet.
Section 35-4-153, Ala.Code 1975, provides:
Conceding that the description unambiguously described the parcel as contended by the Wests, we conclude that there is nevertheless an abundance of evidence in the record to support the trial court's conclusion that there had been a mutual mistake. Mullinax v. Mullinax, 495 So. 2d 646 (Ala.1986). The proof in the record of mutual mistake was properly admitted, and the parol evidence rule is no impediment when one seeks to reform a conveyance because of mutual mistake. Whitehead v. Johnston, 467 So. 2d 240 (Ala. 1985); Collier v. Brown, 285 Ala. 40, 228 So. 2d 800 (1969); and Chastain & Blass Real Estate & Ins., Inc. v. Davis, 280 Ala. 489, 195 So. 2d 782 (1967).
Dorothy Law testified that she and James West were the parties who actually negotiated the agreement and that they both discussed and agreed on a parcel of land "one acre wide" and "three acres deep" so that the Laws could construct a house and place a house trailer on the property. Mrs. Law's testimony is corroborated by the testimony of her former daughter-in-law, who, while not being a party to the agreement, was present during the negotiations. The Laws' contention that the agreed-upon land was "one acre wide" and "three acres deep" is further corroborated by the evidence that James West, himself, measured and marked the width and length of the parcel as being roughly "one acre" by "three acres." Finally, there was testimony that Mr. West had referred to the tract as being "one acre wide" and "three acres deep" and that Mr. West had attempted to sell to a third party *447 a portion of the 10-acre tract adjoining the Laws' parcel, and that he had described that portion as forming an "L" shape, that is, as bordering the Laws' parcel on the west and south. See "Plaintiff's Exhibit 5," attached.
Thus, the trial judge did not err in reforming the instrument. The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | March 8, 1991 |
4f5db533-b90f-4fb9-9136-accbe2c1830c | Green Springs Assoc. v. Green Springs | 577 So. 2d 872 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 872 (1991)
GREEN SPRINGS ASSOCIATES, LTD.
v.
GREEN SPRINGS VILLAGE, LTD., et al.
89-1091.
Supreme Court of Alabama.
March 15, 1991.
Andrew P. Campbell, Eddie Leitman and Shawn Hill Crook of Leitman, Siegel, Payne & Campbell, Birmingham, for appellant.
W. Eugene Rutledge, Birmingham, for appellees.
HOUSTON, Justice.
The plaintiff, Green Springs Associates, Ltd. ("Associates"), an Alabama limited *873 partnership, appeals from the judgment entered on the jury's verdict in favor of the defendants, Green Springs Village, Ltd. ("Village"), an Alabama limited partnership; Char-Ter Investments, an Alabama partnership; Security-Connecticut Life Insurance Company, Inc. ("Security-Connecticut"), a Connecticut corporation; Carter L. Cooper; Charles Grelier; and Cooper & Grelier Companies, Inc. ("Cooper & Grelier"), an Alabama corporation, in this action seeking to rescind a contract on the ground of fraud and to recover resulting damages, or, in the alternative, to recover damages for breach of contract. We reverse and remand.
In August 1987, Robert Morrow, the president of Real Estate Management, Inc. ("Real Estate Management"), and Hawkeye, Inc. ("Hawkeye"), two Alabama corporations involved in the development of commercial real estate, had discussions with David Young, a real estate broker affiliated with Cooper & Grelier, which was owned by Carter L. Cooper and Charles Grelier and which was involved in the sale of commercial real estate, in which Morrow expressed an interest in purchasing a shopping center known as "The Village on Green Springs." At that time, the shopping center was owned by Village. Char-Ter Investments was the general partner in Village, and Security-Connecticut was a limited partner. Cooper and Grelier were general partners in Char-Ter Investments. Morrow and a business associate, Richard Reiben, the president of First Stratford Corporation, a New York corporation, were interested in the shopping center as a possible real estate syndication project. Negotiations later ensued between Morrow and Reiben, and Grelier and Young, who were acting on behalf of Village. During these negotiations, Young and Grelier were made aware that Morrow and Reiben were interested in the shopping center as a possible syndication project and that it was Morrow's intention to contract for the purchase of the shopping center on behalf of Real Estate Management and to then immediately assign all of Real Estate Management's rights under the contract to a limited partnership to be formed, which would take title to the shopping center directly from Village at the closing. Cooper and Grelier agreed to this arrangement. On October 18, 1987, an "Agreement for Purchase and Sale of Real Property" was executed by Cooper and Grelier, on behalf of Village, as the seller, and by Morrow, on behalf of Real Estate Management, as the purchaser. That contract, which recites a purchase price of $5,200,000, provides, in part, as follows:
*874 On November 10, 1987, Associates was formed by Hawkeye, which, as previously noted, is an Alabama corporation, and First Stratford as the general partners, and Reiben as the limited partner.[1] Thereafter, Morrow, on behalf of Real Estate Management, purported to orally assign all of Real Estate Management's rights in the October 18, 1987, contract to Associates, and the sale of the shopping center was subsequently closed on December 17, 1987. At the closing, Village accepted the agreed-upon payment from, and conveyed title to the shopping center by warranty deed to, Associates. Among the various documents executed at the closing was the following "Certificate":
On May 13, 1988, Associates filed this action, alleging that the defendants had fraudulently induced it to purchase the shopping center by misrepresenting or suppressing certain material facts concerning the economic stability of the shopping center, both orally, through Young during his initial negotiations with Morrow and Reiben and later through Cooper at the closing, and in the "Certificate" that was executed by Village at the closing. Apparently concluding that the "Certificate" did not incorporate any portion of the October 18, 1987, contract by reference, and that the purported oral assignment from Morrow, on behalf of Real Estate Management, to Associates was void under the Statute of Frauds, the trial court ruled that the representations contained in the October 18, 1987, contract had not been made to Associates and, therefore, that that portion of the October 18, 1987, contract containing the representations could not be admitted into evidence. As a result of this ruling, the trial court dismissed Associates' breach of contract claim. The trial court also ruled that Associates could not introduce into evidence any misrepresentations concerning the economic stability of the shopping center that may have been made to its promoters prior to the formation of Associates on November 10, 1987. Associates was allowed to proceed only on its fraud claims that were based on allegedly false oral representations that had been made by Cooper at the closing, and on the alleged suppression at the closing of certain facts concerning the economic stability of the *875 shopping center. The jury returned a verdict in favor of the defendants. Associates contends that the trial court erred to reversal in excluding part of its evidence, which, it says, constituted the "guts" of its case, and in dismissing its breach of contract claim. It argues that the trial court should have granted its motion for a new trial.
Initially, we note that the briefs of the parties are somewhat lengthy and that a great portion of them is devoted to issues that we need not or cannot address. For instance, as our following discussion will show, it is not necessary to consider whether the purported oral assignment to Associates was valid. Nor, in light of our holding, is it necessary for us to consider whether the trial court overstepped its bounds in making certain comments in the jury's presence during the trial. Also, because that portion of the record containing the transcript of the trial court's charge to the jury was not properly certified to us, the issue concerning the correctness of the trial court's jury instructions cannot be reviewed. We assume, however, that if this action is retried, the attorneys will work closely with the trial court to ensure that the jury is properly instructed as to the applicable law.
It appears to us that the dispositive issue on this appeal is whether that portion of the October 18, 1987, contract containing allegedly false representations was admissible into evidence for the purpose of proving a fraud or a breach of contract on the part of the defendants.[2] Associates argues, and we agree, that the contract was admissible because the December 17, 1987, "Certificate," which was executed by Village at the closing specifically for the benefit of Associates, incorporated the October 18, 1987, contract by reference. See Norville v. Lowenstein, 233 Ala. 249, 171 So. 357 (1936); Ben Cheeseman Realty Co. v. Thompson, 216 Ala. 9, 112 So. 151 (1927); Casey v. Holmes, Bott & Earle, 10 Ala. 776 (1846). See, also, 17A Am.Jur.2d Contracts § 400 (1964) ("[w]here a written contract refers to another instrument and makes the terms and conditions of such other instrument a part of it, the two will be construed together as the agreement of the parties").[3]
Because the trial court erred in not admitting that portion of the October 18, 1987, contract sought to be admitted by Associates as bearing on its fraud and *876 breach of contract claims and erred in dismissing the breach of contract claim, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] First Stratford did not qualify to transact business in Alabama pursuant to Art. XII, § 232, Alabama Constitution of 1901, until December 18, 1987; however, that did not prevent Associates from becoming a legally formed Alabama limited partnership on November 10, 1987, the date the certificate of limited partnership was filed in the probate court in Jefferson County. See Ala.Code 1975, § 10-9A-20.
[2] The record indicates that the trial court, in response to the defendants' motion in limine, ruled that any oral representations that may have been made by the defendants during the negotiations preceding the execution of the October 18, 1987, contract, which were not included in that contract, were inadmissible. One of Associates' attorneys, in response to that ruling, stated that he had "no problem with that." See Vol. III, p. 80, of the court reporter's transcript. It does not appear to us that this ruling has been questioned on this appeal; consequently, we consider it to be the law of the case and, as such, to provide no basis for reversing the judgment. Furthermore, although Associates argues in its brief that the trial court erred in ruling that it could not introduce into evidence any oral misrepresentations concerning the economic stability of the shopping center that may have been made to its promoters prior to its formation on November 10, 1987, Associates did not allege that any oral misrepresentations were, in fact, made between the execution of the October 18, 1987, contract and Associates' formation on November 10, 1987. In any event, we note that under the rationale of Warwick Development Co. v. GV Corp., 469 So. 2d 1270 (Ala.1985), a limited partnership is not precluded from maintaining an action for fraud on the ground that the alleged fraud was committed against its promoters prior to its formation.
[3] The defendants make much of the fact that the" Certificate" refers to a contract "dated October 18, 1987, by and between Seller and Purchaser," and that Associates is described in the "Certificate" as the "Purchaser." They point out that the purchaser of the shopping center, Associates, was not a party to the October 18, 1987, contract and they argue that parol evidence was not admissible to "contradict" the "Certificate." However, the record indicates that there was only one contract executed on October 18, 1987 the one between Village and Morrow, on behalf of Real Estate Management. In any event, to the extent that the "Certificate" contains an ambiguity concerning the identity of the October 18, 1987, contract referred to therein, parol evidence is admissible, not to contradict the "Certificate," but to explain that the "Purchaser" under the October 18, 1987, contract, mistakenly referred to in the "Certificate" as Associates, was, in fact, Morrow, acting on behalf of Real Estate Management, one of the promoters of Associates. See Fouts v. Beall, 518 So. 2d 1236 (Ala.1987). | March 15, 1991 |
40506cd7-2d0d-4fb7-972a-968a77508853 | Pace v. Armstrong World Industries, Inc. | 578 So. 2d 281 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 281 (1991)
Henry Leon PACE, individually and as personal representative of the heirs and estate of Joseph Pace, deceased
v.
ARMSTRONG WORLD INDUSTRIES, INC., et al.
89-391.
Supreme Court of Alabama.
March 15, 1991.
Brent M. Rosenthal and Russell W. Budd of Baron & Budd, Dallas, Tex., and S.C. Middlebrooks of Gardner, Middlebrooks & Fleming, Mobile, for appellant.
W. Michael Atchison, E. Martin Bloom and Allan R. Wheeler of Starnes & Atchison, Birmingham, for appellee The Celotex Corp.
Larry L. Simms and Gary M. Kramer of Gibson, Dunn & Crutcher, Washington, D.C., and C. Paul Cavender of Crosby, *282 Saad & Beebe, Mobile, for appellees Fibreboard Corp., Owens-Illinois, Inc. and Pittsburgh Corning Corp.
Jerome A. Cooper, Thomas N. Crawford, Jr., Frederick T. Kuykendall III, Joe R. Whatley and Jay Smith of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for amici curiae AFL-CIO of Alabama, Alabama Democratic Conference, Central Alabama Bldg. and Const. Trades Council, Dist. 20, United Mine Workers of America, Dist. 36, United Steelworkers of America, Fifth Dist. Intern. Broth, of Electrical Workers, AFL-CIO, Greater Birmingham Ministries, Jefferson County Citizens Coalition, Intern. Union of Brick Layers and Allied Craftsmen No. 1 of Alabama, Laborers' Local 559, Laborers' Intern. Union of North America, Local Union No. 48, Sheet Metal Workers Intern. Ass'n, Local Union No. 91, United Ass'n of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the U.S. and Canada, Local Union No. 127, United Broth. of Carpenters and Joiners of America, AFL-CIO.
KENNEDY, Justice.
Pursuant to Rule 18, A.R.App.P., the United States District Court for the Southern District of Alabama certified a question to this Court. We consented to answer the question and ordered the parties to submit briefs containing their arguments. The parties having done so, and the matter having been orally argued to this Court, we will set out the pertinent facts and answer the question.
The certificate issued by the United States District Court contained the following statement of facts:
Since these facts present a case of first impression, we consented to answer the following certified question:
Alabama's wrongful death statute, § 6-5-410, Ala.Code 1975, states, in pertinent part:
This Court has stated, and the parties agree, that the fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Clark v. Houston County Commission, 507 So. 2d 902 (Ala. 1987); Advertiser Co. v. Hobbie, 474 So. 2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So. 2d 167 (1974). In construing the statute, this Court should gather the intent of the legislature from the language of the statute itself, if possible. Clark v. Houston County Commission, supra; Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So. 2d 850 (Ala.1978). We may also look to the reason and necessity for the statute and the purpose sought to be obtained by enacting the statute. Ex Parte Holladay, 466 So. 2d 956 (Ala.1985).
The purpose of Alabama's wrongful death statute is to protect human life and prevent homicides by the wrongful act, omission, or negligence of persons or corporations. Mattison v. Kirk, 497 So. 2d 120 (Ala.1986); Black Belt Wood Co. v. Sessions, 514 So. 2d 1249 (Ala.1986). The reason and necessity for the act was to provide a remedy to the family of a decedent whose death was caused by the wrongful act or omission of another. In Mattison v. Kirk, supra, this Court discussed this reasoning at length:
497 So. 2d at 124.
Thus, as we have said, § 6-5-410 created a right of action in the name of the personal representative of the decedent. In this case, we must interpret the scope of the proviso in § 6-5-410 that restricts that right. The proviso requires that, in order for a personal representative to be able to bring an action for wrongful death, the decedent must have been able to "[commence] *284 an action for such wrongful act, omission or negligence if it had not caused death."
In discerning and effectuating the intent of the legislature, we must bear in mind two applicable rules of statutory construction, which we set out in their entirety. The first rule concerns the construction of provisos generally:
Sutherland Stat. Const., § 47.08 (4th ed.) (footnotes omitted).
The second rule concerns a court's supplying words said to be omitted from a statute:
73 Am.Jur.2d Statutes § 203 (1974) (footnotes omitted). See State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 66 So. 2d 726 (1953).
The general effect of provisos is to restrict the operative effect of statutory language. Sutherland, supra. Absent the proviso, the language of § 6-5-410 provides that a personal representative may commence an action in a court of competent jurisdiction within the State of Alabama, and not elsewhere, against a person or corporation for the wrongful act or omission that caused the death of the decedent. The rule on interpretation of provisos provides that where the restrictive scope of the proviso is in doubt the proviso should be strictly construed, and that only those subjects expressly restricted should be freed from the operation of the statute. Sutherland, supra. The proviso requires that the decedent must have been able to commence a personal injury action had the wrongful act or omission not caused death.
The rule on omitted words states that generally courts may neither insert words in the statute nor apply the language *285 in the statute to an event for which no provision was made, and which, to all appearances, was not in the minds of the legislature at the time of the enactment of the law. 73 Am.Jur.2d, supra. Words may, however, be inserted into a statute to prevent it from being absurd, to obviate inconsistency in the statute, and to effectuate the intent of the legislature manifested therein; this rule applies where words have been omitted from the statute by clerical error, accident, or inadvertence. 73 Am. Jur.2d, supra. In any event, courts must proceed with great caution in supplying alleged omissions, and should do so only where the omission is "palpable," i.e., manifest or easily perceptible. 73 Am.Jur.2d, supra.
Having applied these rules to the statutory language in this case, we answer the certified question in the negative. We find the extent of the restrictive scope of the proviso to be in doubt. The facts of this casethe application of the substantive law of Alabama and the procedural law of Texasfrom all appearances, was not in the mind of the legislature at the time of the enactment of the statute. Section 6-5-410 does not address the eventuality that underlying personal injury actions would be commenced outside the State of Alabama. Indeed, the defendants' historical analysis of § 6-5-410 supports this statement. Because we find the restrictive scope of the proviso to be in doubt, we must strictly construe its restrictive scope. Sutherland, supra. We must also adhere to the rule on omitted words, which compels this Court to proceed with caution in supplying omitted words and to supply them only where the omission is palpable. 73 Am.Jur.2d, supra. Applying a strict construction to the language of the proviso, we will restrict from the operation of § 6-5-410 only those actions that are expressly restricted; and, there can be no doubt that the proviso does not expressly preclude a personal representative from commencing an action in Alabama where the decedent had timely commenced a personal injury action for the same wrongful act or omission that caused the decedent's death. We also find that the legislature's omission of words that would mandate that the decedent must have been able to commence a personal injury action in Alabama is not palpable, and we conclude, therefore, that this Court should not, by construction, insert into the statute words that would have that effect.
Our holding in this case is consistent with this Court's decision in Textron, Inc. v. Whitfield, 380 So. 2d 259 (Ala.1979). In that case, the plaintiff filed a personal injury action in Alabama; then, while the defendant's motion to dismiss in that case was pending, the plaintiff filed an action based on the same injury in a federal district court in Vermont. The Alabama circuit court dismissed the plaintiff's action. Subsequently, the plaintiff filed a motion asking the Alabama circuit court to alter the judgment to read "without prejudice," in order not to affect the maintenance of his action in Vermont. The circuit court granted the motion, and this Court affirmed its decision. In so doing, we stated:
380 So. 2d at 266.
In deciding as we do in this case, we also note the decision of the United States District Court for the Western District of Virginia in Riddle v. Shell Oil Co., (W.D.Va., 88-0505-R, September 21, 1990) (unpublished memorandum opinion). In that case, the plaintiff's decedent, a Virginia resident who had been exposed to hazardous chemicals, timely filed in a federal district court in Mississippi a personal injury action that *286 would have been time-barred in Virginia, the state whose substantive law applied. The action was transferred to the federal district court in Virginia. Thereafter, the plaintiff's decedent died and the plaintiff attempted to convert the personal injury action to a wrongful death action. The defendants argued that a valid foreign personal injury action may not be converted to a Virginia wrongful death action unless it was commenced within Virginia's two-year limitations period. That court held that because nothing in the Virginia Code requires the pending personal injury action to be viable in Virginia, the plaintiff could maintain a wrongful death action in Virginia.
The defendants argue that to answer the certified question in the negative is to render meaningless the limitation that the proviso places on wrongful death actions. The rule on omitted words states that in order to prevent a statute from becoming a nullity words may be supplied by the courts and inserted into the statute. 73 Am.Jur.2d, supra; State v. Calumet & Hecla Consol. Copper Co., supra. However, in this case, the defendants' argument is without merit. The proviso in § 6-5-410 allows defendants in wrongful death cases to assert defenses other than the limitations defense. All defenses available to defendants in actions that would have been brought against them had the injury not caused death are available to defendants in wrongful death actions. Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So. 2d 586 (1951). For example, defendants in wrongful death cases may argue that the decedent had previously recovered a judgment for the same injury; that the decedent had previously accepted full settlement and relieved the defendants of all further liability; and that the plaintiff was contributorily negligent. Woodward Iron Co., supra. Moreover, if the decedent could not have timely filed a personal injury action in Alabama or in another state had death not occurred, then the defendants could have argued that, under the proviso in § 6-5-410, the wrongful death action in Alabama was barred. See Northington v. Carey-Canada, Inc., 432 So. 2d 1231 (Ala.1983); Woodward Iron Co., supra. Therefore, answering the certified question in the negative does not render meaningless the proviso in § 6-5-410.
Based on the foregoing, we hold that the decedent's inability to commence a personal injury action in Alabama had death not occurred does not preclude his personal representative from converting his existing personal injury action filed in Texas into a wrongful death action under Ala. Code 1975, § 6-5-410.
QUESTION ANSWERED.
HORNSBY, C.J., and SHORES, ADAMS and INGRAM, JJ., concur.
HOUSTON and STEAGALL, JJ., concur in the result.
MADDOX and ALMON, JJ., dissent.
HOUSTON, Justice (concurring in the result).
I concur in the result. The proviso ("provided the testator or intestate could have commenced an action for such wrongful act, omission or neglect if it had not caused death") is consistent with my interpretation of Ala.Code 1975, § 6-5-410(a), in Tatum v. Schering Corp., 523 So. 2d 1042, 1047-63 (Ala.1988) (Houston, J., dissenting). In my opinion, by enacting § 6-5-410(a) the Legislature primarily intended to afford compensation to the next of kin of a person coming to his or her death through the wrongful act, omission, or negligence of another. If an action to recover for personal injuries has been filed and the plaintiff dies as a proximate result of those injuries, the plaintiff's personal representative can be substituted for the plaintiff in accordance with Rule 25(a), A.R.Civ.P., and can amend the complaint to seek damages for wrongful death. Punitive damages could be recovered when they could be recovered for injuries that did not result in death. | March 15, 1991 |
7c390c6b-f840-49ef-8ab4-c73b8e92b991 | Ex Parte Walters | 580 So. 2d 1352 | 1900308 | Alabama | Alabama Supreme Court | 580 So. 2d 1352 (1991)
Ex parte Marita G. WALTERS.
(Re Marita G. WALTERS v. John Edward WALTERS).
1900308.
Supreme Court of Alabama.
April 26, 1991.
W. Gregory Hughes, Mobile, for appellant.
Peter F. Burns and Randall W. Nichols of Burns & Mackey, Mobile, for appellee.
MADDOX, Justice.
The wife appealed from a trial court's ruling in a divorce case awarding custody of the couple's minor daughter to the husband. The husband appealed from an award to the wife of attorney fees in violation of the terms of an ante-nuptial agreement entered into between them. The Court of Civil Appeals upheld the custody award, but reversed the award of attorney fees. 580 So. 2d 1350 We affirm as to both issues.
This case arose from the following facts.
*1353 On December 4, 1989, a final judgement of divorce was entered between John Edward Walters ("Edward") and Marita G. Walters ("Rita"). Pursuant to this judgment, custody of the couple's minor daughter was awarded to Edward. In addition, the trial court awarded Rita $10,000 in attorney fees.
In divorce cases, the Alabama Court of Civil Appeals has held that, where evidence is presented ore tenus, a child custody determination is committed to the sound discretion of the trial court, and will not be reversed on appeal absent a finding that the determination is so poorly supported by the evidence as to be plainly and palpably wrong. Sayles v. Sayles, 495 So. 2d 1131 (Ala.Civ.App.1986); Lucero v. Lucero, 485 So. 2d 347 (Ala.Civ.App.1986); and Hester v. Hester, 460 So. 2d 1305 (Ala.Civ.App.1984). This standard recognizes the trial court's unique position to observe the parties and to hear their testimony. Smith v. Smith, 448 So. 2d 381 (Ala.Civ.App.1984). This Court finds that this is a correct statement of the law as it now exists, and that Rita has failed to show that the trial court's ruling was plainly and palpably wrong.
The trial court heard testimony from both the mother and the father concerning the child. In its opinion, the Court of Civil Appeals set out some of the evidence it considered in affirming the judgment of the trial court:
In addition, the trial court appointed a licensed clinical psychologist to evaluate the parties; that evaluation supported the custody determination. We conclude that the trial court's custody determination was adequately supported by the record.
We now address Edward's cross-appeal.
Rita asserts that Edward did not properly preserve the issue of attorney fees for review. In support of this contention, she cites us to Walker v. Dutton, 401 So. 2d 32 (Ala.1981). However, we find no merit to this argument. In Walker, we held:
401 So. 2d at 32. However, that is not the case here. The record shows that Edward adequately informed the trial court of both his objection to the award of attorney fees and his grounds for that objection.[1]
Approximately one month before Edward and Rita were married, they entered into an ante-nuptial agreement, which, in pertinent part, provides:
The trial court made no specific findings of fact, but the court either found that the ante-nuptial agreement was not properly entered into and, therefore, the court failed to give it effect when it awarded attorney fees to Rita, or the court found that the agreement was valid, but believed that it was within its discretion to award attorney fees outside of this agreement. The rule of appellate review is that a trial court's judgment that is based upon ore tenus evidence is presumed correct and will be reversed only if the judgment is found to *1354 be plainly and palpably wrong. Furthermore, where the trial court does not make specific findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous. Knox Kershaw, Inc. v. Kershaw, 552 So. 2d 126 (Ala.1989).
We first address the validity of the antenuptial agreement.
At the outset, we note that ante-nuptial agreements have been held valid in Alabama. Mixon v. Mixon, 550 So. 2d 999 (Ala.Civ.App.1989); Ruzic v. Ruzic, 549 So. 2d 72 (Ala.1989); Woolwine v. Woolwine, 549 So. 2d 512 (Ala.Civ.App.1989); and Barnhill v. Barnhill, 386 So. 2d 749 (Ala.Civ.App.1980), cert. denied, 386 So. 2d 752 (Ala.1980). In determining whether a specific ante-nuptial agreement is valid, the Court of Civil Appeals set out in Barnhill an "either/or" test; we find no error in this approach.
In Barnhill, the Court of Civil Appeals held that the party attempting to rely on an ante-nuptial agreement must show:
386 So. 2d at 751.
We find that there was evidence from which the trial court could have found that the Walters' ante-nuptial agreement was valid under either of these requirements. In Barnhill, the Court of Civil Appeals held that marriage, under appropriate circumstances, may be sufficient consideration for an ante-nuptial agreement. In this case, there was evidence that Edward had told Rita that he would not marry her if she did not sign the antenuptial agreement. Rita had approximately one month to consider the agreement and decide if she wished to sign it. In addition, Rita had lived with Edward for approximately six months before she signed the ante-nuptial agreement. This was sufficient time for her to obtain at least a general opinion as to the extent of Edward's estate. See Woolwine and Barnhill.[2]
There is nothing to indicate that the agreement was not fair, just, and equitable from Rita's viewpoint; or that the marriage was not sufficient consideration for the agreement. In addition, Rita had ample time to obtain independent advice if she did not understand the terms of the agreement. Whether she obtained this advice was her choice to make. Further, she had had an opportunity to form an opinion as to the extent of Edward's estate, and what rights she was relinquishing when she signed the agreement. We conclude that the trial court could have found that the ante-nuptial agreement was a valid and enforceable agreement.
We now address the issue of whether a trial court has the discretion to ignore a provision concerning attorney fees in a valid ante-nuptial agreement.
In McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602 (1925), this Court held that, when the wife entered into a valid pre-nuptial agreement in which she gave up her right to alimony, she effectively gave up her right to an award of attorney fees. However, in Ex parte Cox, 230 Ala. 158, 160 So. 230 (1935), this Court upheld a trial court's denial of alimony, as provided for in an ante-nuptial agreement, but where the trial court had also awarded the wife attorney fees. In that case, this Court found that the award was within the trial court's discretion.
Following that case, the Court of Civil Appeals has awarded attorney fees to a wife who has entered into a valid ante-nuptial agreement in which she relinquished her rights to alimony. See Woolwine v. Woolwine, 549 So. 2d 512 (Ala.Civ.App. 1989); and Klyce v. Klyce, 429 So. 2d 1081 (Ala.Civ.App.1983). However, in both of these cases, the ante-nuptial agreements *1355 did not specifically prohibit an award of attorney fees upon divorce. They prohibited alimony, which the trial court did not award.
In Haynes v. Haynes, 360 So. 2d 1016 (Ala.Civ.App.1978), the Court of Civil Appeals held:
We hold that where a provision of a valid ante-nuptial agreement specifically states that attorney fees will be waived in the event of a divorce, a trial court cannot award attorney fees unless it would be inequitable and unjust to enforce that provision. The evidence presented here does not support a finding that enforcement of the attorney fee provision would be inequitable and unjust. Although the rule of review is that when a trial court hears evidence ore tenus and has made no specific finding of fact, we must assume that it made those findings necessary to support its judgment, we fail to find sufficient evidence here that would support a finding necessary to support the trial court's award of attorney fees.
For the foregoing reasons, we affirm the judgment of the Court of Civil Appeals.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The record shows: "(Q.) Do you object to paying her attorney and ask the court not to make you do that? (A.) I most certainly do. (Q.) Please explain the basis for your objection." Edward then proceeded to give a lengthy discourse as to his reasons for objecting to the award of attorney fees.
[2] In Woolwine the court, in support of its judgment, noted that "[a]dditionally, the record indicates that the wife at least had a general knowledge of the extent of the husband's estate." See also Barnhill, 386 So. 2d at 752, where a similar finding is made. | April 26, 1991 |
00757a3a-2a63-4654-9457-2dc1239ff9a7 | Fuller v. Preferred Risk Life Ins. Co. | 577 So. 2d 878 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 878 (1991)
Pamela W. FULLER
v.
PREFERRED RISK LIFE INSURANCE COMPANY.
PREFERRED RISK LIFE INSURANCE COMPANY
v.
Pamela W. FULLER.
89-1405, 89-1453.
Supreme Court of Alabama.
March 15, 1991.
*880 J. Knox Argo of Argo, Enslen, Holloway & Sabel, Montgomery, for appellant/ cross-appellee.
Ollie L. Blan, Jr. of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, and William P. Sawyer of Weiss & Sawyer, Montgomery, for appellee/cross-appellant.
PER CURIAM.
Pamela W. Fuller sued for damages for breach of contract and fraud when Preferred Risk Life Insurance Company refused to pay certain claims made on her health and hospitalization policy, claiming the right of coordination of benefits (payment only of what other carriers do not pay). The jury found in her favor and in favor of the agent, but against Preferred Risk, and fixed punitive damages at $1 million. This award was reduced by the trial judge to $250,000 on the grounds that the plaintiff could not recover more than she had asked for in the complaint. The plaintiff appeals.
Preferred Risk cross appeals, claiming that because its agent was exonerated by the jury it can not be found guilty of fraud and that the punitive damages award can not stand.
Ms. Fuller bought an individual health and hospitalization insurance policy from Mike Holyfield, an agent of Preferred Risk Life Insurance Company, in April 1984. She states that Holyfield showed her a brochure prepared by Preferred Risk. She contends that when Holyfield sold her the policy, he represented to her that her policy was a major medical policy with a provision for a one-time deductible of $500 and that this policy would pay up to a limit of $25,000 regardless of whether she had other insurance. She contends that neither the agent nor the company ever told her that the policy contained a coordination of benefits provision.
*881 Ms. Fuller married in May 1984 and became eligible for benefits under her new husband's health insurance policy. After her marriage, she returned to see agent Holyfield to have her name changed on the insurance policy. Ms. Fuller told Holyfield that she now had other insurance through her husband's employer. Holyfield again told her that the policy would pay medical expenses also paid by her husband's employer's insurance and urged her to keep the Preferred Risk policy. Later, the plaintiff and her husband, Felix Fuller, went to see Holyfield. Felix Fuller testified that Holyfield told them that the policy had a provision for a $500 deductible and would pay in addition to benefits received from his employer's insurance.
In 1985, the plaintiff had surgery and incurred substantial medical expenses. She made a claim under both her Preferred Risk policy and the Transamerica/Provident Life Insurance Company policy insuring her husband. Neither would pay. She then employed an attorney, and her claim against Preferred Risk was ultimately settled. The plaintiff testified that no one representing her explained why Preferred Risk disputed her claim. The plaintiff contends that neither she nor her attorneys in this case were aware of any coordination of benefits provision in the Preferred Risk policy. She kept the policy and paid the premiums by a monthly draft on her bank account.
Subsequently, on April 4, 1986, the plaintiff was involved in an automobile accident and sustained substantial injuries. She submitted another claim to Preferred Risk. Her husband's policy with Transamerica/Provident Life paid $14,569, and her automobile policy with State Farm Mutual paid $10,000. These amounts combined exceeded her medical bills of $24,133.89. Preferred Risk refused to pay any benefits, claiming the right of coordination of benefits.
Ms. Fuller filed suit against Preferred Risk, alleging breach of contract and fraud. Her complaint sought "judgment against defendants for $250,000 in compensatory and punitive damages, plus costs."
The jury returned a verdict against Preferred Risk in the amount of $16,764.82 on the contract count, $1 in compensatory damages, and punitive damages of $1 million.
Preferred Risk filed a motion for judgment notwithstanding the verdict or for a new trial or remittitur. After a hearing on June 5, 1990, the trial judge issued an order that reduced the verdict to $250,000. His order stated in part:
We first consider the issues presented by Preferred Risk's cross appeal. Preferred Risk argues that the jury's verdicts for the agent and against the insurance company are inconsistent. Preferred Risk cites us to American Southern Ins. Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 53, 151 So. 2d 783, 785 (1963), wherein we said:
275 Ala. at 53, 151 So. 2d at 785.
Preferred Risk contends that its liability for fraud and punitive damages is based solely upon the application of the doctrine of respondeat superior. The record does not support this contention. The plaintiff claimed at trial that one source of Preferred Risk's liability could be the actions of its agent. However, the plaintiff also contended that Preferred Risk's liability *882 was direct and derived from its own actions without regard to the actions of its agent.
The plaintiff presented to the jury evidence that reflected that she bought a health insurance policy that she was told was a standard major medical policy with a $500 deductible. Mike Holyfield, the agent who sold her the policy, testified that he sold the policy using the page in the sales brochure that stated that the policy had a "one-time deductible of $500" and that illustrated this statement with a listing of medical expenses less than $500. The application form also says "$500 deductible."
The testimony reflects that the Preferred Risk agents who were to sell this policy, such as Mike Holyfield, were given very little training. They were not given a manual describing the policy. Their only training consisted of reading a book and filling out some answers. There was no follow-up with the agents to tell them the correct answers to the questions. Nothing on the test mentioned the coordination of benefits, or the floating deductible. Mike Holyfield admitted that it was not until this lawsuit was filed that he learned that the representation regarding the $500 deductible was false, and that he did not learn until the trial itself that the representation regarding the one-time deductible was false.
The Preferred Risk policy did not use the term "coordination of benefits," but did nevertheless provide for a coordination of benefits. The operative language was not in the section of the policy listing what "we will not pay for," as one would anticipate. Under the "Benefits Provision," the policy defines the deductible as "the amount of other coverage you have." "Other coverage" is then defined as "another insurance policy ... which pays for medical expenses incurred." The benefit period is not defined in the policy.
During the trial, the two Preferred Risk employees who testified, and who have the responsibility for interpreting the policy, had trouble locating provisions in the policy. Ms. Tiernan, Preferred Risk's representative, admitted in her testimony that the application form said that the policy had a $500 deductible provision, but that the policy itself had a floating deductible.
The plaintiff presented testimony from personnel of the Alabama Department of Insurance that the Department had for many years had a regulation prohibiting coordination of benefits in individual policies. Neal Moseley, who had worked for the Department of Insurance since 1981, testified that, to his knowledge, the Department had not permitted coordination of benefits provisions in individual contracts since 1981, which predated this policy. He further testified: "The regulations do not permit it; however, statutory law does permit it." Tharp Forrestor, former commissioner of insurance, testified that in April 1980, when the Preferred Life policy was approved, the Department of Insurance had a regulation prohibiting coordination of benefits in individual policies. Preferred Risk did not object to or challenge the testimony as to this regulation.[1]
Ms. Fuller's attorney informed Preferred Risk by letter, on August 12, 1987, that the Insurance Department had informed him that it was illegal to coordinate benefits in an individual policy in Alabama. During the trial of the case, Preferred Risk admitted that it had contacted the Department and had been told about this regulation. However, Preferred Risk did not pay any benefits pursuant to the policy.
Preferred Risk claimed at the trial that it had disclosed the coordination of benefits provision to Ms. Fuller through her attorneys at the time she filed a claim for her 1985 injuries. Her attorneys at that time testified, but their testimony did not support this contention.
Thus, the finding that Preferred Risk had committed a fraud and the assessment of punitive damages could have been based upon the testimony concerning Preferred *883 Risk's deceptive brochures, materials, and policy and upon its failure to inform the plaintiff of the coordination of benefits provision and the true coverage of her policy. This Court will assume that the jury's verdict in favor of the agent and against Preferred Risk was based on a finding that the fraud was due to the actions of Preferred Risk alone.
The verdict forms submitted to the jury, with the agreement of Preferred Risk, are proof that all involved in the trial understood the basis of liability. On the fraud issue, the trial court submitted one verdict form for a verdict in favor of the plaintiff and against both defendants, and one form against Preferred Risk only. The trial judge charged the jury in regard to the two possible forms. The verdict as to the fraud claim against Preferred Risk is not inconsistent.
Preferred Risk also seeks to have this Court review the question of the plaintiff's justifiable reliance in this fraud case. The trial court properly submitted this factual issue to the jury, which rejected Preferred Risk's argument that Ms. Fuller had not "justifiably relied" on the misrepresentations. This issue was also raised by Preferred Risk's motion for a new trial, and it was rejected by the trial court. The jury verdict as to this issue was supported by the evidence. Liberty Nat'l Life Ins. Co. v. Sherrill, 551 So. 2d 272 (Ala.1989).
Preferred Risk contends that the recovery in this case is limited to $250,000, citing us to Alabama Code 1975, § 6-11-20 (the punitive damages cap). However, § 6-11-20 provides specifically that the cap on punitive damages does not apply to a plaintiff whose cause of action accrued prior to the date the act became effective June 11, 1987. Ms. Fuller's cause of action accrued prior to that date; therefore, her recovery is not limited by this cap.
Preferred Risk cites this Court to Ex parte Huntsville Hospital, 540 So. 2d 1344 (Ala.1988), claiming that that case holds that the tort reform acts do apply to causes of action that accrued before the effective date of the acts. This is incorrect. Huntsville Hospital dealt only with the issue of venue and the question of which of the two tort reform statutes on venue the forum non conveniens statute or the medical malpractice statute governed in determining the venue rule to be applied to that medical malpractice case. The case refutes Preferred Risk's contention that the tort reform acts all have the same starting dates.
Preferred Risk also complains that the imposition of punitive damages violates due process. Because Preferred Risk failed to offer a proper objection, or to obtain a ruling from which an appeal could be taken, it can not complain now. Rule 51, A.R.Civ.P., Olympia Spa v. Johnson, 547 So. 2d 80, 86 (Ala.1989).
Finally, we consider the question raised by the plaintiff on her appeal, i.e., whether the trial court erred in reducing the award of punitive damages to the amount claimed in the complaint.
The trial judge's order contemplates that an amendment to the ad damnum clause was required under Rule 15, A.R. Civ.P. The plaintiff did so amend, after the verdict, without objection by Preferred Risk, and without any adverse ruling by the trial court in regard to the amendment. However, it was not necessary that she amend. Rule 15(b) provides that amendments "may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues."
The adoption of the Alabama Rules of Civil Procedure in July 1973 ensured that the relief available to a plaintiff was not limited by the pleadings filed by his attorney. Rule 54(c), A.R.Civ.P., Awad v. Awad, 54 Ala.App. 154, 306 So. 2d 21 (1975). This Court has held that in a litigated case the amount claimed does not necessarily limit the amount of recoverable damages. Suter v. Arrowhead Investment Co., Ltd., 387 So. 2d 815 (Ala.1980). See also Madison Highlands Development Co. v. Dean & Son Plumbing Co., 415 So. 2d 1129 (Ala. Civ.App.1982).
Rule 54(c), A.R.Civ.P., provides that every final judgment shall grant the relief to *884 which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. Federal Rule 54(c), on which our rule is modeled, has been interpreted to allow judgments in excess of the amount requested in the pleadings. Couto v. United Fruit Co., 203 F.2d 456 (2d Cir.1953); Neff v. Western Cooperative Hatcheries, 241 F.2d 357 (10th Cir.1957); Brown v. Burr-Brown Research Corp., 378 F.2d 822 (5th Cir.1967); Stewart v. Banks, 397 F.2d 798 (5th Cir.1968), cert. dismissed, Sims v. Banks, 393 U.S. 801, 89 S. Ct. 41, 21 L. Ed. 2d 85 (1968); Steinmetz v. Bradbury Co., 618 F.2d 21 (8th Cir.1980).
The trial judge erred in reducing the jury verdict to the amount claimed in the complaint. His order makes it clear that the reason he did so was because of his misunderstanding of the law.
Punitive damages awards have come under increasingly intense debate in legal, academic, and political circles in recent times. The debate is not over. Some contend that the facts do not support the charge that such awards are becoming routine. See Morris, "Inquiry Needed on Punitive Damages", Nat.L.J., June 9, 1986, at 15, col. 1. A study conducted by the American Bar Foundation concluded that punitive damages awards "are not routine" and are "not typically in an amount that boggles the mind." Daniels, "Punitive Damages: The Real Story", 72 A.B.A.J. 60, August 1986. But, even so, awards in increasingly large amounts, albeit in relatively few cases, are a cause for concern and invite reconsideration of the role of the trial judge in reviewing them. Prentice, "Reforming Punitive Damages: The Judicial Bargaining Concept," 7 Rev.Lit. 113 (1988).
Once a jury is demanded by either party, the jury has the constitutional authority to determine what amount, if any, of punitive damages is necessary to punish a defendant for wrongful conduct and to deter future conduct of a like nature. The common law assigned this function to the jury. Barry v. Edmunds, 116 U.S. 550, 6 S. Ct. 501, 29 L. Ed. 729 (1886). That authority is not diminished by post-verdict review of the verdict by the trial court. Trial courts were assigned that function at common law.
When a party files a post-verdict motion challenging the validity of a jury verdict, the trial court must determine whether the movant is entitled to a new trial or to a judgment notwithstanding the jury verdict, depending upon the facts of the case and the grounds of the post-verdict motion. If the trial judge finds that the motion for new trial or JNOV is well taken, then he must either grant the movant a new trial or render a judgment notwithstanding the verdict. He may not, if the movant is entitled to a new trial or JNOV, reduce the verdict as a substitute for a new trial or JNOV. The movant is entitled to a new trial if the verdict was not rendered by a properly functioning jury whose verdict is based on the evidence and the law as charged by the court.
If, however, the trial court finds that the movant is not entitled to a new trial or JNOV, and if the movant alleges that the verdict exceeds an amount necessary to accomplish the purpose for which punitive damages are allowed in the first instance and excessively punishes him beyond the limits allowed by due process, he is entitled to a hearing on this ground.
A jury, in reaching an amount to be returned in a punitive damages case, must necessarily focus on the defendant, because the plaintiff's loss is not to be compensated by a punitive damages award. The jury must determine the amount it considers necessary to vindicate the public interest by eliminating the reprehensible conduct of the defendant and to punish the defendant appropriately. See Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989) (factor # 1, at 223).
A trial judge, in reviewing a punitive damages award by a jury, must likewise consider the effect of the verdict on the defendant's financial condition and determine whether the amount of the verdict is so great that it amounts to a deprivation of the defendant's property without due process of law. In addition to this *885 historical role, which the judiciary has played since ancient times and which is embodied in our constitution by its adoption of the common law, § 13 of Ala. Constitution 1901 empowers the trial court to conduct, and compels judicial review of a punitive damages award once a defendant challenges the verdict on the ground that it deprives him of his property in contravention of the constitution. As we have stated so many times, the punitive verdict should be enough to punish the defendant and vindicate the public's right to be free of the kind of conduct of which the jury has found the defendant guilty, but the amount should not be so much as would financially destroy him. A defendant has the right to a judicial determination and the courts have the responsibility to determine whether a jury verdict awarding punitive damages deprives the defendant of his property in violation of the due process protections that § 13 of the constitution guarantees him. In Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), we attempted to set forth some of the factors that the trial courts could consider in passing on the claim that a jury verdict was excessive. We stated that a verdict rendered by a jury that was properly constituted and that had functioned properly was endowed with a constitutional protection that prohibited a judge from interfering with it. We recognized, however, that once the defendant showed that the amount of the verdict was excessive and therefore deprived him of his property in contravention of constitutional protections, then the courts were free, indeed were compelled, to reduce it. Section 13 protects the rights of all, and while a trial by jury is guaranteed by § 11 of our constitution, § 13 ensures that no person may be deprived of his property without due process of law. For this reason, a defendant who charges that a jury verdict exceeds the amount that a jury may properly assess to vindicate the public and punish the defendant to deter him and others from similar conduct, is entitled to a hearing before an impartial court for a determination of that claim. Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989). The judge, like the jury, must determine whether the award is excessive by focusing on the defendant, not on the plaintiff. This is true for two reasons: first, the plaintiff is not entitled to an award of punitive damages; second, the defendant may not be punished to such an extent that he is deprived of his rights. The focus of the post-verdict hearing required by Hammond, supra, and Green Oil Co., supra, is to determine whether the verdict is so large that it goes beyond an amount necessary to vindicate the public and to punish the defendant. If it does, it violates the defendant's right guaranteed and protected by § 13. If the trial court determines that it does, the defendant is entitled to have the verdict reduced. If the trial court determines that the verdict is not so large as to violate the defendant's rights under the constitution, it must enter judgment on the verdict as returned by the jury.
In this case, the trial judge failed to make the findings required by Hammond v. City of Gadsden, supra, and Green Oil Co. v. Hornsby, supra. Does this require a remand as argued by Preferred Risk? We hold that it does not in the posture of this case. When the jury returned its verdict, Preferred Risk filed its motion for a new trial, a judgment notwithstanding the verdict, or a remittitur. Preferred Risk argued only that, because the verdict exceeded the amount claimed in the complaint, it was due to be reduced. It did not offer any evidence in support of its contention that the verdict was excessive, and instead argued that it was entitled to a reduction of the verdict as a matter of law.
Even after the plaintiff offered evidence in support of her contention that the verdict was not excessive,[2] Preferred Risk declined to produce any evidence to the contrary. Preferred Risk responded to the plaintiff's post-verdict interrogatories by stating that the jury verdict "would not significantly impair their ability to operate." Thus, it makes no claim that the *886 verdict deprives it of its property without due process of law under § 13.
This Court observed in Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.1988), as follows:
547 So. 2d at 838-39. Preferred Risk had this opportunity and elected to present no evidence at all.
In Hammond v. City of Gadsden, supra, this Court held:
493 So. 2d at 1379. The trial judge erroneously reduced the verdict because of his misunderstanding of the applicable law. The record is devoid of any evidence that would justify interference with the verdict under the criteria established in Hammond, Green Oil Co., and their progeny.
Accordingly, the judgment of the trial court is reversed insofar as it reduced the amount of the verdict; otherwise it is affirmed; and the cause is remanded with instructions to the trial court to enter a judgment on the jury's verdict.
89-1405 REVERSED AND REMANDED WITH INSTRUCTIONS.
89-1453 AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs in the result.
HOUSTON and STEAGALL, JJ., concur in the result of the per curiam opinion and join Justice SHORES's special concurrence.
SHORES, HOUSTON and STEAGALL, JJ. concur specially.
SHORES, Justice (concurring specially).
I believe that much of the criticism surrounding the issue of punitive damages is due to the perception on the part of the public that punitive damages awards sometimes amount to an undeserved windfall to the prevailing plaintiff. I believe it is true that sometimes an award does constitute an undeserved windfall to the plaintiff, but this fact has no bearing on the question of whether the award exceeds an amount appropriate to punish the defendant for the wrong committed and to deter others from similar conduct in the future. These are the factors the trial court is required to consider on the defendant's claim that the verdict is large. If the court concludes that the amount is not so excessive as to deprive the defendant of his property in contravention of § 13, Ala. Constitution 1901, it nevertheless may also determine that it would be in the best interest of justice to require the plaintiff to accept less than all of the amount and to require the defendant to devote a part of the amount to such purposes as the court may determine would best serve the goals for which punitive damages are allowed in the first place: vindication of the public and deterrence to the defendant and to others who might commit similar wrongs in the future. In such cases, the court has the discretion to order the defendant to devote a portion or all of the amount to efforts to eliminate the conditions that caused the plaintiff's injury.[3]
*887 In my opinion, the court may also order the defendant to pay part of the award either to the state general fund or to some special fund that serves a public purpose or advances the cause of justice. In Florida, for example, by statute 60 percent of each punitive damages award goes to either the Public Medical Assistance Trust Fund or to the General Revenue Fund, depending upon the type of case.[4] A Colorado statute requires that one-third of each punitive damages award be paid into the state general fund.[5] Illinois statutory law gives the trial judge discretion to allocate the punitive damages award among the plaintiff, the plaintiff's attorney, and the Department of Rehabilitation.[6] An Iowa statute requires that 75 percent of each punitive damages award be paid to the state unless the defendant acted with specific intent to injure the plaintiff.[7] A Georgia statute required that 75 percent of all punitive damages awarded in products liability cases be paid to the state;[8] however, this Georgia statute has been ruled unconstitutional.[9]
The states just referred to allocate punitive damages pursuant to statute. The courts, however, have inherent authority to allocate punitive damages, with jurisdiction over both plaintiff and defendant, by reducing the amount that the plaintiff is to receive to less than the full amount of the verdict, and directing the defendant to pay a part of a punitive damages award to the state general fund or any special fund devoted to the furtherance of justice on behalf of all the people. To do so in proper cases could serve the purpose for which punitive damages were authorized to a greater degree than would allowing the plaintiff to receive the entire amount. Because the plaintiff's action resulted in the award, the beneficiary of which is the general public, it follows that the plaintiff's attorney fees should be based upon the total verdict, and not the reduced amount paid to the plaintiff, since it is due to the attorney's efforts that the public interest has been served.
If the award is not reduced, of course, the plaintiff's attorney is entitled to an attorney fee based upon the original verdict as returned by the jury. Only if the verdict is reduced by an amount necessary to preserve the defendant's due process rights is the plaintiff's attorney fee to be determined based upon the reduced amount, that is, the amount necessary to serve the goals sought to be served by authorizing punitive verdicts, without offending the defendant's constitutional rights.
HOUSTON and STEAGALL, JJ., concur.
[1] Preferred Risk moves this Court for leave to file a motion under Rule 60(b)(3) and (6), A.R. Civ.P., on the grounds that the trial court and jury were misled by the testimony of the two employees. We deny this motion, because Preferred Risk made no objection to this testimony at the time of the trial.
[2] The plaintiff offered Preferred Risk's annual report, which showed a total net income for the last five years of $26 million and an unassigned surplus of $39.5 million.
[3] See O'Gilvie v. International Playtex, Inc., 609 F. Supp. 817 (D.Kan.1985), and Miller v. Cudahy Co., 592 F. Supp. 976 (D.Kan.1984).
[4] Fla.Stat.Ann. § 768.73(2) (West Supp.1987).
[5] Colo.Rev.Stat. § 13-21-102(4) (1987).
[6] Ill.Rev.Stat. Ch. 110, para. 2-1207 (Supp.1987).
[7] Iowa Code Ann. § 668.1(2)(b) (West Supp. 1987).
[8] Ga.Code Ann. § 51-12-5.1(e)(2) (Supp.1987).
[9] Our research reveals that the constitutionality of these statutes has been tested in only one jurisdiction, Georgia. McBride v. General Motors Corp., 737 F. Supp. 1563 (M.D. Ga.1990), held Georgia's statute to be unconstitutional, as a violation of Georgia's due process and equal protection provisions, as well as the excessive fines provision of the Georgia and Federal Constitutions. | March 15, 1991 |
5f8047bd-7a1b-4848-b9e8-957e08fd202a | Stephens v. City of Montgomery | 575 So. 2d 1095 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1095 (1991)
Leal STEPHENS and Robert Stephens
v.
CITY OF MONTGOMERY.
89-1466.
Supreme Court of Alabama.
March 1, 1991.
*1096 James F. Hampton, Montgomery, and Jasper N. Buckner, Jr., Prattville, for appellants.
J. Bernard Brannan, Jr. of Brannan & Guy, Montgomery, for appellee.
KENNEDY, Justice.
Leal Stephens filed an action against the City of Montgomery (the "City"), alleging negligent or wanton misconduct in the maintenance of a sidewalk, on which Leal allegedly fell and injured her wrist and hand; Leal's husband Robert joined her action, seeking damages for loss of companionship and wages lost while he cared for Leal's injuries. The City moved for summary judgment, which the trial court entered, because, it said, "the plaintiffs have not adduced substantial evidence of the defect that caused Leal Stephens to trip and fall." The Stephenses appeal.
In Benson v. City of Tuscumbia, 553 So. 2d 109 (Ala.1989), we addressed a city's responsibility with respect to the maintenance of its streets and sidewalks:
553 So. 2d at 110, quoting City of Tallassee v. Harris, 431 So. 2d 1177, 1181 (Ala.1983) (citations omitted). The City does not dispute its duty to Leal. Instead, it seems to argue that Leal did not produce substantial evidence that a defect in the sidewalk proximately caused her to fall.
The record indicates that Leal tripped and fell while walking on Molton Street in Montgomery. She was taking a break from her job, and she had changed into tennis shoes to walk. Leal was not looking down at the sidewalk at the instant she tripped and fell. She does not know exactly what she tripped over, although she states, "I tripped on the sidewalk." The City contends that by this statement she was describing where she fell rather than stating what had caused her fall.
Gerald Jackson, an employee at the business where Leal works, testified in deposition that he happened to be near Leal when the accident occurred. He said he did not see her fall, but did see her immediately after she had fallen and while she was lying on the sidewalk. According to his testimony, he determined where he thought she had fallen, based on where she was lying after she fell. Jackson further testified that the sidewalk at the point where he calculates that she fell was "uneven," that is, according to his testimony, one portion *1097 of the sidewalk at that point was approximately one inch higher than another portion. Furthermore, Jackson testified, "There was nothing else around to cause [the fall]."
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).
We find that the City made a prima facie showing that there was no genuine issue of material fact, thereby shifting the burden to Leal and Robert to produce evidence creating genuine issues of material fact. We further find, considering, as we must, the evidence in the light most favorable to Leal and Robert, that they did produce evidence that a defect in the sidewalk caused Leal to fall. That evidence creates a genuine issue of material fact, suitable for jury determination, and precludes summary judgment. The trial court erred when it held that Leal and Robert did not produce sufficient evidence of the defect that caused Leal to fall.
The judgment is due to be, and it is hereby, reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ. concur. | March 1, 1991 |
17463139-a058-412e-bf0c-928bd854736d | Peoples v. Town of Ragland | 583 So. 2d 221 | N/A | Alabama | Alabama Supreme Court | 583 So. 2d 221 (1991)
Amy Johnson PEOPLES and Robert E. Johnson
v.
TOWN OF RAGLAND.
89-1787.
Supreme Court of Alabama.
April 5, 1991.
Rehearing Denied June 21, 1991.
Scott A. Powell and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
James R. Shaw and Leah F. Scalise of Huie, Fernambucq & Stewart, Birmingham, for appellee.
HORNSBY, Chief Justice.
This is a personal injury action brought by Amy Johnson Peoples[1] against the Town of Ragland alleging negligent maintenance of an intersection, specifically a failure to maintain safe and suitable traffic control devices at that intersection. Peoples appeals the trial court's summary judgment for the Town. We affirm.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for ruling on a motion for summary judgment. The rule requires that, in order to enter a summary judgment, the trial court must determine: (1) that there is no genuine issue of material *222 fact; and (2) that the moving party is entitled to a judgment as a matter of law. We further note that all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990). Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the nonmovant has the burden of going forward with evidence demonstrating the existence of a genuine issue of material fact. Grider v. Grider, 555 So. 2d 104 (Ala.1989).
The burdens placed on the moving party by this rule have often been discussed by this Court:
Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989) (quoting Schoen v. Gulledge, 481 So. 2d 1094 (Ala.1985)).
Because this action was filed after June 11, 1987, the nonmovant must meet his burden by showing "substantial evidence" to indicate a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. Southtrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence standard, the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
On October 10, 1987, Peoples, who was 16 years old, was driving her automobile on 5th Street in the Town of Ragland. This street intersects with St. Clair County Highway 26. She stopped at the intersection, intending to turn left onto Highway 26. A passenger in Peoples's vehicle indicated that Highway 26 was clear to the right of the vehicle. Peoples stated, however, that she could not see to her left because of a retaining wall located on that side. This retaining wall was on Wayne Kendricks's property, which bordered 5th Street and Highway 26.
Peoples indicated in her deposition that, because she could not see around the retaining wall, she drove her automobile forward a short distance, and that she continued to do this about three times, until she could see around the retaining wall. She further stated that when she finally could see around the wall, her automobile was about half-way onto Highway 26. She testified that as she pulled out onto Highway 26, she saw the headlights of an automobile approaching to her left on Highway 26. In response, she accelerated her automobile further into the intersection. The other automobile collided with Peoples's vehicle at the centerline of Highway 26, approximately 20 to 23 feet from the point at which Peoples indicated that she had last stopped her vehicle on 5th Street. Peoples testified that she had no memory of the incident after the moment at which she saw the headlights of the oncoming vehicle. She sustained a broken neck and other injuries, including cuts and bruises.
The Town moved for a summary judgment and presented a memorandum in support of its motion. The Town also submitted the affidavit of Sgt. W.J. Pardue, the investigating officer; the affidavit of Bart Arnold, the mayor of the Town of Ragland at the time of the incident; a portion of Peoples's deposition; and the deposition of Mayor Judy Dickinson, the Town's present mayor.
*223 In his affidavit, Sgt. Pardue stated that he was called to investigate the accident on October 10, 1987. Based on his investigation, he concluded that: (1) the point of impact occurred approximately at the centerline of Highway 26; (2) Peoples's vehicle was a Chevrolet Chevette automobile; and (3) the point of impact was over the left rear tire.
Arnold indicated that he was the mayor of Ragland at the time of the accident, and that he was aware that Peoples and her father had sued the Town. He further stated that he was familiar with the intersection where the accident occurred and that he knew that a retaining wall had been erected around Kendricks's property. Arnold stated that he remembered discussing with Kendricks the erection of the retaining wall when the County had widened and/or rerouted and repaved Highway 26. He also stated that a brick retaining wall had been on Kendricks's property before the County widened Highway 26, and that similar retaining walls were on the property of other persons living along Highway 26.
In her deposition, Mayor Judy Dickinson stated that the Alabama State Highway Department was responsible for making decisions about the installation of a traffic light at this particular intersection in the Town of Ragland. Dickinson also stated that the State Highway Department would be responsible for installing a caution light. Dickinson testified that while the installation of a traffic light was within the province and discretion of the Alabama State Highway Department, the installation of stop signs was within the province of the city council. She indicated that if the city council decided that a traffic light was necessary, the Town would contact the State Highway Department, which would then come and investigate. Dickinson indicated that the State Highway Department would be responsible for the maintenance of such a traffic light.
Dickinson further testified that she was unfamiliar with the use of traffic mirrors as a means of controlling traffic. Also, she stated that she was unsure of which governmental body would be responsible for installing such a device. The record before us does not indicate that Dickinson was questioned about any other form of traffic control device.
During Dickinson's deposition, she was shown the minutes for the July 15, 1985, town council meeting (this meeting had occurred before she took office). At that meeting, a citizen of the Town had complained to the council that the block retaining wall at the corner of 5th Street and Highway 26 was obstructing the view. Dickinson did not know if any action had been taken on that complaint.
Dickinson stated that it was her opinion that the intersection in question was not in need of any additional traffic control devices other than the stop sign that was located at 5th Street. She stated that there was enough "depth" at the intersection for a vehicle to pull out safely so as to enable a driver to see traffic approaching on Highway 26.
In his deposition, Edmond T. Miller, Peoples's expert witness, testified that Highway 26 is a two-lane road. He further testified that the width of the road, measured from approximately 360 feet from the intersection, is approximately 60 feet, with each lane being almost 30 feet in width. He indicated that the retaining wall impinged about three feet onto that portion of Highway 26 where the wall is located, and that, because there was about two feet of grass between the wall and the pavement, the lane approaching 5th Street measured about 25-27 feet in width.
In an affidavit, Miller concluded:
In Smoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d 585 (Ala.1987), this Court affirmed the trial court's summary judgment for the defendants. In that case, the plaintiff alleged negligent design, construction, and maintenance of a driveway at the Sheraton Hotel in Birmingham that intersected with Highway 280. The plaintiff presented the deposition of an expert in traffic engineering and traffic design, who testified that the driveway had been defectively designed and marked. He stated that there were no traffic control devices present at the site. In support of their motions for summary judgment, the defendants showed that there was no causal relationship between the alleged negligent design, construction, and maintenance of the driveway and the plaintiff's injuries. Also, the plaintiff was unable to recall anything about the accident. Consequently, the plaintiff was unable to state whether the condition of the driveway contributed to the accident.
In affirming the summary judgment in Smoyer, this Court stated:
Id. at 587-88. This Court also stated: "Evidence that affords nothing more than mere speculation, conjecture, or guess is completely insufficient to warrant the submission of a case to the jury." Id. at 588 (citing Sprayberry v. First National Bank, 465 So. 2d 1111 (Ala.1984); and Headrick v. United Insurance Co. of America, 279 Ala. 82, 181 So. 2d 896 (1966)).
In Morrison v. City of Ozark, 575 So. 2d 1110 (Ala.1991), this Court addressed the question whether the City of Ozark had owed the plaintiffs a duty to erect traffic and safety devices on a street where an accident occurred. In that case the plaintiffs' son was struck by an automobile while he was crossing the street. The plaintiffs presented an affidavit of an expert witness, who stated that the City of Ozark had breached certain duties owed to the plaintiffs by failing to provide playground and pedestrian signs, crosswalks, and parking on the same side of the street as the field. The trial court entered a summary judgment for the City of Ozark, and the plaintiff appealed.
The plaintiffs in Morrison argued that the City of Ozark was liable under Alabama Code 1975, § 11-47-190, the Municipal Liability Statute, and under ordinary negligence theories. This Court held that the City of Ozark was not liable under § 11-47-190 because the installation of safety devices is not within the meaning of that statute. Under the facts presented, this Court also held that the City of Ozark was not negligent, because the alleged negligence consisted of the failure to install signs and markings and the City of Ozark had no duty to erect playground and pedestrian signs, to provide a crosswalk, or to provide parking on the same side of the street. Consequently, this Court affirmed the summary judgment for the City of Ozark.
The trial court in the present case correctly concluded that there was no genuine issue of material fact and that the Town was entitled to a judgment as a matter of law. In this case, the testimony of the expert witness Edmond T. Miller tended to show that there should have been traffic channelization controls on Highway 26 as it approached the intersection at 5th Street. However, the evidence in this case does not show that the Town's purported negligence was the proximate cause of Peoples's injuries. The evidence tended to show that when Peoples saw the approaching automobile, she accelerated further into the intersection. There was no evidence presented to show that any traffic control device would have prevented her from accelerating forward into the intersection, or that the lack of any traffic control device contributed to her injuries. Also, because of her memory loss, Peoples was unable to testify where in the oncoming lane of Highway 26 the approaching vehicle was located.
Because we hold that any negligence by the Town did not proximately cause the accident as a matter of law, we do not address the contributory negligence issue.
AFFIRMED.
ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] At the time of the accident and the filing of the complaint. Amy Johnson Peoples was an unmarried minor known as Amy Elizabeth Johnson. This suit was originally brought by her father, Robert E. Johnson, as her next friend for her personal injuries. Robert E. Johnson also brought suit in his individual capacity to recover medical expenses he paid on account of his daughter. Amy Elizabeth Peoples reached majority during this litigation and is prosecuting this appeal in her own name. Robert E. Johnson also appeals in this case. | April 5, 1991 |
119cb774-2aa7-491d-9630-caaf77545091 | Miller v. Norwood Clinic, Inc., PC | 577 So. 2d 860 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 860 (1991)
Lucille Whaley MILLER, as administratrix of the Estate of Winona Rose Miller Williams
v.
NORWOOD CLINIC, INC., PC, et al.
89-1634.
Supreme Court of Alabama.
March 8, 1991.
*861 James D. Forstman, Birmingham, for appellant.
Robert E. Cooper and Deborah Alley Smith of Rives & Peterson, Birmingham, for appellees.
HOUSTON, Justice.
The plaintiff, Lucille Whaley Miller, administratrix of the estate of Winona Rose Miller Williams, deceased, appeals from a summary judgment in favor of defendants Norwood Clinic, Inc., PC ("Norwood Clinic"), Dr. Silvio Papapietro, Dr. Constantine Athanasuleas, and Dr. David Geer in this medical malpractice/wrongful death action. We affirm in part, reverse in part, and remand.
On January 28, 1986, Ms. Williams, complaining of chest pains, was admitted to Carraway Methodist Medical Center ("Carraway") and was diagnosed as suffering from aortic and mitral valve stenosis. She was scheduled for elective surgery to be performed on February 19, 1986, and was released on February 3, 1986. On February 17, 1986, Ms. Williams was readmitted to Carraway, and on February 19, surgery was performed to replace the aortic and mitral valves. Ms. Williams was discharged on February 26, 1986. That evening she went to Woodland Community Hospital, complaining again of chest pains. She was transferred to Carraway, where she was examined and treated and was released several hours later. Three days later, on March 1, 1986, at 10:04 p.m., Ms. Williams, complaining of nausea and vomiting, was examined at the Cullman Medical Center emergency room. She was diagnosed as suffering from possible pericardial tamponade and was treated and transferred to Carraway via helicopter. She arrived at Carraway at 12:07 on the morning of March 2, 1986, and was evaluated and prepared for surgery. While awaiting surgery in the Cardiac Surgery Intensive Care Unit, however, Ms. Williams suffered a heart attack, at approximately 3:00 to 3:15 a.m. Emergency surgery was performed in the intensive care unit, and, when her vital signs indicated that she was sufficiently stabilized, she was taken to the operating room for closure at approximately 3:50 a.m. Ms. Williams continued under the care of heart specialists until her death at 11:25 a.m. on March 6, 1986.
On April 29, 1987, the plaintiff filed a multi-count complaint in the Circuit Court of Jefferson County, alleging negligence and breach of contract leading to the March 6, 1986, death of Ms. Williams. The complaint stated a cause of action against three named defendants and various fictitiously named defendants "AA" and "A" through "R." On January 14, 1988, the *862 plaintiff amended the complaint to substitute named parties for "AA" and "A." On September 13, 1989, the plaintiff again sought to amend the complaint, to substitute Norwood Clinic for fictitiously named defendant "C" and to substitute three employees of Norwood Clinic Dr. Papapietro, Dr. Athanasuleas, and Dr. Geer for fictitiously named defendants "D." The original complaint characterized fictitiously named defendants "C" and "D" as follows:
(Emphasis added.) The trial court entered a summary judgment in favor of Norwood Clinic, Dr. Papapietro, Dr. Athanasuleas, and Dr. Geer, stating as follows:
It is without dispute that the September 13, 1989, amendment to the complaint was made after the two-year statutory period of limitations had expired, see Ala.Code 1975, § 6-5-482; therefore, in order for the plaintiff's action against these defendants not to be time barred, the substitutions must relate back under Rule 9(h), A.R. Civ.P., pursuant to Rule 15(c), A.R.Civ.P.
The plaintiff argues that she stated a cause of action against the fictitiously named defendants within the body of the complaint and that she was ignorant of the identity of those fictitiously named defendants, in the sense of not having, at the time of the filing of the complaint or within two years of the alleged negligent treatment, knowledge sufficient to identify Norwood Clinic, Dr. Papapietro, Dr. Athanasuleas, and Dr. Geer as parties also intended to be sued. The defendants contend that the plaintiff had knowledge of their names and the role that each played in the treatment of Ms. Williams, by virtue of the medical records that were made available to her on June 9, 1986. We agree as to Dr. Papapietro, Dr. Athanasuleas, and Dr. Geer.
Davis v. Mims, 510 So. 2d 227, 229 (Ala. 1987).
The medical records reveal that Dr. Papapietro first treated Ms. Williams from January 28, 1986, through February 2, 1986. Dr. Papapietro was designated as her "doctor in charge," and he diagnosed her as suffering from aortic and mitral valve stenosis. Virtually every page of the *863 66-page medical record prepared during that period is marked with Dr. Papapietro's name and his notations of diagnoses and treatments prescribed for Ms. Williams. Ms. Williams's medical records for February 17, 1986, also reflect Dr. Papapietro's treatment and diagnosis of her condition. Ms. Williams's records for February 26, 1986, reflect that Dr. Papapietro also saw her that day, prescribed medication for her, and "discussed follow-up." In Ms. Williams's records for March 1, 1986, Dr. Patrick W. Davis noted that "the patient was transferred via helicopter to Carraway to the service of Dr. Papapietro and Dr. Geer."[2] On March 1, 1986, Ms. Williams's husband also signed a consent-to-transfer form, permitting the transfer of his wife to Dr. Papapietro's care.
As to Dr. Athanasuleas, virtually every page of Ms. Williams's 84-page medical record that was prepared from February 17, 1986, through February 26, 1986, is marked with his name, notations, observations, and prescribed treatment. He is on record as the "doctor in charge" of Ms. Williams during that period and was authorized by Ms. Williams to perform "Aortic Valve Replacement and Mitral Valve Replacement" in order to "correct the condition[s] which appear indicated by the diagnostic studies already performed." Dr. Athanasuleas's involvement with Ms. Williams was noted as early as February 3, 1986, in a letter from Dr. Papapietro to Dr. Hollis Keel, her referring physician:
Dr. Athanasuleas was listed as the lead surgeon on Ms. Williams's surgery team, and he performed the heart valve replacement surgery on February 19, 1986. Upon her readmittance to Carraway on March 2, 1986, Dr. Athanasuleas was listed once again as the "doctor in charge" and, again, virtually every page of the 110-page medical record that was prepared from that date until Ms. Williams's death on March 6, 1986, is marked with Dr. Athanasuleas's name, notations, diagnoses, prescribed treatment, requested consultations, and the like.
With respect to Dr. Geer, the medical records clearly reflect that Dr. Geer saw Ms. Williams shortly after his notification by telephone of her arrival at Carraway in the early morning of March 2, 1986. Ms. Williams's husband again signed a consent-to-surgery form, this time allowing Dr. Geer's "Exploration for Pericardial Tamponade." Dr. Geer's treatment procedures are likewise recorded throughout many of the pages of the record up until Ms. Williams's death. Dr. Geer is noted by Dr. Davis as apparently having performed valvular heart surgery on Ms. Williams some 10 days before March 1, 1986. Dr. Geer's signature also appears on several physician order sheets and progress notes that were prepared both before and after Ms. Williams's February 19, 1986, surgery. He and Dr. Athanasuleas were the two doctors designated by the cardiac surgical unit's preoperative orders of February 17, 1986, as having operative permits for Ms. Williams.
*864 The plaintiff cites Dannelley v. Guarino, 472 So. 2d 983 (Ala.1985), and Browning v. City of Gadsden, 359 So. 2d 361 (Ala.1978), as containing facts analogous to the facts in this case. In those cases, prior to the substitution of parties there was no suggestion of the possible involvement of the parties that the plaintiff later attempted to substitute. That is not the case here. The medical records before us are replete with indications that each of the three doctors in this appeal treated Ms. Williams's varying heart conditions off and on from January 1986 until her death on March 6, 1986. Even the plaintiff admits in her brief that "[a]fter the doctors drained the cardiac tamponade and closed her chest, Mrs. Williams was placed on a life support system where she continued in the care of Drs. Geer, Athanasuleas, Papapietro, and others." (Emphasis added.) Thus, we must conclude that when she filed her complaint the plaintiff either knew, or should have known, that Dr. Papapietro, Dr. Athanasuleas, and Dr. Geer were, in fact, the parties described fictitiously in the complaint. See, e.g., Ex parte Klemawesch, 549 So. 2d 62 (Ala.1989); Bowen v. Cummings, 517 So.2d. 617 (Ala.1987); and Harvell v. Ireland Electric Co., 444 So. 2d 852 (Ala.1984).
We note the plaintiff's argument that "the records ... do not indicate in any way what services, if any, the defendant physicians performed upon Mrs. Williams during the period of time of the alleged negligence which occurred prior to Mrs. Williams' heart attack ... on March 2, 1986." However, although originally complaining of the conduct of certain unknown doctors "on the occasions made the basis of this suit," it appears that the plaintiff attempts to now redefine those "occasions" to be the very narrow period between Ms. Williams's arrival at Carraway at 12:07 a.m. on March 2, 1986, and her heart attack around 3:00 to 3:15 a.m. The complaint, however, does not limit the alleged negligence to that period.
We also note the plaintiff's argument that because her medical expert, after reviewing Ms. Williams's medical records, did not specifically recommend that these defendants be designated by name in the original complaint, she should be relieved of the responsibility for not doing so. However, in a March 2, 1987, letter, the plaintiff's expert stated, in pertinent part, as follows:
This letter indicates that the plaintiff's expert mentioned both Dr. Papapietro and Dr. Athanasuleas by name because, as the *865 medical records show, they had been actively involved in the care and treatment of Ms. Williams prior to her death. The expert's failure to specifically recommend that these defendants be designated by name in the original complaint does not change the fact that the plaintiff either knew or should have known, based upon all of the information that she had before her, that these defendants were parties intended to be sued.
The medical records, however, are silent as to Norwood Clinic's role in providing treatment for Ms. Williams. Neither does our thorough review of the rest of the record on appeal provide any indication that "the plaintiff knew, or should have known, or was on notice" that Norwood Clinic was the "medical partnership, professional association, or professional corporation" originally intended to be sued. Accordingly, we hold that the amendment of September 13, 1989, substituting Norwood Clinic for fictitiously named defendant "C" relates back to the date of the original filing so as to make Norwood Clinic a proper party defendant. See, Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908 (1938); 57 C.J.S.2d Master and Servant § 570(c) (1948).
For the foregoing reasons, the judgment of the trial court is affirmed as to Dr. Papapietro, Dr. Athanasuleas, and Dr. Geer; the judgment is reversed as to Norwood Clinic, and the cause is remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Although the trial court recognized August 31, 1989, as the date the amendment in question was filed, the record indicates that that was the date of the certificate of service and that the amended complaint was actually stamped" filed" in the Jefferson County Circuit Court clerk's office on September 13, 1989. Therefore, for purposes of this appeal and throughout this opinion, we will refer to September 13, 1989, as the date the amendment was filed.
[2] A November 24, 1987, affidavit of Ms. Williams's attending physician in Cullman, Dr. Davis, supporting his own motion for summary judgment in this case, reconfirms Dr. Papapietro's involvement on March 1, 1986:
"I first saw Mrs. Williams on March 1, 1986, on consultation requested by the emergency room physician at Cullman Medical Center.... [I]t was my clinical judgment to transfer Mrs. Williams to Carraway Methodist Medical Center where her attending cardiologist and cardiac surgeons could more appropriately diagnose and treat her condition.... Before transferring Mrs. Williams, I called and discussed the suspected diagnosis and transfer with Mrs. Williams' cardiologist, Dr. S. Papapietro. He concurred with my plan."
We note that summary judgment was entered for Dr. Davis, and there has been no appeal from that judgment. | March 8, 1991 |
7d4fec72-3944-47e3-985d-ad6fdc9dc260 | Rice v. Hartman, Fawal & Spina | 582 So. 2d 464 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 464 (1991)
Don RICE and Larry Moore
v.
HARTMAN, FAWAL & SPINA.
89-1629.
Supreme Court of Alabama.
May 17, 1991.
*465 Allen W. Howell, Montgomery, for appellants.
Bert S. Nettles and J. Mark Hart of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellee.
MADDOX, Justice.
The issue in this case is whether the trial court properly entered a summary judgment against a legal malpractice claim.
The law firm of Hartman, Fawal & Spina sued Don Rice and Larry Moore for unpaid charges for legal services in the amount of $5,050. Rice and Moore filed a counterclaim against the firm alleging legal malpractice. The firm filed a motion for summary judgment, which was supported by an affidavit prepared by John L. Hartman, in which he disclaimed any negligence. In the affidavit Hartman stated, in part:
Rice and Moore filed nothing in opposition to the motion for summary judgment and filed no counter-affidavit. The trial judge entered a summary judgment against the counterclaim, on the ground that the counterclaimant had offered no expert testimony to indicate negligence on the part of the attorney. The court made that summary judgment final pursuant to Rule 54(b), A.R. Civ.P.
A similar fact situation was presented to this Court in the case of Phillips v. Alonzo, 435 So. 2d 1266 (Ala.1983), cert. denied, 464 U.S. 984, 104 S. Ct. 430, 78 L. Ed. 2d 363 (1983). In that case, a criminal defendant brought a legal malpractice action against his trial and appellate attorneys. Both attorneys filed motions for summary judgment with supporting affidavits stating that they had not been negligent in their representation of their client. The plaintiff's opposing affidavit merely restated the allegations in his complaint. In upholding the defendants' summary judgment, this Court stated:
435 So. 2d at 1267. See also, Tidwell v. Waldrop, 554 So. 2d 1009 (Ala.1989).
Because Rice and Moore failed to oppose the defendant's properly supported summary judgment motion with expert testimony indicating negligence on the part of their attorney, the trial court correctly held that there was no genuine issue of material fact for trial. Therefore, the trial court properly granted the defendant's motion for summary judgment. Rule 56(e), A.R. Civ.P.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | May 17, 1991 |
1bbd98c7-4e75-4a6d-ba33-a38db4e5efc2 | Anderton v. Gentry | 577 So. 2d 1261 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 1261 (1991)
Wayne ANDERTON
v.
Wayne GENTRY and The Citizens Bank of Moulton.
89-1111.
Supreme Court of Alabama.
March 22, 1991.
*1262 W.H. Rogers, Moulton, for appellant.
J.G. Speake of Speake & Speake, Moulton, for appellees.
KENNEDY, Justice.
Wayne Anderton appeals from a judgment based on a directed verdict in favor of Wayne Gentry and The Citizens Bank of Moulton in a defamation action.
The issues in this case are whether the alleged defamatory statements would be slander per se or slander per quod and whether these statements gave rise to a claim based on the tort of outrage.
Anderton alleges that Gentry, president of Citizens Bank, made slanderous statements to two people concerning bank loans made by Anderton in his capacity as a vice-president and branch manager of Citizens Bank. On July 27, 1987, around 9:12 p.m., Gentry called Jim Smith to inquire about an overdue payment on a loan made to Smith's wife. Anderton alleges that Gentry made statements to Smith insinuating that Anderton had made the loan to Smith's wife in exchange for sexual intercourse. Smith testified that Gentry asked him what kind of relationship his wife had had with Anderton in order to receive this loan. Smith also testified that Gentry said Smith should watch Anderton and his wife closely. Gentry admitted that he called Smith concerning the delinquent loan payment *1263 but denied making the statements suggesting sexual relations between Smith's wife and Anderton.
Gentry also telephoned Denise Killough on the evening of July 27, 1987, concerning a late payment on a loan made to a bank customer named Angela Malone. Killough testified that Malone had lived with her for a short time but had since moved away. Killough also testified that Gentry asked if Malone was Anderton's girlfriend and whether Malone had received the loan because of their relationship. Gentry admitted dialing Killough's telephone number and inquiring about Malone's delinquent loan payment but denied making any comments about a loan made in exchange for sexual intercourse.
Although this is not a case of wrongful termination, we note that Anderton was notified that he was being fired from Citizens Bank on July 28, 1987. Anderton testified that as a result of these alleged statements and questions, he could not find another job that paid as well as his job at the defendant's bank. Anderton also testified that the statements had injured his business reputation and had caused him mental anguish. On cross-examination, Anderton admitted that he had sought jobs only at two other banks. Anderton also admitted that he had received no indication that the reason he was not hired by those banks was Gentry's alleged statements.
Gentry and Citizens Bank moved for a directed verdict pursuant to Rule 50(a), A.R.Civ.P. The trial court granted the motion, specifically finding that the statements and questions attributed to Gentry did not amount to slander per se but rather constituted slander per quod. The court found that Anderton had not proved the special damages as required in a case of slander per quod.
In reviewing the ruling on a motion for a directed verdict, this Court will make a "purely objective determination of whether the party having the burden of proof has produced evidence requiring a resolution by the jury." Ex parte Oliver, 532 So. 2d 627, 628 (Ala.1988). This Court will view the tendencies of the evidence in a light most favorable to the nonmovant, regardless of the view the court has as to the weight of the evidence, and must allow such reasonable inferences as the jury was free to draw, not the inferences this Court may think are more probable. Walker-Waddell Realty, Inc. v. Kresge, 533 So. 2d 573 (Ala.1988).
"To establish a prima facie case of defamation, the plaintiff must show that the defendant was at least negligent, in publishing a false and defamatory statement to another concerning the plaintiff, which is either actionable without having to prove special harm (actionable per se) or actionable upon allegations and proof of special harm (actionable per quod)." Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1091 (Ala.1988).
The specific defamation involved in this case is slander. Generally, in slander there must be an oral communication of a defamatory matter to a third person. Nelson v. Lapeyrouse Grain Corp., supra. There are two types of slander, that is, slander per se and slander per quod. Slander per se is actionable if it imputes to the plaintiff an indictable offense involving infamy or moral turpitude. Lewis v. Ritch, 417 So. 2d 210 (Ala.Civ.App.1982). Damage is implied by law when spoken words are found to be slander per se. Slander per quod is a communication to a third person of a defamatory statement subjecting the plaintiff to disgrace, ridicule, odium, or contempt although not imputing the commission of a crime involving infamy or moral turpitude. Ceravolo v. Brown, 364 So. 2d 1155 (Ala.1978).
In the present case, the trial court specifically found that the alleged statements made by Gentry were slander per quod. We agree. The defamatory statements attributed to Gentry are accusations that Anderton made a loan to Mrs. Jim Smith because of an illicit relationship and that Anderton made a loan to Angela Malone because of a relationship with her. Anderton asserts that by these statements, Gentry was charging him with adultery and with soliciting prostitution. However, *1264 the statements made by Gentry do not suggest actions within the definitions of adultery, § 13A-13-2, Code of Alabama 1975, or prostitution, § 13A-12-110 through -113, Code of Alabama 1975. Because the statements imputed to Gentry do not suggest a crime of infamy or moral turpitude, the statements are considered slander per quod.
Because the statements amounted only to slander per quod, Anderton must plead and prove special damages. See Gray v. WALA TV, 384 So. 2d 1062 (Ala. 1980). Anderton did not allege special damages in his complaint and there was no evidence of special damages presented in court. Thus, Anderton failed to prove the damages that must be proved in a case of slander per quod.
We also agree with the trial court that Anderton did not prove facts supporting his claim of outrage. In order to prevail on a claim of outrage, the plaintiff must produce evidence that the defendant engaged in extreme and outrageous conduct, intentionally or recklessly, and thereby caused severe emotional distress to another. American Road Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala.1980). A defendant committing conduct actionable as "outrageous conduct" is liable for damages for resulting emotional distress and bodily harm to his victim; but to be actionable, the outrageous conduct must be so severe and extreme that no one could be expected to endure it. Id. We have said that for the conduct to be actionable, it must be so extreme "in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society." Inmon, 394 So. 2d at 365. Although the alleged statements in the present case would have been humiliating and insulting, the tort of outrage does not provide recovery for "`mere insults, indignations, threats, annoyances, petty oppressions, or other trivialities.' "Inmon, 394 So. 2d at 364-65 (citation omitted).
We affirm.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | March 22, 1991 |
55a633b0-9f84-4cb7-b17c-b8100c30c848 | Johnson v. Life Ins. Co. of Alabama | 581 So. 2d 438 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 438 (1991)
Miles JOHNSON, et al.
v.
LIFE INSURANCE COMPANY OF ALABAMA and Cecil Miller.
89-137, 89-397.
Supreme Court of Alabama.
April 11, 1991.
*439 Thomas J. Knight and Daniel E. Morris, Anniston, for appellants.
James S. Sledge of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee Life Ins. Co. of Alabama.
Cleophus Thomas, Jr., Anniston, for appellee Cecil Miller.
*440 ALMON, Justice.
Plaintiffs, Debbie Lynn Massey, Pam Ponder, Mary and Miles Johnson, Edna Higgins, and Dewayne Higgins, filed an action against Life Insurance Company of Alabama (hereinafter "LICA") and Cecil Miller, the chief executive officer of the former First National Bank of Jacksonville, Alabama (hereinafter "Bank"). The complaint alleged fraud, money had and received, and conversion and made other allegations whose merits are not sufficiently presented on this appeal. The claims stemmed from the plaintiffs' allegations that the Bank had forced them, in order to obtain loans from the Bank, to purchase life insurance policies from LICA and to pledge the policies as collateral for the loans.
There is no dispute that each of these plaintiffs was in a precarious financial condition at the time he or she purchased the policies and used them as collateral for the loans at the Bank. Each of the plaintiffs owed at least $300,000 to the Bank, and, in addition, Dewayne Higgins owed approximately $90,000 to another bank in the Jacksonville area. The plaintiffs testified that they had pledged virtually all their assets as collateral for their loans. However, it appears that the value of their assets was far less than the amount of money they borrowed. Prior to the filing of this action, all of the plaintiffs had their debts discharged in bankruptcy.
Prior to trial, each defendant filed a motion for summary judgment. Those motions were denied, although the record reflects that the trial judge expressed grave doubt at that time that the plaintiffs' claims could be proved at trial. The case was presented to a jury and, following the close of the plaintiffs' evidence, the judge directed a verdict against Mary Johnson, Pam Ponder, and Debbie Lynn Massey. Following the close of all the evidence, the defendants again moved for a directed verdict. The trial judge directed a verdict against the remaining plaintiffs on all claims except conversion. The following day the trial judge entertained further arguments on the defendants' directed verdict motions as to the conversion claim and directed a verdict on that last remaining claim. The plaintiffs filed a motion for new trial and a motion for recusal. Those motions were not ruled upon by the trial judge. The motion for new trial was deemed denied under Rule 59.1, Ala.R. Civ.P., after the expiration of 90 days. The motion for new trial mentioned the motion for recusal as a ground for new trial, so the motion for recusal will also be deemed denied by operation of Rule 59.1.
The plaintiffs raise numerous issues, which can be consolidated and summarized as follows:
1. Whether the trial judge correctly directed verdicts for the defendants as to the claims of Mary Johnson and Pam Ponder;[1]
2. Whether the trial judge erred in allowing the defendants to plead the statute of limitations as an affirmative defense;
3. Whether the trial judge correctly directed verdicts for the defendants and against the remaining plaintiffs on their claims of fraud, money had and received, and conversion;
4. Whether the trial judge erred in failing to grant the plaintiffs' motion for his recusal.
The complaint alleges that the plaintiffs are "holders of policies of life insurance of defendant Life Insurance Company of Alabama," and that the defendants "force[d] plaintiffs to buy exorbitant and unreasonable amounts of whole life insurance." The plaintiffs also filed a document entitled "Plaintiffs' More Definite Statement and Response to Motions for Summary Judgment," in which they allege that a "cause of action is set forth merely on the basis that the plaintiffs sought to deal with the issue of obtaining loans, and were forced to buy insurance, which they did not want, *441 from Life Insurance Company of Alabama."
"There are only two situations in which a directed verdict is proper: (1) where there is no scintilla of evidence to support an element essential to the claim[2] or (2) where there is no disputed issue of fact upon which reasonable men could differ." Osborn v. Johns, 468 So. 2d 103, 111 (Ala.1985); Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 856 (Ala.1981). In order to justify a directed verdict in the latter situation, the facts and inferences must lead reasonable persons to only one verdict. Osborn, supra, quoting Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir.1981). The evidence presented at trial revealed that no insurance policy was ever issued on the life of Mary Johnson or Pam Ponder and that neither of them was ever a party to an insurance contract from LICA. Likewise, no evidence was presented that these plaintiffs' property was converted by the defendants or that the defendants perpetrated a fraud upon them. In reviewing the facts in the light most favorable to the plaintiffs, as we are required to do, Alabama Power Co. v. Robinson, 404 So. 2d 22 (Ala.1981), we find that, because no evidence was presented at trial to support their claims, we must affirm the judgment on the directed verdicts against the claims of Mary Johnson and Pam Ponder.
The defense of the statute of limitations must be affirmatively pleaded. Ala.R.Civ.P. 8(c). If an answer fails to include an affirmative defense, that defense is generally deemed to have been waived. Hayes v. Payne, 523 So. 2d 333 (Ala.1987). Alabama law, however, has recognized numerous exceptions to this rule. Robinson v. Morse, 352 So. 2d 1355 (Ala.1977). Specifically, this Court has held that a party may amend his pleading to include an omitted affirmative defense if there is no objection by the opposing party, Bechtel v. Crown Central Petroleum Corp., 451 So. 2d 793, 796 (Ala.1984), appeal after remand, 495 So. 2d 1052 (Ala.1986); or with leave of the court, McElrath v. Consolidated Pipe & Supply Co., 351 So. 2d 560 (Ala.1977); or if the defense appears on the face of the complaint, Wallace v. Alabama Ass'n of Classified School Emp., 463 So. 2d 135, 137 (Ala.1984). In the broad discretion of the trial judge, leave to amend "`shall be freely given when justice so requires.'" McElrath, supra, at 564, quoting Wright and Miller, 6 Federal Practice and Procedure: Civil § 1484. "`Even as late as trial, if evidence relating to an unpleaded defense is introduced without objection, Rule 15(b) requires the pleadings to be treated as if they actually had raised the issue.'" Robinson, supra at 1357, quoting Wright & Miller, 5 Federal Practice & Procedure: Civil § 1278.
In Pierce v. Webb, 398 So. 2d 271 (Ala. 1981), this Court reviewed the issue of whether a defendant could raise the affirmative defense of the statute of limitations by amending his answer at the close of all the evidence. In that case, Webb's original answer had not pleaded that defense. However, following the close of Pierce's evidence, Webb moved to exclude Pierce's evidence because it showed that the claim was barred by the statute of limitations. At the close of all the evidence, Webb filed an amended answer specifically pleading the statute of limitations. In upholding the trial judge's allowance of Webb's amended answer, this Court held that the statute of limitations defense was established by the direct examination of Pierce and, thus, because there was no objection to the introduction of the evidence, that that issue was tried by the implied consent of the parties.
In the present action, Miles Johnson, Edna Higgins, and Dewayne Higgins ("the insureds") each testified in great detail regarding their transactions with the defendants. The insureds' testimony as to when the alleged wrongful acts occurred established the defense of the statute of limitations, *442 as did the direct examination of the plaintiff in Pierce. Edna Higgins testified that Miller told her she needed insurance when she took out, or consolidated, business loans in 1982 and 1983. Dewayne Higgins purchased a policy of insurance in 1982 and pledged it to the Bank as collateral on a loan. Miles Johnson purchased a policy of insurance from LICA and pledged it to the Bank as collateral in 1983.
The essence of the plaintiffs' complaint is that they were fraudulently required to purchase insurance and that the defendants converted money that they had paid in premiums. Thus, the wrongful acts had to occur at the time the plaintiffs purchased the insurance. The testimony of the plaintiffs at trial established that their claims arose no later than 1983.
It is within the trial court's discretion to allow the defendants to amend their answer to include an affirmative defense. Baker v. McCormeck, 511 So. 2d 170 (Ala. 1987); Piersol v. ITT Phillips Drill Div., Inc., 445 So. 2d 559 (Ala.1984). See, Crescent Transit, Inc. v. Varnes, 399 So. 2d 233, 235 (Ala.1981) (commenting on Rule 15(a), Ala.R.Civ.P.). In this case, we cannot hold that the trial court abused its discretion in holding that the defense of the statute of limitations had been tried by the implied consent of the parties and in allowing the defendants to amend their answer to plead the statute of limitations.
The insureds raise as error on appeal the trial judge's action in directing verdicts for the defendants on the claims of fraud, conversion, and money had and received.
Alabama Code 1975, § 6-2-39, provides that fraud actions filed on or after January 9, 1985, are subject to a two-year statute of limitations. The statutory period begins to run when the fraud is discovered. Ala.Code 1975, § 6-2-3.
Osborn, 468 So. 2d 103, 111, quoting Jefferson County Truck Growers Association v. Tanner, 341 So. 2d 485, 488 (Ala.1977) (emphasis added in Osborn). Generally, the question of when a plaintiff discovered an alleged fraud is a question for the jury; however, even matters that are usually considered to be jury questions can be resolved by directed verdict when the evidence clearly warrants it. Osborn, supra.
The insureds contend that they never wanted these insurance policies and that they were forced to purchase the policies in order to get a loan. Reasonable men could conclude only that the insureds were or should have been aware of the alleged fraud at the time they claim they were forced to do something against their will. Edna Higgins pledged her policy of insurance as collateral on loans in 1982 and 1983. Dewayne Higgins pledged a policy of insurance as collateral on a loan in 1982, and Miles Johnson pledged a policy of insurance as collateral in 1983. Thus, because this cause of action was not filed until 1986, their claims are barred by the statute of limitations.
The insureds also argue that the trial judge erroneously directed a verdict against their claim for conversion of the money paid by the insureds for their policies. Conversion has been defined as "a wrongful exercise of dominion over property in exclusion or defiance of the plaintiff's rights." United Merchants & Mfrs., Inc. v. Sanders, 508 So. 2d 689, 691 (Ala.1987). In order to maintain a conversion action, the plaintiff must have possession or an immediate right to possession of the property. Edwards v. Vanzant, 492 So. 2d 990 (Ala.1986).
Specifically, "`trover lies for the conversion of "ear marked" money or specific money capable of identification, e.g., money in a bag or coins or notes which have been entrusted to defendant's care.'" Hunnicutt v. Higginbotham, 138 Ala. 472, *443 475, 35 So. 469, 470 (1903) (quoting from 21 Enc.Pl. & Prac. 1020, 1021); United Merchants & Mfrs., supra; Lewis v. Fowler, 479 So. 2d 725, 726 (Ala.1985). In other words, an action alleging conversion of money lies only where there is an obligation to deliver the specific pieces of money in question or money that has been specifically sequestered, rather than a mere obligation to deliver a certain sum. Here, there was no specific, identifiable coin or bill, nor was there evidence that the money had been placed into a separate account. The insureds merely seek to recover a certain sum of currency paid for the purchase of insurance policies. Therefore, the trial judge correctly directed verdicts as to the insureds' claims for conversion.
Finally, the insureds claim that the trial judge erroneously directed verdicts against their claims for money had and received on the basis of a two-year statute of limitations, contending that actually there is a six-year statute of limitations for that cause of action. They are correct in that this action is governed by a six-year statute of limitations. Mutual Bldg. & Loan Ass'n v. Watson, 226 Ala. 526, 147 So. 817 (1933). However, we affirm the judgment insofar as it is based on the directed verdicts against the plaintiffs' claim for money had and received, because the evidence presented at trial does not support that claim. A trial judge does not commit reversible error in directing a verdict on an erroneous ground if the moving party is otherwise entitled to the directed verdict on any ground raised in his motion. King v. Winslett, 287 Ala. 98, 248 So. 2d 566 (1971).
"The essence of [a claim for] money had and received is that facts can be proved which show that [the] defendant holds money which in equity and good conscience belongs to the plaintiff or was improperly paid to the defendant because of mistake or fraud." Foshee v. General Tel. Co., 295 Ala. 70, 322 So. 2d 715 (1975).
At trial, the insureds established that they paid money to the defendant, LICA, for premiums on life insurance policies that were pledged as collateral for loans they had obtained from the Bank. The evidence shows that the insurance policies were issued and that the insureds received the protection afforded by the policies they purchased. Thus, the insureds have not shown that they were improperly required to pay money to the defendants, or that the trial judge erred in directing verdicts against the claims for money had and received.
In the initial proceedings in this case, the trial judge revealed to all the parties that he owned a life insurance policy issued by LICA. At that time the plaintiffs raised no question concerning his participation in this litigation. It was not until 75 days after trial that the plaintiffs filed a motion for recusal. "The law is quite clear that failure to object to bias at the trial level precludes that issue from being raised on appeal." United Companies Financial Corp. v. Wyers, 518 So. 2d 700, 702 (Ala. 1987). Similarly, the plaintiffs' failure to object when the trial judge disclosed before trial that he owned a LICA policy precludes them from raising that fact after trial as a ground for recusal and a new trial.
Initially, we note that we find absolutely no indication of bias on the part of the trial judge. However, even if the plaintiffs' motion for recusal contained valid arguments, we would not adopt a policy that allows a party to raise the question of bias for the first time in a post-trial motion when the party has notice before trial of the alleged reason for bias.
The appellants also raise other points in the argument section of their brief. Their brief contains only a very short statement of the facts, however. The record includes over 1100 pages, of which 873 pages form the reporter's transcript of the trial. The questions whether the trial court erred in directing verdicts for the defendants or whether, for example, the court erred in excluding certain evidence, are very fact-specific and depend upon details of the course of pretrial and trial *444 proceedings. An appellant has the burden of showing that a trial court has committed error; "this Court is not under a duty to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to an appeal." Totten v. Lighting & Supply, Inc., 507 So. 2d 502, 503 (Ala.1987) (citations omitted). Therefore, because the appellants' brief has not given enough of a statement of facts to support the remaining points that they attempt to argue, we pretermit discussion of their arguments on those points.
For all the reasons stated above, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Plaintiff Debbie Lynn Massey did not appeal, so the trial court's directed verdict against her claims is not challenged.
[2] Because this action was pending on June 11, 1987, it is governed by the "scintilla rule." See Ala.Code 1975, § 12-21-12. | April 11, 1991 |
63924f24-e1dc-40ad-bf91-b2a251faf1c2 | Brooks v. Colonial Chevrolet-Buick, Inc. | 579 So. 2d 1328 | 1900177 | Alabama | Alabama Supreme Court | 579 So. 2d 1328 (1991)
James M. BROOKS and Linda S. Brooks
v.
COLONIAL CHEVROLET-BUICK, INC., and General Motors Corporation.
1900177.
Supreme Court of Alabama.
April 19, 1991.
*1329 Claire B. Morgan of Burge & Wettermark, Birmingham, for appellants.
William W. Lawrence of Wooten, Thornton, Carpenter, O'Brien and Lazenby, Talladega, for appellee Colonial Chevrolet-Buick, Inc.
D. Alan Thomas and Prisca M. DeLeonardo of Huie, Fernambucq & Stewart, Birmingham, for appellee Gen. Motors Corp.
HOUSTON, Justice.
This is an appeal from a summary judgment in favor of General Motors Corporation ("GM") and Colonial Chevrolet-Buick, Inc. ("Colonial"), against James M. Brooks and Linda S. Brooks, husband and wife, who, as a result of injuries sustained in two accidents, brought suit against GM for an alleged design defect and against Colonial for an alleged breach of a duty to repair. We affirm.
The Brookses brought this suit under a negligence theory and under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), alleging that when the brakes on their 1986 Chevrolet Cavalier automobile failed on two separate occasions January 14, 1987, and March 23, 1987 [1] and caused them to sustain injuries, it was the result of defects in the design of the brakes of that automobile by GM and the negligent repair of those brakes by Colonial. It is undisputed that the automobile at issue was designed, manufactured in part, and assembled by GM. It is also undisputed that Colonial sold the automobile to the Brookses as the first consumers/purchasers. GM and Colonial filed motions for summary judgment. The trial court granted these motions because of the fact that no evidence of any defect in design or negligence in repair was offered in opposition, holding as follows:
The Brookses appeal, contending that the trial court erroneously entered summary judgment for GM and for Colonial. They contend that from the facts presented, a jury could have reasonably inferred that a defect existed and that Colonial failed to act reasonably and prudently. This case was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence" rule prescribed by Ala.Code 1975, § 12-21-12. Construing § 12-21-12, this Court has defined "substantial evidence" as "`evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Thomas v. Principal Financial Group, 566 So. 2d 735, 738 (Ala.1990), quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). When the motion for summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law, the burden shifts to the nonmoving party to show through substantial evidence that a genuine issue of material fact does exist. Dunaway v. King, 510 So. 2d 543 (Ala.1987). All reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment. Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987). Speculation and conclusory allegations are insufficient to create a genuine issue of material fact. Id.
The issues for our review are whether the Brookses presented substantial evidence of a design defect on the part of GM so as to preclude a summary judgment in GM's favor; and whether the Brookses presented substantial evidence of negligence on the part of Colonial so as to preclude a summary judgment in Colonial's favor.
On a review of a summary judgment, we must view the evidence in a light most favorable to the nonmovant. Viewed in that manner, the evidence would suggest that the following occurred:
On June 10, 1986, the Brookses purchased from Colonial an automobile manufactured by GM. On January 14, 1987, while Ms. Brooks was driving the automobile out of the driveway, the brakes failed, and the automobile collided with a fence. As a result of that collision, Ms. Brooks suffered injuries. The next day, January 15, 1987, the Brookses took the automobile to Colonial, complaining that the brakes had failed and requesting that Colonial inspect *1331 and repair the brakes. This was the first time that the Brookses had brought the automobile to Colonial for any type of brake work and the first time they had registered any type of complaint concerning the performance of the brakes. According to the repair order, the mileage on the automobile at the time of this initial complaint was 10,340 miles. At that time, Colonial undertook to inspect the brake system and its component parts. In order to attempt to confirm the Brookses' complaints, Colonial removed the front and rear wheels to see if there was something causing a sticking or binding with the brakes. Colonial inspected the brake drums to verify that there was no overheating; it sanded and cleaned the brake drums; it bled and flushed the brake system to be certain that there was no air in the system that could be causing a problem. According to Colonial's service manager, although the inspection revealed no problem with the brakes or the brake system, it undertook these steps as a precautionary measure to convince itself that there was, in fact, no problem with the brakes or the brake system. Although the Brookses continued to experience problems with the brakes, they continued to drive the automobile. However, on February 12, 1987 (when the mileage on the automobile was 11,532), the Brookses took the automobile to Colonial for inspection, maintenance, and repair. Colonial again tested and inspected the brakes and the brake system, including a test drive by the service manager and a sales representative, and concluded that there was no problem with the brake system. On February 16, 1987, the Brookses returned the automobile to Colonial, again complaining of brake problems. At that time, the automobile had 11,630 miles. The following day, Colonial took the automobile to Jerald's Alignment and Brake Service, an independent repair facility, for a follow-up inspection to ascertain if there was a problem it had not found, but those findings indicated that there was nothing wrong with the brakes or the brake system. According to the testimony of Mr. Brooks, on or about February 16, 1987, Colonial's service manager told him, "There is something wrong with the car, but we don't know how to fix it." The next time the Brookses complained of problems with the brakes was March 2, 1987 (when the mileage was 11,943 57 miles within the warranty period), at which time, in an effort to determine if there was a problem with the brakes, Colonial's service manager, along with another employee from Colonial, picked up the automobile from the Brookses' home and drove it to the dealership. When the service manager first got in the car, started the engine, and stepped on the brake pedal, the pedal went down a little further than he expected it to. However, he proceeded to drive the automobile back to Colonial, testing the brakes several times and attempting to simulate the problems that the Brookses had complained of, but the brakes worked perfectly. Even though the service manager had experienced no actual problem with the brakes, when the automobile was in the repair shop, as a further precautionary measure and at the suggestion of a GM representative, Colonial replaced the master cylinder, a part of the braking system. Colonial did that even though it had found no apparent problem with the existing master cylinder. Subsequently, on March 23, 1987, the brakes failed as the Brookses were driving down an incline and, as a result, the automobile collided with an embankment. Prior to that collision, the Brookses jumped from the automobile and were injured. Upon collision the automobile caught fire and burned.
Under the AEMLD, a manufacturer has the duty to design and manufacture a product that is reasonably safe for its intended purposes and uses. However, the manufacturer of a product is not an insurer against all harm that might be caused by the use of the product, and the manufacturer or designer is not obligated to produce an accident-proof or injury-proof product. Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976); Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976); Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir.1976.) In fact, as stated in General Motors Corp. v. Edwards, *1332 482 So. 2d 1176, 1183 (Ala.1985), overruled on other grounds, Schwartz v. Volvo North America Corp., 554 So. 2d 927 (Ala.1989), the "[f]ailure of a product does not presuppose the existence of a defect." The fact that someone was injured while using a product does not establish that the product was unreasonably dangerous when put to its intended use. Thompson v. Lee, 439 So. 2d 113 (Ala.1983); Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala.1981); Casrell v. Altec Industries, Inc., supra. Proof of an accident and injury alone is insufficient to establish fault under the AEMLD. Thompson v. Lee, supra. Rather, because the AEMLD is a fault-based cause of action, the plaintiff must prove more than the fact that an injury occurred while using the product. Casrell v. Altec Industries, Inc., supra. Under the AEMLD, the plaintiff must affirmatively show a defect in the product. Id. In Sears, Roebuck & Co. v. Haven Hills Farm, Inc., supra, at 995, this Court reviewed the proof necessary to establish a prima facie case under the AEMLD:
(Emphasis added.) (Citations omitted.) See, also, Entrekin v. Atlantic Richfield Co., 519 So. 2d 447 (Ala.1987); State Farm Fire & Casualty Co. v. J.B. Plastics, Inc., 505 So. 2d 1223 (Ala.1987); Segler v. Ford Motor Co., 438 So. 2d 297 (Ala.1983).
We recognize that Sears, Roebuck & Co. v. Haven Hills Farm, Inc., supra, does not stand for the proposition that expert testimony is always required in such cases; however, it does stand for the proposition that because of the complex and technical nature of the product and in order to present evidence from which a lay jury may reasonably infer that a defective condition of the product was the cause of the product's failure and the cause of the resultant injury to the plaintiff, expert testimony is usually essential and, therefore, usually required. If, however, under all the attendant circumstances, absent expert testimony, the jury could reasonably infer from the product's failure of performance that a defective condition caused the injury, a prima facie case has nonetheless been established. Sears, Roebuck & Co. v. Haven Hills Farm, Inc., supra.
(Emphasis added.) Sears, Roebuck & Co. v. Haven Hills Farm, Inc., supra, at 995.
The Brookses contend that the instant case does not present a situation so complex or complicated that an expert is necessary to explain the cause and effect of that situation to the jurors. However, an automobile brake system is composed of, among other parts, calibers, rotors, discs, rear wheel cylinders, brake shoes, and master cylinders; it is a system composed of parts that would not be familiar to the lay juror, and the lay juror could not reasonably be expected to understand that system and determine if it was defective, without the assistance of expert testimony. In essence, it is a system that appears to be precisely the type of complex and technical commodity that would require expert testimony to prove an alleged defect.
In this case, the Brookses, by their own admission, had no knowledge whatever regarding the brake system of an automobile. Furthermore, they offered no expert testimony as to the existence of a design defect they did not even attempt to offer any expert opinion related to the repair records concerning the complaints about the brakes that they had made to Colonial, nor did they attempt to offer any expert testimony related to their allegations of a design defect in the brake system. The only evidence the Brookses presented concerning a defect in design was their own testimony as to the alleged defectiveness of the brakes and as to the alleged injuries they suffered as a result. Such evidence as to the cause of a product failure amounts to mere speculation and conclusory statements; without more, it is insufficient to prove a prima facie case and to establish liability under the AEMLD. Furthermore, it is well settled in Alabama that if the party opposing a properly supported motion for summary judgment fails to produce verified evidence to contradict that presented by the moving party, the trial court shall consider the evidence uncontroverted and conclude that no genuine issue of material fact exists. Hutchins v. State Farm Mutual Auto. Ins. Co., 436 So. 2d 819 (Ala.1983); Sartino v. First Alabama Bank, 435 So. 2d 39 (Ala.1983).
We note the Brookses contention that Interstate Engineering, Inc. v. Burnette, 474 So. 2d 624 (Ala.1985), is directly on point and that the rationale and holding of that case are directly applicable to the case at issue. We disagree, however. Interstate Engineering is easily distinguishable from the instant case. In Interstate Engineering, all the evidence showed that the heat detectors, the product at issue, failed to activate as they should have; citing Sears, Roebuck & Co. v. Haven Hills Farm, Inc., supra, for the proposition that "`[w]hile the use of expert testimony would certainly have been preferable, in light of the attendant circumstances of the case, it was not required,'" 474 So. 2d at 628, the Court held, in pertinent part, as follows:
474 So. 2d at 627.
It appears, as GM contends, that the Brookses' argument that their case should have been submitted to the jury is actually based on the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur is not applicable in products liability cases mere proof of the accident itself is not proof of a defective product; rather, the plaintiff must present some evidence of a defective product in order to make out a prima facie case in a products liability action. See Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976). See, also, South Coast v. Schuster, [Ms. 89-853; -902, March 15, 1991] (Ala.1991).
Based on the foregoing, because the Brookses did not present sufficient evidence to establish a defect under the *1334 AEMLD, we must conclude that the trial court properly entered the summary judgment in favor of GM.
As to the Brookses' allegation of negligent repair on the part of Colonial, there was no evidence to support that contention other than the fact of the accident itself. Alabama law defines "negligence" as
Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (n.2) (5th Cir.1974). In order to present a prima facie case of negligent repair on Colonial's part, the Brookses had the burden of presenting substantial evidence that, taking into account all of the attendant circumstances, Colonial did something or failed to do something that would violate the proper standard of care one must observe in repairing a brake system. The Brookses presented no expert testimony; in fact, the Brookses presented no evidence whatever regarding the quality of the repair work performed by Colonial when it attempted to substantiate and to correct the problems the Brookses alleged they had experienced with the brakes. Rather, from our review of the record, we conclude that the evidence clearly indicates that even though Colonial never discovered any defect in the brakes or in the brake system, it seriously considered the Brookses' complaints about the brakes and seriously undertook to discover and correct any problems that existed. In fact, it appears from the record that Colonial did more than it was required to do e.g., although it never found any problem with the brakes, it continued to inspect, service, and take precautionary measures to verify that no problem did in fact exist; more specifically, after the alleged statement by Colonial's service manager that "[t]here is something wrong with the car, but we don't know how to fix it," and even though Colonial found no apparent problem with the brakes, it nevertheless undertook to replace the master cylinder in the brake system as a precautionary measure.
Based on the foregoing, because the Brookses failed to present any evidence of negligent repair, the trial court properly entered the summary judgment in favor of Colonial.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, STEAGALL and INGRAM, JJ., concur.
[1] Linda Brooks allegedly sustained injuries in two separate accidents, one occurring on each of these dates; James Brooks allegedly sustained injuries in the accident on March 23, 1987. | April 19, 1991 |
ee810240-c1db-4854-a708-b3f0f3e238d5 | Lesnick v. Lesnick | 577 So. 2d 856 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 856 (1991)
Geraldine P. LESNICK
v.
H. Keith LESNICK, et al.
Ex parte H. Keith LESNICK, George B. Lesnick, Richard G. Lesnick, and Mark A. Lesnick.
(In re Barbara MARTIN, as administratrix of the estate of George Lesnick, deceased v. H. Keith LESNICK, et al.).
89-1282, 89-1622.
Supreme Court of Alabama.
March 8, 1991.
*857 Bruce D. Duncan, Doraville, Ga., and E.C. Herrin, Birmingham, for appellant/respondent.
Mary Walton Whiteman, Decatur, Ga., and Edward Still, Birmingham, for appellees/petitioners.
HOUSTON, Justice.
This is a consolidation of a petition for writ of mandamus and an appeal of an estate accounting case, dealing with the appropriateness of post-judgment intervention under Rule 24, A.R.Civ.P., and the intervenors' subsequent relief from judgment under Rule 60(b), A.R.Civ.P. Geraldine Lesnick, former guardian of George Lesnick, appeals from the amended judgment of final settlement and the denial of her motion for new trial in the Probate Court of Jefferson County. Because of our resolution of the merits of this case on appeal, it is not necessary for us to address the petition for writ of mandamus.[1] We affirm the judgment on appeal and dismiss the petition for writ of mandamus.
George and Geraldine Lesnick were married in 1978. During their marriage, they acquired various assets, some individually, some jointly, and some jointly with right of survivorship. In 1981, Mr. Lesnick executed a will leaving two-thirds of his estate to his four adult sons by a previous marriage ("Mr. Lesnick's sons," the appellees) and one-third to Ms. Lesnick. In 1985, Mr. Lesnick was declared non compos mentis, and Ms. Lesnick was appointed his guardian. From that time, until Mr. Lesnick's death in September 1987, Ms. Lesnick commingled the various assets, transforming many of them into her own assets.
After Mr. Lesnick's death, Ms. Lesnick petitioned the Probate Court of Jefferson County for a final settlement of the guardianship, and the court appointed an administrator ad litem of Mr. Lesnick's estate. The court examined and audited Ms. Lesnick's accounting and issued a "Decree of Final Settlement" approving the accounting, on June 20, 1988. In that judgment, the probate court discharged Ms. Lesnick of her duties as guardian and stated that "due notice of the time and nature of said settlement has been given in strict accordance with law."
Seventy days after that judgment was issued, Mr. Lesnick's sons petitioned the court to intervene, alleging that they had had no knowledge of the guardian/ward relationship between Ms. Lesnick and their father and that they had not learned of the settlement proceedings until after the June 20, 1988, judgment. Mr. Lesnick's sons challenged Ms. Lesnick's accounting, alleging that she had converted assets of her ward's estate.
The probate court granted Mr. Lesnick's sons' petition to intervene, reopened Mr. Lesnick's guardianship estate, and ordered a modification of the accounting. Afterwards, on January 24, 1990, the court issued its amended judgment on final settlement, which substantially increased Mr. Lesnick's estate, thereby increasing the sons' potential inheritance under Mr. Lesnick's will. Ms. Lesnick appeals from that ruling and from the April 4, 1990, denial of her motion for new trial.
Ms. Lesnick first argues that the probate court erred in allowing Mr. Lesnick's sons to intervene 70 days after the entry of final judgment. She bases that argument solely on the fact that "the Motion which [Mr. Lesnick's sons] filed was not timely because there was no case pending at the time of [the sons'] Motion."
*858 Rule 24, A.R.Civ.P., provides, in pertinent part, as follows:
(Emphasis added.) Timeliness is the first condition that must be satisfied in order to intervene. NAACP v. New York, 413 U.S. 345, 365, 93 S. Ct. 2591, 2603, 37 L. Ed. 2d 648 (1973). But, because the rule itself is silent as to what constitutes a "timely application," the determination of timeliness has historically been a matter committed to the sound discretion of the trial court, Randolph County v. Thompson, 502 So. 2d 357, 364 (Ala.1987), and the trial court's ruling on timeliness will not be disturbed on review unless the court abused its discretion. United States v. Jefferson County, 720 F.2d 1511 (11th Cir.1983); United States v. Allegheny-Ludlum Indus., Inc., 553 F.2d 451, 453 (5th Cir.1977), cert. denied, 435 U.S. 914, 98 S. Ct. 1467, 55 L. Ed. 2d 505 (1978). If the rights of the existing parties to the litigation would not be prejudiced, and if the intervention would not substantially interfere with the court's orderly processes, "the mere fact that judgment has already been entered should not by itself require the denial of an application for intervention." Randolph County v. Thompson, supra, at 365.
In order to rule on the propriety of Mr. Lesnick's sons' post-judgment intervention, however, we must view it in light of the remedy they sought under Rule 60(b), A.R. Civ.P.; that rule reads in pertinent part:
(Emphasis added.)
It is clear that Mr. Lesnick's sons' motion for relief from judgment based on Ms. Lesnick's conversion of assets of her ward's estate is a motion for relief from a judgment that was entered because of alleged mistake, inadvertence, surprise, excusable neglect, or fraud, misrepresentation, or other misconduct of Ms. Lesnick and thus falls within the four-month requirement of Rule 60(b). Whether Mr. Lesnick's sons could be considered parties so as to qualify to file such a motion depends upon whether they had any relief available to warrant allowing them to intervene. In other words, did they file their motion to intervene within the four months required by Rule 60(b) to avail themselves of its relief? Yes. The decision to grant or withhold relief under Rule 60(b) is discretionary with the trial court and will not be reversed except for an abuse of that discretion. Reese v. Robinson, 523 So. 2d 398 (Ala. 1988). See Hill v. Hill, 523 So. 2d 425, 428 (Ala.Civ.App.1987); and Robinson v. Robinson, 490 So. 2d 917, 918 (Ala.Civ.App. 1986). Accordingly, because Mr. Lesnick's sons petitioned to intervene to seek Rule 60(b) relief within the requisite four-month period, we cannot hold that the probate court abused its discretion in permitting this intervention.
Next, Ms. Lesnick argues that the probate court erred in the estate accounting *859 by including property jointly owned by Mr. Lesnick and Ms. Lesnick during Mr. Lesnick's lifetime. She asserts that her commingling of Mr. Lesnick's assets, her assets, and joint assets should not cause the court to include the joint assets in Mr. Lesnick's estate.
In its order denying Ms. Lesnick's motion for new trial, the probate court noted the following:
In Howard v. Imes, 265 Ala. 298, 300-01, 90 So. 2d 818, 819-20 (1956), we noted:
(Citations omitted.)
Ms. Lesnick admits that she commingled her property with that of her ward, Mr. Lesnick, but she argues that "there was still a complete tracing of all assets" and, thus, that she should not be punished for the commingling.
39 Am.Jur.2d Guardian and Ward § 96 (1968). We adopt this statement as the law of this State. See, also, Jolly v. Richardson, 230 Ala. 548, 161 So. 814 (1935).
The probate court found that Ms. Lesnick "made it impossible to know for sure whose funds were used for what purposes." Ms. Lesnick would have us hold that such commingling does not defeat the legal principle of joint tenancy. The joint tenancy principle of law does not defeat the guardian's obligations to act in her fiduciary capacity as custodian of the ward's estate. See Annot., Guardian's Position as Joint Tenant of or Successor to Property in Ward's Estate as Raising Conflict of Interest, 69 A.L.R.3d 1198 (1976).
39 Am.Jur.2d Guardian & Ward § 208 (1968).
We will not overturn the probate court's findings of fact unless they are unsupported by the evidence. Kershaw v. Knox Kershaw, Inc., 523 So. 2d 351, 356 (Ala. 1988). The presumption of correctness exists when there is conflicting evidence. Id. Ms. Lesnick has presented us no proof that the probate court's findings were unsupported by the evidence so as to warrant reversal. Accordingly, we cannot hold that the probate court erred in including in the ward's estate all indistinguishably commingled funds.
Ms. Lesnick further argues that the probate court's settlement order was inconsistent in that it treated some jointly held assets differently from the way it treated others. We find no merit to this contention and repeat that "any ... claimant, including the guardian, must clearly identify any part of the account in order to claim it." We are presented no proof that any interest in certain assets was awarded to Ms. Lesnick contrary to the probate court's satisfaction that clear identification existed as to her right to such an interest.
Finally, Ms. Lesnick argues that it was error for the probate court to award $10,000 as partial attorney fees to counsel for Mr. Lesnick's sons; she contends that the award was arbitrary.
In this case, the efforts of counsel for the intervenors increased the value of Mr. Lesnick's guardianship estate from zero to approximately $170,000. Certainly, this amount qualifies as "a fund out of which fees may be paid." Without more than a bare allegation by Ms. Lesnick that the amount of the fee awarded is arbitrary, we will not hold that the award of attorney fees in this case (amounting to approximately six percent of the entire fund created by the efforts of the intervenors' counsel) was arbitrary and an abuse of discretion.
89-1282 AFFIRMED.
89-1622 DISMISSED AS MOOT.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] The probate court granted Ms. Lesnick's motion for a stay of execution of the judgment pending appeal. But, the court did not require Ms. Lesnick to post a supersedeas bond because it found Ms. Lesnick to be "under a Guardian's Bond which appears to be sufficient to satisfy the Court's judgment." The appellees, arguing that the probate court failed to comply with Rule 8, A.R.App.P., petitioned for a writ of mandamus seeking to have the stay lifted. We recognize that Rule 8 provides that an appellant may obtain a stay pending appeal if that appellant posts a bond equal to 125% of the amount of the judgment. Although the guardian's bond under which Ms. Lesnick was bound did not amount to the full 125% of the subsequent judgment, our resolution of the merits of this appeal makes moot the question raised by the petition for writ of mandamus.
[2] The Committee Comments to Rule 24 A.R. Civ.P., note that "this rule is virtually identical with Rule 24, Fed.R.Civ.P." This fact explains our citation to certain federal cases. "The only differences," according to the comments, "are the deletions of matters not relevant to state practice." | March 8, 1991 |
6dd2517e-184b-4f84-80c1-b152699b3a51 | Morrison v. City of Ozark | 575 So. 2d 1110 | 1900072 | Alabama | Alabama Supreme Court | 575 So. 2d 1110 (1991)
Adonna MORRISON, et al.
v.
CITY OF OZARK.
1900072.
Supreme Court of Alabama.
March 1, 1991.
Michael J. Crow of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellants.
Jerry M. White of Lee & McInish, Dothan, for appellee.
INGRAM, Justice.
Adonna Morrison took her minor son, Jeremy, to a T-ball game at a baseball field on James Street in the City of Ozark. Along with Jeremy, Mrs. Morrison had brought her 18-month-old daughter, 2 nieces, and a nephew. Jeremy and the nephew were the first to exit the car, which Mrs. Morrison had parked in a lot across the street from the field. Even though Mrs. Morrison told the boys to wait for her, the nephew ran across the street. At this same time, Hilda Renz was driving down James Street toward the field. She saw the nephew run across the street, and she also saw Jeremy standing beside the road. The instant the nephew reached the other side of James Street, Jeremy "jumped the curb" and was struck by Mrs. Renz's car. Mrs. Renz was traveling 15-20 miles per hour and did not have time to brake before impact.
Mrs. Morrison and her husband filed this action in the Circuit Court of Dale County. The complaint alleged that Mrs. Renz had negligently and wantonly operated her car and thereby caused Jeremy's injuries, and that the City of Ozark had negligently or wantonly maintained James Street and had failed to remedy a dangerous condition by installing appropriate safety devices.
The claim against Mrs. Renz was settled. The City of Ozark filed a motion for summary judgment. In opposition, the Morrisons filed an affidavit of an expert witness, Andrew Ramish, who holds degrees in civil engineering and is director of highway engineering for, and president of, the Institute *1111 for Safety Analysis. He stated in his affidavit that the City of Ozark had certain duties it owed to the plaintiffs and that it had breached those duties by failing to provide playground and pedestrian signs, crosswalks, and parking on the same side of the street as the field. The trial court granted the City of Ozark's motion for summary judgment, and the Morrisons appealed.
A motion for summary judgment is properly granted when there is "no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala.R.Civ.P. Although a summary judgment in a negligence action is rarely proper, see Coleman, Summary Judgment in Alabama: The Nuances of Practice Under Rule 56, 20 Cumb.L.Rev. 40-42 (1989), there are situations in which it is appropriate.
In this case, the issue is whether the City of Ozark owed a duty to the Morrisons to erect traffic and safety devices on James Street near the ball field. The Morrisons argue that Ozark is liable under two theories: (1) the Municipal Liability Statute, Alabama Code 1975, § 11-47-190; and (2) ordinary negligence.
The Morrisons argue that the City of Ozark's responsibilities in this case are governed by § 11-47-190, Alabama Code 1975. However, this statute applies only to the failure to maintain streets and rightsof-way free of defects and obstructions and does not apply to the failure to erect traffic devices. This Court held in City of Prichard v. Kelley, 386 So. 2d 403 (Ala.1980), that the City of Prichard had not breached its duty under § 11-47-190 when it failed to replace a missing stop sign, because the sign was not a physical obstruction or defect within the meaning of the statute. In that case, however, the City of Prichard was found liable under ordinary negligence theories because, when it put up the stop sign, it assumed the duty to maintain it.
We conclude that the City of Ozark is not liable under § 11-47-190, because erecting safety devices is not within the purview of that statute; however, the City of Ozark may be liable under a theory of ordinary negligence.
Under the facts of this case, we hold that the City of Ozark was under no duty to erect traffic signs, because municipalities have discretion in erecting traffic devices. See Davis v. Coffee County Commissioners, 505 So. 2d 329 (Ala.1987) (citing City of Prichard v. Kelley, 386 So. 2d 403 (Ala.1980)); Dorminey v. City of Montgomery, 232 Ala. 47, 166 So. 689 (1936).
The Morrisons argue that this Court's recent decision in Elmore County Commission v. Ragona, 540 So. 2d 720 (Ala.1989), is an exception to the general rule that a municipality has discretion in erecting traffic devices. However, Ragona can be distinguished factually from the instant case and does not limit a municipality's discretion in erecting traffic devices.
In Ragona there was a hump in the road. The hump was about 18 inches high and extended 7 to 8 feet from the intersection of the road and a private driveway into the road. This Court held that because the defect was known to the county and the county could have corrected the hump or could have taken other steps to prevent accidents, the jury could properly have found the county negligent in taking no action. The Ragona case is distinguishable, because clearly the hump was a defect in the road and the county had a duty to repair it. In the present case, the alleged defect in James Street claimed by the Morrisons is the lack of signs and markings, and there is no duty upon the city to provide such markings.
There was no duty upon the City of Ozark to erect playground signs, to provide a crosswalk, or to provide parking on the same side of the street; therefore the summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | March 1, 1991 |
ff72da40-9d52-43c0-acc1-b5643901748a | Sprouse v. Belcher Oil Co. | 577 So. 2d 443 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 443 (1991)
Ronald SPROUSE
v.
BELCHER OIL COMPANY.
89-779.
Supreme Court of Alabama.
March 8, 1991.
Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellant.
Cooper C. Thurber and William E. Shreve, Jr. of Lyons, Pipes & Cook, Mobile, for appellee.
ALMON, Justice.
Ronald Sprouse appeals from the entry of a judgment notwithstanding the jury's $200,000 verdict in favor of Sprouse in his personal injury action against Belcher Oil Company. Sprouse is a petroleum inspector employed by an independent inspection company. His job includes inspecting and certifying the quality and quantity of petroleum products being shipped on barges such as the ones that load and unload at the oil terminal operated by the defendant, Belcher Oil Company. In performing these inspections, Sprouse records a series of measurements to determine the amount of petroleum being sold or purchased. To obtain these measurements, the inspector must actually board the barge. The evidence showed that, at the Belcher facility, there is a drop of approximately 12 feet from the dock to the deck of the barge. Wooden railroad crossties were affixed to the end of the dock, forming a structure that resembled a ladder. Inspectors normally boarded the barges by means of a portable aluminum ladder provided by Belcher.
*444 At approximately 2:45 a.m. on November 27, 1986, Sprouse was called by Phillip Kirksey, the terminal operator at Belcher's facility, to inspect two barges. When Sprouse arrived, at approximately 3:30 a.m., there were only two other people at the facility: Kirksey and the dockman, Thomas Ladner. Sprouse requested a ladder from Ladner, who told Sprouse that the ladder was locked up and that he did not have a key. Ladner also indicated that Kirskey did not have a key. Sprouse never directly requested a ladder from Kirskey, nor did he ask Ladner to request a ladder from Kirskey. After concluding that a ladder was not immediately available, Sprouse lowered himself and his equipment onto the barges by climbing down the wooden crossties on the end of the dock. After completing his inspection, Sprouse climbed back up the crossties onto the dock. To climb the last five feet, however, he had to grasp the top of the deck and pull himself up. Immediately after pulling himself up, Sprouse noticed a severe pain in his lower back. Two days later he was diagnosed as having a herniated disc. On November 15, 1988, Sprouse filed this action, alleging that Belcher had negligently and/or wantonly breached its duty to provide him with a safe place to work.
In granting Belcher's motion for j.n.o.v., the trial court concluded that the evidence was sufficient to establish at least a voluntary undertaking by Belcher to provide inspectors with a ladder to access the barges. However, the trial court also determined that, as a matter of law, the evidence conclusively established the affirmative defenses of contributory negligence and assumption of risk. After reviewing the evidence in a light most favorable to the nonmovant, as we are required to do, Alabama Power Co. v. Robinson, 404 So. 2d 22 (Ala. 1981), we hold that the trial court correctly entered Belcher's j.n.o.v.
In so holding, we recognize the presumption of correctness that attends a jury verdict. Davis v. Ulin, 545 So. 2d 14 (Ala. 1989); Ashbee v. Brock, 510 So. 2d 214 (Ala. 1987). However, the evidence was uncontroverted that Sprouse was familiar with the condition of the crossties and their distance from the top of the dock and voluntarily undertook to make the climb. In fact, Sprouse testified that he had used the crossties to board barges on prior occasions. The evidence showed that Sprouse had worked on Belcher's docks "hundreds or thousands" of times before he was injured. Further, there was evidence from two of Sprouse's fellow inspectors, as well as from Sprouse, that each of them had used the crossties from time to time to board the barges that they were responsible for inspecting. Because of Sprouse's firsthand knowledge, he had to have known and appreciated the condition of the crossties and the dangers that he was exposing himself to when he elected to climb on them.
Assumption of risk has three elements: (1) knowledge by the plaintiff of the condition; (2) appreciation by the plaintiff of the danger or risk posed by that condition; and (3) a voluntary, affirmative exposure to the danger or risk. Elder v. E.I. DuPont De Nemours & Co., 479 So. 2d 1243 (Ala.1985); Employers Casualty Co. v. Hagendorfer, 393 So. 2d 999 (Ala.1981). On the other hand, contributory negligence, while requiring proof of both knowledge and appreciation of the danger, does not require proof of a voluntary, affirmative exposure to the danger; rather it merely requires proof that the plaintiff failed to exercise reasonable care. Elder, supra.
*445 Koshorek v. Pennsylvania R.R., 318 F.2d 364 (3d Cir.1963).
If Belcher was negligent in not performing its "voluntarily undertaken" duty to provide a ladder, it was only because there was some risk or danger in climbing on the crossties. Because Sprouse was as familiar with the dock as the Belcher employees were, any such risk of injury would be as apparent to him as it was to them. Thus, the very evidence that would support a finding of negligence against Belcher would, to the same extent, require a finding that Sprouse was aware of the risk in climbing on the crossties. Therefore, as a matter of law, he must be deemed to have been aware of and to have appreciated the danger associated with climbing on the crossties.
In Wallace v. Doege, 484 So. 2d 404 (Ala. 1986), the plaintiff had worked for 25 years with saws similar to the one on which she was injured and knew that it was dangerous to clean the saw without turning it off. This Court held that "Doege put herself in danger by attempting to clean the saw without turning off the power," and that "the proximate cause of Doege's injury was her failure to exercise reasonable care in cleaning the saw." Id., at 406. The Court reversed a judgment for Doege and rendered a judgment for Wallace. In Fenley v. Rouselle Corp., 531 So. 2d 304, 305 (Ala.1988), the trial court entered a summary judgment for the defendant based in part on a holding that the plaintiff was contributorily negligent as a matter of law because he was "thoroughly familiar with the press" on which he was injured and with "the operating conditions and circumstances." This Court pretermitted discussion of the contributory negligence issue because it affirmed the judgment for the manufacturer on the grounds that the press had been substantially altered.
In Johnson v. Niagara Mach. & Tool Works, 555 So. 2d 88, 93 (Ala.1989), the Court noted that "the conduct of the plaintiff in certain cases may be so lacking in reasonable care for his own safety that reasonable minds may not differ on the issue of the plaintiff's own negligence; in such a case the question becomes one of law." The Court distinguished Wallace and Fenley on the grounds, inter alia, that Johnson was unfamiliar with the machine on which he was injured and that the warning label had been covered.
In climbing on the crossties, Sprouse voluntarily, affirmatively exposed himself to the risk and failed to exercise due care for his own safety. Therefore, the trial court properly entered a j.n.o.v. for Belcher.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | March 8, 1991 |
0b9b0443-b93d-4f7e-bcb8-c8de34bc0ea5 | Nichols v. SOUTHEAST PROPERTY MANAGEMENT | 576 So. 2d 660 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 660 (1991)
Rayburn NICHOLS
v.
SOUTHEAST PROPERTY MANAGEMENT, INC., and Dennis Guthrie.
89-1491.
Supreme Court of Alabama.
March 1, 1991.
*661 John F. Kizer, Jr. and Jeffrey W. Bennitt, Birmingham, for appellant.
Marda W. Sydnor of Parsons, Lee & Juliano, Birmingham, for appellee Southeast Property Management, Inc.
Paul G. Smith of Smith, Burgess, Spires & Peddy, Birmingham, for appellee Dennis Guthrie.
HOUSTON, Justice.
A jury returned a verdict for the defendants, Southeast Property Management, Inc. ("Southeast"), and Dennis Guthrie, on Rayburn Nichols's claims against them alleging assault and battery, negligence, and wantonness. The defendants raised defenses of self-defense and contributory negligence. Nichols appeals and presents two issues for this Court's review:
The alleged assault and battery and/or negligence or wantonness occurred at Serene Valley Apartments, which were managed by Southeast. Guthrie was Southeast's maintenance man and worked from 8:00 a.m. to 5:00 p.m. Monday through Friday and was on call for maintenance emergencies. Guthrie's apartment and the apartment of Nichols's son, Mark Nichols, were at Serene Valley Apartments, separated from each other by a landing six to eight feet wide.
Our standard of review requires that we review the evidence most favorably to Southeast and Guthrie, since the jury returned a verdict in their favor. This evidence shows that around midnight, Nichols banged on and kicked Mark's door, while yelling obscenities for 30 to 45 minutes. Guthrie finally came out on the landing and asked Nichols what he wanted. There was a discussion between Guthrie and Nichols about the noise that Nichols was making and whether Nichols should leave. Guthrie testified that Nichols, who has a seventh *662 degree black belt in karate, grabbed Guthrie's left shirt collar and postured himself to strike Guthrie, whereupon, Guthrie said, he pushed Nichols backward, causing Nichols to lose his balance and fall down the stairs.
Nichols's account of the incident preceding the fall indicated that he was not upset, was not making a disturbance, and was quietly knocking on Mark's door when he was attacked for virtually no reason by Guthrie. To substantiate this, Nichols called Mark as a witness. Mark testified that he and his wife were asleep and did not hear Nichols knocking on the door. He denied that Nichols was yelling, kicking, or beating on the door. This supported Nichols's testimony that he was quietly knocking on the door and that he was not upset or making a disturbance.
Southeast and Guthrie called as a witness Sherry Carpenter, whose daughter was married to Mark at the time of the incident, to relate what Mark had told her the day after the incident.
The trial court overruled the objection, allowing the question to be asked not for the truth of what was said but for impeachment purposes. Nichols further objected on the ground that the lawyer for Southeast and Guthrie had not told him that Ms. Carpenter would be called as a witness. There was no pre-trial order or agreement to exchange lists of witnesses; therefore, the trial court overruled this objection. Thereafter, the following questions were asked and the following answers were given, without objection:
At this time Nichols objected: "We object. We move to exclude. There has been no testimony about owing money to anyone." This objection was overruled by the trial court.
Rule 46, A.R.Civ.P., requires that a party state his grounds for any objection that he makes if he wishes to preserve as error the trial court's overruling of his objection. When the grounds for an objection are stated, this impliedly waives all other grounds for the objection to the evidence, State v. Johnston, 292 Ala. 545, 297 So. 2d 368 (1974); Granberry v. Gilbert, 276 Ala. 486, 163 So. 2d 641 (1964); and the objecting party cannot predicate error upon a ground not stated in the trial court, but raised for the first time on appeal, State v. Waller, 395 So. 2d 37 (Ala.1981). While it is true that a witness cannot be impeached by being contradicted on an immaterial matter, Goldin v. State, 271 Ala. 678, 127 So. 2d 375 (1961), because Nichols failed to specify in any objection to Ms. Carpenter's testimony that impeachment was being allowed on an immaterial matter, Nichols waived that particular ground of objection, State v. Johnston, supra; Granberry v. Gilbert, supra. We will not reverse the trial court's overruling of the objection on a ground not stated before the trial court rules on the objection. Furthermore, a witness can be impeached by a contradictory statement relative to a matter that is material to the issues at trial, Noble v. State, 253 Ala. 519, 45 So. 2d 857 (1950); and, under the doctrine of curative admissibility, when testimony is injurious to a party against whom a witness has been called, that party has the right to contradict the witness's testimony about the matter testified to. C. Gamble, McElroy's Alabama Evidence, § 156.01(8) (3d ed. 1977). We conclude that Nichols's conduct preceding his confrontation with Guthrie was material, under the pleadings, to the issue of who *663 was the aggressor in the incident that resulted in Nichols's injury; even if it was not, Mark's testimony, which was elicited by Nichols that Nichols was at most gently rapping on Mark's chamber door before he was pushed down the stairs by Guthrie was injurious to Guthrie, and Guthrie, under the doctrine of curative admissibility, had the right to contradict Mark's testimony about that matter. Take the even or take the odd; either way, the trial court did not err.
The second issue was not properly preserved for appeal. Prior to any testimony being taken at the trial of this case, Nichols filed a "motion in limine"[1] requesting that the trial court allow him to introduce into evidence "specific acts of drunkenness and violence on the part of the defendant, Dennis Guthrie, done prior to the alleged assault and battery." The trial court overruled this motion; its order in its entirety was: "Motion in Limine is hereby overruled." Therefore, there is nothing to suggest that the trial court's pre-trial denial of Nichols's "motion in limine" was intended to exclude the offer of certain evidence during the trial of this case. Nichols did not attempt to introduce evidence of Guthrie's "drunkenness" or "violence" prior to the alleged assault and battery at the trial. Therefore, Nichols did not properly preserve this issue for appeal. Perry v. Brakefield, 534 So. 2d 602 (Ala.1988); Robinson v. Kierce, 513 So. 2d 1005 (Ala.1987).
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] This was an attempt to obtain a certification that certain evidence would be admissible prior to trial, which, although styled "motion in limine," is not truly a motion in limine. Black's Law Dictionary 1013 (6th ed. 1990) defines a "motion in limine" as "[a] pretrial motion requesting court to prohibit opposing counsel from referring to or affirming evidence on matters so highly prejudicial to moving party that curative instructions cannot prevent predisposition and effect on jury." | March 1, 1991 |
a71fea83-d296-41b0-a3b0-5fb82fc9f0b0 | Brock v. Watts Realty Co., Inc. | 582 So. 2d 438 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 438 (1991)
Savana BROCK, as administratrix of the Estate of Beverly Ann Jackson, deceased
v.
WATTS REALTY COMPANY, INC., and James C. Levie.
89-1362.
Supreme Court of Alabama.
February 22, 1991.
Rehearing Denied May 10, 1991.
*439 Stuart F. Vargo of Heninger, Burge & Vargo, Birmingham, for Savana Brock.
De Martenson and William G. Gantt of Huie, Fernambucq & Stewart, Birmingham, for appellee Watts Realty Co., Inc.
Thomas Coleman, Jr. of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellee James C. Levie.
STEAGALL, Justice.
Savana Brock, as administratrix of the estate of Beverly Ann Jackson, appeals from the summary judgments for defendants Watts Realty Company, Inc., and James C. Levie on her suit against them alleging negligence. The basis of Brock's complaint was that Levie and Watts Realty, as owner and lessor, respectively, of an apartment rented to Jackson, failed to maintain the locks on Jackson's back door in a safe condition as required by two Birmingham Housing Code ordinances, which read:
(Emphasis added.)
(Emphasis added.)
Beverly Jackson and Beverly Silliman had been romantically involved with the same man, Curtis Hawkins, and, as a result, had had confrontations and had exchanged threats. On October 16, 1985, about 9:00 a.m., Jackson called the Birmingham police and reported that a prowler was at the "back part" of her apartment. Sergeant Roger Harrison arrived at her apartment about 9:07 a.m.; he did not see anyone near the front door, which, he stated in his affidavit, was locked. Immediately after Sergeant Harrison knocked on the front door, Silliman exited through the rear door of the apartment. When the officers entered the apartment, they found Jackson lying on the floor, stabbed to death. Silliman pleaded guilty to murder and is currently serving her sentence.
Brock's argument on appeal is a novel one in that she advocates holding Levie and Watts Realty statutorily liable for the death of her daughter rather than holding them liable under the common law. She alleged in her complaint against them that the locks on Jackson's back door were faulty, that Jackson had submitted two service requests to Watts Realty asking it to repair the locks on her back door, that Watts Realty failed to repair the locks or to acknowledge Jackson's requests in any way, and that, as a result of the faulty locks, Jackson's killer entered her apartment through the back door.[1]
*440 The general rule in Alabama is that landlords and businesses are not liable for the criminal acts of third persons unless such acts were reasonably foreseeable. Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368 (Ala.1986); Ortell v. Spencer Companies, 477 So. 2d 299 (Ala.1985); and Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984). The basis for this rule has been that landlords and businesses should not be held liable for acts that could not have been anticipated.
Brock argues that statutes and ordinances such as the two Birmingham ordinances here are enacted only to protect a class of people from a foreseeable harm, i.e., crime; otherwise, she argues, such statutes and ordinances would be unnecessary. Looking at the statute pursuant to which the ordinances at issue here were enacted, Ala.Code 1975, § 11-53-1, we agree. That statute reads, in pertinent part:
(Emphasis added.) It is, thus, clear that the legislature attempted to alleviate the crime problem in such residential areas as Jackson's and in the landlord/tenant context by authorizing incorporated municipalities to enact and enforce housing codes for the protection of occupants of residential dwellings such as Jackson.
Although the issue before us is one of first impression, Florida recently held landlords to a statutory duty to protect their tenants from the criminal acts of third persons in Paterson v. Deeb, 472 So. 2d 1210 (Fla.Dist.Ct.1985), review denied, 484 So. 2d 8 (Fla.1986). In that case, a female tenant was sexually assaulted by an unknown assailant in her apartment building, which had a front door with a faulty lock and a rear door with no lock. The plaintiff, as here, had previously notified the landlord of the inadequate security and had expressed concerns for her safety. A Florida statute in effect at the time the lease was signed, § 83.51, Florida Statutes (1981), required a landlord to provide leased premises "with locks and keys" in the leased areas and the common areas, and to maintain the common areas of the premises in a "safe condition."
Recognizing the general rule in Florida regarding the nonliability of landlords in such contexts, the court in Paterson v. Deeb nonetheless held that § 83.51 created a duty on the part of the landlord to provide protection from criminal attacks by third parties, regardless of an absence of prior similar incidents:
472 So. 2d at 1217.
The Florida court went on to discuss at length the foreseeability issue in the causation context and stated:
472 So. 2d at 1218-19.
The Florida court then concluded by saying that "the issue of foreseeability in this case is not a question of law essential to the element of the landlord's duty, but is a question of fact for the jury on the element of causation." 472 So. 2d at 1220.
We agree with the Florida court's reasoning and hold that the two Birmingham Housing Code ordinances here, §§ 7-1-93 and 7-1-97, created a duty on the part of Levie and Watts Realty to maintain the locks on Jackson's doors "in satisfactory working condition" because the resulting crime (Jackson's murder) was one the general risk of which was foreseeable, regardless of whether there had been prior similar incidents in the area.
Both Levie and Watts Realty argue that, pursuant to a clause in Jackson's lease, she was responsible for repairing all locks once she took possession of the apartment and that they were required only to provide her with locks that were in good working order upon her taking possession. However, under the same section of the lease entitled "Rules and Regulations," there is also a provision that reads, "No additional locks shall be affixed to any door except by written consent by Lessor. Nor shall any existing locks be changed without Lessor's written consent." (Emphasis added.)
Brock stated in her affidavit the following concerning her daughter's service requests:
There is no evidence in the record that Jackson was ever given permission, according to the terms of her lease, to repair the locks on her back door or that Watts Realty attempted to repair them for her. We disagree with the arguments of Levie and Watts Realty that the lease provisions making Jackson responsible for repairing her locks but requiring her to first get Watts Realty's permission shields them from liability. While it is true that there is no legislative impediment of which we are aware that prevents a lessor from including such provisions in a lease, a lessor may not make a tenant responsible for repairing locks, such as here, allowing repairs only after obtaining the lessor's permission, and at the same time withhold such permission after two explicit requests for repairs. To do so would violate the public policy stated in § 11-53-1, which was implicitly behind the adoption of the Birmingham Housing Code. We point out, however, that our holding is limited to the facts of this case.
Finally, Brock correctly argues that there is a genuine issue of material fact regarding causation, specifically, whether Silliman did, in fact, enter Jackson's apartment through the rear door. Sergeant Harrison stated that it was his opinion that Silliman entered and exited through the rear door of Jackson's apartment. On the other hand, Watts Realty and Levie presented the following evidence: Silliman testified that she entered Jackson's apartment through the front door. Furthermore, Jackson's next door neighbor, Wesley Douglas, and the Watts Realty maintenance man, Wade Brown, stated that, immediately after Jackson was killed, the locks on the back door were tested and were found to be in good working order.
Based upon our review of the record, we agree with Brock that the causation issue was one for the jury and that Levie and Watts Realty were not entitled to judgments as a matter of law. Therefore, the *442 judgments in their favor are reversed and the case is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS,[*] HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] Jackson had also filled out a third service request regarding the lock on the front door; the condition of that lock, however, is not at issue.
[*] Justice Adams did not attend oral argument, but he has listened to the tape recording of the argument. | February 22, 1991 |
512879e4-7c26-4476-ac0f-96e72af1763b | Meek v. Diversified Products Corp. | 575 So. 2d 1100 | 1900113 | Alabama | Alabama Supreme Court | 575 So. 2d 1100 (1991)
Larry D. MEEK
v.
DIVERSIFIED PRODUCTS CORPORATION.
Ex parte Larry D. MEEK.
(Re Larry D. MEEK v. DIVERSIFIED PRODUCTS CORPORATION).
89-1610, 1900113.
Supreme Court of Alabama.
March 1, 1991.
Ruth S. Sullivan, Dadeville, for appellant and petitioner.
Larry E. Forrester of Smith, Currie & Hancock, Atlanta, Ga., and W.F. Horsley of Samford, Denson, Horsley, Pettey, Martin and Barrett, Opelika, for appellee and respondent.
SHORES, Justice.
Larry D. Meek, plaintiff in a lawsuit, filed a petition for a writ of mandamus, challenging an award of attorney fees to the defendant, Diversified Products Corporation, *1101 under the Alabama Litigation Accountability Act, §§ 12-19-270 through -276, Ala.Code 1975 (1987 Cum.Supp.). We deny the petition for writ of mandamus.
Meek filed the complaint in this case, his second lawsuit against Diversified, on March 24, 1989. In this second suit he claimed that he had been discharged in retaliation for instituting or maintaining an action for worker's compensation benefits, and that he had been discharged in derogation of Diversified's employee handbook. His complaint was timely answered by Diversified.
On February 1, 1990, Diversified filed motions to dismiss and for summary judgment on the grounds that Meeks was trying to relitigate his workers' compensation case. Diversified argued that the loss or injury alleged in the instant case derived from the same set of circumstances as those previously litigated, i.e., Meek's onthe-job injury. The trial court held a hearing at which Meek's deposition was considered and during which Meeks admitted that the only damages he sought in the present action were to compensate for the medical expenses related to a Dr. Serrato's treatment of his on-the-job injury. The trial court granted the motion for summary judgment. Meek did not appeal from the summary judgment.
During the hearing on the motion for summary judgment, counsel for Diversified requested, and was granted, permission from the court to file a motion pursuant to the Alabama Litigation Accountability Act. Diversified filed its motion for an award of attorney fees and a supporting memorandum of law on March 30, 1990. After a hearing on the matter, the trial judge awarded attorney fees to Diversified and entered a judgment against Meek's attorney in the amount of $11,550.00.
Meek and his attorney filed motions on July 11 and 18, 1990, seeking post-judgment relief from the trial judge's order. Before the trial court could rule on these motions, a notice of appeal was filed on July 23, 1990 (Case No. 89-1610). Our denial of the writ of mandamus makes Case No. 89-1610 moot.
The trial judge's order read as follows:
"The Act defines `without substantial justification' as follows:
"Thus, the question now before the Court is whether the present case was instituted without substantial justification.
The trial judge's order gives the factual background of the case and reflects an appropriate utilization of the Alabama Litigation Accountability Act. We note that the trial judge set forth substantial reasons for this award, as required by § 12-19-273. This section permits the trial court to exercise its discretion in the awarding of attorney fees authorized by the statute, but requires that it set forth the reasons for the award. Tidwell v. Waldrop, 554 So. 2d 1009, 1010 (Ala.1989), and A & M Grocery v. Lopez, 567 So. 2d 261, 263-64 (Ala.1990).
In his petition for writ of mandamus, Meek challenges the trial court's authority to consider Diversified's motion for attorney fees 36 days after the court had entered a summary judgment for Diversified. Meek contends that the language of § 12-19-272 requires that the award of attorney fees be a part of the summary judgment.
The record reflects that the issue of attorney fees was raised by Diversified during the hearing on its motion for summary judgment. The trial court specifically granted Diversified's request to file a written motion and brief. This reserved the court's jurisdiction of Diversified's motion and gave ample notice to the plaintiff and his attorney.
The specific language of the Alabama Litigation Accountability Act, consistent with its intent, provides for the trial court to consider the outcome of the proceedings in determining whether a party's action was without substantial justification. § 12-19-273(7). The holding of a separate hearing on the motion for an award of attorney fees after the entry of the summary judgment was a proper exercise of discretion by the trial court. The hearing provided an opportunity for the plaintiff and his attorney to be heard.
For the reasons stated above, the petition for writ of mandamus is due to be denied.
CASE 1900113, WRIT DENIED.
CASE 89-1610, DISMISSED AS MOOT.
MADDOX, HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] Meek had been receiving temporary total and permanent partial disability benefits since the time of his injury. The circuit court awarded Meek $414,225.24 in permanent total disability benefits discounted to present value. | March 1, 1991 |
901ff82f-fc7a-4090-8ee6-42399799a15a | Armstrong v. Roger's Outdoor Sports | 581 So. 2d 414 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 414 (1991)
Roger L. ARMSTRONG
v.
ROGER'S OUTDOOR SPORTS, INC.
88-1190.
Supreme Court of Alabama.
March 8, 1991.
Rehearing Denied May 10, 1991.
*415 Zack Higgs, Huntsville, for appellant.
Wesley G. Smith and Danny D. Henderson, Huntsville, for appellee.
PER CURIAM.
Roger L. Armstrong purchased a boat, an engine for that boat, and a boat trailer from Roger's Outdoor Sports, Inc. ("Roger's Outdoor"). According to Armstrong, Roger's Outdoor represented to him before he bought the boat that the boat was "new" and that it had had "no prior owners"; later, Armstrong learned that the boat had had a prior owner. Armstrong filed an action against Roger's Outdoor, alleging fraud and misrepresentation in the sale of the boat. The jury returned a verdict for Armstrong, awarding him $3,625 in compensatory damages and $15,000 in punitive damages, and the trial court entered judgment on the verdict. Roger's Outdoor filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial and requested that the trial court reduce the award pursuant to Ala.Code 1975, § 6-11-23. Section 6-11-23 sets forth a procedure whereby a party, after a trial, is entitled to a hearing for post-verdict review of a punitive damages award and that section dispenses with any presumption of correctness in favor of such an award by the trier of fact.
Armstrong filed a motion requesting that the trial court declare § 6-11-23 unconstitutional. After considering this motion and holding a hearing pursuant to § 6-11-23, the trial court upheld the jury's verdict as to compensatory damages but eliminated the punitive damages award. Armstrong appeals, contending that §§ 6-11-23 and -24 violate article I, §§ 11 (right of trial by jury) and 13 (right through due process to remedy for injury) of the Alabama Constitution, as well as other Alabama and United States constitutional provisions.
In portions of §§ 6-11-23 and -24, the legislature has attempted to control some of the most inherently judicial functions exercised by the courts: a trial court's determination of how much deference to give to a jury verdict, the similar question of an appellate court's deference to a factfinder, and an appellate court's scope of review of a trial court's judgment. In previous instances of such legislative intrusion into the core of the judicial function, the courts have declared the attempt a violation of the constitutional mandate of separation of the powers of government. This, in our opinion, is the central question of this case.
The portions of § 6-11-23 to which we refer read as follows:
Section 6-11-24 reads in its entirety:
Section 42 of the Alabama Constitution of 1901 reads:
Section 43 reads:
The appellant has not raised these sections of the Constitution as grounds for overturning the statutes. Normally, a court will not hold a statute unconstitutional except on a basis specifically argued by a party and necessarily presented in the case. If "no considerations of public policy or morals are involved[, a] party may ... waive a rule of law, or statute, or even a constitutional provision." Alabama Terminix Co. v. Howell, 276 Ala. 59, 62, 158 So. 2d 915 (1963). This case presents a unique situation, however, because, if we were to reject the constitutional arguments raised by the appellant, we would presumably be required by the statutes to "independently" review the verdict and judgment with "no presumption of correctness" as to either the judgment of the trial court or the verdict of the jury, which in this case was "the trier of the fact." If the portions of these sections that we have quoted above violate the principle of separation of powers, that violation affirmatively intrudes into the judicial process even though §§ 42 and 43 of the Constitution have not been argued. Therefore, we must consider these questions of deference to the trier of fact and to the trial court.
In 1915, the legislature passed two acts with provisions strikingly similar to the ones at issue. Acts 1915, No. 656, p. 722, amended § 2846 of the Code of 1907.[1] After providing for the right to appeal from the grant or refusal of a motion for new trial and prescribing the procedure for such an appeal, the act concluded: "And no presumption in favor of the correctness of the judgment appealed from, shall be indulged by the appellate court." Similarly, Acts 1915, No. 722, p. 824, amended § 5359 of the Code of 1907. The act required a party to demand a jury trial in order to receive one, and then made the following provision:
The "no presumption of correctness" portion of these two statutes was soon held inoperative on the ground that, if given effect, the provisions would violate the principle of separation of powers. Regarding Act No. 722, the Court said that the provision denying any presumption of correctness "can only apply where the opportunities of this court to consider the evidence is the same as the trial court, that is, when the evidence was taken by deposition." Hackett v. Cash, 196 Ala. 403, 405, 72 So. 52, 53 (1916). The Court continued:
(Emphasis added.)
This construction of Act No. 722 was followed in Finney v. Studebaker Corp. of America, 196 Ala. 422, 72 So. 54 (1916). In Hatfield v. Riley, 199 Ala. 388, 74 So. 380 (1916), a similar holding was entered regarding the attempt of Act No. 656 to dispense with the presumption in favor of the trial court's ruling on a motion for new trial. In that case, the trial court had denied the defendant's motion for new trial, and this Court said:
199 Ala. at 390, 74 So. at 380 (emphasis added).
In Broadway v. State, 257 Ala. 414, 60 So. 2d 701 (1952), the Court reaffirmed these principles, striking down a statute that required a trial court to grant a mistrial when a prosecutor commented on a defendant's failure to testify. This Court described the effect of the statute:
257 Ala. at 415-16, 60 So. 2d at 702. The Court observed that "the construction contended for would deprive both the trial court and this Court of exercising any judgment whatsoever in respect to the matter involved." 257 Ala. at 417, 60 So. 2d at 703.
The Court in Broadway gave the following excellent discussion of how the statute at issue violated the principle of separation of powers:
257 Ala. at 417-18, 60 So. 2d at 704-05.
Of course, the statute at issue here does not purport to take away all judicial discretion; in fact, it could be said to give the courts more discretion than they have hitherto exercised. However, its attempt to remove all presumption of correctness from a jury verdict and from a trial court's judgment would, if allowed, work a fundamental change in the manner in which common law courts have always exercised their judicial power and discretion.
The infringement on judicial discretion that would be caused by these Code provisions can best be shown by an examination of this Court's jurisprudence regarding motions for new trial, beginning with Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1891), and continuing through Jawad v. Granade, 497 So. 2d 471 (Ala.1986), even to the present day. The various Justices on the Court have, on many occasions during that 100-year period, conscientiously weighed the competing principles involved in review of rulings granting motions for new trial, and have, on even more occasions, performed their judicial duties in applying those principles to review of particular records and arguments in cases before the Court. We can scarcely think of any function that strikes closer to the heart of the judicial power.
Prior to 1891, a trial court's decision to grant or deny a motion for a new trial was not reviewable on appeal. "The granting, or the refusal of a new trial addresses itself to the discretion of the court trying the cause, and an appellate court will not inquire whether it was rightly refused, or the reasons which induced the decision were well founded." Spence v. Tuggle, 10 Ala. 538, 543-44 (1846); Barr v. White, 2 Port. 342 (Ala.1835); see Hubbard Bros. Constr. Co. v. C.F. Halstead Contractor, Inc., 294 Ala. 688, 693, 321 So. 2d 169, 174 (1975) (Jones, J., dissenting).
Acts 1890-91, p. 779, granted such a right of review by appeal.[2] In Cobb v. *419 Malone, 92 Ala. 630, 9 So. 738 (1891), the Court first applied that act in reviewing a denial of a motion for a new trial. Because the Court's initial consideration of its power and its scope of review in such an instance is so well reasoned and so germane to this case, we reproduce the pertinent portions of that opinion:
92 Ala. at 631-36, 9 So. at 738-40.
All of the above opinion has been unswervingly accepted as the law of this State except for the second sentence from the end of the quotation. That one sentence, regarding the review of orders granting new trials, caused the appellate courts of this state great difficulty for 95 years until it was expressly disapproved of in Jawad v. Granade, 497 So. 2d 471 (Ala. 1986). See, e.g., Hubbard Bros. Constr. Co., supra; Adams v. Lanier, 283 Ala. 321, 216 So. 2d 713 (1968); W.M. Templeton & Son v. David, 233 Ala. 616, 173 So. 231 (1937); McEntyre v. First National Bank of Headland, 27 Ala.App. 311, 171 So. 913 (1937). In Jawad the Court expressly overruled 18 cases that had reiterated the Cobb standard that an order granting a new trial would not be overturned unless the evidence plainly and palpably supported the verdict, and substituted the following test:
497 So. 2d at 477.
The point here is not to revisit the controversy that Jawad settled. The point is that few questions try the appellate judicial decision-making power more sorely than the question, in the context of reviewing an order granting a new trial, of how to balance the constitutionally required deference to a jury's fact-finding against the principle, inherent in our common-law and constitutional system of trial and appellate courts, that an appellate court is extremely reluctant to overturn a trial court's ruling on a fact-based question.
Similarly, a trial court, in its initial consideration of the matter, is directed by the Constitution, the common law, and judicial experience to give great weight and deference to a jury's verdict. Thus, the legislature, in telling the constitutionally created and constitutionally empowered trial and appellate courts that they are not to give any presumption of correctness to a jury's verdict, contradicts the very essence of a judge's power, that of using his or her sound discretion to determine whether the evidence is so overwhelmingly against the jury's verdict as to overcome the presumption of correctness, or whether, for example, the constitutional right to trial by jury must be counterbalanced by the constitutional right to due process of law. Furthermore, *421 to the extent that "trier of the fact" in § 6-11-23(a) refers to a trial court sitting without a jury, the legislature has similarly intruded upon the appellate court's function, which inherently includes observing a certain deference based upon the trial court's ability to observe the witnesses and other such factors, as set out in the authorities discussed above.
For the foregoing reasons, we conclude that § 6-11-23(a) and § 6-11-24(a) violate §§ 42 and 43 of the Constitution of 1901. The parenthetical expression in the last sentence of § 6-11-23(b) is likewise unconstitutional and must be stricken.
Section 6-11-24(b) and the last sentence of § 6-11-23(b) direct the courts to "independently reassess" punitive damages verdicts and judgments. If these provisions are construed as requiring judges to exercise their functions free from improper influences, they are harmless, although superfluous, because they only reiterate what is already required. If they were given the construction that the trial court is directed to act independently of the jury and that the appellate court is directed to act independently of the findings of the trier of fact and independently of the trial court's judgment, they would be subject to the same infirmity as the attempted abolition of presumptions of correctness. Rather than strike those provisions under the latter interpretation, however, we hold that they are to be given the former interpretation and applied accordingly.
The first two sentences of § 6-11-23(b), not quoted above, read as follows:
Those two sentences are largely duplicative of procedures approved by this Court in Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989). Therefore, they merely supplement procedures already in place and are not subject to constitutional attack.
In summary, we hold that § 6-11-23(a), § 6-11-24(a), and the parenthetical phrase in the last sentence of § 6-11-23(b) are unconstitutional. Section 6-11-24(b) and the remaining portion of § 6-11-23(b) are constitutional as construed herein. The judgment is reversed and the cause is remanded for the trial court to reconsider the verdict in light of the appropriate presumption of correctness of the jury verdict and in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); Green Oil Co., supra; and succeeding cases.
REVERSED AND REMANDED.
ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
KENNEDY, J., files a specially concurring opinion, in which SHORES and ADAMS, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
KENNEDY, Justice (concurring specially).
I concur in both the rationale and the result of the majority opinion. I write specially, because I would also hold that § 6-11-23(a), -24(a), and the portion of the last sentence of -23(b) that relates to the destruction of the presumption of correctness violate Art. I, § 11, of the Alabama Constitution.
Article I, § 11, provides in its entirety "That the right of trial by jury shall remain inviolate." Section 11's protection of the right of trial by jury applies to those cases *422 in which the right of trial by jury existed at common law or in which a jury trial was held at the time of the adoption of the Constitution. Ex parte Laflore, 445 So. 2d 932, 934 (Ala.1983); W & H Machine & Tool Co. v. National Distillers & Chemical Corp., 291 Ala. 517, 283 So. 2d 173, 175-76 (1973). At common law and at the time of the adoption of the Constitution, a fraud action carried a right of trial by jury. See, e.g., Ball v. Farley, 81 Ala. 288, 1 So. 253 (1887); Jordan & Sons v. Pickett, 78 Ala. 331 (1884); Baker v. Trotter, 73 Ala. 277 (1882); Einstein, Hirsch & Co. v. Marshall & Conley, 58 Ala. 153 (1887); Foster v. Kennedy's Administrator, 38 Ala. 359 (1862); M. Bigelow, The Law of Fraud (1877); and M. Bigelow, Treatise on Law of Fraud on its Civil Side (1888). Accordingly, Armstrong's action is protected by § 11.
These cited provisions violate § 11 on two major grounds: (1) they impermissibly permit the trial court and an appellate court to set aside a verdict of the trier of fact without regard to the propriety of that verdict; and (2) they destroy the presumption of correctness that attends a verdict of the finder of fact. This Court stated in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986):
493 So. 2d at 1378.
Hammond was a unanimous decision of this Court addressing, among other issues, remittitur. This Court held in City Bank of Alabama v. Eskridge, 521 So. 2d 931, 932 (Ala.1988):
These holdings reiterate that the right of trial by jury is a fundamental, constitutionally guaranteed right; that the proper enforcement of that right through the judicial system requires that litigants abide by the verdict, unless that verdict is flawed, thereby losing its constitutional protection; and that, accordingly, those who have rights protected by § 11 have the constitutional right to rely on the verdict, unless it is flawed.
The offending provisions do not require a finding that a verdict is flawed as a prerequisite for authorizing a court to set it aside. Instead, they simply authorize courts to disregard the verdict and to reassess the award of damages regardless of the propriety of the verdict rendered in the case. Accordingly, I would hold that these provisions violate the right of trial by jury guaranteed by § 11 of the Alabama Constitution.
I am of the further opinion that these provisions violate § 11 by destroying the presumption of correctness that attends a verdict. Consider that Hammond and Eskridge both held that (1) the right of trial by jury is a fundamental, constitutionally guaranteed right and (2) that, therefore, a verdict will not be set aside unless it is flawed and thereby caused to lose its constitutional protection. Those holdings necessarily imply that the right of trial by jury includes the presumption that a verdict is correct.
Although Hammond and Eskridge's holdings necessarily imply that proper enforcement through the court system of the right of trial by jury requires that the verdict be presumed correct, I would so hold even if those prior holdings had not so implied. Destruction of the presumption of correctness that attends the verdict degrades the verdict to nothing more than a preliminary advisory decision of ephemeral weight and substance, meaningful and significant only insofar as it comports with the decision of the trial court, which, with no necessary regard for the verdict, determines what it will award. The constitutional right of trial by jury provided by § 11 is a right to have the verdict accorded efficacy and binding effect, unless it is flawed. To destroy the presumption of correctness *423 that attends the verdict and thus to allow the trial court and appellate courts to rule without regard to the verdict violates the right of trial by jury at its most fundamental level.
I emphasize that § 6-11-24(b) and the portion of § 6-11-23(b) that we hold constitutional simply codify existing practices used in postjudgment review of verdicts. See Hammond; Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989). Our existing procedures for postjudgment review of verdicts have been upheld by the United States Supreme Court. Pacific Mutual Life Insurance Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
Finally, I note that the discussion in the majority opinion and in this concurrence focuses on the constitutionality of the provisions in relation to their effect on the separation of powers and their effect on the right of trial by jury, not on constitutional entitlements to punitive damages. Neither the majority opinion nor this concurrence addresses the question of a constitutional entitlement to punitive damages.
SHORES and ADAMS, JJ., concur.
MADDOX, Justice (dissenting).
The Court today strikes down a portion of a legislative act that was a part of the so-called "Tort Reform" package and holds that a portion of the act regulating the award of punitive damages is violative of the separation of powers section of our state constitution, even though that theory was neither raised nor argued in the trial court or in this Court.
In striking down a portion of the legislative act and remanding the case to the trial court with directions to "reconsider the verdict in light of the appropriate presumption of correctness of the jury verdict and in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); Green Oil Co., [v. Hornsby, 539 So. 2d 218 (Ala. 1989)]; and succeeding cases," this Court shows that the Hammond and Green Oil Co. procedures do not provide for an independent review of punitive damages awards, and further shows that the procedure the Supreme Court of the United States has just found "ensures meaningful and adequate review by the trial court whenever a jury has fixed the punitive damages"[3] is neither meaningful nor adequate to protect a defendant's "due process" rights.
What is especially distressing is the fact that a legislative act is declared unconstitutional on the ground that the legislature has violated the separation of powers provision of our state constitution, a ground that was neither presented nor argued in the trial court or in this Court.[4] In doing so, the Court fails to follow settled principles of statutory construction ordinarily applied when determining the constitutionality of acts of the legislature, and in sending the case back to the trial court with directions to accord the jury verdict a presumption of correctness, and to reassess the jury award, when the trial court has already done that, the Court completely destroys the procedure this Court heralds as protective of a defendant's "due process" rights and proves that the Supreme Court of the United States was mistaken when it called the procedure a "meaningful and adequate review by the trial court whenever a jury has fixed the punitive damages." Pacific Mutual Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
*424 I cannot begin my dissent in this case any better than Mr. Justice Beatty did in his dissent in Fireman's Fund Am. Ins. Co. v. Coleman, 394 So. 2d 334 (Ala.1980), when he explained why he had incorrectly joined the majority of this Court in the celebrated case of Grantham v. Denke, 359 So. 2d 785 (Ala.1978), a decision Justice Beatty, in his dissent in Fireman's Fund, called a "judicial tar baby." 394 So. 2d at 355. Justice Beatty said:
394 So. 2d at 355. (Emphasis added.)
Summing up the reasons for changing his opinion about Grantham, he opined: "One firmly ingrained principle of jurisprudence which seems to have been overlooked in Grantham and its offspring is the presumption favoring constitutionality." 394 So. 2d at 357. He further said that "[t]he continuing necessity for explaining [Grantham] and the explanations themselves have convinced me that the time has come for this Court to recognize and candidly admit that it erred in Grantham." 394 So. 2d 355.
The opinion in this case, like the opinion in Grantham, is a sweeping decision, and it, too, may someday acquire the same appellation Justice Beatty gave to Grantham, because of its immense scope with regard to legislative power in dealing with the award of punitive damages.
The decision is erroneous in at least the following particulars: (1) It misconstrues the separation of powers provision of our state constitution; (2) it overlooks, or fails to apply, the settled principle of law regarding the presumption of validity that courts should accord to legislative acts; (3) it fails to recognize that the legislature has the power to regulate the award of punitive damages in this State, and that no person has a constitutional right to recover punitive damages; (4) it fails to recognize that the legislature can, by the adoption of an act of statewide application, set out the procedures to be followed in the trial courts of this State, even though this Court is granted the power to make rules of procedure by Amendment 328, Section 6.11, of the Constitution of Alabama, 1901; and (5) it fails to uphold the determination by the trial court, which applied standards of review this Court has found constitutionally permissible.
Justice Beatty, in his dissent in Fireman's Fund, expressed how courts should approach the interpretation of legislative power:
394 So. 2d at 357.
Did the legislature act arbitrarily or capriciously in adopting the two provisions of law that the Court has today declared unconstitutional? The answer to that question is obviously in the negative. The two Code sections the Court today declares unconstitutional were contained in House Bill 27, which was co-sponsored by 63 of Alabama's 105 Representatives.[5] House Bill 27 was a part of the so-called "Tort Reform" package, which received much public attention and which caused spirited and sometimes heated debate by partisans on one side or the other. The bill, when adopted by the legislature and approved by the Governor on June 11, 1987, became Act No. 87-185, and was intended to deal with the assessment and recovery of punitive damages in civil cases, and was indisputably intended to protect civil defendants against excessive punitive damages awards and to accord to civil defendants the guarantees of "due process" contained in both our State and Federal Constitutions.
Why does the Court declare the subject portions of Act 87-185 unconstitutional? The per curiam opinion states that it is because Act 87-185 specifies that it eliminates the presumption of correctness of jury verdicts[6] awarding punitive damages, and because, in eliminating this presumption, the legislature was exercising a power granted to the judiciary. I can find no provision of the Alabama Constitution that states that a party has a constitutional right to recover punitive damages and to have a jury's determination of the amount of such damages presumed correct. Although the Supreme Court, in Haslip, did not find the common law method of assessing punitive damages to be constitutionally infirm "per se," that Court did, in footnote 9, mention that the Alabama legislature had placed a $250,000 cap on punitive damages awards, and the Court cited favorably an Ohio statute that placed a cap on such awards and placed in the trial judge, not the jury, the power to make the awards.[7]
It is settled beyond question that a party does not have a constitutional right to recover punitive damages, but even assuming that a person did have a right to recover such damages, it should be noted that the sections declared unconstitutional in this case do not take away a plaintiff's right to recover punitive damages. They provide only that the amount of those damages, as determined by the trier of fact, is not presumed *426 to be correct, but must be reviewed, as was the case here, by the trial judge, taking into consideration several factors.[8]
The procedure adopted by this Court in Hammond and Green Oil Co. to review jury awards of punitive damages has been commended as a procedure designed to ensure that a defendant's constitutional right to due process of law will be protected. A majority of this Court said the following in Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537, 543 (Ala.1989), affirmed, Pacific Mutual Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991):
The Court then said:
553 So. 2d at 543.
The "concern for the preservation and protection of a defendant's constitutional right to due process of law" that this Court expressed in Haslip, 553 So. 2d at 543, seems hollow in view of today's holding. Similarly, the statement by the Supreme Court of the United States in Haslip that "[t]he Hammond test ensures meaningful and adequate review by the trial court whenever a jury has fixed the punitive damages," ___ U.S. at ___, 111 S. Ct. at 1044, is meaningless if the "meaningful and adequate review by the trial court" (emphasis added) can be overturned by a stroke of an appellate court's pen, as has happened here. If the verdict of the jury is presumed to be correct, how "meaningful and adequate" can the review by the trial court and this Court be? It would not be meaningful and adequate unless the reviewing court could conduct an independent review.
From my reading of the decision of the Supreme Court of the United States in Haslip, I find it bottomed to a great degree on the independent review by the trial court and by this Court. In fact, Haslip's counsel argued in the Supreme Court that Alabama's procedures provided an "independent review."[9] This decision, which overturns a judgment by the trial court in exercising that independent review, should be proof positive that this Court does not consider that the Hammond and Green Oil Co. standards authorize the type of "independent review" Haslip's counsel described to the United States Supreme Court, and that the procedure that Court called "meaningful and adequate," ___ U.S. at ___, 111 S. Ct. at 1035, is neither meaningful nor adequate.
Not only does this decision show that the Hammond and Green Oil Co. standards *427 are inadequate, as I stated in a dissent in Haslip, 553 So. 2d at 544, but the principles of law contained in this decision are a harbinger of what is to follow. If the legislature cannot say that a jury's verdict is not presumed to be correct, can it say that a verdict cannot exceed $250,000? If the legislature cannot say a jury's verdict is not presumed to be correct, how can it regulate the award of such damages in any particular? Is this Court the only branch of government that can regulate the award of punitive damages? The decision raises each of these questions, and we can be sure that they will be presented in future cases.
The least that the decision shows is that the procedures this Court adopted in Hammond and Green Oil Co., and which to a large degree are the basis for the Supreme Court's affirmance of Haslip, will not protect the constitutional rights of defendants to "due process" of law, because the trial judge in this case, following the very procedures that this Court said were sufficient to protect a defendant's due process rights, and the same procedure the Supreme Court of the United States in Haslip stated "ensures meaningful and adequate review," found, under the facts of this case, that an award of any punitive damages was inappropriate.
The McAdory rule states that a court must sustain an act unless it is "clear beyond reasonable doubt that it is violative of fundamental law." Alabama Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 (1944). If the McAdory rule were applied in this case, could it be found "clear beyond reasonable doubt" that the legislature could not pass legislation to address what it considers to be the same "concern" alluded to by this Court in Haslip of the right of defendants to "due process" of law? Obviously not.
Based on all the foregoing reasons, I am compelled to dissent.
HOUSTON, Justice (dissenting).
At the oral argument before the United States Supreme Court on the writ of certiorari to review the judgment of this Court affirming an award of punitive damages in the case of Pacific Mutual Life Insurance Co. v. Haslip, 553 So. 2d 537 (Ala.1989), in which the constitutionality of the method of awarding punitive damages was challenged, Bruce J. Ennis, Jr., Esq., Washington, D.C., on behalf of Ms. Haslip, made one of the most impressive arguments that I have ever read. That argument concluded with the following words of wisdom:[10]
I think that the case now before us is likewise "a paradigmatic case for judicial restraint, not judicial activism."
I am almost persuaded by the per curiam majority opinion, for I am a strong advocate of the separation of powers doctrine, as each Justice must be after reading the plain, unambiguous words of § 43 of the Alabama Constitution 1901. However, to hold portions of § 6-11-23 unconstitutional as violative of this constitutional mandate, the majority opinion requires that we declare that this case presents such a "unique situation" that we must deviate from our judicially proscribed standard of review of not holding a statute unconstitutional except on a basis specifically argued and presented in the case after the attorney general, the chief legal officer of the state, has been given an opportunity to address the particular constitutional challenge to the duly enacted law. There were only two constitutional challenges to Ala.Code 1975, § 6-11-23, filed by Armstrong in the trial courta challenge under Article I, § 11 (right of trial by jury) and a challenge *428 under § 13 (right through due process to remedy for injury). These were the challenges that the trial court ruled upon. These were the challenges presented to the attorney general of Alabama for his consideration. These were the challenges argued in briefs here.
It is judicial activism at its worse to reverse a trial court's judgment on an issue on which that court had no opportunity to rule, and I refuse to do it.
It is also judicial activism at its worse to declare a statute unconstitutional as violative of a constitutional provision when the attorney general of this State has not been notified of the nature of the constitutional attack, and I refuse to do it.
Having said this, I look to the Constitution to see if the majority's holding could be wrong or if the law is so settled that awaiting a proper constitutional challenge would be an exercise in futility. Without deciding, for we should not decide this issue in this case, but merely to see if any argument could be made in opposition to the majority's holding, I note the following:
The powers of the government of the State of Alabama were divided into three distinct departments by the Alabama Constitution 1901, Article III, § 42. In § 43, the Constitution prohibits the legislative department from exercising "the executive and judicial powers, or either of them ... except in the instances in this Constitution hereinafter expressly directed or permitted."
As I go through the constitutional provisions relating to the legislative, executive, and judicial powers, I will review the right of any of these three departments of government to impose judicial standards of review and will review any prohibitions against a department's imposing such standards, and, because the standards of review relate only to punitive damages, will review the power to impose, or the prohibition against imposing, punitive damages.
If the judicial review of, or the imposition of, punitive damages is an executive or judicial power, then § 43 prohibits the legislature from exercising that power; and unless the legislature was "expressly directed or permitted" to exercise that power by another provision of the Constitution, it is prohibited from interfering with a judicial standard of review or the imposition of punitive damages.
There is nothing in the Constitution that gives the executive department the power to promulgate judicial standards of review. Article V, § 124, of the Constitution gave the Governor, who by Article V, § 113, is given "[t]he supreme executive power of this state," the power to grant "remission of fines and forfeitures." "Remission," although usually defined as "[a] relese or extinguishment of a debt," Black's Law Dictionary 1294 (6th ed. 1990), is also defined as the "act of remitting." Id. The verb "remit" is defined as "to cancel (a penalty or punishment). To pardon; forgive... to diminish; abate." American Heritage Dictionary of the English Language, 1100 (1969). A "fine" can consist of a pecuniary penalty recoverable in a civil action as well as a pecuniary penalty imposed upon a person convicted of a crime. Black's Law Dictionary 632 (6th ed. 1990); but, see 36 Am.Jur.2d 613, Forfeitures and Penalties § 4 (1968) (although the words "fine" and "penalty" are sometimes used interchangeably to denote the same thing, a "fine" is generally a sum of money exacted of a person guilty of a crime or contempt, as a pecuniary punishment). In any event, Amendment No. 38 of the Constitution took the power to remit fines and forfeitures from the executive department and gave it to the legislative department "The legislature shall have power to provide for and to regulate the ... remission of fines and forfeitures...." See, Swift v. Esdale, 293 Ala. 520, 523, 306 So. 2d 268, 271 (1975). It appears to me that there is nothing in the Constitution that explicitly makes the imposition of punitive damages in Alabama a power of the executive department.
By Amendment No. 328 of the Constitution (establishing the judicial department), the judicial power of the state is vested exclusively in a unified judicial system, "[e]xcept as otherwise provided by this *429 Constitution." Section 6.11 of Amendment No. 328 provides:
(Emphasis supplied.)
The words "[t]hese rules" in the last sentence of this section have been interpreted by this Court as giving the legislature the power to change any rule adopted by this Court for the administration of all courts and governing practice and procedure if the legislature does so by a general act of statewide application, Cowin Equipment Co. v. Robison Mining Co., 342 So. 2d 910 (Ala.1977); Green v. Austin, 425 So. 2d 411 (Ala.1982), thereby resolving the conflict in the opinions predating the ratification of Amendment No. 328 as to whether the legislature had such power.[11] For this reason, I cannot deviate from our standards of review and hold the act violative of § 43 of the Constitution. It appears to me that § 6.11 of Amendment No. 328 of the Constitution took away from the judicial department many traditional powers of the judicial department. What is the reach of the phrase "these rules"? Does that phrase apply to standards of review? Is a standard of review a rule of practice and procedure, which can be changed by a general law? In reference to the presumption affecting review, 5 Am.Jur.2d 151 Appeal and Error § 704 (1962) states: "The applicability of the presumption may be excluded by statute," citing Tony v. State, 144 Ala. 87, 40 So. 388 (1906). This certainly causes me to think that the majority's holding could be wrong.
It appears to me that there is nothing in Amendment No. 328 of the Constitution that explicitly makes the establishment of judicial standards of review of, or the imposition of, or the method of ascertaining the amount of, punitive damages awarded in Alabama a power of the judicial department.
The legislative department of the government of the State of Alabama is expressly prohibited from enacting certain legislation. However, the legislature is not expressly prohibited from removing a presumption of correctness from the amount of punitive damages awarded by the trier of fact, as it is prohibited from authorizing lotteries (§ 65); from granting or authorizing counties or municipalities to grant extra compensation, fee, or allowance to any public officer after service has been rendered or contract made (§ 68); from taxing property of the state, counties, or municipalities (§ 91); from impairing the obligation of contracts, from reviving any right or remedy after it has been barred by lapse of time, or from taking away a cause of action or destroying an existing defense after the cause of action has been commenced (§ 95); from paying the salary of a deceased officer beyond the date of his death (§ 97); from retiring any officer on pay or part pay (§ 98); from donating lands under the control of the state to private corporations or individuals (§ 99); from remitting, releasing, postponing, or diminishing any obligation or liability of any person or corporation held or owned by the state (§ 100); from suspending or exempting *430 from the general law any individual or private corporation (§ 108).
Article IV, § 104, of the Constitution (dealing with special, private, and local laws), provides in pertinent part: "The legislature shall pass general laws for the cases enumerated in this section...." (Included in the enumerated cases are: "[e]xempting any individual, private corporation, or association from the operation of any general law"; "[e]xempting any person from jury, road, or other civil duty"; and "[r]emitting fines, penalties, or forfeitures.")
Under Article IV of the Constitution, "general laws" are laws that in their terms and effect apply "either to the whole state, or to one or more municipalities of the state less than the whole in a class." Amendment No. 397, amending § 110 of the Constitution. There is no contention that what is now § 6-11-23 was not enacted as a general law.
"Exempt" is defined as "[t]o release, discharge, waive, relieve from liability." Black's Law Dictionary 571 (6th ed.1990). Section 104 allows the legislature to relieve any individual, private corporation, or association from the operation of any law that applied to the whole state at the time the Constitution was ratified. The provisions of § 104 did not appear in the Alabama Constitution of 1875.
The term "law" in our jurisprudence includes the rules of court decisions as well as legislative action. Warren v. United States, 340 U.S. 523, 526, 71 S. Ct. 432, 434, 95 L. Ed. 503 (1950). Law is the body of principles, standards, and rules that the courts of a particular state apply in the resolution of controversies brought before them. Restatement of Conflict of Laws § 3 (1934).
It appears to me that the legislature has the explicit constitutional power to change the body of principles, standards, and rules that the courts of this state apply to the whole state in the decisions or controversies brought before them, by virtue of Article IV, § 104(9) ("[e]xempting any individual, private corporation, or association from the operation of any general law"), by an act that applies to the whole state.
"Civil" is defined as "[o]f or relating to the state or its citizenry. Relating to private rights and remedies sought by civil actions as contrasted with criminal proceedings." (Emphasis supplied.) Black's Law Dictionary 244 (6th ed. 1990). "Duty" is defined as "[a] human action which is exactly conformable to the laws which require us to obey them. Legal or moral obligation.... Obligatory conduct or service. Mandatory obligation to perform." Black's Law Dictionary 505 (6th ed. 1990).
Therefore, § 104(26) explicitly empowers the legislature to relieve a person from civil liability for the violation of any legal or moral obligation owed to another person, if this is done by an act that applies to the whole state.
"Remit" is defined as "[t]o give up; to pardon or forgive; to annul; to relinquish; as to remit a fine, sentence, or punishment." (Emphasis in original.) Black's Law Dictionary 1294 (6th ed. 1990).
"Penalty" is defined as "[a]n elastic term with many different shades of meaning; it involves idea of punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally confined to pecuniary punishment." Black's Law Dictionary 1133 (6th ed. 1990). For a distinction between "fine," "penalty," and "forfeiture," see 36 Am.Jur.2d Forfeitures and Penalties §§ 3-5, at 613-14.
"Punitive" is defined as "[r]elating to punishment; having the character of punishment or penalty; inflicting punishment or a penalty." Black's Law Dictionary 1234 (6th ed. 1990). In Alabama the purpose for awarding punitive damages is to vindicate and protect a public right by punishing wrongdoers and deterring them and others from committing similar wrongs in the future. Dees v. Gilley, 339 So. 2d 1000 (Ala.1976); Boise Cascade Corp. v. Lee, 291 Ala. 666, 286 So. 2d 836 (1973).
Therefore, Article IV, § 104(28), explicitly empowers the legislature to give up or to relinquish any pecuniary civil punishment by an act that applies to the whole *431 state. This Court has held that punitive damages may be forbidden or may be affirmatively withheld by legislative enactment, without specific reference to this section of the Constitution. Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775 (1910); Comer v. Age-Herald Publishing Co., 151 Ala. 613, 44 So. 673, 13 L.R.A. (N.S.) 525 (1907).
It appears to me that the legislative department has the explicit power to remit penalties if it does so by a law that applies to the whole state. Article IV, § 104(28).
The legislature has the explicit power to exempt from the operation of any general law, to exempt from any civil duty, and to remit fines, penalties, and forfeitures by a general law that applies to the whole state, as § 6-11-23 does (see, Article IV, § 104(9), (26), (28)). These explicit powers may be broad enough to cover the removal of a presumption of correctness from the amount of punitive damages awarded by the trier of fact.
It appears to me that the separation of powers doctrine does not implicitly deprive the legislature of this power. Therefore, the majority's holding would be wrong. Clearly, it is based on cases involving legislative power, or a lack thereof, that predate § 6.11 of Amendment 328. I do not believe that it would be an exercise in futility for this Court to await a proper § 43 challenge to § 6-11-23 or § 6-11-24.
Justice Kennedy's special concurrence relates to a challenge under Article I, § 11, of the Constitution, a challenge that is properly before us. His special concurrence is premised upon this constitutional attack's having nothing to do with entitlement to punitive damages. Perhaps if I could accept that premise, I could agree with his special concurrence, for I firmly believe that the Alabama Constitution of 1901 restricts the legislative department and the judicial department of state government from intruding into the jury's factfinding function in civil actions, See, Tatum v. Schering Corp., 523 So. 2d 1042, 1048-49 (Ala.1988) (Houston, J., dissenting). I strongly believe in the constitutionally guaranteed right to trial by jury, and my belief that the jury has the ability to resolve disputes fairly and well was enhanced by my serving on a civil jury while a Justice on this Court. However, to me it seems that § 6-11-23 applies to nothing but punitive damages. The title of the Act (Act No. 87-185, Acts of Alabama 1987, Vol. 1, pp. 251-54) begins with the phrase "Relating to punitive damages in civil actions...." The phrase "punitive damages" appears 11 times in the title of the Act. Article 2 of Chapter 11 of Title 6 of Ala.Code 1975, in which § 6-11-23(a) appears, is styled "Punitive Damages"; but more importantly, the "no presumption of correctness" applies to what? To the amount of punitive damages awarded by the trier of fact[12] and to that only!
If I am to apply legal reasoning, which I should and must as a Justice on the Alabama Supreme Court, I must begin with the premise that § 6-11-23 applies to punitive damages. What else does it apply to? Nothing! Punitive damages only. Then, I must examine the source documentthe Alabama Constitution of 1901to see if there is an individual right that is a protected right under the Constitution ("individual right" or "individual rights") to receive the amount of punitive damages awarded by a jury or an individual right to have a jury determine the amount of punitive damages to be awarded. This can be done only by examining the Constitution in conjunction with the nature and history of punitive damages.
There is no reference in the Alabama Constitution of 1901 to punitive damages, nor does the Constitution explicitly provide either how punitive damages can be assessed or whether the amount of punitive damages can be restricted. Therefore, there is no individual right to recover punitive damages or to have a jury determine the amount of punitive damages that is afforded explicit protection under the Alabama *432 Constitution of 1901 from any of the three departments of governmentlegislative, executive, or judicial.
All Alabamians have individual rights that are protected from the exercise of any governmental powers (legislative, executive, or judicial) in ways inconsistent with Alabamians' conceptions of the inalienable rights of life, liberty, and the pursuit of happiness.[13] Neither the legislative, the executive, nor the judicial department of government can abolish these explicit individual rights, no matter how laudable the purpose for doing so may be or what societal quid pro quo may be given. No department of government can abolish jury trials in civil or criminal cases, in which an individual was entitled to a jury at common law, or close the civil courts, even to spend the money that is spent on jurors or on the operation of the civil courts to properly fund an effective juvenile justice system, which is sorely needed within this State. There is an individual right to have a dispute resolved through the regular course of administration of law through courts of justice (Article I, § 13) and a right to a jury in certain cases (Article I, § 11), if demanded by one of the parties.
As previously noted, there is no individual right to receive the amount of punitive damages assessed by a jury or a court (if *433 the court acts as the trier of fact), or to have a jury determine the amount of punitive damages, without restriction or without limitation, that is afforded explicit protection under the Constitution from legislative, executive, or judicial action.
By the Acts of Congress creating a territorial government in Alabama and admitting her into the Union, the common law of England, as it prevailed before the American Revolution "as modified by our own institutions" from the Revolution until 1819, was extended over the whole of the geographical area of Alabama to the exclusion of the laws of Spain and France. Pollard v. Hagan, 44 U.S. (3 How.) 212, 229, 11 L. Ed. 565 (1845). The subsequent ratification of the Alabama Constitution of 1901 effected a "freezing" of the right to a jury trial in Alabama as that right existed at common law in 1901. Article I, § 11, Alabama Constitution of 1901, did not extend the right to a trial by jury to cases in which that right did not exist at the time of its ratification. Gilbreath v. Wallace, 292 Ala. 267, 269-70, 292 So. 2d 651 (1974).
Juries were allowed to assess punitive damages at common law, L. Schleuter and K. Redden, Punitive Damages, § 1.3, at 12 (2d ed. 1989), and such damages were awarded to the injured parties who brought suit. For example, in Rhodes v. Roberts, 1 Stew. 145, 146-47 (Ala.1827), in affirming a $1,500 judgment against the defendant under a trespass theory for shooting the plaintiff with a "steamboat gun," this Court held:
(Emphasis supplied.) However, even though juries were allowed, in proper cases, to assess punitive damages at common law, and even though such damages were awarded to the injured parties who brought suit, punitive damages at common law were assessed for the purpose of vindicating and protecting society's (i.e., the public's) right to be free from certain kinds of egregious tortious conduct, not for the purpose of providing a private compensatory remedy. See, e.g., Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 386 N.Y.S.2d 831, 353 N.E.2d 793 (1976), where the New York Court of Appeals, holding that an arbitrator had no authority to assess punitive damages for the breach of a publishing contract, stated, in pertinent part, as follows:
See, also, J.D. Calamari and J.M. Perillo, Contracts, § 14-31, at 564 (2d ed. 1977). This Court has also held that redress by private, punitive measures is not available to the citizens of this state. See Meighan v. Birmingham Terminal Co., 165 Ala. at 598-99, 51 So. at 777-78, where this Court stated:
(Emphasis supplied.) See, also, Comer v. Age-Herald Publishing Co., supra.
Therefore, there is no individual right to receive the amount of punitive damages assessed by a jury or a court (if the court acts as the trier of fact), or to have a jury determine the amount of punitive damages, without restriction or without limitation, that is afforded implicit protection under Article I, § 11, of the Alabama Constitution of 1901 ("[t]he right of trial by jury shall remain inviolate").
Section 11 of the Alabama Constitution froze the right of trial by jury as it existed at common law or under statutory law at the time of the adoption of the 1901 Constitution. Gilbreath v. Wallace, 292 Ala. at 269-70, 292 So. 2d at 652-53 (1974).
If this prohibited the Legislature from taking away the power of the jury to impose punishment or to deter, all criminal sentences imposed by trial courts, since at least 6:00 p.m. on May 16, 1977, for murder, manslaughter, rape, robbery, petty larceny, carrying concealed weapons, selling mortgaged property, and all fines for every offense for which the defendant was indicted, are unconstitutional. Alabama Code 1897, § 5415, provided:
At the time of the ratification of the Constitution of 1901, the power was expressly conferred on juries to impose the term of punishment for defendants found guilty of murder (Ala.Code 1897, § 4858), manslaughter (§ 4862), rape (§ 5444), robbery (§ 5479), petty larceny (§ 5050), carrying a concealed weapon (§ 4420), and selling mortgaged property (§ 4758). I have not exhaustively examined the Alabama Code of 1897 or the Acts of the Legislature enacted between the enactment of that Code and the ratification of the Constitution of 1901, to determine if there were other such offenses.
(Emphasis supplied.)
Acts of Alabama 1977, No. 607, § 1205, now Code of Alabama 1975, § 13A-5-2, confers upon the trial court the power to punish by imprisonment and fine. Brown v. State, 401 So. 2d 213 (Ala.Crim.App. 1981), cert. denied, 401 So. 2d 218 (Ala. 1981).
If a bill has been duly enacted by the Alabama Legislature in accordance with the Alabama Constitution of 1901, Article IV, and has been approved by the Governor in accordance with Article V, § 125, the State has acted. If the State has the right to allow the trial court to review, without a presumption of correctness, a jury's award of punitive damages, and if the State has done so, what gives the judiciary the power to interfere with that right, by judicial review? The concept of judicial review is based on Chief Justice Marshall's opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803), that it is "the province and duty of the judicial department to say what the law is"; that is a bedrock for the process of judicial review. American history, as a bedrock, also makes it clear that people instituted this government primarily to assure individual liberty. It was not established to allow some form of government to do what a king or a parliament, which had made itself the dernier judge in its dealing with the American colonies, had done or attempted to do. The Bill of Rights enumerated wide areas where individuals would be free simply because it was thought to be their natural righta birthright. This concept has been incorporated into all of the Alabama Constitutions as "Article I, Declaration of Rights." This is as it should be, for we *435 should think of individual liberty or rights first, and, second, we should think of the means of securing that liberty or those rights. Article III of the Alabama Constitution provides for the distribution of the powers of government; Article IV provides for the legislative department; Article VI provides for the judicial department (replaced and enacted in whole by Amendment 328, proclaimed ratified December 27, 1973); and Article VIII provides for suffrage and election. Alabama adopted individual liberty as one cornerstone and majority rule as the other cornerstone in its establishment of "`the wisest and happiest government that human wisdom can contrive.'"[14]
Therefore, in Alabama there are wide areas of life in which majorities are entitled to rule, if they wish, simply because they are majorities. The enactment and execution of most laws come within the ambit of majority rule, for a majority vote of the legislature, composed of senators and representatives elected by a majority vote in their respective districts, passed a bill and sent it to the Governor, elected by a majority vote of the citizens of this state, for his approval or veto; and the Governor has permitted this bill to become law. The majority rules.
However, there are some things that majorities must not do to minorities, some areas of life in which the individual is free of majority rule.
Judicial review of legislation that has been duly enacted by the legislature and approved by the Governor and that expresses the will of the majority, as best it can be expressed in a representative form of government, should be limited to whether the act intrudes into that area of life that the Constitution has reserved to the individual as being free from majority rule, i.e., whether it has intruded on individual rights. If it does, the judiciary must not be timid in declaring the act unconstitutional, even though to do so would go against the wishes of the present majority. Sylvia Snowiss, in Judicial Review and the Law of the Constitution, 221 (Yale University Press 1990), expresses this delicate balance better than I can:
I believe that there must be a judicial commitment to legal reasoning when testing the constitutionality of laws, just as there must be a judicial commitment to legal reasoning in cases not involving constitutional issues.
I keep a copy of the following quotation from Henry David Thoreau's Walden, p. 121 (Walter J. Black, Inc. 1942), on the wall of my office:
When I apply this test, which is but another way of defining what I consider to be the process of legal reasoning, I cannot hold that by the enactment of § 6-11-23 or § 6-11-24, the majority of Alabamians has deprived any Alabamian of an individual right. Therefore, in accordance with our representative democracy, the majority should rule. It is judicial activism at its worst, prohibited by § 43 of the Alabama Constitution of 1901, to thwart the will of the majority of Alabamians when no individual right protected by the Constitution is endangered.
Based on the foregoing, I cannot hold that any part of § 6-11-23 is unconstitutional. For the same reason, I could not hold that § 6-11-24 is unconstitutional if that section were properly before us.
STEAGALL, Justice (dissenting).
I would accord to the acts declared invalid by the majority the strong presumption of constitutionality contemplated by this *436 Court in Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 (1944). That case stated:
246 Ala. at 9, 18 So. 2d at 815. McAdory goes on to quote the following language of the United States Supreme Court: "`The cardinal principle of statutory construction is to save and not to destroy.'" 246 Ala. at 10, 18 So. 2d at 815, quoting National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937).
While I believe in the constitutional separation of powers, I do not feel that the per curiam opinion, in declaring Ala.Code 1975, §§ 6-11-23(a) and 6-11-24(a) and a portion of § 6-11-23(b), violative of §§ 42 and 43 of the Alabama Constitution of 1901, accords those sections the necessary presumption of constitutionality. I do not consider it "clear beyond reasonable doubt" that the legislature was without the power to enact these statutes; therefore, I respectfully dissent.
[1] This Code section was a successor of the act, discussed below, that originally gave appellate review of orders on motions for new trial.
[2] It might be thought that this discussion contradicts itself in acknowledging without question that the legislature has on various occasions passed statutes granting rights of appeal and in some respects regulating appeals, while insisting that the legislature cannot intrude upon the judicial function in the consideration of appeals. It has long been recognized, however, that the right of appeal is a statutorily created right, see the cases annotated at 2 Ala. Digest, "Appeal & Error," Key # 1, and that the legislature can regulate the procedure for an appeal "unless by doing so it prohibits the due and orderly processes by which that court functions, or prevents it from properly functioning." Ex parte Foshee, 246 Ala. 604, 607, 21 So. 2d 827, 829 (1945).
[3] Pacific Mutual Life Ins. Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991).
[4] Appellant, in his brief, lists the issues presented on appeal, as follows:
"A. Whether `de novo' review of punitive damages jury awards violates Article I Section 11 of the Alabama Constitution guaranteeing a right to trial by jury?
"B. Whether `de novo' review of punitive damages awards violates Article I Section 13 of the Alabama Constitution guaranteeing a remedy by due process of law and that right and justice be administered without sale, denial or delay?
"C. Whether `de novo' review of punitive damages jury awards violates the equal protection and due process provisions of the United States and Alabama Constitutions?"
[5] Those whose names appear on the printed Act, Act 87-185, Acts of Alabama, 1987, p. 251, are: Higginbotham, Clark (J), Carothers, Flowers, McMillan, Carter, Johnson (RG), Zoghby, Grouby, Richardson, Laird, Blakeney, Beasley, Hooper, White (L), Layson, Turnham, Harper, Wright, Hettinger, Adams, White (F), Beers, Burke, Butler, Willis, Hammett, Seibels, Breedlove, White (G), Curry, McKee, Headley, Gaston, Moon, Bugg, Venable, Harvey, Kvalheim, Knight, Turner, Penry, Reed, Freeman, Walker, Haynes, Gray, Ford, Petelos, Logan, Slaughter, Faulk, and Newman.
[6] The Act actually uses the term "trier of fact," which could include both a jury and a judge sitting without a jury.
[7] Mr. Justice Anthony Kennedy, in his special concurrence in Haslip, stated, "Were we sitting as state court judges, the size and recurring unpredictability of punitive damages awards might be a convincing argument to reconsider those rules or to urge a reexamination by the legislative authority." ___ U.S. at ___, 111 S. Ct. at 1056. It is clear that Mr. Justice Kennedy thought State legislatures had the power to regulate the awarding of punitive damages.
[8] In affirming the Haslip decision, the Supreme Court of the United States listed these factors in finding the Alabama procedure to comport with "due process" requirements: "The Alabama Supreme Court's post-verdict review ensures that punitive damages awards are not grossly out of proportion to the severity of the offense and have some understandable relationship to compensatory damages." It should be noted that the trial judge, in this case, found that the evidence at trial regarding the degree and nature of the defendant's conduct was not intentionally fraudulent, and the court considered the economic impact of the award on the defendant, the fact that the defendant was fully compensated for his loss, and that the defendant had attempted to settle the matter out of court, without success.
[9] In Haslip, in oral arguments before the Supreme Court of the United States, Haslip's counsel argued, in answering a question from a Justice, that "[t]he Hammond[-Green Oil Co.] standard of review which the Alabama Supreme Court has been adopting since 1986, expressly provides that jury verdicts will be independently reassessed by trial and appellate courts." (Emphasis added.)
[10] This paragraph, and most of this dissent, was written and circulated for this Court's March 5, 1991, General Conference, and was written weeks before the United States Supreme Court delivered its opinion in Pacific Mutual Life Insurance Co. v. Haslip, ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991). The result in that case is further proof of Mr. Ennis's proficient "lawyering."
[11] Broadway v. State, 257 Ala. 414, 60 So. 2d 701 (1952) (legislature did not have this power); Ex parte Foshee, 246 Ala. 604, 21 So. 2d 827 (1945) (legislature did have this power, with Justice Livingston dissenting); Ex parte Huguley Water System, 282 Ala. 633, 213 So. 2d 799 (1968) (legislative enactment cannot disturb the functions and orderly processes of those courts that derive their existence from the Constitution, succeeding common law courts of historic origin); Ex parte Dozier, 262 Ala. 197, 77 So. 2d 903 (1955) (legislature has the power to enact laws regulating any proceedings in the judicial system even though the laws relate to matters in which courts are exercising their inherent powers, so long as the legislation does not impair unduly an exercise of the judicial powers).
[12] Alabama Code 1975, § 6-11-23, refers specifically to "the trier of the fact." It does not specifically refer to cases in which the jury is the trier of the fact. However, in this dissent, I shall refer to the jury rather than "the trier of the fact" in some instances.
[13] Punitive damages have no connection with the equality of freedom and independence or the inalienable rights of life, liberty, and the pursuit of happiness (Article I, § 1); an inalienable and indefeasible right to change the form of the government of this state (Article I, § 2); freedom of religion (Article I, § 3); freedom of speech and of the press (Article I, § 4); freedom from unreasonable searches or seizures (Article I, § 5); the right of an accused in criminal prosecutions to be heard by himself and counsel, to demand the nature and cause of the accusation and to have a copy thereof, to be confronted by witnesses against him, to have compulsory process for obtaining witnesses in his favor, to have a speedy public trial before an impartial jury, not to be compelled to give evidence against himself, and not to be deprived of life, liberty, or property except by due process of law (Article I, § 6); the right not to be punished for violation of a law established and promulgated after the act or omission made an offense by that law (Article I, § 7); the right not to be proceeded against criminally for an indictable offense except in certain cases (Article I, § 8, amended by Amendment No. 37); freedom from double jeopardy (Article I, § 9); the right to prosecute or defend by oneself or by counsel any civil cause to which one is a party (Article I, § 10); the provision that "[t]he right of trial by jury shall remain inviolate" (Article I, § 11); the right of a jury to determine "the laws and the facts" in indictments for libel (Article I, § 12); the provision that "all courts shall be open; and [that] ... every person, for any injury done him, ... shall have a remedy by due process of law; and [that] right and justice shall be administered without sale, denial, or delay" (Article I, § 13); the provision that the state shall never be made a defendant in any court (Article I, § 14); the provision that neither excessive fines nor cruel or unusual punishment shall be inflicted (Article I, § 15); the right to reasonable bail except in capital cases (Article I, § 16); the guarantee that the privilege of habeas corpus shall not be suspended (Article I, § 17); the definition of, and type of evidence required for conviction of, treason against the state (Article I, § 18); the right not to be attainted of treason by the legislature (Article I, § 19); the right not to be imprisoned for debt (Article I, § 20); the provision that only the legislature shall have the power to suspend the laws (Article I, § 21); the prohibition against the legislature's enacting an ex post facto law, impairing the obligations of contracts, or making any irrevocable or exclusive grants of special privileges or immunities (Article I, § 22); the right of eminent domain (Article I, § 23); the provision that navigable waters shall remain free public highways (Article I, § 24); the right to peaceably assemble and petition for redress of grievances (Article I, § 25); the right of every citizen to bear arms (Article I, § 26); the provision that no standing army shall be kept without the consent of the legislature (Article I, § 27); the provision that no soldier shall be quartered in time of peace in any private home without the consent of the homeowner (Article I, § 28); the provision that no title of nobility or hereditary distinction shall be conferred (Article I, § 29); the provision that no citizen shall be exiled (Article I, § 30); the provision that temporary absence from the state shall not cause forfeiture of residence (Article I, § 31); the guarantee that slavery shall not exist (Article I, § 32); the provision that the privilege of suffrage shall be protected (Article I, § 33); property rights of aliens (Article I, § 34); the provision "[t]hat the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and [that] when the government assumes other functions it is usurpation and oppression" (Article I, § 35); or the provision "[t]hat this enumeration of certain rights shall not impair or deny others retained by the people; and [that], to guard against any encroachments of the rights herein retained, ... everything in this Declaration of Rights is excepted out of the general powers of government and shall forever remain inviolate" (Article I, § 36).
[14] Letter from John Adams to George Wythe, quoted by Harry J. Lambeth, The Lawyers Who Signed the Declaration of Independence, 62 A.B.A. Journal 869 (1976). | March 8, 1991 |
0557706e-cd3c-433f-97aa-42b09ec443c2 | Adams v. State | 585 So. 2d 161 | 1900464 | Alabama | Alabama Supreme Court | 585 So. 2d 161 (1991)
Ex parte State of Alabama.
(Re Beverly ADAMS
v.
STATE).
1900464.
Supreme Court of Alabama.
April 11, 1991.
*162 Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for petitioner.
Lewis Gillis, Montgomery, for respondent.
INGRAM, Justice.
Beverly Adams was convicted of improper lane usage and driving under the influence. She received a $20 fine on the improper lane usage conviction and was given a three-month suspended sentence and placed on unsupervised probation for one year on the driving under the influence conviction. She was also ordered to complete DUI school. Subsequently, Adams appealed her convictions to the Court of Criminal Appeals, which reversed the convictions, 585 So. 2d 156. We granted the State's petition for writ of certiorari.
The pertinent facts are as follows: The state trooper who arrested Adams testified that he observed a vehicle parked on the shoulder of the southbound lane of Interstate 85 in Montgomery County. The state trooper stated that, upon investigation of the vehicle, he found the driver's window rolled down and observed Adams lying in the vehicle with her head on the passenger side and her feet on the driver's side. The state trooper then testified that he went to the passenger's side of the vehicle, where Adams's head was located, and got Adams's attention by rapping on the car window, which was rolled up, and by shining the flashlight in Adams's eyes. The state trooper stated that he advised Adams that she did not need to be there and that she needed to move along. He further testified that at that point he returned to his vehicle and observed Adams getting back onto the driver's side of her vehicle and pulling onto the roadway.
Shortly thereafter, the state trooper observed the traffic in front of him stopping, and he determined the reason traffic was stopping was that Adams's vehicle was weaving from one lane to the next and that the drivers of other cars were attempting to avoid her. The state trooper testified that he pulled Adams over and approached her car, this time from the driver's side. He testified that he asked Adams if she had been drinking and that, at this time, he could detect the odor of alcohol on her breath. The state trooper then asked Adams to get out of her car in order that he could further determine her degree of intoxication. It was apparent to the state trooper that Adams was unsteady on her feet, and she failed both the alco-sensor test and the field sobriety tests that the state trooper administered to her. As a result, the state trooper arrested Adams for driving under the influence and issued her a citation for improper lane usage. Thereafter, Adams was convicted of both offenses.
In reversing Adams's convictions, the Court of Criminal Appeals held that she had been entrapped, because all of the State's evidence tending to prove her guilt of driving under the influence and improper lane usage was derived after the state trooper had instructed her to get back onto *163 the highway. Furthermore, that court held that because all of the State's evidence was derived after Adams was instructed to get back onto the highway, the evidence was fruit of the poisonous tree and was, therefore, not admissible.
The issue presented for our review is whether the Court of Criminal Appeals erred in reversing Adams's convictions on the basis of entrapment and the application of the fruit of the poisonous tree doctrine.
It is well settled that one may avail himself of the defense of entrapment where he is instigated, induced, or lured by an officer of the law, for the purpose of prosecution, into committing a crime that he otherwise had no intention of committing. Jackson v. State, 384 So. 2d 134 (Ala. Crim.App.1979), writ quashed, 384 So. 2d 140 (Ala.1979),overruled on other grounds, Lambeth v. State, 562 So. 2d 575 (Ala.1990); Johnson v. State, 291 Ala. 639, 285 So. 2d 723 (1973). Where the defense of entrapment is raised, two separate issues of fact are presented: first, whether there was governmental inducement; and second, if there was inducement, whether the defendant was ready and willing to commit the act without persuasion. Tyson v. State, 361 So. 2d 1182 (Ala.Crim.App. 1978). The defense of entrapment is not applicable where the law enforcement officer merely affords an opportunity to one intending to violate the law. Id. It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play. Id. The primary focus is on the predisposition of the accused rather than on the agent's actions. Id.
In the present case, the court below held that Adams had been entrapped because, it found, the state trooper instructed Adams to get back onto the road and then arrested her for driving under the influence and improper lane usage. The court held that where an officer reasonably suspects that an individual is intoxicated or under the influence, or where the circumstances are such that a reasonable officer would suspect that a potential driver was under the influence, he should not order the driver back onto the road. Although we agree with the latter statement, we find that the facts in this case do not support the Court of Criminal Appeals' holding that Adams was entrapped.
First, we find no evidence of governmental inducement by the state trooper in instructing Adams to move along. To the contrary, the state trooper steadfastly maintained throughout the trial that he had no knowledge that Adams was intoxicated until after he had first observed her and instructed her to get back onto the road. During the state trooper's brief initial encounter with Adams, he did not smell alcohol on her breath and he did not have the opportunity to observe her actions. His testimony on these points is uncontroverted.
However, assuming, arguendo, that under the facts of this case the state trooper's instructing Adams to move along constituted governmental inducement, the evidence clearly points to a predisposition by Adams to commit the crime of driving under the influence. In fact, by the time the state trooper first encountered Adams, all of the necessary elements to support her conviction for driving under the influence were already present.
Section 32-5A-191(a), Ala.Code 1975, provides that "[a] person shall not drive or be in actual physical control of any vehicle while ... [u]nder the influence of alcohol." "Actual physical control" has been defined as the exclusive physical power, and present ability, to operate, move, park, or direct whatever use or nonuse is to be made of the motor vehicle at the moment, as determined by the totality of the circumstances. Davis v. State, 505 So. 2d 1303 (Ala.Crim.App. 1987).
It is not required that one be actually driving a vehicle in order to be found guilty of violating § 32-5A-191(a). See, e.g., Robinson v. City of Abbeville, 494 So. 2d 155 (Ala.Crim.App.1985), aff'd, 494 So. 2d 159 (Ala.1986) (elements of proof necessary to establish actual physical control were present, where the engine of the vehicle in question had "run hot," the defendant was seen alighting from the vehicle *164 and was standing by it, and where the odor of alcohol on the defendant's breath and his staggering were noticeable to the arresting officer); Loftin v. City of Montgomery, 480 So. 2d 603 (Ala.Crim.App.1985) (evidence that defendant was found in his truck, stopped on the side of the road, slumped over the steering wheel, with the engine running and the gear shift lever in the neutral position, established each element of "actual physical control" under § 32-5A-191). See also Martin v. State, 529 So. 2d 1032 (Ala.Crim.App.1988); Beals v. State, 533 So. 2d 717 (Ala.Crim.App. 1988). Thus, under the facts of this case, we conclude that the Court of Criminal Appeals erred in finding that Adams was induced to commit the offense of driving under the influence.
We further conclude that the court below erred in applying the fruit of the poisonous tree doctrine in its reversal of Adams's convictions. The record reveals no objection by Adams to the admissibility of the evidence of her intoxication, which was procured after she was instructed by the state trooper to move along. Therefore, the Court of Criminal Appeals had no adverse ruling before it upon which to reverse. Matters not objected to at trial cannot be considered for the first time on appeal, since review on appeal applies only to rulings by the trial court. Cooper v. State, 331 So. 2d 752 (Ala.Crim.App.), cert. denied, 331 So. 2d 759 (Ala.1976). Therefore, we find that the lower court erred in reversing Adams's conviction on the basis of the fruit of the poisonous tree doctrine.
The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that court for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
ADAMS and KENNEDY, JJ., concur in the result. | April 11, 1991 |
ae43389c-fa4d-4d25-9e92-8bbbc44e1f48 | Standard Plan, Inc. v. Tucker | 582 So. 2d 1024 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 1024 (1991)
The STANDARD PLAN, INC.
v.
Lehman P. TUCKER, Jr., and Debra J. Tucker.
89-1397.
Supreme Court of Alabama.
March 15, 1991.
Rehearing Denied June 7, 1991.
*1025 W. Eugene Rutledge, Birmingham, for appellant.
Stanley K. Smith and Larry W. Harper of Porterfield, Harper & Mills, Birmingham, for appellees.
HORNSBY, Chief Justice.
On January 25, 1988, Lehman and Debra Tucker, husband and wife, sued Insurall Insurance Agency and The Standard Plan, Inc., alleging breach of contract, negligent failure to provide insurance coverage, and bad faith refusal to pay an insurance claim.[1] On January 29, 1990, a jury returned a verdict in favor of the Tuckers. In a special verdict accompanied by answers to interrogatories, the jury found Insurall guilty of negligence and awarded the Tuckers $1,083.19 in damages; it also found against Standard Plan on the claim alleging breach of contract and bad faith failure to pay a claim and awarded the Tuckers $500,000 in punitive damages.
The trial court later reviewed the award of punitive damages against Standard Plan, as required by Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986); it upheld the award and entered a judgment consistent with the jury verdict against Insurall and Standard Plan. Insurall did not appeal. Standard Plan appealed the award of punitive damages against it for bad faith failure to pay. We affirm.
Insurall characterizes itself as an independent insurance agent. In addition to submitting insurance applications for its customers to various insurance companies, Insurall has the authority to issue temporary binders on behalf of several of the insurers. The Tuckers had been customers of Insurall continuously since 1984.[2] During *1026 that time Insurall had provided them with automobile insurance through several insurers. In April 1987, Randy Coker, the owner of Insurall, asked Debra Tucker to furnish him a Motor Vehicle Record Report (MVR) from the Alabama Department of Public Safety on her husband, because the insurance policy in effect for the Tuckers at that time would lapse on May 26, 1987, and he would need the MVR to apply for another policy. Among other things, an MVR lists all of a driver's accidents and traffic violations for the five years immediately prior to the date the MVR is issued.
In May 1987 Debra Tucker delivered to Insurall's office the MVR that Coker had requested. It was dated April 30, 1987, and showed the following: December 17, 1982, failure to stop at a stop sign; April 22, 1983, running a red light; April 2, 1984, running a red light; November 18, 1985, accident; December 14, 1985, accident; May 31, 1986, accident; February 12, 1987, speeding. However, neither Insurall nor the Tuckers applied for a renewal of the then existing insurance before it lapsed on May 26, 1987.
On July 1, 1987, Lehman Tucker was involved in an accident while he was driving his employer's truck. The Tuckers did not report this accident to Insurall. Lehman Tucker testified that he did not think that accidents in company trucks should be reported to his private insurer because the company insurer was responsible for such accidents and had covered the July 1, 1987, accident.
On July 6, 1987, Debra Tucker contacted Insurall and informed Katherina Bryant, an employee of Insurall, that the Tuckers needed to purchase automobile insurance. Bryant was well acquainted with the Tuckers and had handled their insurance matters since 1984. She testified that between 1985 and 1987 she had assisted the Tuckers in obtaining insurance coverage from other insurers and had completed insurance applications for them in the past. Bryant said that the Tuckers knew that she had been completing applications on their behalf and was signing Lehman Tucker's name to the applications, but the Tuckers disputed this testimony. Bryant also testified than she knew it was against Standard Plan's guidelines for the agent to sign the application for the applicant, but that Lehman Tucker knew that she was signing applications for him. Bryant testified that Lehman had had difficulty in obtaining affordable automobile insurance because of his poor driving record.
Bryant testified that she was the person who had completed the Standard Plan application for the Tuckers and that she had also signed Lehman Tucker's name to the application. On that application Bryant listed the following traffic violations for Lehman Tucker: (1) a speeding ticket on February 12, 1987, (2) an accident on May 31, 1986, (3) a "not at fault" accident on December 14, 1985, and (4) an accident on November 18, 1985. The list was based on the April 30, 1987, MVR that Debra Tucker had given Insurall. The application, however, failed to list the accident that Lehman Tucker had on July 1, 1987. The record indicates that Lehman Tucker was probably at fault in that accident.[3]
On July 8, 1987, Debra Tucker paid Bryant a premium of $434 and Bryant issued a binder on behalf of Standard Plan. Bryant testified that when Debra Tucker paid the premium she asked Debra if there were any other accidents that should be reported but that Debra answered "no." Debra, however, testified that she never discussed the Standard Plan application with Bryant. Both Lehman and Debra Tucker testified that they had never seen the application that Bryant completed and sent to Standard Plan.
Although Bryant completed the application and accepted the Tuckers' premium payment on July 8, 1987, she did not mail *1027 the application to Standard Plan until July 15, 1987. On July 13, 1987, Lehman Tucker was involved in another accident which he reported to Bryant on July 16, 1987. Bryant telephoned the claim to Standard Plan the same day. Standard Plan actually received the Tuckers' application for insurance on July 20, 1987, and ordered another MVR, which was issued on July 23, 1987.
On July 29, 1987, Standard Plan sent a letter to Lehman Tucker rejecting his application and rescinding the binder that Bryant had issued. In that letter Standard Plan stated that its reason for rescinding the policy was that the Tuckers had attempted to obtain insurance "through a material misrepresentation" because they had not listed the July 1, 1987, accident on the application. As a result, Standard Plan refused to honor Lehman Tucker's claim based on the July 13, 1987, accident. The Tuckers then sued Standard Plan and Insurall.
Standard Plan contends that the trial court erred in entering a judgment for the Tuckers on their bad faith claim. This Court first recognized an actionable tort for an insurer's bad faith refusal to pay a claim in Chavers v. National Security Fire & Cas. Co., 405 So. 2d 1 (Ala.1981). The Chavers Court held that there was an implied-in-law duty of good faith and fair dealing in contractual relationships between insurers and their insureds. Bad faith was defined as "the intentional failure by the insurer to perform this duty implied in law." Id. at 5. The Court went on to hold:
Chavers, 405 So. 2d at 7. In this case the Tuckers' bad faith claim rests on the second tier of the Chavers test, which was clarified in Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916, 924 (Ala.1981):
The elements of a bad faith claim were summarized in National Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982), as follows:
(Emphasis in original.) See also Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala.1990).
Here, we must determine whether there was sufficient evidence to support the jury verdict of bad faith.[4] The strength of the jury verdict is based upon the right to trial by jury, White v. Fridge, 461 So. 2d 793 (Ala.1984), and a jury verdict is presumed to be correct. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988).
Campbell v. Burns, 512 So. 2d 1341, 1343 (Ala.1987). (Citations omitted.) See also Ashbee v. Brock, 510 So. 2d 214 (Ala.1987); Jawad v. Granade, 497 So. 2d 471 (Ala. 1986); and White, supra.
The Tuckers argue that Standard Plan was liable for bad faith refusal to pay because it did not investigate the July 1, 1987, accident to determine whether Lehman Tucker was at fault or whether he had attempted to intentionally mislead Standard Plan. The Tuckers say that without an investigation to determine whether the July 1, 1987, accident was an "at fault" accident, Standard Plan could not determine whether omitting it from the application was a material misrepresentation because, according to Standard Plan's underwriting guidelines, if the accident was not Lehman Tucker's fault, its omission would not be a material misrepresentation.
The record shows that had Standard Plan investigated the July 1, 1987, accident it would have discovered that Lehman Tucker was probably at fault. However, the second tier of the Chavers test focuses on the information available to the insurer at the time the claim was denied. In other words, the insurer is not entitled to deny a claim in hopes that it can later develop evidence to support its denial. See, e.g., Aetna Life Ins. Co. v. LaVoie, 470 So. 2d 1060 (Ala.1984). Therefore, the fact that Lehman Tucker was probably at fault in the July 1, 1987, accident is irrelevant to our determination of whether there was sufficient evidence to support a jury verdict that Standard Plan intentionally failed to determine the existence of a lawful basis to deny the claim.
Standard Plan first argues that there was no insurance contract in this case because the omission of the July 1, 1987, accident in the application was a material misrepresentation of fact. Specifically, Standard Plan argues that because of this allegedly material misrepresentation in the application, there was never a meeting of the minds between the parties so as to create a contract. Standard Plan's argument rests on its assertion that Insurall was an independent insurance agency and that Standard Plan cannot be held accountable for any mistakes Insurall made in *1029 completing the Tuckers' application or for Insurall's failure to forward the application within a 72-hour period as required by Standard Plan's underwriting guidelines.
Both Insurall and Standard Plan characterize Insurall as an "independent agent." However, the existence and scope of an agency relationship are questions of fact to be determined by the jury. Potomac Leasing Co. v. Bulger, 531 So. 2d 307 (Ala.1988); Calvert v. Reciprocal Exchange Ins. Co., 523 So. 2d 361 (Ala.1988). All parties agree that Standard Plan had authorized Insurall to issue binders for immediate coverage to "qualified applicants" whose applications were postmarked no more than 72 hours after the application was signed. The underwriting guidelines that Standard Plan issued to Insurall set forth the criteria for Insurall to use in determining who was a "qualified applicant." The underwriting guidelines for issuing binders stated:
Under these guidelines, Insurall was required to mail any application to Standard Plan within 72 hours so that Standard Plan could evaluate the application and determine whether to issue a policy to the applicant. These guidelines also expressly stated that the agent and the applicant both must sign the application. The application itself, however, made no mention of a 72-hour forwarding requirement.
In Washington National Ins. Co. v. Strickland, 491 So. 2d 872 (Ala.1985), this Court discussed the standards that govern the liability of general agents, soliciting agents, and independent insurance agents. In that case, an applicant sued Washington National Insurance Company on fraud and misrepresentation claims based on alleged representations that an agent had made to the plaintiff. The insurer argued that it was not liable for the representations of the agent because he was an independent agent. This Court affirmed a judgment based on the jury verdict in favor of the applicant, holding that there was enough evidence to support a finding by the jury that the agent was a general or soliciting agent for the insurer. The Court spoke directly on the status of independent agents:
491 So. 2d at 872. (Citations omitted.) This case is like Washington National Ins. Co.: Standard Plan's liability for the acts of Insurall depend upon whether there was enough evidence for the jury to properly find that Insurall was acting as a general agent for Standard Plan when it completed and forwarded the Tuckers' application.
In the evidence presented at trial was a booklet that Standard Plan had provided to Insurall. This booklet, addressed to "OUR ALABAMA AGENTS," contained information and guidelines regarding binders, rates, and the acceptability of risk. In addition, Coker, the owner of Insurall, had a license from American Security Insurance Company[5] to do business as its agent. This license was dated December 4, 1986, and stated, "Agent is not officially authorized to transact the business of insurance until license is in his or her possession." Furthermore, Bryant and Steven Klien, vice president of underwriting for Standard Plan, both testified that Insurall had the authority to issue binders for Standard Plan.
Viewing this evidence in a light most favorable to the prevailing party, as we must do, Campbell v. Burns, 512 So. 2d 1341 (Ala.1987), we conclude that there was sufficient evidence from which the jury could reasonably find that Insurall was a general agent of Standard Plan and that Insurall had acted negligently in completing and forwarding the Tuckers' application. Consequently, Standard Plan can not now complain that the Tuckers made false representations on the application, because that application was completed, signed, and submitted by Insurall. See, Graham v. Equitable Life Assur. Soc. of the United States, 569 So. 2d 355 (Ala.1990); National Life & Accident Ins. Co. v. Allen, 285 Ala. 551, 234 So. 2d 567 (1970).
It follows that if Insurall was acting as a general agent for Standard Plan and was responsible for erroneously completing the application and for failing to forward it within 72 hours after the binder was issued, then Standard Plan was not entitled to rescind the binder on the basis of a material misrepresentation of fact in the application. See, Graham, supra; and National Life & Accident Ins. Co, supra. Therefore, we hold that there was sufficient evidence to support a jury finding that there was a valid binder of insurance existing between the Tuckers and Standard Plan on July 13, 1987, when Lehman Tucker was involved in a motor vehicle accident.
Standard Plan also argues that it conducted an investigation by obtaining an MVR report on Lehman Tucker after it received his application on July 20, 1987. Based on this investigation, Standard Plan says, it discovered a misrepresentation of a material fact in that Lehman Tucker had not listed on the application the accident that had occurred on July 1, 1987. Therefore, Standard Plan contends that it had an arguable reason to deny Lehman Tucker's claim and to rescind the binder.
The Tuckers' bad faith claim is based on the allegation that Standard Plan failed to investigate whether Lehman Tucker was at fault in the July 1, 1987, accident and whether he had intended to deceive Standard Plan. The Standard Plan application stated that "[i]n the event the policy is issued, [Standard Plan] may declare the policy null and void if any of the answers are false and made with the intent to deceive and materially affect the risk which the company assumes by issuing the policy." (Emphasis added.) Therefore, any misrepresentation in the application must be material and made with the intent to deceive before Standard Plan could rescind the policy. United States Fidelity & *1031 Guaranty Co. v. Jacksonville State Univ., 357 So. 2d 952 (Ala.1978).[6]
In Aetna Life Ins. Co. v. LaVoie, 505 So. 2d 1050 (Ala.1987), and Continental Assurance Co. v. Kountz, 461 So. 2d 802 (Ala. 1984), the Court recognized that an intentional failure on the part of an insurer to determine whether there was a lawful basis for denying a claim could be established by proof that the insurer either intentionally or recklessly failed to properly investigate the claim or to subject the results of the investigation to a cognitive evaluation and review. In Aetna, the Court stated: "considering the fact that the decision to deny [the claim] was made without the benefit of `critical' sections of the medical file, the jury could find that the claim was not `properly investigated,' and that there was a `reckless indifference to the facts or to proof.'" Aetna, 505 So. 2d at 1053. See also, Thomas, supra; Blue Cross & Blue Shield of Alabama v. Granger, 461 So. 2d 1320 (Ala.1984), and Carter v. Old American Ins. Co., 544 So. 2d 917 (Ala.1989).
Likewise, if Standard Plan's decision to rescind the Tuckers' binder was made without the benefit of critical information needed to make such a determination, then the jury could reasonably find that Lehman Tucker's claim was not properly investigated and that Standard Plan exhibited a reckless indifference to the facts in evaluating the claim. The existence of bad faith must not be determined in a vacuum, but taking into account the particular circumstances existing at the time the insurer denied the claim. We hold that the evidence in this case was such that the jury could have reasonably found that Standard Plan either intentionally or recklessly failed to investigate the nature of the July 1, 1987, accident and whether Lehman Tucker had intended to deceive Standard Plan.
One criterion set out in the Standard Plan underwriting guidelines stated that anyone with three or more at-fault motor vehicle accidents within the previous two years was an unacceptable risk. The application Bryant prepared listed two at-fault accidents involving Lehman Tucker. Consequently, the determination of whether Lehman Tucker was at fault in the July 1, 1987, accident and whether he had intentionally tried to deceive Standard Plan regarding that accident would govern whether he was an unacceptable risk as defined by the Standard Plan underwriting guidelines.
An underwriter for Standard Plan testified that a number of criteria were considered before Standard Plan would determine whether an accident was not an at-fault accident. Such a determination of fault would usually be made by the agent after reviewing the accident report. According to this witness, if an application did not list an accident that is shown on an MVR, then Standard Plan automatically considered that accident to be an at-fault accident. This witness also testified that it was Standard Plan's usual business practice to rescind binders that had been issued to applicants if it was determined that they had failed to list an accident on the application.
When Standard Plan decided to rescind Lehman Tucker's binder on July 29, 1987, it had the following before it: an application dated July 8, 1987, but not mailed in by Insurall until July 15, 1987; the Tuckers' $434 premium payment; an MVR dated April 30, 1987, attached to the application (the information on that MVR matched the information in the application); Lehman Tucker's claim for the accident that had occurred on July 13, 1987, which had been reported by Insurall on July 16, 1987; and the July 23, 1987, MVR, which showed that Lehman Tucker had been involved in an accident on July 1, 1987, that was not reported in the application. The July 23, *1032 1987, MVR did not indicate who was at fault in any of the accidents.
Based on the above evidence, the jury could have reasonably found that Standard Plan intentionally or recklessly failed to subject the July 1, 1987, accident to a cognitive evaluation and review in order to avoid paying the claim that Lehman Tucker had filed on July 16, 1987. Therefore, we hold that there was sufficient evidence presented at trial to support a jury finding that Standard Plan had acted in bad faith in failing to investigate the claim.
The trial court submitted the following special verdict form, pursuant to Rule 49(b), A.R.Civ.P., and the jury returned the answers indicated:
The record shows that Standard Plan did not object to the content or form of the special verdict. Therefore, Standard Plan has waived any objection it might have had as to the sufficiency of the questions propounded to the jury. Ford v. Canton, 530 So. 2d 217, 223 (Ala.1988). However, Standard Plan argues that the jury's answers to the special verdict are inconsistent because it found Insurall "negligent" and also found that Standard Plan had acted in "bad faith."
Standard Plan says that "[t]he negligence of the defendant Insurall which the jury found in the completion of the application for insurance precludes the initial formation of a contract between The Standard Plan and the plaintiffs because there could be no meeting of the minds. Contracts can not be negligently formed." We disagree with Standard Plan's analysis of the jury's answers to the special verdict in this case.
The jury found that Insurall had acted negligently in handling the Tuckers' application for insurance with Standard Plan. As we discussed above, there was sufficient evidence for the jury to find that Insurall was acting as a general agent for Standard Plan and that a valid contract of insurance existed between the Tuckers and Standard Plan, although Insurall acted negligently in completing and forwarding it. See Washington National Ins. Co., 491 So. 2d at 872. Therefore, Standard Plan was not entitled to rescind its binder because Insurall negligently handled the Tuckers' application. Graham, 569 So. 2d at 355; National Life & Accident Ins. Co., 234 So. 2d at 567. Standard Plan's failure to investigate the issue of fault in the July 1, 1987, accident and failure to investigate whether Lehman Tucker had intentionally tried to deceive Standard Plan by not listing that accident in the application was an act separate from Insurall's negligence, and that failure to investigate gave rise to a distinct cause of action for bad faith refusal to pay a claim.
Standard Plan also argues that the trial court erred in admitting into evidence a "sample binder," which read as follows:
Standard Plan argues that this evidence was inadmissible because the "document had no relationship to this case but was introduced as a `sample widely used by other insurance companies.'"[8] The Tuckers called Ronald Gaiser as an insurance expert. Gaiser testified as to the industry standard regarding binders. In conjunction with this testimony, the Tuckers' attorney offered into evidence a "sample binder," which Gaiser testified represented the industry standard regarding binders. The trial court admitted this "sample binder" into evidence over Standard Plan's objections.
The record reveals that the "sample binder" was offered as demonstrative evidence of the expert's opinion as to the industry standard regarding binders. Demonstrative evidence is admissible so long as the proper foundation is laid. See, e.g., Griffin v. Gregory, 355 So. 2d 691 (Ala.1978). The admissibility of such evidence is within the trial court's discretion and, absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal. Payne v. Jones, 284 Ala. 196, 224 So. 2d 230 (1969). Standard Plan has not shown that the evidence was inadmissible or that it was prejudiced by the admission of this evidence. Therefore, we hold that there was no abuse of discretion on the part of the trial court.
Standard Plan next argues that it was reversible error for the trial court to refuse to give certain jury charges requested by Standard Plan. In reviewing instructions to determine if they correctly set forth the applicable law, the Court must read and consider the charge as a whole. Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986). The refusal of a requested written charge is not error where the trial court's oral charge covered the principles stated in the requested charge. Rule 51, A.R.Civ.P.; McGehee v. Harris, 416 So. 2d 729 (Ala.1982). Standard Plan complains that the trial court refused to give six of its requested charges. The record reveals that five of those requested charges were adequately covered in the court's oral charges to the jury.
One of Standard Plan's requested charges that the trial court did not give would have instructed the jury that "whether an insurance company is justified in denying a claim under a policy must be judged by what was before it at the time the decision is made." At the close of the court's oral charge to the jury, Standard Plan's attorney made the following objection to the trial court's charge:
Rule 51, A.R.Civ.P., states: "No party may assign as error the giving or failing to give a written instruction ... unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection." This Court has held that the purpose of stating grounds for objection is to give the trial court the opportunity to correct the instructions and to avoid the waste of time from reversals that result from technical omissions or oversight. Crigler v. Salac, 438 So. 2d 1375 (Ala.1983); Gardner v. Dorsey, 331 So. 2d 634 (Ala. 1976).
Based on the totality of the circumstances, we hold that Standard Plan's objection to the trial court's failure to give its requested jury charge was too general and did not meet the requirement of Rule 51. The record shows that Standard Plan submitted a total of 26 requested jury charges, many of which contained numerous sub-parts. Standard Plan's objection, quoted above, did not adequately inform the trial judge of any potential error or afford him an opportunity to correct any such error. See, e.g., Burnett v. Martin, 405 So. 2d 23 (Ala.1981); Wright v. Waters, 367 So. 2d 960 (Ala.1979). Compare with Grayco Resources, supra, where the objecting party adequately made the trial court aware of the grounds for its objection.
Standard Plan also argues that the imposition of punitive damages is unconstitutional. We find this argument to be without merit, based on our decision in Pacific Mutual Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala.1989), aff'd ___ U.S. ___, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991). The judgment of the trial court is therefore due to be affirmed.
AFFIRMED.
MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The trial court entered a summary judgment in favor of Insurall on the bad faith count because Insurall is not an "insurer" under Ala. Code 1975, § 27-14-7. The Tuckers have not appealed as to that summary judgment.
[2] The record shows that the application in issue listed Lehman Tucker as the applicant. Debra Tucker was listed as the applicant's spouse and as an additional household operator of an automobile. "Lehman Tucker" is the only applicant's signature that appears on the application (although the parties agree that he did not personally sign it).
[3] The record contains the accident report for the July 1, 1987, accident involving Lehman Tucker. According to this report, Tucker was driving his employer's truck when he hit another vehicle from the rear. The accident report states that the prime circumstance contributing to the accident was that Tucker was "tailgating" the other vehicle (i.e., following too closely).
[4] In National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982), we established the "directed verdict standard" for ordinary bad faith cases; by that standard the plaintiff must show that he is entitled to a directed verdict on the contract claim. In this case, however, Standard Plan has not raised an issue as to whether the plaintiffs were entitled to a directed verdict on their breach of contract claim. Nonetheless, this case clearly falls within the exception to the "directed verdict standard" because there is a dispute as to whether an insurance contract existed. See Thomas v. Principal Financial Group, 566 So. 2d 735, 742 (Ala.1990).
[5] In 1987 Standard Plan was a division of American Security Insurance Company.
[6] We note that in Alabama it is not required that a material misrepresentation have been made intentionally for that misrepresentation to provide a basis for the insurer to rescind the policy. National Sav. Life Ins. Co. v. Dutton, 419 So. 2d 1357 (Ala.1982). However, we also recognize that the insurer may contractually limit its right to rescind a policy to material misrepresentations that the insured intentionally made. See, e.g., State Farm Fire & Cas. Co. v. Oliver, 854 F.2d 416 (11th Cir.1988).
[7] Standard Plan does not raise the issue of whether there was sufficient evidence to support the finding of a pattern or practice of intentional wrongful conduct. However, we note that the record contains several letters sent to other Standard Plan applicants that were very similar to the one it sent to the Tuckers.
[8] In contrast, the record shows that the binder in the Standard Plan application read as follows;
"I understand that the total premium shown on the reverse side of this application is based in part upon the assumption that the information that I have provided regarding my driving record, the designation of and information concerning other operators of the insured vehicle and their driving records, and the principal location of the insured vehicle, is accurate and complete. If [Standard Plan] determines that any of such information is inaccurate or incomplete, and if I am notified of any additional premium based on accurate and complete information, I agree to pay such additional premium according to the directions in such notice. BOUND: DATE ___ 19__ Time __." | March 15, 1991 |
ac676245-9ac7-4f0c-ae45-43ad568aaad7 | Tanner v. Church's Fried Chicken, Inc. | 582 So. 2d 449 | N/A | Alabama | Alabama Supreme Court | 582 So. 2d 449 (1991)
Gary G. TANNER, et al.
v.
CHURCH'S FRIED CHICKEN, INC.
89-1407.
Supreme Court of Alabama.
March 15, 1991.
Rehearing Denied May 10, 1991.
*450 Edwin J. Curran, Jr. and J.W. Goodloe, Jr. of Vickers, Riis, Murray and Curran, Mobile, for appellants.
George M. Walker and David R. Quittmeyer of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
MADDOX, Justice.
The central issue presented on this appeal is whether the law of Alabama affords a remedy for breach of an express promise in a written contract to "act in good faith," and if so, whether there is substantial evidence in the record that the defendant breached its affirmative obligation to so act.
The trial court granted summary judgment in favor of the defendant, Church's Fried Chicken, Inc. ("Church's"), and against the plaintiffs, Gary Tanner, Herman Gollotte, and Walter Hovell, former stockholders of Crispy Chick, Inc., who had sold out to Church's. We hold that the summary judgment was proper, and we affirm.
The suit arose from the following facts. In December 1985, the plaintiffs negotiated a $3.2 million sale of their fried chicken restaurant chain to Church's, and negotiated an additional compensation feature in the purchase agreement that would pay them a finder's fee of one percent of gross sales up to a maximum of $60,000 for every former franchisee of the plaintiffs that they could persuade to convert to Church's restaurant chain.
The provisions relating to the finder's fee payable to the plaintiffs are found in article VIII of the contract:
In order for the conversions to take place, the franchisees who converted to become a franchisee of Church's were required *451 to pay to Church's a franchise fee of $5,000 and to incur approximately $10,000 in conversion costs (repainting the exterior, changing the signs, changing the menus). Crispy Chick paid one-half of these costs, $7,500, for each of the 17 conversions. Church's received 4% of all sales of the converted franchise restaurants thereafter.
This lawsuit was filed by the plaintiffs after Church's closed three restaurants that had converted from Crispy Chick franchises to Church's, and after another former Crispy Chick franchisee terminated its franchise agreement with Church's.[1] Church's claimed that the closings were part of its restaurant closing program implemented to close any restaurant that did not meet the sales quota of $250,000 per year. This dispute arose because Church's suspended the payment of any finder's fees relating to these four restaurants. Church's took the position that the closing of these restaurants terminated any finder's fee obligation on its part because there were no longer any gross sales out of which finder's fee payments could be made.
The plaintiffs do not contend that they were unconditionally guaranteed a finder's fee of $60,000 per restaurant, but that Church's actions in depriving the plaintiffs of that fee breached the express contractual obligation of "good faith" found in paragraph 9.12 of the contract:
We agree with the holding and reasoning of the trial court. Any suggestion that the plaintiff's bad faith claim can be pursued as a tort claim under the facts of this case, seems to have been settled in Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76, 81 (Ala.1983), wherein this Court stated, "We are not prepared to extend the tort of bad faith beyond the area of insurance policy cases." See Brown-Marx Associates, Ltd. v. Emigrant Savings Bank, 527 F.Supp 277 (N.D.Ala. 1981), aff'd, 703 F.2d 1361 (11th Cir.1983); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1388 (Ala.1986).
Neither is the plaintiffs' bad faith claim viable under contract law. The Court of Civil Appeals first addressed this issue in 1976, specifically holding that the failure to act in good faith in the performance or enforcement of contracts or duties arising under Ala.Code 1975, § 7-1-203, does not give rise to a claim on which relief may be granted in Alabama. Chandler v. Hunter, 340 So. 2d 818 (Ala.Civ.App.1976). Section 7-1-203, based on § 1-203 of the U.C.C., states:
In Chandler, the court specifically stated that the violation of the obligation imposed by § 7-1-203 does not give rise to a claim on which relief may be granted. In Government Street Lumber Co. v. AmSouth Bank, 553 So. 2d 68 (Ala.1989), this Court adopted verbatim the reasoning of the Court of Civil Appeals in Chandler, and held that § 7-1-203 was intended to be directive, not remedial. 340 So. 2d at 821.
The plaintiffs attempt to distinguish these two cases by arguing that the issue in those cases involved the implied obligation of good faith found in the Uniform Commercial Code, not an express obligation of good faith found in a written commercial contract, as in this case. The plaintiffs cite us to no Alabama authority suggesting that a written obligation of good faith would create a higher duty on a contracting party than that imposed by the law of contracts, and we have found none. We find no support for the contention that the breach of an express obligation is actionable where the breach of the same obligation, if merely implied, would not be. In fact, "whatever is necessarily implied in a contract is as much a part thereof as if expressly stated therein." Broyles v. Brown Engineering Co., 275 Ala. 35, 151 So. 2d 767 (1963).
This Court has clearly and specifically held that a duty of good faith in connection with a contract is directive, not remedial, and that therefore an action will not lie for breach of such a duty. Government Street Lumber Co., 553 So. 2d 68. The directive nature of the duty is in no way related to the fact that it is implied rather than expressed. Accordingly, we agree with the trial court's conclusion:
Based on the foregoing, we hold that the plaintiffs' breach of contract claimthat Church's breached the good faith provision of the purchase agreementwas properly dismissed.
There are no public policy considerations that would cause us to hold otherwise. In Chavers v. National Sec. Fire & Cas. Co., 405 So. 2d 1, 6 (Ala.1981), we set out the policy consideration that led us to recognize the intentional tort of bad faith in first-party insurance actions:
This policy consideration, which underpins our recognition of a redressable tort in the case of an intentional breach of good faith in the context of first-party insurance contracts, is not present in the context of contracts between these private parties, both commercial enterprises. The plaintiffs and Church's were represented by counsel during negotiations and upon execution of the purchase agreement; neither the plaintiffs nor Church's was at its "weakest [or] most perilous time of need."
Because we hold that there is no remedy for breach of an express promise in a contract to "act in good faith," we do not address whether there is substantial evidence in the record to support the plaintiffs' claim. Therefore, based on the facts of the present case, we hold that in order to prove a breach of the purchase agreement on the part of Church's, the plaintiffs must prove that Church's expressly breached some other specific term of the purchase agreement.
Regarding the specific terms of this purchase agreement, it is well settled that words ought to be given their ordinary meaning, and the intention of both parties is to be derived from the provisions of the purchase agreement itself. See Food Service Distributors, Inc. v. Barber, 429 So. 2d 1025, 1028 (Ala.1983). Furthermore, it is elementary that the terms of the written purchase agreement, not the mental operations of one of the parties, control its interpretation. See Kinmon v. J.P. King Auction *453 Co., 290 Ala. 323, 325, 276 So. 2d 569, 570 (1973).
Because the terms of the purchase agreement are unambiguous, it was the trial court's duty to analyze and determine the meaning of the purchase agreement. When appropriate, the meaning of a contract may be determined at the summary judgment stage. Government Street Lumber Co., 553 So. 2d 68, citing Williams v. Bank of Oxford, 523 So. 2d 367 (Ala. 1988); Medley v. SouthTrust Bank, 500 So. 2d 1075 (Ala.1986); Colonial Bank v. Coker, 482 So. 2d 286 (Ala.1985).
We hold that the finder's fee provisions of the contract are clear and unambiguous and that the trial court properly construed them according to their ordinary interpretation to mean that Church's owed the plaintiffs a finder's fee only for restaurants that produced gross sales. See Terry Cove North, Inc. v. Baldwin County Sewer Authority, Inc., 480 So. 2d 1171 (Ala. 1985); Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190 (Ala.1978). Church's did not breach the contract by closing the three franchises and thereby depriving the plaintiffs of the concomitant finder's fee.
The plaintiffs amended their complaint to claim liability on the theories of fraud and suppression of a material fact. See Ala.Code (1975), § 6-5-101. Church's claims that there was no evidence to support these theories, and that claims based on them were time-barred, in any event.
This Court set forth the elements of fraud in Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752, 754 (Ala.1981), as follows:
The plaintiffs contend that they were promised that any future franchise contracts with former Crispy Chick franchisees would have initial terms of 15 years. The contract was entered into in December 1985, and the subsequent franchise agreements were entered into during the following year. The plaintiffs contend that they did not become aware that the franchise contracts did not have 15-year terms until March 1990, and that prior to this time they were unaware of the terms of the franchise contracts entered into between Church's and the plaintiffs' former franchisees.
The trial court properly concluded that these claims are barred by the applicable two-year statute of limitations. Ala.Code 1975, § 6-2-3. The court noted that "even if the plaintiffs did not have actual knowledge of the contents of the franchise agreements, the information was available from sources which were readily accessible.... The evidence is clear that the plaintiffs had access to such information but did not act on it." We agree. The law requires that a plaintiff exercise reasonable diligence in determining the facts of an alleged fraud. Batchelor v. Batchelor, 502 So. 2d 751, 754 (Ala.1987).
Furthermore, even if the fraud and suppression claims were not time-barred, they are not supported by the evidence. The contract lacks any suggestion that franchise terms would last 15 years. Furthermore, it does not appear that the plaintiffs were damaged by any such alleged fraud, because they were aware that the standard franchise agreement that was attached to the contract and made a part of it allowed the franchisee to terminate at any time on 60 days' notice.
Summary judgment is proper only when the record, viewed in the light most favorable to the nonmoving party, shows that *454 there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Patrick v. Crain, 571 So. 2d 285 (Ala.1990). In the present case, the facts in the record fail to show evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach a different conclusion as to the material facts. The lack of any evidence of breach of contract or fraud makes the summary judgment appropriate.
For the foregoing reasons, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., concurs in the result.
[1] The finder's fee paid to the plaintiffs by Church's with respect to each of the restaurants from the date of purchase until the date of closing was approximately the following:
The owner of the converted franchise store in Centreville was permitted to voluntarily terminate its franchise agreement with Church's and to cease operating its restaurant as a Church's franchisee. Church's permitted the restaurant to be operated as an independent "Chick-A-Dee" restaurant.
The finder's fee paid to the plaintiffs with respect to the restaurant in Centreville was approximately $7,708.76. | March 15, 1991 |
631406bf-7a54-4f14-9e22-28352acd7d66 | McDuffie v. BRINKLEY, FORD, CHESTNUT AND ALDRIDGE | 576 So. 2d 198 | N/A | Alabama | Alabama Supreme Court | 576 So. 2d 198 (1991)
Glenn L. McDUFFIE
v.
BRINKLEY, FORD, CHESTNUT AND ALDRIDGE, a partnership.
89-1225.
Supreme Court of Alabama.
February 15, 1991.
*199 Glenn L. McDuffie, pro se.
Douglas C. Martinson of Martinson & Beason, Huntsville, for appellee.
STEAGALL, Justice.
The plaintiff, Glenn L. McDuffie, appeals from a summary judgment in favor of the defendants, members of the law firm of Brinkley, Ford, Chestnut and Aldridge, an Alabama partnership (hereinafter referred to as the "Brinkley firm"). McDuffie contends that the defendants, as attorneys representing him, failed to exercise the proper standard of care in their representation and that their actions and/or omissions constituted legal malpractice that proximately caused him injury.
McDuffie's contentions arise out of Daniel Aldridge's representation of McDuffie in a civil action brought by McDuffie against Westinghouse Electric Corporation, Richard W. Hunt, and Ali Shojaee (hereinafter collectively referred to as "Westinghouse"). In that case, one defendant was dismissed with prejudice while the action was in Madison Circuit Court. The case was later transferred to the United States district court. On April 11, 1989, the district court granted a motion for summary judgment for the two remaining defendants. The trial court's decision was later affirmed by the 11th Circuit Court of Appeals. McDuffie v. Westinghouse Elec., 892 F.2d 88 (11th Cir.1989).
Subsequently McDuffie sued the Brinkley firm in the Circuit Court of Madison County, alleging legal malpractice in its representation of him in the Westinghouse lawsuit.[1] Specifically, McDuffie alleged that the Brinkley firm failed to file his lawsuit against Westinghouse in a timely manner, failed to investigate McDuffie's claim adequately, negligently added an improper defendant to the initial lawsuit, failed to diligently pursue the express wishes of the client, and failed to perform other terms and conditions of the firm's contract with him. The trial court found no merit to any of McDuffie's allegations.
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; 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, the Brinkley firm, in support of its motion in the light most favorable to the nonmovant, McDuffie. Hanners, supra, and Bass, supra. With this standard in mind, we now address the merits of McDuffie's contention.
We have stated before that in a legal malpractice case a plaintiff must prove, basically, the same that must be proven in an ordinary negligence suit. Moseley v. Lewis & Brackin, 533 So. 2d 513, 515 (Ala.1988); Tyree v. Hendrix, 480 So. 2d 1176 (Ala.1985). Thus, the elements McDuffie must prove in order to support his legal malpractice claim are a duty, a breach of that duty, an injury, that the breach was the proximate cause of the injury, and damages. Moseley, supra; Tyree, supra; and Herston v. Whitesell, 348 So. 2d 1054 (Ala.1977). In a legal malpractice case, the plaintiff must show that but for the defendant's negligence he would have recovered on the underlying cause of action, Johnson v. Horne, 500 So. 2d 1024 (Ala.1986), or must offer proof that the outcome of the case would have *200 been different. Hall v. Thomas, 456 So. 2d 67 (Ala.1984).
It is undisputed that the Brinkley firm did not file a complaint in McDuffie's case against Westinghouse until three months after the firm had agreed to take the case. However, McDuffie's complaint alleges that the Westinghouse defendants were all involved with the "Iran-Contra Affair" and were in a conspiracy to murder him. McDuffie sought civil damages based on these allegations. The Brinkley firm argues that because of the seriousness of the allegations and possible legal ramifications of filing such a suit it acted reasonably by investing much time into carefully investigating the merits of McDuffie's claims. McDuffie offered no evidence to refute the firm's evidence of reasonableness and offered no evidence to prove how he was damaged by the firm's delay. Although clearly the filing of the complaint was delayed, it was filed well within the statutory period of limitations. McDuffie has failed to show by substantial evidence that there is a genuine issue of material fact as to the Brinkley firm's delay in filing the complaint.
McDuffie's claim that the Brinkley firm failed to investigate his case is also not supported by substantial evidence. The only evidence of record is that the Brinkley firm hired Nancy Bence, a private investigator, for the specific purpose of investigating McDuffie's allegations prior to the filing of the complaint against Westinghouse. There was no other evidence offered by either party regarding this issue. Thus, this claim was not supported by the evidence.
McDuffie's claim concerning the Brinkley firm's alleged negligence in adding an improper defendant was also not supported by substantial evidence. The allegedly improper defendant was Shojaee, who was added at the insistence of McDuffie; however, the trial court found no proof to link Shojaee to the alleged conspiracy to murder McDuffie. In addition, McDuffie failed to offer any further proof to dispute the trial court's finding.
McDuffie makes two arguments based on a contention that the Brinkley firm's legal strategy for the case conflicted with his express wishes as a client. The Brinkley firm argues that it pursued a strategy in McDuffie's case that was well within the standard required of attorneys. The Brinkley firm offered the discovery documents as proof of its diligence in pursuing the express wishes of McDuffie without exposing him to further legal consequences. McDuffie offered no proof that any "standards" were breached by the Brinkley firm. McDuffie also claims that the $10,000 fee he paid to the Brinkley firm was not accounted for as he requested. However, the Brinkley firm offered undisputed evidence that over 100 hours were billed to McDuffie and it offered four volumes of pleadings that had accumulated over the several years of the Westinghouse litigation to justify its fee. As to both claims, McDuffie failed to show by substantial evidence that there was a genuine issue of material fact.
Therefore, from our review of the record, we conclude that McDuffie did not present to the trial court substantial evidence to create a genuine issue of material fact as to whether any negligence was committed by the Brinkley firm. Thus, the trial court correctly entered the summary judgment in favor of the defendants. That judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] McDuffie's original complaint was "filed pursuant to the Alabama Legal Services Liability Act," Ala.Code 1975, §§ 6-5-570 through -581, which became effective on April 12, 1988. McDuffie amended his complaint on January 16, 1990, to delete all references to the "Liability Act." The appellees contend that because all legal services rendered to McDuffie occurred prior to April 12, 1988, the "Liability Act" did not apply to the attorney/client relationship between the Brinkley firm and McDuffie. Because McDuffie amended his complaint to remove this reference, we need not reach the merits of the appellees' argument. | February 15, 1991 |
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