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bb2c1c8d-4ccd-4625-b927-42c8f0ac26b2 | Dannelley v. Guarino | 472 So. 2d 983 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 983 (1985)
Gary Lee DANNELLEY and Doris Lanette Dannelley
v.
Mike GUARINO and William Howe.
No. 84-263.
Supreme Court of Alabama.
May 31, 1985.
Fred W. Killion, Jr. and William W. Watts of Reams, Vollmer, Phillips, Killion, Brooks & Schell, Mobile, for appellants.
James B. Rossler of Stout & Roebuck, Mobile, for appellees.
SHORES, Justice.
Plaintiffs appeal the dismissal of defendants Mike Guarino and William Howe from *984 this action to recover damages for personal injuries. We reverse and remand.
On April 1, 1983, Gary Dannelley and his wife, Doris Dannelley, filed a multi-count complaint in the Circuit Court of Mobile County, seeking damages for personal injuries sustained by Gary Dannelley on April 14, 1982, when the aerial bucket lift in which he was working collapsed. The plaintiffs alleged that the lift was owned by the City of Mobile, and that Dannelley was working at the time of his injury as a city employee.
The complaint stated a cause of action against several named defendants, including various alleged manufacturers and suppliers of the lift or certain component lift parts; an insurance company which allegedly had a duty to perform safety inspections for the City of Mobile; the City's safety director, Porter F. Chambers; and a number of fictitious defendants, including:
The complaint also stated a cause of action for loss of consortium on behalf of Doris Dannelley.
On May 4, 1984, the plaintiffs discovered that, prior to the time of Dannelley's injury, the lift in question had been condemned as unsafe by the City's safety director, Porter F. Chambers, and the superintendent of the City's electrical department and, thereafter, was stored for auction at the municipal garage. The municipal garage was under the supervision of William Howe, who, it was also learned, had undertaken, prior to Dannelley's injury, a program for the testing and certification of aerial lift equipment owned by the City. It was further learned that, subsequent to the condemnation, Mike Guarino, head of the Building and Grounds Department, ordered the lift back into use for his department.[1]
On July 17, 1984, the plaintiffs amended the complaint, substituting Mike Guarino for fictitious defendant "K" and, on October 31, 1984, again amended the complaint, substituting William Howe for fictitious defendant "N." Both defendants filed motions to dismiss, asserting that the claim against them was time barred. The trial court granted the motions and entered final judgment, pursuant to Rule 54(b), Alabama Rules of Civil Procedure.[2] The plaintiffs appeal.
The plaintiffs, by amendment, added Guarino and Howe to the original suit after the one-year statute of limitations for negligence actions would have expired. Therefore, in order for the plaintiffs' claim against these defendants not to be time barred, the substitution must relate back under Rule 9(h), A.R.Civ.P., pursuant to Rule 15(c), A.R.Civ.P.
In Browning v. City of Gadsden, 359 So. 2d 361, 363-64 (Ala.1978), the Court observed:
"This court has found that the principal area of operation of Title 7, section 136, and its statutory predecessors, is in emergency cases where neither the name nor the identity of the defendant is known, as where the cause of action is known but the party liable is not, and there is urgent need to get service of process upon the party against whom the plaintiff has an action, or there is need for immediate seizure of property. McKelvey-Coats Furniture Co. v. Doe, 240 Ala. 135, 198 So. 128 (1940); Roth v. Scruggs, 214 Ala. 32, 106 So. 182 (1925).
"In the present case, Browning clearly knew the `name' of the City of Gadsden at the time she filed her original complaint. Therefore, the central question here is whether Rule 9(h) permits the substitution of a named party for a fictitious one and allows the amendment doing so to relate back even if, at the time of the filing of the original complaint, the plaintiff knows the true name of the defendant but is ignorant of facts giving her a cause of action against such defendant.
"This court recently discussed the interpretation of Rule 9(h) in Hinton v. Hobbs, 349 So. 2d 28 (Ala.1977). Briefly stated, the pertinent facts of that case were that the trustee for the estate of Hinton brought suit against two named defendants and
In the more recent case of Columbia Engineering International, Ltd. v. Espey, 429 So. 2d 955 (Ala.1983), the Court reenunciated the criteria to be met in order to *986 invoke the relation back principles of Rules 9(h) and 15(c), stating:
429 So. 2d at 958-59, 960.
The plaintiffs contend that the substitution of Guarino and Howe complies with the requirement of Rules 9(h) and 15(c), and, therefore, relates back to the time of the filing of the complaint. They argue that a cause of action against the fictitious defendants was stated within the body of the complaint and that they were ignorant of the identity of those fictitious defendants, in the sense of having no knowledge at the time of the filing of the complaint sufficient to identity Guarino and Howe as parties also intended to be sued.
The defendants contend that the plaintiffs had knowledge of their names and positions of authority with the City. They argue that such knowledge implies knowledge of a potential cause of action for the negligent performance of safety inspections. We disagree.
As in Browning, supra, the record is devoid of any factual allegations which would indicate that the plaintiffs, prior to May 4, 1984, had knowledge of any facts concerning Guarino and Howe's possible involvement in their personal injury. The affidavits filed by the plaintiffs in support of their motion to reconsider, the factual statements of which were not disputed, show that the City of Mobile had a safety director vested with the responsibility of inspecting city-owned equipment, such as the life in question, and with the authority to condemn the same as potentially unsafe. The plaintiffs named Porter F. Chambers, the safety director, as an original defendant in this suit. The defendants' argument would have merit if either of them held a position with the City equivalent to that of a safety director or another position manifestly concerned with the safety inspection of city equipment so as to have put the plaintiffs on notice that they were, in fact, parties described fictitiously as having a duty to inspect the lift. The plaintiffs concede that they knew the names of Guarino and Howe and the positions which they held with the City. However, there is no evidence that the plaintiffs were aware or should have been aware at the time of the filing of the complaint that the duties of either defendant might, under certain circumstances, involve the safety inspection of city equipment.
Therefore, the criteria set forth in Columbia Engineering International, Ltd., supra, having otherwise been met, we hold that the amendments to the complaint related back to the date of the original filing and, consequently, the cause of action stated against the defendants is not barred by the running of the statute of limitations.
For the foregoing reasons, the judgment is hereby reversed and the case remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.
[1] Gary Dannelley was working in the Building and Grounds Department at the time of his injury.
[2] The plaintiffs filed a motion with the trial court, which was supported by affidavits, requesting that it reconsider the dismissals. The motion was subsequently overruled. | May 31, 1985 |
722db922-875d-4f05-9ced-e87e74a1ba5b | Horner v. First Nat. Bank of Mobile | 473 So. 2d 1025 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1025 (1985)
Avis C. HORNER
v.
The FIRST NATIONAL BANK OF MOBILE, Alabama, a National Banking Association.
84-239.
Supreme Court of Alabama.
June 7, 1985.
Rehearing Denied July 19, 1985.
*1026 Mayer W. Perloff of Reid, Perloff & Doyle, Mobile, for appellant.
Michael S. McNair of Noojin & McNair and Caine O'Rear, III, of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment in favor of the First National Bank of Mobile, creditor, against the guarantor on a note. We affirm.
Sometime prior to September 1982, Horner Cabinets, Inc., a corporation, was formed. The incorporators and officers included John Horner and Avis C. Horner, husband and wife. Avis Horner was secretary-treasurer of the corporation.
On September 29, 1982, John and Avis C. Horner signed a guaranty agreement whereby they agreed to unconditionally guarantee payment to the bank of all sums of money loaned to the corporation, Horner Cabinets, Inc., up to $40,000.00. This agreement was signed before a notary public, who took the individual acknowledgement of each signatory to the guaranty agreement, and who certified that each acknowledged before her that, being informed of the contents of the instrument, he or she executed it voluntarily on the date it bore.
Thereafter, on January 4, 1983, the bank loaned the corporation $20,000; subsequently, on March 23, 1983, the bank loaned the corporation an additional $10,000.
After the notes became overdue, the bank brought this action against Horner Cabinets, Inc., and John Horner and Avis C. Horner, jointly and individually. Avis C. Horner filed an answer denying the allegations of the complaint, denying that there was consideration for her signature on the guaranty agreement, and alleging that she was coerced into signing it. She subsequently filed a counterclaim against the bank, alleging that the bank had falsely and fraudulently represented to her that it would be necessary for her to execute the guaranty agreement before the bank would extend credit to her husband's business, Horner Cabinets, Inc.
The bank filed a motion for summary judgment against Avis C. Horner on her counterclaim. This motion was supported by an affidavit of an officer of the bank who agreed with Mrs. Horner's contention that she was told that her signature was necessary before the bank would extend a line of credit to the family corporation. Avis Horner's affidavit to the effect that there was no consideration for the *1027 guaranty agreement extended to her and that her signature was coerced by the bank, in that it had already loaned the money to the corporation, is insufficient as a matter of law to raise a genuine issue of fact. The first contention, that there was no consideration for the guaranty agreement, is conclusively rebutted by the undisputed fact that the bank subsequently loaned the corporation $30,000. The second, that she signed the agreement without knowing what it was, is inadmissible where the instrument itself carries an acknowledgement by the signatories, who swore that they were informed of its contents and voluntarily signed it.
To prevent summary judgment, after the movant has prima facie shown himself to be entitled to judgment as a matter of law, the opposing party must show by admissible evidence that a genuine issue of material fact exists which requires resolution by a factfinder. Alabama Rules of Civil Procedure, Rule 56(e). It is not enough that the opposing party merely disputes or refutes an immaterial fact, nor is it enough that evidence which is inadmissible under the normal rules of evidence is advanced to contravene that of the movant. Real Coal, Inc. v. Thompson Tractor Co., 379 So. 2d 1249 (Ala.1980); Morris v. Morris, 366 So. 2d 676 (Ala.1978); Federal Land Bank of New Orleans v. Terra Resources, Inc., 373 So. 2d 314 (Ala.1979).
Real Coal, Inc. v. Thompson Tractor Co., supra, is particularly applicable here. There, the Court held, speaking through Beatty, J.:
379 So. 2d at 1250-51. See, also, Shipp v. First Alabama Bank of Gadsden, 473 So. 2d 1014 (Ala.1985).
Once the movant has carried his burden, which is frequently a heavy one, to eliminate any issue of material fact and makes a prima facie showing that he is entitled to judgment as a matter of law, the burden shifts to the nonmoving party to show, by admissible evidence, the existence of a material fact. This Avis Horner has failed to do. Therefore, the trial court did not err when it granted summary judgment in favor of the bank. That judgment, certified pursuant to Rule 54(b), A.R.Civ.P., as final, is due to be affirmed.
Inasmuch as we hold that the trial court did not err in granting summary judgment in favor of the bank on the counterclaim, when the counterclaim is viewed on its merits, we need not consider the bank's arguments, and the appellant's counter-argument, with regard to the statute of limitations as it relates to the counterclaim, nor need we address the failure of the counterclaimant to seek leave of court to amend her answer to later add a counterclaim under A.R.Civ.P., Rule 13(b) and (c).
The judgment is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | June 7, 1985 |
e9e3bf5e-f009-4c1d-9a92-3932ea42669a | Drennen Land & Timber Co. v. Angell | 475 So. 2d 1166 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 1166 (1985)
DRENNEN LAND AND TIMBER COMPANY
v.
Ola C. ANGELL, Curtis Standridge, and Estell Standridge.
83-947.
Supreme Court of Alabama.
June 21, 1985.
*1167 William Bew White and Braxton Schell, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellant.
Alexander M. Smith, Oneonta, for appellee Ola C. Angell.
Jack Martin Bains, Oneonta, for appellees Curtis Standridge and Estell Standridge.
BEATTY, Justice.
This is an appeal from a judgment in favor of the defendants in plaintiff's suit to quiet title to certain real property. We affirm in part and reverse and remand in part.
By its complaint, Drennen Land and Timber Company (Drennen), sought to quiet title to all of the Southwest quarter (SW ¼) of the Northeast quarter (NE ¼), and the Southeast quarter (SE ¼) of the Northeast quarter (NE ¼) lying south of the Warrior *1168 River in Section 18, Township 13 South, Range 1 West, situated in Blount County. (See Diagram A.) John J. Angell and his wife, among others, were named defendants. An amendment to the bill added Curtis Standridge and wife as owners of a portion of the land in dispute. John J. Angell died after this action was filed, and his widow proceeded in his behalf, filing an answer and a counterclaim asserting that he had acquired title to a portion of the SW ¼ of the NE ¼ (see Diagram B) by deed from the Standridges. Defendants Standridges answered Drennen's complaint and alleged that they had acquired title to a portion of the SE ¼ of the NE ¼ (see Diagram C) by deed from Mr. and Mrs. Henry Standridge and also that they had acquired title through adverse possession.
The case was tried without a jury. The trial court and the attorneys took a view of the property during the hearing, following which the trial court decreed:
The underlying basis for the trial court's finding in favor of the defendants was:
Plaintiff contends upon appeal that (1) it has a record title in the property superior to any asserted by the defendants, and (2) that superior title could not be defeated by a claim of adverse possession by prescription which consisted of occasional acts of *1169 cutting timber and possession which were not exclusive.
In support of its assertion that it is the holder of record title to the property in dispute, plaintiff offered a deed from one A. Vaughn and wife, executed and recorded in 1884, conveying to Mary T. Gilliam:
In 1908, W.M. Drennen (sometimes referred to as Mel Drennen or Walter Melville Drennen) began obtaining deeds from the Gilliam heirs. He first acquired a deed from W.A. Gilliam and wife conveying to him a one-ninth interest in
During 1909 W.M. Drennen acquired three other deeds also conveying a one-ninth interest in essentially the same described property. In 1910 L.P. and Katie Warren executed a deed conveying to W.M. Drennen a one-ninth interest in property described in the same terms used in the Vaughn-to-Gilliam deed. (See Diagram D.) All of these deeds to W.M. Drennen were recorded in or before 1910.
In 1922, W.M. Drennen acquired and recorded eight quitclaim deeds from various persons, some of whom had earlier conveyed to him their one-ninth interest. Each of these quitclaim deeds conveyed to W.M. Drennen the SE ¼ the NE ¼ of the SW¼ and that portion of the NE ¼ south of the Warrior River. (See Diagram E.) L.P. and Katie Warren were not among the grantors of these quitclaim deeds. Plaintiff claims title to the disputed tracts through a series of deeds and wills from the relatives of W.M. Drennen.
Defendants Standridges introduced a deed to one John H. Hambrick, dated April 9, 1887, conveying:
This deed was recorded on October 16, 1911. A deed from John H. Hambrick and wife to S.T. Rylant, describing the same property, was executed on November 23, 1889, and recorded on March 4, 1913. S.T. Rylant conveyed this land to Louis Johnson by deed dated February 18, 1919. This deed, however, was not recorded.
Standridge also introduced a deed, dated August 19, 1968, from the heirs of Louis Johnson to Curtis Standridge and wife, Estell Standridge, conveying the Southwest quarter (SW ¼) of the Northeast quarter (NE¼), and the Southeast quarter (SE¼) of the Northwest quarter (NW ¼) of Section 18, Township 13 South, Range 1 West (see Diagram G), "80 acres, more or less," with the following additional description:
This deed was recorded in 1968.
Following this, Standridge introduced a deed from himself and his wife to John J. Angell, Jr., and wife, Ola C. Angell, executed on December 1, 1971, containing the following description:
This deed was recorded on December 1, 1971.
As to the disputed tract in the SE ¼ of the NE ¼ Standridge introduced a deed from Henry and Ella Standridge to himself and his wife conveying, among other things:
This deed was executed on December 1, 1965, and recorded March 5, 1973.
Certain timber deeds were also introduced into evidence. In 1937, persons under whom plaintiff claims conveyed all of the merchantable timber in that part of the Southwest quarter (SW ¼) of the Northeast quarter (NE ¼) of Section 18, Township 13, Range 1 West, lying south of the Black Warrior River, being 20 acres more or less. This deed was recorded in 1937. Again, by deed executed in 1942, plaintiffs' predecessors conveyed the merchantable timber on 20 acres in the South half (S ½) of the Northeast quarter (NE ¼) of Section 18, Township 13, Range 1 West, lying south of the Black Warrior River. This deed was recorded on October 23, 1942.
The defendants also introduced timber deeds. One of these, executed and recorded on January 26, 1939, by Clemmine, C.L., Mable, Olen, and Mary Wesson, conveyed the timber in the Southeast quarter (SE ¼) of the Northeast quarter (NE ¼) of Section 18, Township 13 South, Range 1 West. Another timber deed was executed January 26, 1939, by Louis and Judith Johnson, conveying that part of the Southwest quarter (SW ¼) of the Northeast quarter (NE ¼), Section 18, Township 13, Range 1 West, lying north and east of the Black Warrior River, "being all the land owned by us in Hicks Bend." Although defendant Standridge introduced another timber deed conveying timber on "[t]he SW ¼ of NE ¼ SE ¼ of NW ¼ that part of SE ¼ of NE ¼ that lies South and East of Warrior River" in Section 18, Township 13, Range 1 West, this document, dated September 30, 1968, was unsigned and unrecorded.
It is well settled that:
Silverman v. Charmac, Inc., 414 So. 2d 892, 894 (Ala.1982).
Gulledge v. Frosty Land Foods Int'l, Inc., 414 So. 2d 60, 63 (Ala.1982). Moreover, the presumption of correctness of the trial court's findings is "especially strong in adverse possession cases," Scarbrough v. Smith, 445 So. 2d 553, 556 (Ala.1984), and "this court will rarely disturb the judgment of the trial court in a boundary line dispute or adverse possession case which turns on issues of disputed facts." Thomas v. Davis, 410 So. 2d 889, 892 (Ala.1982).
With these principles in mind, we begin our review of the trial court's findings in this case. First, however, we must determine whether plaintiff Drennen is correct in its assertion that it is the holder of record title to the disputed tracts. We find that it is not.
The 1884 deed from Vaughn to Gilliam conveyed property described as "that portion of the South half [S ½] of the *1171 Northwest quarter [NW ¼] lying South of the Warrior River," in addition to other property. It is clear that the property conveyed to Gilliam (see Diagram D) does not include the property currently under dispute (see Diagram A). "A deed that describes land by governmental subdivisions does not convey other land or an area outside of such description." M.C. Dixon Lumber Co. v. Mathison, 289 Ala. 229, 237, 266 So. 2d 841, 848 (1972). Clearly, then, the Gilliam heirs had no actual title to "that part of the South half [S ½] of the North East quarter [NE ¼] lying South of the river," which they subsequently conveyed to W.M. Drennen. All W.M. Drennen acquired from the Gilliam heirs was color of title to the disputed lands in the northeast quarter. Color of title is defined as "a writing which, in appearance, purports to transmit title or the right of possession, but which, in reality, does not." Davis v. Townsend, 435 So. 2d 1280, 1282 (Ala.1983). The Gilliam heirs could not transfer title which they did not have.
As to the portion of the disputed property claimed by defendant Angell (the southwest quarter of the northeast quarter lying south of the riversee Diagram B), we are of the opinion that she, too, has only color of title. The Standridge deed to her described this property correctly, as did the 1968 Johnson-to-Standridge deed. (Because the Johnson deed conveyed the entire quarter/quarter section, it clearly included that portion south of the river.) However, the 1887 and 1889 deeds introduced by Standridge referred to property east of the river which may or may not include the tract south of the river. We need not make this determination, as a finding that Mrs. Angell had color of title under the Standridge and Johnson deeds is sufficient for our decision.
Section 6-5-200, Code of 1975, provides in pertinent part:
Both plaintiff Drennen and defendant Angell had recorded color of title 10 years before this action was commenced. Although defendant Angell's deed had not been recorded for 10 years at the time this suit was commenced, she may add to her recordation time "the time during which the deeds or color of title of those through whom [s]he claims [i.e., the Standridges] have been on record," which brings her within the 10 years required by the statute. See § 6-5-200(b).
The mere fact that a claimant's deed or color of title has been recorded for the 10 years next preceeding the commencement of the action does not confer upon the claimant title to the property. Recordation for 10 years is simply one of the requirements under the 10-year adverse possession statute, § 6-5-200. This recordation must be coupled with the necessary elements of adverse possession for the 10-year period in order to establish title by adverse possession. See Parrish v. Davis, 265 Ala. 522, 92 So. 2d 897 (1957). The following instructive language is found in Cameron v. Union Hill Baptist Church, 350 So. 2d 314, 315 (Ala.1977):
*1172 To determine whether an adverse claimant's acts were "a sufficient indication to all the world that [he] claimed ownership of the property in question ... we must look collectively to all the possessory acts of the claimant." Hurt v. Given, 445 So. 2d 549, 551 (Ala.1983). An adverse possessor need only use the land "in a manner consistent with its nature and characterby such acts as would ordinarily be performed by the true owners of such land in such condition." Hand v. Stanard, 392 So. 2d 1157, 1160 (Ala.1980).
The land involved in the present case is predominantly timberland. Although there was evidence that Drennen was paying taxes on this property and there was some testimony to the effect that it had placed this property under the management of a firm called Resource Management, Drennen has failed to show any acts of actual adverse possession during the 10 years preceeding the commencement of its action. In contrast, defendant Curtis Standridge testified that he sold the timber on this tract of land in 1968 and that no one from or representing Drennen protested this action. Additionally, he stated that he had paid the taxes on this portion of the disputed property from the time he purchased it from the Johnson heirs in 1968 until the time he sold it to the Angells in 1971. Mrs. Angell testified that, after she and her husband purchased this tract, they frequently held family picnics on this property; they had the property surveyed; they cleared underbrush; they marked off homesites for themselves and their children; and they paid the taxes on this property continuously from the date of purchase. No one from or representing Drennen ever objected to the Angells' activities.
Viewing the acts of Standridge and those of the Angells collectively, we find these acts sufficient to establish adverse possession under § 6-5-200. Consequently, the trial court's finding that Angell had acquired title through adverse possession[1] to that part of the southwest quarter of the northeast quarter lying south of the Warrior River is due to be affirmed.
Much of what we have said above concerning Drennen also applies to that part of the disputed property located in the southeast quarter of the northeast quarter (see Diagram C). Drennen has made no showing of any acts which would amount to adverse possession in the 10 years next preceeding this action. Therefore, it cannot have obtained title under § 6-5-200.
The Standridges' deed to this portion of the property executed by Henry and Ella Standridge in 1965 was not recorded until 1973, less than 10 years before the commencement of this action. Consequently, the Standridges do not meet the requirement of § 6-5-200(a)(1). While they may have paid the taxes on this property for the 10 years as required by § 6-5-200(a)(2), supra, they have failed to show the requisite acts of adverse possession. Curtis Standridge sold the timber on this land in 1968, but has failed to show continuous possessory acts since that time. Sporadic acts of cutting timber are insufficient to establish the necessary dominion for adverse possession. Thomas v. Davis, 410 So. 2d 889 (Ala.1982); Lay v. Phillips, 276 Ala. 273, 161 So. 2d 477 (1964).
Nor has either party established adverse possession for the 20-year prescriptive period. It is a fair conclusion from the evidence that timber had been cut from this portion of the disputed land by both the Standridges and Drennen's grantors, and others (the unidentified Wessons who executed a timber deed in 1939) as well. As we noted above, sporadic acts of cutting timber do not amount to adverse possession. Moreover, if both parties were exercising possessory rights in cutting the timber, then neither had the exclusive possession which must be established to successfully maintain a claim of adverse possession.[2]*1173 "One of the essential elements of adverse possession is that the possession must be exclusive. `Two persons cannot hold the same property adversely to each other at the same time.'"Beason v. Bowlin, 274 Ala. 450, 454, 149 So. 2d 283 (1962). We therefore conclude that the trial court's finding that the Standridges had acquired title through adverse possession to that part of the southeast quarter of the northeast quarter lying south of the Warrior River was incorrect and must be reversed.
In summary, the trial court's finding as to defendant Angell's ownership of the property located in the southwest quarter of the northeast quarter is due to be, and it is hereby, affirmed; the trial court's finding as to the ownership by the defendants Standridge of the property located in the southeast quarter of the northeast quarter is hereby reversed and the cause remanded.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.
*1174
*1175
*1176
[1] We note that the trial court based its finding on a determination that Angell had established adverse possession for the 20-year prescriptive period. As we shall demonstrate below, this determination is not supported by the facts. Nevertheless, the trial court's ultimate finding of title in Angell through adverse possession is correct under our analysis set forth above.
[2] This is the same situation which existed with regard to that portion of the disputed property located in the southwest quarter of the northeast quarter (the Angell property). Both Drennen's grantors and the persons under whom the Angells claimed had cut timber. Therefore, neither party could acquire title by adverse possession under the 20-year prescriptive period. | June 21, 1985 |
296f8b41-9832-4bec-8fa7-8ae1f9dbd55b | City of Birmingham v. Tutwiler Drug Co., Inc. | 475 So. 2d 458 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 458 (1985)
CITY OF BIRMINGHAM, a municipal corporation
v.
TUTWILER DRUG COMPANY, INC., and Streetlife, Inc.
CITY OF BIRMINGHAM, a municipal corporation
v.
TUTWILER DRUG COMPANY, INC., et al.
Nos. 82-1007, 82-1287.
Supreme Court of Alabama.
June 7, 1985.
Rehearing Denied August 23, 1985.
*459 Alton B. Parker, Jr. and J. Stuart Wallace, of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellant.
W. Eugene Rutledge and Kay S. Kelly of Rutledge, Fay and Kelly, Birmingham, for appellees.
FAULKNER, Justice.
Tutwiler Drug Company filed an action for a declaratory judgment against the City *460 of Birmingham, its mayor, and its city council members to determine the validity of a resolution adopted by the Birmingham City Council for the redevelopment of Block 60 in downtown Birmingham. Tutwiler's complaint alleged that the City and its agents deprived it of rights and privileges secured by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution in adopting the resolution. It sought to have the resolution declared invalid and to recover damages under 42 U.S.C. § 1983 and attorney's fees under 42 U.S.C. § 1988. The trial court dismissed the action against the mayor and the city council members individually. Following the entry of a Rule 54(b), A.R. Civ.P., order, an appeal was taken to this Court, which affirmed the trial court's order. Tutwiler Drug Co. v. City of Birmingham, 418 So. 2d 102 (Ala.1982). After remand to the trial court, a hearing was conducted on the merits. The trial court ruled that the resolution in question was invalid and awarded Tutwiler $40,000.00 in damages and $105,798.50 in attorney's fees. The City of Birmingham appeals.
In 1979 the City of Birmingham undertook studies of land-use surveys and census data pertaining to downtown Birmingham, which culminated in the adoption of a Community Renewal Plan on September 11, 1979. The Community Renewal Plan was a generalized plan identifying areas in Birmingham which needed revitalization. Block 60, which lies between 4th and 5th Avenues North and 19th and 20th Streets, was within an area identified by the Community Renewal Plan as needing revitalization.
The City selected the joint venture of Costa and Demetriou to act as urban planning consultants in developing a Master Plan for the redevelopment of downtown Birmingham, an area circumscribed by the Red Mountain Expressway, Highland Avenue, Interstate Highway 65, and 11th Avenue North. Costa and Demetriou prepared a land-use map of the downtown area and made a survey of the physical characteristics of the buildings within the survey area and the uses to which the buildings were being put. Each building was classified as either sound, deteriorating, or dilapidated. Data regarding the uses of the various buildings, the capacity of existing traffic arteries and parking facilities, the existing market for goods and services, and demographic trends were collected.
In February of 1980 the consultants submitted an "Early Program of Action" to the city. Among other things, the plan provided for the construction of multi-use structures containing retail and residential units along 19th Street North, including the west half of Block 60. It also called for the construction of a major hotel adjacent to the First National-Southern Natural Building on the north half of Block 47 (the block immediately to the north of Block 60). A public presentation of the Early Program was made and the City Council adopted the plan. During the following June the city requested proposals from developers for implementing the plan.
During the early part of August 1980, First National Bank, which owned the site of the proposed hotel on Block 47, vehemently objected to the construction of a hotel on the parcel. On August 19, 1980, Costa and Demetriou advised the city that they had changed their recommendation with regard to the location of the hotel, and they recommended that it be placed on Block 60. The city's planners and its consultants took the position that locating the hotel on Block 60 in a major mixed-use development would have a greater impact on downtown than locating the hotel on Block 47. The relative advantages of placing the hotel on Block 60 and the belief that First National would eventually redevelop the north half of Block 47 even if it was not included in the redevelopment project led the city to decide to alter the plan with regard to location of the hotel. On August 26, 1980, the City Council passed a resolution designating Metropolitan Properties, Inc., as a developer with which the city would attempt to reach an agreement to redevelop Block 60. Development *461 of the project had to await completion and adoption of the Master Plan, however.
On March 24, 1981, the completed Master Plan was presented by the consultants to the Birmingham Planning Commission. The proposal to redevelop all of Block 60 was included in the plan which was presented to the commission. The Planning Commission approved the Master Plan and recommended it to the City Council for its approval. On May 5, 1981, the City Council held a public meeting to consider the Master Plan, and at that meeting it passed a resolution adopting the Master Plan as a comprehensive urban renewal and redevelopment plan for downtown Birmingham pursuant to Title 24, Chapters 2 and 3 (§§ 24-2-1 through 24-3-9), Code of Alabama.[1]
The consensus of the city's consultants participating in the master planning process was that the entire downtown area contained elements of blight. After adoption of the Master Plan, the city set out to find specific evidence of blight on Block 60. Inspectors from various city agencies, such as the Department of Inspection Services and the Fire Department, were instructed to conduct inspections of the buildings on Block 60 and to make reports of all defects found in the buildings. The Crime Analysis Section of the Birmingham Police Department made a report on crime statistics for Block 60. Data were compiled regarding the number and nature of businesses on the block, the physical lay-out of the improvements on the block, and the number of parking places. The data were given to a city planner, Larry Watts, who was charged with compiling and analyzing them. The city's legal staff used the data compiled by Mr. Watts in drafting a resolution to be presented to the City Council. The mayor and his aides reviewed the information compiled by the consultants and by the city's employees pertaining to Block 60 and recommended that the City Council adopt the resolution prepared by the city's legal staff providing for the redevelopment of the block.
*462 On August 25, 1981, the City Council held a public hearing on the proposed resolution. Tutwiler's president attended the meeting and its attorney made a statement on its behalf. On September 8, 1981, the Council adopted Resolution #1119-81, which became the Redevelopment Plan for Block 60. The resolution set out specific elements of blight existing on Block 60. It pointed out that the block is divided into 20 separate lots owned by 22 people, that it had three vacant buildings, and that sixteen businesses had moved away from the block during the preceding six years. It stated that most of the buildings occupied 100% of their lots and that there was an underutilization of the upper floors on the block. The resolution detailed numerous violations of the fire, electrical, plumbing, building, and housing codes. It also stated that serious policing problems existed on the block, and it set out a list of the types of crimes committed there during the preceding four years. It stated that the blight on the block had developed over a number of years and that the blight was increasing at an accelerated rate. The resolution concluded that, because of the block's location and its deteriorating condition, the redevelopment of Block 60 was pivotal to the revitalization of downtown Birmingham as proposed by the Master Plan; that the redevelopment of the block would eliminate blight on Block 60 and would reduce blight, blighting factors, and the causes of blight in other parts of the downtown area as well. The resolution concluded that it was necessary and in the public interest for the city to redevelop Block 60.
Tutwiler then brought this action to determine the validity of Resolution 1119-81. Tutwiler accused the city of using the determination of blight as a "subterfuge" to unlawfully and illegally acquire its property interests. At the trial of the case Tutwiler painted a picture of Block 60 which was very different than the one evoked by the description contained in the resolution. Tutwiler pointed out that some of the city's oldest and most respected merchants, such as Smith & Hardwick Bookstore, Action's Camera Shop, and Forbes Piano Co., to name only a few, were located on Block 60. The Goodyear Shoe Hospital had been in the same location on Block 60 for over sixty years, and several other merchants had been there over forty years. At the time the resolution was passed, over 95% of the available space on the block was occupied. Tutwiler argued that the buildings themselves were in excellent condition considering their age, and that they would be considered undesirable only in comparison with the very newest buildings in the downtown area. In support of its contention that the buildings on Block 60 were not deteriorated, Tutwiler introduced copies of the original reports made by the city's inspectors. The reports contained favorable comments about the condition of the buildings on the block.
The trial court issued a 17-page opinion containing detailed findings of fact. Much of the opinion deals with the city's use of the inspectors' reports. Several reports contained qualifying remarks about the conditions of the buildings. The building inspector and the housing inspector referred to the substandard conditions on Block 60 as "minor" problems necessitating only "minor repairs." The electrical inspector categorized the items on his list as "minor or easily repaired." He concluded that Block 60 was "in pretty good shape as far as its electrical work is concerned." The inspector from the Fire Department stated that none of the conditions he found were "eminent fire hazards." The data from the reports were incorporated into the resolution without including any of the qualifying remarks contained in those reports. The trial court found:
Based on the findings set out in the decree, the court ordered:
(1) that the city lacked the power under Chapter 2 to condemn Block 60 because Chapter 2 of Title 24 pertains to housing and residential neighborhoods, not business districts;
(2) that the actions of the City Council in adopting the resolution were arbitrary and capricious; and
(3) that the city was liable to Tutwiler for damages in the amount of $40,000.00 based on its claim under 42 U.S.C. § 1983.
In separate orders the court awarded the plaintiff attorney's fees in the amount of $105,798.50 under 42 U.S.C. § 1988 and ordered the city and its attorney to pay Tutwiler $7,175.00 in attorney's fees based on a motion for sanctions.
The trial court ruled that Title 24, Chapter 2, of the Code of Alabama 1975 is applicable only to predominantly residential property and that it does not authorize the city to condemn property used solely for business or commercial purposes. It pointed out that Chapter 2 is entitled "Housing" and that the emphasis throughout Chapter 2 "is on housing authorities, residential construction, and housing projects in general." The trial court concluded that since Block 60 was not a residential area and the proposed development was only marginally related to housing, Chapter 2 was inapplicable.
Tutwiler argues that redevelopment projects are intended to "stimulate residential construction," to "aid the production of better housing and more desirable neighborhoods," and to make possible a "more stable and larger volume of residential construction." Section 24-2-1(a)(4), Code of Alabama 1975. Chapter 2 fails to state at any point that it is applicable to commercial areas and does not even mention the words "business," "commercial," or "merchants." Furthermore, in Brammer v. Housing Authority of Birmingham, 239 Ala. 280, 282, 195 So. 256 (1940), this Court stated that "Housing Authority" statutes were intended to provide "a better quality of homes for a class of citizens of moderate means" and to eradicate "slum districts."
Chapters One, Two, and Three of Title 24 were enacted for the purpose of enabling Alabama and its subdivisions to take advantage of federal funds available pursuant to federal housing, redevelopment, and urban renewal acts. The housing authority statutes referred to in Brammer are now codified in Chapter 1 of Title 24. Chapter 1 was enacted to secure federal aid offered pursuant to the United States Housing Act of 1937, 42 U.S.C. § 1401, et seq. Chapter 2 of Title 24, entitled "Redevelopment Projects," was passed in response to the Housing Act of 1949, 42 U.S.C. § 1441, et seq. Chapter 3 of Title 24 was passed in response to the 1954 amendments to the 1949 act providing for urban renewal projects, 42 U.S.C. § 1450, et seq.
Since Resolution 1119-81 proposed clearing Block 60 of its buildings and constructing new ones in their places, Chapter 2, which concerns redevelopment projects, contains the applicable standards. Since the Alabama statutes were enacted to implement federal legislation, we will examine the intent of the Congress in passing the federal acts in an attempt to determine what sort of property can be taken under the Alabama statutes for redevelopment projects.
As it was originally enacted in 1949, the federal housing act was applicable only to slum areas which were "predominantly residential in character" or areas which were "to be developed or redeveloped for predominantly residential uses." See Housing Act of 1949, July 15, 1949, ch. 338, Title I, Sec. 110(c). The purpose of the 1949 act was to help remove the impact of slums on human lives rather than to redevelop or rebuild cities. Senate Report No. 84, February 25, 1949, Vol. 2, 1959 U.S. Code Congressional Service 1550, 1563. Although *464 the 1949 act was limited to development of primarily residential areas, the act was subsequently amended to broaden its scope. In 1954 the act was amended to allow slum clearance and urban renewal of areas which were not predominantly residential but which contained "a substantial number of slum, blighted, deteriorated or deteriorating dwellings or other living accomodations" where the areas were unsuitable for redevelopment for residential uses. Housing Act of 1954, August 2, 1954, ch. 649, Title III, § 311, 68 Stat. 626. The following year the 1949 act was again amended to broaden its scope. The 1955 amendment provided that land which was predominantly nonresidential in character could be developed for predominantly nonresidential purposes "if the governing body of the local public agency determines that such redevelopment for predominantly nonresidential purposes is necessary and appropriate to facilitate the proper growth of the community in accordance with sound planning standards and local community objectives and to afford maximum opportunity for the redevelopment of the project area by private enterprise." Housing Amendments of 1955, August 11, 1955, ch. 783, Title I, § 106(c), 69 Stat. 637. In 1959 Congress again amended the 1949 act. The Housing Act of 1959 provided for nonresidential urban renewal and redevelopment if "the governing body of the local public agency determines that the redevelopment of such an area for predominantly nonresidential uses is necessary for the proper development of the community." September 23, 1959, Pub.L. 86-372, Title IV, § 413, 73 Stat. 675, 677. In 1961 the act was again amended to allow a larger percentage of federal redevelopment funds to be spent for nonresidential projects.
While the primary purpose of the federal statutes is to improve housing conditions, nonresidential property may be acquired for commercial and industrial renewal and redevelopment. Although the 1949 act did not provide for commercial or industrial projects, over the years it became apparent to the Congress that the "economic, institutional, and cultural bases of community life" are vital to the creation and existence of good homes in sound urban neighborhoods. In recognition of the fact that the construction of good neighborhoods was intimately tied to the economic health of the community, exceptions to the "predominantly residential" requirement of the 1949 act were added and the percentage of federal funds available for such projects was from time to time increased to reflect the growing attention to the needs for downtown renewal. Senate Report No. 281, Housing Act of 1961, Vol. 2, 1961 U.S. Code Cong. & Admin. News at 1923, 1952-53.
While we agree with the trial court that the primary purpose of urban renewal and redevelopment statutes is the elimination of residential slums and the improvement of living conditions, the conclusion that only residential property can be condemned for redevelopment is unwarranted. There is nothing in the statute specifically limiting its application to residential areas. The federal acts on which Alabama's statutes were based clearly provide for the acquisition of commercial property for non-residential development. Non-residential development has previously been allowed under Alabama's renewal and redevelopment statutes. See Blankenship v. City of Decatur, 269 Ala. 670, 115 So. 2d 459, 460 (1959). The legislature many years ago determined that the problems of urban residential blight cannot be divorced from the problems of urban deterioration in general. It recognized that sound city planning often requires that rundown business districts be rehabilitated in order for urban residential districts to become attractive places to live. We therefore conclude that Chapter 2 of Title 24 is applicable to commercial and industrial property as well as to residential property.
The decision by an appropriate body to undertake a redevelopment project is legislative in character and must be upheld by the courts unless it is shown that the decision was the result of arbitrary and *465 capricious action or was induced by fraud or was made in bad faith. Housing Authority of Roosevelt City v. Nunn, 292 Ala. 60, 288 So. 2d 775, 776-77 (1974). The trial court found that the data compiled by the Community Development Department and provided to the city council in the proposed resolution were "either false or so out of context so as to be materially misleading." The court concluded that the city's employees intentionally misled the City Council as to the conditions on Block 60. As a separate and independent ground for its decision, the court also found that the resolution was arbitrarily and capriciously adopted.
We disagree with the trial court's conclusion that the resolution was induced by fraud. It does appear that the city employees charged with collecting data and drawing up the proposed resolution presented the data in a manner calculated to make the condition of the buildings appear as poor as possible. Even if we accept the trial court's premise that the description of the buildings in the proposed resolution was misleading, however, we cannot accept its conclusion that the resolution was induced by fraud. Both the chronology of the events leading up to the adoption of Resolution 1119-81 and the ample availability of information about the true conditions on the block from a wide variety of other sources belie the conclusion that the resolution was fraudulently induced by the misleading representations made by the city's employees.
Two years before Resolution 1119-81 was adopted, a Community Renewal Plan, which included Block 60 within the area targeted for revitalization, was passed. Four months before the adoption of Resolution 1119-81 the City Council approved the Master Plan, which provided for the redevelopment of Block 60. It was after the Master Plan, calling for the redevelopment of Block 60, was adopted by the City Council that the data in question were gathered. Coming as they did, after approval of the Master Plan, it does not seem reasonable to conclude that the alleged misrepresentations induced the City Council's adoption of the resolution. It appears that the decision to redevelop Block 60 had, in large part, already been made when the alleged misrepresentations occurred.
The impact of the city's data on the Council's ultimate decision must, we think, be viewed within the context of the other information available to the Council about the conditions on the block. The proposed redevelopment of Block 60 was an issue of considerable public debate in Birmingham. There was a great deal of attention devoted by the local media to the question of the redevelopment of Block 60 in general and to the question of locating a hotel on the east half of the block in particular. Block 60 is in a central location and it contained numerous businesses, with which anyone working in the downtown area, including members of the City Council, would probably have been familiar. Interested parties, including the plaintiff, presented testimony to the council about the block. Given the intense public debate associated with the redevelopment project, the highly visible location of the property, and the abundance of information about the true conditions on Block 60 available to the Council from numerous and diverse sources, it was purely conjecture on the trial court's part to conclude that the allegedly misleading data supplied by the community development department induced the adoption of the resolution.
It does not appear that the City Council acted fraudulently or in bad faith in adopting Resolution 1119-81. The Council did not, for instance, use the redevelopment statute as a pretext to oust some unpopular landowner or to benefit some private party. There was no evidence suggesting that the adoption of the resolution was not motivated by a desire to further the public good.
The trial court also found that the City Council's adoption of the resolution was arbitrary and capricious. In so finding, the court applied the "fairly debatable standard" as set out in Jefferson County v. O'Rorke, 394 So. 2d 937, 938 (Ala.1981), and City of Birmingham v. Morris, 396 So.2d *466 53, 55 (Ala.1981). Under that standard, the City Council's decision to redevelop Block 60 should not have been interfered with by the courts so long as it was based on a fairly debatable rationale. The courts are, of course, required to be more than rubber stamps for the city governments. Yonkers Community Development Agency v. Morris, 37 N.Y.2d 478, 373 N.Y.S.2d 112, at 120, 335 N.E.2d 327, at 333 (1975). The statute sets out the factors to be considered and it is the court's role to insure that the city's decision took into account a consideration of those factors. City of Phoenix v. Superior Court of Maricopa County, 137 Ariz. 409, 671 P.2d 387, 391 (1983).
Section 24-2-2(1), Code of Alabama 1975, empowers cities to carry out redevelopment projects by acquiring "blighted areas." "Blighted areas" are defined as "areas, including slum areas, with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals or welfare of the community." Section 24-2-2(1). Using the "fairly debatable" standard to test the validity of the resolution under § 24-2-2(1), the resolution was valid if it was fairly debatable that Block 60 either (1) was a slum or (2) exhibited any combination of the blighting factors enumerated in the statute and that, as a result of the presence of those factors, the block was "detrimental to the safety, health, morals or welfare of the community."
In addition to the power to acquire blighted areas under § 24-2-2(1), § 24-2-2(2) empowers cities to acquire "other real property for the purpose of removing, preventing, or reducing blight, blighting factors or the causes of blight." Section 24-2-2(2). Adoption of the resolution was justifiable under § 24-2-2(2), therefore, if redeveloping Block 60 would remove, prevent, or reduce blight, blighting factors, or the causes of blight.
Block 60 was clearly not a slum. Blankenship v. City of Decatur, 269 Ala. 670, 675, 115 So. 2d 459, 463 (1959), describes slums as "gathering places of filth, lust, crime, disease and degeneracy" where "people gather under the lowest possible standards of living, crowded together in dilapidated hovels which are unsafe, unsanitary and unhealthful" in a sordid atmosphere in which disease is spread; and where offspring born in such conditions are "damned, from the day of their arrival in this world, to the life of their fathers." Block 60 contained structures built during the early part of this century.[2] By contemporary standards they were not laid-out well. They were buildings of only a few stories which typically covered all or nearly all of their lots and housed primarily ground-level types of businesses. Their very low floor-area ratio and the decline in use of their upper floors generally amounted to an "underutilization" of the block in comparison to those blocks in the core area of downtown which contained more modern structures. Since the buildings were built prior to the proliferation of the automobile, no provisions were made for parking except on the street and on one lot where a building had been demolished. Most of the buildings had multiple violations of various building, plumbing, and fire codes. The violations were, for the most part, however, minor problems which could be corrected by regular maintenance and which posed no significant fire or health hazards. In short, as one of the city's inspectors pointed out, Block 60 was typical of much of downtown Birmingham.
Block 60 was distinguished not so much by its condition as by its location. Being in the center of the downtown area and being in the midst of new high-rise office buildings made it an ideal location for new construction. Furthermore, since the block was owned by twenty-two separate *467 owners, acquisition of the block by private developers without governmental assistance would have been more difficult than it would have been had there been fewer owners.
Although it was not a slum, Block 60 clearly exhibited several of the factors of blight enumerated in the statute, such as obsolescence, faulty arrangement or design, excessive land coverage, deleterious land use, and obsolete layout. Although the statute does not specifically mention diversity of ownership as a factor of blight, the statute provides that if any combination of the listed factors or "other factors" are detrimental to the "safety, health, morals or welfare of the community" the property may be redeveloped. If it inhibits needed redevelopment, diversity of land ownership may be considered a blighting factor. See Redevelopment Agency of San Francisco v. Hayes, 122 Cal. App. 2d 777, 266 P.2d 105 (1954); Stahl v. Board of Finance, 62 N.J. Super. 562, 163 A.2d 396 (1960); Levin v. Township Committee of Bridgewater, 57 N.J. 506, 274 A.2d 1, 45 A.L.R.3d 1054 (1971).
Even though the statute is not limited to slum areas, the other cases before this Court dealing with the renewal and redevelopment statutes have all involved areas which could fairly be described as slums. In Housing Authority of Roosevelt City v. Nunn, 292 Ala. 60, 288 So. 2d 775 (1974), the evidence showed that in the area of the proposed redevelopment there were cesspools, there were several abandoned homes, there were outhouses, and that livestock was kept within the area. In Blankenship v. City of Decatur, 269 Ala. 670, 675, 115 So. 2d 459, 463 (1959), the Court concluded from the pictures in evidence and the testimony that there was no question that most of the territory was a "slum area." Brammer v. Housing Authority of Birmingham, 239 Ala. 280, 282, 195 So. 256, 257 (1940), does not discuss the condition of the structures in question. It does, however, refer to "`slum districts' or quarters."
Applying the redevelopment statutes to the facts of this case, and using the "fairly debatable" standard, we opine that there are at least three grounds on which the City Council's adoption of the resolution can be justified. First, Block 60 is part of a larger area which is blighted. The city's conclusion that the redevelopment of Block 60 as a part of the redevelopment of the downtown area would reduce blight in other areas of downtown Birmingham provided a justification for the resolution under § 24-2-2(1). Second, notwithstanding the question whether Block 60 is "blighted," as that term is defined in § 24-2-2(1), factors of blight clearly existed on Block 60 and it was fairly debatable whether the block was in a deteriorating condition. The redevelopment was justified, therefore, under § 24-2-2(2) on the basis that the redevelopment of the block would prevent or reduce blighting factors or the causes of blight. Finally, there was a reasonable basis for the City Council to find that the buildings on Block 60 were obsolete, underutilized, and in the process of becoming blighted. Although Block 60 posed no direct threat to the health, safety, or morals of the community, it did exhibit several indicia of blight which the City Council could have found were detrimental to the welfare of the community within the meaning of § 24-2-2(1).
Even if Block 60 was not blighted, it was part of a larger blighted area which was being redeveloped. A comprehensive plan aimed at eliminating blight in downtown Birmingham and at revitalizing the area was devised after careful study of the downtown area. The consensus opinion of the consultants participating in the studies culminating in the Master Plan was that the entire downtown area contained elements of blight which needed to be addressed and corrected and that the redevelopment of Block 60, along with the other downtown redevelopment, was consistent with the goals and objectives of the Master Plan. It is the condition of the entire redevelopment area as a whole, not the condition of the plaintiff's property, which determines whether redevelopment is warranted under the urban renewal and redevelopment *468 laws. Wilson v. City of Long Branch, 27 N.J. 360, 142 A.2d 837 (1958); Crawford v. Redevelopment Authority, 418 Pa. 549, 211 A.2d 866, 869 (1965); Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699 (1959). The mere fact that some of the buildings in a redevelopment area are substantial and standard does not require their exclusion from the project. Blankenship v. City of Decatur, 269 Ala. 670, 115 So. 2d 459, 463 (1959). Since the downtown area as a whole was blighted, it was proper to include Block 60 in the redevelopment of downtown Birmingham if it was reasonably necessary to do so in order to carry out the redevelopment plan, even if Block 60 itself could not properly have been considered blighted.
The city's decision to redevelop Block 60 could also be justified on the basis that it was necessary to redevelop Block 60 in order to prevent it from becoming blighted. There was ample evidence to support the conclusion that elements of blight existed on Block 60. Section 24-2-2(2) authorizes the acquisition of property to remove or reduce blighting factors. Urban renewal and redevelopment statutes are not limited to perceptually offensive slums. Levin, supra, 57 N.J. 506, 274 A.2d 1, 18 (1971). Once the process of blighting begins, cities may redevelop deteriorating areas in order to arrest the spread of blight and to prevent blight from occurring.
Finally, the City Council was justified in deciding that redevelopment was necessary because the presence of the blighting factors on Block 60 were detrimental to the general welfare of the community within the meaning of § 24-2-2(1). There is no doubt that the underutilization of property in the core of the downtown area is detrimental to the welfare of the community in the broad sense of the term "welfare." Community redevelopment is an integral part of modern municipal government. Soundly planned redevelopment can make the difference between economic stagnation and a resurgence of healthy growth. Levin, supra, 57 N.J. at 540, 274 A.2d at 19-20. We are aware that some courts have ruled (or have suggested) that redevelopment statutes cannot constitutionally be used to condemn property which poses no direct threat to public health, safety, or morals. See Apostle v. City of Seattle, 70 Wash. 2d 59, 422 P.2d 289, 292 (1966); Grubstein v. Urban Renewal Agency of City of Tampa, 115 So. 2d 745, 750 (Fla.1959); Regus v. City of Baldwin Park, 70 Cal. App. 3d 968, 139 Cal. Rptr. 196, 204-05 (1977); Schneider v. District of Columbia, 117 F. Supp. 705, 719-720 (D.D.C.1953). These cases were decided by courts which take a narrow view of what constitutes a "public use" for purposes of eminent domain, however. This Court has stated that the term "public use" should be given an elastic or liberal interpretation. Brammer v. Housing Authority of Birmingham, 239 Ala. 280, 195 So. 256 (1940). The role of the judiciary in determining whether the legislature is exercising its power for a public purpose is an extremely narrow one. Berman v. Parker, 348 U.S. 26, 32, 75 S. Ct. 98, 102, 99 L. Ed. 27 (1954). Courts should not determine whether a particular urban renewal or redevelopment project is desirable. The desirability of a particular urban renewal project is a political question which, by its nature, is better suited to legislative than judicial determination. Brammer, supra; Allright Missouri, Inc. v. Civic Plaza Redevelopment Corp., 538 S.W.2d 320, 324 (Mo.1976); City of Phoenix v. Superior Court of Maricopa County, 137 Ariz. 409, 671 P.2d 387, 390-91 (1983).
We opine that the City of Birmingham did not exceed its authority in adopting Resolution 1119-81 and that the resolution was valid and lawful. The trial court's decision regarding the validity of the resolution, the judgment based on 42 U.S.C. § 1983, and the award of attorney's fees under § 1988 are hereby reversed.
During the course of the trial it became apparent that the city had failed to fully respond to the plaintiff's requests for production of documents. Without advising the plaintiff or the court, and without seeking a protective order, the city unilaterally *469 decided that certain documents were privileged and withheld those and other documents which, even under its own interpretation of the request for production, should have been produced. On the plaintiff's motion for sanctions, the trial court awarded the plaintiff and its attorney $7,175.00 to compensate for attorney's fees incurred as a result of the city's failure to comply with the Alabama Rules of Civil Procedure. The order on the motion for sanctions is hereby affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY OF AN ORDER CONSISTENT WITH THIS OPINION.
MADDOX, JONES, SHORES, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and EMBRY, J., dissent.
ALMON, J., not sitting.
[1] Chapter 2 empowers cities to implement redevelopment projects designed:
"(1) To acquire blighted areas, which are hereby defined as areas, including slum areas, with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, morals or welfare of the community;
"(2) To acquire other real property for the purpose of removing, preventing or reducing blight, blighting factors or the causes of blight;
"(3) To clear any areas acquired and install, construct or reconstruct streets, utilities and site improvements essential to the preparation of sites for uses in accordance with the redevelopment plan;
"(4) To sell or lease land so acquired for uses in accordance with the redevelopment plan; or
"(5) To accomplish a combination of the foregoing to carry out a redevelopment plan."
Section 24-2-2, Code of Alabama.
Chapter 3 authorizes cities to undertake urban renewal projects "for the elimination (and for the prevention of the development or spread) of slums or blighted, deteriorated or deteriorating areas." Urban renewal projects may include undertakings which would constitute a redevelopment project under Chapter 2, or any "rehabilitation or conservation work" or any combination of such projects. Section 24-3-2(c), Code of Alabama 1975. Rehabilitation or conservation work includes:
"(1) Carrying out plans for a program of voluntary or compulsory repair and rehabilitation of buildings or other improvements;
"(2) Acquisition of real property and demolition, removal or rehabilitation of buildings and improvements thereon, where necessary to eliminate unhealthful, unsanitary or unsafe conditions, lessen density, reduce traffic hazards, eliminate obsolete or other uses detrimental to the public welfare, or to otherwise remove or prevent the spread of blight or deterioration or to provide land for needed public facilities;
"(3) Installation, construction or reconstruction of streets, utilities, parks, playgrounds and other improvements necessary for carrying out the objectives of the urban renewal project; and
"(4) The disposition, for uses in accordance with the objectives of the urban renewal project, of any property or part thereof acquired in the area of such projects; provided that such disposition shall be in the manner prescribed in Chapter 2 of this title for the disposition of property in a redevelopment project area."
Section 24-3-2(c), Code of Alabama 1975.
[2] Since the trial court case several of the businesses located on Block 60 have moved, a portion of the block has been cleared, and new construction is currently taking place. | June 7, 1985 |
6649b4d5-d208-471c-9c68-e61dd1f37f25 | Shipp v. First Ala. Bank of Gadsden, NA | 473 So. 2d 1014 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1014 (1985)
David SHIPP
v.
FIRST ALABAMA BANK OF GADSDEN, N.A., A National Banking Association.
83-1308.
Supreme Court of Alabama.
May 31, 1985.
Rehearing Denied July 19, 1985.
*1015 F.J. Allen, II, Boaz, for appellant.
Jack W. Torbert, Jr., for Torbert and Torbert, Gadsden, for appellee.
BEATTY, Justice.
Appeal by David Shipp from summary judgment in favor of First Alabama Bank of Gadsden. We affirm.
First Alabama Bank of Gadsden (Bank) brought this action against Shipp for money owed the Bank upon two promissory notes and Shipp's separate continuing guaranty agreement signed by him on December 10, 1976. Under that guaranty, Shipp agreed to guarantee the indebtedness of Heritage Leasing, Inc., d/b/a Budget Rent-A-Car, up to the amount of $17,700. Shipp signed this guaranty, "David Shipp, V.P.," and, in his answers to interrogatories later filed, stated that he was an officer of the corporation.
The Bank's complaint, as amended, contained the following two counts:
After various pleadings were filed by both sides, and the addition of a third-party complaint by Shipp against Heritage Leasing, Inc., and others, the Bank moved for summary judgment, supported by the pleadings, a deposition of the defendant, and the affidavits of Ollie W. Nabors, Buford Copeland, and J. Richard Carr. These affidavits, with exhibits, established that in 1976, before the execution of the notes in question, David Shipp executed a continuing guaranty to the Bank under which he unconditionally guaranteed and promised the Bank all indebtedness of Heritage Leasing, Inc., d/b/a Budget Rent-A-Car, up to $17,700.00. It was also shown that on October 17, 1977, Budget Rent-A-Car and Shipp executed a promissory note payable to the Bank in the amount of $29,221.48. The reverse side of this note also contained an unconditional guarantee to pay the indebtedness under that note, together with "reasonable costs and an attorney's fee of 15% of the unpaid debt." Another promissory note was executed on May 4, 1978, by Heritage Leasing, Inc., and Shipp in the amount of $11,690.11. Shipp signed both of these notes on their faces as "David Shipp."
The Nabors affidavits were by the Bank's chief executive officer. One of these recited:
The other Nabors affidavit read as follows:
The affidavit of Buford Copeland, a practicing attorney in Etowah County, established that on April 20, 1984, the balance of one of the promissory notes was $11,164.10, and that a reasonable attorney's fee for the collection of that note was $1,674.61. As to the other note, with a balance due of $8,105.34 as of April 20, 1984, in his opinion, a reasonable attorney's fee was $1,215.80. The affidavit of J. Richard Carr, another practicing attorney in Etowah County, corroborated these as reasonable attorney's fees.
In opposition to the Bank's motion for summary judgment, Shipp filed an affidavit in which he stated that "it was always the intention that this was a corporate debt and I never did understand that I would be personally liable." He also said that "I was never informed by the bank of the status of the loan until many months after it was in total default and all the security had been disposed of by third parties with the consent and collusion of the bank." Elsewhere in his answer he alluded to certain defenses which would be made against the Bank's claims.
After a hearing, the trial court granted the following summary judgment, made final by an order under Rule 54(b), A.R. Civ.P.:
Defendant Shipp's motion for a new trial was overruled, and he appeals.
Rule 56(e), A.R.Civ.P., provides:
The Bank had established by affidavit and documentary evidence that the debts sued upon were due and that David Shipp had personally guaranteed one of the notes and had another personal guaranty outstanding for other indebtedness up to $17,700.00 for principal. Did Shipp's affidavit comply with Rule 56(e)? We think not. Shipp's affidavit contains vague and general assertions of the kind this Court criticized in Sartino v. First Alabama Bank of Birmingham, 435 So. 2d 39 (Ala. 1983), and Real Coal, Inc. v. Thompson Tractor Co., 379 So. 2d 1249 (Ala.1980). Like the guarantor in Sartino, Shipp did not deny executing the respective guaranty agreements, but generally referred to defenses which he would raise. Under Sartino *1018 and Whatley v. Cardinal Pest Control, 388 So. 2d 529 (Ala.1980), Shipp has left the Bank's evidence uncontroverted.
The amount of the judgment against Shipp on the first note, to which Shipp's separate personal guaranty was applicable, was uncontroverted. The amount of the judgment on the second note was well within Shipp's separate guaranty of indebtedness up to $17,700.00 principal. Shipp's signature of that guaranty, "David Shipp, V.P.," did not prevent a personal obligation from attaching to Shipp. That guaranty does not name any representative, nor does it show that Shipp was signing in a representative capacity. Terms such as that used by Shipp, i.e., "V.P.," without more, are "descriptio personae," deemed merely descriptive of the person, and do not change the capacity in which he signs. Cf. Phenix Girard Bank v. Cannon, 414 So. 2d 926 (Ala.1982); Code of 1975, § 7-3-403; and Mount v. Baptist Hospital of Gadsden, Inc., 43 Ala.App. 423, 191 So. 2d 262 (1966).
Let the judgment be affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur. | May 31, 1985 |
8d2caf43-3be3-418e-bfb8-36013cf5ef85 | Ex Parte Jenkins | 474 So. 2d 140 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 140 (1985)
Ex parte Kenneth JENKINS.
(In re Kenneth Jenkins v. State of Alabama).
83-1215.
Supreme Court of Alabama.
June 14, 1985.
*141 Michael C. Cornwell, Tuscaloosa, for petitioner.
Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for respondent.
ALMON, Justice.
Kenneth Jenkins was convicted by a jury of rape in the first degree and sentenced to life in prison. The judgment of conviction was affirmed by the Court of Criminal Appeals, 474 So. 2d 140. This Court granted Jenkin's petition for a writ of certiorari.
The prosecutrix testified that Jenkins forcibly raped her. Jenkins defended the charge by claiming consent. Their testimony significantly differed as to what happened leading up to and subsequent to the sexual intercourse. The jury was faced with the difficult task of judging the credibility and demeanor of each of the parties to determine who was telling the truth.
The issue is whether Jenkins should have been allowed to introduce evidence of the prosecutrix's demeanor immediately after she testified in the preliminary hearing and, more importantly, whether he was unduly restricted in his right of cross-examination.
Six of the eight witnesses called by the State testified that the prosecutrix was upset and crying on the night of the alleged rape. The trial court refused to allow Jenkins to cross-examine the prosecutrix as to her demeanor during and immediately after the preliminary hearing. Jenkins sought to show that the prosecutrix cried continuously during the hearing and then laughed with friends immediately after the hearing. The trial court also sustained the objection of the State to the testimony of Jenkins's mother concerning the prosecutrix's conduct just outside the courtroom immediately after the preliminary hearing. Jenkins's attorney stated that the witness would testify that the prosecutrix and several of her friends were laughing and making jokes about Jenkins being locked up. Testimony of the prosecutrix's inconsistent conduct was offered as bearing on her veracity and credibility. Due to the conflicting account of the facts offered by the prosecutrix and Jenkins, her veracity and credibility were major issues in this case.
One of the chief functions of cross-examination is to test the credibility of a witness. Madden v. State, 40 Ala. App. 271, 112 So. 2d 796, cert. denied, 269 Ala. 697, 112 So. 2d 800 (1959). Demeanor being an aspect of credibility, a party may place before the trier of fact an opposing party's inconsistent conduct through direct or cross-examination. Cross-examination of prosecution witnesses in matters pertinent to their credibility ought to be given the widest possible scope. McConnell v. United States, 393 F.2d 404 (5th Cir. 1968). "The usual discretion vested in the trial court to control the extent of cross-examination is narrowed in proportion to the extent of the adverseness of the testimony of the witness and the value to the defendant of a disaccreditation of the witness." Hendrick v. State, 368 So. 2d 576, 578 (Ala. Crim.App.), cert. denied, 368 So. 2d 579 (Ala.1979). In addition to the constitutional right to confront adverse witnesses found in Ala. Const. of 1901 art. I, § 6, and U.S. Const. amend. VI, Code 1975, § 12-21-137, provides, inter alia, that "[t]he right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him."
The prosecutrix being the key witness for the State and her credibility and veracity being directly in issue, we hold *142 that the trial court abused its discretion in limiting cross-examination of the prosecutrix and in disallowing the proferred evidence of her inconsistent conduct.
The judgment is hereby reversed and the cause remanded.
REVERSED AND REMANDED.
All the Justices concur. | June 14, 1985 |
01af0d82-7018-4b7a-8008-fb4dbc6b0c93 | MUT. FIRE, MARINE & INLAND INS. v. Safeco Ins. | 473 So. 2d 1012 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 1012 (1985)
MUTUAL FIRE, MARINE AND INLAND INSURANCE COMPANY and Euclid Services, Inc.
v.
SAFECO INSURANCE COMPANY.
83-1293.
Supreme Court of Alabama.
May 31, 1985.
Rehearing Denied July 19, 1985.
Edwin L. Yates, Montgomery, for appellants.
John W. Clark, Jr. for Clark & Scott, Birmingham, for appellee.
MADDOX, Justice.
The issue in this appeal is which of two insurance companies was obligated to defend a pest control company sued by a homeowner. The present action is an appeal from a summary judgment entered in a declaratory judgment action in favor of Safeco Insurance Company, appellee, wherein Mutual Fire, Marine and Inland Insurance Company, Inc. (MFM & I), and *1013 Euclid Services, appellants, sought to have the trial court declare that Safeco was obligated to defend Alabama Pest Services in the suit brought against it by the homeowner, James A. Hicks.
In October 1977 Hicks entered into a written agreement whereby Alabama Pest Services agreed to inspect and treat his premises for a one-year period, renewable at Hicks's option. At this time, Alabama Pest Services had a blanket liability insurance policy with Safeco. Hicks's property was inspected at this time and no termites were found. Hicks renewed his policy with Alabama Pest Services. On September 3, 1979, Safeco's policy with Alabama Pest Services expired. Thereafter, Alabama Pest Services secured coverage from MFM & I. This coverage commenced on September 3, 1979, and terminated on March 31, 1982.
In April 1978, Hicks's property was inspected and treated for infestation. On March 3, 1979, November 13, 1979, and January 12, 1981, Alabama Pest Services inspected the premises and found no termites, but an active infestation was found on May 24, 1981. Alabama Pest Services ordered repair work on the premises but this repair work was subsequently discontinued. On March 31, 1982, the policy issued by MFM & I expired. On May 14, 1982, Hicks brought suit against Alabama Pest Services, MFM & I, Euclid Services, Inc., Home Insurance Company, and Safeco Insurance Company.
Thereafter, MFM & I and Euclid Services filed a declaratory judgment action against Safeco in order to determine which of them was required to defend Alabama Pest Services in the main action. Safeco filed a motion for summary judgment, contending that it did not have a duty to participate in or defend the action; the trial court granted its motion for summary judgment and certified the judgment under Ala.R.Civ.P. 54(b) as a final judgment. MFM & I and Euclid Services appeal here.
Appellants contend that the trial court erred in granting summary judgment in favor of Safeco in that the occurrence for which liability is sought to be imposed could have arisen during Safeco's policy period. We agree.
Safeco's argument to the trial court, and here on appeal, is that the "occurrence" made the basis of the suit came wholly within the policy period of MFM & I. Stated differently, Safeco contends that there is not a scintilla of evidence that any damage to the homeowner's property occurred while its policy was in effect. In support of this position, Safeco, in its brief, argues:
Appellants MFM & I and Euclid counter that in the underlying lawsuit the homeowner, Hicks, is alleging that Alabama Pest Services, Safeco's insured, negligently inspected and treated the house during the Safeco policy period and that damages were alleged to have occurred during this policy period. Because Hicks, in the underlying suit, has alleged that there were termites present during the policy period, they argue that Safeco should be required to appear and defend its interest in relation to any events which the proof may show occurred during this time.
The law provides that the insurance carrier with the policy in effect at the time of damage is responsible for the defense and indemnity of the insured. United States Fidelity & Guaranty Co. v. Warwick Dev. Co., 446 So. 2d 1021 (Ala.1984). In Warwick, this Court stated that "it is the insurance that is in force at the time of the property damage that is applicable rather than insurance that was in force when the work was performed." 446 So. 2d at 1024 (emphasis added). Similarly, in Utica Mutual Ins. Co. v. Tuscaloosa Motor Co., 295 Ala. 309, 329 So. 2d 82 (1976), this Court stated that coverage under a policy of insurance is afforded only when "loss of property is suffered during the policy period irrespective of when the negligent act was performed." 295 Ala. at 313, 329 So. 2d at 85. (Emphasis original.)
Both sides agree on these principles of law; they disagree, however, as to whether there was any showing that property damage occurred during Safeco's policy period. As pointed out earlier, Safeco bases its argument upon the fact that no termites were found during three inspections: March 1979, November 1979, and January 1981. Appellants, on the other hand, argue that Hicks has alleged that these inspections were negligently conducted and that there were termites present during Safeco's policy period and that he suffered damage as a proximate consequence.
We believe the learned trial court erred in holding there was no genuine issue of fact on whether Hicks suffered damage during Safeco's policy period. Safeco raises several other issues as grounds for affirming the summary judgment. We have examined these arguments, and find them to be without merit. The judgment of the trial court concerning whether the damage occurred during Safeco's policy period is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | May 31, 1985 |
00989e7b-f247-4709-ba01-7df17454f6fb | Ex Parte Grayson | 479 So. 2d 76 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 76 (1985)
Ex parte Darrell GRAYSON
(Re Darrell Grayson v. State).
83-756.
Supreme Court of Alabama.
February 15, 1985.
On Rehearing May 10, 1985.
*78 Richard W. Bell, Pelham, for petitioner.
Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
We granted certiorari pursuant to Code of 1975, § 13A-5-53, and Rule 39(c), A.R. A.P., which provide for review as a matter of right in cases in which the death penalty has been imposed as punishment. Petitioner alleges that the Court of Criminal Appeals erred in affirming the trial court's judgment of conviction of capital murder and sentence of death by electrocution. 479 So. 2d 69. After consideration of the issues aptly raised and argued by petitioner and the State, we affirm the decision of the Court of Criminal Appeals.
Petitioner Grayson and Victor Kennedy (see Kennedy v. State, 472 So. 2d 1092 (Ala. Crim.App.1984), entered the home of Mrs. Annie Laura Orr late at night on December 23, 1980. On finding Mrs. Orr in her bedroom, Grayson placed a pillowcase over her head and wrapped it in masking tape. During the time the two men were in Mrs. Orr's home, they took a small sum of money and each raped the victim twice. The next morning, Mrs. Orr was found dead in her home, with the pillowcase still taped over her head.
Grayson was tried by jury in the Circuit Court of Shelby County and found guilty. The sentence of death by electrocution recommended by the jury was accepted by the trial judge. Appeal from the conviction and sentence was taken, and the Court of Criminal Appeals affirmed.
Petitioner asserts seven grounds for reversal of the judgment of the Court of Criminal Appeals. That court ably addressed all of those grounds and found them insufficient to reverse the petitioner's conviction and sentence. We agree with the treatment of the issues by the Court of Criminal Appeals and direct reference to that Court's opinion. Here we briefly outline and add comment on those issues.
Does the statutory $500 limit on funds for expenses incurred in the defense of an indigent defendant violate Grayson's Sixth *79 Amendment right to effective assistance of counsel?
The legislature decided in Code of 1975, § 15-12-21(d), that, up to a maximum limit of $500, the State will reimburse the reasonable expenses incurred in defending an indigent defendant on approval in advance by the trial court. Petitioner alleges that this amount did not allow him to procure the expert witnesses that were needed for his defense and, therefore, deprived him of his constitutional right to effective counsel. In Thigpen v. State, 372 So. 2d 385 (Ala. Crim.App.), cert. denied, 372 So. 2d 387 (Ala.1979), cert. denied, 444 U.S. 1026, 100 S. Ct. 690, 62 L. Ed. 2d 660 (1980), the Court of Criminal Appeals held that "a denial of funds to pay defense experts ... does not amount to a deprivation of constitutional rights." The provision for funds for expert witnesses is within the discretion of the legislature, not the courts. However, the Court of Criminal Appeals recognized in the present case that "constitutional guarantees may require a state to provide an indigent criminal with expert assistance."
The only time a defendant, whether indigent or not, has the right to have an independent expert examine physical evidence is when such evidence is (1) "critical" and (2) subject to varying expert opinions. Barnard v. Henderson, 514 F.2d 744 (5th Cir.1975). To be "critical," the evidence must be the only evidence linking the accused with the crime or proving an element of the corpus delicti. Hoback v. Alabama, 607 F.2d 680 (5th Cir.1979). Even if the evidence is indeed "critical," it is not subject to independent examination unless it is also subject to varying expert opinion. White v. Maggio, 556 F.2d 1352, 1358 (5th Cir.1977). This is the law of this state. Gwin v. State, 425 So. 2d 500, 508 (Ala. Crim.App.1982), cert. quashed, 425 So. 2d 510 (Ala.1983). The physical evidence in this case was neither critical nor subject to varying expert opinion. Indeed, the strongest evidence connecting this defendant with the crime was not the scientific evidence at all, but the petitioner's own voluntary statements.
In this case, we agree with the Court of Criminal Appeals that the State was not constitutionally required to provide this indigent with the services of expert witnesses. See Hoback, supra. The trial judge did grant Grayson's request for funds up to the $500 limit. The defense chose to expend them on a public opinion survey of the county for purposes of challenging venue. That decision was one for defense counsel to make. But it is not constitutionally required that the State give reimbursement for every expense which defense counsel believes is needed. The legislature has decided that $500 is a reasonable amount. We do not find that this limit contravenes the defendant's Sixth Amendment rights.
Does the Alabama compensation of counsel statute deny petitioner due process and equal protection of the laws in its application in capital cases?
The State provides for compensation of counsel for indigent defendants in Code of 1975, § 15-12-21(d), with a maximum of $1,000 to be allotted per case. Petitioner makes the same argument as above in regard to funds for experts, i.e., that a capital defendant cannot have effective assistance of counsel and, therefore, is deprived of liberty without due process, with such a limit on the amount to be paid to counsel. Petitioner also asserts that the statutory limit on compensation amounts to depriving him, a capital defendant, of the same protection of the laws that is provided to noncapital defendants. Petitioner bases this claim on the dubious ground that $1,000 is enough compensation for defense of noncapital cases, but is insufficient compensation for a capital defense and, therefore, that a capital defendant will not have as effective assistance of counsel as non-capital defendants have. These contentions are made on the premise that lawyers will not provide effective assistance unless paid a certain amount of money. But the legal profession requires its members to give *80 their best efforts in "advancing the `undivided interests of [their] client[s]'." Polk County v. Dodson, 454 U.S. 312, 318-19, 102 S. Ct. 445, 449-50, 70 L. Ed. 2d 509 (1981). This Court, in Sparks v. Parker, 368 So. 2d 528, 530 (Ala.1979), quoted the New Jersey Supreme Court as follows:
We reaffirm this belief that attorneys appointed to defend capital clients will serve them well, as directed by their consciences and the ethical rules enforced by the state bar association. The counsel compensation statute, § 15-12-21, then, does not deprive petitioner of due process and equal protection of the laws.
Did the trial court abuse its discretion in denying the defendant's motion for change of venue, so as to deny him a fair trial by an impartial jury?
Absent a showing of abuse of discretion, a trial court's ruling on a motion for change of venue will not be overturned. Ex parte Magwood, 426 So. 2d 929, 931 (Ala.), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1355 (1983). In order to grant a motion for change of venue, the defendant must prove that there existed actual prejudice against the defendant or that the community was saturated with prejudicial publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); Franklin v. State, 424 So. 2d 1353 (Ala.Crim.App.1982). Newspaper articles or widespread publicity, without more, are insufficient to grant a motion for change of venue. Anderson v. State, 362 So. 2d 1296, 1298 (Ala.Crim.App.1978). As the Supreme Court explained in Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751 (1961):
The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct. 2031, 2035-2036, 44 L. Ed. 2d 589 (1975). Thus, "[t]he proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination." Anderson v. State, 362 So. 2d 1296, 1299 (Ala.Crim.App.1978).
We agree with the Court of Criminal Appeals that there is nothing in the record below to suggest that the jurors could not or did not render a verdict based solely on the evidence presented at trial. Nor has it been shown that the trial judge abused his discretion in denying the motion for change of venue. With no showing of an abuse of discretion, the trial court's decision will be upheld.
Did the statutory limit on state-provided funds for expenses prevent defendant from proving actual prejudice in the community at large, and thus cause him to lose his request for change of venue?
"The proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination," Anderson v. State, 362 So. 2d 1296, 1299 (Ala.Crim.App.1978), not through extensive and expensive surveys. It costs nothing to question the prospective jurors; thus the limit on available funds cannot be said to have prevented defendant from showing actual prejudice of the jurors.
*81 In some cases, the publicity surrounding the crime and the suspect may be inherently prejudicial, such that a fair trial could not be obtained in the locality. The following situations have been recognized as creating an inherently prejudicial setting: where "newsmen took over practically the entire courtroom," Sheppard v. Maxwell, 384 U.S. 333, 355, 86 S. Ct. 1507, 1518, 16 L. Ed. 2d 600 (1966); where the defendant's highly sensational trial is televised, Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965); where the accused confesses on television, Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963); and when so many veniremen have fixed opinions that suspicion is cast upon all, Murphy v. Florida, 421 U.S. 794, 798, 95 S. Ct. 2031, 2035, 44 L. Ed. 2d 589 (1975).
This case, however, does not involve such inherently prejudicial publicity. As noted above, neither are there circumstances here supporting a finding of juror prejudice.
Did the denial of the pretrial motion to have the jury venire sequestered and sealed effectively deny defendant the right to a fair trial?
Petitioner contends that the statutory procedure for drawing and sealing the names of the venire was violated, thus impairing the defendant's right to a fair trial. However, there is no evidence to support this claim. We agree with the interpretation of the Court of Criminal Appeals regarding the statute containing this procedure, Code of 1975, § 12-16-70, which allows the venire list to be made available to counsel once the list is delivered by the clerk to the sheriff. This is exactly what happened below, i.e., the district attorney was given access to the jury list after it was delivered to the sheriff. It was also available to the defendant.
Did the trial judge improperly consider the offenses of robbery and burglary as aggravating circumstances?
Petitioner asserts that the trial court's consideration of robbery and burglary as aggravating circumstances, when in fact they were also part of the crime for which he was charged and convicted, was error, and thus entitles him to a new sentence hearing. For this proposition, petitioner cites Bufford v. State, 382 So. 2d 1162 (Ala.Crim.App.), cert. denied, 382 So. 2d 1175 (Ala.1980). But the holding of that decision was effectively renounced in Ex parte Kyzer, 399 So. 2d 330, 337-38 (Ala.1981). The correct rule is that the aggravating circumstance charged in the indictment may be used as the circumstance aggravating that charge. See Kyzer, at 337.
Did the trial court err in failing to suppress defendant's confessions?
The assertion that the defendant's confessions were involuntary is not borne out by the findings of fact, nor was there evidence presented by defendant at the suppression hearing to rebut the State's showing of voluntariness. We hold with the Court of Criminal Appeals that the admission by the trial court of petitioner's statements was not in error.
In Beck v. State, 396 So. 2d 645 (Ala. 1980), this Court held:
That three-prong inquiry establishes that death is the proper sentence in this case.
As to the first inquiry, defendant was convicted of violating Code of 1975, § 13A-5-31(a)(4), which manifestly is a capital offense. The defendant does not contend otherwise.
As for the second inquiry, similar crimes are being punished capitally throughout the state: e.g., Lindsey v. State, 456 So. 2d 383 (Ala.Crim.App.1983), affirmed, 456 So. 2d 393 (Ala.1984); Clisby v. State, 456 So. 2d 86 (Ala.Crim.App.1982), affirmed in part and reversed in part, 456 So. 2d 95 (Ala.), after remandment, 456 So. 2d 98 (Ala.Crim.App.), 456 So. 2d 99 (Ala.Crim. App.), 456 So. 2d 102 (Ala.Crim.App.1983), affirmed, 456 So. 2d 105 (Ala.1984).
As to the third inquiry, death is unquestionably proper for this defendant, who burglarized a house and then beat, terrorized, raped, and suffocated to death a helpless 86 year-old woman.
After a thorough examination and consideration of petitioner's grounds for reversal, we find no error, and we affirm the judgment of the Court of Criminal Appeals upholding the conviction and death sentence of Darrell Grayson by the Circuit Court of Shelby County.
AFFIRMED.
All the Justices concur.
BEATTY, Justice.
Petitioner calls our attention to a recent decision of the United States Supreme Court, Ake v. Oklahoma, ___ U.S. ___, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), which, petitioner argues, required the State of Alabama to provide him with a pathologist of his own choosing to assist him during his preparation for trial and during the trial itself. We note that under the rule of Shea v. Louisiana, ___ U.S. ___, 105 S. Ct. 1065, 84 L. Ed. 2d 38 (1985), Ake, if applicable, would be applied to all cases, including this case, pending on direct appeal at the time Ake was decided.
Petitioner interprets Ake as requiring that he have access, provided by the State, to a forensic pathologist who would furnish assistance to petitioner as to the cause of death of the victim, Annie Laurie Orr.
The issue in Ake, supra, was whether or not an apparently insane indigent had the right of access to a psychiatrist to determine his sanity at the time of the alleged offense. In response to that issue, the Supreme Court stated:
Petitioner does not claim that he was deprived of access to a psychiatrist's assistance. He claims, instead, a right to the services of a pathologist. With deference to petitioner's novel contention, there is nothing contained in the Ake decision to suggest that the United States Supreme Court was addressing anything other than psychiatrists and the insanity defense. Certainly, that decision cannot be broadly interpreted to require a State to provide experts of any category of a defendant's own choosing to assist him in preparing whatever defense he chooses. We have been cited to no other authority requiring such appointments.
APPLICATION FOR REHEARING GRANTED; OPINION EXTENDED; AFFIRMED.
All the Justices concur. | May 10, 1985 |
cc938c48-0789-4432-874b-a83726b8ff1a | Shrout v. Thorsen | 470 So. 2d 1222 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1222 (1985)
Clayton SHROUT
v.
Bobby D. THORSEN.
83-794.
Supreme Court of Alabama.
May 10, 1985.
*1223 James F. Hampton of McLain & Hampton, Montgomery, for appellant.
Jere L. Beasley, James W. Traeger, and Sharon G. Yates of Beasley and Wilson, Montgomery, for appellee.
ADAMS, Justice.
This appeal is from a judgment entered in the Circuit Court of Montgomery County, Alabama. The trial court, pursuant to a jury verdict, ordered that the defendants, Clayton Shrout and others, pay the plaintiff, Dr. Bobby Thorsen, $40,000.00 compensatory damages and $3,000,000.00 punitive damages as a result of the defendants' attempt to defraud Thorsen in a loan-investment sham. We affirm.
The facts of this case are as follows:
Appellee, Dr. Bobby Thorsen, gave up the active practice of dentistry in the fall of 1981 to invest in warehouse and condominium development in Texas. Thorsen contacted Marian Brantley of Financial Advisors, Inc. (a Montgomery-based corporation), in order to secure a loan to finance the project. It was through this initial contact that Thorsen met Lee Wade, Mohamed Benmohamed, and ultimately Clayton Shrout, all of whom played an active role in the transaction.
Following two or three meetings between Thorsen, Brantley, and Wade at Wade's office in Atlanta, the three men went to Paris to meet with Benmohamed, who headed a group that was supposed to loan Thorsen $35 million. Subsequent to his return to the United States, Thorsen went back to Wade's office in Atlanta to work out the details of the loan. There were fifteen to twenty investors at this meeting other than Thorsen, as well as Clayton Shrout, the attorney who was to represent the individual investors. Thorsen was told by Shrout to wire $25,000.00 to Shrout's bank in Nebraska as "good faith money." Thorsen was then supposed to receive the loan. He sent the $25,000.00 as requested. A letter of commitment was sent by Shrout to Thorsen (by way of Marian Brantley) which evidenced the loan agreement between Thorsen and Grassbank Investments, the foreign corporation that was supposed to loan Thorsen the money. Furthermore, Thorsen paid Shrout $500.00 for representing him in the negotiations.
Some time after Thorsen had sent his $25,000.00 escrow deposit to Shrout, the two spoke by telephone, and Shrout assured Thorsen that the loan would be made. Shrout had several conversations with Brantley in which Shrout made similar assurances to Brantley. Thorsen again *1224 met with Shrout in Atlanta, at which time Shrout represented that the loan would soon be made.
In the weeks that followed, Thorsen made several unsuccessful attempts to reach Shrout by telephone to discern the reason for the delay. No loan was ever made to Thorsen, and his $25,000.00 good faith deposit was never returned.
There was evidence offered at trial that an almost identical sequence of events took place in 1982, involving two more Montgomery residents, Mr. and Mrs. James Walden. Also, in the case sub judice, another Alabama resident, Jack Carlson, was brought into the transaction by the defendants in an attempt to secure collateral for the loans. Carlson testified that he was ready to provide an annuity to secure the loans had there actually been any money to loan.
After discovering that this was all a sham and that there was no money, Thorsen filed suit in the Circuit Court of Montgomery County on November 22, 1982, alleging fraud, conspiracy, bad faith, breach of contract, and negligence against all defendants. Prior to trial, Financial Advisors, Inc., was dismissed from the action. The case was submitted to the jury on the fraud, conspiracy, and negligence counts. On December 9, 1983, the jury returned their verdict in favor of Thorsen and against Shrout and the other defendants. After all of his post-trial motions were denied, Shrout appealed to this Court.
The sole issue raised for our determination is whether the trial court was correct in holding that it had in personam jurisdiction over Shrout. For the reasons that follow, we agree with the trial court that Shrout was subject to in personam jurisdiction in Alabama. Therefore, the trial court's judgment is due to be affirmed.
Shrout asserts that the trial court committed reversible error by continuously denying his motions to dismiss the suit for lack of in personam jurisdiction over him. Shrout asserts that he was never present in Alabama, and that any contact he had with the state or any of its residents did not rise to the level of "sufficient minimum contacts" for jurisdictional purposes. We disagree. It has long been established that physical presence in the state is not a prerequisite to effective service of process on a non-resident defendant. Milliken v. Meyer, 311 U.S. 457, 61 S. Ct. 339, 85 L. Ed. 278 (1940). What is required is that the out-of-state resident have "some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action." Rule 4.2(a)(2)(I), A.R.Civ.P.
The Alabama Long Arm Statute (Rule 4.2) has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. See DeSotacho, Inc. v. Valnit Industries, Inc., 350 So. 2d 447 (Ala.1977). In other words, "an Alabama court may acquire in personam jurisdiction over a non-resident defendant if the defendant has sufficient `minimum contacts' so that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.' " Alabama Waterproofing Co. v. Hanby, 431 So. 2d 141 (Ala.1983), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945). This Court went further in Hanby to say:
431 So. 2d at 145.
Therefore, in order to ascertain whether due process has been afforded to Shrout, we must consider the particular facts and circumstances of this case. After having done so, we are of the opinion that to require Shrout to defend an action in Alabama is in perfect accord with the due process requirements of the 14th amendment.
*1225 Shrout played an integral part in the defendants' attempt to defraud Thorsen of thousands of dollars. Shrout participated in several telephone conversations with both Thorsen and Brantley in which he misrepresented that a loan would be made to Thorsen. He sent Thorsen a letter confirming the agreement. He took $25,000.00 of Thorsen's money as a good faith deposit, knowing that Thorsen would never receive the loan. Further, Shrout accepted $500.00 as a fee for representing Thorsen in these matters. Thorsen relied on Shrout's continued assurances that he would receive the loan, and at all times thought that Shrout was representing his best interests in the deal.
The above-described acts are not those of an innocent person who has been dragged into an Alabama court unfairly. Shrout knew or should have known what the consequences of his actions would be, and must certainly have expected that a suit would be filed against him in Alabama. It is reasonable to assume that Shrout, anticipating that Thorsen would file suit in Alabama, attempted to keep his contacts with the state minimal, in order that later he could assert his lack of contacts as a bar to the court's acquiring in personam jurisdiction over him. We cannot allow a culpable defendant to manipulate our decisions on in personam due process to effect a shield against his improper conduct.
In Alabama Waterproofing Co. v. Hanby, supra, we discussed the issue of the foreseeability of being sued in a particular state, saying:
431 So. 2d at 146; quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 290, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980). More recently, the United States Supreme Court addressed this same issue in Calder v. Jones, ___ U.S. ___, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984), wherein it stated:
___ U.S. ___, 104 S. Ct. at 1487.
Based on the Supreme Court's holding in Calder v. Jones, Thorsen must not be forced to travel to Nebraska or some other state to try and recover from Shrout.
Alabama has an interest in providing an effective means of recovery for a resident who has been damaged, especially *1226 in a situation like the one before us. In this regard, we note that Thorsen's prima facie showing of a conspiracy to defraud, through his testimony as well as that of other Alabama residents involved in the same or similar transactions, further strengthens the finding of in personam jurisdiction by the trial court. To disallow service of process in cases like this would give persons so inclined a license to put these shams together. There was evidence produced at trial that, on at least two separate occasions, Alabama residents were defrauded by these same defendants. What happened to Thorsen in this case was the result of a scheme devised by the defendants, including Clayton Shrout, to take Thorsen's money. It cannot succeed.
The trial court's decision recognizing in personam jurisdiction over Shrout is in accord with United States Supreme Court cases, and in no way infringes upon the notions of fair play and substantial justice. Therefore, the judgment of the trial court is affirmed.
AFFIRMED.
FAULKNER and EMBRY, JJ., concur.
TORBERT, C.J., and ALMON, J., concur specially.
TORBERT, Chief Justice (concurring specially).
While I agree that the trial court had in personam jurisdiction over Shrout, I think that the language in the opinion is overbroad. The majority opinion seems to imply that the mere fact that an out-of-state resident is alleged to have defrauded an Alabama resident gives Alabama courts in personam jurisdiction over the out-of-state resident.
What is actually required is that the out-of-state resident have sufficient contacts with this state to make it fair and reasonable to require him to come to Alabama to defend. Rule 4.2(a)(2)(I), A.R.Civ.P.; Alabama Waterproofing Co. v. Hanby, 431 So. 2d 141 (Ala.1983); International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). This test was met. Those acts constituting sufficient contacts consisted of (1) Shrout's association with Financial Advisors, a Montgomery, Alabama, based corporation which put Thorsen in touch with Shrout and (2) a letter mailed by Shrout to Marian Brantley of Financial Advisors in which Shrout requested that Thorsen send Shrout $25,500, $500 of which was to be used to pay Shrout's fee and $25,000 of which was to be placed in an escrow account as "good faith" money. But for the letter requesting Thorsen to send Shrout money, Thorsen would not have been damaged.
ALMON, J., concurs. | May 10, 1985 |
38598bed-9c89-44a6-8849-f606085706f5 | Ex Parte Glanton | 474 So. 2d 156 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 156 (1985)
Ex parte David Jerome GLANTON
(Re David Jerome Glanton v. State of Alabama).
84-211.
Supreme Court of Alabama.
May 10, 1985.
*157 Malcolm R. Newman of Faulk, Newcomb & Newman, Dothan, for petitioner.
Charles A. Graddick, Atty. Gen., and J. Callen Sparrow, Asst. Atty. Gen., for respondent.
EMBRY, Justice.
David Jerome Glanton's petition for writ of certiorari was granted in order to review the Court of Criminal Appeals' 474 So. 2d 154, decision affirming petitioner's conviction. The dispositive issue presented here is essentially the same as that considered in Ex parte Jones, 473 So. 2d 545 (Ala.1985). On the authority of Jones, we reverse.
Petitioner, by separate indictments, was indicted for two counts of kidnapping, two counts of sodomy, and two counts of rape. At his arraignment, petitioner pleaded not guilty to all charges. On 20 July 1983, the State filed a motion for consolidation of the indictments for trial. Without affording petitioner an opportunity to be heard, the trial court granted the State's motion. A jury trial was held five days later and Glanton was found guilty on all counts. On appeal to the Court of Criminal Appeals the convictions were affirmed.
The issue presented is whether the Court of Criminal Appeals erred in affirming the trial court's order granting the State's motion to consolidate, within five days of trial, and without giving petitioner an opportunity to be heard.
Temporary Alabama Rules of Criminal Procedure 15.3(b) provides:
We held in Ex parte Jones, supra, that the purpose of a similar provision, Temporary Alabama Rules of Criminal Procedure 15.4(b) ("Joinder, Consolidation, and Severance of Defendants"), could be served only by strict compliance with the mandatory language. Id., 473 So. 2d 545. Thus, in Jones, where a motion to consolidate defendants was granted without an opportunity to be heard being afforded the defendants, this court found reversible error. As in Jones, the petitioner in this case was not given an opportunity to be heard on the motion to consolidate. Neither did the trial court comply with the "not later than seven days prior to trial" mandate quoted above.
Just as knowing whether a criminal defendant must stand trial alone, or with another, is crucial to trial strategy and case preparation, so is knowing whether a defendant must face one charge, or multiple charges. Accordingly, the Court of Criminal Appeals erred in upholding the trial court's order which was in clear violation of Temporary Alabama Rules of Criminal Procedure 15.3(b). The judgment is, therefore, due to be, and is hereby, reversed, and the case remanded to the Court of Criminal Appeals for action consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur. | May 10, 1985 |
ac4dca1f-47f8-430c-b315-0f1178327922 | International Longshoremen's Ass'n v. Davis | 470 So. 2d 1215 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1215 (1985)
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, etc.
v.
Larry DAVIS.
83-710.
Supreme Court of Alabama.
May 10, 1985.
*1216 Jack Janecky of Nettles, Barker & Janecky, Mobile, Thomas W. Gleason, Charles R. Goldburg, and Susan G. Barres, New York City, for appellant.
Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellee.
JONES, Justice.
The threshold issue is whether federal preemption is a waivable defense. Plaintiff argues that Defendant Union's post-trial allegation of federal preemption was insufficient to preserve the issue for our review. On the other hand, Defendant Union argues that asserting federal preemption in a post-trial JNOV motion is sufficient to preserve the issue for appellate review, because the National Labor Relations Act preempts the state courts of subject matter jurisdiction, the lack of which may never be waived and thus can be asserted at any time. We hold that, under the circumstances of this case, federal preemption is an affirmative defense[1] which not only can be waived, but must be affirmatively pleaded in order to avoid waiver. Thus, Defendant Union's JNOV motion alleging federal preemption was insufficient to preserve that issue for our review.
In so holding, we are not unmindful of contrary holdings of other state courts supporting Defendant Union's position that the National Labor Relations Act preempts a state's subject matter jurisdiction. See, e.g., Consolidated Theatres v. Theatrical Stage Employees' Union, Local 16, 69 Cal. 2d 713, 73 Cal. Rptr. 213, 447 P.2d 325 (1968); Chicago & North Western Railway Co. v. La Follette, 27 Wis.2d 505, 135 N.W.2d 269 (1965); General Building Contractors' Association v. Local Unions Nos. 542, 542-A and 542-B, 370 Pa. 73, 87 A.2d 250 (1952).
Each of these courts asserts its holding of federal preemption summarily and without supporting precedent. Once the "subject matter" premise is accepted, the result that the preemption issue may be raised for the first time on appeal and judicially reviewed on its merits is a foregone conclusion. Subject matter jurisdiction can neither be conferred by agreement nor can it be waived. Indeed, it is incumbent upon the court to notice subject matter jurisdiction sua sponte.
It is not the conclusion, given the assumed premise, with which we disagree. Our disagreement consists in what is preempted. It is not the circuit court's subject matter jurisdiction to adjudicate a damage claim for the tort of fraudeven if it arises in the context of a labor-related disputethat is preempted. Rather, it is the state court's exercise of that power that is subject to preemption.[2]
*1217 This distinction between federal preemption of subject matter jurisdiction and preemption of the state court's exercise of its authority is more than a mere play on words. It goes to the very nature and character of the power of the state courts to function within the constitutionally created system of federalism, invoking significant public policy considerations. Undisputedly, the Supremacy Clause authorizes the United States Congress, if not otherwise constitutionally proscribed, to legislate in matters in which the states are also empowered to act. The federal legislation (or regulations pursuant thereto) may authorize concurrent jurisdiction (e.g., Federal Employers Liability Act); it may preempt state law (e.g., 12 C.F.R. § 545.8-3(f) (1982));[3] it may preempt the state court's exercise of its otherwise valid jurisdiction over a particular field of law (e.g., National Labor Relations Act); or it may create a body of law unknown to state law (e.g., Bankruptcy Reform Act of 1978).
To be sure, the Bankruptcy Reform Act is an excellent example of pure subject matter jurisdiction. If a state court "adjudicates" one of its citizens "a bankrupt," such adjudication would be subject to attack as void at any time by any affected party, or by the sua sponte action of another court. The very subject matter of bankruptcy has been preempted by federal law. In like manner, if a state court of limited jurisdiction (e.g., an Alabama district court) convicted an accused of capital murder and sentenced him to die, the conviction and sentence would be void for lack of subject matter jurisdiction.
Central to our holding is the general jurisdiction of the Mobile Circuit Court, Art. VI, § 6.04, Amendment 328, Ala. Const. 1901, and the nature of the claim. This is an ordinary misrepresentation suit filed in a court of general jurisdiction. Clearly, the Mobile Circuit Court has jurisdiction over claims for damages based on allegations of misrepresentation. Code 1975, § 6-5-101, et seq.
We contrast the instant case with a bankruptcy suit filed in a state circuit court or a capital murder case tried in a state district court. In both instances, neither court has subject matter jurisdiction. The state circuit court, although a court of general jurisdiction, has no jurisdiction over the bankruptcy suit because remedies of this nature exist only by virtue of federal law and exclusively in the federal forum. To like effect, the district court is a court of limited jurisdiction and by state law has no power to try capital murder cases. In neither of these examples could subject matter jurisdiction be conferred by agreement, and thus the defense of lack of subject matter jurisdiction could not be waived; therefore, the judgments could be set aside at any time as void, either on direct or on collateral attack, and whether or not the issue of jurisdiction was raised in the trial court.
We turn now to the public policy consideration invoked by Appellant's argument for subject matter jurisdiction and the right to present this issue for appellate review on the merits. Indeed, the instant case is illustrative of these policy considerations, for not until the completion of a trial of several days and an adverse verdict did the Union allege federal preemption. Not only is judicial economy at stake, but it is grossly unfair to the trial judge whose ruling with respect to preemption was never invoked. *1218 When a party, as "sophisticated" in federal labor law as is the Defendant Union, first alleges federal preemption at the post-trial stage, it is more than mere speculation to assume that it was a deliberate attempt to have "two bites at the same apple"the two bites being litigation in state court on the merits, and, failing there, a post-judgment attack on grounds of subject matter jurisdiction.
To hold otherwise, under these circumstances, and allow the union to gamble on the result and then belatedly assert the preemption defense is to impugn the integrity of the judicial process. To one who would attempt two such bites at the apple, we are constrained to reply simply, "Not in our orchard."
We have carefully reviewed the Appellant's alternative state law grounds for reversal and find each of them to be without merit.
AFFIRMED.
MADDOX, FAULKNER, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and SHORES, J., concur in the result.
SHORES, Justice (concurring in the result):
I have been cited to no case, nor have I found one, which convinces me that the plaintiff's state action for fraud and misrepresentation is preempted by federal law. For this reason, I would not base the decision to affirm the judgment on the ground that the defendant waived its defense by not raising it in time, but would simply hold that federal preemption is not a valid defense under the facts of this case.
TORBERT, C.J., concurs.
[1] Although federal preemption is not specifically listed in A.R.Civ.P. 8(c) as an affirmative defense, it quite obviously falls within the nature of those defenses specifically listed. See, also, Powell v. Phenix Federal Sav. & Loan Ass'n, 434 So. 2d 247 (Ala.1983).
[2] It is important to note that our reference to "subject to preemption" preserves the distinction between the procedural question of when the issue must be raised to invoke appellate review and the resolution of the preemption issue on the merits. The La Follette court, supra, recognized and applied this distinction when it accepted for review the issue raised initially on appeal, but upon review on the merits rejected the preemption issue as a defense.
Likewise, if we were to rule on the merits, we could not find that the state court's jurisdiction is federally preempted. The instant facts fall squarely within the "peripheral concern" exception to federal preemption of state jurisdiction of labor-related disputes. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243-44, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959). The National Labor Relations Board has already determined that an employer's supervisors are not protected by the Labor Management Relations Act. Thus, in this case, Plaintiff has no remedy before the NLRB, and this dispute, although somewhat labor-related, is, at most, only of "peripheral concern" to the NLRB. See, e.g., Linn v. United Plant Guard Workers Local 114, 383 U.S. 53, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966).
[3] While Powell, see n. 1, dealt with federal preemption of state law rather than preemption of subject matter jurisdiction, its holding, requiring that the preemption defense be raised in the trial court, is totally consistent with the instant opinion. | May 10, 1985 |
05a2297c-eeb0-426c-a758-8618474d60b8 | Alabama Power Co. v. Beam | 472 So. 2d 619 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 619 (1985)
ALABAMA POWER COMPANY
v.
Debra W. BEAM, as Administratrix of the Estate of Gary M. Beam, Deceased.
81-1011.
Supreme Court of Alabama.
April 26, 1985.
As Corrected on Denial of Rehearing May 31, 1985.
*620 S. Allen Baker, Jr. and James A. Bradford of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham and Robert C. Dillon of Merrill, Porch, Doster & Dillon, Anniston, for appellant.
Ernest C. Hornsby and Steven F. Schmitt, Tallassee, and John S. Casey, Heflin, for appellee.
ALMON, Justice.
This appeal involves questions of the liability of Alabama Power Company for the death of plaintiff's decedent, Gary M. Beam. Beam, while working on the construction of Alabama Power's R.L. Harris Dam, died when a concrete pouring form pivoted and caused him to fall some 80 feet. The jury awarded $250,000 to Debra Beam, Gary's widow, as administratrix of his estate.
Alabama Power contracted with the Manhattan-Walton Joint Venture (M-W) for certain aspects of the construction of the Harris dam. Gary was a carpenter employed by M-W to perform work on the dam. His foreman was Charles Surrett, an M-W employee, who took his orders from Omer Bowen, M-W's general carpenter foreman. Gary had been working at the dam for seven months at the time of his accident. He was an apprentice carpenter, while the other members of his crew were journeyman carpenters.
*621 The structure of the dam included vertical piers which were formed by successive pourings of concrete into forms which were put into place by carpenter crews such as that in which Gary worked. The forms consisted of panels which were ten feet long and five and a half feet tall. Two vertical steel beams called strongbacks ran down the outside of each panel, extending downward about four feet. The lower portions of the strongbacks were bolted to the pier at the previous pour level. After the concrete dried at each pour level, the carpenter crews raised the panels to form the mold for the next pour level.
The panels were secured to the piers by two anchor bolts, one in each strongback, fastening into wickets placed in the concrete during each pouring. Five seam bolts held the panels together. A scaffolding platform was attached to the strongbacks, with the walk boards a foot or so below the anchor bolts. The hand rail of the scaffold was three and a half feet above the walk board. The top of the panel was about three feet above this hand rail. For some pourings a two-foot wooden extension was added to the top of the panels. Gary was sitting atop such an extension when the panel pivoted on the one anchor bolt securing it. See the appendix to this opinion depicting the panels as they existed just prior to Gary's fall.
The accident occurred on December 7, 1978. On November 16, pour level fourteen on Pier # 2 had been poured with concrete. Two or three days later, the workmen raised the panels on the east and west sides of the pier to pour level fifteen. The crane which raised the panels would not reach the panel on the south (downstream) end of the pier, however, so that panel was left at pour level fourteen.
The work which Gary and his crew were to do on December 7 consisted of preparing Panel # 2, the middle panel on the east and west sides of Pier # 2, for removal so that a special panel could be inserted in its place. They had done the same task the previous day on Pier # 3, but there was an important difference: the south end panel on Pier # 3 had been raised at the same time as the side panels. This difference was important because the crews customarily left the southernmost anchor bolt out of the side panels on each side until the end panels were raised. This bolt had to go through a wing form on the end panel after passing through the strongback on the side panel. The wing forms created beveled edges on the downstream corners of the piers.
Thus, although Gary and his crew had done similar work on Pier # 3 the previous day, all the anchor bolts had been in place. On Pier # 2, the southernmost panels (Panel # 1) on the east and west side were secured by only one anchor bolt. The panel was kept in place by the seam bolts attaching it to Panel # 2 and by a wooden two-by-four nailed across the wooden extensions on top of the two panels. The work which Gary was instructed to do, however, consisted of removing these bolts and the two-by-four so Panel # 2 could be replaced. After he and another worker removed the seam bolts, they climbed on top of the wooden extensions, Gary on Panel # 1 and his co-worker on Panel # 2, and pried the two-by-four loose. As soon as they accomplished this, Panel # 1 pivoted on its anchor bolt, causing Gary to fall to the pavement below.
Gary's widow Debra, as administratrix of his estate, brought this action against Alabama Power and various other parties, including Gary Haught and Gordon Amsler, two Alabama Power employees working at the Harris dam at the time of the accident. Only these three defendants remained in the action at the close of the trial, and the trial court denied their motions for directed verdict. The jury returned a verdict in favor of Debra, but only against Alabama Power, for the sum of $250,000. The trial court denied Alabama Power's motion for JNOV or, in the alternative, for new trial.
Alabama Power raises four issues: 1) Whether the trial court erred in denying Alabama Power's motion for directed verdict because Alabama Power did not have a duty to provide Gary Beam with a safe *622 place to work, or, if it had such a duty, it did not breach it; 2) Whether the trial court erred in charging the jury that negligence or wantonness on the part of Manhattan-Walton or its employees could be imputed to Alabama Power; 3) Whether the trial court erred in charging the jury on wantonness as against Alabama Power; 4) Whether the trial court erred in admitting testimony as to the purported knowledge of Alabama Power.
Alabama Power cites a recent line of cases in support of its argument that it, as premises owner, did not have the responsibility for safety of employees of independent contractors, and did not undertake such a duty either in its contract with M-W or in its actions on the construction site. Beam cites cases reaching different results, distinguishes the cases cites by Alabama Power, and argues that Alabama Power did undertake to provide for safety, both by extensively retaining control of the manner of construction and by explicitly agreeing to supervise safety procedures and conduct safety inspections.
The following cases set forth the applicable law in this area:
In Blount Brothers Construction Co. v. Rose, 274 Ala. 429, 149 So. 2d 821 (1962), this Court upheld a judgment on a verdict for the representatives of a deceased employee of a subcontractor against the general contractor. Rose died when he fell while climbing from a crane to a scaffold, and his widow sued the general contractor for negligently or wantonly failing to provide him with a safe place to work. This Court held that the contract between the government and the general contractor, requiring the contractor to provide safety devices, imposed on the contractor a duty to provide subcontractors' employees with a safe place to work; that wantonness "may arise from knowledge that persons, though not seen, are likely to be in positions of danger," and may be shown by inference even though it requires actual knowledge; and that neither wantonness nor assumption of risk was a defense to the charge of wantonness.
In Knight v. Burns, Kirkley & Williams Constr. Co., 331 So. 2d 651 (Ala.1976), this Court reversed a dismissal granted to a general contractor. The Court held that, for non-delegable duties, "if the contractor owes a duty to a third person by reason of a contract or by law, he cannot divest himself of liability for the negligent performance of his duty by employing an independent subcontractor." Id., at 655.
Alabama Power Company v. Henderson, 342 So. 2d 323 (Ala.1976), is very close on point to the instant case. Henderson was injured when a form for a smokestack ruptured, spilling concrete on him. The jury awarded damages to Henderson, an employee of a general contractor at an Alabama Power site, against Alabama Power. This Court affirmed, holding that the extensive control retained and exercised by Alabama Power over the manner in which the concrete was poured imposed upon it a duty to use due care in supervising the process. The Court held that Alabama Power was chargeable with knowledge of the characteristics of the concrete and the forms, and of the dangers posed by the combination of these characteristics; that Alabama Power had a duty of due care; and that it breached that duty.
The Court in Pate v. United States Steel Corp., 393 So. 2d 992 (Ala.1981), relied on the law relative to the duties of a premises owner to affirm a directed verdict for U.S. Steel. Pate and another employee of a contractor at a U.S. Steel plant fell from a scaffolding while removing the forms used to construct a furnace pedestal. They alleged that U.S. Steel breached its duty, as general contractor, to provide them, as employees of a subcontractor, with a safe place to work. The Court cited the law that the premises owner owes no duty to the employees of an independent contractor, and that the test for whether such an owner is also a prime contractor is whether it reserved the right of control over the contractor's work, i.e., whether it retained *623 the right to direct the manner in which the work was performed.
The Court in Pate held that the contract's terms showed only the relationship of owner and independent contractor. The contract also provided that "The safety of all persons employed by Contractor and his subcontractors on Owner's premises, or any other person who enters upon Owner's premises for reasons relating to this contract, shall be the sole responsibility of Contractor." Id., at 994.
Plaintiffs in Pate argued alternatively that the actions of U.S. Steel showed that it had reserved the right of control over the manner of performance, citing Henderson, supra. The Court found, to the contrary, that U.S. Steel "had nothing to do with the construction of the scaffolding from which plaintiffs fell." Id., at 995. The Court also disposed of plaintiffs' argument that U.S. Steel's retention of overall control imposed upon it a duty to provide a safe place to work:
Id. (Emphasis in original.)
Finally, the Court disposed of plaintiffs' argument that U.S. Steel had undertaken to inspect for safety but had inspected negligently. The trial court had found that U.S. Steel made no safety inspections, and plaintiffs did not dispute the finding.
This Court has cited and followed Pate in Thompson v. City of Bayou La Batre, 399 So. 2d 292 (Ala.1981); Alabama Power Company v. Smith, 409 So. 2d 760 (Ala. 1981); Weeks v. Alabama Electric Cooperative, Inc., 419 So. 2d 1381 (Ala.1982); and Columbia Engineering International, Ltd. v. Espey, 429 So. 2d 955 (Ala.1983). Thompson and Smith are factually dissimilar, but Weeks and Espey both involve scaffolding accidents on construction sites and so a brief discussion of those cases will help prepare for a full analysis of the instant case.
Weeks was an electrician employed by Foley, a contractor working on AEC's power plant. This Court affirmed summary judgments for AEC and the engineering company which prepared the plans and specifications for the project. AEC contracted with its engineer and a contractor to provide all supervision of the work, and the contractor agreed to be responsible for safety. AEC retained only the right to inspect. The Court also found that AEC had not actually exercised control or undertaken to provide for safety. The engineer was entitled to summary judgment because it had been brought into the action by improper substitution for a fictitious party. *624 Similarly, in Espey, the premises owner had not retained the right of control and had not undertaken to provide for safety.
The following pertinent provisions of the contract between Alabama Power Company ("Purchaser") and the Manhattan-Walton Joint Venture ("Contractor") clearly show that Alabama Power reserved the right to control details of M-W's performance and the manner in which the work was done:
"ARTICLE IIPRACTICES AND PERSONNEL
"ARTICLE IIISUBCONTRACTS
"ARTICLE VIIIRESPONSIBILITY OF PURCHASER
*625 "ARTICLE XIIINDEPENDENT CONTRACTOR
A more extensive retention of control could scarcely be imagined. The references to M-W as an independent contractor and the occasional implication that Alabama Power would provide only general or overall supervision do not outweigh the tenor of the contract that Alabama Power can supervise to any degree of detail it wishes. The parties' characterization of their relationship is not controlling. The actual nature of the relationship as set out in the contract will determine the respective duties of the parties. National Security Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala.1983); Semo Aviation, Inc. v. Southeastern Airways Corp., 360 So. 2d 936 (Ala.1978).
The above-quoted aspects of the contract indicate that Alabama Power retained the right to control the manner of performance. The actual control exercised by Alabama Power supports this conclusion. The evidence showed here that Alabama Power conducted daily safety inspections and weekly safety meetings. Gordon Amsler was the safety director on the project. Alabama Power conducted all the safety inspections on the project.
Alabama Power supervised the work on a day-to-day basis and had the right to tell the laborers what to do. In fact, Larry Lecroy, who worked for Alabama Power at some times and for M-W at others, said the only difference he could tell was who signed his paycheck. Gary Haught provided technical instruction to Bowen, M-W's general carpenter foreman, and solved any problems that the carpenters might encounter in their work.
The extensive control retained and exercised by Alabama Power readily distinguishes this case from the Pate line of cases and puts it within the rule of Henderson. The trial court did not err in denying Alabama Power's motion for a directed verdict. Alabama Power also argues that there was no evidence that Alabama Power breached any such duty, but we shall discuss that under the issue regarding the instruction on wantonness by Alabama Power.
The trial court gave the following instruction to the jury:
*626 Alabama Power argues that the reserved-right-of-control test operates only to make a premises owner liable for its own failure to provide a safe place to work, not to give rise to respondeat superior liability for the negligence or wantonness of the contractor. Alabama Power also argues that it did not defend on the basis that Manhattan-Walton was an independent contractor, so this instruction introduced a theory of liability that was not presented by the pleadings or the pre-trial order, nor tried by consent.
During arguments over whether the trial court should give this requested instruction, the court dismissed Alabama Power's argument, noting that "we have tried this case on control and independent contractor sixty percent of the time." We agree that Alabama Power's attempt to distinguish between the premises owner/general contractor question of duty to provide a safe place to work and the general contractor/independent subcontractor question of master-servant liability does not provide a ground for refusing to give the instruction in the circumstances of this case. There was ample evidence regarding the number of Alabama Power employees on the site and the pervasive nature of their responsibilities for the jury to find Alabama Power liable. Because Alabama Power was so extensively directing M-W's employees, providing a safe place to work includes exercising authority to discourage negligence.
The extensive control which Alabama Power retained over M-W rose to such a level that the imputation to Alabama Power of M-W's employees' negligence or wantonness is quite in accord with the principles of respondeat superior liability. The acts of an agent are attributable to the master because the master has instructed the agent what to do and set him to the master's business. With Alabama Power contracting for M-W to work according to Alabama Power's practices and procedures and undertaking to provide safety instruction to M-W employees, we find no merit to Alabama Power's objection to the above-quoted instructions.
Alabama Power also makes the argument that if M-W employees are to be regarded as its servants for respondeat superior purposes, they should also be regarded as its employees for purposes of the workmen's compensation act's ban on suits by covered employees against their employers. Code 1975, §§ 25-5-52 and -53. This argument fails because the definitions of "employer" and "employee" in the workmen's compensation act are statutory and are not met in this case. Under Code 1975, § 25-5-1(4), an "employer" is one "who employs another to perform a service for hire and pays wages directly to such person." M-W paid Beam's wages. Under subsection (6), an employee is one "in the service of another under any contract of hire." Beam's contract of employment was with M-W.
Under similar circumstances, this Court reversed a summary judgment for an owner/general contractor on the basis of the exclusivity provisions of the workmen's compensation act, because the plaintiff was an employee of the subcontractor. Kilgore v. C.G. Canter, Jr. & Associates, 396 So. 2d 60 (Ala.1981). In that case, the general contractor provided plaintiff's workmen's compensation coverage, and yet the Court held that, if plaintiff was indeed an employee of the subcontractor, his suit against the general contractor would not be barred. This result is even more appropriate here, because M-W paid Beam's workmen's compensation.
Alabama Power contends that it was error for the trial court to instruct the jury on wantonness, because there was no evidence to support such a charge. Alabama Power states that the view of the evidence most favorable to plaintiff would support only a finding that Alabama Power employees at the site knew of the custom and practice of leaving the downstream anchor bolts out of the side panels until the end panel was raised and knew, on the morning *627 of the accident, that the end panel had not been raised when the carpenters were sent up to work on the side panels. This condition, says Alabama Power, was perfectly safe until Beam and his fellow carpenter removed the seam bolts and the two-by-four, and thus Alabama Power had no knowledge of an unsafe condition which would support a finding of wantonness.
This argument contains the seeds of its own refutation. The very task which Beam and the other carpenters were sent to perform was the removal of the make-up bolts and the two-by-four so that Panel # 2 could be replaced. In doing the same task the day before, they had worked on a pier with all the panels at the same level. The carpenters testified that they had never before removed a side panel with an end panel at a lower pour level. Thus, Alabama Power's argument that the pier was safe until the carpenters removed the bolts cannot stand, because the safety condition on this pier was so different from any work the carpenters had previously done. Alabama Power's knowledge of the situation provides evidence from which the jury could conclude that it wantonly instructed M-W to have its carpenters replace Panel # 2 without correcting the unsafe condition that existed, i.e., without first raising the end panel or at least having the carpenters insert the downstream anchor bolt in Panel # 1.
This Court recently quoted the test for wantonness as follows: "Before a party can be said to be guilty of wanton conduct, it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury." Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317, 1326 (Ala.1984), quoting Lankford v. Mong, 283 Ala. 24, 214 So. 2d 301 (1968) (other citations omitted).
Beam, in addressing the breach of duty issue, discusses other aspects of Alabama Power's exercise of its duty to provide a safe place to work. This evidence tends also to support a charge of wantonness on the basis of a knowing failure to comply with the safety procedures which Alabama Power accepted as appropriate to prevent likely injuries. Alabama Power, in undertaking to provide safety inspections, had the responsibility to abide by the regulations of the Occupational Safety and Health Administration providing that a safety program "shall provide for frequent and regular inspection ... by competent persons." Gordon Amsler admitted that Alabama Power normally conducted safety examinations at the beginning of each shift, but none was made at the beginning of the shift when the accident occurred, which was the first time work had been done on Pier # 2 after the attempt to raise the end panel had been unsuccessful two weeks earlier. Beam's expert with extensive experience on hydroelectric dam construction sites testified that areas that have been idle for even a few days should be inspected before work is resumed.
Evidence regarding other aspects of Alabama Power's safety procedures would support a finding of conscious disregard of adequate safety procedures on the construction site. Alabama Power assigned Amsler as the safety engineer for the project, even though he had no experience in safety management, and gave him only a single course of on-the-job training. Alabama Power prepared safety manuals but did not give them to anyone at the Harris dam construction site. There were no written safety checklists; the inspectors worked from memory. Alabama Power provided no lifelines for tying off safety belts nor safety nets below the worksites. Amsler and other Alabama Power employees made the decision not to provide these.
Alabama Power argues that Beam could have tied his safety belt to the panel he was working on, but there was evidence that it is not good safety practice to tie safety belts below the area on which one is working. When Beam climbed to the top of the panel, there was nothing above him, as a lifeline would be, to which he could tie his belt. Furthermore, there was evidence that Alabama Power employees did not *628 regularly use their safety belts and did not enforce the use of safety belts by contractors' employees.
All of this evidence of general disregard of proper safety procedures by Alabama Power employees with that responsibility reinforces the evidence that Alabama Power wantonly disregarded the particular dangerous condition of the panels to which Beam was sent on the morning of his death. There certainly was sufficient evidence of wantonness to justify the court's charging the jury on the law of wantonness.
Alabama Power argues that the trial court erred in allowing a witness to testify that Alabama Power employees knew the customs and practices of the carpenters in leaving the downstream anchor bolts out and in replacing panels. Amsler testified that he was aware of these practices, and thus the evidence is merely cumulative and cannot support an allegation of error.
Finding no merit in any of Alabama Power's allegations of error, we hold that the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur.
PER CURIAM.
OPINION MODIFIED; APPLICATION OVERRULED.
TORBERT, C.J., and FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.
*629 | May 31, 1985 |
32091754-9d96-4da1-950a-e5df2a875878 | Ex Parte Dietz | 474 So. 2d 127 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 127 (1985)
Ex parte George Stephen DIETZ.
(In re George Stephen Dietz v. State of Alabama).
83-839.
Supreme Court of Alabama.
May 10, 1985.
*128 W. Clint Brown, Jr., Decatur, for petitioner.
Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for respondent.
ALMON, Justice.
This petition for writ of certiorari raises the question of whether the Court of Criminal Appeals, 474 So. 2d 120, erred in affirming petitioner's conviction for escape in the first degree under Code 1975, § 13A-10-31. We granted the writ because the petition presented a significant issue as to whether petitioner was in lawful custody under the provisions of §§ 13A-10-30, -31, and 15-22-54.
George Stephen Dietz, the petitioner, was arrested by officers of the Hartselle Police Department on June 24, 1981, and charged with driving under the influence and driving without a license. At the time, he was on probation pursuant to a conviction in 1978 for two counts of burglary. After Dietz spent one night in the city jail, a Morgan County sheriff's deputy took custody of him on June 25th, 1981, and transported him to the county jail. On February 4, 1982, Dietz left the county jail, apparently taking advantage of minimal supervision over him due to his status as a trusty.
The State charged Dietz with the felony of first degree escape for this unauthorized departure from the county jail and obtained a conviction and a habitual-offender sentence of life in prison pursuant to Code 1975, § 13A-5-9.[1] The Court of Criminal Appeals affirmed his conviction and sentence.
Code 1975, § 13A-10-31, specifies, in pertinent part, that "A person commits the crime of escape in the first degree if ... [h]aving been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to that conviction." Escape in the first degree is a Class B felony. Section 13A-10-30 gives the applicable definition of "custody": "A restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court, but does not include mere supervision of probation or parole, or constraint incidental to release on bail." (Emphasis added.) Our first inquiry is whether Dietz was in lawful custody.
It is settled law that a probationer has a conditional liberty interest protected by the Fourteenth Amendment to the United States Constitution. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). This liberty "is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal." Id., at 482, 92 S. Ct. at 2601.
Code 1975, § 15-22-54, provides for the arrest of a suspected probation violator, either upon the issuance of a warrant or
Id., subsection (d) (emphasis added).
Warren McDonald, Dietz's probation officer, testified that he knew he was required to make a written statement in order to authorize an officer to arrest a probation violator and normally did so; and that he did not do so in this case. The statute makes it clear that this statement is in lieu of a warrant. No warrant was issued in this case. Section 15-22-54 does not authorize a probation officer to have a probationer arrested without a warrant or a written statement.
The Court of Criminal Appeals, applying the precursor of § 15-22-54, held in Phillips v. State, 52 Ala.App. 297, 301, 291 So. 2d 751, 754 (1973), that "there are some jurisdictional prerequisites to revocation of probation. Before a probation may be revoked, there must be (1) an arrest of the probationer, either on a warrant of arrest issued by the court, or a written statement by a probation officer...." (Emphasis in original.) The Court of Appeals in McCain v. Sheppard, 33 Ala.App. 431, 432, 34 So. 2d 225, 226 (1948), referred to the portion of the statute quoted above as providing "as to who may arrest the probationer and what papers are prerequisite to a lawful arrest." See also Austin v. State, 375 So. 2d 1295 (Ala.Crim.App.1979); and Sparks v. State, 40 Ala.App. 551, 119 So. 2d 596 (1959), cert. denied, 270 Ala. 488, 119 So. 2d 600 (1960).
The State contends that no written statement was necessary because McDonald himself was the arresting officer. In light of the scheme of § 15-22-54 whereby either the court issues a warrant or the probation officer provides a written statement, the State's argument would make the trial judge the arresting officer if a warrant is issued. Common usage dictates that the deputy who physically removed Dietz from the city jail was the "arresting officer." We need not address the possibility raised by the language of § 15-22-54(d) that, even if the probation officer personally arrests the probationer, he must complete a written statement.
The State also contends that, because Dietz's arrest by the city police was lawful, he was in lawful custody even after he was transferred to the county jail. The record indicates, however, that Dietz would have been released from the city jail on or about June 25th if McDonald had not requested the police to hold him and asked the sheriff to bring him to the county jail. If he had been released from the city jail and McDonald had sent the sheriff to arrest him at his home, § 15-22-54 would have required that the sheriff have the probation officer's written statement. Nothing in the statute allows the city police department's verbal agreement to hold Dietz to substitute for the written statement as the means whereby the probation officer secures lawful custody.
Finally, the State contends that the deputy had probable cause to arrest Dietz as a suspected probation violator on the basis of what McDonald told the sheriff's department. Section 15-22-54(d), however, does not authorize a sheriff or other peace officer to arrest a probationer without written authorization from the probation officer simply because the arresting officer has probable cause to believe the probationer has violated the conditions of probation. The requirement of a written statement prohibits that very sort of arrest. Neither did the deputy have probable cause to arrest Dietz for violation of the traffic misdemeanors with which he was charged, because Dietz was in the proper custody of the city police for those offenses. The State's argument for lawful custody based on a "probable cause" arrest must therefore fail.
Having established that Dietz was not in fact in lawful custody in the county jail, we must now address the Court of Criminal Appeals' holding that Dietz was in custody under color of law and thus could not challenge his custody by escaping. We stress at the outset of this discussion that we agree with the general authority that a *130 prisoner is not normally entitled to self-help in challenging his custody. As the decision cited by the Court of Criminal Appeals itself acknowledged, however, there is an exception to the rule where the prisoner is in custody under no authority at all. See the portion of that court's opinion quoting from State v. Perry, 364 So. 2d 900 (La.1978).
In addition to the unlawfulness of the arrest, the lack of authority for Dietz's incarceration is evident from the testimony of the clerk of the Circuit Court of Morgan County that he had no record of Dietz's presence in the jail after he was released on probation. The "arrest and booking slip" to which the Court of Criminal Appeals referred as "charging" Dietz with probation violation was only the jailer's notation, not an official court record. The report which McDonald gave to the circuit judge's secretary two weeks after Dietz's arrest was not filed with the circuit clerk.
The Court of Criminal Appeals' statement that the purpose of the probation officer's written authorization is "to ensure that there is sufficient certainty of a violation to make the arrest appropriate" is true enough. The written statement is also the process to which a probationer is due under our system of constitutional law. It serves as a substitute for a warrant which would otherwise be issued by the court.
It is not clear from the record whether a copy of the authorization statement is normally filed with the circuit clerk, although McDonald made the general statement, "I never filed one," regarding his failure to complete a written statement to regain custody of Dietz. Whether this written statement would produce a court record of a probationer's custody or is merely a minimal indication of official action, we cannot say under the circumstances that Dietz's imprisonment without such a written statement was "under color of law."
The United States Supreme Court held in Gagnon, supra, that an accused probation violator is entitled to the same due process guarantees as those recognized for parolees in Morrissey, supra. The Morrissey rights include a preliminary hearing "as soon as convenient after arrest" for an officer not directly involved in the case to determine whether there is probable cause to believe the accused has violated the conditions of his liberty. Id., 408 U.S. at 485, 92 S. Ct. at 2602. Section 15-22-54(d) provides that the probation officer "shall forthwith report such arrest and detention to the court," whereupon the court is to hold a hearing. A written record of Dietz's arrest might have prevented him from languishing in jail for seven months without any such hearing.
The burden is on the State to prove all the elements of the crime of escape. Lawful custody is one such element. Eady v. State, 369 So. 2d 841 (Ala.Crim.App.), cert. denied, 369 So. 2d 843 (Ala.1979); Phelps v. State, 416 So. 2d 766 (Ala.Crim. App.1982); Pinkard v. State, 405 So. 2d 411 (Ala.Crim.App.1981). The State did not prove lawful custody in this case, so the trial court should have granted Dietz's motion for judgment of acquittal. The Court of Criminal Appeals erred in affirming the judgment of conviction; its decision is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
[1] In addition to the two burglary convictions for which Dietz was on probation, he had two convictions in 1974 for the sale of controlled substances. | May 10, 1985 |
7aa74394-4051-416f-a3d5-3ad456b3bc1b | De-Gas, Inc. v. Midland Resources | 470 So. 2d 1218 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1218 (1985)
DE-GAS, INC, Stanley L. Graves, Alex F. Farris and D.O. "Red" Harden
v.
MIDLAND RESOURCES, a partnership, Phillip Sellers, Thomas B. Johnston, Ronald Verlander, and J. Flowers Crawford.
83-768.
Supreme Court of Alabama.
May 10, 1985.
*1219 Michael L. Edwards and Susan Salonimer of Berkowitz, Lefkovits, Isom, Edwards & Kushner, Birmingham, for appellants.
Mark D. McKnight of Ward & McKnight, Birmingham, for appellees.
BEATTY, Justice.
The defendants, De-Gas, Inc., Stanley L. Graves, Alex F. Farris, and D.O. Harden, bring this interlocutory appeal from the denial, in part, of their motion for summary judgment. The issue presented for our review is whether the delivery of a complaint and summonses to the circuit clerk, without payment of the filing fee required by § 12-19-70, Code of 1975, is sufficient to commence an action for statute of limitations purposes.
On June 14, 1983, plaintiffs delivered summonses and a complaint to the office of the circuit clerk of Jefferson County. The complaint alleged breach of an oral contract and fraud. No filing fee was paid at that time. The complaint and summonses were stamped "filed" on that date, but the clerk did not assign the complaint a case number, list the case in the index of pending actions, docket the case, or forward the summonses and copies of the complaint to the sheriff's office for service. The filing fees were paid by plaintiffs on August 5, 1983, and service was thereafter effected.
The statute of limitations on the fraud claim expired between the time the complaint was delivered to the clerk's office and the time the filing fee was paid. The defendants answered the complaint, asserting that the breach of oral contract claim was barred by the statute of frauds and that the fraud claim was barred by the statute of limitations. They later filed a motion for summary judgment on these grounds. The trial court granted the motion as to the contract claim, but denied the motion on the fraud claim. The court's basis for the latter action was its determination "that the [June 14, 1983] filing was proper" so that the claim was filed within the period allowed by the statute of limitations.
Rule 3, A.R.Civ.P., provides that "[a] civil action is commenced by filing a complaint with the court." Under Rule 5(e), "[t]he filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk or register of the court." Plaintiffs argue that delivery to and receipt by the clerk's office are the essential elements of "filing" a complaint; therefore, they say, the June 14 delivery constituted a filing and commenced the action under Rule 3, thereby avoiding the running of the statute of limitations.
Rule 3 was adopted January 3, 1973, and went into effect July 3, 1973. At that time, clerks of the circuit courts were "entitled to receive" a fee under Title 11, § 21, Code of 1940, for the filing of a suit. However, this fee was due "only at the termination of the suit." Title 11, § 4. Consequently, under these statutes, delivery to and receipt by the clerk's office of a complaint *1220 would commence the action in that the clerk's office would at that time perform the tasks necessary to set the case in motion, such as docketing the case, assigning it a case number, and forwarding the complaint and summonses to the sheriff's office for service. Under this scheme, the payment of fees was clearly not a factor in determining whether a suit was commenced under Rule 3.
The fee payment procedure was changed in 1975 when the legislature enacted what is now § 12-19-70, which provides:
The use of the term "shall" in this provision makes the payment of the filing fee mandatory. See Prince v. Hunter, 388 So. 2d 546, 547 (Ala.1980). It was the obvious intent of the legislature to require that either the payment of this fee or a court-approved verified statement of substantial hardship accompany the complaint at the time of filing. No doubt the purpose behind the passage of this provision was to discourage the filing of frivolous suits and to insure that the clerks of the circuit courts do not become "credit men." Cf. Turkett v. United States, 76 F. Supp. 769 (N.D.N.Y.1948) (holding that payment of the filing fee is a prerequisite to filing an action under Rule 3, Fed.R.Civ.P., which is identical to our Rule 3, and 28 U.S.C.A., § 549 (now 28 U.S.C.A., § 1914), which provides that the party instituting a civil action must pay a filing fee, and commenting, "Any other construction would open the door to actions without merit by irresponsible parties, and make the clerk a credit man, whose accountability might result in his personal loss," 76 F.Supp. at 770).
This Court has recognized that "a mere filing of a complaint is not commencement in all cases." Ward v. Saben Appliance Co., 391 So. 2d 1030, 1032 (Ala.1980). While "[t]he filing of a complaint is ... a significant factor in commencing actions and suspending the operation of applicable statutes of limitations; ... it is not the sole factor." (Emphasis added.) Id. We must decide whether, in light of the above-noted legislative change in the fee payment procedure, the prepayment of the filing fee is now a factor to be considered in determining whether a suit has been commenced, thereby avoiding the running of the statute of limitations. We hold that it is.
In Bagby Elevator & Electric Co. v. McBride, 292 Ala. 191, 197, 291 So. 2d 306, 311 (1974), this Court noted:
We observed in Seybold v. Magnolia Land Co., 376 So. 2d 1083, 1086 (Ala.1979):
*1221 Clearly, then, "[t]he most important and essential element of interruption of [the running of the limitations period] is that defendant be judicially notified of the rights which are sought and of plaintiff's intent to proceed with the action." (Emphasis added.) 54 C.J.S. Limitations of Actions § 264 at p. 294 (1948).
The parties stipulated to the following testimony:
It is abundantly clear from this testimony that, unless the filing fees are paid at the time a complaint is filed, there is absolutely no judicial notice to a defendant that an action has been filed against him. Regardless of the fact that the clerk's office stamped the complaint and summonses "filed" on June 14, no real action was taken to set this suit in motion until the filing fees were paid, by which time the limitations period had expired. Not only were the defendants not notified by personal or other service, but they could not even have gone to the clerk's office and found evidence that a suit had been filed against them because the case was not listed in the index of pending actions. Thus, the defendants received no more notice of this action than if the plaintiffs' attorney had retained the complaint in his desk drawer.
In the case of Ward v. Saben Appliance Co., supra, decided by this Court in 1980, a complaint containing a negligence claim was filed on the last day of the applicable one-year limitations period. At the time of filing, however, plaintiff's attorney "directed the clerk to withhold personal service until he could obtain additional information on the case." 391 So. 2d at 1031. As a result, the defendants were not served until long after the limitations period had expired. This Court held:
This holding was reaffirmed in Freer v. Potter, 413 So. 2d 1079 (Ala.1982), and Finkelstein v. Lovell, 449 So. 2d 1240 (Ala. 1984).
Although Ward, Freer, and Finkelstein involved instructions by plaintiff's counsel to withhold service rather than the non-payment of filing fees, we find the principles set out in those cases to be applicable to the present situation. By failing to pay at the time of filing the complaint the filing fee mandated by § 12-19-70, the *1222 plaintiffs not only caused service to be withheld but effectively precluded any action by the clerk's office necessary to actually set the case in motion. We can only conclude that plaintiffs did not have a bona fide intent, at the time of filing, to proceed with this action. Consequently, this action was not "commenced" at the time of filing and the statute of limitations continued to run so as to bar the action.
The present case is readily distinguished from Finch v. Finch, 468 So. 2d 151 (Ala.1985), wherein this Court held that payment of the filing fee within the time allowed for an appeal is not a jurisdictional requirement for perfecting an appeal. Where an appeal is involved, the non-appealing party is already well aware of the existence of the action. Further, although a filing fee is required in an appeal, there is no provision requiring the payment of the fee at the time the appeal is filed. In fact, as we noted in Finch, § 12-22-25, requiring security for costs in appeals, specifically provides that "the filing of security for costs is not a jurisdictional prerequisite."
In contrast, § 12-19-70 requires the payment of filing fees or a court-approved verified statement of financial hardship at the time of filing the complaint. Moreover, the defendant in an initial action cannot know of the existence of the suit against him until certain judicial activity is undertaken. As we demonstrated above, no actual judicial activity is undertaken until the required fees are paid. Accordingly, we hold that the payment of the fees required by § 12-19-70 or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action for statute of limitations purposes.
For the reasons stated above, the judgment of the Circuit Court of Jefferson County is reversed and this cause remanded to the trial court for an order consistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
All the Justices concur. | May 10, 1985 |
ea22bb87-e289-451e-aa2d-8c3d49ad1372 | Briscoe v. Latta | 471 So. 2d 405 | N/A | Alabama | Alabama Supreme Court | 471 So. 2d 405 (1985)
Daisy BRISCOE
v.
Billy Joe LATTA, Doris Ann Parrish, Glenna S. White, and Ruth Veasey.
83-731.
Supreme Court of Alabama.
May 3, 1985.
*406 Walter W. Kennedy III of Nash, Walker & Kennedy, Oneonta, for appellant.
R.O. Hughes of Barber, Johnston & Hughes, Birmingham, for appellees.
EMBRY, Justice.
This appeal by Daisy Briscoe is from a decree determining the assets of the estate of Lottie M. Sherrer and construing her will. The decree was adverse to Briscoe in all respects. We reverse.
Mrs. Daisey Briscoe is the only surviving sibling of Lottie M. Sherrer. Among the assets of the decedent are seven certificates of deposit. They were issued by two Blount county banks to "Lottie M. Sherrer or Daisy Briscoe" on the dates and in the amounts specified below:
We note at the outset there are two code sections particularly significant to the resolution of this case: Code 1975, § 5-1-25 and § 5-5A-41. The latter section superseded the other on 28 May 1980. They read as follows:
It is apparent that upon the death of Mrs. Sherrer the two certificates of deposit designated as A10098 and A11119 became the property of Daisy Briscoe. Jones v. Jones, 423 So. 2d 205 (Ala.1982).
With respect to the other certificates of deposit, the trial court, having heard the case upon ore tenus evidence, made the following express finding of fact:
It is evident that the remaining certificates of deposit should have been disposed of in accordance with Code 1975, § 35-4-7. Farmer v. Farmer, 455 So. 2d 1 (Ala.1984). This section provides as follows:
*408 Consequently, the trial court erred in finding that the remaining certificates of deposit are exclusively the property of the Sherrer estate. In fact, under the terms of Code 1975, § 35-4-7, only a one-half interest in the remaining certificates of deposit descends through the estate of Lottie Sherrer. The remaining one-half interest is the property of Daisy Briscoe. Accordingly, the judgment of the trial court is due to be, and is hereby, reversed.
REVERSED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | May 3, 1985 |
8b9eac9a-fdba-4e39-8f05-5e2203514b2c | State Farm Auto. Ins. Co. v. Baldwin | 470 So. 2d 1230 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1230 (1985)
STATE FARM AUTOMOBILE INSURANCE COMPANY, a corporation
v.
David A. BALDWIN and Denise Baldwin.
84-41-CER.
Supreme Court of Alabama.
May 10, 1985.
Joel W. Ramsey of Ramsey & Baxley, Dothan, for appellant.
Robert H. Brogden of Brogden & Quattlebaum, Ozark, for appellee.
MADDOX, Justice.
This case involves a certified question from the United States Court of Appeals for the Eleventh Circuit.
The facts, as stipulated to by the parties and adopted by the Eleventh Circuit, are as follows:
"The Baldwins have three vehicles insured with the plaintiff, State Farm Mutual Automobile Insurance company (`State Farm'). Each vehicle has uninsured motorist coverage in the amount of $10,000. The Baldwins have demanded of State Farm uninsured motorist coverage totaling $30,000.
"The contract clause concerning uninsured motorist coverage in the Baldwins' insurance policy with State Farm provides: `[State Farm] will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.' This clause is apparently patterned after language in the Alabama Uninsured Motorist Act. Section 32-7-23 of this act requires insurers to offer their customers a certain amount of coverage for damages caused by the actions of uninsured vehicle owners and operators. The section states in relevant part:
Code 1975, § 32-7-23 [emphasis added in the parties' stipulation].
State Farm appealed to the Court of Appeals for the Eleventh Circuit, which found, as follows:
Consequently, the Eleventh Circuit stayed further proceedings in the appeal and certified the following question for determination by this Court:
This appears to be a case of first impression not only in Alabama but in the entire country. Both parties have cited authority from this and other jurisdictions generally *1232 dealing with the interpretation of uninsured motorist provisions similar to the one before us, but all of those cases are distinguishable, factually or otherwise, from the present case. Nevertheless, we find two Alabama cases cited by the Baldwins, Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 282 So. 2d 301 (1973), and State Farm Mutual Automobile Insurance Co. v. Griffin, 51 Ala.App. 426, 286 So. 2d 302 (1973), which apparently was relied upon by the United States District Court, to be most helpful in our decision.
In Higgins, supra, a minor plaintiff was injured in a one-vehicle accident while being transported as a student/passenger in an uninsured Jefferson County school bus. She sought to recover damages for her injuries under the uninsured motorist provision of her father's automobile liability policy. That provision contained an exclusion expressly denying coverage if the uninsured vehicle causing the claimant's injuries was "an automobile which [was] owned by the United States of America, Canada, a state, a political subdivision of any such government or any agency of any of the foregoing." In determining that this exclusion did not prevent plaintiff's recovery against her father's insurer this Court stated:
"In 11 Am.Jur.Trials, § 6, p. 86, it is stated:
"Couch on Insurance, Second Edition, Vol. 12, § 45.625, p. 571 states:
291 Ala. at 465, 466; 282 So. 2d at 303-305.
The language of Higgins clearly shows this Court's belief that the obvious legislative purpose behind the uninsured motorist act was to protect those financially and ethically responsible enough to obtain automobile liability insurance from injuries caused by those not so responsible. Griffin, supra, 51 Ala.App. at 430, 286 So. 2d at 305. In other words, this Court recognizes, as did the legislature in enacting § 32-7-23, that one who wishes to protect himself against the negligence of an uninsured driver should be able to contract with an insurer and, by paying an appropriate premium, receive such coverage. It is for this reason that the legislature made uninsured motorist coverage mandatory in every automobile policy issued in this state, unless such coverage is rejected by the insured, and it was this legislative mandate that moved insurers, such as State Farm, to promulgate uninsured motorist provisions, like the present one, almost tracking the language of § 32-7-23. Higgins, supra, 291 Ala. at 465, 282 So. 2d at 303.
If an insured chooses not to reject the protection afforded by the uninsured motorist statute and suffers a loss at the hands of an uninsured motorist, it is not necessary, as a condition precedent to his recovering in a direct action against his insurer, that he first secure judgment against the uninsured motorist. Griffin, supra, 51 Ala.App. at 430, 286 So. 2d at 306. Instead, he need only prove that he is "legally entitled to recover damages" against the uninsured motorist, within the meaning of § 32-7-23. In defining this term, the Alabama Court of Civil Appeals has stated:
Griffin, supra, 51 Ala.App. at 431, 286 So. 2d at 306.
The reasoning expressed by the Court of Civil Appeals in Griffin was later adopted by this Court in Quick v. State Farm Automobile Insurance Co., 429 So. 2d 1033, 1034 (Ala.1983).
State Farm contends that, as noted in Griffin, it may assert not only those defenses arising from its policy with the *1234 Baldwins but also those substantive defenses available to White and the United States Government, the operator and the owner of the uninsured vehicle in question. State Farm argues that one of these substantive defenses is the immunity afforded by the Feres doctrine, which provides that no cause of action arises against the United States Government or its employees for injuries incurred by a member of the military arising out of and/or in the course of his active military service. Feres, supra. Because the Feres doctrine precludes any cause of action in such situations, and because Baldwin was on duty at the time of his injury, State Farm asserts that Baldwin was never "legally entitled to recover damages" against either White or the Government, within the meaning of § 32-7-23, and, therefore, is not entitled to recover in a direct action against it.
While State Farm is technically correct, that the Feres doctrine is a defense available to it under the holding of Griffin, supra, this Court must decide if the legislative policy of the uninsured motorist statute would allow State Farm to assert that defense and deny the otherwise valid claim of the Baldwins. Using the previous decisions of this Court and construing the intent of the legislature in adopting the uninsured motorist statute, we hold that the Feres doctrine is inapplicable.
As this Court stated in Higgins, the purpose of § 32-7-23 is to "provide coverage." Considering our decision in Higgins, holding that insurers cannot expressly exclude from uninsured motorist coverage injuries resulting from collisions with government vehicles, it would be completely anomalous to hold that insurers may enforce the same exclusion, by implication, because of an anomaly of statutory construction created by the interaction of the Feres doctrine and § 37-7-23.
Thus, it is this Court's opinion that, because the undisputed facts are that Baldwin was injured as a proximate result of White's negligent operation of an uninsured vehicle, it is in keeping with the intent of the uninsured motorist statute and with our principles of statutory construction to hold that the Baldwins are "legally entitled to recover damages" against White and the Government, within the meaning of § 32-7-23, regardless of the fact that David Baldwin is otherwise prohibited from such recovery by the Feres doctrine. Therefore, they are entitled to recover under their policy with State Farm.
CERTIFIED QUESTION ANSWERED.
FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., recused. | May 10, 1985 |
18b56c19-dd46-4929-9c0b-f082ef248fd2 | Roberts v. SECURITY TRUST AND SAV. BANK | 470 So. 2d 674 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 674 (1985)
G.W. ROBERTS
v.
SECURITY TRUST AND SAVINGS BANK OF BRILLIANT, Alabama.
83-1311.
Supreme Court of Alabama.
April 19, 1985.
*675 John A. Posey III, Double Springs, for appellant.
Jackie O. Isom, Hamilton, for appellee.
MADDOX, Justice.
The sole issue presented on this appeal is whether the trial court erred in granting a motion for summary judgment in favor of plaintiff/appellee Security Trust and Savings Bank of Brilliant, Alabama, in an action concerning an alleged default on a promissory note.
On October 14, 1982, Big R Trucking Co., Inc. executed and delivered a promissory note to plaintiff/appellee Security Trust and Savings, in the amount of $62,134.24. G.W. Roberts, defendant/appellant, signed the promissory note as vice president of the trucking company and as a guarantor.
According to the terms of the note, $51,856.84 was advanced to the trucking company, to be repaid in 24 monthly installments of $2,589.01 beginning November 14, 1982. A security interest in real property, personal property, and equipment was given by the trucking company, George (Billy) Roberts, and G.W. Roberts.
On November 14, 1982, Big R Trucking Co., Inc. defaulted on the promissory note. Thereafter, pursuant to the security agreement, Security Trust and Savings took possession of and sold the collateral and applied the proceeds, less costs and attorney's fees, to the balance of the note.
On August 1, 1983, Security Trust and Savings filed suit against Big R Trucking Co., Inc., George (Billy) Roberts, and G.W. Roberts for the unpaid balance on the note. On September 9, 1984, a default judgment was entered. The default judgment against G.W. Roberts was set aside for insufficient service of process.
Thereafter, G.W. Roberts filed a counterclaim seeking a partial refund of the finance charge and damages, contending that he was not given notice of the sale and that the collateral was not sold in a commercially reasonable manner. Upon the notice of Security Trust and Savings, summary judgment was entered against G.W. Roberts in the amount of $21,616.11. Roberts appeals here.
Although the record contains no formal order dismissing Roberts's counterclaim, nevertheless, we hold that the judgment is final and thus subject to our review, because the trial court entered a judgment in full for Security Trust and Savings. That holding implicitly denied the counterclaim; therefore, the judgment was final. See Poston v. Gaddis, 372 So. 2d 1099 (Ala.1979).
Roberts filed an affidavit in support of his counterclaim, which he claims created a genuine issue of material fact. That affidavit reads as follows:
This case is similar to Day v. Merchants National Bank of Mobile, 431 So. 2d 1254 (Ala.1983). In Day, the payee bank brought an action against the maker to recover for two defaulted promissory notes. The maker presented the following affidavit to counter the plaintiff's motion for summary judgment:
In Day this Court held as follows:
Here, Roberts's allegations that the collateral was sold in a commercially unreasonable manner and that there was insufficient notice of the sale are based on mere belief and, thus, are inadequate for purposes of Rule 56(c), Ala.R.Civ.P. Likewise, Roberts's allegations that he did not owe the money claimed by the bank or that he was not given credit for amounts already paid, are vague and general assertions which do not raise genuine issues of material fact. Sartino v. First Alabama Bank *677 of Birmingham, 435 So. 2d 39 (Ala.1983). Consequently, the judgment of the circuit court is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur. | April 19, 1985 |
8ebd6391-88a0-4f9b-a0ce-2004e165d8c2 | May v. Campbell | 470 So. 2d 1188 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1188 (1985)
Lillie MAY, et al.
v.
Woodrow CAMPBELL, et al.
83-1302.
Supreme Court of Alabama.
April 26, 1985.
Fred W. Teague, Ashville, for appellants.
Hugh E. Holladay of Hereford, Blair & Holladay, Pell City, for appellees.
FAULKNER, Justice.
This appeal arose out of a property ownership dispute in St. Clair County.
Lillie May; Ledell May; Georgia Mae Gowens; Roseus Gowens; Ruth Bellamy; Riley Bellamy; and Nancy Williams, as the heirs at law of Hulda Brown, deceased, brought this action in the nature of a bill to *1189 quiet title against Woodrow and Carolyn Campbell. The heirs of Brown also instituted this action against the unknown heirs of Thomas Brown, James Brown, Mary Edwards, Dora Lackey, Sybatha Brown, and Hulda Brown. The court appointed a guardian ad litem to protect the unknown heirs' interests.
The Campbells counterclaimed, seeking a declaration that they owned the land. The trial court, after hearing conflicting ore tenus evidence, quieted title in favor of the Campbells.
The sole issue on appeal is whether the trial court erred in its determination of ownership of the property in question. We affirm.
Sometime around 1917, Hulda and Tobe Brown took possession of the subject property on Morning Star Hill in Ragland, Alabama. On March 7, 1934, C.G. Davis and his wife, Liza Davis, conveyed that property by deed to Hulda Brown, the deed describing the land as follows:
This deed was recorded in 1951.
The evidence presented by the heirs of Hulda Brown indicate that from around 1917 until sometime where in the 1950's the property was used for residential purposes, farming, and pasture land. When Hulda Brown became unable to farm the land, it grew up in timber. After Hulda Brown's death in 1961, her children occupied the homeplace, but did not farm the land. In 1975 a mobile home was placed on a two-acre tract of land across the county road from the homeplace on which Ruth and Riley Bellamy reside.
The ownership of the land upon which the homeplace and mobile home are situated is not contested by the Campbells. The property dispute in question relates only to the property described in the deed to Hulda Brown as "ten acres adjoining the above described land and lying North of it." The heirs of Hulda Brown contend that this property is the same as that claimed by the Campbells.
The Campbells, on the other hand, claim that they own fee simple title to the land conveyed to them by warranty deed from James S. Smith and wife, Jessie Dean Smith, on April 4, 1972; described as follows:
The Campbells claim that upon obtaining the deed they immediately took possession of the land, and they claim to have adversely possessed the land for over 10 years.
The trial court, sitting without a jury, heard all of the testimony, reviewed the documentary evidence, had the parties each submit an abstract of title regarding the property, and, together with the attorneys, inspected the property in dispute. The trial court thereafter awarded the Campbells the property described in their deed and found "that the property contains 7 acres more or less as shown by the survey of L.F. McGinnis, dated September 20, 1975." The trial court also determined that the heirs of Hulda Brown, and the unknown defendant heirs, "are the owners of all other lands described in the complaint and the complaint as amended." The court thereafter set the boundary between the plaintiffs' and the Campbells' property and ordered monuments placed to fix the boundaries.
The heirs claimed that their title is superior to that of the Campbells and that the trial court erred in finding that the Campbells were the owners of the disputed property. We disagree and find that the Campbells *1190 presented sufficient proof of adverse possession of the property.
When a trial court has heard evidence presented ore tenus and resolves conflicting questions of fact in favor of one of the parties, the judgment will not be disturbed on appeal unless clearly erroneous or unsupported by credible evidence. The presumption of correctness is especially strong in adverse possession cases. Scarbrough v. Smith, 445 So. 2d 553, 555-56 (Ala.1984). The question of adverse possession is an issue properly determined by the trier of fact. Even in the absence of specific findings of fact by the trial court, we will assume that the judge made such findings as were necessary to support the judgment, unless such findings would be clearly erroneous or against the great weight of the evidence. Hand v. Stanard, 392 So. 2d 1157, 1159 (Ala.1980).
In the case at bar, the trial judge could have reasonably concluded from the evidence that the deed to Hulda Brown was patently ambiguous and that it did not sufficiently describe the location of the 10-acre tract of land in issue.
Additionally there was evidence presented to support the determination that the Campbells owned the land by adverse possession, pursuant to the statutory requirements of Alabama Code 1975, § 6-5-200.
The evidence showed that since at least 1970, the property had been assessed to, and taxes had been paid by, the Campbells or their predecessor in title, James Smith. The evidence also showed that the Campbells and their predecessors in title had held color of title and their deeds had been recorded in excess of ten years.
In addition, it is also necessary for the claimant to hold the land adversely, Reed v. Ray, 409 So. 2d 814 (Ala.1982). There must be an actual, clear, and notorious occupancy, which is continued, adverse, and exclusive during the statutorily prescribed period, and, it must be with an intention to claim title to the land occupied. Hand v. Stanard, 392 So. 2d 1157, 1159-60 (Ala.1980); Courtney v. Boykin, 356 So. 2d 162 (Ala.1978).
One need not actually physically reside upon the land; the "land need only be used by an adverse possessor in a manner consistent with its nature and character by such acts as would ordinarily be performed by the true owners of such land in such condition." Hand, supra, 392 So. 2d at 1160.
The land in question was rural undeveloped timberland. While we note that sporadic cutting of timber is insufficient, by itself, to establish possession, cutting timber, marking boundaries, and regularly walking over the land to inspect when taken together may all be factors sufficient to constitute adverse possession. Hurt v. Given, 445 So. 2d 549, 552 (Ala.1983).
In this case, the testimony indicates that, in addition to cutting timber, the Campbells had the property surveyed; it indicates that the boundary lines were marked, painted, and ribboned off on several occasions; that a road was cut around the property; that lots were sold for gravesites; and that the Campbells regularly walked onto the property to inspect it. Considered collectively, these facts provided sufficient evidence from which the court could have determined that the acts of the defendants constituted adverse possession of the rural timberland. Therefore, the trial court's judgment is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | April 26, 1985 |
d34e4311-d972-4d91-abf1-b3d1ebdd8f8b | Mills v. Welk | 470 So. 2d 1226 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1226 (1985)
Lamar MILLS, Willie R. Allen, Donice Anderson and James Anderson
v.
R.D. WELK, Randolph Johnston, W.R. Rayfield, and Milford "Pat" Patterson.
83-894.
Supreme Court of Alabama.
May 10, 1985.
*1227 Larry C. Jarrell of Crawley & Jarrell, Troy, for appellants.
Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery, for appellees.
ADAMS, Justice.
This is an appeal from the Coffee County Circuit Court's order dismissing the individual defendants from an action filed against them and their employer, Wayne Poultry. PlaintiffsLamar Mills, Willie Allen, and James and Donice Andersonallege that the individual defendantsR.D. Welk, Randolph Johnston, W.R. Rayfield, and Milford Pattersonbreached their oral employment-at-will contracts with Wayne Poultry, and as a result damaged plaintiffs' operations. We affirm.
The facts of this case are as follows:
Defendant Wayne Poultry is a foreign corporation in the business of raising and selling chickens. To this end, Wayne Poultry employs several "contract growers" who actually raise the chickens for it. Four such contract growers of Wayne Poultry were these four plaintiffs. As part of the arrangement, each of the plaintiffs would receive a flock of "broilers" from Wayne Poultry, raise them, and sell the mature chickens back to Wayne Poultry. A written broiler feeding agreement, setting out the specific terms of the agreement between the parties, was executed for each flock of broilers delivered to a grower by Wayne Poultry. In each contract there was a clause which read: "[T]his Agreement represents the complete understanding between the parties and any variation from the terms hereof must be authorized by further written agreement signed by both parties hereto." The other details, such as the number of chicks and price per pound, varied from contract to contract, but the above-mentioned clause was included in each.
As part of the overall agreement between Wayne Poultry and the contract growers, Wayne Poultry hired defendants Randolph Johnston and Milford Patterson as servicemen to assist the growers and work with them in an attempt to realize the maximum profit for the minimum outlay. Wayne Poultry also reserved the right to inspect the growers' operations at any time to ensure that they were properly performing their responsibilities.
These servicemen would maintain daily contact with the growers and make suggestions concerning any changes or improvements that should be made to comply with Wayne Poultry's standards. Their job was to aid the contract growers in their attempts to raise quality chickens at the lowest possible cost to Wayne Poultry. They were full-time employees-at-will of Wayne Poultry. Neither had written contracts with Wayne Poultry.
*1228 The other two individual defendants, W.R. Rayfield and R.D. Welk, were not servicemen. Rayfield was the head of Wayne Poultry's grow-out division. He did not come in contact with the contract growers often, but mainly supervised the servicemen to see that they carried out the directives of Wayne Poultry. Welk was a complex manager. One of his numerous responsibilities was to supervise Rayfield. Welk's contact with the contract growers was minimal. Both Rayfield and Welk were full-time employees-at-will of Wayne Poultry.
In their complaint, plaintiffs alleged that part of the overall agreement they had with Wayne Poultry was that so long as they raised quality chickens, Wayne Poultry would continue to provide them with flocks of broilers. Also, plaintiffs alleged that it was the individual defendants' job to see to it that the chickens which were raised were of good quality and acceptable to Wayne Poultry.
When Wayne Poultry stopped providing flocks of broilers to each of the plaintiffs, they filed suit in the Circuit Court of Coffee County against Wayne Poultry and the individuals they claimed were responsible for their loss of business. Plaintiffs based their action on the theory that they were third-party beneficiaries of oral employment-at-will contracts between the individual defendants and Wayne Poultry, and that the individual defendants breached their contracts with Wayne Poultry to supervise and aid the plaintiffs in the growing of chickens, thus causing Wayne Poultry to terminate them, leaving them with an investment in thousands of dollars worth of equipment which they could no longer use. Each of the plaintiffs sought $100,000.00 in damages from Wayne Poultry and $100,000.00 in damages from the individual defendants.
On May 6, 1983, defendants filed a petition for removal to federal court based upon diversity of citizenship and the fraudulent joinder of the individual defendants. On December 1, 1983, plaintiffs' motion to remand the case to the circuit court was granted by the United States district court. The state trial court then granted the individual defendants' motion to dismiss due to the plaintiffs' failure to state a cause of action upon which relief could be granted against them. Defendant Wayne Poultry again petitioned for removal to the U.S. district court, and again the district court remanded the case, because the individual defendants were dismissed involuntarily and, therefore, plaintiffs had to appeal the dismissal to this Court before the case would be in a posture to be removed.
The single issue for our review is whether the trial court was correct when it dismissed the individual defendants from the action due to plaintiffs' failure to state a cause of action upon which relief could be granted against them. Rule 12(b)(6), A.R. Civ.P. We are of the opinion that the trial court was correct and, therefore, that its judgment is due to be affirmed.
Plaintiffs based their claim for damages on the theory that they were third-party beneficiaries of the oral employment-at-will contracts entered into between the individual defendants and Wayne Poultry. For the reasons that follow, we are of the opinion that this theory of recovery must fail.
First, it has long been the rule in Alabama that one who seeks recovery as a third-party beneficiary of a contract must establish that the contract was intended for his direct, as opposed to incidental, benefit. Anderson v. Howard Hall Co., 278 Ala. 491, 179 So. 2d 71 (1965). This position was reaffirmed in the more recent decision of Zeigler v. Blount Brothers Construction Co., 364 So. 2d 1163 (Ala.1978). In the case sub judice we look to the pleadings, as we did in Zeigler, to see that the benefit to the plaintiffs was not intended to be a direct benefit, but rather was merely an incidental benefit.
Wayne Poultry reserved the right to inspect the flocks and chicken houses at any time to ensure that it got the best results from the growers. Wayne Poultry was interested in making as large a profit as was possible, and it was for this reason that the individual defendants were employed. *1229 It is not difficult to envision a situation arising wherein the individual defendants would recommend a certain procedure or equipment change which the growers may perceive to be too great a financial outlay, but which would cause a greater yield for Wayne Poultry. It is true that because of the servicemen's advice, the growers have the possibility of receiving better compensation for raising better chickens, and in this regard any improvements or suggestions made by the servicemen could benefit the growers, but again, this is only incidental to the direct benefit which flows to Wayne Poultry.
The Court of Civil Appeals addressed the third-party beneficiary issue in Federal Mogul Corporation v. Universal Construction Co., 376 So. 2d 716 (Ala.Civ.App.), cert. denied, 376 So. 2d 726 (Ala.1979), stating:
376 So. 2d at 724. In the case before us, there is no express language to this effect in the contracts between Wayne Poultry and the individual defendants. However, an attempt to reach the same result by Wayne Poultry can be discerned from the language found in the broiler feeding agreement, which states that "this Agreement represents the complete understanding between the parties and any variation from the terms hereof must be authorized by further written agreement signed by both parties hereto." There is nothing in these broiler feeding agreements that even suggests that the contract growers have any right to enforce the oral employment-at-will contracts between Wayne Poultry and the individual defendants.
Under the allegations of the complaint, we are of the opinion that plaintiffs have failed to suggest how they were intended to receive direct, rather than incidental, benefit as a result of the employee-at-will contracts between the individual defendants and Wayne Poultry. Because they failed to do so, the trial court was correct in dismissing the individual defendants from the action. The judgment of the trial court is affirmed.
AFFIRMED.
FAULKNER, ALMON and EMBRY, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I agree that dismissal was appropriate. In reaching this conclusion, I do not rely on the existence of an integration clause in the broiler feeding agreements.
The parties to the broiler feeding agreements are Wayne Poultry and the plaintiffs. The integration clause is an expression of the understanding of those parties that that written agreement is complete and is not to be varied by parol evidence. See, Commercial Credit Co. v. Seale, 30 Ala.App. 440, 8 So. 2d 199 (1942); 4 S. Williston, A Treatise on the Law of Contracts § 633 (3d ed. 1961). I do not believe that the integration clause in the agreement between Wayne Poultry and the plaintiffs in any way indicates whether the agreement between Wayne Poultry and the defendants was intended to directly benefit the plaintiffs. | May 10, 1985 |
4a3c2ff8-1b64-4a05-b86d-b44ee23bdd0b | Sullivan v. State Ex Rel. Atty. Gen. of Ala. | 472 So. 2d 970 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 970 (1985)
James D. SULLIVAN
v.
STATE of Alabama, ex rel. ATTORNEY GENERAL OF ALABAMA, Charles A. Graddick.
83-771.
Supreme Court of Alabama.
May 31, 1985.
*971 Barry Hess of Hess, Atchison & Horne, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and H. William Wasden, Asst. Atty. Gen., for appellee.
EMBRY, Justice.
The sole issue raised in this appeal is whether, in light of the new Judicial Article, the Circuit Court of Mobile County, Alabama, had jurisdiction to remove appellant, James D. Sullivan, from office pursuant to the Attorney General's petition for writ of quo warranto. Appellant contends the new Judicial Article vests in the Judicial Inquiry Commission and the Court of the Judiciary the exclusive jurisdiction to remove sitting judges from office and that the trial court erred in denying appellant's motion to dismiss and in issuing the writ of quo warranto removing appellant from office.
Appellant was sworn in as a judge in the District Court of Mobile County, Alabama, in December of 1980. He was qualified to hold office at that time.
In the fall of 1983, Sullivan was indicted by a federal grand jury and charged in two counts with a violation of the RICO statute and a conspiracy to violate it. In March of 1984, a jury returned a verdict of guilty on both counts. In May of that same year, appellant was sentenced to concurrent twenty-year prison terms on counts one and two of the federal indictment under which he had been convicted. After sentencing, Sullivan's judicial office was automatically vacated, pursuant to Code 1975, § 36-9-2. That section provides as follows:
Subsequent to Sullivan's conviction, and prior to the imposition of a sentence, the Attorney General filed a petition for writ of quo warranto in the Circuit Court of Mobile County, seeking to have Sullivan removed from office. Before the hearing on the petition commenced, appellant, through counsel, specially appeared for the purpose of contesting the jurisdiction of the circuit court to remove him from office, and in support of his position, appellant filed a motion to dismiss, alleging that Amendment 328 to the Constitution of Alabama, more commonly referred to as the Judicial Article, provided the only method by which a sitting judge could be removed from office.
The trial court denied Sullivan's motion and granted the Attorney General's petition. Sullivan appealed to this court.
First, we note that it is clear James Sullivan was, after conviction by a jury of a *972 crime punishable by imprisonment in the federal penitentiary, disqualified to hold office under the authority of the State of Alabama. Article IV, Section 60, of the Alabama Constitution of 1901 states:
Furthermore, the writ of quo warranto was, under these circumstances, a proper procedure to test Sullivan's qualifications to hold office. Historically, the writ of quo warranto has been proper to challenge qualifications and eligibility to hold public office. See State ex rel. Graddick v. Rampey, 407 So. 2d 823 (Ala.1981); Akers v. State ex rel. Witcher, 283 Ala. 248, 215 So. 2d 578 (1968); State ex rel. Norrell v. Key, 276 Ala. 524, 165 So. 2d 76 (1964); and State ex rel. McIntyre v. McEachern, 231 Ala. 609, 166 So. 36 (1936).
The distinction between the use of the writ and an affirmative removal of a public official for cause was noted by this court in State ex rel. Chambers v. Bates, 233 Ala. 251, 254, 171 So. 370 (1936):
In Opinion of the Justices, 359 So. 2d 1155, 1157-1158 (Ala.1978), the distinctions between ineligibility to hold public office and impeachment were clarified as follows:
The writ is appropriately utilized to test whether a person is lawfully holding office. It is not a proper remedy for removal of a judge for inappropriate acts or omissions while lawfully holding office.
In 1972, Amendment 317 to the Alabama Constitution was ratified. That amendment set up a Judicial Commission which was empowered to investigate judges and make recommendations to the Supreme Court regarding, among other things, removal of judges from office.
*973 In 1973, Amendment 328 to the Constitution, commonly referred to as the new Judicial Article, was ratified. This amendment repealed Amendment 317 and set out procedures by which judges could be removed from office. It established a Judicial Inquiry Commission which was given the authority to conduct investigations, receive or initiate complaints concerning any judge, and file complaints with the Court of the Judiciary. Const. of Ala., Amend. 328, § 6.17(b). Also established under Amendment 328 was the Court of the Judiciary, which has the authority to remove any judge from office. Const. of Ala., Amend. 328, § 6.18(a). Neither of these Amendments indicate they vest exclusive jurisdiction in these bodies to remove sitting judges from office. Appellant has urged this court to recognize that it was the Legislature's intent that the Court of the Judiciary have exclusive authority to remove a judge from office.
In determining legislative intent, statutes are, where possible, construed in harmony with statutes existing at the time of enactment, so that each is afforded a field of operation. Waters v. City of Birmingham, 282 Ala. 104, 209 So. 2d 388 (1968).
There is no conflict between Code 1975, § 6-6-591, and the new Judicial Article such that these remedies cannot operate harmoniously and independently.
Therefore, because James D. Sullivan was, upon conviction by a jury of a crime punishable by imprisonment in the federal penitentiary, disqualified to hold public office in the State of Alabama, and because the petition for writ of quo warranto was an appropriate procedure to test whether Sullivan was, after conviction, lawfully holding public office, we affirm the trial court's denial of appellant's motion to dismiss this cause and that court's issuance of the writ of quo warranto.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | May 31, 1985 |
3ec6f49a-bece-4a77-9166-49e4acfe31f5 | Ex Parte Agee | 474 So. 2d 161 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 161 (1985)
Ex parte Arthur AGEE.
(Re Arthur G. Agee v. State).
84-235
Supreme Court of Alabama.
May 10, 1985.
R. Shan Paden for Paden, Green, Paden & Bivona, Bessemer, for petitioner.
Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
Certiorari was granted under Rule 39(c)(4), A.R.A.P. The facts of this case are recited in the opinion of the Court of Criminal Appeals, 474 So. 2d 158. Briefly, those facts show that Agee, a state prisoner, petitioned the Jefferson Circuit Court, Bessemer Division, for a writ of habeas corpus. That court, after an evidentiary hearing, denied the writ. Agee appealed that decision to the Court of Criminal Appeals, which affirmed the trial court's denial and later overruled Agee's application for rehearing.
It was established below that Agee was convicted of larceny on January 20, 1970, and sentenced to a term of one year and a day in the State penitentiary. Agee, 17 years of age at the time, was placed on probation. Probation was later revoked, and he began serving his sentence on January 29, 1971, at Draper Prison. On June 14, 1971, Agee was again convicted of larceny and was sentenced to a seven-year penitentiary term to run concurrently with his prior sentence.
Agee contends that on July 4, 1971, he was released from Draper Prison and told that he was being placed on probation or parole and would be contacted by the proper authorities. The State of Alabama contended *162 below, and here, that Agee was not released but that he escaped from prison by changing from his prison uniform to civilian attire and "walking out with a visitor."
After leaving his confinement, Agee went to live with his father in Birmingham for two months. He then moved to Chicago, returned to Birmingham, and went back to Illinois. No one from the prison or parole authorities ever contacted him during the 12 years he was free, even though, meanwhile, on August 27, 1971, Agee had been indicted by the Elmore County grand jury. On July 7, 1983, Agee was returned to Alabama on a fugitive warrant for escape. He was given a disciplinary board hearing, after which the board found that Agee had violated an institutional regulation on escape. Agee lost store, telephone, and visitation privileges for 60 days; however, the felony escape charge against him was nol-prossed.
In its opinion, the Court of Criminal Appeals held that:
The defendant contends that this holding runs counter to well-established legal precedents, and the State of Alabama concedes, as it must, that it was error not to apply those authorities. These are collected and explained in Hartley v. State, 50 Ala.App. 414, 417-418, 279 So. 2d 585, 587-588 (1973), whose pertinent part we quote:
Notwithstanding this authority, the State of Alabama argues that the error below in failing to apply these precedents was inconsequential. The controlling question, says the State, is whether the petitioner escaped or whether he was released from Draper Prison. According to the State, this question of fact was decided by the trial court, which found, after a hearing, that the defendant did escape. The petitioner maintains, on the other hand, that the trial court's finding was erroneous on two distinct grounds. For one thing, he claims, the trial court relied upon the findings of the disciplinary board, which failed to meet due process requirements. For another, he says, the trial court erred in its findings because there was no evidence adduced by the State in the trial court hearing to contradict the defendant's testimony that he was released.
Each of the petitioner's arguments has merit. In Barker v. State, 437 So. 2d 1375 (Ala.Crim.App.1983), the Court of Criminal Appeals recognized that a report of a prison disciplinary board, in order to meet the due process requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), must contain a "written statement by the fact finders as to the evidence relied upon and the reasons for the disciplinary action." Indeed, in Fielding v. State, 409 So. 2d 964 (Ala.Crim. App.1981), the court held that a disciplinary board report with such deficiencies could not support the State's motion to dismiss a petition for habeas corpus. Such a result follows from the Wolff decision that the constitutional mandate of due process is absent when the disciplinary board report does not contain those requirements. Thus, the disciplinary report here, being constitutionally deficient, had no evidentiary standing, and it was error to consider it.
On petitioner's other ground, it is clear from the record that Agee himself was the only witness to testify at the hearing in the trial court on his habeas corpus petition. His evidence repeatedly characterized his departure from prison as a release by the prison authorities at Draper Prison. No other evidence was offered on that subject; hence, there was no evidence contradicting Agee's affirmative explanation of his release.
The State nevertheless defends the finding of the lower court, because, it argues, Agee's "self-serving" testimony did not satisfy his burden of proof. However, an examination of his petition discloses compliance with Code of 1975, § 15-21-4, which the State does not contest. And, petitioner, having introduced evidence of his illegal detention, placed the burden on the State to show a legal restraint. It is clear from the record of the proceedings below that the State wholly failed to carry its burden. It follows that under the authorities, supra, petitioner's seven-year sentence expired on June 14, 1978, i.e., seven years from the judgment and sentence *164 of June 14, 1971. Therefore, the judgment of the Court of Criminal Appeals is reversed, and this cause is remanded to that court with directions to enter an appropriate order releasing petitioner from custody. It is so ordered.
REVERSED AND REMANDED WITH DIRECTIONS.
All the Justices concur. | May 10, 1985 |
1bab4037-41bd-43c2-b7ef-ee3f09839eef | Ex Parte Williams | 474 So. 2d 707 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 707 (1985)
Ex parte Janice Elena WILLIAMS.
(re Janice Elena WILLIAMS v. Joe Jackson WILLIAMS).
84-133.
Supreme Court of Alabama.
May 10, 1985.
*708 George K. Elbrecht, Monroeville, for petitioner.
Wendell C. Owens, Monroeville, for respondent.
BEATTY, Justice.
Petitioner Janice Williams and respondent Joe Williams were divorced in February of 1983. By the terms of the divorce decree, Janice was awarded custody of their minor son, Chad, and Joe was given broad visitation rights. That decree, however, contained no geographical restrictions with respect to the residence of the minor child or Janice Williams, the custodial parent. Some of the facts as set out in the opinion rendered by the Court of Civil Appeals, 474 So. 2d 705, are as follows:
The events and proceedings that followed the granting of this order, which included the bringing of kidnapping and contempt charges against Janice Williams, culminated in an order entered January 25, 1984, denying her all visitation rights. Janice Williams appealed to the Court of Civil Appeals, which affirmed the trial court's orders, finding that it had not abused its discretion. Rehearing was denied, and Janice Williams petitioned this Court for a writ of certiorari. We granted the writ pursuant to A.R.A.P., Rule 39(c)(4), to consider two issues raised by petitioner: First, did the ex parte order entered August 26, 1983, which, without notice or hearing, temporarily modified the prior custody decree, deprive petitioner of her legal rights without due process of law? Second, was there *709 a showing sufficient to justify the trial court's issuance of the temporary restraining order?
It is undisputed that by a default judgment of divorce entered February 16, 1983, Janice Williams was given "the general custody and control of the minor child, Chad Dirk Williams," subject to the visitation rights of Joe Williams. Nor is it disputed that this custody decree contained no geographical restrictions whatsoever on the petitioner's residence. Furthermore, it is undisputed that the August 26, 1983, order, "plac[ing] the minor child, Chad Dirk Williams, in the custody of [Joe Williams], pending a hearing," was entered, without notice to petitioner or hearing, based solely "upon the verified Petition of Joe Jackson Williams, alleging that the minor child ... is about to be removed from the State of Alabama, without permission of the Court or without notice to [Joe Williams]." We find that, on these facts, petitioner's rights to due process were violated.
In Ex parte Shuttleworth, 410 So. 2d 896 (Ala.1981), cert. den., ___ U.S. ___, 104 S. Ct. 2151, 80 L. Ed. 2d 537 (1984), this Court decided that due process requires that even the parent of an illegitimate child be given notice prior to the revocation of any parental rights which that parent may have. In so holding, one of the cases this Court followed was the leading case of Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81 (1931), Annot., 76 A.L.R. 238 (1932), where
Another case noted at Annot. 76 A.L.R. 238, 254, is Gitsch v. Wight, 61 Utah 175, 211 P. 705 (1922), a case directly in point. In Gitsch, the father had been awarded custody of a minor child by a prior decree. Later, the mother brought an action in district court against the father, seeking custody of their minor child. In her petition, the mother also asked that she be given temporary custody of the child pending a final custody determination. The trial court in Gitsch, without notice to the father and without giving him an opportunity to be heard, entered an order awarding the mother temporary custody of the child pending a final custody hearing, just as did the trial court in the case at bar. In annulling that order awarding temporary custody, the Supreme Court of Utah said:
We agree with and adopt that Court's analysis, and hold that, except in certain narrow circumstances hereinafter discussed, a parent having custody of a minor child cannot be deprived of that custody, even temporarily, without being given adequate notice under Rules 4 and 5, A.R. Civ.P., and an opportunity to be heard. See also Danford v. Dupree, 272 Ala. 517, 520, 132 So. 2d 734, 755 (1961), where this Court said:
Accord, Thorne v. Thorne, 344 So. 2d 165 (Ala.Civ.App.1977), where the Court of Civil Appeals held that due process requires that a parent be given adequate notice that his or her right to custody is to be considered by the court in any given proceedings.
We note that the court in Thorne v. Thorne, supra, cited with approval the case of Ex parte White, 245 Ala. 212, 16 So. 2d 500 (1944), in which this Court, in upholding a temporary award of custody to the father which had been granted without notice to the mother, stated:
At first glance, it may appear that Ex parte White is contrary to our holding in this case. Nevertheless, White, supra, is distinguishable from the case at bar, and, further, the Court of Civil Appeals in Thorne, supra, correctly stated the limited application of the above quoted language from Ex parte White:
We also point out that the parents in Ex parte White were not divorced, but merely separated, and for aught that appears from the opinion, neither parent had been granted custody of the child during the separation by a court order. In other words, in Ex parte White, the order awarding custody to the father pendente lite did not have the effect of temporarily modifying a prior decree awarding custody to the mother. That is not the situation in the case at bar. Janice Williams was awarded custody of her minor son, Chad, by the default judgment of divorce. Furthermore, in his verified complaint, Joe Williams made no allegations of endangerment to Chad's health and physical well-being.
Accordingly, this case being dissimilar to Ex parte White, supra, and not falling within the endangerment exception recognized in Thorne v. Thorne, supra, we hold that the trial court was without the power to issue a temporary order modifying the prior custody decree without giving *711 petitioner due notice and opportunity to be heard. Therefore, that order is due to be reversed.
Because the order transferring custody must be reversed on due process grounds, we need not reach the merits of respondent's petition for modification of the prior custody decree. However, as guidance to the trial court, in the event there are further proceedings, we cite the case of Cheatham v. Cheatham, 344 So. 2d 525 (Ala.Civ.App.1977), as modified by Ex parte McLendon, 455 So. 2d 863 (Ala.1984).
Rule 65(b), A.R.Civ.P., gives the trial court the power to grant a temporary restraining order without notice to the adverse party, but only in limited circumstances. Rule 65(b), in pertinent part, provides:
While the trial court is accorded wide discretion in determining whether or not a temporary restraining order should be granted, when such an order is issued without a hearing, a close scrutiny of the existing circumstances under which it is sought should be made by the trial court. Ex parte Purvis, 382 So. 2d 512 (Ala.1980); Lorch, Inc. v. Bessemer Mall Shopping Center, Inc., 294 Ala. 17, 310 So. 2d 872 (1975). Furthermore, this kind of relief cannot be accorded without notice or hearing unless "the verified facts of the complaint clearly justify the petitioner's apprehension about the threat of irreparable injury. See Committee Comments, Rule 65, A.R.C.P." Falk v. Falk, 355 So. 2d 722, 725 (Ala.Civ.App.1978).
Our own close scrutiny of the verified complaint filed by respondent reveals not only that the requirements of Rule 65(b)(2) were not met, but also that the only "immediate and irreparable injury, loss, or damage" alleged by respondent was a disruption of his visitation rights if the child was taken to Georgia. We find that this allegation falls short of constituting a clear threat of irreparable and immediate injury as required by Rule 65(b)(2).
In Falk v. Falk, supra, cited by the Court of Civil Appeals in its opinion, the court upheld the granting of a temporary restraining order issued without notice. That case, however, is distinguishable from the present case because in Falk the "husband had set out sufficient facts in his verified petition to show irreparable injury." Falk v. Falk, supra, at 725. Those facts were as follows:
Clearly, factors such as those presented in Falk warrant the issuance of a temporary restraining order without notice under Rule 65(b). However, no such compelling factors were alleged in this case. Moreover, "a parent entrusted with the custody of a child has the right, if not restricted by the court, to remove the child from the jurisdiction of the court granting custody." Cheatham, supra, at 527.
Accordingly, we conclude that the trial court abused its discretion in granting the temporary restraining order without notice or hearing.
Since the order entered on August 26, 1983, granting Joe Williams's petition for a temporary restraining order and modification of the former custody decree, is due to be reversed, so, too, it is necessary to reverse the subsequent orders entered September 21, 1983, and January 25, 1984, finding Janice Williams in contempt of the August 26th order and denying her all visitation rights.
For these reasons, we reverse the judgment of the Court of Civil Appeals and remand the case to that court for it to enter an order consistent with this opinion.
REVERSED AND REMANDED.
All the Justices concur. | May 10, 1985 |
2f1fabcc-8f7f-4f74-b2ec-a8847ebebd5c | Hall v. Livesay | 473 So. 2d 493 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 493 (1985)
Agnes HALL
v.
K.C. LIVESAY and Myrtice Livesay.
83-989.
Supreme Court of Alabama.
May 31, 1985.
Rehearing Denied June 28, 1985.
*494 James H. Weatherford, Jr., Enterprise, for appellant.
W. Bartlett Taylor for Sikes, Johnson, Stokes & Taylor, Andalusia, for appellees.
EMBRY, Justice.
Agnes Hall seeks to have certain unencumbered property declared subject to an equitable mortgage and thereby foreclose on the property in order to recover the unpaid balance of the property's purchase price. The trial court entered summary judgment in favor of defendants K.C. Livesay and Myrtice Livesay. We affirm.
A review of the pleadings, affidavits, and exhibits show the facts to be as follows: On 9 August 1982, Hall deeded a parcel of land located in Covington County, valued at $25,000, to Clarice Shaffer. The consideration for this conveyance, recited by the deed, was $10 and "other valuable consideration." Additionally, the deed contains the following language: "The real consideration of this deed is payment of mortgage to Colonial Mortgage Company in the amount of $5,739.83."
On the same day, Shaffer executed and delivered to Hall an unsecured promissory note in the amount of $19,260.17. This note was payable on, or before, 9 February 1983 and was attested by two witnesses, one being a defendant in this action, Myrtice Livesay.
Prior to (or about) 9 August 1982, K.C. Livesay loaned Shaffer, a codefendant in this action, the sum of $8,000. According to the affidavit of K.C. Livesay, the loan was made in order to assist Shaffer in purchasing the property from Hall.
On 7 September 1982, and subsequent to satisfaction of the Colonial mortgage, Livesay obtained from Shaffer, who was then the owner of record, a mortgage encumbering the property in the amount of $8,000. This mortgage was intended to secure the $8,000 loan which was previously extended to Shaffer and which was due on 9 February 1983.
On 9 February 1983, Shaffer defaulted on all obligations to both Hall and Livesay. On 22 February 1983, Shaffer, by warranty deed, conveyed all of her rights, title, and interest in the Covington property to K.C. Livesay and his now deceased wife, Myrtice Livesay. The deed was recorded on 25 February 1983 in the Covington County Probate Court.
Hall subsequently filed suit against Shaffer, K.C. Livesay, and Myrtice Livesay. All counts of the original complaint were dismissed for failure to state a cause of action. In an amended complaint, Hall averred that all three defendants were parties to the sale of the Covington property and that an equitable mortgage of the property was created by their actions. Accordingly, as relief, plaintiff, Hall, seeks inter alia a decree declaring an equitable mortgage on the Covington property and that she be allowed to foreclose on that mortgage.
A default judgment for the unpaid balance of the purchase price, interest, and attorney's fees was entered against defendant Clarice Shaffer. Summary judgment, however, was entered against the plaintiff and in favor of defendants K.C. and Myrtice Livesay. Hall appeals.
The single issue presented is whether the pleadings, affidavits, and exhibits, when viewed in a light most favorable to Hall, raise any genuine issue of material fact concerning the creation of an equitable mortgage between Hall and K.C. or Myrtice Livesay.
To prove an equitable mortgage, it must be shown that: (1) the mortgagor has a mortgageable interest in the property sought to be charged as security; (2) a definite debt is due from the mortgagor to the mortgagee; and (3) the intent of the parties is to secure the debt by mortgage, lien, or charge on the property. Murphy v. Carrigan, 270 Ala. 87, 91, 116 So. 2d 568 (1959); Barnett v. Waddell, 248 Ala. 189, 194, 27 So. 2d 1 (1946); Jones v. Stollenwerck, 218 Ala. 637, 119 So. 844 (1928).
The record in the case at bar is completely devoid of any evidence that either *495 of the Livesays ever entered into any agreement, of any nature, with Hall. Accordingly, there is no debt between Hall and Livesay which an equitable mortgage would secure. Thus, an equitable mortgage between Hall and either K.C. or Myrtice Livesay, as a matter of law, was not created.
Based on the foregoing, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | May 31, 1985 |
024fa25d-c471-4717-acc9-e35513ec61f5 | McGee v. Guardian Life Ins. Co. | 472 So. 2d 993 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 993 (1985)
Georgia McGEE
v.
GUARDIAN LIFE INSURANCE CO.; Banker's Life Company; and Provident Life and Accident Insurance Company.
83-734.
Supreme Court of Alabama.
June 7, 1985.
*994 Robert F. Prince of Prince and McGuire, Tuscaloosa, for appellant.
Ollie L. Blan, Jr. and J. Mark Hart of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellee Guardian Life Ins. Co.
Perry Hubbard and Christopher Lyle McIlwain of Hubbard, Waldrop & Tanner, Tuscaloosa, for appellee Bankers Life Co.
Wilbor J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellee Provident Life and Acc. Ins. Co.
Cathy S. Wright and Laura A. Woodruff of Maynard, Cooper, Frierson & Gale, Birmingham, for appellee McWane, Inc.
ADAMS, Justice.
This is an appeal of a summary judgment granted in favor of three insurance companies in a lawsuit filed to collect life insurance benefits. We affirm.
Joseph A. McGee first became employed with McWane, Inc., in 1947. Appellee Guardian Life Insurance Company (hereinafter Guardian) issued a comprehensive insurance coverage plan to McWane, Inc., effective August 1, 1976. McGee was covered under this plan through premiums paid in the form of payroll deductions. McGee became severely ill and stopped working on January 26, 1978. He was 63 years old.
McWane, Inc., discontinued its insurance contract with Guardian and obtained similar coverage with Banker's Life Company (hereinafter Banker's Life) effective July 1, 1978. McWane again changed its insurance contract on January 1, 1979. At that time, Banker's Life coverage was replaced with a contract issued by Provident Life and Accident Company (hereinafter Provident). It is alleged that both times McWane's coverage was changed, an employee of McWane went to the disabled McGee's bedside, and informed him of the change of companies, had him fill out an application, and assured him of coverage. McGee died on February 22, 1979. At the time the Guardian insurance contract was issued, McGee was over 60 years old.
When her demands for life insurance benefits were denied, McGee's wife, Georgia McGee, filed suit against the three insurance companies which had insured McWane employees. She also named McWane, Inc., as a defendant. Mrs. McGee alleged breach of contract against the three insurers, breach of implied contract against McWane, Inc., and fraud against both McWane and the insurance companies. The trial court granted summary judgment in favor of the three insurance companies on all counts, and in favor of McWane on the fraud count only. McGee here appeals the summary judgments in favor of the insurance companies only, and as to them, only the breach of contract issue will be discussed, as this is the only issue she has addressed in her brief.
The question we have before us then is whether the appellee insurance companies by their actions waived the contract conditions which would have negated their liability to pay life insurance benefits to McGee.
We first address the relevant provisions in each insurance company's contract with McWane. Guardian's policy provided three coverages: 1) life insurance, 2) total disability benefits, and 3) major medical health coverage. McGee was covered from 1976 *995 until July 1, 1978, when Banker's Life replaced Guardian as McWane's carrier. McGee became disabled in January 1978 and Guardian paid disability and major medical benefits to McGee until the policy was terminated.
Guardian states that it would have paid life insurance benefits to McGee's beneficiary under either of two situations: 1) if McGee had died while the policy was in effect, or 2) if McGee had met the prerequisites for obtaining extended life insurance coverage for totally disabled employees. This latter coverage provides that a totally disabled employee will receive extended life insurance coverage for one year past the date of termination of the insurance contract if he meets the contract definition of total disability, and he becomes disabled before he reaches age 60 and while insured with Guardian.
The evidence indicates that McWane's policy with Guardian was not in effect at the time McGee died. Furthermore, McGee was past the age of 60 when he became disabled; therefore, he was not entitled to the extended life coverage. Thus, under the contract terms, Guardian was not liable to pay life insurance benefits, unless the company had waived those contract provisions.
The Banker's Life insurance contract covering McWane employees from July 1, 1978, to January 1, 1979, provided that if an employee was not actively at work when the insurance contract would go into effect, then the coverage would not be effective as to that employee until the first day he was actively at work. Banker's Life argues that since McGee was not actively at work on July 1, 1978, when the Banker's Life contract became effective for McWane, Inc., and since McGee never went back to work thereafter, McGee was never covered under the Banker's Life insurance.
Banker's Life asserts, additionally, that if McGee was covered, its contract would have paid life insurance benefits under the same two situations as the Guardian contract discussed above. Since McGee did not die while the contract was in effect, and since he became disabled after age 60 and not while insured under the Banker's Life contract, then McGee was not entitled to life insurance benefits under the contract, unless, as in the case with Guardian, Banker's Life waived these policy provisions.
Appellee Provident's insurance contract covering McWane employees included substantially the same provisions as discussed above in regard to Banker's Life. Provident claims that McGee was never covered under its contract because he was not actively at work when Provident began coverage, and never went back to work thereafter. Provident's contract had a provision for continuation of insurance because of disability, but only if the employee became disabled while insured. Thus, McGee was not covered under Provident's contract, absent a waiver by the company of those provisions.
Since McGee was not entitled to life insurance benefits under the language of the various policies, appellant cannot recover unless the insurance companies waived compliance with those provisions. We now address whether the alleged acceptance of premiums by the three insurance companies served to waive those contract provisions which would otherwise preclude McGee from recovering life insurance benefits.
In Protective Life Insurance Co. v. Cole, 230 Ala. 450, 161 So. 818 (1935) (on rehearing), this Court said the following:
230 Ala. at 452, 161 So. at 819. The Court went on to qualify that statement in this way:
230 Ala. at 452, 161 So. at 819.
In Home Indemnity Company v. Reed Equipment Company, Inc., 381 So. 2d 45 (Ala.1980), the Court construed an insurance contract provision which excluded as an insured person any employee sued by a fellow employee for personal injury occurring in the course of employment. Responding to the claim that the insurer waived this provision, the Court stated as follows:
381 So. 2d at 50-51. Therefore, in Reed, the provision excluding certain employees from coverage was not subject to a waiver by the insurer.
In the instant case, the insurance contracts of both Banker's Life and Provident contained provisions defining the employees who would be insured, as those "actively at work" during the term of the policy. Banker's Life insured employees of McWane, Inc., from July 1, 1978, until January 1, 1979. Provident insured McWane, Inc., from January 1, 1979, thereon. It is undisputed that McGee was not actively at work at any time during this period.
The provisions stating that employees "actively at work" would be insured under the contracts are coverage provisions and thus not subject to waiver. The fact that Banker's Life and Provident accepted premiums to cover McGee does not make the insurers liable on the life insurance contract. Therefore, summary judgment was properly granted in favor of Banker's Life and Provident.
This argument does not apply to Guardian, however, since McGee was "actively at work" when Guardian first commenced coverage of McWane employees. Nevertheless, there is still no waiver by Guardian of the eligibility provisions for life insurance benefits. There is no inconsistency in Guardian's accepting premiums for coverage of McGee, and now denying life insurance benefits to his beneficiary, because it provided disability coverage, major medical coverage, and life insurance coverage. When McGee became disabled, Guardian continued to accept premiums for approximately five months, until the insurance contract terminated. During this time, Guardian paid McGee major medical and disability benefits. Had McGee died during those five months, Guardian would have paid the life insurance benefits. This is true regardless of whether McGee became disabled after age 60, and regardless of the insurer's knowledge of that fact. Since the possibility existed that McGee would die during that period, Guardian was certainly justified in continuing to accept the premiums.
Guardian followed the plain language of the insurance contract. It accepted premiums and paid benefits in accordance with the provisions and exclusions in the contract. It did not waive the age limitation for extended life insurance coverage by continuing to accept premiums, since those premiums paid for several types of coverage, including the primary life insurance coverage. The extended life provision was simply an additional type of benefit available to those employees who met the eligibility requirements. McGee did not. Thus, summary judgment in favor of Guardian was proper.
For the foregoing reasons, the judgment of the circuit court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | June 7, 1985 |
d07584e4-8ad2-4393-96b0-4ddb1b321697 | Cagle v. Qualified Electors of Winston | 470 So. 2d 1208 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1208 (1985)
Hollis CAGLE, Claden Knight and Roy Harris, as members of the Winston County Commission, and Winston County, a political subdivision of the State of Alabama
v.
QUALIFIED ELECTORS OF WINSTON COUNTY, Alabama.
83-884.
Supreme Court of Alabama.
May 7, 1985.
*1209 Hobson Manasco, Jr. and Samuel L. Masdon, Haleyville, for appellants.
Walter Joe James, Jr. of James & Lowe, Haleyville, for appellee.
PER CURIAM.
This is an appeal of a declaratory judgment action in which the trial court held valid Amendment Number 255 to the Alabama Constitution. We affirm.
Plaintiffs/Appellants are members of the Winston County Commission. They filed suit against the qualified electors of Winston County, seeking a judgment declaring that Amendment 255 violated the constitutions of the United States and Alabama. The amendment reads as follows:
Ala. Const. amend. 255. The amendment thus gives the voters of Winston County autonomy, in that the Alabama Legislature cannot enact legislation affecting that county without the approval of the electors thereof.
The Commissioners' position is reflected in the following statement made during the hearing below:
*1210 Transcript 9. The Commissioners decided that Amendment 255 had to be challenged in a lawsuit in order to get needed legislation passed affecting Winston County. The parties agree that Amendment 255 has never yet been enforced, and that no special or local law affecting Winston County has ever been submitted to a vote of the electors to comply with Amendment 255.
The Commissioners argue that Amendment 255 is in derogation of Ala. Const. art. IV, § 44, which states that "the legislative power of this state shall be vested in a legislature, which shall consist of a senate and a house of representatives." It is suggested that to the extent that legislation cannot take effect unless approved by the people of Winston County, the power and authority of the legislature are thereby usurped.
It is true that, in general, the power vested in the legislature to make laws cannot be delegated. In re Opinions of the Justices, 232 Ala. 56, 166 So. 706 (1936). This Court has also opined that statutes are unconstitutional which require a general election before the statute becomes effective. In re Opinion of the Justices No. 201, 287 Ala. 321, 251 So. 2d 739 (1971).
Where authorized by the Constitution itself, however, the delegation by the legislature of the power to make laws is valid. Wallace v. Board of Education, 280 Ala. 635, 197 So. 2d 428 (1967). The present case does not involve a statute which itself requires a referendum by the people before going into effect. We here construe an amendment to our Constitution which requires such a vote before certain legislation can go into effect. Therefore, in this case, the Constitution as amended authorizes the delegation of legislative power complained of. We reserve comment on the wisdom of the amendment or its wording; we hold merely that Amendment 255 is valid and not in derogation of Ala. Const. art. IV, § 44.
The Commissioners also argue that Amendment 255 is unconstitutional because it conflicts with the "guarantee clause" of the United States Constitution. That clause states as follows:
U.S. Const. art. IV, § 4. The Commissioners contend that Amendment 255 violates the guarantee clause by requiring that legislation affecting Winston County be voted on by the people, as in a pure democracy, rather than by elected representatives, as in a republican form of government.
There is some question as to whether this is even a justiciable issue, such political questions generally being determined by the legislative branch. Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S. Ct. 708, 60 L. Ed. 1172 (1916).
Nevertheless, on this issue, one treatise comments as follows:
16A Am.Jur.2d Constitutional Law § 631 (1979). We are in accord with the above-stated generally accepted view. Amendment 255 is a properly adopted part of the *1211 Alabama Constitution, which delegates some legislative power to the people of Winston County. It does not conflict with the Federal Constitution's guarantee of a republican form of government. The people of Alabama have simply reserved for the citizens of Winston County a larger share of legislative power.
For the above-stated reasons, the judgment of the Circuit Court of Winston County is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
BEATTY, J., concurs in the result. | May 7, 1985 |
7db7b281-4e92-4f8f-b305-932be4e39836 | Ex Parte Anonymous | 472 So. 2d 643 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 643 (1985)
Ex parte ANONYMOUS.
(In re ANONYMOUS v. ANONYMOUS).
83-1011.
Supreme Court of Alabama.
May 24, 1985.
Jerry Knight of Hardwick & Knight, Decatur, for petitioner.
Joseph W. Propst, II, Decatur, for respondent.
PER CURIAM.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
MADDOX, JONES, ALMON, SHORES and ADAMS, JJ., concur.
TORBERT, C.J., and EMBRY and BEATTY, JJ., dissent.
FAULKNER, J., recused.
TORBERT, Chief Justice (dissenting).
The mother gave birth to a boy on March 1, 1983. The mother and the husband were married at the time of the child's conception, but the third party alleges that he and the mother were cohabiting in Texas at that time. The third party attempted a "legitimation" proceeding in the probate court within 30 days of the child's birth. The mother objected to the proceedings in the probate court, and the husband filed in that court an instrument declaring himself to be the father of the child.
The third party then sought in the circuit court a judgment declaring that the child was illegitimate and that he was the child's biological father. He filed an affidavit alleging that he and the mother had cohabited from April 1982 until October 1982 and that the mother and the husband had no access to each other during those months. The mother and the husband divorced on November 10, 1982.
The trial court granted the motion to dismiss made by the mother and the husband on the grounds that the third party had no standing. The Court of Civil Appeals, 472 So. 2d 640, remanded the case to the trial court, holding that the third party did have standing. This Court granted certiorari after an ex mero motu reconsideration of our initial denial of certiorari.
The issue in this case is simply one of standing. Does one claiming to be the biological father of a child who was conceived or born during the marriage of the mother and another man have standing to bring a declaratory judgment action to have the child declared illegitimate and *644 himself declared to be the child's father? I do not believe that he has standing.
For actions commenced since May 7, 1984, the Alabama Uniform Parentage Act, Code 1975, § 26-17-1, et seq. (Cum.Supp. 1984), provides that certain persons can bring an action to determine paternity. Section 26-17-6(c) provides that a man claiming to be the biological father can seek a determination of a father-child relationship if the child has no "presumed father." Here, since the child's presumed father is the husband, the third party would not have standing under the Uniform Parentage Act, and the third party's attorney conceded as much in oral argument. The third party argues, however, that the Act does not apply in this case since it was not in effect when he filed his action. I agree with that proposition. However, it is my opinion that the Uniform Parentage Act was a declaration of the public policy, codifying existing law. The legislature explicitly chose not to grant standing to one claiming to be the natural father of a child with a presumed father. While this Court cannot look at the Act as governing law in this case, we should look at it to determine Alabama's public policy with regard to recognition of those claiming to be biological fathers.
It would be contradictory to say that even though the third party had no standing, he could still bring an action under the Declaratory Judgment Act, Code 1975, § 6-6-220 et seq. The Declaratory Judgment Act is a general statute authorizing certain actions and should not be held to preempt a specific body of law dealing with paternity. In addition, the third party is not entitled to bring the declaratory judgment action under the Declaratory Judgment Act, because he has failed to show the existence of a justiciable controversy. While it is true that he has shown that there is a controversy as to whether he is the child's biological father, he has asked only for abstract, as opposed to specific, relief. This is not the kind of status relief contemplated by the act.
I know of only five cases in which standing has been conferred on one claiming to be the biological father of a child conceived while the mother was married to another man. In Raleigh v. Watkins, 97 Mich.App. 258, 293 N.W.2d 789 (1980), paternity was clearly and convincingly proven before the mother challenged the trial court's decision based on the plaintiff's lack of standing. In In re Paternity of Flynn, 130 Mich. App. 740, 344 N.W.2d 352 (1983), and Joseph v. Alexander, 12 Ohio St.3d 88, 465 N.E.2d 448 (1984), the courts determined that standing was conferred by statute. In R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980), the court held that the one claiming to be the father had standing because that court felt the Uniform Parentage Act was unconstitutional in that it denied the one claiming to be the father equal protection, because it allowed the natural mother a judicial declaration of paternity against a putative father, but allowed no action by one claiming to be the father to have himself judicially declared the father. In A.B. v. C.D., 150 Ind.App. 535, 277 N.E.2d 599 (1971), the court held that the one claiming to be the father had an expectancy as an heir apparent that was a present interest sufficient to give him standing to bring a declaratory action seeking a judgment that he is the biological father of the child.
I agree with the position adopted by Arizona, Delaware, Wyoming, and Florida on the issue of standing. In Allen v. Sullivan, 139 Ariz. 142, 677 P.2d 305 (1984), the court held that the one claiming to be the father did not have standing under Arizona's paternity statutes to pursue an action to have himself declared the father, because that statute related only to the situation in which an alleged father was the defendant. Wyoming and Delaware have also explicitly refused to confer standing on one who seeks to establish his paternity of a child born while the mother was married to another man. A. v. X, Y, and Z, 641 P.2d 1222 (Wyo.1982), cert. denied, 459 U.S. 1021, 103 S. Ct. 388, 74 L. Ed. 2d 518 (1982); Petitioner F. v. Respondent R., 430 A.2d 1075 (Del.Super. 1981). These courts, as well as a Florida *645 court, have held that the standing requirement under their states' paternity statutes is constitutionally permissible and is realistically related to the situational differences between unwed fathers on the one hand and unwed mothers and married fathers on the other. Id. See also, Nostrand v. Olivieri, 427 So. 2d 374 (Fla.Dist. Ct.App.1983). In Nostrand, the court also held that one claiming to be the father had to prove standing by showing he had manifested a substantial concern for the welfare of the child he claimed to be his illegitimate child.
A holding reflecting this position would not deprive this third party, and those similarly situated, of due process or equal protection of the law. To determine whether the natural father is protected by the due process clause, the Court must apply the substantial relationship test; that is, the Court must determine whether there is a substantial parental relationship established between the child and the one claiming to be the natural father. Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983) (one claiming to be the natural father of a child placed for adoption had no standing to challenge the adoption because he had failed to establish a substantial relationship with the child in that he had never supported the child and had rarely seen her in the two years since her birth). In Lehr v. Robertson, the United States Supreme Court reviewed its earlier cases dealing with the question of "the extent to which a natural father's biological relationship with his illegitimate child receives protection under the Due Process Clause." The Court emphasized that while the Constitution protects on-going parent-child relationships, "the mere existence of a biological link does not merit equivalent constitutional protection." 463 U.S. at 261, 103 S. Ct. at 2993. The Court in Lehr also repeated its earlier observation in Caban v. Mohammed, 441 U.S. 380, at 397, 99 S.Ct. at 1770: "Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring." In the instant case, there was no actual parental relationship between the third party and the child, and the third party's complaint did not seek relief that would establish such a relationship.
In order for one claiming to be the father to have a claim of denial of equal protection, he must have been treated differently from the natural mother or married father. In Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979), the United States Supreme Court held that a New York statute that allowed an unwed mother but not an unwed father to block adoption by withholding consent violated the equal protection clause. In Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), the Court held that the denial of a hearing on the custodial unmarried father's fitness following the mother's death violated the equal protection clause because all other Illinois parents were entitled to a hearing on fitness before the children could be removed from their custody. Stanley dealt with a natural father who had in fact lived with his illegitimate children many years as a family; the Court held his parent-child relationship to be constitutionally protected. Caban and Stanley, further, involved requests for more than just a determination of paternity. The fact that a natural mother but not one claiming to be the father can bring a paternity proceeding does not violate the equal protection clause, because the purpose of the paternity proceeding is for the benefit and the support of the child, not the mother. Kamp v. Morange, 277 Ala. 575, 173 So. 2d 566 (1964). See also, Alber v. Alber, 93 Idaho 755, 472 P.2d 321 (1970). But see, R. McG. v. J.W., supra. Here, the child is supported by one presumed by the law to be his father, and I do not believe, when there is a presumed father eager to support the child, that another claiming to be the father is also entitled to bring a paternity proceedingi.e., a proceeding not for the support of the child but to proclaim his paternity of the child.
Even under the holding of the Court of Civil Appeals, the plaintiff's burden is great. In order to prevail, he must prove *646 that it was impossible for the husband of the mother to have had sexual relations with his wife at the probable time of conception. Leonard v. Leonard, 360 So. 2d 710 (Ala.1978). Since both the husband and the mother claim that the husband is the father, I do not see how the third party expects to meet his burden. I would reverse the judgment of the Court of Civil Appeals and affirm the trial court's dismissal of the declaratory action on the basis of lack of standing.
If our courts are going to entertain suits of this nature filed prior to the effective date of the Alabama Uniform Parentage Act, then I think it useful to point out that at some point we may have to deal with the difficult questions of establishing equitable time limitations on such actions and the protection of the rights of innocent persons who have acted in good faith reliance on the belief, or legal presumption, that the husband is the father of his wife's child. Under the facts of this particular case, these questions need not be answered now.
EMBRY and BEATTY, JJ., concur. | May 24, 1985 |
7b1bf8fd-6c2b-4662-926e-c0ccfba79eaf | Gulf Coast Media v. Mobile Press | 470 So. 2d 1211 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1211 (1985)
GULF COAST MEDIA, INC.
v.
The MOBILE PRESS REGISTER, INC.
83-625.
Supreme Court of Alabama.
May 10, 1985.
*1212 Allan R. Chason of Chason & Chason, Bay Minette, and Irvin J. Langford of Howell, Johnston & Langford, Mobile, for appellant.
Edward S. Sledge III and Douglas L. McCoy of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
David M. Olive, Birmingham, for amicus curiae Alabama Press Ass'n.
FAULKNER, Justice.
This appeal arose out of a declaratory judgment action to determine whether the publication known as Baldwin People is qualified to publish legal advertising in Baldwin County, pursuant to Code 1975, § 6-8-60.
Gulf Coast Media, Inc., owns four local newspapers in Baldwin County. Gulf Coast Media brought this action against the Mobile Press Register, Inc., as owner of the Baldwin People. Published weekly, the Baldwin People is circulated as an insert in the Thursday edition of the Mobile Register (morning paper) and the Mobile Press (afternoon paper) and mailed from Mobile to Baldwin County or sold in Baldwin County newsstands. The publication carries news of interest to Baldwin County residents and advertisements primarily from Baldwin County advertisers. The Baldwin People has Baldwin County offices in Bay Minette, Foley, and Fairhope.
The trial court, sitting without a jury, held that the Baldwin People is qualified under Alabama Code § 6-8-60 to publish legal notices in Baldwin County. Gulf Coast Media appeals.
Alabama's legal notice statute, Alabama Code 1975, § 6-8-60 provides as follows:
The Mobile Press Register contends that the statute should be broadly construed. It argues that the mandates of the statute are satisfied if its general purpose, to give legal notice, is achieved. We disagree.
The cardinal rule for construction of a statute is to ascertain the legislative intent, which must be determined by examining the statute as a whole in light of its general purpose. Vick v. Bishop, 252 Ala. 250, 40 So. 2d 845 (1949); State ex. rel. Moore v. Strickland, 289 Ala. 488, 268 So. 2d 766 (1972). Legal notice statutes are principally designed to assure that notice of legal or official proceedings is given to those persons who have or who may have an interest therein. This purpose is best served by a newspaper with a fixed local character. Annot. 26 A.L.R.2d 655, 662 (1952).
While many jurisdictions utilizing this approach suggest a broad or liberal construction of legal notice statutes, see e.g. Dearborn Independent, Inc. v. City of Dearborn, 331 Mich. 447, 49 N.W.2d 370 (1951); Wymore Arbor State, Inc. v. Korinek, 182 Neb. 557, 156 N.W.2d 24 (1968), we are of the opinion that strict compliance with the plain language of § 6-8-60 is more appropriate in this case. To hold otherwise would be to emasculate the express statutory requirements of the statute. It is presumed that the legislature does not use statutory language without any meaning or application. Robinson v. State, 361 So. 2d 1113 (Ala.1978); Wright v. Cutler-Hammer, Inc., 358 So. 2d 444 (Ala. 1978).
If we have strict compliance with the specific statutory requirements, an individual seeking notice could expect, and would be able, to find a required notice within a limited number of county newspapers. An individual would not need, as in the instant case, to purchase and look in the Mobile papers to find legal notices from Baldwin County. To hold otherwise might force those looking for a legal notice to make the proverbial search for a needle in a haystack.
Thus in order to determine whether the Baldwin People is qualified to publish legal notices for Baldwin County, we must determine whether the express mandates of the statute have been complied with.
Section 6-8-60 provides that legal notices must be published in a newspaper printed in the English language which has a general circulation in the county. While it is uncontroverted that the Baldwin People is printed in the English language, and that it has a general circulation in Baldwin County, we must initially address the issue of whether the Baldwin People qualifies as a newspaper.
Although the term "newspaper" has not been defined by statute or case law in Alabama, several definitions can be found in the case law from other jurisdictions. 66 C.J.S. Newspapers § 1 (1950). In Caldor, Inc. v. Heffernan, 183 Conn. 566, 440 A.2d 767 (1981), the Connecticut Supreme Court addressed the issue of whether an advertising supplement inserted into a newspaper qualifies as a newspaper for tax exemption status. In reaching its conclusion, the Connecticut court reviewed the definition of *1214 the term "newspaper" as articulated by other jurisdictions, and determined:
Caldor, supra, 183 Conn. at 572, 440 A.2d at 770-71.
While we recognize that according to this broad definition the Baldwin People could be characterized as a newspaper, we nevertheless conclude that such a publication loses its status as a newspaper, for purposes of the legal notice statute, when it is inserted into and distributed with a parent newspaper.
In Friedman's Express, Inc. v. Mirror Transp. Co., 71 F. Supp. 991 (D.N.J.1947), aff'd, 169 F.2d 504 (3d Cir.1948), the court found that the comic section was an "integral part" of a newspaper for taxation purposes. The court held that it was the sum total of all of the sections and features which makes up the entire publication known as a newspaper:
Friedman's Express, supra, 71 F. Supp. at 992.
The only Alabama case we have found dealing with published material which is inserted into a newspaper is Eagerton v. Dixie Color Printing Co., 421 So. 2d 1251 (Ala.1982). In Eagerton, this Court found that an advertising supplement which is inserted into a newspaper and distributed along with that newspaper, is considered an integral part of that newspaper for sales tax exemption purposes.
This Court clearly recognizes the distinction between an advertising supplement or a comic section, and a news publication covering a myriad of topics, such as the Baldwin People. Nevertheless, the fact that the Baldwin People is similarly inserted into, and distributed along with, another publication allows us to conclude by analogy that the Baldwin People, in its present form, is an "integral part" of a newspaper rather than a newspaper in and of itself. A consumer cannot subscribe to or purchase the Baldwin People by itself. It has no circulation of its own, other than in conjunction with the Mobile papers. Much like the sports section or any other special interest section, the Baldwin People carries a section letter designation "Section G."
Based upon the foregoing discussion, we also must conclude that the "principal editorial office" of the Baldwin People is necessarily in Mobile, as is the office of the Mobile Press and the Mobile Register. The term "principal" as used in the statute clearly allows for only one main, primary, chief office where the major editorial functions occur for the entire newspaper. The evidence presented at trial indicates that the majority of the editorial and policy decisions are made in Mobile, whether it is for the sports section or for the Baldwin People. It is in the Mobile office where Graham Heath, the editor of the Baldwin People, conducts over half of the business functions in preparing the Baldwin People for publication. The Mobile office is also where Graham Heath reports to his superiors.
We, therefore, conclude that the Baldwin People is not qualified to publish legal notices in Baldwin County pursuant to § 6-8-60, as it is not a newspaper whose principal editorial office is located within the county. Accordingly, since we have resolved this issue in favor of Gulf Coast Media, we pretermit discussion on the issue of whether the Baldwin People has been "mailed under the second class mailing privilege of the United States postal service *1215 from the post office where it is published for at least 51 weeks a year" within the meaning of § 6-8-60.
We also do not agree with the Mobile Press Register's contention that if we find that the Baldwin People does not qualify under § 6-8-60 then the statute is unconstitutional. The Mobile Press Register argues that since the Baldwin People satisfies the purpose of the statute as well as, if not better than, other publications that do qualify under § 6-8-60, then the statute denies the publisher of the Baldwin People equal protection under the law. Statutory classifications not involving a suspect class or fundamental right need only have a rational basis to withstand scrutiny under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Bell v. Chisom, 421 So. 2d 1239, 1242 (Ala.1982).
In this case the statutory classification is rationally related to the promotion of a valid legislative purpose; that being dissemination of public official notices in a bona fide newspaper which has a fixed local character and nexus to the county, so that individuals are not required to search widely to find official notices. Additionally, we note that the second class mailing permit requirement, although not discussed in this opinion, has been held not to be a constitutionally impermissible delegation of the legislative authority. See e.g., North Jersey Suburbanite Co. v. State, 154 N.J. Super. 126, 381 A.2d 34 (1977); East Suburban Press, Inc. v. Township of Penn Hills, 40 Pa.Commw. 438, 397 A.2d 1263 (1979).
We, therefore, reverse and remand.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I agree that the judgment below should be reversed. The determination that the Baldwin People`s principal editorial office is not in Baldwin County, as required by Alabama's legal notice statute, § 6-8-60, makes it unnecessary to reach the issue of whether the Baldwin People is a newspaper. | May 10, 1985 |
f9773028-0efd-4756-9924-48f1f9ea6782 | Howard v. Burton | 470 So. 2d 1176 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1176 (1985)
W.L. HOWARD, Jr., Individually and as Executor of the Estate of W.L. Howard, Sr.
v.
Louise Howard BURTON and Willis J. Howard.
83-941.
Supreme Court of Alabama.
April 5, 1985.
Rehearing Denied May 10, 1985.
*1177 T.J. Carnes of Carnes & Carnes, Albertville, for appellant.
Ralph Smith, Jr. of Smith & Barnett, Guntersville, for appellees.
TORBERT, Chief Justice.
Appellees, Louise Howard Burton and Willis Howard, are the adult children of the late W.L. Howard. Louise and Willis brought this action against appellant, their brother W.L. Howard, Jr. (Lucian), to determine the ownership of funds on deposit in Central Bank of Albertville following the death of their father. The funds were evidenced by a certificate of deposit payable to "W.L. Howard or W.L. Howard, Jr." Louise and Willis claimed that the funds should be declared part of their father's estate. Lucian claimed that on his father's death, by operation of law, he became the owner of the funds. The trial court, sitting without a jury, held that the funds should be included in the estate. Lucian appeals. We reverse.
Three facts are relevant to the disposition of this case: 1) the certificate of deposit was made payable to W.L. Howard or W.L. Howard, Jr. (Lucian), 2) the certificate of deposit was issued February 17, 1978, and 3) W.L. Howard died November 27, 1981. The only issue this Court must address is the ownership of the funds in the certificate following the death of W.L. Howard.
In support of his claim, Lucian relies on Code 1975, § 5-1-25, which provides:
Section 5-1-25 was repealed in 1980, Acts 1980, No. 80-658; however, when the certificate of deposit was issued in 1978, § 5-1-25 was in full force and *1178 effect; thus, the provisions of that statute control. Jones v. Jones, 423 So. 2d 205, 207 (Ala.1982). The trial court erred in holding that the certificate of deposit had to contain a survivorship provision in order for Lucian to be vested with the proceeds without regard to the donative intent of W.L. Howard. As Lucian correctly stated in his brief, the operative language of § 5-1-25, "stripped of non-essential clauses and phrases," provides:
(Emphasis added.)
This Court has held, in cases involving deposits made in accordance with § 5-1-25, that donative intent is irrelevant. Jones v. Jones, supra; Harris v. Dial, 398 So. 2d 679 (Ala.1981). Harris stated:
398 So. 2d at 681. Moreover, the statute specifically provides that a deposit made in the names of two persons payable to either of such persons shall, in the event of the death of either, be paid to the survivor irrespective of whether or not the funds were the property of only one of the persons or whether or not the person making the deposit had any intention to vest the other with a present interest therein. Macon v. First National Bank of Ashford, 378 So. 2d 1128, 1130 (Ala.Civ.App.1979).
Louise and Willis rely on Chandler v. Farmers & Merchants Bank, 355 So. 2d 726 (Ala.Civ.App.1978), for their position that in the absence of a survivorship provision the intentions of the parties in creating the account was a relevant inquiry. Their reliance is misplaced.
Chandler involved an interpleader action which was filed in order to determine the ownership of funds in a joint savings and checking account. Both accounts were in the name of Mr. or Mrs. B.C. Copeland. After Mr. Copeland died, Mrs. Copeland added the name of Mary Chandler to the checking account authorization signature card. She added the names of Mary Chandler and Ella Chandler to the savings account authorization signature card. The names of the accounts however, remained in their original form; Mr. or Mrs. B.C. Copeland.
Following Mrs. Copeland's death, Mary and Ella claimed ownership of the funds in the respective accounts on which their names had been added. After an ore tenus hearing the trial court ordered that the funds from both accounts be paid to the executor of Mrs. Copeland's estate. Mary and Ella appealed. The Court of Civil Appeals affirmed the trial court's judgment holding that in the absence of a survivorship provision an investigation into Mrs. Copeland's intent in adding names to her accounts was a relevant inquiry. Since Mary and Ella failed to provide evidence of any intent to make an inter vivos gift, they were not entitled to the funds in the accounts. 355 So. 2d at 728.
On the basis of the facts in Chandler, the decision by the Court of Civil Appeals was correct. The facts presented in the present case, however, are not the same as those presented in Chandler. Unlike the certificate of deposit in this case, the disputed accounts in Chandler were not "made in the names of two persons payable to either of such persons." Section 5-1-25(a) and (b) make a clear distinction between an account in the names of two persons payable to either of such persons and an account in the names of more than two persons without a survivorship provision. *1179 Only as to the latter is donative intent a relevant inquiry.
Finally, in Ex parte Lovett, 450 So. 2d 116, 117 (Ala.1984), we recognized the effect that passage of Code 1975, § 5-5A-41, had on § 5-1-25: "Section 5-5A-41 made a critical change in the law. The conclusive presumption of survivorship and donative intent created by § 5-1-25 was eliminated by § 5-5A-41."
The language of § 5-1-25 could not be more plain or simple, and when the plain meaning of a statute can be gleaned from its words, it should be construed in accordance with that plain meaning. Mobile County Republican Executive Committee v. Mandeville, 363 So. 2d 754, 757 (Ala. 1978). The judgment of the trial court is reversed and the cause remanded.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
FAULKNER and BEATTY, JJ., dissent.
FAULKNER, Justice (dissenting).
I respectfully dissent. It is my opinion that the majority misconstrues § 5-1-25, Code 1975. At first blush the operative language of the section might seem to dictate the result reached by the majority. A closer inspection of the statute, however, yields a different result.
Section 5-1-25 provides that when bank deposits are made in "the names of two persons payable to either of such persons, or payable to the survivor of them, the deposit shall, upon the death of either of said persons, become the property of ... the survivor." The majority construes the statute to mean that where money on deposit in a bank is payable "to either A or B," even in the absence of a survivorship provision, the money becomes B's property on A's death.
If the majority's conclusion that under § 5-1-25(a) it is not necessary to have any language in the contract indicating an intention to create a right of survivorship in order for the statute to vest title in the survivor is correct, what possible meaning does the language in the statute "or payable to the survivor of them" have? The tacit assumption underlying the majority's interpretation is that subsection (a) of the statute contemplates two different situations: (1) deposits made in the names of A and B and payable to either A or B; or (2) deposits made in the names of A and B and payable to the survivor of A or B. That assumption seems unreasonable to me, because it seems highly unlikely that two people might deposit money into a bank account in such a form that the money could be withdrawn only by their survivor. It seems much more likely to me that the statutory language, "in the names of two persons payable to either of such persons, or payable to the survivor of them" refers to one type of situation, viz., where deposits made by two persons are payable to either of the two persons or to their survivor.
Construing subsection (a) in such a way that no survivorship provision is necessary in order for title to vest by operation of the statute in the survivor is also at odds with the plain wording of subsection (b) of the statute. Subsection (b) provides that the act applies to deposits "made in the names of more than two persons where there is a provision for survivorship." The majority concludes from this language that a different rule applies to deposits by more than two persons. Under the majority's interpretation of the statute, if money on deposit was payable "to A or B," then on A's death B would own the money by operation of the statute; whereas, if money on deposit was payable "to A, B, or C," then on A and B's death title would not vest in C by operation of the statute. Is it reasonable to assume that the legislature intended for the statute to yield such anomalous results? Is it not more reasonable to construe the language of subsection (a) in such a way that the same results would be obtained when three people deposited money as are obtained when the deposit was made by two persons?
*1180 The majority's interpretation also assumes that the legislature intended to obtain with regard to survivorship of jointly owned bank accounts results different from those obtained with regard to all other forms of jointly owned property in Alabama. Section 35-4-7, Code of Alabama, provides that jointly owned property does not vest in the survivor unless an intention for it to do so is expressed in the instrument creating the joint tenancy. Both sections 35-4-7 and 5-1-25 relate to jointly owned property. It is a fundamental rule of statutory construction that statutes relating to the same subject are to be construed pari materia, for the purpose of giving effect to the legislative intention.
In Ex parte Lovett, 450 So. 2d 116 (Ala. 1984), a joint certificate of deposit was owned by "Cora Spruell or Betty Lovett." The record in that case was silent as to the date of the creation of the joint ownership of the certificate between Mrs. Spruell and Mrs. Lovett. Lovett v. Uptain, 450 So. 2d 113, 114 (Ala.Civ.App.1983). Since it was impossible to determine from the record whether the joint ownership of the certificate was created prior to the repeal of § 5-1-25, it was impossible to determine whether § 5-1-25 controlled the disposition of the proceeds. Without addressing the question of the applicability, vel non, of § 5-1-25, this Court ruled, based on § 35-4-7, that the survivor was not entitled to the proceeds because the certificate did not contain a provision establishing a right of survivorship. Ex parte Lovett, supra, at 117. Given the decision that we reached in Lovett, it appears that we concluded in that case that a survivorship provision in the instrument creating the tenancy would have been necessary in order for title to vest in the survivor even if the certificate was created before the repeal of § 5-1-25. Clearly, the appellant in the present action thought that to be the case, since he asked us to reconsider our holding in Lovett. At any rate, the Court of Civil Appeals' decision, which we affirmed, expressly states that the same result would obtain under either statute:
Lovett v. Uptain, supra, at 114-115.
I would affirm the trial court's decision. Title should not vest in the survivor absent some indication of survivorship in the certificate of deposit.
BEATTY, J., concurs. | April 5, 1985 |
1f2bde4a-2691-47a1-8cc8-9708b5582ac9 | Ex Parte Johnson | 474 So. 2d 715 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 715 (1985)
Ex parte: Mary JOHNSON.
(re In the Matter of Michele Kathleen ABNEY James W. ABNEY v. Mary JOHNSON).
No. 84-167.
Supreme Court of Alabama.
May 10, 1985.
*716 Thomas E. Kincaid, Bessemer, for petitioner.
Tim W. Bice, Bessemer, for respondent.
ADAMS, Justice.
We granted certiorari in this case to determine whether the Court of Civil Appeals erred in concluding that a juvenile court cannot entertain a petition by a parent to have a child declared dependent, and following such declaration, terminate the other parent's parental rights, where the petitioning parent has legal custody of the child by virtue of a divorce decree. We hold that the Court of Civil Appeals, 474 So. 2d 712, did err, and we therefore reverse its judgment.
Mary Johnson and James W. Abney were divorced in 1977; the divorce decree awarded custody of their only child, Michele Kathleen Abney, to Johnson. The decree conditioned Abney's visitation rights upon payment of child support.
Johnson filed a petition with the Juvenile Court of Jefferson County in 1983, seeking to have her child declared "dependent" and, thereby, to terminate the parental rights of Abney. Johnson alleged that Abney had neither contacted the child, nor provided any support payments, since 1977. Further, Johnson had remarried, and the termination of Abney's parental rights would allow the child's stepfather to legally adopt her.
After an ore tenus hearing, the juvenile court entered an order terminating Abney's parental rights. Abney appealed to the Court of Civil Appeals, which reversed the judgment of the juvenile court. After rehearing was denied, Johnson petitioned this Court for a writ of certiorari, which was granted.
The Court of Civil Appeals reversed the juvenile court's judgment because it concluded that Johnson could not herself bring a petition to have her child declared dependent. The court's opinion reads in part as follows:
The court cited no specific statutory language, nor any precedent, for its conclusion. Similarly, our research reveals no legal principle to support that conclusion.
Section 12-15-30, Code of Alabama 1975, describes the jurisdiction of the juvenile court as follows:
(6) Termination of parental rights. Code 1975, § 12-15-30. It is evident then, that the Juvenile Court of Jefferson County had jurisdiction to entertain Johnson's petition to have her child declared dependent and to terminate Abney's parental rights. The issue is whether Johnson was the proper party to file the petition.
Article 3 of Chapter 15, Title 12, sets out the procedure involved in having a juvenile declared dependent and in terminating parental rights as to a juvenile declared dependent. Sections 12-15-50 through 12-15-76, Code 1975, describe these procedures. Nowhere in these sections is the right to file a petition to have parental rights terminated limited to the state. Neither is the right expressly made available to a parent, however.
Last year our legislature passed the Child Protection Act, Code 1975, §§ 26-18-1 through 26-18-10. This Act covers some of the subject matter covered under the statutes in litigation. Provided in the Act are guidelines for the juvenile court to follow in cases involving the termination of parental rights. This statute expressly states who may file a petition "to terminate any or all of the legal rights of one or more parents with respect to a child":
Code 1975, § 26-18-5. Although this statute was not in force at the time Johnson filed her petition, it clearly evidences the legislature's intent to allow parents to initiate such actions. It is a fundamental principle of statutory construction that statutes covering the same or similar subject matter should be construed in pari materia. League of Women Voters v. Renfro, 292 Ala. 128, 290 So. 2d 167 (1974).
Moreover, there is no logical reason to allow only the state to file a petition to have parental rights terminated. Why should a parent, who has direct knowledge and familiarity with a situation, be required to go to the state to obtain such a result, when it would be more direct for the parent to file the petition?
Even the Court of Civil Appeals, in the portion of its opinion excerpted above, acknowledged that "any interested party may sign a petition calling for the proceedings" (emphasis added), but went on to say, however, that "the typical design of the proceedings is to seek removal of the affected child from the custody of its parents." That court thus reasoned that a parent could not file the petition, since the typical purpose of such a petition was to remove the child from the parent's custody.
Although we know that many cases have been, and will be, filed by the state to terminate parental rights, this is not to say that the state has exclusive authority in this regard.
As we have said, our examination of Code 1975, § 12-15-50, et seq., reveals nothing which proscribes one parent's filing of a petition to terminate the other parent's parental rights. We also can find no compelling reason for a rule mandating that only the state initiate such actions. Furthermore, the 1984 Child Protection *718 Act, which expressly allows a parent to file the petition, and which is to be considered in pari materia with the act sub judice, evidences legislative intent in the area. We therefore hold that the Court of Civil Appeals was incorrect in concluding that Johnson could not file a petition to terminate Abney's parental rights.
The issue we now address is whether there was sufficient evidence presented to the trial court to warrant the termination of Abney's parental rights. Where the trial court hears ore tenus testimony and has an opportunity to observe the parties on the stand and in the courtroom, the judgment of the trial court will not be disturbed on appeal, unless found to be so unsupported by the evidence and contrary to law as to be plainly and palpably wrong and unjust. In re Palmer, 387 So. 2d 215 (Ala.Civ.App.1980).
The Court of Civil Appeals concluded that the termination of Abney's parental rights was plainly and palpably wrong in light of the evidence presented at the trial. We disagree. The facts stated in the opinion of the Court of Civil Appeals are sufficient to support the judgment of the trial court. Not only were there facts showing that the father had not supported the child, but there were also facts tending to show that the father had even abandoned the child. The termination of Abney's parental rights was not so unsupported by the evidence as to be plainly and palpably wrong or manifestly unjust.
We, therefore, hold that Johnson was a proper party to bring this petition for termination of parental rights in the juvenile, court, and that the court's termination of Abney's parental rights is supported by the evidence. For these reasons, the decision of the Court of Civil Appeals is reversed and the judgment of the Juvenile Court of Jefferson County is hereby reinstated.
REVERSED; TRIAL COURT JUDGMENT REINSTATED.
FAULKNER, JONES, EMBRY and BEATTY, JJ., concur.
TORBERT, C.J., and MADDOX, J., dissent.
ALMON and SHORES, JJ., not sitting.
MADDOX, Justice (dissenting).
I would affirm the judgment of the Court of Civil Appeals; therefore, I must respectfully dissent.
TORBERT, C.J., concurs. | May 10, 1985 |
00ba701d-de1a-499a-9a88-75fdea66e9c9 | Ex Parte Faircloth | 471 So. 2d 493 | N/A | Alabama | Alabama Supreme Court | 471 So. 2d 493 (1985)
Ex parte Michael C. FAIRCLOTH.
(Re: Michael C. Faircloth v. State).
83-1396.
Supreme Court of Alabama.
May 10, 1985.
*494 Robert E. Willisson of Willisson & Tucker, Huntsville, for petitioner.
Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
The petitioner, Michael C. Faircloth, and his cousin, Jim Carl Faircloth, were jointly *495 indicted and tried for attempted rape. Both were convicted and sentenced to 50 years' imprisonment. The Court of Criminal Appeals affirmed their convictions in a single opinion. Faircloth v. State, 471 So. 2d 485 (Ala.Crim.App.1984). Rehearing was denied, and the cousins thereafter filed separate petitions for writ of certiorari in this Court. Jim Carl's petition was denied. Michael's petition was granted in order for this Court to determine whether the Court of Criminal Appeals was correct in holding that the trial judge did not abuse his discretion in refusing to permit a defense witness to testify because the witness had violated the witness sequestration rule.
The facts concerning this issue are set forth as follows in the opinion by the Court of Criminal Appeals:
"This constitutes all the information on this alleged error that is contained in the record. Although there was a motion for new trial, this issue was not raised. The witness was never further identified and there was no showing of her expected testimony."
The Court of Criminal Appeals noted that, generally, "`[i]f a witness in a criminal case violates the order without fault in the accused, the accused cannot be deprived of the witness's testimony as such deprivation would violate the accused's constitutional right to have witnesses testify in his behalf and at his call.' [C. Gamble], McElroy's Alabama Evidence, § 286.01 [(3d ed. 1977)]." That court then held that because there had been no proffer of the witness's expected testimony, nor any allegation that her testimony was material, the trial judge was presumed to have acted properly and without abusing his discretion in refusing to allow her to testify. Petitioner contends that this holding conflicts with this Court's decisions in Degg v. State, 150 Ala. 3, 43 So. 484 (1907), and Peters v. State, 240 Ala. 531, 200 So. 404 (1941), in that Degg and Peters held that the defendant was entitled to the testimony of a witness who had been present in the courtroom while other witnesses testified and that neither case contained any express requirement or even a reference to a showing of the materiality of that witness's testimony.
In Degg, this Court stated:
Petitioner apparently would have us hold that this language applies in each and every situation where a defense witness violates a sequestration order so that the defendant is always entitled to have that witness testify in his behalf. It is clear, however, that this Court did not intend Degg to have that effect. Immediately following the above quoted language is this passage:
The purpose of the witness sequestration rule is to prevent any one witness from hearing the testimony of other witnesses and perhaps perceiving the value of his own testimony to one party or the other. Obviously, if witnesses are sequestered, they are not able to "strengthen or color their own testimony, or to testify to greater advantage in line with their bias, or to have their memories refreshedsometimes undulyby hearing the testimony of other witnesses." Louisville & Nashville R. R. Co. v. York, 128 Ala. 305, 310, 30 So. 676, 678 (1901). A blanket holding that a defendant is entitled to the testimony of any witness who has violated a sequestration order would completely nullify the witness sequestration rule.
As was recognized in Degg, it is well settled in this state that the question of whether a witness who has violated a sequestration order may thereafter testify is a matter which lies within the sound discretion of the trial judge. See also Stephens v. State, 250 Ala. 123, 33 So. 2d 245 (1947); State v. Brookshire, 2 Ala. 303 (1841). Certainly, as the Court of Criminal Appeals noted, an accused may not be deprived of a witness's testimony solely because the witness disobeyed a sequestration order when that deprivation would violate the accused's constitutional right to have witnesses testify in his behalf. However, if the witness's testimony is not material to the case, there clearly is no violation of the accused's constitutional rights in refusing to permit that witness to testify. There is no prejudice to the accused in being deprived of a witness whose testimony is not material to the case. It is therefore incumbent upon the defendant in the usual case to show that the proffered witness's testimony is material. If the accused fails to make a proffer of the expected testimony of the witness, showing the materiality of that testimony, the trial court should not be put in error for refusing to permit the witness to testify.
This holding is not in conflict with either Degg or Peters. As we demonstrated above, Degg and Peters both involved witnesses who were not known to the defendant to be witnesses at the time the rule was invoked. The facts before us indicate that this was not the situation in the present case. Moreover, it was clear in Peters that *497 the testimony of the witness was, in fact, material, as "she was an eye witness to a part of the difficulty between defendant and the Whitehursts."
Furthermore, it is readily apparent from Degg that the defendant must be "without fault" in the witness's violation of the sequestration order. Petitioner was explicitly instructed when he invoked the sequestration rule that he was "responsible for [his] own witnesses." Obviously, petitioner failed to see that his witnesses stayed out of the courtroom. This can be characterized as "at the least an impermissibly negligent action." McElroy v. State, 154 Ga.App. 638, 639, 269 S.E.2d 497, 498 (1980).
We recognize that there is no necessity for a showing of materiality where it is clear from the evidence previously adduced that the testimony of the proffered witness is material. See Braswell v. Wainwright, 463 F.2d 1148 (5th Cir.1972). As no additional facts were presented for our consideration pursuant to Rule 39(k), A.R.A.P., our review in this case is limited to the facts set forth in the opinion of the Court of Criminal Appeals. Ex parte Bates, 461 So. 2d 5 (Ala.1984); Rule 39(k). We find nothing in those facts to indicate that the testimony of the witness "Sherry" was in any way material.
In this case, petitioner himself invoked the rule, he was then informed that he was responsible for his own witnesses, he failed to meet this responsibility, and he failed to make any showing of the materiality of the witness's expected testimony. Under these circumstances, we find no abuse of discretion in the trial court's refusal to permit this witness to testify.
Petitioner has also cited Mitchell v. State, 28 Ala.App. 119, 180 So. 119, cert. denied, 235 Ala. 530, 180 So. 123 (1938), to support his position. Unlike Degg and Peters, the witness in Mitchell was sworn and placed under the rule with the other witnesses. All we are told concerning the witness's subsequent violation of the rule is that it was "without the knowledge, consent, or connivance of the defendant." 28 Ala.App. at 123, 180 So. at 122. Citing Degg, the Court of Appeals held that the trial court erred in refusing to permit the witness to testify. As we have shown, Degg does not require that the defendant be permitted to call any and all witnesses who violate a sequestration order. There must be some showing that the witness's testimony is material and the defendant must be without fault in the witness's violation of the rule. To the extent that Mitchell conflicts with this holding, it is hereby overruled.
For the reasons stated above, the judgment of the Court of Criminal Appeals is due to be, and it hereby is, affirmed.
AFFIRMED.
All the Justices concur. | May 10, 1985 |
435e7755-e986-4a5c-860e-ec7b740d86b3 | International Paper Co. v. Whilden | 469 So. 2d 560 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 560 (1985)
INTERNATIONAL PAPER COMPANY
v.
Bill WHILDEN, individually and d/b/a Dale Timber Company.
83-144.
Supreme Court of Alabama.
April 5, 1985.
*561 Robert H. Brogden of Brogden & Quattlebaum, Ozark, for appellant.
Henry B. Steagall, III of Steagall & Adams, Ozark, for appellee.
FAULKNER, Justice.
This appeal arose out of an action based upon breach of a timber contract. The suit was filed by C.E. and Martha Loftin against International Paper Company. International Paper thereafter filed a third-party complaint against Bill Whilden, individually and doing business as Dale Timber Company (hereinafter referred to as Whilden) based upon an indemnity agreement. The trial court entered a judgment in favor of the Loftins, and, further found that Whilden was not liable to International Paper in the third-party action. International Paper appeals from the portion of the judgment in favor of third-party defendant Whilden, seeking indemnification for the total judgment.
The sole issue raised is whether the purported indemnity agreement between International Paper and Whilden was executed under duress.
On October 19, 1973, International Paper entered into a contract to purchase from the Loftins timber on land they owned in Dale County. The contract provided that only timber which was selectively marked with yellow paint would be cut. Commencing on October 29, 1973, and culminating on May 22, 1974, International Paper entered into a series of contracts with Whilden for the cutting and hauling of timber on the Loftin tract. International Paper, nevertheless, retained control over the project and assigned one of its employees to supervise the cutting of the Loftin tract.
Sometime around March 1974, International Paper discovered that unmarked trees had been cut. Representatives from International Paper then unsuccessfully attempted to resolve the controversy with the Loftins. Cutting operations were temporarily suspended in order to make a stump tally to determine the number of unmarked trees cut. Cutting eventually resumed, and was finally completed on July 18, 1974.
While the Loftin cutting project was in progress, Whilden entered into a separate agreement to purchase logs from International Paper. In order to purchase the logs, Whilden was required to make an advance down payment which was to be held by International Paper until final payment was received after delivery, at which time the unused portion was to be returned to Whilden. To make the advance payment, *562 Whilden borrowed the money from a bank.
At the conclusion of the Loftin cutting project, International Paper owed Whilden approximately $7,000.00. Because of the dispute about the unmarked trees, International Paper refused to release this amount to Whilden unless he would execute a blanket indemnity agreement holding International Paper harmless from liability to the Loftins.
Whilden signed the indemnity agreement allegedly because he was told that only approximately thirty trees had been improperly cut, and because he needed to get his money to repay the bank loan. International Paper, on the other hand, argued that Whilden knew of the Loftins' claim of $40,000.00 worth of damages at the time he entered into the indemnity agreement.
In rendering its judgment, the trial court initially found that International Paper had breached its contract with Loftin by cutting unmarked trees and failing to use good timberland management and forestry practices. As a proximate result of the breach, damages were assessed at $27,500.00. Concluding that the breach was caused solely by the negligence of International Paper and not from any conduct on the part of Whilden, the trial court found that Whilden was not liable to International Paper, ruling as follows:
The issue presented for our review is whether the trial court properly found that the agreement was executed under duress.
Although not specifically enunciated, it is implicit in the trial judge's finding of duress that he was actually referring to a species of duress commonly known as "economic duress" or "business compulsion." In general, there has been a growing recognition in many jurisdictions that a contract may be executed under such circumstances of business necessity or compulsion as to render the contract involuntary and entitle the coerced party to excuse his performance, especially where undue advantage or threat to do an unlawful injury is shown. 25 Am.Jur.2d Duress and Undue Influence § 6 (1966).
Expanded from the common law concepts of duress, fraud, and undue influence, the modern doctrine of economic duress has gained acceptance in many states, including Alabama. Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So. 2d 847 (1973); McElrath v. Consolidated Pipe & Supply Co., 351 So. 2d 560 (Ala.1977); Ancora Corp. v. Miller Oil Purchasing Co., 396 So. 2d 672 (Ala.1981); Ralls v. First Federal Savings and Loan Association of Andalusia, 422 So. 2d 764 (Ala.1982); Board of School Commissioners of Mobile County v. Wright, 443 So. 2d 35 (Ala.Civ.App.), rev'd on other grounds, 443 So. 2d 40 (Ala. 1983).
In general, many courts have found that three essential elements, or a variation thereof, are necessary to a prima facie case of economic duress: (1) wrongful acts or threats; (2) financial distress caused by the wrongful acts or threats; (3) the absence of any reasonable alternative to the terms presented by the wrongdoer. Sonnleitner v. Commissioner, 598 F.2d 464 (5th Cir. 1979); see generally J. Calamari & J. Perillo, Contracts § 9-2 (2d ed. 1977); 9 A.L.R. 4th 942 (1981); Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Service Co., 584 P.2d 15 (Alaska 1978).
The Restatement (Second) of Contracts § 175 (1979), defines "economic duress" as follows:
*563 In Ralls v. First Federal Savings and Loan Association of Andalusia, 422 So. 2d 764 (Ala.1982), we noted:
Ralls, 422 So. 2d at 766 (citing 17 C.J.S. Contracts § 177 (1963)).
Tantamount to a claim of economic duress is the wrongful pressure exerted by one party which overcomes the will of another.
Board of School Commissioners of Mobile County v. Wright, 443 So. 2d 35, 38-39 (Ala.Civ.App.), rev'd on other grounds, 443 So. 2d 40 (Ala.1983).
In determining whether International Paper exerted any wrongful pressure upon Whilden so as to render the contract involuntary, we initially note that a threat to breach a contract or to withhold payment of an admitted debt may constitute a wrongful act. Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Service Co., 584 P.2d 15, 22 (Alaska 1978) (citing Hartsville Oil Mill v. United States, 271 U.S. 43, 49, 46 S. Ct. 389, 391, 70 L. Ed. 822 (1926), Austin Instrument Inc. v. Loral Corp., 29 N.Y.2d 124, 324 N.Y.S.2d 22, 25, 272 N.E.2d 533, 535 (1971); Capps v. Georgia-Pacific Corp., 253 Or. 248, 453 P.2d 935 (1969). While the mere withholding of payment of a debt, without more, is insufficient to constitute economic duress, Hackley v. Headley, 45 Mich. 569, 8 N.W. 511 (1881); Vines v. General Outdoor Advertising Co., 171 F.2d 487 (2d Cir.1948), in this case the trial judge could have found that there existed the additional element of bad faith on the part of International Paper. Totem Marine, supra, 584 P.2d at 22, Restatement (Second) of Contracts, § 318 Comment (e) (1979).
In the instant case, the evidence presented at trial supported a conclusion that, not only did International Paper fail to repay its admitted debt, but it also failed to disclose the existence of material facts to Whilden. Before signing the indemnity agreement, Whilden was told by representatives from International Paper that there had been only about thirty trees negligently cut. However, an independent appraisal by the Loftins revealed that over 650 unmarked trees had in fact been improperly cut. Although aware of the appraisal, International Paper failed to disclose its existence to Whilden prior to the execution of the indemnity agreement.
Economic duress is not proved merely by showing a wrongful act. In addition, the victim must show that he had no reasonable alternative but to agree to the other party's terms or face serious financial hardship. Totem Marine, supra, 584 P.2d at 22, and cases cited therein.
In this case the trial court could have reasonably determined that Whilden had no choice but to accept the terms of the agreement, especially when considered in light of the superior bargaining power of International Paper and the financial difficulties that would be caused due to defendant's failure to pay. International Paper is the nation's largest paper company, while Dale Timber, on the other hand is a sole proprietorship owned by Whilden. In order *564 to purchase the logs from International Paper, Whilden had to take out a loan which had to be repaid to the bank. Whilden's testimony indicated that he would not have signed the agreement had he been informed that liability for more than thirty trees was involved, and had he not needed to get his money back.
The case was heard by the trial court, sitting without a jury. Under our ore tenus standard of review, the trial court's findings carry a presumption of correctness which will not be disturbed on appeal unless palpably wrong, without supporting evidence, or manifestly unjust. Skinner v. Florence, 439 So. 2d 118 (Ala. 1983). Accordingly, we find that the trial court could reasonably have found that International Paper took unfair advantage of Whilden's economic necessities to coerce him into making the agreement.
AFFIRMED.
ALMON, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I agree that the judgment is due to be affirmed, but for another reason.
The trial court found that the damages to the Loftins were wrongfully caused by International Paper and that the purported indemnity agreement was executed under duress. Even if the agreement was not executed under duress, Whilden would be liable to International Paper only if Whilden had agreed to indemnify International Paper against the consequences of the indemnitee's wrongful conduct. The only issue raised by International Paper is whether the agreement was executed under duress. We need not decide that issue, however, for even if the trial court did err, the error would be harmless unless the agreement indemnified International Paper from the consequences of its own wrongful conduct.
An agreement to indemnify will be construed to encompass an obligation to indemnify the indemnitee against the consequences of its own wrongful conduct only if the intent to do so is expressed in clear and unequivocal language. Industrial Tile, Inc. v. Stewart, 388 So. 2d 171 (Ala. 1980); 42 C.J.S. Indemnity § 12 (1944); Camden Safe Deposit & Trust Co. v. Eavenson, 295 Pa. 357, 145 A. 434 (1929). The indemnity agreement between International Paper and Dale Timber Company (Whilden) is premised on the fact
I do not find that the agreement clearly and unequivocally expresses an intention *565 that Dale Timber Company indemnify International Paper for the consequences of the indemnitee's wrongful conduct. Therefore, because the trial court found that the Loftins' damages were caused by International Paper's wrongful conduct, International Paper is not entitled to indemnity, even if the agreement was not executed under duress. | April 5, 1985 |
cd33b1ae-3945-4671-8165-fded8eb379f5 | Fontenot v. Bramlett | 470 So. 2d 669 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 669 (1985)
Johnnie Francis FONTENOT and Richard Fontenot
v.
E.C. BRAMLETT.
83-1309.
Supreme Court of Alabama.
April 19, 1985.
*671 Irvin J. Langford for Howell, Johnston & Langford, Mobile, for appellants.
W. Boyd Reeves and Robert J. Mullican for Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
MADDOX, Justice.
This is an appeal from an order granting a Rule 12(b)(6), Ala.R.Civ.P., motion to dismiss a complaint for failure to state a claim upon which relief could be granted. We reverse.
On April 7, 1983, Johnnie Francis Fontenot, an employee of Mobile Infirmary, was injured when a hospital elevator in which she was riding dropped several floors during a power outage. It is undisputed that the injury occurred while Mrs. Fontenot was working within the course of her employment, within the meaning of the Alabama Workmen's Compensation Act, Code 1975, § 25-5-1.
Mrs. Fontenot and her husband brought separate suits against E.C. Bramlett, the vice-president and administrator of Mobile Infirmary; Montgomery Elevator Company; Alabama Power Company; and several fictitious parties, alleging negligence. Specifically, they alleged that Bramlett negligently failed to provide Mrs. Fontenot with a safe place to work and with a safe elevator. After the two suits were consolidated for trial on a motion by Alabama Power, Bramlett filed a 12(b)(6) motion to dismiss. On April 4, 1984, his motion was granted and on June 15, 1984, the Fontenots' motion to reconsider was denied. On July 16, 1984, the trial court certified the dismissal as final, pursuant to Rule 54(b), Ala.R. Civ.P., and the Fontenots appealed here.
The sole issue before us is whether the trial court erred in granting Bramlett's motion to dismiss. We find that it did. It is a well-established principle of law in this state that a complaint, like all other pleadings, should be liberally construed, Rule 8(f), Ala.R.Civ.P., and that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So. 2d 899 (Ala. 1979). Stated another way, if under a provable set of facts, upon any cognizable theory of law, a complaint states a claim upon which relief could be granted, the complaint should not be dismissed. Childs v. Mississippi Valley Title Insurance Co., 359 So. 2d 1146 (Ala.1978).
Where a 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So. 2d 258 (Ala.1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So. 2d 57 (Ala.1982).
Applying this standard of review to the present case, we are not persuaded that the Fontenots would be unable to recover against Bramlett under any cognizable theory of law or under any set of facts. Quite the contrary, the Fontenots' complaint clearly sets forth a cause of action sounding in negligence, a theory upon which plaintiffs in similar actions have previously prevailed.
Code 1975, § 25-1-1, specifically provides:
In accord with this statute, which is merely a codification of earlier common law, Foreman v. Dorsey Trailers, Inc., 256 Ala. 253, 54 So. 2d 499 (1951), it has been recognized that, under proper facts, supervisory personnel, including corporate officers, may be held liable as co-employees for negligently failing to provide their subordinates with a reasonably safe place in which to work. Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334 (Ala.1980); United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So. 2d 367 (1970). Such liability may be imposed if it is proved that, as a part of their responsibilities, the defendant supervisory personnel were delegated or assumed their employer's duty to provide a safe work place or a material portion of that duty. Coleman, supra, at 336-338. As was stated by Justice Jones in a concurring opinion in Coleman:
Coleman, supra, at 346, 347 (Jones, J., concurring in the result). While co-employees may raise applicable defenses, Coleman, supra, at 346 (Jones, J., concurring in the result), including the lack of delegation of the above-stated duty, they are not entitled, as Bramlett contends, to the immunity provided to their employer, as a matter of law, by the Workmen's Compensation Act, Code 1975, § 25-5-11. Coleman, supra, at 336.
Furthermore, Bramlett's contention that § 25-1-1 does not provide the Fontenots with a cause of action because "the statute indicates that the duty to provide a reasonable [sic] safe work place emanates only from one's status as an `employer' or alter ego thereof" is incorrect. In essence, his argument is that the employer's statutory duty under § 25-1-1 is non-delegable and, therefore, may not be the basis for co-employee liability. While he is correct that § 25-1-1 imposes a duty to provide a safe work place upon an employer alone based solely upon his status, he apparently fails to perceive that the statute in no way prohibits the imposition of liability upon co-employees, including supervisors or corporate officers, where, as stated above, they are delegated or voluntarily assume the duty of maintaining a safe work place. As has been previously stated:
Coleman, supra, at 348, (Jones, J., concurring in the result). See also Kennemer v. McFann, 470 So. 2d 1113 (Ala.1985).
Thus, in the present instance, if the Fontenots can prove that Bramlett was delegated or assumed all, or any material portion, of Mobile Infirmary's duty to provide a safe work place, thereby incurring a personal duty to provide Mrs. Fontenot with a safe place to work, and that he breached that duty, proximately causing Mrs. Fontenot's injuries, they may recover against him. While the existence of a duty on Bramlett's part is a question of law to be determined by the trial judge, Sungas, Inc. v. Perry, 450 So. 2d 1085 (Ala.1984), in this case it is a question which can only be answered after the presentation of some evidence showing either the delegation or non-delegation to him of his employer's statutory and common law duties to provide a reasonably safe work environment. A review of the record before us shows absolutely no such evidence and, therefore, no basis for the trial court's dismissal of the Fontenots' complaints.
In our view, the present complaints set forth a cognizable theory (negligence) which may, upon proof of the proper facts (proof of a duty on Bramlett's part and of a breach thereof) entitle the Fontenots to recover against Bramlett. Without some evidence that no duty or breach existed, it cannot be said that the Fontenots' complaints failed to state a claim upon which relief could be granted. Therefore, we must reverse and remand for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ. | April 19, 1985 |
dc65eaba-ac20-4ce3-a4d3-40c8fa44b645 | Samply v. Integrity Ins. Co. | 476 So. 2d 79 | N/A | Alabama | Alabama Supreme Court | 476 So. 2d 79 (1985)
Guy Allen SAMPLY, Jr., et al.
v.
INTEGRITY INSURANCE COMPANY.
84-131.
Supreme Court of Alabama.
August 30, 1985.
*80 Barry C. Leavell, Montgomery, for appellant Guy Allen Samply, Jr.
George B. Azar of Azar, Campbell & Azar, Montgomery, for appellants Robert Hatter, Nina Hatter and Michelle Hatter.
James E. Wilson of Melton & Espy, Montgomery, for appellee.
MADDOX, Justice.
The sole issue in this case is whether an insurer is relieved of its obligation to defend its insured by paying the policy limits into court.
To answer this question, we must first look at the language of the insurance contract itself and determine what the parties intended. After reviewing the subject policy provisions, and after reviewing the facts, we are convinced that the insurer was under a duty to defend its insured; therefore, the declaratory judgment of the trial court which held that the insurer owed no duty to defend its insured is due to be reversed.
The facts preceding the insurer's request for declaratory relief are as follows:
On May 21, 1983, Nina Hatter was injured when the car she was driving collided with a car driven by Guy Allen Samply, Jr. Her minor daughter, Michelle Hatter, was also injured. On October 20, 1983, Nina Hatter brought suit against Samply for her personal injuries. Her husband, Robert Hatter, also sued and sought damages for loss of consortium and for the medical expenses of his wife and child. No action was brought on behalf of the minor, Michelle Hatter.
Samply's insurer, Integrity, retained counsel to represent Samply in the Hatters' suits. The case was tried, but resulted in a mistrial.
A new trial date was set, but before the case was tried, Integrity brought this declaratory judgment action, naming Samply, the Hatters, and the Hatters' daughter as defendants, and sought to have the limits of its coverage established at $10,000, and also sought to be discharged from the suit upon payment into court of that amount. Integrity sought a declaration of its rights under the contract, specifically a clause in its policy which provided that its coverage was limited to $10,000 per injured person and $20,000 per accident. Integrity relied heavily upon a provision of the policy which provided, in pertinent part, as follows:
The trial court held that Integrity's coverage of the accident in question was limited to $10,000, and, that, upon tender of that sum to the clerk of the court, Integrity would be relieved of further defense of Samply. Integrity paid the $10,000 into court and was discharged. Samply and the Hatters appeal here, raising the following issues: whether the trial court erred in holding (1) that the applicable policy limit is $10,000; and (2) that upon payment into court of $10,000, Integrity's duty to defend Samply ended.
During oral argument, counsel for Samply conceded that the amount of the policy limit is no longer an issue; therefore, the sole issue before this Court is whether, under the provisions of its policy with Samply, Integrity could tender its policy limits and discontinue its defense of Samply.
Both parties agree that there is a split of authority among the various jurisdictions over the issue now before us. In most of the cases cited to us, the insurer sought to tender the policy limits and be absolved of its duty to defend after it had either settled with the plaintiff for the amount of those limits or the insurance claimant had obtained a judgment equal to or exceeding those limits. This is not the situation which exists in the present case. In this case, neither was there a settlement nor had the insurer paid a judgment in favor of the claimants against its insured; instead, Integrity was allowed to tender its policy limits and withdraw from the defense of the claim against its insured, without the consent of its insured and without a determination of the liability of its insured. Although courts are divided on the question, Annot., 27 A.L.R.3d 1057 (1969), the general rule is that an insurer is not absolved of its duty to defend in the latter situation where the policy limits are tendered, without the consent of the insured, prior to settlement or judgment. Zulkey & Pollard, The Duty to Defend After Exhaustion of Policy Limits, For The Defense, June 1985, at 21, 23.
Insofar as we can determine, this is a question of first impression in this state. We begin our consideration of the question by stating some familiar principles of insurance law.
An insured, of course, has a primary right against his liability insurer to reimbursement for loss falling within the coverage defined in the policy, and the scope of that right ordinarily is determined by the construction of the clauses in the policy which define the bodily injury liability and property damage liability coverages.
It is also well settled that an insurer's duty to defend is broader than its duty to pay. Oxford Lumber Co. v. Lumbermen's Mutual Insurance Co., 472 So. 2d 973 (1985); Upton v. Mississippi Valley Title Insurance Co., 469 So. 2d 548 (Ala. 1985); Allstate Insurance Co. v. Shirah, 466 So. 2d 940 (Ala.1985).
Integrity relies heavily upon Lumbermen's Mutual Casualty Co. v. McCarthy, 90 N.H. 320, 8 A.2d 750 (1939), which did hold that, upon satisfying a judgment equal to its policy limits, an insurer was relieved of its duty to defend, but the court specifically noted:
90 N.H. at 323-324, 8 A.2d at 752.
Integrity argues that a number of other courts have tied the exhaustion of the duty to defend to the exhaustion of the liability coverage. It cites in addition to McCarthy, the following cases in support of that proposition: General Casualty Co. v. Whipple, 328 F.2d 353 (7th Cir.1964); Denham v. LaSalle-Madison Hotel Co., 168 F.2d 576 (7th Cir.1948); Allstate Insurance Co. v. Montgomery Trucking Co., 328 F. Supp. 415 (N.D.Ga.1971); Commercial Union Insurance Co. v. Adams, 231 F. Supp. 860 (S.D.Ind.1964); Aetna Casualty & Surety Co. v. Certain Underwriters at Lloyds of London, 56 Cal. App. 3d 791, 129 Cal. Rptr. 47 (1976); National Union Insurance Co. v. Phoenix Insurance Co., 301 A.2d 222 (D.C.1973); Liberty Mutual Insurance Co. v. Mead Corp., 219 Ga. 6, 131 S.E.2d 534 (1963); Oda v. Highway Insurance Co., 44 Ill.App.2d 235, 194 N.E.2d 489 (1963); Sutton Mutual Insurance Co. v. Rolph, 109 N.H. 142, 244 A.2d 186 (1968); Travelers Indemnity Co. v. New England Box Co., 102 N.Y. 380, 157 A.2d 765 (1960).
Integrity recognizes, of course, that "there are courts that have held that the insurer must defend although coverage may be exhausted."
In all but two of the cases cited by Integrity to support its position, [viz., Commercial Union Insurance Co. v. Adams, 231 F. Supp. 860 (S.D.Ind.1964), and National Union Insurance Co. v. Phoenix Assurance Co., 301 A.2d 222 (D.C.1973)], there was either a settlement or a judgment exhausting the policy limits prior to the insurers seeking to withdraw its defense.
In Adams, supra, at 864-866, the court rejected the reasoning of American Casualty Co. v. Howard, 187 F.2d 322 (4th Cir.1951), which held that the insurer's duty to defend continued even after judgment exhausting the policy limits, and adopted the language of McCarthy, supra, that "after the policy limits had been paid on a first judgment ... the insurer had no further duty to defend." (Emphasis added.) The Adams court also followed the holding of Denham v. LaSalle-Madison Hotel Co., 168 F.2d 576 (7th Cir.1948), cert. denied, 335 U.S. 871, 69 S. Ct. 167, 93 L. Ed. 415 (1948), which allowed an insurer to be discharged of its duty to defend upon tender of its policy limits.
Similarly, even though the court in National Union recognized that the language of McCarthy prohibited an insurer from abandoning its insured in the middle of a proceeding, National Union, supra, n. 4 at 224, the court chose to follow Adams, holding that, upon tender of its policy limits, the insurer was discharged of any further duty to defend. National Union, supra, at 225. We believe that Adams and National Union should not be followed in this jurisdiction.
Some jurisdictions hold that the insurer's duty to defend extends until the first recovery which exhausts the policy limit. Anchor Casualty Co. v. McCaleb, 178 F.2d 322 (5th Cir.1949); Allstate Insurance Co. v. Montgomery Trucking Co., 328 F. Supp. 415, 417 (N.D.Ga.1971) (citing Liberty Mutual Insurance Co. v. Mead, 219 Ga. 6, 131 S.E.2d 534 (1963)); Simmons v. Jeffords, 260 F. Supp. 641 (E.D.Pa.1966); Conway v. Country Casualty Insurance Co., 97 Ill. App.3d 768, 423 N.E.2d 559 (1981), rev'd in part on other grounds, 92 Ill. 2d 388, 442 N.E.2d 245 (1982); Sutton Mutual Insurance Co. v. Rolph, 109 N.H. 142, 244 A.2d 186 (1968). The term "recovery" has been interpreted to mean either the payment of a settlement or of a judgment. Gross v. Lloyds of London Insurance Co., 121 Wis.2d 78, 358 N.W.2d 266, 270 (1984).
Because of the policy language in this case, we believe that the better rule is that an insurer's duty to defend is not discharged by paying the policy limits into court.
Even the court in Keene Corp. v. Insurance Company of North America, 597 F. Supp. 946 (D.D.C.1985), which held that an insurer was relieved of its duty to defend upon a settlement exhausting the policy *83 limits, apparently recognized that its holding would have been different if the insurer had attempted to tender the limits prior to settlement or judgment. Citing cases holding that the insurer's duty to defend continued where no settlement or judgment existed, the Keene Corp. court stated:
597 F. Supp. 952.
This principle, which we adopt, that an insurer is relieved of its duty to defend only upon exhaustion of its policy limits by settlement or judgment, seems consistent with the principle contained in the legal literature in this area. For example, 7C Appleman, Insurance Law and Practice, § 4682 (1979), provides:
Corley & Gamble, Alabama Law of Damages, § 27-3 (1982), provides:
A publication of the insurance defense industry itself, see Zulkey & Pollard, supra, at 23, discusses the issue of termination of liability, and concludes:
In consideration of the foregoing authority, we hold that the better rule of law is that an insurer, when it obligates itself to defend, as we find the insurer did in this case, cannot avoid its duty to defend against an insured's contingent liability by *84 tendering the amount of its policy limits into court without effectuating a settlement or obtaining the consent of the insured.
The judgment of the circuit court holding otherwise is reversed and the cause is remanded to that court for the entry of a judgment not inconsistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
FAULKNER, JONES, SHORES and BEATTY, JJ., concur. | August 30, 1985 |
933e45be-e4a2-4519-908c-769e090bad8e | SS Steele & Co., Inc. v. Pugh | 473 So. 2d 978 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 978 (1985)
S.S. STEELE & COMPANY, INC. and Guaranty Federal Savings and Loan Association of Mobile County, Alabama
v.
Walter G. PUGH and Linda B. Pugh.
83-3.
Supreme Court of Alabama.
April 12, 1985.
Rehearing Denied July 12, 1985.
*979 Alton R. Brown, Jr., E.J. Saad, and Michael S. McGlotheren of Brown, Hudgens, Richardson, Mobile, for appellants.
Fred W. Killion, Jr., Carl Robert Gottlieb, Jr., and Patricia K. Olney of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellees.
FAULKNER, Justice.
This appeal arose out of the allegedly defective construction of a new home. Plaintiffs, Walter and Linda Pugh, brought an action against defendant S.S. Steele & Co., Inc. for breach of warranty, fraud, and negligence, and against defendant Guaranty Federal Savings and Loan Association of Mobile County, Alabama, for breach of contract. A jury verdict was returned in favor of the plaintiffs and both defendants appeal.
On July 14, 1975, plaintiffs Walter and Linda Pugh entered into a contract whereby defendant S.S. Steele & Co., Inc. agreed to build a house for the Pughs at a cost of $23,855.00. To finance construction of the house, the Pughs secured a loan from defendant Guaranty Federal Savings & Loan for $22,532.00.
On September 13, 1975, a monolithic slab was poured on the Pughs' lot upon which the house was to be built. On September 15, 1975, Mr. Pugh observed a crack in the slab. Subsequently, Mr. Pugh met with Mr. Steele of S.S. Steele & Co., Inc., and was assured that there were no problems with the slab and that it was structurally sound. S.S. Steele & Co. thereafter agreed to give the Pughs a 25-year warranty to indemnify them for any damage if the slab was not constructed in a workmanlike manner; in exchange the Pughs agreed to allow S.S. Steele & Co. to continue with the construction of the house.
The slab warranty read in part as follows:
Sometime thereafter problems arose with the construction of the house. The appellees' brief summarizes the evidence regarding the alleged defects as follows:
On the other hand, S.S. Steele & Co. claims that the Pughs only complained about minor details in the construction and about cosmetic work which needed to be done. It says that at no time after the slab warranty was given did the Pughs ever complain about the slab, nor has the crack in the slab changed since it was originally noticed.
Pursuant to the loan agreement between the Pughs and Guaranty Federal Savings and Loan, payments were to be made to S.S. Steele & Co. in two installments. On October 31, 1975, Mr. Pugh executed a written authorization to Guaranty Federal Savings to pay S.S. Steele & Co. the initial fifty percent of the cost of construction. Upon completion, S.S. Steele & Co. was to receive the final fifty percent payment from Guaranty Federal Savings. However, after allegedly giving S.S. Steele & Co. a list of corrections which needed to be made, and being told by its representative that nothing else was going to be done to repair the house, Mr. Pugh advised Guaranty Federal Savings not to give S.S. Steele the final fifty percent payment due to the defective construction of the house.
Thereafter, Mr. Donald Williams of Guaranty Federal Savings inspected the property and eventually made the final payment to S.S. Steele & Co., even though the defects allegedly were not repaired.
The Pughs filed suit in the Mobile County Circuit Court against both S.S. Steele & Co. and Guaranty Federal Savings and Loan. Specifically, the Pughs' complaint alleged that S.S. Steele & Co. breached its warranty to build a house for plaintiffs in a good and workmanlike manner. Further, the plaintiffs claimed that the house was not constructed in a good and workmanlike manner, that that defendant breached the "slab warranty," and that as the proximate result of such breach, plaintiffs had been injured and damaged. The plaintiffs also claimed that defendant S.S. Steele & Co. made fraudulent misrepresentations upon which the Pughs relied to their detriment. Plaintiffs additionally claim that that defendant negligently constructed the slab and the house and caused the plaintiffs damage.
The plaintiffs also claim that they brought to the attention of the defendant Guaranty Federal Savings the defects in the house, and that that defendant, in violation of its agreement with the plaintiffs and contrary to the plaintiffs' instructions, nevertheless made payment to defendant S.S. Steele & Co.
The circuit court denied defendants' motion for directed verdict, and submitted the case to the jury, which found for plaintiffs and against both defendants. The jury returned a verdict against defendant S.S. Steele & Co. in the amount of $150,000.00, plus costs, and against defendant Guaranty Federal Savings and Loan in the amount of $16,281.87. The trial court denied defendants' motion for a judgment notwithstanding the verdict, and defendants' alternative motion for new trial.
The defendants appeal, raising the following issues:
We initially note that there is a strong presumption in favor of upholding a jury verdict on appeal. Upon review, we will not overturn a jury verdict unless the evidence is so preponderant against the verdict as to clearly indicate that it was wrong and unjust. Mahoney v. Forsman, 437 So. 2d 1030, 1033 (Ala.1983). Upon review of the record in this case, we find that the jury's verdict is due to be affirmed as to S.S. Steele & Co. and reversed as to Guaranty Federal Savings in light of the following discussions.
Prior to initiation of construction of the house, the Pughs and S.S. Steele & Co. entered into a written contract that provided in part:
S.S. Steele & Co. argues that the Pughs cannot prevail as a matter of law because the Pughs contractually agreed to resolve any disputes by arbitration. They contend that since the representatives from Guaranty Federal Savings resolved the controversy in favor of S.S. Steele & Co., the Pughs cannot now relitigate the same issues in court and must accept the arbitrator's decision.
We disagree. In Wells v. Mobile County Board of Realtors, 387 So. 2d 140 (Ala. 1980), we noted:
Id., 387 So. 2d at 144.
In the instant case, even if we accept appellants' argument that the parties contractually agreed in advance to submit to arbitration any controversy which might arise, such contractual provisions would serve to defeat the jurisdiction of the courts and therefore should not be enforced, as a matter of public policy.
In response, S.S. Steele & Co. also argues that the agreements are enforceable and not void as against public policy because the Pughs actually ratified the arbitration agreements by referring the controversy to Guaranty Federal Savings to inspect the premises and to withhold payments due to the dispute.
The issue of whether the controversy was actually submitted to arbitration was a question of fact for the jury. The evidence in this case was controverted as to whether Mr. Williams, the representative from Guaranty Federal Savings, was called upon to resolve the dispute in an impartial arbitrator's capacity.
The evidence indicates that the Pughs notified Guaranty Federal Savings of the *982 defective condition of the house and requested that final payment to S.S. Steele & Co. be withheld. Mr. Williams came out to inspect the home. He testified that it was generally not his job to conduct such inspections, yet he was qualified to do so. The inspection was conducted in the late afternoon, there was no electricity in the house, and a floundering light had to be used to see. A final inspection report was never prepared by Mr. Williams, allegedly because one had already been prepared by another representative from Guaranty Federal Savings. The original inspection report was never found, however, and a reconstructed report was later drafted in response to interrogatories in preparation for trial. The final payment was ultimately made by Guaranty Federal Savings after Mr. Williams determined that the defects were cosmetic in nature.
The record indicates that at trial Mr. Williams did not specifically recall many of the defects, although he did recall that the defective slab was not brought to his attention. Mr. Williams did testify, however, that if the alleged conditions did in fact exist, the payment should not have been made. There was ample testimony and photographic evidence presented by the Pughs that such defective conditions did, in fact, exist. Accordingly, a jury question was presented, and the jury was free to reasonably determine that no actual submission to arbitration had been executed.
The Pughs contend that there was sufficient evidence by which a jury could have concluded that S.S. Steele & Co. wilfully or recklessly misrepresented that the slab was constructed in a workmanlike manner. They argue that S.S. Steele & Co. knew or should have known that the slab was not structurally sound and that the true facts were concealed from the Pughs in order to induce them to rely upon the slab warranty and thus allow S.S. Steele to continue construction of the house. We agree.
In this case the record supports the conclusion that the Pughs relied upon the affirmative representations made by S.S. Steele & Co. that the slab would be fine and that it was structurally sound. The evidence indicates that had it not been for these representations, the Pughs would not have accepted the slab warranty and would not have allowed the construction to continue. Mr. Pugh even testified that he would have had the slab replaced, but that he was, however, encouraged not to do so and was given the slab warranty. Given the numerous defects which were allegedly caused by the cracked slab, and the testimony indicating that the crack had worsened over time, the jury was justified in determining that S.S. Steele & Co. made a willful misrepresentation regarding the suitability of the slab, which it, as a professional builder knew or should have known was false or that it recklessly represented facts without regard to whether its statements were true or not. See Alabama Code 1975, § 6-5-101. Ex parte Smith, 412 So. 2d 1222 (Ala.1982).
Such testimony allowed the jury to infer either a positive intention to deceive or a recklessness amounting to the same thing. See Waites v. Toran, 411 So. 2d 127, 130 (Ala.1982). Accordingly, the jury could have reasonably determined that punitive damages were recoverable.
S.S. Steele & Co. also argues that the trial court, over objection, improperly admitted damage testimony regarding the market value of the Pughs' home at the date of trial. In general, the proper measure of damages for injury to property is the difference in market value before and after the injury. Crump v. Geer Brothers, Inc., 336 So. 2d 1091 (Ala.1976). Additionally, the measure of damages for breach of warranty of habitability is "the difference in the reasonable market value of the house in the condition at the time it was purchased and the reasonable market value of the house as it would have been had the house been constructed substantially according *983 to the contract or warranty." Crocker v. Reed, 420 So. 2d 285 (Ala.Civ. App.1982).
In the instant case the admission of testimony regarding the fair market value of the house as it stood at the date of trial was apparently allowed by the trial court to show that the damages that existed had worsened over time as a result of the cracked slab. Mr. Pugh testified that the crack in the slab had gotten worse, which caused him to suffer additional loss in the value of his property between the date he moved in and the date of trial. Such evidence indicates that the cracked slab caused continuing damage to the Pugh home which increased over time. Since the injury was one of a continuing nature, a "before and after the injury" value could not necessarily be determined as of the date the Pughs moved in.
Additionally, without objection, similar testimony regarding the value of the house at the date of trial was also received from witness Sidney Knight, a professional real estate appraiser. This testimony indicated that by the nature of its defective condition, the house has failed to appreciate in value as it reasonably would have, had it been built without the defects.
Accordingly, admission of testimony regarding the fair market value of the property as it stood at the date of trial did not constitute reversible error.
Finally, we hold that the verdict against Guaranty Federal Savings must be reversed. The financing contract between the Pughs and Guaranty Federal Savings involved the following provision:
Since the Pughs agreed to be bound by the decision of the lender, we conclude that there was insufficient evidence to justify a finding that Guaranty Federal Savings breached its contract with the Pughs by releasing final payment to S.S. Steele.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
JONES, EMBRY, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX, ALMON and SHORES, JJ., concur in part and dissent in part, with opinion by TORBERT, C.J.
TORBERT, Chief Justice (concurring in part and dissenting in part).
I would reverse and remand. I concede that there was evidence of an innocent misrepresentation, Code 1975, § 6-5-101; however, it is my opinion that there is no evidence of an intentional misrepresentation. Thus, punitive damages are improper in this case.
The Pughs argue fraud, alleging that S.S. Steele knew or should have known that the slab was not constructed in a good and workmanlike manner and that the true facts were concealed in order to induce the Pughs to rely on the slab warranty and allow S.S. Steele to continue construction.
The elements of simple fraud were met. Under the evidence in this case, the jury was authorized to find that S.S. Steele made a false representation, concerning a material existing fact, upon which the Pughs relied, and that the Pughs have been damaged as a proximate result of their reliance. Haddox v. First Alabama Bank of Montgomery, N.A., 449 So. 2d 1226 (Ala. 1984). However, the Pughs were not entitled to punitive damages unless (1) the *984 fraud was intentionally committed and was gross, malicious, and oppressive, and was committed with the intent to injure, Mobile Dodge, Inc. v. Waters, 404 So. 2d 26 (Ala. 1981) (Torbert, C.J., concurring specially), or (2) the misrepresentation was made with such recklessness as to amount to the knowledge of its falseness. Big Three Motors, Inc. v. Smith, 412 So. 2d 1222 (Ala. 1982).
The Court has stated:
Although S.S. Steele acknowledged that the slab was cracked at the time the warranty was given, that is not necessarily evidence that S.S. Steele knew that the slab was not constructed in a good and workmanlike manner. Moreover, S.S. Steele gave an express written 25-year slab warranty whereby S.S. Steele agreed to
The giving of the slab warranty negates, under the law and the facts of this case, an inference that the fraud was intentionally or recklessly committed or committed with intent to injure or deceive; thus, the award of punitive damages was improper.
I would reverse and remand.
MADDOX, ALMON and SHORES, JJ., concur. | April 12, 1985 |
cafa372e-848f-4c70-8357-5063c59b99aa | Ex Parte Reid | 474 So. 2d 151 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 151 (1985)
Ex parte B.T. REID.
(Re Bernard T. Reid v. State of Alabama).
84-116.
Supreme Court of Alabama.
May 10, 1985.
*152 S. Palmer Keith, Jr. and F. Wayne Keith of Keith, Keith & Keith, Birmingham, for petitioner.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Spec. Asst. Attys. Gen., for respondent.
JONES, Justice.
B.T. Reid's conviction of theft of property in the first degree was affirmed by the Court of Criminal Appeals, 474 So. 2d 148 (Ala.Cr.App.1984). We granted certiorari to review the issue whether the trial court's disallowing certain testimony was reversible error. We find that it was. Therefore, we reverse.
A brief recitation of the pertinent facts is necessary to this Court's treatment of the narrow evidentiary issue presented.
In October 1980, B.T. Reid sold the assets of his construction company (including heavy equipment) to a company known as Celco. Celco, in turn, leased the equipment back to Reid. Reid had, in past years, made equipment purchases from Berco Supply Company. On August 20, 1981, Reid and Charlie Berzett (store manager for Berco) arranged for Reid to purchase undercarriages for the six crawler tractors which Reid was leasing from Celco and using on various state and municipal jobs.
Reid and Berzett discussed payment for the parts, and Berzett agreed to accept a signed, post-dated, but otherwise blank check, knowing that the check was not valid when issued. Berzett testified that Reid said he had made arrangements at his bank to borrow the money when the jobs were completed and that Reid assured Berzett that the money would be available to pay for all the parts with that one check. The parts were delivered on August 21, 1981, and the Berco delivery person picked up Reid's signed blank check which had been post-dated to September 12, 1981.
On September 19, 1981, Reid requested a duplicate set of invoices for the equipment. The evidence is in dispute as to why these invoices were requested. Reid testified that the bonding companies that took over his failing business needed the invoices to assign the specific amounts due to the various jobs on which the equipment had been used. Berzett testified that Reid told him he needed the invoices for a loan application at a bank. A bank officer was allowed to testify that Reid had neither applied for nor been given a loan to cover the Berco indebtedness. The trial court, however, excluded all evidence regarding the activities of the bonding companies, including the proffered testimony of a bonding company officer who had dealt with Reid.
*153 Reid informed Berzett several times that there was not sufficient money in his account to cover the check and that he was still waiting for payment checks from his state and municipal jobs. Berzett ascertained this same information from the bank on the day he had Reid's check filled in and presented for payment. The check, for $42,686.58, was dishonored because of insufficient funds.
The Court of Criminal Appeals, in its opinion, stated that the "subsequent takeover of [Reid's] failing business by the bonding companies did not bear upon the issue [of Reid's intent]; on the contrary, admission of this evidence would quite properly have been confusing to the jury, given the complex nature of the facts of this case." Furthermore, says Respondent, "the subsequent takeover of [Reid's] failing business can hardly be deemed a valid defense to the crime he committed." We disagree.
To be sure, as an element of the crime charged, the State's burden is to prove that the requisite intent existed at the time the check was presented by the payor and accepted by the payee in return for the goods. Intent is difficult to prove, however, and must be inferred from the totality of the facts and circumstances developed by the evidence of the case. Hinds v. State, 423 So. 2d 1382 (Ala.Crim.App. 1982). "When," as here, "a material element of a crime is the fraudulent intent of the accused, both the State and the accused are allowed broad scope in introducing evidence with even the slightest tendency to establish or negate such intent...." Cottonreeder v. State, 389 So. 2d 1169, 1174 (Ala.Crim.App.1980). The evidence of collateral conduct which would be deemed admissible under this principle "is ordinarily produced for the purpose of showing criminal or fraudulent intent, [but] may with equal logic be offered to show the lack of such intent." Gard, Jones on Evidence Civil and Criminal, Vol. 1, § 4:13 (6th ed.1972).
Here, because of the nature of the crime with which Reid was charged, proof of Reid's innocence or guilt necessarily includes evidence of events subsequent to the time Reid's blank check was delivered to Berco. Where, as here, the gravamen of the offense charged consists in Reid's misrepresentation that he would make the worthless check valid at a subsequent time, then, any evidence of subsequent events bearing on Reid's intent to defraud at the time he represented that the worthless check would be made good is of probative value to the factfinder in testing the State's burden to prove its case.
Similarly, evidence as to the subsequent ability or inability of Reid to meet the obligation imposed by the delivery of the check, as well as evidence as to the cause of Reid's ability or inability to cover the check, are, unquestionably, of probative value. Indeed, evidence of any subsequent circumstances would be both relevant and material as to the issue whether, at the time he delivered the blank check to Berco, Reid intended to commit theft by fraud and, therefore, should have been admitted into evidence.
The jury was permitted to hear testimony that both Reid and Berzett knew the check to be worthless when delivered and, thereafter, that Reid and Berzett had differing accounts as to the reason Reid gave for requesting the duplicate set of invoices, and that the bank had no record of Reid's obtaining (or even applying for) a loan to cover Reid's indebtedness to Berco. However, because of the trial court's fear for the possibility of confusing the jury in an already complex case, Reid was not allowed to bring before the jury those collateral circumstances from which the fact-finder could have drawn inferences of a lack of criminal intent. The testimony of the bonding company officer, and testimony with regard to any other material activities of the bonding companies, should have been admitted at trial. Evidence of the intervention of the bonding companies in Reid's failing business and the preemption of control by the bonding companies, effectively precluding Reid's further management of the affairs of the business, was *154 material to the issues at trial (particularly the requisite element of Reid's intent to defraud), and, therefore, was admissible.
For the error noted, the decision of the Court of Criminal Appeals is reversed and this cause is remanded for an order reversing the judgment of conviction and sentence and remanding the cause to the circuit court for a new trial.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. | May 10, 1985 |
7c9d13ad-7811-4b95-a5e5-d07b8348c313 | Dobbins v. City of Anniston | 469 So. 2d 583 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 583 (1985)
O. Clayton DOBBINS
v.
The CITY OF ANNISTON, Alabama, A Municipal Corporation, Mary Owen Brisky, in her official capacity as Clerk of the City of Anniston, Alabama, and William Robison.
83-1363.
Supreme Court of Alabama.
April 12, 1985.
John C. Falkenberry, Joe R. Whatley, Jr., and Donald W. Stewart, Birmingham, for appellant.
W. Eugene Rutledge of Rutledge, Fay & Kelly, Birmingham, George A. Monk of Merrill, Porch, Doster & Dillon, Anniston, for appellees.
PER CURIAM.
This is an appeal from the Calhoun County Circuit Court's judgment dismissing the *584 election contest filed by appellant, O. Clayton Dobbins. We affirm.
O. Clayton Dobbins ran against appellee William Robison for Councilman-at-Large (commonly referred to as "Mayor") of the City of Anniston. The election was held on Tuesday, July 31, 1984. Dobbins lost the election by eleven votes. This appeal is concerned with the events surrounding Dobbins's attempt to contest the results of the election.
On Monday, August 6, 1984, Dobbins's secretary telephoned the clerk and the register at the courthouse to determine what type and amount of bond was required to be filed. She was told by the clerk that the complaint should be filed in the register's office, and that a judge would have to set the amount of the bond. The secretary told the clerk that, according to the Code of Alabama, the clerk was supposed to set and approve the bond, but the clerk maintained the position that Dobbins should see a judge.
Later that day, Dobbins filed his petition with the register's office. After doing so, he inquired of the register as to the proper procedure for giving a security for costs. He was told that the judge to whom the case was assigned, Judge Sam Monk, would have to set and approve the bond. Dobbins told the register that he had already prepared a bond and that he had it with him. She (the register) then handed Dobbins two of her own blank bond forms, suggesting that he might wish to use them instead. The register did not ask to see the prepared bond or notify Dobbins of any filing deadline, and Dobbins made no attempt to file any bond with the register at this time.
Dobbins attempted to have bond set by Judge Monk, but he recused himself because his brother was the city attorney in the case. Dobbins approached the next judge, Judge Quattlebaum, during a recess of one of his trials. Judge Quattlebaum told Dobbins to get together with the city attorney in order to reach an agreement as to the amount of bond to be set. After his trial, Judge Quattlebaum met with the attorneys for both sides and informed them that he, too, was recusing himself. This took place at approximately 5:30 p.m., August 6th.
The attorneys then went to Judge Malcolm Street, who was the only judge left in the circuit who could hear the case. At this time, the attorneys for the City of Anniston and for Robison questioned the sufficiency of the petition, and insisted that the court conduct a hearing before any bond was set. At 3:00 p.m. the following day, August 7, Judge Street informed the parties, via telephone conference call, that the bond was set at $15,000.00. Nothing was said by Judge Street to the effect that the bond needed to be filed that day. Dobbins filed the bond required by the court the following day, August 8, and the register approved it.
Following a hearing concerning dismissal of the petition, Judge Street also recused himself. This Court then appointed Judge Randall L. Cole to hear the case. Judge Cole, after a hearing on the matter, issued a decree dismissing the petition.
The dispositive issue on appeal is whether the trial court erred when it dismissed the complaint, based upon appellant's failure to give a security for costs as is required by § 17-15-29, Code 1975.
Election contests in Alabama are governed by §§ 17-15-1 through 17-15-63, Code 1975. The section dealing with contesting an election of a municipal officer is § 17-15-29, Code 1975, which reads in pertinent part:
According to this section, a contestant must both file a verified petition, as well as give a good and sufficient security for costs, in order to commence an election contest. The contestant has five days after the election results are declared to contest *585 an election for a city or town office. § 11-46-69, Code 1975. Rule 6(a), Alabama Rules of Civil Procedure, also provides that, when a time period is less than seven days, Saturdays and Sundays are excluded in the computation of time. Therefore, in order to comply with the above-mentioned statutes and rule, Dobbins had to file his petition and security for costs on or before August 7, 1984. With regard to the petition, we agree with the trial court that Dobbins satisfied the provisions of §§ 17-15-29 and 11-46-69, Code 1975, and rule 6(a), A.R.Civ.P. However, for the reasons stated below, we hold that Dobbins failed to give a security for costs within the applicable time period, and, therefore, that the election contest was correctly dismissed by the trial court.
Section 17-15-29 requires the filing of the statement and the giving of a security for costs by the contestant of an election. The cases which interpret this section hold that the filing of the security for costs is a jurisdictional prerequisite to the court's going forward at all with the election contest. Bowen v. Holcombe, 204 Ala. 549, 87 So. 87 (1919); Groom v. Taylor, 235 Ala. 247, 178 So. 33 (1937). It is clear from these cases that without some type of security for costs being filed the court has no jurisdiction in the matter, and the election contest must be dismissed.
Dobbins cites Lowery v. Petree, 175 Ala. 559, 57 So. 818 (1912), and Bowen v. Holcombe, supra, which hold that as long as a contestant has complied "in form at least" with the statute, the contest should not be dismissed. Also, a contestant's compliance with the statute should not be determined merely by the clerical acts of marking the security for costs filed. Ex parte Shepherd, 172 Ala. 205, 55 So. 627 (1926).
Although cited by Dobbins, these cases, along with Groom v. Taylor, supra, actually support appellee Robison's argument and the court's decision to dismiss the election contest. These cases all hold that where an attempt was made to comply with the statute requiring bond, the fact that the bond may be insufficient, inadequate, or defective will not authorize dismissal of the contest; rather, the court should allow an amendment, and in some instances even a substitution, to be filed to correct the error.
The rule of law to be gleaned from these cases is that where a contestant has complied with the requirements "in form at least," the court should allow the bond to be amended. In the instant case, Dobbins has failed to file any type of bond and, thus, has not complied "in form at least." Had he at least filed some sort of bond within the time period, then based upon the above-cited cases, the court could have allowed him to amend the bond at a later date outside of the statutory time period. However, Dobbins filed no bond at all until August 8, 1984, which was clearly outside of the time period. His claim that he attempted to timely file a security for costs with the register is not supported by the affidavits and depositions submitted to the court. Having not complied with the minimum requirements for election contests, Dobbins's contest must fail.
Furthermore, Dobbins's attempt to label the register's conduct as being arbitrary and capricious conduct by a court official is without merit. There is no proof offered by Dobbins of any misconduct by any of the court officials or judges in this matter.
For the reasons stated above, the judgment of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON, SHORES and ADAMS, JJ., concur. | April 12, 1985 |
315be333-59b2-4ff2-b853-7f2f742dc4c7 | Ex Parte Jones | 473 So. 2d 545 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 545 (1985)
Ex parte Martin Lee JONES.
(re Martin Lee JONES and Solomon Bryant v. STATE of Alabama).
Ex parte Solomon BRYANT.
(re Martin Lee JONES and Solomon Bryant v. STATE of Alabama).
83-757, 83-758.
Supreme Court of Alabama.
May 10, 1985.
James H. Lackey, Mobile, for petitioners.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
EMBRY, Justice.
Writs of certiorari to the Court of Criminal Appeals, 473 So. 2d 541, were issued in these cases, to review the decision of that court that affirmed petitioners' convictions and sentences.
These petitioners were indicted on charges of theft in the second degree. *546 They were arraigned and pleaded not guilty. On 20 April 1983, a motion to consolidate the trials of Martin Lee Jones and Solomon Bryant was filed by the State. It was granted on 22 April 1983. Trial was held on 3 and 4 May 1983; petitioners were found guilty and sentenced. They appealed and the Court of Criminal Appeals affirmed.
The facts set out in the opinion of the Court of Criminal Appeals are sufficient to determine the issue presented for review.
Rule 15.4(b), Alabama Temporary Rules of Criminal Procedure, provides as follows:
We cannot agree with the appellate court's statement that this rule was effectively complied with or, if not, any error arising from the failure to comply was harmless. The rule is mandatory when stating "the court shall not order that the defendants be tried together without first providing the defendants and the prosecutor an opportunity to be heard." (Emphasis added.) Affording an opportunity to move for severance after consolidation fails to cure the prejudicial error resulting from violation of the rule.
As asserted by petitioners, they have a right to effective assistance of counsel at all critical stages of the proceedings against them. Amendment VI, Const. of U.S. Every lawyer experienced in representing persons charged with crimes knows it to be crucial to defense strategy and tactics that he is aware of whether his client is to be tried alone or with another.
We today hold that the purpose of Rule 15.4(b), Alabama Temporary Rules of Criminal Procedure, can only be served by strict compliance with it.
The Court of Criminal Appeals' decision is due to be, and is hereby, reversed and the case remanded to that court for action by it consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur. | May 10, 1985 |
50c250cb-aec3-445e-bfcf-d13b53d1831b | BESSEMER EXECUTIVE AVIATION v. Barnett | 469 So. 2d 1283 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 1283 (1985)
BESSEMER EXECUTIVE AVIATION, INC.
v.
Albert J. BARNETT.
83-988.
Supreme Court of Alabama.
April 19, 1985.
*1284 William E. Bright, Jr., Birmingham, for appellant.
William P. Gray, Jr. of Gray, Espy and Nettles, Tuscaloosa, and David E. Hampe, Jr. of Hampe, Dillard and Ferguson, Birmingham, for appellee.
SHORES, Justice.
Albert J. Barnett bought an airplane from Bessemer Executive Aviation (BEA) in 1979 and financed the purchase through Piper Acceptance Corporation. Later, Barnett and BEA entered into an arrangement whereby BEA agreed to lease the airplane to its customers. Barnett claims that BEA promised to make the purchase payment to Piper Acceptance Corporation with the excess of the rental fees over expenses. BEA, on the other hand, contends that it did not represent that there would be enough money from rentals to cover the purchase payments. Additionally, BEA claims that it did not agree to make the purchase payments for Barnett, but only agreed to remit 75% of the lease fees to him after deduction of expenses.
Subsequently Barnett became delinquent on the purchase payments, and Piper Acceptance Corporation repossessed the airplane. Barnett then brought suit against both Piper Acceptance Corporation and BEA. He alleged that Piper Acceptance Corporation fraudulently represented that it would accept surrender of the airplane as a complete satisfaction of the debt. This fraud claim against Piper Acceptance Corporation was severed and tried separately and is not involved in the present appeal. He also alleged misrepresentation, breach of contract, and conversion against BEA, arising from the lease agreement. The cause was tried before a jury, which returned a general verdict for Barnett in the amount of $10,400.00. Because BEA has failed to preserve any error for review, we affirm.
On direct examination, Barnett testified as follows:
BEA contends that the trial court erred by sustaining Barnett's objection to the following question on cross-examination:
Barnett alleged that the conversion of the airplane occurred on May 20, 1981. The testimony on direct examination, therefore, was relevant on the issue of conversion, since damages for that cause of action are computed as "the difference between the reasonable fair market value of the item converted and the balance due on the mortgage debt at the time of conversion, plus interest." (Emphasis added.) Ott v. Fox, 362 So. 2d 836, 841 (Ala.1978). The question asked on cross-examination was not relevant on this issue since it sought Barnett's opinion on the value of the airplane at the time of trial. Where an objection is sustained to a question which does not on its face show the expected answer, a party must make an offer of proof and explain the relevancy of the expected answer to preserve error for appellate review. Leonard v. Leonard, 360 So. 2d 710 (Ala.1978); Bradford v. Stanley, 355 So. 2d 328 (Ala.1978); C. Gamble, McElroy's Alabama Evidence § 425.01(4), at p. 785 (3d ed. 1977). BEA failed to explain the relevance of this question and, thus, did not preserve any possible error.
Next, BEA argues that the trial court erred by sustaining Barnett's objection to the following question:
BEA failed to make an offer of proof of the expected answer and did not explain to the trial court the relevance of the testimony. We cannot hold, therefore, that the trial court erred in sustaining the objection.
Finally, BEA contends that the trial court erred by sustaining Barnett's objection to its question concerning the outcome of the severed suit:
Here, BEA again failed to make an offer of proof and failed to explain to the trial court the relevance of the expected testimony. We hold, therefore, that the trial court did not err in sustaining this objection.
For the above stated reasons, the judgment of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | April 19, 1985 |
4a60ea29-121d-49c2-8bd8-ff40a1ab99c3 | Jenkins v. Thrift | 469 So. 2d 1278 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 1278 (1985)
Edgar JENKINS
v.
Nancy Jo THRIFT, Sr., and George Thrift.
83-677.
Supreme Court of Alabama.
April 19, 1985.
Noel J. Nelson, Mobile, for appellant.
Calvin Clay, Mobile, for appellees.
*1279 SHORES, Justice.
Edgar Jenkins, the plaintiff herein, brought this action for a declaratory judgment to determine if he is obligated to convey a parcel of land to the defendants, Nancy Jo Thrift, Sr., George Thrift, and Jessie Thrift, pursuant to a lease/purchase agreement dated September 6, 1976. The agreement extends to the Thrifts an option to purchase the subject property within the period of the lease. At trial, Jenkins claimed that he did not execute the lease/purchase agreement. The case was tried without a jury, and the trial court found that Jenkins did execute the agreement and that the Thrifts duly exercised the option to purchase. The court then granted the Thrifts' counterclaim for specific performance. We affirm.
The lease/purchase agreement reads as follows:
Before the lease/purchase agreement was executed, the Thrifts resided in their mobile home on the subject property under a verbal understanding with Jenkins. After the written agreement was executed, the Thrifts made permanent improvements on the property and paid Jenkins the $50.00 per month rent payments through May 1980. At that time, Jenkins refused to accept further payments.
On June 15, 1981, the Thrifts sent to Jenkins the following letter by certified mail, which he refused to accept:
The trial court held that the Thrifts exercised the purchase option by this letter and "further by asking this court for specific performance still within the time limitations set forth in the [o]ption."
In Kennedy v. Herring, 270 Ala. 73, 116 So. 2d 596 (1959), this Court considered the legal implications of an option to purchase realty and wrote as follows:
270 Ala. at 75, 116 So. 2d at 598.
Properly viewed, the letter of June 15, 1981, is an exercise of the option to *1280 renew the lease, with an indication of the Thrifts' intent to exercise the option to purchase at the end of the five-year period. By filing the counterclaim for specific performance within the time limitations set forth in the agreement, however, the option was accepted and, thus, ripened into a mutually binding contract of purchase and sale enforceable in equity by specific performance.
Jenkins argues that Ala.Code 1975, § 8-1-41, prohibits specific enforcement of this purchase option. The statute reads in pertinent part as follows:
The document before us is not an example of careful legal drafting. Nonetheless, the following terms are clear from its face: The lease provides for a term of five years with an option to extend its duration for an additional five years; the purchase option is exercisable within the term of the lease; rent payments apply to the purchase price; and the purchase price is $8,000. We hold, therefore, that the purchase option is sufficiently certain and definite so that specific enforcement is not prohibited by § 8-1-41.
Alternatively, Jenkins argues that if the purchase option is specifically enforceable, Ala.Code 1975, § 35-4-76(a), limits its duration to two years. Consequently, he argues, the option expired as a matter of law before the Thrifts attempted to exercise it. The relevant portion of § 35-4-76(a) reads as follows:
The purchase option in this case is limited in duration to the term of the lease, a period of no more than ten years. It does not, therefore, fall within the two-year limitation of § 35-4-76(a).
When Jenkins entered into the lease/purchase agreement with the Thrifts, he owned a life estate in the property, and his daughter, Brenda Jenkins Hobby, owned the remainder interest. Hobby, upon motion of the Thrifts, was joined as a necessary party in this action.
Hobby conveyed her remainder interest to Jenkins. Jenkins asserts that this conveyance was ordered by the trial court. Further, Jenkins states in his brief that the conveyance is being held "in escrow, delivery of the deed to Plaintiff being contingent upon a final adjudication in this matter requiring Plaintiff to convey fee simple title to Defendants." Neither contention is supported by the record.
Indeed, the following exchange between counsel for Jenkins and the trial court reveals that the court did not compel the conveyance:
On February 10, 1984, the trial court entered its final decree, which granted specific performance to the Thrifts conditioned on their payment of the balance of the purchase price to Jenkins within thirty days. This appeal was taken, and, on March 23, 1984, Jenkins filed a motion for an order to require that the money for the purchase price be deposited in court and placed in an interest bearing account. Jenkins claims that the court granted this order on May 18, 1984, and that the Thrifts *1281 are currently in default for failure to obey the order. There is nothing in the record, however, to indicate that the trial court entered this order or that the Thrifts are in default. Consequently, we cannot address this issue.
For the above stated reasons, the judgment of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | April 19, 1985 |
f1e14dc1-9c08-4426-b452-0ed016f693d9 | Ex Parte Southtrust Bank of Tuskegee | 469 So. 2d 103 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 103 (1985)
Ex parte SOUTHTRUST BANK OF TUSKEGEE, formerly known as Citibanc of Alabama/Tuskegee.
(In re Alberta K. ANDERSON, as Guardian of the Estate of Barbara Ann Anderson, and Barbara Ann Anderson v. CITIBANC OF ALABAMA/TUSKEGEE and ABC Corporation).
84-140.
Supreme Court of Alabama.
April 5, 1985.
Allan Nathanson of Raymon, Nathanson & Raymon, Tuskegee, for petitioner.
Louis C. Rutland and Lynn W. Jinks, III, Union Springs, for respondents.
FAULKNER, Justice.
This is a petition of Southtrust Bank of Tuskegee for writ of mandamus to direct Judge Jack W. Wallace, presiding Judge of the Bullock County Circuit Court, to grant a motion to transfer the cause to the Circuit Court of Macon County. The writ is denied.
Alberta K. Anderson, as guardian, and Barbara Ann Anderson, residents of Bullock County, brought this action in Bullock County against Citibanc of Alabama/Tuskegee, presently known as Southtrust Bank of Tuskegee (Southtrust), a domestic corporation with its principal place of business in Tuskegee, Alabama. The plaintiffs' complaint alleged fraud and misrepresentation arising from the renewal of a certificate of deposit, and conversion for failure to pay *104 the proceeds from said certificate of deposit.
Southtrust filed a motion for change of venue on the grounds that it was a domestic corporation whose only place of business was in Macon County, and that it did not conduct any business by agent in Bullock County. Following the denial of the motion, Southtrust filed this petition for writ of mandamus.
The sole issue presented is whether the trial court improperly denied Southtrust's motion for change of venue from Bullock to Macon County.
The applicable Alabama venue statute, Alabama Code 1975, § 6-3-7, states:
Our recent case of Ex parte Real Estate Financing, Inc., 450 So. 2d 461 (Ala. 1984), is dispositive on the issue of whether a domestic corporation is "doing business by agent" for venue purposes. That case involved a suit alleging breach of contract, misrepresentation, negligence, and wantonness with regard to the handling of a loan by and through Real Estate Financing, Inc. (REF), a domestic corporation. The action was brought in Lawrence County. The defendant had no offices in Lawrence County, no loan applications were taken in the forum county, no full time agent was employed in the county, and only a minimal percentage (less than 1/10th of 1%) of the total loans made by REF were made on Lawrence County property.
In rejecting REF's argument that venue was improper in Lawrence County, this Court stated:
Ex parte Real Estate Financing, Inc., supra, at 463.
Applying these principles to the instant facts, we find an analogous fact situation. In this case, Southtrust, like REF, is a domestic corporation with no offices, or full time general employees, in the forum county. Likewise, the percentage of business conducted in the county is minimal in comparison to the overall business conducted by the corporation; Southtrust conducts almost all of its business in Macon County; and the only connection with Bullock County is that Southtrust has taken a small number of mortgages on Bullock County property, which in several instances have been closed in Bullock County for the convenience of the borrower and the attorney. Additionally, Southtrust has previously made loans to Bullock County debtors, secured by Bullock County property. Although executed in Macon County, the financing statements were all filed in Bullock County. In addition, the stipulation of facts in this case indicates that on occasion a Southtrust agent would travel to Bullock County to attempt to collect on a loan which had become delinquent.
Southtrust argues that the collection of debts upon default, and the taking of a small number of mortgages in Bullock County is a tenuous connection to that forum, and that the instances of doing business in Bullock County are too remote for venue to be proper in Bullock County. While we note that in some instances the mere collection of a debt or the taking of a mortgage might not constitute "doing business" *105 for venue purposes, in this case the aggregate of all of Southtrust's corporate activities in Bullock County ultimately achieves Southtrust's primary corporate purposemaking loans.
Southtrust also argues that Ex parte Real Estate Financing, Inc., supra, is distinguishable because in the instant case the acts alleged in the complaint occurred, if at all, in Macon County and not in Bullock County. While the fact that the claim arose in the forum county may be a factor in determining the ultimate issue, the converse is not necessarily true. The fact that the acts complained of, did not occur in the forum county, is not dispositive of the venue issue. The ultimate question is not whether the claim itself arose in the forum county, but whether the corporation was doing business in that county. As such, the trial court did not abuse its discretion by finding that Southtrust was doing business in Bullock County. The trial court committed no error in denying the motion for change of venue.
Finding no error, we deny the writ.
WRIT DENIED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | April 5, 1985 |
b0c38de6-cc2e-4a7d-ab5c-fff4a13dd155 | Olinger v. Collins | 470 So. 2d 1183 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1183 (1985)
William F. OLINGER, et al.
v.
William Robert COLLINS, et al.
83-874.
Supreme Court of Alabama.
April 26, 1985.
*1184 William W. Tally, Scottsboro, for appellants.
William D. Scruggs and Michael L. Brownfield, Fort Payne, for appellees.
ALMON, Justice.
This is an appeal from a judgment enjoining the defendants from using certain real property for any use not permitted by the zoning ordinance of the City of Scottsboro. We shall refer to the defendants/appellants, William F. Olinger, Olinger Corporation, and Olinger Auto Sales and Rentals, as "Olinger." The plaintiffs/appellees own property bordering or near to the subject property leased by Olinger.
The trial court's judgment so succinctly states the facts, issues, and resolution of the case that we shall quote from it at length:
The trial court granted the injunction with respect to tract "Y". It was Olinger's use, or increased use, of this tract which prompted the plaintiffs, many of whom live to the south and east of the subject property, to file this action. Olinger appeals from the granting of the injunction in this respect.
Olinger's contentions are, first, that he was using all of the subject property, including tract "Y", in conjunction with his mobile home sales business at the time the 1979 ordinance went into effect; second, that even if he was not actually using tract "Y" for mobile home sales at the time the 1979 ordinance went into effect, the ordinance allows him to use the entire tract for his non-conforming use; and third, that the "dynamic" nature of his use supports a finding that he could use the entire tract.
*1186 Olinger's first contention is answered by the presumption in favor of the trial court's findings where it hears ore tenus evidence without a jury. Board of Zoning Adjustment v. Boykin, 265 Ala. 504, 92 So. 2d 906 (1957). The trial court found that Olinger did not begin using tract "Y" for mobile home sales until after the 1979 ordinance went into effect. This finding is not plainly and palpably wrong. Indeed, the record indicates that Olinger improved tract "Y" and began using it for mobile home sales in or about 1982.
Olinger next contends that section 2.2 of the 1979 ordinance allows the intended use of tract "Y" to bring it within the non-conforming use of the entire parcel. That section reads:
The word "intended" in this general definition section cannot override the general principle regarding non-conforming uses that such a use must be actual, not just intended, at the time the zoning ordinance that prohibits the use goes into effect. Green v. Copeland, 286 Ala. 341, 239 So. 2d 770 (1970). 101A C.J.S. Zoning and Land Planning § 161 (1979). The specific language of the non-conforming use section of the ordinance, quoted by the trial court, is in accordance with this general rule in its prohibition of enlarging, extending, or moving the non-conforming use.
Olinger's final contention, that the dynamic nature of his use requires him to use the entire lot, is aptly addressed in the trial court's judgment. With respect to tract "R", which Olinger was using for mobile home sales at the time the ordinance went into effect, the trial court held that it could not determine "the perimeters of any enlargement." Presumably this is because the actual location of mobile homes fluctuated over time. Tract "Y", however, is physically separated from tract "R" by a three-foot drainage ditch. The trial court found that Olinger has used this physically distinct portion of his leased property for mobile home sales only "since the passage of the current ordinance," which upgraded the zoning classification of the property to prohibit its use for mobile home sales. The record amply supports this finding.
Thus, the trial court properly allowed Olinger to continue using tract "R" to its full extent, because the changes in actual use of that portion of the property could not be determined. The use of the portion of the property south of the ditch (tract "Y") was clearly an enlargement, extension, or moving of the non-conforming use, however, and the trial court correctly enjoined it.
For the reasons stated, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur. | April 26, 1985 |
315822df-94b3-4933-88de-946b7891ed25 | Jones v. Jones | 470 So. 2d 1207 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1207 (1985)
Alfred JONES and Luverne Jones
v.
Arthur C. JONES.
83-1392.
Supreme Court of Alabama.
May 3, 1985.
Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellants.
Hugh M. Caffey, Jr. of Caffey & Byrd, Brewton, for appellee.
ADAMS, Justice.
Alfred and Luverne Jones appeal from a judgment entered by the Baldwin County Circuit Court which held a deed executed by Sanford and Daisy Lee Jones to be void due to the lack of a valid delivery. We affirm.
The facts of this case are as follows:
Sanford and Daisy Lee Jones had two children, Alfred and Arthur Jones. On December 7, 1981, Sanford and Daisy Lee Jones executed a deed to certain land to Alfred Jones and his wife Luverne Jones. (Actually there were two deeds executed on December 7, 1981, but the validity of the other deed is not questioned in this appeal.) Daisy Lee Jones died on March 3, 1983, and Sanford Jones died on June 13, 1983. The deed from Sanford and Daisy Lee Jones to Alfred and Luverne Jones was not recorded until July 29, 1983.
Arthur Jones filed suit questioning the validity of the December 7, 1981, deed, and on August 2, 1984, the circuit court, sitting without a jury, held the deed void due to the lack of a valid delivery. Alfred and Luverne Jones subsequently filed this appeal.
The single issue for our review is whether the trial court's judgment that the deed was void for lack of a valid delivery was supported by the evidence.
In answering this question, we emphasize that the judgment was rendered by the court, sitting without a jury, and was based upon the pleadings and testimony of Alfred and Arthur Jones. It has long been the rule in Alabama that where conflicting evidence has been presented ore tenus, the trial court's findings are presumed to be correct, and this Court will not disturb the court's judgment based upon those findings *1208 unless it is clearly erroneous and against the great weight of the evidence. Cherokee Insurance Co. v. Frazier, 406 So. 2d 881 (Ala.1981). Furthermore, we will affirm the trial court's judgment if, under any reasonable aspect of the evidence, there is credible evidence to support the judgment. Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala.1981). Although there was conflicting testimony concerning the delivery of the deed, we are of the opinion that there was sufficient evidence offered at trial to support the trial court's findings.
Alfred Jones testified at trial that he received two earlier deedsone dated January 8, 1980, and the other dated May 7, 1980. He testified that he recorded the January 8 deed the following day, and the May 7 deed the same day it was executed and delivered to him. In fact, one of the two deeds executed on December 7, 1981, was recorded by Alfred Jones on December 8, 1981; yet the deed in question, executed on the same day, was not recorded until July 29, 1983, approximately six weeks after the death of Sanford Jones.
There was also testimony adduced at trial that on August 16, 1982, Alfred told Arthur that he had found the deed in their father's trunk. The trunk was located in the bedroom of their father's house, and was used by their father to store his valuable papers.
Alfred testified that Sanford Jones never divested himself of control over the title to the property and could have sold it at any time. Sanford Jones also retained all the incidents of ownership of the property, as he was the one who paid the taxes, collected the rent, and paid for repairs to the property from December 7, 1981, until his death one and one-half years later.
Finally, Alfred testified that he went to an attorney's office on December 7, 1981, and left with one deed, which he read to his family and placed in a drawer with some other deeds. Later, he testified that he had two deeds, but only recorded one of them. He stated that the reason he did not record the deed in question was that his father was still collecting rent on the property.
The trial court had the chance to view the witnesses and observe their demeanor, and after considering all the relevant factors before it, found that there was no valid delivery of the deed. We simply cannot say that the court's finding is clearly erroneous or against the great weight of the evidence in this case. Therefore, the judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | May 3, 1985 |
334ca6ae-f36d-4ab7-889c-5f214fa1fd09 | Greenlee v. Tuscaloosa Office Products | 474 So. 2d 669 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 669 (1985)
Tommie H. GREENLEE, Jr.
v.
TUSCALOOSA OFFICE PRODUCTS AND SUPPLY, INC.
84-696.
Supreme Court of Alabama.
July 3, 1985.
*670 William P. Gray, Jr. and Thomas A. Nettles IV of Gray, Espy & Nettles, Tuscaloosa, for appellant.
Darryl C. Hardin of Hardin & Wise, Tuscaloosa, for appellee.
SHORES, Justice.
Tommie Greenlee, Jr., appeals from a judgment of the trial court granting an injunction in favor of Tuscaloosa Office Products and Supply, Inc., in this action to enforce a non-competition covenant. We reverse and remand.
Tuscaloosa Office Products and Supply, Inc. (TOPS), is engaged in the sale of office supplies and equipment in the City of Tuscaloosa, which includes the sale and service of Canon copiers. On November 1, 1983, TOPS hired Greenlee as a technician to service and repair copiers and, shortly thereafter, entered into an employment contract with him which includes the following provisions:
TOPS terminated Greenlee's employment on January 26, 1984, and the following month he was hired as a service technician by Weatherford Office Supply, Inc., a competitor of TOPS, also located in Tuscaloosa. TOPS subsequently brought suit to enforce the covenant. The trial court granted an injunction prohibiting Greenlee, for a period of two years, from
Greenlee's motion for a new trial was denied, and he appeals.
Section 8-1-1, Ala. Code 1975, in pertinent part, reads as follows:
In DeVoe v. Cheatham, 413 So. 2d 1141, 1142-43 (Ala.1982), the Court, construing § 8-1-1, stated:
In the present case, the restriction is not enforceable because the former employer, TOPS, has no protectable interest in restraining Greenlee's employment. The undisputed material facts show that Greenlee was hired by TOPS to service and repair copiers. He had no management or sales duties. He did not solicit new customers for TOPS, nor did he develop a special relationship with any of its existing customers. In the course of his brief three-month employment there, Greenlee had routine access to TOP's service files containing certain information, including the names of those customers who purchased *672 copiers under continuing maintenance agreements and the respective costs of those agreements. He also had access to the price and service life information concerning Canon parts. Subsequent to his termination at TOPS, Greenlee was hired by Weatherford and worked there as a service technician for approximately eight months until enjoined by the trial court. While there, he was in no way concerned with sales nor with the solicitation of new accounts. Greenlee never discussed with the officials at Weatherford, or anyone else, any of the information to which he had access while at TOPS, and there have been no reported instances of solicitation or interference with TOPS's customers.
Under these facts, TOPS does not have a legitimate interest in restraining Greenlee's employment. As the Court noted in DeVoe v. Cheatham, supra, "a simple labor skill, without more, is simply not enough to give an employer a substantial protectable right unique in his business." Greenlee only repairs copiers; he does not sell them. He did not develop a special relationship with any of TOPS's customers, and his brief access to its service files and parts information was merely incidental to the performance of his job. Furthermore, TOPS has shown no injury as a result of his employment with Weatherford. Enforcement of this restriction would, therefore, impose an undue hardship on Greenlee and prevent him from supporting himself and his family, with no concomitant benefit to TOPS. White Dairy Co. v. Davidson, 283 Ala. 63, 214 So. 2d 416 (1968).
The judgment of the trial court is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The majority holds that TOPS did not have a legitimate interest in restraining Greenlee's employment with Weatherford Office Supply, Inc., a competitor of TOPS, thereby reversing the holding by the trial court that the noncompetition agreement could be enforced.
There is evidence in the record, which could have been believed by the trial court, that the sale of copying machines is a very competitive business, and that Greenlee's present employer, Weatherford Office Supply, was constantly trying to gather as much information about its competitors as possible. As the majority correctly points out, Greenlee had "access to TOPS's service files containing certain information, including the names of those customers who purchased copiers under continuing maintenance agreements and the respective costs of those agreements."
In DeVoe v. Cheatham, 413 So. 2d 1141 (Ala.1982), which is relied upon by the majority, this Court, although refusing to uphold the noncompetition agreement in that case, nevertheless opined as follows:
413 So. 2d at 1143.
There is a significantly distinguishable characteristic, in my opinion, between DeVoe, where the employee was an installer of vinyl roofs on automobiles, and this case, where the employee is a trained technician who has the skill to repair copying machines, and who had "access to TOPS's service files containing certain information, including the names of those customers who purchased copiers under continuing maintenance agreements and the respective costs of those agreements."
In the leading case of Hill v. Rice, 259 Ala. 587, 67 So. 2d 789 (1953), this Court quoted from 36 Am.Jur., Monopolies, Combinations and Restraints of Trade, § 79, which provided, in part, as follows:
Although I recognize the harshness of a rule that would prevent a person with a "simple labor skill" from working for a competitor, I believe that the trial judge in this case had sufficient evidence before him to conclude that Greenlee possessed more than a "simple labor skill." In fact, I believe that there was sufficient evidence from which the trial court could have concluded that Greenlee was a technician who possessed a "special skill"; therefore, I believe TOPS had a protectable interest, which the trial court was authorized to properly recognize. Consequently, I must respectfully dissent.
[1] The injunction was ordered effective from January 26, 1984, the date Greenlee's employment was terminated, until midnight of January 25, 1986. | July 3, 1985 |
927e9aaa-2d8d-4dc2-8839-8f2ab6b326a2 | Ex Parte Olson | 472 So. 2d 437 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 437 (1985)
Ex parte Kimbrent Joel OLSON.
(Re ex parte Kimbrent Joel Olson.)
(In re STATE of Alabama v. Kimbrent Joel OLSON).
83-1007.
Supreme Court of Alabama.
April 12, 1985.
Fred B. Simpson of Simpson, Hamilton & Ryan, Huntsville, for petitioner.
Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
We granted the petitioner's writ of certiorari in this case to determine whether a writ of mandamus should issue, requiring the Madison County Circuit Court to conduct an evidentiary hearing to determine whether the negotiation of a waiver of extradition to another state in exchange for the dismissal of charges set forth in a Madison County indictment barred the subsequent *438 prosecution of those charges. We hold that such an evidentiary hearing is warranted here, and we, therefore, reverse the judgment of the Court of Criminal Appeals, 472 So. 2d 437.
Petitioner Olson was indicted by the Madison County Grand Jury on the charge of presenting fraudulent documentation for the registration of a motor vehicle and receiving or concealing stolen property. He was arrested in West Germany and returned to Alabama for prosecution. According to Olson, the Madison County District Attorney's office offered to dismiss the charges filed against him, if Olson would waive extradition to the State of Texas, where he was wanted for auto theft. Petitioner Olson alleges that he waived such extradition in reliance on this offer.
After Olson had been detained six weeks in the Madison County jail, Texas authorities notified the Madison County District Attorney's office that Texas was no longer interested in prosecuting Olson. The Madison County District Attorney then commenced prosecution of Olson on the original Alabama charges, which had purportedly been dismissed because of the extradition deal.
Olson filed a "plea in abatement and motion to dismiss," asking the court to bar his prosecution and to uphold the terms of the extradition waiver agreement, and also to conduct an evidentiary hearing on the matter. The circuit court denied Olson's requests without taking evidence and set the case for trial.
Olson then filed a petition for a writ of mandamus with the Court of Criminal Appeals, asking that the trial court be directed to conduct an evidentiary hearing on the effect of the extradition agreement. The petition was denied, his application for rehearing was overruled, and we granted his petition for a writ of certiorari.
The issue in this case is whether the Court of Criminal Appeals erred in denying the petitioner's request for mandamus. This depends ultimately on whether an accused has a right under due process of law to an on-the-record evidentiary hearing concerning the allegations of a bar to prosecution.
In Ex parte Yarber, 437 So. 2d 1330 (Ala.1983), we held that a negotiated plea agreement cannot be repudiated with impunity, and that the enforcement of such an agreement can be compelled. Although the present case does not involve a plea negotiation, Olson allegedly negotiated an agreement to waive extradition. Certainly, the facts surrounding this alleged agreement were relevant in determining whether a prosecution should be commenced or barred. Due process and equal protection entitle Olson to a fair and impartial consideration of all the facts affecting his case.
This Court has held, further, that the burden is on the appealing party to insure that an adequate record is available for review on appeal. King v. Smith, 288 Ala. 215, 259 So. 2d 244 (1972). Facts not shown on the record cannot be reviewed on appeal. Lewis v. State, 426 So. 2d 932 (Ala. Cr.App.1982).
In this case Olson sought to protect the record on appeal by having an on-the-record evidentiary hearing on whether the extradition negotiations barred his prosecution. This is not an unreasonable request and such a hearing is certainly his constitutional right.
The Attorney General argues at length the facts surrounding the extradition negotiation, to the extent of attaching an affidavit to the state's brief. Petitioner objects to the introduction of such evidence at the appellate level. In view of our resolution of this case, however, we need not consider the affidavit attached to the Attorney General's brief. The state's reliance on such evidence underscores the importance of the factual circumstances surrounding the extradition negotiations.
Olson deserves an evidentiary hearing in regard to his motion to dismiss the prosecution. Such a hearing will preserve evidence for appeal if that proves necessary. The circumstances surrounding the extradition *439 negotiation will be on record in accord with Olson's rights as an accused.
For the above reasons, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded for an order granting a writ of mandamus, requiring the Circuit Court of Madison County to conduct the hearing.
REVERSED AND REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and FAULKNER, JONES, ALMON and EMBRY, JJ., concur.
MADDOX, SHORES and BEATTY, JJ., dissent. | April 12, 1985 |
774dc179-8c69-4e6c-b139-9fb9e3894e23 | Black v. Black | 469 So. 2d 1288 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 1288 (1985)
Lewis BLACK, Napoleon Black, Mattie Black and Black Family Farm, Inc.
v.
Alexander BLACK, et al.
84-72.
Supreme Court of Alabama.
April 19, 1985.
*1289 Carlos A. Williams of Chestnut, Sanders, Sanders & Turner, Selma, for appellants.
J. Milton Coxwell, Jr. of Coxwell and Coxwell, Monroeville, for appellees.
SHORES, Justice.
The plaintiffs appeal from a jury verdict in favor of the defendants in this action to recover damages for trespass in the cutting of timber on a twenty-acre tract of land in Monroe County. We affirm.
The heirs of Napoleon Black filed a complaint in the Circuit Court of Monroe County, naming the heirs of Albert Black and Pedro Bell as defendants, alleging that the defendants negligently, or willfully, knowingly, and without consent, cut timber from their land in Monroe County. The defendants answered, alleging that they, with the exception of Pedro Bell, owned the land at the time of the alleged trespass, having acquired title by adverse possession. The case was tried to a jury, which returned a verdict in favor of the defendants. The plaintiffs appeal.
The plaintiffs urge this Court to reverse on the ground that the evidence produced at trial by the defendants in support of their claim of ownership was insufficient to support the jury's verdict.
The defendants insist that a post-trial motion for a judgment notwithstanding the verdict (JNOV) is necessary to preserve the right, on appeal, to attack the sufficiency of the evidence in a jury trial. They argue that the plaintiffs did not move for a JNOV following the trial, thus precluding this Court's review of that issue. We agree and, therefore, pretermit any further discussion of the facts in this case.
In Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877, 880-82 (Ala.1979), the Court stated:
"The reason for requiring a party to move for J.N.O.V. is inherent in the very nature of Rule 50. Rule 50 sets up an interlocking set of procedures that allow a party to attack the sufficiency of his opponent's evidence. Those procedures are closely related and must be followed. Their interlocking relationship is demonstrated by the fact that a post-trial motion for J.N.O.V. is really just a renewal of a party's motion for directed verdict, and the J.N.O.V. motion cannot be granted unless the motion for directed verdict should have been granted.... Also inherent in Rule 50 is the intent to place the primary responsibility on the trial judge to determine the sufficiency of the evidence. To facilitate this responsibility Rule 50(b) allows the trial court to reserve a ruling on the sufficiency of the evidence until after the jury verdict. The United States Supreme Court in Cone v. West Virginia Pulp & Paper Co. [330 U.S. 212, 67 S. Ct. 752, 91 L. Ed. 849 (1947)] stated:
"The time period provided in Rule 50(b) is also an integral part of the Rule. The United States Supreme Court in Johnson v. New York, N.H. & H.R. Co. [344 U.S. 48, 73 S. Ct. 125, 97 L. Ed. 77 (1952)], stated:
The plaintiffs in this case did not move for a directed verdict at the close of all the evidence and, consequently, they were precluded from later making a motion for a JNOV following the trial. Therefore, the plaintiffs waived their right to attack the sufficiency of the defendants' evidence on appeal.
Other errors argued by the plaintiffs are without merit. Accordingly, the judgment of the trial court entered pursuant to the jury's verdict is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | April 19, 1985 |
a8cb294b-eaca-44d8-ac0e-295f39312097 | White v. Sims | 470 So. 2d 1191 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1191 (1985)
James C. WHITE, as Commissioner of Revenue for the State of Alabama, et al.
v.
W.C. SIMS, individually and as class representative.
84-83.
Supreme Court of Alabama.
April 26, 1985.
Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Ron Bowden, Asst. Counsel, Dept. of Revenue, and Asst. Attys. Gen., Montgomery for appellant White.
Fletcher Jones, Andalusia, for County appellants.
J. Doyle Fuller, Montgomery, and John P. Oliver II, Dadeville, for appellee.
FAULKNER, Justice.
This is an appeal from a summary judgment granted in favor of W.C. Sims, individually and as representative of a plaintiffs' class, and against defendants, James White, as Commissioner of Revenue for the State of Alabama; Annie Laurie Gunter, as Treasurer for the State of Alabama; Foster Weed as Tax Assessor of Covington County, Alabama; Margaret P. Bass, as Tax Collector of Covington County, Alabama; and William P. Smith, as Chairman *1192 of the County Commission of Covington County, Alabama.
The pertinent facts are as follows:
During the second special session, Alabama Legislature of 1978, Act No. 135 was passed, which provided for the appraisal of Class III property at current use value upon application by the property owner.[1]
On November 25, 1981, an action styled Mangum, et al. v. Eagerton, et al., was filed in the Circuit Court of Montgomery County, Alabama, Civil Action No. CV 81-1592-G. This lawsuit sought to establish a statewide class of plaintiffs against a statewide class of defendants, challenging the method used to determine current use valuation of land for ad valorem tax purposes as being contrary to Act No. 135, and further seeking a refund of excess taxes collected in the years 1979, 1980, and 1981.
At the time of the filing of the Mangum case, no notice was sent to the plaintiffs' class of the pendency of the action, nor was any notification ever given. Subsequent to the filing of Mangum, and without any opposition of the parties, the case was placed on the administrative docket pending a decision by this Court in the case of Eagerton v. Williams, 433 So. 2d 436 (Ala. 1983).
After the Eagerton decision was rendered, the trial court on June 15, 1983, placed the Mangum case back on the active docket and an order was entered certifying Mangum as a statewide plaintiffs' class.
During the pendency of the Mangum case, the instant action, Sims v. White, was filed in the Circuit Court of Covington County, Alabama, on April 18, 1983. The complaint in Sims sought identical relief as that sought in Mangum, except that Sims sought to assert a class action on behalf of owners of eligible Class III property situated within Covington County and sought relief limited to Covington County, Alabama. This action was one of forty suits filed around the state seeking refund of taxes on the same grounds applicable to each county, on an individual basis. On June 28, 1983, the Covington County Circuit Court granted certification of a class consisting of "all land owners in Covington County, Alabama owning an interest in eligible Class III property situated within the said county who applied for current use treatment for ad valorem tax purposes and who paid ad valorem taxes on their said property on or after November 23, 1979."
The Mangum class was eventually decertified on May 2, 1984, after the trial court determined that it would be more appropriate to bring individual county actions rather than to maintain a statewide class action.
On June 7, 1984, the Covington County taxpayer class in Sims filed a motion for summary judgment, which was granted on September 19, 1984. The trial court found that the tax assessor in Covington County did not utilize values consistent with those set forth by this court in Eagerton v. Williams, supra.
On appeal, defendants do not contest the validity of the method of valuation imposed on the property. Defendants' sole contention is that the trial court erred in ruling that the statute of limitations period[2] was tolled by the filing of Mangum and continued tolled until the time of the filing of the instant complaint. We disagree, and hereby affirm.
The issue of whether the statute of limitations bars filing a separate class action after denial of class certification in the original action was addressed by this court in First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So. 2d 727 (Ala.1981). Relying upon the tolling principles espoused by the United States Supreme Court in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 *1193 S. Ct. 756, 38 L. Ed. 2d 713 (1974), this Court in a plurality decision held that the statute of limitations period is tolled from the date of the commencement of the action until the date of denial of class certification, when the interests of putative class members are not adequately protected by the representative of the class or by the court. Id., 409 So. 2d at 728.
This Court reasoned that unless the filing of a class action tolled the statute, the purpose of the class action procedure, Rule 23, Alabama Rules of Civil Procedure, would be frustrated:
First Baptist, supra, 409 So. 2d at 729.
Defendants argue, however, that the rule in American Pipe and First Baptist was limited to intervenors, and does not toll the statute of limitations for class members who, as here, file separate and independent actions. See First Baptist, supra, 409 So. 2d at 731 (Torbert, C.J., dissenting). This issue was addressed by the United States Supreme Court in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983), in which the Court affirmed the proposition that the statute of limitations is tolled as to all asserted members of a putative class, without regard to whether they intervened or filed independent actions.
We agree with the Supreme Court's analysis in Crown and find that is wholly consistent with our decision in First Baptist. We also find that the purpose of tolling the statute of limitations is not defeated, where, as in the instant case, an independent action is filed during the pendency of the original class action. Additionally, the fact that many of the putative class members had no notice of the pending class action is not a mitigating factor in our decision. Knowledge and reliance by unnamed class members has never been relevant in determining whether the statute of limitations is tolled during the pendency of a class action. The same standard applies to those members of the class who did not rely on the class action and even to those who were unaware that such a suit existed. "Rule 23 is not designed to afford class representation to only those who are active participants in or even aware of the proceedings in the suit prior to the order that the suit shall or shall not proceed as a class action." American Pipe, supra, 414 U.S. at 551-52, 94 S. Ct. at 765.
Accordingly, we hold that the commencement of a class action tolls the statute of limitations until such time as an independent action is filed, or until the denial of class certification, whichever may first occur.
Finally, the county defendants argue that the statute should not be tolled as to them because they were not named members of the defendant class in Mangum. Relying on Chevalier v. Baird Savings Ass'n, 72 F.R.D. 140 (E.D.Pa.1976), the county defendants argue that the limitations period is not tolled against unnamed defendants until they are specifically named in the complaint, because otherwise they would be required to defend against actions of which they had no knowledge until after the statute had run.
We do not agree with the holding in Chevalier. We find that the better rule is the one expressed by the Seventh Circuit Court of Appeals in Appleton Electric Co. v. Graves Truck Line, Inc., 635 F.2d 603 (7th Cir.1980), cert. denied, 451 U.S. 976, 101 S. Ct. 2058, 68 L. Ed. 2d 357 (1981). In that case the court held that when a class action is instituted against a class of unnamed defendants, the statute is tolled as to all putative members of the defendant class. Finding that due process was not offended by tolling the running of the limitations period even where a defendant had no notice until after the limitations period had run, the court stated, "A contrary rule *1194 would sound the death knell for suits brought against a defendant class, nullifying that part of Rule 23 that specifically authorizes such suits." Appleton, supra, 635 F.2d at 609-610.
Accordingly, based upon the foregoing authority, we affirm the trial court's granting of summary judgment.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.
[1] For a more detailed discussion of Act 135, see Eagerton v. Williams, 433 So. 2d 436 (Ala.1983).
[2] The period for which refunds of ad valorem taxes may be recovered is the two-year period next preceding the filing of the action, Thorn v. Jefferson County, 375 So. 2d 780 (Ala.1979), and the suit must be brought within two years of the payment of said tax. Code of Alabama 1975, § 40-10-160 et seq. | April 26, 1985 |
d8b4b5ae-6d13-4412-90c5-1b570c7d4ab9 | Warrior Hinkle v. Andalusia City School Bd. | 469 So. 2d 1285 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 1285 (1985)
WARRIOR HINKLE, INC.
v.
ANDALUSIA CITY SCHOOL BOARD, Ashton Wells, Jr., Janette Carroll, Danny Posey, Richard Merrill, Jim Sullivan, and Oscar M. Zeahan.
83-1387.
Supreme Court of Alabama.
April 19, 1985.
*1286 Charles N. Parnell III and W. McCollum Halcomb of Wood, Minor & Parnell, Montgomery, for appellant.
Griffin Sikes of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellees.
MADDOX, Justice.
The sole question presented is whether the trial court erroneously granted a motion to dismiss a claim against the Andalusia City School Board, its members, and the superintendent, appellees, based upon their failure to require a contractor to furnish a payment bond to protect materialmen, as required by Code 1975, § 39-1-1.[1]
In 1983, Warrior Hinkle, Inc. (Warrior Hinkle), appellant, furnished approximately $51,000 worth of material to a roofing contractor. Approximately $21,000 worth of this material was used to repair and improve Andalusia High School. This work was commenced without a payment bond as required by Code 1975, § 39-1-1. Warrior Hinkle, having not been paid for the materials, brought suit in Montgomery Circuit Court against several defendants, including the school board. Warrior Hinkle's initial theory of recovery against the school board was breach of the statutorily imposed duty to require a payment bond. The school board filed a motion to dismiss, contending that venue was improper and that it was immune from tort liability because of the doctrine of governmental immunity. Before the trial court ruled on the motion to dismiss, Warrior Hinkle amended its complaint, adding as defendants the superintendent and the individual school board members. In addition, it included counts seeking recovery against the board under theories of implied and constructive contract and quantum meruit. Warrior Hinkle's theory of recovery against the superintendent and board members was for breach of a statutorily imposed duty, implied contract, and breach of duty while performing ministerial tasks or duties.
The court, after a hearing on the motion, severed Warrior Hinkle's claims against the school board, the board members, and the superintendent, and transferred that portion of the case to Covington Circuit Court. Thereafter, the Covington Circuit Court dismissed the case on the ground that the defendants were entitled to governmental immunity pursuant to Ala. Constitution of 1901, Article 1, § 14. Warrior Hinkle filed a motion to alter, amend, or vacate the judgment. This motion was denied, and it appeals here.
Warrior Hinkle contends that its cause of action should not have been dismissed because the complaint, as amended, sets out several theories of recovery which are not *1287 controlled by the governmental immunity provisions. We disagree.
In the eleven counts of Warrior Hinkle's complaint, it attempts to allege various causes of action, but each count recites that its cause of action arises out of a failure of the board, the superintendent, and the board members to require the payment bond. It claims that this duty to require a payment bond is placed upon the board, the superintendent and the board members by the Court of Civil Appeals' interpretation of the statute in the case of Housing Authority of Prattville v. Headley, 360 So. 2d 1025 (Ala.Civ.App.1978). The facts in that case are almost identical to those alleged by the plaintiff in this case.
In Headley, a roofing material supplier brought an action against the city housing authority to recover for the authority's negligence in failing to require the roofing contractor to post a bond pursuant to § 39-1-1. The Court of Civil Appeals held as follows:
360 So. 2d at 1027.
It is apparent, however, in reading the court's opinion in the Headley case, that the only reason Headley was able to maintain his suit was the fact that the enabling legislation by which the housing authority was created provided that housing authorities could sue and be sued, and a tort action against such bodies was permissible. In the instant case, the defendants are immune from tort action in their official capacities by reason of sovereign immunity. Enterprise City Board of Education v. Miller, 348 So. 2d 782 (Ala.1977);[2]Hickman v. Dothan City Board of Education, 421 So. 2d 1257 (Ala.1982). Thus, the allegations of breach of duty against the school board, its members, and the superintendent, acting in their official capacities, were properly dismissed. Their immunity also extends to implied contract claims brought against them. Deal v. Tannehill Furnace & Foundry Comm'n, 443 So. 2d 1213 (Ala.1983).
We must now determine whether the trial court erred in dismissing the appellant's claims against the school board and the superintendent "acting in their fiduciary [i.e., individual] capacities for the improvement or repair of public property known as Andalusia High School." Appellant cites Hickman v. Dothan City Bd. of Ed., for the proposition that "alleged negligent conduct of a state employee, even when committed in the line and scope of employment is not within the ambit of § 14's protection." 421 So. 2d 1257, 1259 (Ala.1982).
This issue was addressed in Carter v. Board of Trustees of the University of Ala. in Birmingham, 431 So. 2d 529 (Ala. 1983). The Carter Court wrote as follows:
We find that the allegations against the school board and the superintendent in their individual capacities are but an attempt to circumvent § 14, in that the state is the real, substantial party in interest. Here, the contract for roofing repairs was entered into for the benefit of the state. The individual members of the school board and the superintendent were merely the conduit through which the state entered the contract. Thus, we find that appellant's allegations against the individual members of the school board and the superintendent were properly dismissed.
Plaintiff's other claims against the Board are likewise barred under the principle of governmental immunity. Enterprise City Board of Education v. Miller, supra.
Furthermore, as stated in plaintiff's brief, its claims against the board members and the superintendent are to the effect that they acted "tortiously, illegally, and in violation of their authority by not requiring a payment bond." (Emphasis added.) We hold that these claims are not outside the scope of our constitution's governmental immunity provisions.
Because we find that the lower court properly dismissed the claims against the Andalusia School Board, its members, and the superintendent, in both their official and individual capacities, we hold that the judgment of the trial court is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
[1] Code 1975, § 39-1-1 reads, in pertinent part, as follows:
"(a) Any person, firm or corporation entering into a contract with the state or county or municipal corporation or subdivision thereof in this state for the repair, construction or prosecution of any public buildings or public work, highways or bridges shall be required, before commencing such work, to execute a performance bond, with penalty equal to 100 percent of the amount of the contract price, and, in addition thereto, another bond with good and sufficient surety, payable to the state, county or municipal corporation or subdivision letting the contract, in an amount not less than 50 percent of the contract price, with the obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor, materials or supplies for or in the prosecution of the work provided for in such contract and for the payment of reasonable attorneys' fees incurred by successful claimants or plaintiffs in civil actions on said bond."
[2] In Enterprise City Board of Education v. Miller, this Court held:
"It is quite clear that Jackson [v. City of Florence, 294 Ala. 592, 320 So. 2d 68 (1975)] and Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So. 2d 631 (1975), are based upon legislative interpretation. The court recognized in both of these cases, and in subsequent ones, that the legislature is the appropriate body to make policy in the field of governmental immunity; and, unless contrary to the constitution, it is our function to uphold the legislative will in areas appropriate for its action. The holding in Sims [v. Etowah County Bd. of Education, 337 So. 2d 1310 (Ala.1976)], that a county board of education was immune to suits in tort because of the absence of statutory authorization for such suits, was based upon recognition of the legislature's prerogative in this field.
"City boards of education are authorized by the legislature. Title 53, § 148, et seq. [Code of 1940.]
"...
"There is no mention in the statutes under which city school boards are created of the ability to be sued...."
348 So. 2d 783. | April 19, 1985 |
9fdff7bc-880b-4e44-be0f-d6b059a365fd | Barnes v. Liberty Mut. Ins. Co. | 468 So. 2d 124 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 124 (1985)
Lucille BARNES and Annie Mae Welch
v.
LIBERTY MUTUAL INSURANCE COMPANY.
83-384.
Supreme Court of Alabama.
March 29, 1985.
*125 Rick Harris and Stephen R. Glassroth of Moore, Kendrick, Glassroth, Harris, Bush & White, Montgomery, for appellants.
Charles E. Sharp and John F. Whitaker of Sadler, Sullivan, Sharp & Stutts, Birmingham and William I. Hill II of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
FAULKNER, Justice.
This is an appeal from a summary judgment granted in favor of defendant Liberty Mutual Insurance Company.
Appellants, Lucille Barnes and Annie Mae Welch, were textile workers employed by West Point-Pepperell, Inc., at its Opelika Plant from 1935 to 1974 and 1935 to 1971, respectively. Liberty Mutual Insurance Company was the workmen's compensation carrier for Pepperell Manufacturing Company (West Point-Pepperell's predecessor) from January 1, 1960, until January 1, 1967. Both plaintiffs claim that in 1980 they discovered that they had contracted byssinosis, a disabling lung disease associated with employment in the textile industry and allegedly caused by exposure to hazardous levels or concentrations of cotton dust.
Originally, Barnes and Welch were members of a class of plaintiffs in Wilkins v. Lanier, Case No. 79-294, Circuit Court of Lee County, Alabama. In October 1981, the trial court denied class certification. In January 1982, Barnes and Welch brought individual actions, which were later consolidated, against Liberty Mutual and 23 individual defendants, alleging, inter alia, fraudulent concealment, misrepresentation, suppression, deceit, and negligent failure to warn. Specifically, Barnes and Welch alleged that during the six years of coverage, Liberty Mutual actively suppressed data and information regarding the health hazards involved in textile work, interfered with independent scientific investigation into such potential health problems, and conspired with others to fraudulently conceal the dangers of cotton dust exposure.
In July 1983, a settlement was reached with all defendants except Liberty Mutual. Thereafter, Liberty Mutual moved for and was granted summary judgment.
In its order, the court concluded:
Barnes and Welch appeal, claiming that summary judgment was improperly granted because there was a genuine issue of material fact regarding fraudulent concealment.
*126 In Wilkins v. West Point-Pepperell, Inc., 397 So. 2d 115, 119 (Ala.1981), this Court held that while an employee may bring a claim against a co-employee in an occupational disease case, the plaintiff has an "awesome burden of proof." Based upon traditional tort standards, the plaintiff must prove that the co-employee defendant had a legal duty, coupled with some degree of personal expertise, and adequate facilities available to render plaintiff's work environment reasonably safe to avoid the contraction or aggravation of his resultant injuries. Wilkins, at 119. A similar burden applies in an occupational disease case against a workmen's compensation insurance carrier.
In Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334 (Ala. 1980), we noted that a workmen's compensation carrier had no common law duty to provide a safe place and working conditions for the employees of its insured, unless and until it voluntarily undertook to inspect the premises pursuant to a mutual agreement between the insurer and the insured employer. Justice Jones, in his concurring opinion in Fireman's Fund, set forth an expanded discussion on the issue of a carrier's legal duty, as follows:
Fireman's Fund, supra, 394 So. 2d at 349.
It is the employer who owes the duty to provide its employees a safe place to work. In this case there was no evidence to indicate that Liberty Mutual ever voluntarily assumed that duty. The evidence indicates that Liberty Mutual never undertook to make inspections at the West Point-Pepperell plant, and was not under a contractual obligation to do so.
The mere fact that Liberty Mutual may have had some knowledge of the potential health hazards associated with cotton dust exposure does not, without more, impose a legal duty upon it as the insurance carrier to disclose such knowledge to its insured's employees. Absent any legal duty, mere silence does not support a claim for fraudulent concealment. Likewise, the fact that Liberty Mutual was a member of a trade organization that allegedly encouraged its members to block scientific investigation into byssinosis does not give rise to any inference of a conspiracy or liability for failure to warn of potential health hazards.
Additionally, we agree that plaintiffs' actions are barred by the statute of limitations. In Cazalas v. Johns-Manville Sales Corp., 435 So. 2d 55 (Ala.1983), this Court held that "a mere failure or refusal to warn, without more, while actionable, does not rise to the level of fraudulent concealment, and, hence, does not toll the running of the statute." Id. at 58.
Accordingly, we affirm the summary judgment.
AFFIRMED.
ALMON, SHORES, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
960732df-1283-4523-af54-1b48aa555daa | Ex Parte Watts | 471 So. 2d 505 | N/A | Alabama | Alabama Supreme Court | 471 So. 2d 505 (1985)
Ex Parte Sharon Dianne Bundrum WATTS
(In re: Sharon Dianne Bundrum Watts. v. State of Alabama).
84-270.
Supreme Court of Alabama.
April 5, 1985.
*506 Ralph L. Brooks, Anniston, for petitioner.
Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for respondent.
TORBERT, Chief Justice.
The only issue raised on our review by certiorari is whether the Court of Criminal Appeals was correct in holding that the defendant, Sharon Watts, could be impeached by a prior inconsistent statement even though she had not been confronted with the statement prior to being impeached.
During the cross examination of Watts, the State began to question her about a statement she had allegedly made on the night of the shooting. Before the substance of the statement was brought out, Watts objected on the grounds that the statement was involuntary, and the state abandoned that line of questioning. In rebuttal the State put Sergeant Denise Rucker on the stand and attempted, through Sergeant Rucker, to introduce the statement made by Watts, for the purpose of impeaching Watts. Watts's trial testimony was to the effect that the victim and her husband had provoked her. The State wanted to show that in her statement on the night of the shooting she did not mention that she had been provoked.
The Court of Criminal Appeals noted that as a general rule "a witness must be first confronted with an inconsistent statement and deny making it before that witness can be impeached by another witness as to the substance of that statement." Watts v. State, 471 So. 2d 504 (Ala.Crim.App.1984); Walker v. State, 369 So. 2d 814 (Ala.Crim.App.1978); C. Gamble, McElroy's Alabama Evidence, § 157.01(1) (3d ed. 1977). The Court of Criminal Appeals also correctly notes that a statement, not admissible in the prosecution's case-in-chief to prove the crime charged because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), can nevertheless be used to impeach the accused's trial testimony. Watts, supra; Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975); Ex parte Walker, 369 So. 2d 825 (Ala.1979). It can be so used only if the state affirmatively shows the statement to have been voluntary.[1]Ex parte Walker, supra. However, these cases do not expressly address, much less change, the longstanding rule requiring prior confrontation.
The reason for the prior confrontation rule is stated as follows:
C. Gamble, McElroy's Alabama Evidence, § 157.01(2) (3d ed. 1977). We see no reason to depart from the rule in this case. Impeachment is used to attack the credibility of the witness. Fairness requires that the witness whose credibility is being attacked be given an opportunity to explain the seeming inconsistencies. The judgment of the Court of Criminal Appeals is reversed and the case remanded to that court for a decision not inconsistent with this opinion.
REVERSED AND REMANDED.
MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
[1] Prior to allowing Sergeant Rucker's testimony, the trial court required a voir dire examination, with the jury absent, to establish the voluntariness of the statement. | April 5, 1985 |
25d5041c-f7bc-453d-ae4d-8e757a30bb4b | Stallworth v. Andalusia Hosp., Inc. | 470 So. 2d 1158 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1158 (1985)
Felicia STALLWORTH, Lorraine Fowler, Dorothy Resser, Tomas Castilla and Myrtle Ruth Williams
v.
ANDALUSIA HOSPITAL, INC., a dissolved corporation, and Andalusia Health Services, Inc., a corporation.
83-215.
Supreme Court of Alabama.
March 29, 1985.
Rehearing Denied April 26, 1985.
*1159 Curtis C. Reding, Montgomery, for appellants.
Harold Albritton of Albrittons & Givhan, Andalusia, for appellees.
EMBRY, Justice.
This is an appeal by Felicia Stallworth, Lorraine Fowler, Dorothy Resser, Tomas Costilla, and Myrtle Ruth Williams from a judgment dismissing their action against Andalusia Hospital, Inc., a dissolved corporation, and Andalusia Health Services, Inc., a corporation. We affirm.
Appellants are citizens and taxpayers of the State of Alabama and Covington County, Alabama.
Andalusia Hospital, Inc., was formed on 28 September 1962. This corporation was dissolved on 30 June 1981.
Andalusia Health Services, Inc., was formed on 2 July 1980.
Two of the purposes of Andalusia Hospital, Inc., as set forth in the certificate of incorporation, were as follows:
The hospital facility constructed by Andalusia Hospital, Inc., was financed by private donations from citizens of Covington County, Alabama, and by public funds.
Andalusia Hospital, Inc., operated for several years at substantial losses. During this period of time, appellants were employed by this corporation. These and other employees were informed of the financial problems of the corporation and were urged by the directors of Andalusia Hospital, Inc., and the administrator, to continue to work without merit raises but with a promise of better compensation when the corporation could afford it. These promises included lump-sum payments for merit raises that they would have otherwise received. The plaintiffs continued to work for Andalusia Hospital, Inc.
The assets of Andalusia Hospital, Inc., were sold to Hospital Corporation of America, Inc., during 1980. A substantial sum of money was received by Andalusia Hospital, Inc. Some employees of Andalusia Hospital, Inc., were paid sums of money, but no payment was made to any plaintiff or to over forty other employees.
Community Hospital of Andalusia, Inc., a wholly owned subsidiary of Hospital Corporation of America, Inc., is a hospital for profit. It presently operates the hospital previously owned by Andalusia Hospital, Inc. Its certificate of incorporation does not provide for health care to the indigent.
Andalusia Hospital, Inc., transferred the funds received from the sale of its assets to a corporation named Andalusia Health Services, Inc. Andalusia Health Services, Inc., has not used these funds to provide medical care for indigent persons.
Also relevant to this appeal are the facts established by the exhibits attached to appellants' complaint. On the basis of the facts established by these exhibits the trial court ruled that the complaint failed to state a claim for which relief could be granted.
Exhibit II to the complaint, incorporated by reference, is the certificate of incorporation of Andalusia Health Services, Inc. It was incorporated as a not-for-profit corporation under the "Alabama Non-Profit Corporation Act." The certificate shows that it was incorporated for the purpose of receiving and administering funds derived from the sale by Andalusia Hospital, Inc., of its hospital facilities, exclusively "for charitable health care services within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1954, amendments thereto and regulations thereunder." To that end, several specific powers were set out, *1160 including "to make hospital care available to indigent patients, or victims of medical disasters." Strict limitations were included in the certificate of incorporation to ensure that the funds received by the corporation could be used only as permitted under the Alabama Non-Profit Corporation Act, and under the provisions of the Internal Revenue Code governing the operation of charitable organizations. This was in accordance with Article IX of the certificate of incorporation of that corporation, which was styled "Distribution of Assets On Dissolution of Andalusia Hospital, Inc.," and which was referred to in Paragraph 5 of the articles of dissolution.
We note that providing hospital services to indigents was only one of the several purposes listed in the certificate of incorporation of Andalusia Hospital, Inc. and was only one of numerous ways in which Andalusia Health Services, Inc. was authorized to accomplish its purpose of administering its funds for charitable health care services.
Appellants' theories of recovery were that they were entitled to the appointment of a receiver to preserve the assets of Andalusia Health Services, Inc.; money judgments for each of appellants to be paid from the proceeds of the sale of Andalusia Hospital, Inc. in assumpsit for money had and received; and a judgment requiring Andalusia Health Services, Inc., to expend funds for hospital care of indigents.
The dispositive issue in this case is whether the allegations of the complaint, including the exhibits incorporated therein by reference, state a claim if any provable set of facts would support that claim under any cognizable theory of law. Rule 12(b)(6), ARCP.
Under the allegations of the complaint, including the referenced exhibits, the response to the issue is in the negative.
Appellants' case rests upon the claim that when Andalusia Hospital was being operated, before its dissolution and the sale of its assets to Hospital Corporation of America, promises were made as set out above concerning pay raises when such raises became affordable. Clearly no assumpsit claim for money had and received by Andalusia Health Services from the sale of the assets of Andalusia Hospital can be supported by an agreement to later agree. Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1982).
Bearing in mind this action is for money judgments in favor of appellants, there can be no basis for appointment of a receiver on the theory that assets of dissolved Andalusia Hospital, Inc., should be held to assure payment to appellants of judgments. There can be no judgments because appellants fail to state a claim upon which relief can be granted.
It follows from the stated premises that appellants have no standing to complain about whether Andalusia Health Services, Inc., is using funds, derived from the sale of assets of Andalusia Hospital, Inc. (dissolved), to provide medical care.
Moreover, as exhibits to the complaint and reference to the law will demonstrate, Andalusia Health Services, Inc., is not required to expend funds to provide medical care for the indigent. Article IX of Andalusia Hospital's corporate charter, "Distribution of Assets on Dissolution,"provides in part: "No action shall be taken hereunder which would in any manner disqualify this corporation as an exempt charitable corporation under the Internal Revenue laws of the United States of America." It is also provided in that Article that the assets of the corporation in the process of dissolution shall be applied and distributed as provided in Section 243, Title 10, Code of Alabama 1940, or amendments thereto. Section 243(c) states:
Reference to the articles of incorporation of Andalusia Health Services, Inc., demonstrates that it was organized solely for the purpose of receiving and administering funds derived from the sale by Andalusia Hospital, Inc., of its facilities, exclusively "for charitable health care services within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1954, amendments thereto and regulations thereunder." (Emphasis added.)
As stated by appellees, Andalusia Health Services, Inc., is thereby subject to all reporting and disclosure requirements of the Internal Revenue Code, and supervision by the Internal Revenue Service, to assure that its funds are used for scientific, educational, or charitable purposes.
For the reasons stated, the judgment below is hereby affirmed.
AFFIRMED.
FAULKNER, ALMON and ADAMS, JJ., concur.
TORBERT, C.J., concurs in the result. | March 29, 1985 |
4e8e1014-64ea-4c89-a3b5-fc0912bdb338 | Ex Parte Tucker | 474 So. 2d 134 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 134 (1985)
Ex parte Jessie Lee TUCKER.
(In re: Jessie Tucker v. State of Alabama).
83-1052.
Supreme Court of Alabama.
May 10, 1985.
W. Kenneth Gibson, Fairhope, for petitioner.
Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for respondent.
ALMON, Justice.
Jessie Lee Tucker was convicted by a Baldwin County jury of violation of the Alabama Uniform Controlled Substances Act, Code 1975, § 20-2-1, et seq., for the *135 sale of marijuana. The conviction was affirmed by the Court of Criminal Appeals, 474 So. 2d 131. This Court granted Tucker's petition for writ of certiorari. Tucker raises three evidentiary issues for our review.
Tucker allegedly sold some marijuana on July 6, 1982, to Lance Monley, a Baldwin County Deputy Sheriff working undercover at that time. Tucker contends that he did not sell any marijuana to Monley and that the first time he saw Monley was on September 30, 1982, the day of his arrest. A search of Tucker's residence at the time of his arrest produced a small amount of marijuana. No charges were ever brought based upon that search.
The search was first mentioned by Tucker on direct examination in the following manner:
Tucker asserts that the trial court erred in permitting the prosecution to cross-examine him as follows:
On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This rule is generally applicable whether the other crime was committed before or after the one for which the defendant is presently being tried. Sparks v. State, 376 So. 2d 834 (Ala. Crim.App.1979); Hinton v. State, 280 Ala. 48, 189 So. 2d 849 (1966).
This exclusionary rule notwithstanding, when one party brings out part of a transaction or conversation, the other party may inquire further into the matter or bring out the whole subject for further examination. Logan v. State, 291 Ala. 497, 282 So. 2d 898 (1973); Hocutt v. State, 344 So. 2d 194 (Ala.Crim.App.1977). This proposition of law, also known as the "rule of completeness," 7 Wigmore, Evidence §§ 2094-2125 (3d ed. 1940), serves the purpose of allowing a party to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary. See generally 22A C.J.S. Criminal Law § 660 (1961) and the cases cited therein.
The question asked Tucker on direct examination did not concern the search of his house or what was found. The answer was obviously unresponsive. Once the search was mentioned, Tucker's attorney interrupted him and asked the question again. Due to the unresponsiveness of the answer, the immediate interruption of the testimony by the attorney, and the fact *136 that no adverse inferences arose from the mentioning of the search as to the prosecutor's position, Tucker did not open the door so that the prosecutor could question Tucker about what was found during the search. See generally State v. Davis, 351 So. 2d 771 (La.1977).
Because Tucker's unresponsive answer did not present grounds for overcoming the rule against admitting evidence of another crime, the trial court abused its discretion in overruling Tucker's objection to the prosecutor's question as to what was found during the September 30 search of Tucker's residence.
We shall mention one of the remaining issues because of the likelihood of recurrence.
The trial court sustained the prosecutor's objections to questions posed the State's toxicologist on cross examination as to whether or not she had ever taken a leave of absence for a nervous breakdown. The credibility of a witness may be attacked by showing mental incapacity, but only if the incapacity exists at the time the witness testifies, or existed at the time of his observation of the incident about which he testifies. Stewart v. State, 398 So. 2d 369 (Ala.Crim.App.1981), cert. denied, 398 So. 2d 376 (Ala.1981). We are unable to review this issue because of the lack of an offer of proof as to when the alleged nervous breakdown occurred.
The judgment is hereby reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
JONES, J., concurs specially.
JONES, Justice (concurring specially):
I agree with the opinion. I write specially to make this point. I do not believe that the admissibility vel non of what was found in the search of Petitioner's house falls within the trial court's discretionary prerogative. Therefore, it is incorrect to refer to the abuse of its discretion as the basis for reversal. The admission of this evidence is proscribed by a definitive rule of evidence. | May 10, 1985 |
9675d5d4-afb4-4d3b-9b75-ec6eb6eade8f | Edmondson v. Dressman | 469 So. 2d 571 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 571 (1985)
Joyce A. EDMONDSON, Administratrix of the Estate of Clifford A. Edmondson, Deceased
v.
Frank L. DRESSMAN, et al.
83-1307.
Supreme Court of Alabama.
April 5, 1985.
*572 Leon Garmon, Gadsden, for appellant.
Robert G. Tate and J. Hunter Phillips of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham and James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees Republic Steel Corp. and Frank L. Dressman.
Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellee Richard Carr.
FAULKNER, Justice.
This is an appeal from an order granting a motion to dismiss. This case was previously before this court on a petition for writ of mandamus. See Ex parte Edmondson, 451 So. 2d 290 (Ala.1984).
On July 17, 1980, Clifford Edmondson died as the result of an industrial accident. He was employed as a brakeman on Republic Steel Corporation's interplant railroad when the accident resulting in his death took place. Edmondson was survived by his widow, the plaintiff in the case at bar, and by two minor sons. Following the accident, Mrs. Edmondson entered into an agreement with Republic Steel purporting to settle for $150,000.00 her claims against Republic Steel arising out of her husband's death. In exchange for Republic Steel's agreement to pay her $150,000.00, Mrs. Edmondson executed a release of Republic Steel and its agents for any and all actions arising out of the death of her husband. In connection with the settlement, an action was filed in the Circuit Court of Etowah County seeking damages for Edmondson's death under the Federal Employers' Liability Act. Although the complaint filed in that case indicates that Mrs. Edmondson was acting as her own attorney, she claims that the complaint was drafted by the attorney who represented Republic Steel in that proceeding. On September 8, 1980, the Circuit Court of Etowah County entered a consent judgment in Edmondson's favor in the amount of $150,000.00.
On July 15, 1983, an attorney filed an action on Mrs. Edmondson's behalf in the United States District Court. Her complaint contained four counts. The first two counts were wrongful death actions against Republic Steel based on the Federal Employers' Liability Act and the Federal Safety Appliance Act. Count three claimed damages for fraud against Republic Steel and one of its employees, Frank Dressman, in connection with alleged representations made during the negotiations leading up to *573 the settlement. In count four Mrs. Edmondson claimed that an attorney, J. Richard Carr, had undertaken to advise her regarding her claims against Republic Steel and that he negligently advised her to settle her claims for an unreasonable amount.
The United States District Court dismissed the action for lack of jurisdiction. There was no diversity of citizenship which would support the common law claims, and the counts based on the FELA and the FSAA were barred by the prior judgment. The court opined that if Mrs. Edmondson could successfully attack the prior judgment based on fraud she would be entitled to proceed in her FELA and FSAA actions.
On September 22, 1983, Mrs. Edmondson filed this action in the Jefferson County Circuit Court. The allegations of the complaint in this case are substantially the same as those in the federal action. The Jefferson County Circuit Court entered an order transferring the case to Etowah County. Although venue was proper in Jefferson County, the court concluded that it would be proper to present the matter to the Etowah County Circuit Court because it would be necessary to attack the judgment rendered in Etowah County under the provisions of Rule 60(b), A.R.Civ.P., before proceeding. Edmondson filed a petition for writ of mandamus seeking to prohibit the Jefferson County court from transferring the case. This Court denied the writ. See Ex parte Edmondson, supra.
The defendants filed a motion to dismiss in the Circuit Court of Etowah County on the grounds that the complaint failed to state a claim upon which relief could be granted, that the action was res judicata, that the applicable statute of limitations had run, that the plaintiff had released the defendants, that she was guilty of laches, and that the court lacked subject matter jurisdiction. The circuit court entered an order granting the defendants' motion, and the plaintiff appeals.
With regard to counts one and two, we agree with the federal court and with the defendants that the FELA and FSAA claims against Republic Steel are res judicata. Plaintiff cannot proceed with an action against the same parties for the same claim which was previously litigated without first obtaining relief from the judgment by way of a Rule 60(b) motion or an independent action. Ex parte Edmondson, 451 So. 2d 290 (Ala.1984).
Count three alleges that Dressman, acting on behalf of Republic Steel, fraudulently induced Mrs. Edmondson to accept the $150,000.00 settlement. She claims that Dressman told her that she was entitled to no more than $80,000.00 from Republic Steel for her husband's death and that she should accept the $150,000.00 offer without retaining an attorney because attorney's fees would reduce her net recovery. The complaint avers that Dressman's representations were false, that he knew they were false when he made them, and that Mrs. Edmondson relied to her detriment on those representations in settling the claims and by executing the release.
Of course, a release obtained by fraud is void. Turnipseed v. McMath, 13 Ala. 44, 48 (1848). The defrauded party can avoid the operation of the release by seeking a rescission of the agreement. As a precondition to rescission, however, the plaintiff must tender a return of the consideration within a reasonable time after discovery of the fraud. Ledbetter v. Frosty Morn Meats, 274 Ala. 491, 498, 150 So. 2d 365, 371 (1963); Birmingham Railway, Light & Power Co. v. Jordan, 170 Ala. 530, 537, 54 So. 280, 282 (1911). Since Mrs. Edmondson has chosen to retain the benefits of her agreement with Republic Steel, she should be bound by the release. The release applies to Dressman as well as to Republic Steel. Mrs. Edmondson released Republic Steel's "agents and servants ... from any and all actions, claims and demands... which [Edmondson] now has or may have, whether known or unknown." The trial court properly dismissed count three of the plaintiff's complaint.
Count four is based on attorney malpractice. Mrs. Edmondson's complaint alleges that she contacted Carr seeking advice regarding *574 the proposed settlement. She claims that Carr undertook an investigation of the facts and circumstances surrounding her case and that as a proximate result of Carr's negligent investigation and advice she suffered damages in that she accepted an amount which was substantially less than the amount to which she was entitled.
Carr argues that allowing an action to proceed against him would be tantamount to allowing an impermissible collateral attack on the judgment. He takes the position that Mrs. Edmondson should be required to seek relief under Rule 60(b) as a prerequisite to a malpractice action against him.
We disagree. Defendant Carr cites no authority in support of his contention that a party must have the underlying judgment set aside before proceeding against an attorney who negligently caused the compromise or settlement of his client's case for an unreasonable sum of money. While we have been unable to find a case in which the precise issue raised by the defendant has been discussed, we have found several cases in which courts have allowed actions to proceed against attorneys for negligently causing or allowing actions to be settled for unreasonable amounts. See, e.g., King v. Jones, 258 Or. 468, 483 P.2d 815 (1971); Vooth v. McEachen, 181 N.Y. 28, 73 N.E. 488 (1905); "Legal Malpractice In Settling Case," 87 A.L.R.3d 168. The trial court's ruling with regard to the plaintiff's claim against Carr is due to be reversed.
The decision of the trial court is hereby affirmed in part; and reversed in part; and the action is remanded for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
TORBERT, C.J., and EMBRY, BEATTY and ADAMS, JJ., concur.
MADDOX, JONES, ALMON and SHORES, JJ., concur in part, but dissent as to that portion of the opinion allowing the legal malpractice claim to proceed. | April 5, 1985 |
97d37352-a8fb-4e3d-bf68-0c4376f3cff5 | Ex Parte Boatwright | 471 So. 2d 1257 | N/A | Alabama | Alabama Supreme Court | 471 So. 2d 1257 (1985)
Ex parte Clifford Merrill BOATWRIGHT.
(Re: Clifford Merrill Boatwright v. State).
84-210.
Supreme Court of Alabama.
April 5, 1985.
Thomas M. Goggans of Goggans & McInnish, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
This Court granted certiorari to determine whether the Court of Criminal Appeals, 471 So. 2d 1255, was correct in affirming the trial court's denial of an evidentiary hearing to the petitioner on his petition for a writ of error coram nobis. We reverse and remand.
Originally, petitioner was convicted in Etowah County for trafficking in marijuana, sentenced to nine years' penal servitude, and fined $25,000. The Court of Criminal Appeals affirmed his conviction without opinion, and this Court denied certiorari.
Boatwright later petitioned the trial court for a writ of error coram nobis, alleging three separate grounds for relief: (1) that he was denied the effective assistance of counsel in violation of Article I, § 6, of the Alabama Constitution of 1901, and the Sixth and Fourteenth Amendments of the United States Constitution; (2) that his trial counsel had a conflict of interest in the case and did not fairly represent the petitioner, so that petitioner did not receive a *1258 fair trial as constitutionally guaranteed; and (3) that his waiver of a trial by jury was not knowingly, intelligently, and voluntarily made, because he lacked competent assistance of counsel and because he was unaware of the consequences of his stipulation to the admission of marijuana into evidence.
In support of the first ground, petitioner alleged that his trial counsel failed to appear at certain hearings, leaving petitioner "without counsel well versed in the case." He also averred that his trial counsel was representing another defendant on a drug charge at the same time, and that his trial counsel made statements to this other defendant indicating a prejudice toward petitioner's defense. Petitioner made other allegations of his trial counsel's improper conduct, namely, waiving a jury trial and stipulating to the admission of marijuana into evidence.
On the second ground, petitioner supported his allegations with the affidavit of one Glen Sexton, another defendant charged with a drug offense, who stated therein:
Petitioner further alleged that witnesses were available to support his allegations and to testify to facts which were inconsistent with the judgment. Petitioner requested an evidentiary hearing.
The district attorney moved to dismiss the petition, alleging nine separate grounds. The trial court dismissed the petition without a hearing. A motion to reconsider was also denied.
Petitioner appealed the dismissal to the Court of Criminal Appeals, which affirmed with an opinion. That opinion reviewed the evidence of petitioner's trial on the drug charged and concluded:
The Court of Criminal Appeals also concluded that under Strickland v. Washington, ___ U.S. ___, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), counsel's conduct did not so affect the adversarial process as to produce an unjust result. "In this case," the court added, "we cannot imagine anything defense counsel could have done to change the result." The Court of Criminal Appeals also concluded that petitioner should have raised this petition's allegations on direct appeal.
Boatwright filed a lengthy Rule 39(k), A.R.A.P., statement of facts in his application to the Court of Criminal Appeals for a rehearing. That court denied rehearing without an opinion.
The basis of Boatwright's petition to this Court is that the opinion of the Court of Criminal Appeals conflicts with prior decisions of that court. Specifically, Boatwright argues that his petition is meritorious upon its face and that, therefore, under the authorities he was entitled to an evidentiary hearing in the trial court prior to a decision upon its merits.
It is clear from the decisions of the Court of Criminal Appeals that an evidentiary hearing must be held on a coram nobis petition which is meritorious on its face, i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief. See, for example, Populus v. State, 51 Ala.App. 166, 283 So. 2d 617 (1973) (observing that since the State never joined issue on the petition and no hearing was held on the merits, the petition was meritorious on its face and required a hearing); Henry v. State, 387 So. 2d 328 (Ala. *1259 Crim.App.1980) (petition was meritorious on its face and thus a hearing was required); Ellison v. State, 406 So. 2d 439 (Ala.Crim.App.1981) (allegations of ineffective assistance of counsel, if true, entitled petitioner to relief; thus petition was meritorious on its face and a hearing thereon was required); Kennedy v. State, 409 So. 2d 1010 (Ala.Crim.App.1982) (directing evidentiary hearing as to petition meritorious on its face); Chapman v. State, 416 So. 2d 759 (Ala.Crim.App.1982) (allegations that counsel was denied, that State used perjured testimony, and that petitioner was not advised of right to appeal or right to transcript, required evidentiary hearing on coram nobis petition); David v. State, 416 So. 2d 778 (Ala.Crim.App.1982) (allegations of ineffective assistance of counsel, specifically, failing to present alibi witnesses and failing to subpoena witnesses, required evidentiary hearing on coram nobis petition); Smith v. State, 416 So. 2d 792 (Ala.Crim. App.1982) (allegation of denial of effective assistance of counsel required hearing on merits of coram nobis petition); Watson v. State, 451 So. 2d 373 (Ala.Crim.App.1984) (petition containing specific charges of ineffective assistance of counsel required evidentiary hearing). See also 63 Ala.Digest Criminal Law, § 997.16(4).
In this case, it is clear that under the specific allegations of the sworn petition relating to assistance of counsel, the petitioner would be entitled to relief if those allegations were true. Thus, under the cited authorities, his petition was meritorious and he was entitled to an evidentiary hearing. Indeed, the State of Alabama never joined issue upon the factual allegations of the petition; the State only moved to dismiss. The effect of the opinion of the Court of Criminal Appeals was to have that court join issue under the petition and to decide the merits of the petition for the first time by appellate review. With deference to that distinguished court, nevertheless, such action was erroneous.
Under the authorities, and without our ruling upon the merits of the allegations of the petition, the judgment of the Court of Criminal Appeals is reversed and this cause is remanded to that court with directions to remand the cause to the trial court for an evidentiary hearing on the matters contained in the petition. It is so ordered.
REVERSED AND REMANDED WITH DIRECTIONS.
FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX, J., concur specially.
MADDOX, Justice (concurring specially).
I agree that Boatwright is entitled to a hearing on his allegations, but I am troubled by the virtual flood of post-conviction claims made by prisoners in both state and federal proceedings that their constitutional rights were violated because of "ineffective assistance of counsel." The claim of "ineffective assistance of counsel" has become a sort of "canned" claim which appears in practically every post-conviction claim I have seen lately.
An Advisory Committee on Proposed Rules of Criminal Procedure is currently working on a rule of procedure which, if adopted by this Court, would address this problem which is one of the most troublesome problems faced by federal habeas corpus review of state court convictions.
While I obviously do not wish, in this particular opinion, to state specifically what I would consider to be a better way to handle this nettlesome problem of post-conviction relief, it would appear to me that an accused probably should be required to raise, at the trial stage, on motion for new trial, any facts known to him upon which he could base a claim of "ineffective assistance of counsel." If an accused were required to state at the trial level any facts within his knowledge which would justify a new trial because his counsel was ineffective, I believe it would materially aid all concerned in the speedy, inexpensive, and just determination of the claim.
*1260 The argument might be made that a defendant would not know at that time whether his lawyer had represented him well or not. In most cases, he would know as much then as he would later about the salient facts upon which the ultimate decision must rest in any event; therefore, I believe his failure to raise an "ineffective assistance" claim on appeal would constitute a waiver of the claim as to all facts known to him at that time. Furthermore, the trial judge, if called upon immediately after the trial to determine any factual question about counsel's effectiveness, would be in a much better position to remember all the salient facts (such as trial strategy, counsel's vigor, etc.) than he would be in months later on a post-conviction claim when memories had dimmed.
It is my hope that this Court might address this question of post-conviction relief by adopting a Temporary Rule of Criminal Procedure which would guarantee that any claims based on the denial of a defendant's constitutional right to counsel were presented, but which would help eliminate what appear to be, in many instances, purely frivolous claims.
TORBERT, C.J., concurs. | April 5, 1985 |
3327733e-f597-485b-b21f-59434301b423 | Dennis v. Dobbs | 474 So. 2d 77 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 77 (1985)
Dr. Arthur DENNIS, etc.
v.
Jo Ann DOBBS.
83-1239.
Supreme Court of Alabama.
June 28, 1985.
*78 Edward Cunningham, Gadsden, for appellants.
Larry H. Keener of Floyd, Keener & Cusimano, Gadsden, for appellee.
EMBRY, Justice.
This is an appeal from a writ of mandamus issued by the trial court ordering Dr. Arthur Dennis, as President of Gadsden State Junior College, to reinstate Jo Ann Dobbs as student health nurse at the school, with back pay and benefits. We affirm.
Jo Ann Dobbs had been a school health nurse at Gadsden State Junior College ("Gadsden State") since 1972. Mrs. Dobbs's contract with the school was to expire on 30 September 1983. The State Board of Education Policy 614.011 states:
2 June 1983 was the last day Dobbs could have received notice within this 120-day limit.
Dr. Arthur Dennis, President of Gadsden State, sent Mrs. Dobbs a certified letter on *79 2 June 1983 to inform her of the nonrenewal of her contract. This letter read, in part:
Mrs. Dobbs was not at home, however, so the post office left her a note that the letter carrier had attempted to deliver the letter. On 4 June 1983, Mrs. Dobbs called the post office and was informed that the letter was from Gadsden State. Mrs. Dobbs did not see a copy of the letter until 8 June 1983, when she saw a copy that had been sent to her husband, who was Dean of Student Services at Gadsden State. Mrs. Dobbs accepted the certified letter at the post office on 15 June 1983.
The trial court found that Mrs. Dobbs was a full-time employee and did not receive actual written notice 120 days prior to the end of her contract. The court then issued a writ of mandamus ordering Dr. Dennis, as President of Gadsden State, to reinstate Mrs. Dobbs as school nurse with back pay and benefits since 1 October 1983. We affirm.
Dennis contends that: (1) Mrs. Dobbs was not a full-time employee of Gadsden State, and therefore the 120-day notice requirement did not apply to her; and (2) Mrs. Dobbs was given constructive notice within the proper period of time.
It is the policy of this court to presume correct the findings of the trial court based upon competent evidence, when the evidence is presented ore tenus. Such findings will not be disturbed upon appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. First Alabama Bank of Montgomery v. Coker, 408 So. 2d 510 (Ala.1982); Knapp v. Knapp, 392 So. 2d 527 (Ala.1980). The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment. First Alabama Bank of Montgomery v. Coker, supra.
We hold that the evidence was sufficient to sustain the trial court's finding that Mrs. Dobbs was a full-time employee and thus was entitled to 120 days' notice of non-renewal of her contract under State Board of Education Policy 614.011. Mrs. Dobbs testified she worked seven hours in her office on days that school was in session, with no break for lunch. The office hours for the school nurse are listed in the school catalog as 8:00 a.m. to 3:00 p.m., or seven hours. Dobbs's job description states that in addition to these office hours, she will be "on call in case of emergencies." Mrs. Dobbs testified she was often called back nights, weekends, and days between quarters by "dorm mothers" and students. She further testified that she often stayed later than 3:00 p.m. to take care of sick or injured students and drive them to the doctor, if needed. Dobbs's job description also called for her to perform "other related duties assigned." Mrs. Dobbs testified she performed such diverse tasks as coordinating health fairs, making trips as the cheerleader sponsor, and running the hospitality room at the State Women's Basketball Tournament. All of these activities were done after her posted office hours. Mrs. Dobbs only drew seventy percent of the salary for a full-time employee, however. Mrs. Dobbs testified she considered herself a full-time employee in every respect except the way her salary was calculated. Dr. Dennis testified that Mrs. Dobbs received the same fringe benefits as a full-time employee, including sick leave, professional leave, personal leave, annual leave, insurance, and holidays. Dr. Dennis's letter to Mrs. Dobbs, in which he states the letter is written pursuant to Policy 614.011, also could lead to an inference *80 that Gadsden State considered Dobbs a full-time employee.
Based on the evidence above, we cannot say that the trial court was plainly and palpably erroneous in finding that Mrs. Dobbs was a full-time employee for the purposes of Policy 614.011. As a full-time employee, Mrs. Dobbs was entitled to notice of non-renewal of her contract at least 120 days before it expired.
Dennis contends Mrs. Dobbs received constructive notice of the non-renewal of her contract, which he says should be sufficient for a non-instructor employee. The policy in question states that such employees "shall be notified in writing of nonrenewal of employment." We do not believe the trial court was plainly and palpably in error in interpreting this language to mean actual notice was required. Furthermore, Code 1975, § 16-24-12, dealing with teachers is similar to Board Policy 614.011. It requires the employing Board of Education to give notice of non-renewal in writing to a teacher on or before the last day of the school term. Failure to give such notice has the effect of deeming the teacher reemployed for the succeeding school year. This court has held that written notice of non-renewal must be given to the teacher. See Athens City Board of Education v. Reeves, 388 So. 2d 515 (Ala.1980); Stollenwerck v. Talladega County Board of Education, 420 So. 2d 21 (Ala.1982); Johnson v. Selma Board of Education, 356 So. 2d 649 (Ala.1978). Although the standard of notice for teachers and non-instructors may be different, we do not have to reach this issue. Mrs. Dobbs did not have even constructive notice of the non-renewal of her contract. She testified she did not know that the letter was being sent to her. The note left by the mail carrier merely stating he had tried to deliver a certified letter does not suffice as constructive notice.
Since Mrs. Dobbs did not receive notice of the non-renewal of her employment on or before 120 days preceding the end of her contract, she was presumed employed for the next contract period. Therefore, we hold Mrs. Dobbs was entitled to reinstatement as school nurse, with back pay and benefits.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | June 28, 1985 |
3c19fa9d-ac6a-490c-a5cb-6531bee8bef3 | Ex Parte Arthur | 472 So. 2d 665 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 665 (1985)
Ex parte Thomas Douglas ARTHUR.
(Re: Thomas D. Arthur v. State).
83-1008.
Supreme Court of Alabama.
April 5, 1985.
Rehearing Denied May 10, 1985.
*667 Wesley M. Lavender and John E. Mays, Decatur, for petitioner.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
BEATTY, Justice.
The defendant, Thomas Douglas Arthur, was indicted for the capital offense of murder after having been previously convicted of a murder. Code of 1975, § 13A-5-40(a)(13). He was convicted and was sentenced to death in accord with the jury's recommendation. The Court of Criminal Appeals affirmed his conviction in Arthur v. State, 472 So. 2d 650 (Ala.Crim.App.1984). We granted certiorari as a matter of right under Code of 1975, § 13A-5-53, and Rule 39(c), A.R.A.P.
The basic facts of this case are set out in the opinion of the Court of Criminal Appeals and need not be repeated here. We will set forth additional facts as necessary in this opinion.
The defendant has raised several issues regarding the fact that the indictment in the present case included a charge that he had been previously convicted of murder in the second degree. Among his contentions is the assertion that the inclusion in the indictment of the prior conviction deprived him of his due process rights. However, it is clear that the prior conviction, which is the aggravating circumstance under § 13A-5-40(a)(13), must be alleged in the indictment in order to afford the defendant due process:
Wilson v. State, 371 So. 2d 932, 940 (Ala. Crim.App.1978), aff'd, 371 So. 2d 943 (Ala. 1979), vacated on other grounds, 448 U.S. 903, 100 S. Ct. 3042, 65 L. Ed. 2d 1133 (1980), rev'd on other grounds, 405 So. 2d 696 (Ala.1981) (quoted in Hubbard v. State, 382 So. 2d 577, 590 (Ala.Crim.App.1979), aff'd, 382 So. 2d 597 (Ala.1980), rev'd on other grounds, 405 So. 2d 695 (Ala.1981)) (both cases involving convictions under § 13-11-2(a)(13) which was the forerunner of the present § 13A-5-40(a)(13)).
The defendant's other arguments concerning the inclusion of the prior conviction in the indictment are also without merit and need no discussion.
In a capital case, the aggravating circumstances not only must be alleged in the indictment, but they must also be proven beyond a reasonable doubt. Beck v. State, 396 So. 2d 645, 663 (Ala.1980). The aggravating circumstance in the present case was the defendant's conviction for "any other murder in the 20 years preceding the crime." Code of 1975, § 13A-5-40(a)(13). Through the testimony of Pride Gann, the Circuit Clerk of Marion County, the State introduced a certified copy of the minute entry of defendant's 1977 conviction for second degree murder. This was a proper method of proving the defendant's prior conviction. Thigpen v. State, 355 So. 2d 392, 397 (Ala.Crim.App.), aff'd, 355 So. 2d 400 (Ala.1977); see Julius v. State, 407 So. 2d 141, 147 (Ala.Crim.App.1980), rev'd on other grounds, 407 So. 2d 152 (Ala.1981).
*668 The State also introduced, over the defendant's objection, the details surrounding the defendant's prior murder conviction. Although conceding for the purposes of this argument that the fact that he had a prior murder conviction may have been admissible to prove the capital offense, the defendant maintains that the details surrounding this conviction were inadmissible under the general exclusionary rule. We are constrained to agree.
In C. Gamble, McElroy's Alabama Evidence § 69.01(1) (3d ed. 1977), the general exclusionary rule is discussed as follows:
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).
There are several well-defined exceptions to the general exclusionary rule. See generally Brewer v. State, 440 So. 2d 1155 (Ala.Crim.App.1983). In the present case, the State argued that evidence concerning the details of Arthur's prior murder conviction was admissible under the identity exception. The trial court permitted the introduction of the evidence under this exception and, in its oral charge, instructed the jury that this evidence was to be considered by them only for purposes of identity.
The following language concerning the identity exception is found in McElroy's, supra, at § 69.01(8):
In other words, evidence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime "exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person." Brewer, 440 So. 2d at 1161.
The State argued at trial and now asserts on appeal that the details surrounding the defendant's prior murder conviction were admissible under the identity exception, because in both the prior case and the present case: (1) the victim was killed by a single gunshot wound to the right eye; (2) the defendant had been drinking prior to the murder; and (3) the murder weapon was never recovered.
While these factors were common to both murders, they cannot be taken out of context to stand alone for comparison. The entire circumstances surrounding both *669 murders must be compared. Cf. United States v. Dothard, 666 F.2d 498, 502 (11th Cir.1982) (when seeking to admit evidence of prior crimes under the plan, scheme, or design exception, which is closely akin to the identity exception in that both the prior crime and the now-charged crime must have been committed in a similar manner, a mere similarity in results is not sufficient; there must be "such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations"). (Emphasis in original.)
The murder for which the defendant was previously convicted took place at Haleyville Mobile Homes Supply Co. (HMH) in Bear Creek, Alabama. The defendant, who had been drinking heavily, entered the HMH offices during business hours on the morning of March 28, 1977. Observed by several witnesses, he went to the office of Eloise Bray West, who was the sister of his common-law wife, and inquired as to his wife's whereabouts. When Ms. West refused to tell him and ordered him to leave the premises, the defendant drew two handguns, aimed one at Ms. West's head and said, "[Y]ou tell me where my wife is or I'm going to blow your head off." Ms. West then picked up the telephone and the defendant fired at least three shots, apparently firing both guns. The first shot went into the floor in front of Ms. West's desk, the second struck Ms. West in the right eye, and the third hit a witness, Charlotte Harbin, in the side. The shot which killed Ms. West was fired from either a .38 caliber or a .357 Magnum caliber weapon. After the shooting, the defendant simply walked out of the HMH offices. He was apprehended later that same morning.
In the present case, the victim, Troy Wicker, was killed as he lay sleeping in his own bed in his own home. The single shot to his right eye was fired from a small caliber weapon at a relatively close distance, somewhere in the range of 16 to 24 inches. Although four empty casings were found on or near the victim's bed, there was no evidence that more than one shot had actually been fired. The murder of Troy Wicker was apparently committed in secrecy and stealth and his house ransacked in an effort to destroy evidence or sidetrack investigators.
Comparing all of the circumstances surrounding the murders of Eloise West and Troy Wicker, we simply cannot find that the murders were committed in the same novel and peculiar manner so as to justify the admission of the details of Ms. West's murder in the defendant's trial for the murder of Wicker.
We are not inclined to view the fact that the defendant had been drinking prior to both murders as being in any way unique or constituting a novel and peculiar means of committing a crime. As the Oregon Court of Appeals stated in State v. Hockings, 23 Or.App. 274, 280, 542 P.2d 133, 136 (1975): "[D]efendant's drinking on the occasion of both crimes [is not] deserving of consideration because this ... is so commonplace."
The same can be said for the mere fact that the murder weapons were not found. Murder weapons are not found in a great many cases. Without more, such as a showing that the defendant disposed of the weapons in the same manner, this cannot seriously be considered a similarity.
That leaves us with the single similarity that both victims were shot in the right eye. And even this one similarity loses much of its comparative value when the entire circumstances of Ms. West's murder are considered. The shot to Ms. West's right eye may well have been fortuitous, while it appears that Wicker was deliberately shot in the right eye. It is clear that the dissimilarities surrounding these two murders far outweigh this one similarity. Cf. Brewer, supra (holding a prior assault conviction inadmissible in a murder prosecution where both incidents "involved young white females who were acquainted with the [defendant]," both victims were strangled, and both "were found with one shoe on," but murder victim was handicapped while assault victim was not; murder *670 victim was found in remote area while assault took place in a public parking lot; murder victim was strangled with knotted handkerchief while assault victim was strangled with extension cord; and there were sexual overtones to the murder and none to the assault).
Furthermore, the evidence of the prior murder was clearly not admissible under any of the other exceptions to the general exclusionary rule. We therefore hold that the details surrounding the murder of Ms. West were inadmissible in the defendant's trial for the murder of Wicker.
Because the case must be reversed on this issue, we pretermit discussion of the remaining issues advanced by the defendant. However, in view of our holding that the evidence concerning the details of Ms. West's murder was inadmissible, we note that it was also error for the prosecutor to ask the following question during voir dire of the jury venire:
For the reasons stated above, the judgment of the Court of Criminal Appeals is reversed, and this cause is remanded to that court with directions to order a new trial.
It is so ordered.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
JONES, J., concurs specially.
JONES, Justice (concurring specially).
I agree with the majority's holding as to each of the issues addressed. I write separately to point out a possible confusion relating to the term "aggravating circumstances." As used in the majority opinion, this term means "any other murder in the 20 years preceding the crime"one of the requisite circumstances enumerated in Code 1975, § 13A-5-40(2), to constitute capital murder. This is not to be confused with "aggravating circumstances" referred to in § 13A-5-45, evidence of which may be adduced during the sentencing phase of the trial. | April 5, 1985 |
9054d5ed-a8c4-414a-8694-87287b71f948 | SERVICE REALTY AND INS. CO. v. Klinefelter | 470 So. 2d 1172 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1172 (1985)
SERVICE REALTY AND INSURANCE COMPANY, INC.
v.
Mary Lynn KLINEFELTER, et al.
83-739.
Supreme Court of Alabama.
April 5, 1985.
Rehearing Denied May 10, 1985.
*1173 C.E. Isom of Bolt, Isom, Jackson & Bailey, Anniston, for appellant.
Patrick P. Hughes, Anniston, for appellees.
FAULKNER, Justice.
This case involves the interpretation and application of a zoning ordinance enacted by the City of Anniston. Service Realty and Insurance Company appeals from an order by the Circuit Court of Calhoun County permanently enjoining it from using a house on its property as a real estate office.
On March 24, 1977, Service Realty purchased a 70' by 190' lot on the corner of 15th Street and Christine Avenue in Anniston. The 190' side of the lot faces 15th Street the 70' side fronts Christine Avenue. The only structure on the parcel when Service Realty purchased it was a house at the end of the lot facing Christine. At that time the property was zoned "Residential, Industrial & Professional" ("R.I.P."), a zoning classification which allowed Service Realty to use the property for its real estate and insurance business. Service Realty constructed an office building facing 15th Street behind the house and it rented the house to an individual for use as a residence.
On June 13, 1978, the City changed the zoning classification of the property from "R.I.P." to "R-3". Anniston Ord. 78-0-27. Operation of real estate and insurance offices was not a conforming use under the "R-3" classification. Under the new ordinance Service Realty's office building could not be enlarged and it could not be rebuilt if destroyed. Nor could Service Realty convert the house into an office.
Service Realty and other property owners who had bought their property in anticipation of commercial use and development in accordance with the "R.I.P." classification complained to the city council about the rezoning. On November 14, 1978, the City amended the new zoning ordinance at the behest of Service Realty and the other objecting property owners. Subsection (e), Ordinance No. 78-0-49. The amendment, a copy of which is attached to this opinion as Appendix A, provided that a property owner who purchases land with the intention of using it or developing it under the provisions of an existing zoning ordinance will not be prevented by a subsequent rezoning of the property from using or developing the property as the owner had intended, if the owner files application with the City requesting to use or develop the property under the prior zoning classification within one year of the time the property is rezoned. *1174 Upon the landowner's application the city building inspector was to issue an affidavit describing: "the existing use or structure, or use or structure to be developed, the property by metes and bounds, the zone within which the use or structure or property was located prior to the [rezoning], the applicable district regulations in effect prior to the [rezoning], the date of the [rezoning] and the date of the affidavit request." Upon receipt of the affidavit the property owner was required to file the affidavit in the probate office and to provide a certified copy of the recorded document to the city building inspector.
On May 15, 1979, Service Realty made an application to the City pursuant to subsection (e). The record does not contain a copy of the application. In response to Service Realty's request the City furnished it a document entitled "Zoning Ordinance Non-Conforming Use Affidavit." The record does not reveal when the putative affidavit was executed by the building inspector or when it was provided to Service Realty. Service Realty filed the affidavit with the judge of probate on December 28, 1979.
In August of 1983 Service Realty notified its tenant in the house on Christine Avenue that it intended to convert the house into a real estate office. When it began work on the project, several property owners in the neighborhood filed an action in the circuit court seeking to enjoin Service Realty from converting the residence into an office.
Following a trial on the merits, the circuit court enjoined Service Realty from using the house for any use inconsistent with the "R-3" zoning classification. It found that the document entitled "Zoning Ordinance Non-Conforming Use Affidavit" was "neither in form nor in substance an affidavit." The court pointed out that the affidavit did not show on its face "that it was ever sworn to before a person authorized to administer an oath" and that the language of the document indicated that it was nothing more than an "unsworn declaration." The court noted that the affidavit contained no indication that Service Realty ever intended to convert the house from a residence to an office. It reasoned that the purpose of the filing requirement in the ordinance was to put the public on notice as to the owner's intentions with regard to its use and development of the property. Since the ordinance required the landowner to file the affidavit in the probate court but did not provide a specific time limitation for filing, the trial court concluded that the affidavit should have been filed within a "reasonable time." Since the affidavit was not filed until December 1979, the court concluded that it was not filed within a reasonable time. Finally, the court found that converting the house from a residence to an office would "have a substantial impact on the residential quality of the plaintiffs' neighborhood."
The proper inquiry in this case is whether Service Realty complied with the requirements of ordinance No. 78-0-49(e). The only requirements imposed by the ordinance on the property owner were that it file a timely request for an affidavit from the building inspector, that it file the affidavit in the probate court, and that it file a recorded copy of the affidavit in the city inspector's office. The trial court did not rule against Service Realty because of a failure to make a timely application or to properly file the affidavit. The trial court based its decision on a highly technical construction of the term "affidavit," on Service Realty's supposedly dilatory filing of the affidavit, and on a finding that the development would have undesirable effects on the neighborhood.
The ordinance should be construed so as to carry out the intent of the city council. Long v. Talladega National Bank, 236 Ala. 366, 368, 182 So. 14, 15 (1938). It is apparent that in passing Ordinance No. 78-0-49 the city council intended to provide a means whereby Service Realty and similarly situated landowners could continue to use their property as if it had not been rezoned from "R.I.P." to "R-3," by making an application for an affidavit and by filing the affidavit in the probate *1175 court and in the building inspector's office. Service Realty complied with the ordinance by making a timely application for an affidavit. Service Realty should not be denied the benefit of the ordinance because of a technical construction of the term "affidavit." If the affidavit was deficient in form, it was not the defendant's fault. The document was prepared by the City. Moreover, even though the city council used the term "affidavit" in the ordinance, we do not believe that the city council intended for the "affidavit" to be sworn to by the city building inspector as a prerequisite to its validity. The ordinance contemplates that the "affidavit" was to be executed by the building inspector based on representations made by the property owner. The representations include a statement as to the property owner's subjective intentions regarding future development of the property. Those are hardly the sort of facts that the city building inspector could attest to. Since the facts contained in the affidavit were not within the building inspector's firsthand knowledge, he could not properly have attested to them. The intent of the body which enacted the legislation "should not be defeated by a narrow construction based upon nice distinctions in the meaning of the words." League of Women Voters v. Renfro, 292 Ala. 128, 131, 290 So. 2d 167, 169 (1974).
Nor does the record support the trial court's conclusion that the affidavit was not timely filed. The ordinance does not contain a time limitation for filing the document. Although we have no quarrel with a requirement that the landowner must file the document within a reasonable time, there is no way to determine whether Service Realty was dilatory in filing the affidavit. The affidavit does not contain a date indicating when it was executed by the inspector or delivered to Service Realty. From all that appears in the record, Service Realty may have filed the affidavit immediately upon receiving it. Moreover, even if the defendant did wait an "unreasonable" length of time before filing, there is nothing to indicate that the plaintiffs were harmed by the delay.
We appreciate the concerns of the plaintiffs and the trial court regarding the effects of commercial development in the plaintiffs' neighborhood. It would not be appropriate, however, to allow the injunction to stand based on the trial court's finding "that should the residential structure in issue be converted to a commercial one, such would have a substantial impact on the residential quality of the plaintiffs' neighborhood." The courts will ordinarily allow property owners to use their property in any manner consistent with the applicable zoning ordinances so long as the owner does not permit a nuisance or a health hazard to exist. Davis v. City of Mobile, 245 Ala. 80, 83, 16 So. 2d 1, 3 (1943). In this case the landowner's use of the property for commercial purposes clearly will not constitute a nuisance or a health hazard. The defendant's plan is to use the structure without external modification and without placing a sign on the property facing Christine Avenue which might affect the residential character of the neighborhood. The question whether commercial development should be allowed in this neighborhood is one for the city council, not the courts, and the city council determined that Service Realty and similarly situated landowners should be allowed the opportunity to develop their property in accordance with the "R.I.P." zoning classification when it passed Ordinance No. 78-0-49(e).
The trial court's decision is hereby reversed and the case is remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. | April 5, 1985 |
2b53b702-8608-46c1-a985-d50aab91d757 | Cofer v. Ensor | 473 So. 2d 984 | N/A | Alabama | Alabama Supreme Court | 473 So. 2d 984 (1985)
Robin M. COFER, as mother of Baby Cofer, deceased
v.
Herman C. ENSOR; Ensor, Baccus, Williamson, P.A.; Cullman Medical Center.
83-898.
Supreme Court of Alabama.
April 12, 1985.
Rehearing Denied July 3, 1985.
*985 Carl E. Chamblee, Sr. and Gould H.K. Blair, Birmingham, for appellant.
Robert E. Parsons and Marda W. Sydnor of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee Cullman Medical Center.
PER CURIAM.
This case presents an issue of first impression:
Does the minority of a parent of a deceased minor child toll the running of the two-year period for bringing an action under Code of 1975, § 6-5-391, for the wrongful death of the minor child?
Stated differently, and perhaps more precisely as to the dispositive questions involved, is the two-year limitations period found in § 6-2-38(a), applicable to § 6-5-391, a technical statute of limitations, and thus subject to the tolling provisions of § 6-2-8(a); or is it a statute of creation, not subject to any tolling provisions, as is § 6-5-410 (wrongful death statute), in which a two-year limitations period is expressly stated (§ 6-5-410(d)), and which has been deemed "not [to be] a statute of limitations, but of the essence of the cause of action"? Parker v. Fies & Sons, 243 Ala. 348, 350, 10 So. 2d 13, 15 (1942). We hold that the two-year limitations period found in § 6-2-38(a), as applied to § 6-5-391, is a "statute of creation" and the action is barred.
Plaintiff, Robin Cofer, gave birth to a baby boy on February 10, 1980, at the Cullman Medical Center. The child died the same day. Robin Cofer's attending physician was Dr. Herman C. Ensor. At the time she gave birth, Cofer was 16 years old and married. Later that year, however, on November 14, 1980, Cofer obtained a divorce, and, therefore, she never reached the age of 18 while she was married, nor was she ever otherwise freed of the disabilities of non-age.
On December 22, 1982, the day before her nineteenth birthday, Cofer brought an action against her doctor, Herman Ensor, and the Cullman Medical Center, alleging medical malpractice in their treatment of her, which she alleges resulted in her inability to bear children. She also added a claim for the wrongful death of her minor son.
The Cullman Circuit Court granted the defendants' motion to dismiss the wrongful death count of the complaint on the ground that it was time barred. The action was filed two years and ten and a half months after the alleged wrongful death of the child. The trial court granted Cofer's Rule *986 54(b), Ala.R.Civ.P., motion, certifying as final its dismissal of the wrongful death claim.
The pertinent provisions of those code sections relevant to the issue involved in this case are as follows:
This Court has recognized the general rule that a distinction exists between a true statute of limitations and a statute which creates a new right of action with an express restriction on the time within which an action may be brought to enforce the right. In her brief, Cofer designates the former a "statute of limitations," and the latter a "statute of creation." We adopt these designations for our use herein.
The Court of Civil Appeals in State, Department of Revenue v. Lindsey, 343 So. 2d 535, 537 (Ala.Civ.App.1977), explained the effect of the distinction between the two types of statutes:
Consequently, where a prescriptive period is contained within the statutory grant of a cause of action, it is a statute of creation, and the period is deemed a portion of the substantive right itself, not subject to tolling provisions. See Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So. 2d 76 (1965). On the other hand, where the prescriptive period comes from without the statute, it is a statute of limitations, to which the tolling provisions apply.
Cofer maintains that the two-year prescriptive period in Code of 1975, § 6-2-38(a), is a statute of limitations, and thus is subject to being tolled by the parent's minority under § 6-2-8(a). In support of the contention, Cofer relies on the statutory history of § 6-5-391, set forth below.
The original act (Session of 1871-72), allowing the parents a right of action for the wrongful death of a minor, contained a one-year limitations period.
For reasons not material here, the first act was found to be unconstitutional in Smith v. Louisville & Nashville R.R. Co., 75 Ala. 449 (1883).
When the legislature adopted an act allowing parents to sue for the death of a minor child (Act No. 36, Acts of Alabama, *988 approved January 23, 1885), the one-year provision was not contained in the act itself but it was included in the Code of 1887 as § 2619, and in the Code of 1897 as § 2801.
Act No. 36, 1885, reads as follows:
Section 2588, referred to in § 2619 of the 1887 Code, reads:
Sections 2800 and 2801, Code 1897, provide, in pertinent part, as follows:
Sections 27 and 26, referred to in sections 2800 and 2801 respectively, read as follows:
In 1907, the limitation for filing a wrongful death claim was set at two years, whether the suit was brought by a parent under Section 26 or the personal representative under Section 27 of the 1897 Code. Section 4839 of the 1907 Code reads as follows:
Sections 2485 and 2486 read as follows:
A commissioner's note to Code 1907, § 2485, gives a detailed history of the section and shows some of the confusion which surrounded the adoption and operation of the section. The commentary also shows, however, that in the opinion of the court, the words "any person" in old section 2486 (now § 6-5-410), included minors or adults. The Commissioner's note and annotations in the 1907 Code read as follows:
The Code Commissioner also gave a history of § 2486; the Commissioner's note and related annotations read as follows:
Note: Of course, the holding mentioned in the Commissioner's note that damages recoverable under § 26 are compensatory has been overruled.
It is quite apparent from a reading of the commissioner's comments that there could be only one cause of action for wrongful death. In Louisville & Nashville R.R. Co. v. Robinson, 141 Ala. 325, 37 So. 431 (1904), an action was brought by the mother of a deceased child, as the administatrix of the child's estate, for the alleged negligent killing of the child. This Court allowed an amendment of the complaint which changed the cause of action from § 25 (injury to a child) or § 26 (death of a child) or § 27 (wrongful death of the "testator" or "intestate").
It is well-settled that the limitations period found in § 6-5-410(d) is a statute of creation, and not subject to tolling provisions because it is "of the essence of the cause of action."
In Louisville & Nashville Railroad Co. v. Chamblee, 171 Ala. 188, 54 So. 681, 682 (1911), this Court held that the two-year period provided in the wrongful death statute, within which a wrongful death action *992 must be brought, is a statute of creation, because
Accord, Downtown Nursing Home, Inc., v. Pool, 375 So. 2d 465 (Ala.1979); Shirley v. Getty Oil Co., 367 So. 2d 1388 (Ala.1979); Nicholson v. Lockwood Greene Engineers, Inc., supra; Parker v. Fies & Sons, supra; Larry v. Taylor, 227 Ala. 90, 149 So. 104 (1933).
This Court has consistently applied the general rules governing the distinction between a statute of creation and a statute of limitation, set forth below, in reaching the conclusion that the two-year period stated within § 6-5-410 is a statute of creation:
51 Am.Jur.2d Limitation of Actions, § 8, p. 596 (1970).
Although § 6-5-391 does not contain a limitation period within the section itself, as does § 6-5-410, does that mean that the cause of action for the death of a minor is governed by the general statute of limitations, especially the tolling provisions of § 6-2-8? We think not.
When the original cause of action for wrongful death was legislatively created in 1852, it did not exclude wrongful death of minors. Thus, the two-year period included in the statute of creation applied equally to all persons. Subsequently, 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. To conclude otherwise would be to hold that between 1852 and 1876 no cause of action existed in Alabama for the wrongful death of a minor. Thus, because the source of the period of limitations for the wrongful death of a minor was contained in the original 1852 wrongful death statute and continues to be included in § 6-5-410, it is a statute of *993 creation and not a tollable statute of limitations. The fact that the 1876 statute, vesting the cause of action in the parent, altered the period of limitations from two years to one year (a difference that was later eliminated) does not change its original source. Nor does the inclusion of this period of limitations in § 6-2-38(a) establish this separate listing as its statutory source.
The listing of the two-year period of limitations in § 6-2-38(a) must be taken for what it isnothing more and nothing less. It is a part of a total compilation of periods of limitations for causes of action ranging from those with no limitations to causes of actions of twenty years to six months. The legislature, in its wisdom, saw fit to bring together in one place in the Code the periods of limitations applicable to various common law causes of action. The fact that it elected to include within this compilation the periods of limitations applicable to wrongful death in no way reflects any legislative intent to establish this particular listing (now codified as § 6-2-38(a)) as the source of the periods of limitations for such actions.
Based on the foregoing, we can only reason that the two-year period fixed by § 6-5-410 is a statute of creation, and, therefore governs all suits for wrongful death, whether the death is that of a minor or an adult and whether the plaintiff is an adult, a minor, or a representative.
This same reasoning which we apply to § 6-5-391 was applied by the Court in Nicholson v. Lockwood Greene Engineers, Inc., supra, in reaching the conclusion that the tolling statute (§ 6-2-8) was inapplicable to actions deemed to have been brought under § 6-5-410:
See also Whitson v. Baker, 463 So. 2d 146 (Ala.1985).
Defendants urge this Court to apply the untollable two-year period of § 6-5-410 to suits filed under § 6-5-391, as it was applied by the Court in Nicholson v. Lockwood Greene Engineers, Inc., supra, to a suit brought by a minor dependent pursuant to what is now Code of 1975, § 25-5-11, of the Alabama Workmen's Compensation Act. This we do.
Section 25-5-11(a), in pertinent part, follows:
In Nicholson v. Lockwood Greene Engineers, supra, the Court was faced with the issue of whether or not the limitation period for filing a wrongful death suit in an employment related death pursuant to what is now § 25-5-11(a), should be tolled by the minority of the plaintiffs, the deceased employee's dependent children. The Court held that their minority did not toll the two-year limitation period, by reasoning that:
In a later case, Alabama Power Co. v. White, 377 So. 2d 930 (Ala.1979), this Court explained the purpose of § 25-5-11 in relation to § 6-5-410:
"Baggett v. Webb, 46 Ala.App. 666, 674, 248 So. 2d 275, 282 (1971) [emphasis omitted].
"The Supreme Court of Alabama gave the same interpretation to Code 1940, Tit. 26, § 312, the predecessor of Code 1975, § 25-5-11(a), as did the Court of Civil Appeals: `Section 312, Title 26, Code of Alabama 1940, gives to the dependents of an employee killed under circumstances creating liability against a third party a right to bring an action against such third party.' Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 499, 179 So. 2d 76, 78 (1965) [emphasis omitted]....
"Appellant argues in its brief, and we agree that in Alabama there is but one cause of action for wrongful death, i.e., Code 1975, § 6-5-410. Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So. 2d 76 (1965). In other words, § 25-5-11(a) gives to the dependents of an employee killed under circumstances *995 creating liability against a third party a right to commence an action against such third party, but such action, when commenced must be deemed to arise under § 6-5-410. Nicholson, supra...." (Emphasis added.) 377 So. 2d at 932-933.
Defendants argue that the right conferred in § 6-5-391 is so closely analogous to that conferred in § 25-5-11(a) that the same reasoning applied by the court in Nicholson, supra, should be applied here. We agree with the defendants. We recognize that § 6-5-410 and § 6-5-391 confer two separate and distinct causes of action, that the persons authorized to sue are not the same, and that the distribution of any recovery is different; but the fact remains that there can be only one action for wrongful death and that the two-year period is a statute of creation, and is of the essence of the right to sue.
The judgment of the trial court holding the action barred is due to be affirmed.
AFFIRMED.
MADDOX, JONES, SHORES, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., and FAULKNER, ALMON and BEATTY, JJ., dissent.
BEATTY, Justice (dissenting):
Because the majority's holding in this case contravenes rules of statutory construction long applied by this Court, I must dissent.
This case was originally assigned to the author of this dissent. The opinion as proposed did not carry. With the consent of this dissenter, the author of the present majority opinion has incorporated some of the language used in the originally proposed opinion. Since it has become necessary for this author to conform that original opinion into this dissent, some of the language used in the majority opinion will be repeated herein.
In concluding that the limitations period stated within Code of 1975, § 6-5-410 (hereinafter referred to as § 410), governs actions brought under § 6-5-391 (hereinafter referred to as § 391), the majority overlooks the unequivocal statutory and case history to the contrary and misapplies well-established rules of statutory construction. Those rules of construction, with respect to limitation of actions, bear repeating: "[W]here the time within which the statutorily-created cause of action is fixed in the act creating the right," it is a statute of creation and not subject to being tolled. Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 500, 179 So. 2d 76, 78 (1965). However, a general statute of limitations, such as § 6-2-38, which is made applicable to one or several rights of action, and which is contained in a statute separate and apart from those statutes creating or conferring those rights of action, is subject to being tolled. Nicholson, supra.
Although, in its opinion, the majority recognizes that § 410 and § 391 "confer two separate and distinct causes of action," it, nevertheless, concludes that the original predecessor to § 391 (Code of 1886, § 2588) "did not create a cause of action for wrongful death; it [merely] allowed the parents to sue for any child's wrongful death." Without question, resolution of the crucial issue this case presents (i.e., whether actions brought under § 391 are subject to a statute of creation or a statute of limitations) involves statutory interpretation or construction, which turns on a determination of legislative intent. In its attempt to make this determination, the majority has clearly missed the mark.
The majority reasons that the "source" of the limitations period applicable to § 391 is § 410 because, prior to the enactment of the statute creating the parents' right of action (now § 391), the personal representative of a child's estate could bring an action under the statute creating a right of action in the personal representative for wrongful death (now § 410). In so holding, the majority discounts completely one factor that points up the inaccuracy of the majority's reasoning on this issue:
Furthermore, although the personal representative had a cause of action prior to the anactment of § 391, the parents did not.
In effect, what the majority has done is substitute what it reasons to be the logical result (i.e., one cause of action for wrongful death subject to one limitations period of the same character) for that which the legislature intended in enacting § 391 and its predecessors, as is evidenced by both the language contained in and omitted from the statutes themselves.
First of all, it should be noted that when the original act (Act No. 61, Acts of Alabama, approved February 24, 1872), which contained the proviso "that suit must be brought ... within twelve months after the decease of said child," was codified in the Code of 1876 at § 2899, this proviso was deleted and, in its stead, a general limitations provision made applicable to the parents' action was added at Code of 1876, § 3231(7). This section provided that "[a]ctions under section 2899 by father or mother, against corporation or private association for wrongful act of officer or agent, causing death of minor child," must be brought within one year.
It is highly significant, and not to be overlooked, that, while the origin of this limitations statute is the original act creating the parents' right of action, in codifying this act, the legislature omitted the limitations period from the statute, § 2899, and placed it in a completely different chapter of the Code, namely, the chapter entitled, "Limitations of Actions." The fact that it was codified separately is strong evidence that, from the beginning, the legislature did not intend the parents' cause of action to be subject to a statute of creation.
Moreover, that the legislature chose, from the beginning, to place the parents' cause of action in a statute separate from that of the personal representative, and attach to it, in a completely different manner, a different time limitation (one year for the parents' action as opposed to two years for the personal representative's action) ought to be sufficient evidence of its intention that the parents' cause of action be separate and distinct from the personal representative's cause. Indeed, it seems to me that this factor alone adequately discredits the majority's misfounded notion that § 410 is so much the "source" of § 391 that this Court should ignore the history of § 391, separately, and in relation to § 410, and attach § 410's limitations period to § 391, when clearly this was never the legislature's intention.
Turning again to the statutory history of §§ 391 and 410, I find further evidence of the legislature's intent that these causes of actions are separate in the fact that just 19 days before passing the original act (Act No. 61, supra) the legislature passed Act No. 62, Acts of Alabama, approved February 5, 1872, which became the "new" wrongful death statute for the personal representative, repealing all prior wrongful death laws:
Later, when both of these death acts were put into the Code of 1876, the intended difference in the limitations period applicable to each surfaced. Not only did the legislature attach different time limitations to each action, but it also left the two-year period inside § 410 (then Code of 1876, § 2641), and did not put in a general limitations section in Chapter 2 of that Code, supra, applicable to § 410.
With respect to § 391 (then § 2899), the legislature did the exact opposite. As explained above, instead of leaving the one-year period inside the statute, as it had appeared in the act, the legislature omitted it entirely from the statute, and put in a general limitations section (§ 3231(7)) in the chapter of that Code entitled "Limitations of Actions." Clearly, this deliberate action on the part of the legislature reflects their intentions with respect to the limitations period applicable to § 391. The fact that they treated it differently from that in § 410 indicates they intended it to be given a different effect. And, under the rules of statutory construction, correctly stated but incorrectly applied by the majority, the difference in the effect is clear: the limitation contained in § 410 operates as a statute of creation, and the limitation to § 391 does not; therefore, § 391 is subject to a statute of limitations, which is § 6-2-38(a). How could it be otherwise?
The legislative history goes on. Nine years after the original statute, § 2899, supra, was held unconstitutional, the legislature "re-enacted" the statute in 1885, curing its constitutional infirmities. This time, the legislature did not even state a limitations period in the new act, the language of which theretofore controlled:
Nor was the limitations period stated in the new statute codified in the Code of 1886 at § 2588:
The general limitations statute, § 3231(7), supra, was merely amended in the Code of 1886 (§ 2619(5)) by removing the language held unconstitutional:
Then, in the Code of 1896, the legislature did something which shows, without a doubt, that it intended that the two causes of action were different and subject to two different periods of limitations. In that *998 Code, the legislature added a section in the "Limitation of Actions" chapter providing that actions under § 410 (then § 27) must be commenced within two years, while retaining the succeeding section (§ 2801) that provided for the one-year limitations period for actions brought under § 391 (then § 26)[1]:
It was not until the 1907 Code that the legislature amended the limitations period applicable to actions brought under § 391 (then § 2485), making it two years as well:
It is worth noting that § 4839 above and now § 6-2-38 refer expressly to only "[a]n action by a representative" under §§ 391 and 410 and do not make any mention of an action by a parent under § 391. Doubtless, the two-year period in § 6-2-38 would be applied by analogy to the parent's action. Nevertheless, the necessity of applying § 6-2-38 to the parent's action by analogy further supports the correct construction that the time for bringing actions pursuant to § 6-5-391 is tolled by the minority of a surviving parent of the deceased minor child.
Notwithstanding this, the majority makes no attempt to rationalize its conclusion as to what the legislature intended, even in view of the fact that up until 1907 the length of the limitations period applicable to each cause of action was different. Furthermore, even though the legislature saw fit to give each plaintiff (the personal representative or the parent) the same length of time in which to bring an action, it does not follow from this that the legislature also intended to change the character of each of the limitations periods. Evidence of that would have had to have been something different indeed. For example, evidence of the legislative intent to make § 391 subject to a statute of creation might be an amendment to the statute itself, stating within it a two-year limitations period. The converse would be true with respect to § 410an intent to change the character of its limitations period could be inferred from an amendment striking the two-year period stated in § 410, while leaving § 6-2-38(a) intact. The result of this would be to have both § 391 and § 410 subject to a pure and tollable statute of limitations.
Nevertheless, what we have is that, while both § 391 and § 410 are enumerated in § 6-2-38(a), only § 410 has the two-year period fixed in the statute creating the right, Nicholson, supra, making only that section subject to a statute of creation. *999 Unlike § 410, § 391 does not fix the time within which that action may be commenced. The limitations period applicable to § 391 is found in § 6-2-38(a), and, therefore, according to the rules of construction adopted by this Court, it is a statute of limitations subject to tolling under § 6-2-8. Furthermore, there is absolutely nothing in the legislative or case history of either statute to indicate that the limitations period contained in the wrongful death statute (§ 410) was ever applicable to or the "original source" of the limitations period applicable to the parents' cause of action for the wrongful death of their minor child.
In holding that the period fixed by § 410 "governs all suits for wrongful death," perhaps the majority fails to see any reason or logic in having the parents' action under § 391 subject to a limitations period of a different kind than that applicable to the action by the personal representative under § 410. The reason is easy to see. The action for wrongful death under § 410 belongs to the personal representative who, by statute, cannot be subject to those disabilities which trigger the tolling statutes. Code of 1975, § 43-2-22. A parent, on the other hand, may indeed be so disabled at the time his or her right of action under § 391 accrues. This the legislature has always known. Thus, the logic in having the distinction between the two causes of action is clear.
The majority purports to apply the same reasoning applied by the Court in Nicholson, supra, concluding that "there can be only one action for wrongful death," and that the two-year limitations period found within § 410 is applicable to any suit filed for wrongful death. The majority so concludes despite its express recognition that "§ 6-5-410 and § 6-5-391 confer two separate and distinct causes of action, that the persons authorized to sue are not the same, and that the distribution of any recovery is different." I emphasize that the Court in Nicholson did not in any way address the applicability of § 410's limitations period to actions under § 391. It was concerned only with § 410's applicability to Code of 1975, § 25-5-11.
Section 25-5-11(a) states, in pertinent part:
In Nicholson, supra, the Court had to decide whether or not the limitations period for filing a wrongful death suit in an employment related death, pursuant to what is now § 25-5-11(a), should be tolled by the minority of the plaintiffs, the deceased employee's dependent children. The Court held that their minority did not toll the two-year limitations period by reasoning that:
Thus, the Court in Nicholson concludes that actions brought by dependents pursuant to § 25-5-11 "must be deemed to arise under" § 410. Clearly, this statement is not true with respect to § 391, under the facts of the present case. For the moment, I quote only from Benson v. Robinson, 223 Ala. 85, 86, 134 So. 799, 800 (1931), and deal with this issue in more depth below:
Indeed, these various statutes are different and to construe them as the majority does is to completely abrogate those rules of construction applied in Nicholson, which the majority purports to follow.
In Alabama Power Co. v. White, 377 So. 2d 930 (Ala.1979), this Court explained the purpose of § 25-5-11 in relation to § 410:
"Baggett v. Webb, 46 Ala.App. 666, 674, 248 So. 2d 275, 282 (1971) [emphasis omitted].
"The Supreme Court of Alabama gave the same interpretation to Code 1940, Tit. 26, § 312, the predecessor of Code 1975, § 25-5-11(a), as did the Court of Civil Appeals: `Section 312, Title 26, Code of Alabama 1940, gives to the dependents of an employee killed under circumstances creating liability against a third party a right to bring an action against such third party.' Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 499, 179 So. 2d 76, 78 (1965) [emphasis omitted]....
It is the very language of § 25-5-11 that distinguishes it from § 391, and which led this Court to conclude in Alabama Power Co. v. White, supra, that an action brought by the dependents pursuant to § 25-5-11(a) "when commenced must be deemed to arise under § 6-5-410." Section 25-5-11(a) does not create a cause of action. It refers to death caused under circumstances creating "legal liability for damages," and further states that "such damages shall be ascertained and determined without regard to this chapter." From this language, it is clear that the statute is making implicit reference to § 410, which creates the only legal liability for damages in Alabama in case of the wrongful death of an adult. This is why the Court in Nicholson, and later in Alabama Power Co. v. White, held that an action brought pursuant to § 25-5-11 "must be deemed to arise under § 6-5-410."
Section 391 is different; it does create a cause of action in and of itself, and the parents' action for the wrongful death of their minor child is brought under § 391 and not § 410. Therefore, although § 25-5-11 merely extends the class of persons who can bring a wrongful death action under § 410, § 391 does not just merely "extend the class." Except for the fact that § 391 is congenerous with § 410, as well as the fact that by judicial interpretation other similarities have been deemed to exist between the two statutes, they are indeed separate and distinct statutes conferring separate and distinct causes of action, a fact the majority recognizes.
However, while it is true that the Court has construed § 25-5-11 as merely extending the class of persons who can bring a wrongful death action under § 410, the Court has not likewise so construed § 391 or its predecessors.
The first case construing the first act conferring a cause of action on the parents for the wrongful death of their minor child is Smith v. Louisville & Nashville Railroad Co., 75 Ala. 449 (1883). There the Court described the nature and purpose of the act, as it was then codified:
For reasons not material here, the statute quoted above was found to be unconstitutional. Later, after its constitutional infirmities were remedied by the legislature, it was recodified in 1885. See 1885 Ala. Acts 99, supra.
In a later case, White v. Ward, 47 So. 166, 167, 157 Ala. 345, 349 (1908), the Court, construing the 1885 Act, then codified in Code of 1896, § 26, points out an important characteristic of § 391 (then § 26), which distinguishes it from § 410 (then § 27):
The cause of action for the wrongful death of an adult belongs to the personal representative and must be brought pursuant to § 410. Furthermore, the damages recoverable under § 410 must be distributed according to the statute of distributions. This is not so under § 391. Even if the personal representative brings the action for the wrongful death of a minor child, who has left parents or a parent surviving, the action must be brought under § 391, and the damages recovered belong exclusively to the parents of the child. See quote from Benson v. Robinson, supra. This point is unequivocally made by the Court in Peoples v. Seamon, 249 Ala. 284, 31 So. 2d 88 (1947)[2]:
Since the enactment of § 391 and its predecessors, the Courts have construed it as having conferred a cause of action separate and distinct from that conferred in § 410. In Adkison v. Adkison, 286 Ala. 306, 308, 239 So. 2d 562, 564 (1970), the Court reiterated that
The Court in Adkison went on to hold that the damages recoverable in that case belonged to the father of the deceased minor child.
And yet, while clear differences in purpose and effect exist between the two death statutes, the courts have also interpreted the legislative intent to be that certain similarities exist as well. In Williams v. South & N.A.R. Co., 9 So. 77, 91 Ala. 635 (1891), the Court implied a limitation analogous to the one expressed in § 410's predecessors, but not expressed in § 391's predecessors:
In a later case, Wolfe v. Isbell, 291 Ala. 327, 280 So. 2d 758 (1973), the Court held that, as a general rule of law, the same limitation expressed in § 410 would apply to actions brought under § 391:
Nevertheless, in Louisville & Nashville R.R. v. Bogue, 177 Ala. 349, 58 So. 392 (1912), the Court referred to § 410's predecessor as the "congener" of § 391's predecessor, which means that the two statutes, while not the same, are of the same kind; that is, they bear a relationship to one another, or resemble each other in character, nature, or action. Webster's Third New International Dictionary, p. 478 (1971); Webster's New Collegiate Dictionary, p. 238 (1973). However, the Court in Louisville & Nashville R.R. v. Bogue, supra, went on to hold that because the legislature used the same language in both statutes, it intended the damages recoverable under both sections to be punitive and not compensatory:
It is clearly evident from the above quoted passage, as well as the other authorities quoted herein, that the two statutes have been regarded as conferring two separate and distinct causes of action and are to be given effect accordingly. This was the apparent intent of the legislature and, since the time § 410 and § 391 were first enacted, the courts have endeavored to give effect to each statute according to this legislative intent. The legislature chose to confer, in a separate statute (§ 391), a cause of action congenerous with that conferred in § 410. In so doing, the legislature chose not to expressly state a limitations period within § 391 itself, as it had done in § 410. *1005 The legal effect of this omission by the legislature is to make the right of action conferred in § 391 subject to a technical statute of limitations (§ 6-2-38(a)), and not subject to a statute of creation. This distinction, the majority ignores.
The Court in Nicholson, supra, correctly applied the rules of construction governing limitations of actions in reaching the conclusions that the tolling statute (§ 6-2-8) was inapplicable to the actions deemed to have been brought under § 410, not § 391:
Thus, the Nicholson court makes the distinction between statutes of limitations and statutes of creation with respect to the operation of tolling statutes, a distinction the majority has failed to apply to the statutes involved in this case.
Most recently, in Whitson v. Baker, 463 So. 2d 146, 149 (Ala.1985), this Court, quoting Nicholson, supra, said:
*1006 Without question, § 6-2-38 is a general statute of limitations, not a statute of creation, and, therefore, under the rules applied in Nicholson, supra, § 6-2-38 is tolled by the minority of the plaintiff. Indeed, but for the fact that the two-year limitations period is expressly stated in § 410, the application of § 6-2-38 to actions brought under § 410 would operate as a general statute of limitations, subject to tolling. However, because the limitations period is stated within § 410, it is a statute of creation, not subject to tolling provisions.
Since the enactment of § 391, the legislature has not seen fit to amend § 391 or its predecessors to insert an express proviso similar to the one it saw fit to delete in 1885. The rule that obtains in this jurisdiction is that the last expression of legislative will must prevail. Fidelity & Deposit Co. of Maryland v. Goodwyn, 231 Ala. 44, 163 So. 341 (1935); First National Bank of Scottsboro v. Jackson County, 227 Ala. 448, 150 So. 690 (1933). The last expression in this instance would indicate that the legislature preferred the right of action conferred by § 391 to be governed by a general statute of limitations (§ 6-2-38(a)), rather than an untollable statute of creation. Such an intention is evident not only from the fact that the legislature chose to delete the limitations period stated in the original act, but also from the fact that in 1907, instead of amending § 391, the legislature chose to amend what is now § 6-2-38(a), making that general statute of limitations expressly applicable to § 391.
For the foregoing reasons, I would conclude that plaintiff's action was timely filed. Accordingly, I believe summary judgment was improperly granted and would, therefore, reverse and remand for further proceedings.
TORBERT, C.J., and FAULKNER and ALMON, JJ., concur.
[1] Clearly, this listing by the legislature of the two-year period applicable to actions under § 410 is an action of the kind described by the majority:
"... It is a part of a total compilation of periods of limitations for causes of actions ranging from those with no limitations to causes of actions of twenty years to six months. The legislature, in its wisdom, saw fit to bring together in one place in the Code the periods of limitations applicable to various common law causes of action. The fact that it elected to include within this compilation the periods of limitations applicable to wrongful death in no way reflects any legislative intent to establish this particular listing (now codified as § 6-2-38(a)) as the source of the periods of limitations for such actions."
The above quoted statement is true with respect to § 410, because the two-year period is and has always been stated within § 410. But such is not and has never been the case with § 391. From the beginning, the limitations period applicable to § 391 has always been found in the "Limitation of Actions" chapter of the various Codes. Consequently, those sections, and not § 410, have been the source of the applicable limitations period for § 391. Therein lies the distinction between a statute of creation and a statute of limitations.
[2] The Court in Peoples, supra, stated that "[t]here is nothing in the case of Taylor v. City of Clanton, 245 Ala. 671, 18 So. 2d 369 [(1944)], which is intended to conflict with the [holding reached by the Court in Peoples]." In Taylor, supra, the Court in dicta gave its opinion on an issue which that Court expressly reserved:
"The writer has serious doubt that a personal representative may maintain an action under the provisions of section 119, Title 7, Code of 1940. The reason is, section 123, Title 7, Code of 1940, gives to the personal representative the right to maintain an action for the wrongful death of a minor as well as the right to maintain an action for the wrongful death of an adult; and section 123, supra, was enacted long prior to the adoption of section 119, supra. As said by Justice McClellan [also dicta to the holding], in Lovell v. De Bardelaben Coal & Iron Co., 90 Ala. 13, 7 So. 756, 757, in reference to section 2588, Code of 1886 (now section 119, supra): `Its reference to the personal representative was necessary, on the one hand, to give the parents priority of right over him, and on the other to exclude a construction which might have defeated the representative's right to sue under section 2589 of the Code (now section 123, Title 7, Code of 1940) in a case where the parents had died after right of action accrued, and before suit brought.' See, also, McWhorter Transfer Co. v. Peek, 232 Ala. 143, 167 So. 291. But a decision of the question is not here necessary and we lay it to one side."
"... The right conferred on the personal representative to sue, whether by section 119, supra, or 123, supra,a question we do not now decide,being a new one, is not found in any administrative right at common law based upon the title of the deceased...." 245 Ala. at 674, 18 So. 2d at 371-372.
The Court in Peoples v. Seamon, supra, decided that question reserved in Taylor v. City of Clanton, supra, at least where the deceased minor child is survived by its parent or parents. | April 12, 1985 |
a49fd506-fb44-4e2d-912b-98294c65ef7c | Williams v. Prudential Ins. Co. | 470 So. 2d 1200 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1200 (1985)
Georgia H. WILLIAMS
v.
The PRUDENTIAL INSURANCE COMPANY OF AMERICA, and Clennon Kasal.
83-1162.
Supreme Court of Alabama.
May 3, 1985.
Joseph J. Boswell, Mobile, for appellant.
J. Edward Thornton, Mobile, for appellees.
ADAMS, Justice.
Georgia Williams, the named beneficiary of a life insurance policy, appeals the judgment granted in favor of Prudential Life Insurance Company of America (Prudential) and its agent Clennon Kasal, in an action by Williams to collect the proceeds of the policy. We affirm.
William L. Appling purchased the life insurance policy in question from Prudential in 1979. Appellant Williams was the designated beneficiary of the policy, which had a face value of $10,000.00. Appling died on April 26, 1981. Prudential refused to pay the policy proceeds to Williams on the basis of lapse in premium payments by Appling.
In September 1981, Williams filed suit against Prudential and Clennon Kasal, the insurance agent for Prudential with whom Appling conducted business. Her complaint *1201 alleged four causes of action. Count 1 alleged breach of contract against Prudential for the $10,000.00 face value of the policy. Count 2 alleged conversion of the policy by Prudential. Count 3 alleged fraud and misrepresentation by both Prudential and Kasal. Count 4 alleged bad faith refusal to pay by Prudential.
The trial court granted a motion to dismiss in favor of Kasal in January 1982. This Court reversed that judgment in Williams v. Kasal, 429 So. 2d 1008 (Ala.1983), holding that William's complaint stated a cause of action against Kasal for fraud and deceit.
The trial court also granted a motion to dismiss in favor of Prudential in January 1982, dismissing the bad faith cause of action, but leaving intact the claims for breach of contract, conversion, and misrepresentation. This action was not appealed at that time.
In August 1983, the trial court granted a motion for partial summary judgment in favor of Prudential on the contract claim, and denied a motion by Williams for summary judgment on the contract claim and on the liability issue of the conversion claim. Williams appealed. This Court affirmed that summary judgment in Williams v. Prudential Insurance Company of America, 447 So. 2d 685 (Ala.1984).
In May 1984, the trial court granted summary judgment in favor of Prudential on the remaining causes of actionCount 2 for conversion and Count 3 for misrepresentation. The court ordered that Prudential pay into the court for the plaintiff the non-forfeiture benefits provided for in the insurance policy, amounting to $191.21, out of which court costs would be deducted. Williams now appeals that summary judgment and the prior dismissal of the bad faith claim.
We first address whether the trial court was correct in granting summary judgment on the conversion cause of action. In reviewing a summary judgment, we must determine whether there exists any genuine issue of material fact, and if not, whether the substantive law was correctly applied to undisputed facts. Watts Construction Co. v. Cullman County, 382 So. 2d 520 (Ala.1980).
The material facts of this case are not in dispute. William Appling paid the premiums due on his life insurance policy directly to Kasal, Prudential's agent. Kasal visited Appling at his place of business every month to collect the premium. The premiums were paid on the date due or within the grace period of each month, except for the premium due on March 16, 1981. The grace period for payment of this premium expired on April 16, 1981, and Appling had not paid Kasal. Appling died on April 26, 1981, without making the payment.
Kasal went to Williams's house and had her fill out a proof of claim form on the policy. Kasal represented to Williams that Prudential would pay certain benefits to her. Kasal claims that the policy had lapsed and the benefits he referred to were the non-forfeiture benefits due under the policy. Williams states that she was told by Kasal that the "policy benefits" would be paid to her if she delivered the insurance policy to Kasal. Prudential subsequently declined to pay the fact amount of the policy, and Williams declined to accept the non-forfeiture benefits tendered to her by the insurance company.
Williams's conversion claim is based on the allegation that Prudential took possession of her physical property, the insurance policy, and refused to return it to her, even though she demanded its return and refused to accept the non-forfeiture benefits offered to her. Williams correctly argues that an insurance policy may be the subject of conversion. This Court reached that conclusion in Hamilton v. Hamilton, 255 Ala. 284, 51 So. 2d 13 (1950). The issue arising in this case, however, is whether an insurance policy which has lapsed can be the subject of conversion. We are of the opinion that it cannot.
In Williams v. Prudential, supra, in which we affirmed the summary judgment granted in favor of Prudential on the contract claim, we held that Williams had not *1202 shown that the insurance policy was in effect, nor had Prudential waived the forfeiture for nonpayment provisions by establishing a custom and practice of accepting late payments. Since there was no showing that the policy was in effect, Prudential could not be accused of breach of contract.
In light of that holding, we address whether Williams's lapsed insurance policy can be the subject of a conversion action. This Court has stated in this regard:
W.E. Herron Motor Co. v. Maynor, 232 Ala. 319, 167 So. 793 (1936). Similarly, an insurance policy which has lapsed should not be the subject of a conversion action.
The rationale for such a holding is that the taking of something with no value could not harm the plaintiff. The general rule is as follows:
18 Am.Jur.2d Conversion § 79 (1965). Since the insurance policy in dispute had lapsed, and since Williams did not show that it was of special value to her, we hold that the trial court was correct in entering summary judgment for Prudential on the conversion count as a matter of law.
Count 3 of Williams's complaint alleges fraud and misrepresentation, in that Kasal, as agent for Prudential, told Williams that the face amount of the policy would be paid to her if she surrendered possession of the policy to Prudential.
Having determined in Williams v. Prudential, supra, that the policy in dispute had lapsed, we hold that Williams could not show that she was damaged by turning the policy over to Prudential. Thus, even if she could prove the misrepresentations alleged, she could not prove damages. The trial court was correct in granting summary judgment in favor of Prudential and Kasal on the fraud count.
Williams argues that Count 4 of her complaint, alleging bad faith refusal to pay, was improperly dismissed by the trial court. Again, since the insurance policy had lapsed, there was no duty on Prudential's part to pay, and thus there could be no bad faith cause of action. The trial court properly dismissed that claim.
Appellant's final argument is that court costs should not have been taxed against her. We find no merit to this argument either.
For the above-stated reasons, the judgment of the Circuit Court of Mobile County is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur. | May 3, 1985 |
aa9cfeea-2eb6-4688-975c-8c42efac580e | Ex Parte Sargent Industries, Inc. | 466 So. 2d 961 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 961 (1985)
Ex parte SARGENT INDUSTRIES, INC., a corporation; Sargent Industries of Delaware, Inc., a corporation; Sargent Industries, Inc., Garwood Division.
(In re: Willie Earl STERLING v. SARGENT INDUSTRIES, INC., et al.)
84-370.
Supreme Court of Alabama.
March 22, 1985.
*962 William A. Scott, Jr. and Amy K. Myers, Birmingham and Eugene F. West of Goldenring and Goldenring, Ventura, Cal., for petitioners.
Steven D. Tipler of Tipler, Roden & Hayes, Birmingham, for respondent.
PER CURIAM.
This is a petition for a writ of mandamus which asks this Court to order the trial court to rescind its order compelling the petitioners to answer certain interrogatories. We deny the writ.
The respondent, a sanitation worker, filed an action seeking damages for injuries he allegedly received when his left hand was caught in a garbage compactor located on the truck from which he was working. His complaint alleged breach of warranties and negligence in the manufacture, design, and maintenance of the compactor.
The respondent propounded a set of ninety-nine interrogatories to the petitioners on July 5, 1983. On November 27, 1984, the trial court, upon motion and after a hearing on the matter, ordered the petitioners to respond more fully to twenty-eight of the ninety-nine interrogatories. The petitioners filed a motion to reconsider on December 11, 1984. The trial court conducted a hearing on the motion to reconsider on December 21, 1984, and refused to alter its order. We issued an order staying all proceedings in the trial court pending the disposition of this writ.
The petition alleges that much of the information sought by the interrogatories relates to garbage compactors manufactured by a corporation that was acquired by one of the petitioners in 1970. Petitioners argue that it would be unduly burdensome to require them to search through the years of records contemplated by the interrogatories, in view of the limited relevance of this information to the case at hand. The plaintiff/respondent, on the other hand, argues that this information is relevant on the issues of notice, knowledge, and feasibility of modification, and, therefore, reasonably calculated to lead to admissible evidence, pursuant to Rule 26(b)(1), A.R.Civ.P.
The Alabama Rules of Civil Procedure vest broad discretion in the trial court to control the discovery process. Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So. 2d 228 (Ala. 1978). This discretion, however, is not unlimited, and mandamus is a proper means to determine if the trial court abused its discretion in compelling or prohibiting discovery. Ex Parte Dorsey Trailers, Inc., 397 So. 2d 98 (Ala.1981). Due to the extraordinary nature of the writ, mandamus will issue only where the relief sought allows no reasonable basis for controversy. Lassiter v. Werneth, 275 Ala. 555, 156 So. 2d 647 (1963).
Attached to the petition filed in this Court is the affidavit of Anne Carley, the assistant corporate secretary of Sargent Industries and Sargent Industries of Delaware, Inc.; that affidavit details the alleged difficulties petitioners would have in complying with the trial court's order. The affidavit is dated January 5, 1985, and was not before the trial court when it entered its order compelling discovery. We cannot consider it, therefore, in our determination of whether the trial court abused its discretion.
The trial court heard the arguments of the parties at two separate hearings on this matter and determined that the *963 information sought by the respondent is properly within the scope of discovery. Upon reviewing this petition and the briefs of the parties, we conclude that the trial court did not abuse its discretion. Moreover, this writ is due to be denied because the petitioners did not seek a protective order from the trial court pursuant to Rule 26(c), A.R.Civ.P., which is the appropriate "procedural device for limiting or prohibiting discovery." Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So. 2d 210 (1975).
WRIT DENIED.
TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur. | March 22, 1985 |
50188970-e716-4b04-9df7-da3a543dfe65 | Ex Parte State Farm Mut. Auto. Ins. Co. | 469 So. 2d 574 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 574 (1985)
Ex parte STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
(In re Durwood L. HOLT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.)
83-1434.
Supreme Court of Alabama.
April 5, 1985.
*575 Edgar M. Elliott and Karon O. Bowdre of Rives & Peterson, Birmingham, for petitioner.
Larry W. Morris of Radney & Morris and John F. Dillon, IV of Dillon, Kelley & Brown, Alexander City, for respondents.
ALMON, Justice.
Petitioner State Farm Mutual Automobile Insurance Company seeks a writ of mandamus directing Judge Kenneth F. Ingram, as Circuit Judge of Clay County, to grant its motion to disqualify plaintiff's counsel in Durwood L. Holt v. State Farm Mutual Auto. Ins. Co., a suit pending before Judge Ingram. Holt is suing for bad faith failure to pay a claim under his uninsured motorist coverage with State Farm. State Farm argues that because Holt's attorneys or their partners have represented State Farm on numerous occasions in actions relating to motor vehicle insurance, there is a substantial relationship between this action and the attorneys' previous representation of State Farm. State Farm further argues that this substantial relationship is grounds for disqualification under the standards set forth in Ex parte Taylor Coal Co., 401 So. 2d 1 (Ala.1981).
Judge Ingram denied the motion after a hearing. State Farm has not attempted to include a transcript of that hearing in support of its petition for mandamus. The only exhibits to its petition by which it seeks to show the alleged substantial relationship are the complaint and an amendment thereto, the motion to disqualify, a brief in support of the motion, and an affidavit in support of the motion, with exhibits. The exhibits to the affidavit are two State Farm publications entitled "Welcome Key Attorneys," dated December 6, 1963, and September 25, 1970, and relating to programs or seminars given by State Farm on those dates.
In Ex parte Taylor Coal Co., supra, this Court adopted the "substantial relationship" test for determining whether an attorney's prior representation of a client is grounds for his disqualification from representing a party against the former client. If the former client wishes to have the attorney disqualified, he need show only that the matters or the causes of action involved in the pending action are substantially related to the matters or causes of action of the prior representation. This test is distinguished in Ex parte Taylor Coal Co. from the confidential relationship test whereby an objecting party would have to show the actual confidences conveyed to the attorney.
This Court in Ex parte Taylor Coal Co. emphasized that in adopting the substantial relationship test it was "adopting the majority view and that of the Fifth Circuit Court of Appeals." 401 So. 2d at 7. Part of that test, as set out in Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020 (5th Cir.1981) (decided prior to the creation of the 11th Circuit), is that "the party seeking disqualification of his former counsel must bear the burden of proving that the present and prior representations are substantially related." 646 F.2d at 1028. The same burden should apply in the courts of this State.
We also agree with the former Fifth Circuit that, in meeting that burden, a party must set out specifics of the prior representation and show how they are substantially related to the pending case.
Id., at 1029. While we do not hold that the specificity required in a Federal district court is necessarily coextensive with that to be required in the trial courts of this State, it is clear that State Farm has not met its burden in this case.
Holt's complaint alleges fraudulent misrepresentations by State Farm as to the extent of its liability under his two policies of uninsured motorist coverage with State Farm. The complaint cites State Farm Mutual Auto. Ins. Co. v. Cahoon, 287 Ala. 462, 252 So. 2d 619 (1971), and other cases, in support of its claims of fraud and suppression of material facts.
The motion to disqualify merely states that Holt's attorneys or their partners "have represented the defendant State Farm in the past; the firm of Radney & Morris represented the defendant at the time this suit was filed"; the Radney firm handled some 31 cases for State Farm between 1970 and 1983; and the "Key Attorney" program to which Mr. Radney was invited in 1970 included a lecture on "excess coverage," allegedly including "stacking of uninsured motorist benefits." The brief in support of the motion added that the cases handled by the attorneys were automobile accident cases and "both Mr. Dillon and Mr. Radney handled all aspects of litigation, including in some cases settlement negotiations, which may have involved disputes over medical pay and uninsured motorist provisions." (Emphasis added.)
State Farm included the affidavit of Carney H. Dobbs, its divisional claims superintendent. He stated that the records maintained by State Farm showed that Mr. Radney had represented State Farm on at least 43 cases between 1970 and 1983. This included two cases each in 1980 and 1983, and one case each in 1981 and 1982. The affidavit stated that Mr. Dillon attended the "Key Attorney" program in 1963 and that Mr. Radney was invited to the program in 1970. Dobbs stated that the program in 1970 included comments "concerning the unsettled situation in the courts around the country relative to `stacking' uninsured motorist coverage." This is not apparent from the face of the invitation, nor is there any indication that Mr. Radney attended the program.
The attorneys against whom State Farm filed its motion represented State Farm only on a sporadic basis, and more in the earlier years of the period set out than in the later years. They were never on retainer to State Farm. State Farm did not allege any written contracts regarding the representation. The designation as "Key Attorneys" was made by State Farm, with no indication that the attorneys asked for or acknowledged it.
These attorneys practice in Tallapoosa County and stated in oral argument that only approximately twenty-two lawyers practice there, a figure which comports with this Court's judicial knowledge of the Bar. Holt filed his complaint in neighboring Clay County, which has even fewer attorneys. This Court in Ex parte Taylor Coal Co. noted the small number of attorneys in the challenged attorney's county in stating, "[W]e must, of necessity, balance the weighty considerations of [the Canons of the Code of Professional Responsibility, infra] against the need of the public to obtain counsel of its choosing." 401 So. 2d at 9.
State Farm's general statements that Mr. Dillon and the firm in which Mr. Morris is now a partner had handled a number of automobile accident cases are far less specific than the assertions found to be insufficient in Duncan v. Merrill Lynch, supra. In that case, Merrill Lynch named ten cases in which Duncan's attorneys had represented it in relation to margin accounts, but the Fifth Circuit found it had not met its burden of proving a substantial relationship.
The only one of these allegations that begins to satisfy the test for disqualification is the indication that the firm of Radney & Morris was representing State Farm at the time Mr. Dillon and Mr. Morris filed the present suit. The copy of the complaint *577 which is included as an exhibit to the petition for writ of mandamus does not bear a filing date; the amendment to the complaint was filed on April 15, 1983. DR 5-105 of the Code of Professional Responsibility, 293 Ala. LXV, prohibits an attorney from representing two clients if doing so "would be likely to involve him in representing differing interests."
Dobbs's affidavit merely states that one case in 1982 and two cases in 1983 "were closed by the Radney firm." This does not show that the firm was actively representing State Farm at the time this suit was filed. State Farm did not file its motion to disqualify until June 20, 1984, and there is no allegation that the firm of Radney & Morris was representing State Farm at that time.
For the foregoing reasons, we find that the trial court was correct in denying State Farm's motion to disqualify Holt's attorneys. We therefore deny State Farm's petition for writ of mandamus.
WRIT DENIED.
All the Justices concur except TORBERT, C.J., who recuses. | April 5, 1985 |
c1fe8bfc-eff3-4ab8-af41-dde83feb429a | Dickinson v. Moore | 468 So. 2d 136 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 136 (1985)
Donald B. DICKINSON and Sylvia Dickinson
v.
J. Malcolm MOORE and Betty D. Moore.
83-772.
Supreme Court of Alabama.
March 29, 1985.
*137 Edward P. Turner, Jr., Gordon K. Howell, and Halron W. Turner of Turner, Onderdonk & Kimbrough, Chatom, for appellants.
S.J. Laurie, Chatom, for appellees.
FAULKNER, Justice.
This appeal is from a fraudulent misrepresentation action arising out of a land sale contract between plaintiffs J. Malcolm and Betty Moore and defendants Donald B. and Sylvia Dickinson. The Moores alleged that the Dickinsons fraudulently misrepresented that they owned a fee simple title to land conveyed to the plaintiffs. The jury found for the Moores and awarded damages of $32,000.00.
The facts giving rise to this action occurred as follows: J. Malcolm Moore is a part owner of a small grocery store in McIntosh, Alabama. Donald B. Dickinson owned the property surrounding the grocery store lot. Moore, needing additional property upon which to construct a warehouse for the store, contacted Dickinson in regard to purchasing a portion of his property. Dickinson initially told Moore that he would sell the land, including improvements, for $70,000.00. The parties negotiated the terms of the sale for several weeks.
Allegedly, on numerous occasions during the negotiations, Moore questioned Dickinson regarding the state of his title in the property. Each time Dickinson assured him that he owned the property, "lock, stock and barrel."
Subsequently the parties agreed upon a $60,000.00 purchase price. Additionally, Dickinson agreed to have a title opinion and survey prepared prior to closing. On October 11, 1980, Moore went to the Dickinsons' home to close the deal. Dickinson had a deed prepared by his attorney, but he did not have the title opinion as promised.
Although the deed was captioned "warranty deed," the granting clause also included the language "all of our right, title and interest," which is language usually used in a quitclaim deed. After reviewing the deed, Moore again questioned Dickinson about the title, and was again assured that there was no problem, and that he would get the title opinion in a day or two. The Moores then accepted the deed and paid the $60,000.00 purchase price to the Dickinsons.
In July 1982 an attorney in the law firm that prepared the deed notified Moore that Dickinson did not own fee simple title to the propertythere being an outstanding interest to his son Donald L. Dickinson. After repeated attempts to get Dickinson to rectify the problem, the Moores instituted suit against the Dickinsons. The complaint alleged four counts: count one, for breach of warranty; count two for breach of covenant of seisin; count three, for fraudulent misrepresentation of the nature of the estate; and count four, for fraudulent misrepresentation that the property was free from encumbrances.
Count four was dismissed by stipulation, and a directed verdict was granted in favor of the Dickinsons on counts one and two. A directed verdict was also granted in favor of Sylvia Dickinson as to count three.
The case went to the jury solely on the fraudulent misrepresentation count against defendant Donald B. Dickinson. The jury returned a verdict in favor of the Moores in the amount of $32,000.00.
We initially note that in order to support a judgment for fraudulent misrepresentation the following elements must be satisfied: (1) a false representation; (2) concerning a material existing fact; (3) which is relied upon by the plaintiff; and, (4) damage to the plaintiff as a proximate *138 result of the false representation. Village Toyota Co. v. Stewart, 433 So. 2d 1150, 1153 (Ala.1983); Alabama Code 1975, § 6-5-101. In addition, this court has often held that in order to recover for fraud, the plaintiff must show that his reliance upon the misrepresentation was reasonable under the circumstances. Mahoney v. Forsman, 437 So. 2d 1030, 1033 (Ala.1983).
If a party upon exercising reasonable care would have discovered the facts or have had reason to doubt the truth of the representation, the plaintiff should not recover. Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757, 759 (Ala. 1983); Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413 (Ala.1980). If a plaintiff has knowledge or notice of certain facts which would excite inquiry or surrounding circumstances which would have aroused suspicion in the mind of a reasonable person, a plaintiff cannot be said to have relied upon a misrepresentation and cannot recover. Village Toyota, 433 So. 2d at 1154.
In this case, however, these general propositions will not operate to bar the Moores' recovery. The evidence presented was sufficient to support a finding that the Moores reasonably relied upon Dickinson's representation that he was conveying a fee simple title to the property.
In Shahan v. Brown, 167 Ala. 534, 52 So. 737 (1910), it was held that one acquiring real property is under no affirmative duty to examine the public records in order to ascertain the true state of the title:
Shahan, supra, 167 Ala. at 539, 52 So. 737.
Moreover, we cannot agree with defendant's contention that the Moores' acceptance of what Dickinson calls a quitclaim deed precludes reliance upon Dickinson's representations concerning title to the property. Although the deed in question included the language "all of our right, title and interest," evidencing a quitclaim deed, it also was captioned "Warranty Deed." We need not determine here whether the deed was a warranty deed or a quitclaim deed because in either case the jury would have been warranted in finding a fraudulent misrepresentation.
In this case, while we agree that a purchaser should not "close his eyes where ordinary diligence requires him to see," Torres, supra, 438 So. 2d 757 (citing Munroe v. Pritchett, 16 Ala. 785, 789 (1849)), we nevertheless cannot allow a seller of land to induce the purchase by misrepresenting facts he knew to be false. Accordingly, we affirm.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
50df6877-7de7-4d83-8627-0f2b4ff7a9e2 | Ex Parte Holladay | 466 So. 2d 956 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 956 (1985)
Ex parte Amon F. HOLLADAY, Administrator of the Estate of Calvin Jerome Holladay, Deceased.
(In re: The ESTATE Of Calvin Jerome HOLLADAY, Deceased).
Ex parte Teresa Holladay FARMER, as Co-Administrator of the Estate of Calvin Jerome Holladay
(In re: The ESTATE OF Calvin Jerome HOLLADAY, Deceased).
84-11, 84-170.
Supreme Court of Alabama.
March 22, 1985.
*957 Leon Garmon, Gadsden, for petitioner Amon F. Holladay (84-11).
Myron K. Allenstein, Gadsden, for petitioner Teresa Holladay Farmer (84-170).
Myron K. Allenstein, Gadsden, for respondent Farmer (84-11).
MADDOX, Justice.
This case involves the administration of an estate.
The sole issue is whether a widow, who at the time of her husband's death was disqualified from being appointed as administratrix of his estate because of her age, can be appointed a co-administrator after her disability of non-age is removed. We hold that she cannot, and we grant the petition for mandamus filed by the administrator initially appointed.
On September 4, 1982, Calvin Jerome Holladay was shot to death by a Gadsden police officer. He died intestate, survived by his wife, Teresa Holladay Farmer,[1] and a minor child. At the time of her husband's death, Teresa was only 16 years of age. Teresa and her father retained the services of an attorney for the purpose of having Teresa named as administratrix of Calvin Jerome's estate, so that she could pursue a wrongful death action against the city. The attorney informed Teresa that, because she was a minor, she could not serve as administratrix alone, but would have to serve as co-administrator with her deceased husband's father, Amon F. Holladay. Teresa agreed to this arrangement; however, she was, in fact, never appointed as co-administrator. Instead, letters of administration were issued by the Probate Court of Etowah County on September 10, 1982, naming Amon F. Holladay as sole administrator of the estate. Amon F. Holladay subsequently filed a wrongful death action on behalf of his son's estate and entered into two years of settlement negotiations with the city, but no settlement was ever reached.
On October 16, 1983, Teresa reached eighteen years of age and on February 4, 1984, she remarried. Sometime thereafter, in April or May of 1984, Teresa discovered that she had not been named as co-administrator of Calvin Jerome's estate and that her former father-in-law was actually the sole administrator. As a result, Teresa filed a petition in the Probate Court of Etowah County seeking to have Amon F. *958 Holladay removed as administrator and to have herself appointed to succeed him. The petition alleged that Teresa had reached the age of eighteen and thus was qualified to serve as administratrix.
A hearing was held on the petition before the probate court, during which Teresa argued that she was no longer disqualified from serving as administratrix because of non-age, and was, therefore, entitled to be appointed to administer the estate. After hearing all evidence, including testimony that the estate was devoid of all assets except for the anticipated recovery under the pending wrongful death suit, that Teresa had no complaints with the way Amon F. Holladay had been administering the estate, and that Teresa did not contend that Amon F. Holladay should be removed as administrator for any of the reasons listed in Code 1975, § 43-2-290, the probate court entered an order specifically finding no grounds for removal of Amon F. Holladay. Nevertheless, the court ordered that Teresa and Amon F. Holladay serve as co-administrators. Thereafter, the probate court issued supplemental letters of administration naming Teresa co-administrator, apparently in reliance upon the provisions of Code 1975, § 43-2-24. Both Teresa and Amon F. Holladay filed petitions for writ of mandamus with this Court, seeking to be named sole administrator of the estate. These petitions were consolidated here.
Insofar as we are aware, this is a case of first impression in this state. Code 1975, §§ 43-2-42, 43-2-22, 30-4-15, and 43-2-24 provide, in pertinent part:
Neither party disputes the fact that these statutes operated to prohibit Teresa from personally serving as administratrix until her eighteenth birthday. Teresa, however, argues in her petition for mandamus that, because § 43-2-42 gives a widow first priority to administer her husband's estate, she should have been appointed to serve as administratrix through her next *959 friend or guardian. In the alternative, she argues that, even if she could not have served as administratrix through her next friend, as soon as she reached eighteen she was entitled to have Amon F. Holladay removed and to have herself appointed as sole administratrix.
In his petition, Amon F. Holladay argues that at the time of his son's death, he was the first person listed in § 43-2-42 qualified to serve as administrator, that, as a result, he was properly appointed as administrator, and that he can only be removed as administrator for cause, pursuant to § 43-2-290. That section provides, in pertinent part:
Amon F. Holladay contends that since none of these causes for removal were proved or even alleged, he cannot be removed simply to allow his son's widow to take his place. He further contends that the probate court had no authority to appoint Teresa as co-administrator.
Teresa answers his petition by asserting that even if she is not entitled to be appointed sole administratrix, she is entitled to remain as co-administrator. In support of this assertion, she argues that probate judges have broad discretionary powers to appoint administrators, including the power to appoint joint administrators pursuant to Code 1975, § 43-2-44. She further argues that by enacting Code 1975, § 43-2-24, which provides for the issuance of supplemental letters testamentary in situations where the disqualification of non-age is removed from a minor who was named in a will as executor of an estate, the legislature intended to provide for the issuance of supplemental letters of administration in situations like the present one.
Although, as Teresa points out, probate judges are vested with wide discretion in regard to appointment of administrators, that discretion is not unlimited. While § 43-2-44 does provide for the appointment of co-administrators, that provision only applies where several persons of the same degree of kindred to the intestate are equally entitled to share in his estate and, thus, equally entitled to serve as administrator. Such is not the case here.
In fact, neither § 43-2-44 nor any other statute provides for the present situation. We are unaware of any authority in Alabama under which the probate court could have named Teresa as administratrix through her guardian or next friend, prior to her eighteenth birthday. The legislature could have so provided in § 43-2-42, but it did not. In any event, the issue before us is not whether the probate court should have initially appointed Teresa; because she has now reached eighteen and is qualified to serve. The real issue is whether, after appointing Amon F. Holladay as administrator, the probate court had the authority to remove him and appoint Teresa in his place or to appoint Teresa to serve as co-administrator with him. We hold the court had no such authority.
Alabama law provides for the removal of an administrator only upon proof of one or more of those grounds for removal *960 stated in § 43-2-290. Binford v. Penny, 255 Ala. 20, 49 So. 2d 665 (1950). Therefore, once he was appointed, Amon F. Holladay could have been removed as administrator only if it were proven that he was an imbecile, had failed to keep inventories or accounts of estate property, had wasted, embezzled or maladministered the estate, used estate funds for his own benefit, or been sentenced to prison. Not only were none of these grounds for removal proved, but, by Teresa Farmer's own admission, they were not even alleged. Consequently, the probate court was correct in holding that there was no basis for Amon F. Holladay's removal.
In order for mandamus to lie, the petitioner must prove that he or she has a clear legal right to the order sought, that the respondent has an imperative duty to perform but has refused to do so, that there is no other adequate remedy, and that the jurisdiction of the court has been properly invoked. Martin v. Loeb & Co., 349 So. 2d 9 (Ala.1977). Having failed to prove any of the grounds mentioned in § 43-2-290, Teresa Farmer has failed to prove that she is clearly and legally entitled to have Amon F. Holladay removed as administrator. Therefore, she is not entitled to have the writ of mandamus issue. On the other hand, Amon F. Holladay is entitled to the writ of mandamus he seeks.
As previously stated, other than as provided by § 43-2-44, there is no authority by which a probate court can appoint co-administrators. Similarly, there is no authority by which the court can issue supplemental letters of administration. The only way this Court could hold otherwise would be to adopt Teresa's contention that § 43-2-24 was intended to provide for supplemental letters of administration as well as letters testamentary. We refuse to construe § 43-2-24 as she requests. Section 43-2-24 expressly provides for the issuance of supplemental letters testamentary "[i]f the disability of a person under age or of a married woman named as executor in a will is removed." (Emphasis added.)
We recognize that the disqualification statute (§ 43-2-22) uses only the word "executor," but that this Court, as far back as the case of Williams v. McConico, 27 Ala. 572 (1855), has applied this disqualification statute to administrators also. Crommelin v. Raoull, 169 Ala. 413, 53 So. 745 (1910).[3] To construe § 43-2-24 as the widow suggests would require us to hold that the words "executor named in a will" also apply to an administrator.
It is well-settled that, although there are occasions when a court must correct or ignore obvious inadvertences in order to give a law the effect which was plainly intended by the legislature, the judiciary cannot and should not, in a republican form of government, usurp the legislative function. Hamilton v. Smith, 264 Ala. 199, 86 So. 2d 283 (1956). Where, as here, this Court is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained. Shelton v. Wright, 439 So. 2d 55 (Ala.1983). Where a statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent of the legislature must be given effect. Dumas Brothers Manufacturing Co. v. Southern Guaranty Ins. Co., 431 So. 2d 534 (Ala.1983). We deem this to be such a case. By expressly providing in § 43-2-24 for supplemental letters only where the would-be recipient of these letters is "named as executor in a will" (emphasis added), the legislature clearly expressed its intent that this section should only apply to testate estates and only provide for issuance of supplemental letters testamentary.
Where a statute enumerates certain things on which it is to operate (such as letters testamentary), the statute must be construed as excluding from its effect *961 all things not expressly mentioned (such as letters of administration). Cf. Geohagan v. General Motors Corp., 291 Ala. 167, 279 So. 2d 436 (1973). Since supplemental letters of administration are not mentioned in § 43-2-24, and are not provided for in any other statute, we must presume that the legislature never intended to allow for the issuance of such letters. Therefore, the probate court was in error in issuing supplemental letters of administration to Teresa Holladay Farmer.
It is the opinion of this Court that Amon F. Holladay is entitled to serve as sole administrator of the estate of Calvin Jerome Holladay. Having shown that the probate court had no authority to appoint a co-administrator, and having no other remedy at law, Amon F. Holladay is clearly entitled to the issuance of a writ of mandamus ordering the probate court of Etowah County to vacate its previous order naming Teresa Holladay Farmer as co-administrator. Concurrently, Teresa Holladay Farmer's petition for writ of mandamus is to be denied.
84-11WRIT GRANTED.
84-170WRIT DENIED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
[1] Since Calvin Jerome's death, Teresa Holladay has remarried.
[2] Section 43-2-22 only mentions "executor" in the body of the statute, but it has been held to apply to administrators. Burnett v. Garrison, 261 Ala. 622, 75 So. 2d 144 (1954).
[3] We do not understand why the 1975 Code Committee did not include the word "administrator" in § 43-2-22. In other sections in the same chapter, both "executor" and "administrator" are included. See Code 1975, §§ 43-2-60, 43-2-80, 43-2-83, as examples. | March 22, 1985 |
3b590746-702f-45c4-899b-4186da7c7df5 | Mayo v. Gortney | 468 So. 2d 147 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 147 (1985)
Francis Louise MAYO
v.
Francis Juanita Mayo GORTNEY.
83-987.
Supreme Court of Alabama.
March 29, 1985.
*148 John E. Rochester, Ashland, for appellant.
Wilford J. Lane, Anniston, for appellee.
TORBERT, Chief Justice.
This is an appeal from a judgment entered by the Clay County Circuit Court imposing a trust in favor of the appellee, Francis Juanita Mayo Gortney (Juanita), on certain property, title to which is held in the name of the appellant, Francis Louise Mayo (Louise).
Juanita is the natural daughter of Louise and James Mayo. Louise and James were married in 1940, divorced in 1960, and remarried in 1980. James died January 5, 1981. At the time of his death, James owned two life insurance policies with a combined coverage of $25,000. Juanita was the sole named beneficiary on both policies. In anticipation of receipt of the insurance proceeds, a joint checking account was opened in the names of Louise and/or Juanita. Afterwards, Juanita received two checks, one for $20,000 and the other for $5,000, which she deposited in the joint account. Shortly thereafter, Louise used funds from the joint account to purchase approximately 30 acres of land. She also used funds from the account to pay the balance owed on a mobile home and to have a well dug.
Subsequent to the purchase of the land, Louise informed Juanita that she had executed a new will and that Juanita would not *149 receive anything after her death. Louise also indicated that she intended to sell the land. Juanita then filed this lawsuit, seeking the imposition of a resulting trust, or in the alternative a constructive trust, on the property and seeking any other relief that might be proper. The trial court, sitting without a jury, heard the evidence and imposed a trust on the property, the mobile home, and the well. Louise appeals.
Generally, a resulting trust will be presumed in favor of one who provides purchase money for land when title is taken in the name of another. Strother v. Strother, 436 So. 2d 847 (Ala.1983); Hooks v. Hooks, 258 Ala. 427, 63 So. 2d 348 (1953). This rule does not require that the person furnishing the purchase money actually pay the money to the grantor; rather, it is sufficient if the payor furnishes the grantee the money, at or before the time of the conveyance, and the grantee then pays the purchase price. Adams v. Griffin, 253 Ala. 371, 45 So. 2d 22 (1950); Young v. Greer, 250 Ala. 641, 35 So. 2d 619 (1948). However, a resulting trust will not be presumed when title is taken in the name of another without the consent of the payor. Haavik v. Farnell, 264 Ala. 326, 87 So. 2d 629 (1956).
This Court has held that the presumption of a resulting trust is rebutted where a husband or parent pays the purchase price for land and title is taken in the name of the wife or child. In such instances, the stronger, counter presumption of an intention to make a gift to the wife or child rebuts the presumption of trust.[1]Sykes v. Sykes, 262 Ala. 277, 78 So. 2d 273 (1955). The presumption of trust is not rebutted however, where as here, the child provides the purchase money and the parent takes title to the property. 76 Am.Jur.2d Trusts § 208, p. 438-39 (1975); 5 A. Scott, The Law of Trusts § 442, p. 3333, 3337-39 (3d ed. 1967); Restatement (Second) of Trusts § 442, p. 402, 403 (1959); 89 C.J.S. Trusts § 129, p. 991-92 (1955). The reason for the distinction is found in G. Bogert, The Law of Trusts and Trustees § 460, p. 720, 739-41 (rev. 2d ed. 1977):
It is undisputed that the proceeds from the life insurance policies, used by Louise to purchase the property, were deposited in the joint account prior to the time of the conveyance. Furthermore, there is no question that the purchase money was furnished by Juanita. Juanita was the sole named beneficiary on both policies, and Louise, through her own testimony, admitted that she knew the money belonged to Juanita:
Thus, the only question that remains is whether Louise and Juanita's consent to use the money in the joint account to purchase the property. Juanita testified that prior to receipt of the insurance proceeds, she and her mother reached an agreement: Juanita would deposit the proceeds in the joint account and her mother would then use the money to purchase the property, with the understanding that Juanita would receive the property upon her mother's death. Louise denied that she ever told her daughter to deposit the proceeds in the joint account or that she made any agreement concerning future disposition of the property. However, despite her denials, on cross examination Louise testified to the following:
The testimony at trial was presented ore tenus, and where evidence has been presented orally a presumption of correctness attends the trial court's conclusions on issues of fact, which will not be disturbed on appeal unless they are palpably wrong or clearly erroneous. Ross v. Luton, 456 So. 2d 249 (Ala.1984); First Alabama Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415 (Ala.1982). Clearly, there was sufficient evidence to support the trial court's finding that the insurance proceeds were deposited in the joint account so that Louise could use the funds to purchase the property and that there was an understanding that after Louise died Juanita would receive the property. Thereafter, in the absence of evidence to the contrary, a presumption arose, by operation of law, in favor of Juanita as the person providing the consideration and that presumption was sufficient to invoke the equitable device of a resulting trust. See, Cone v. Cone, 331 So. 2d 656 (Ala.1976).
*151 The record fails to show any evidence that would rebut the presumption of a resulting trust; therefore, the judgment of the trial court is affirmed. Because the evidence supports the imposition of a resulting trust, we decline to address the issue of whether the evidence would support the imposition of a constructive trust.
AFFIRMED.
FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.
[1] The rule presuming a trust when the wife is payor and the husband is grantee, but presuming a gift when the husband is payor and the wife is grantee, has come under fire as anachronistic and unfair, see generally Comment, Husband's Acquisition of Title with Funds Furnished by Wife: Resulting Trust or Presumption of Gift, 74 Dick.L.Rev. 455 (1970); however, those arguments do not apply to the parent-child relationship, which is at issue here. | March 29, 1985 |
0a96f2fc-4c1a-466b-b7cc-3afa3d8c6ff1 | Nationwide Mut. Ins. Co. v. Clay | 469 So. 2d 533 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 533 (1985)
NATIONWIDE MUTUAL INSURANCE CO.
v.
Henry Gerrard CLAY.
82-536, 82-917.
Supreme Court of Alabama.
February 8, 1985.
As Modified on Denial of Rehearing April 5, 1985.
*534 Bert S. Nettles and James H. McDonald, Jr., Mobile, for appellant.
Fred W. Killion, Jr. and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.
Edgar M. Elliott, III and Karon O. Bowdre of Rives & Peterson, Birmingham, James T. Upchurch III of Rushton, Stakely, Johnston & Garrett, Montgomery, amicus curiae, for State Farm Mut. Auto. Ins. Co.
Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae The Alabama Trial Lawyers Assn.
ALMON, Justice.
These consolidated appeals involve a claim for bad faith failure to pay a claim on a disability insurance policy. At trial, the court granted a directed verdict for the plaintiff insured in the amount of $46,165.00 on the contract count. The jury returned a verdict for the plaintiff in the amount of $1,250,000.00 on the bad faith count. The trial court denied the defendant insurance company's post-trial motions, and the company appeals.
Because the issues turn on fact questions, we include the following detailed statement of facts. The facts are supported largely by the numerous exhibits, including memoranda of conversations from Nationwide's file on Clay's claim. Clay also kept notes of his telephone conversations and while testifying used them to refresh his memory.
Henry Gerrard Clay applied for a policy of disability insurance with Nationwide Mutual Insurance Company on December 8, 1976. Clay was a practicing attorney in Mobile, and he applied for this policy at the instigation of his friend Bill McDowell, who had previously sold him a hospitalization insurance policy with Nationwide. McDowell filled out the application as Clay gave him the information required.
Two answers on the application later gave rise to charges by Nationwide of misrepresentation: To the question, "What is your average earned monthly income?" *535 Clay answered, "$1,800." To the question, "Will the insurance applied for replace existing Disability Income Insurance ... owned by applicant?" Clay answered, "Yes," and stated the company and amount as "Paul Revere $400/month."
Clay went to the office of Dr. Herbert Allen on December 14, 1976, for a physical examination. Clay testified that he did not remember seeing the doctor, but thought he had only seen a nurse, who took a blood sample and some measurements. The report indicates Clay was having no problems with his eyes. Clay's disability giving rise to the instant lawsuit was cataracts, which were diagnosed on August 29, 1977.
Nationwide issued the disability income policy effective January 19, 1977, but because McDowell told the underwriting department that Clay should be rated a Class AAA risk instead of a Class A risk, the policy was not sent to Clay until this change was made and did not reach him until March.
In the meantime, Clay had called Paul Revere Insurance Company to cancel the disability policy he had with that company. A Paul Revere agent, Leon Adams, called on Clay to ask why he had cancelled his policy. Clay told Adams that he intended to buy a disability policy with Nationwide. Adams compared the Paul Revere contract with the Nationwide contract and offered Clay increased coverage with Paul Revere. As Adams testified, "I talked him into getting a lot more coverage." On February 4, 1977, Clay applied for disability insurance with Paul Revere in the amount of $2200 per month and a policy was issued on February 26. When he received the Nationwide policy in March, he tried to cancel it, but could not reach McDowell, who had been promoted. Clay allowed both policies to remain in effect, with premiums being paid on a monthly bank draft.
On April 29, 1977, Clay visited Dr. Charles Ivey Williamson for a checkup, complaining that he had had fever recently and was feeling tired and run down. Dr. Williamson conducted lab tests, which showed a possibility of a viral infection affecting Clay's liver, but nothing seriously abnormal. Dr. Williamson recommended a diet and rest. His records indicated that Clay did not complain to him at this time of eye problems.
Clay continued to run a fever and feel sick through the spring and summer. On August 29, he went to Dr. Edwin A. Ross, his optometrist, with whom he had regular checkups. Dr. Ross diagnosed cataracts, which had caused his vision to drop from 20/20 in each eye to 20/40 in the left eye and 20/50 in the right. Dr. Ross testified that Clay's cataracts were in such a position that they caused a severe loss of vision and could not be corrected with glasses. He also testified that the cataracts developed in a short period of time, unlike in older people[1] where they cause a gradual loss of vision. Dr. Ross recommended that Clay see an ophthalmologist. On September 7, 1977, Clay saw Dr. James M. Harrison, who confirmed that Clay had cataracts.
Clay closed his law office, referred his clients with active files to other attorneys, and stored his books, office equipment, and other items in a warehouse. On September 26, 1977, Clay filled out a disability claim to file with Nationwide. He stated that the symptoms first appeared "July, 1977 to August, 1977." Clay left blank the spaces on the form for "Monthly income" and "any other Companies with whom you may carry Accident & Sickness insurance." Dr. Harrison completed the attending physician's portion of the form, indicating that Clay was totally disabled from September 7, 1977, "until recovered from surgery," and that the symptoms appeared "gradually."
Nationwide received the claim form at its group claims office in Atlanta on October 3. That office forwarded the form to Nationwide's office in Columbus, Ohio, where it arrived on October 13, 1977. The claim was assigned to Jim Otey, a medical claims examiner, on October 20. On November *536 10, Clay called to inquire about the status of his claim and requested a reply by telephone. On November 11, he called again. The message in Nationwide's file on Clay's claim includes the notation, "Please Call Today." Nationwide did not return either call.
Clay telephoned twice on November 14, and talked to Otey. Clay testified that when he first called, Otey refused to find his file, saying, in Clay's words, "if he started doing it for me he would have to talk to anybody that had a claim anytime they wanted to talk to him." Otey denied that he ever refused to look for Clay's file. Clay testified that during this first conversation Otey told him he had seen the file, whereupon Clay asked if Nationwide was going to pay. Clay testified that Otey answered,
Clay called Otey again on the afternoon of November 14, at which time Clay mentioned to Otey that Dr. Ross had first diagnosed his cataracts. Otey responded that Dr. Ross, instead of Dr. Harrison, would have to file the attending physician's report. Someone at Nationwide had initially told Clay that he should have Dr. Harrison fill out the claim form because Dr. Harrison was a medical doctor and Dr. Ross was not. Otey told Clay that the doctor who originally discovered the cataracts would have to send a statement.
Otey examined the file in detail on November 15. He was concerned whether Clay's cataracts existed prior to the policy coverage, although he had seen the report from Dr. Allen showing Clay had no eye problems on December 14, 1976. Otey had Equifax Services arrange for another doctor to examine Clay. Dr. Dan Rencher, an ophthalmologist, examined Clay on November 21, and sent a report to Equifax on November 23. Dr. Ross also sent a form to Nationwide on November 23 giving his diagnosis of cataracts.
Dr. Ross's report included the following:
Neither of these reports clarified whether Clay's cataracts developed prior to the effective date of the coverage. Nationwide received Dr. Ross's report on December 1, 1977, but did not receive Dr. Rencher's report from Equifax until December 16. Otey denied to Clay that Dr. Rencher's report had been received, and later Equifax obtained another report, which stated that in Dr. Rencher's opinion Clay's "visual acuity constitutes a disability in his work as an attorney at law." Nationwide received this copy on January 4, 1978.
Other activity concerning Clay's file continued while these doctors' reports were proceeding. Bill McDowell, who had transferred to Nationwide's office in Birmingham since selling Clay his policy, testified that he saw Clay around Thanksgiving and that at that time Clay's vision was poor and he was keeping the house dark. McDowell talked to Otey on the telephone on November 30, 1977, and said Clay thought Nationwide was "trying to pull something." Otey denied at trial that McDowell had relayed this message, but his notes on the conversation *537 mention it, including the language just quoted. The notes also state that Otey "assured" (Otey's emphasis) McDowell "we had not even though in that way. Just routine handling as all cataracts were contestable. Exam was 11/21 and we should be getting report soon." Otey's notes conclude with an indication that McDowell responded "OKcarry on."
Clay talked to McDowell on December 2. He testified that McDowell said Otey would pay only when Clay set a date for an operation. Clay then telephoned Otey, who denied that he was waiting for an operation date and said that he was waiting for the report from Dr. Rencher. Clay said he would call Dr. Rencher to help speed up the report.
Clay telephoned McDowell again on December 5, at which time, as he testified, McDowell told him Otey though he was working and concealing income and had "made his own disability." When Clay called Otey to ask what he meant, Otey would not discuss it. Clay asked to talk to Otey's superior, but Otey said there was no one else he could talk to except in the legal department.
Clay talked to Otey and McDowell several more times, including once on December 21, when Otey stated that he was still waiting for Dr. Rencher's report, but would not go get the file. As noted above, Nationwide stamped Dr. Rencher's report "received" on December 16. Otey testified that Equifax, in forwarding the report, had not included the claim number, so placing it in the proper file took longer. Clay told Otey that Nationwide had selected Dr. Rencher, Clay had kept his appointment, Dr. Rencher had sent the report a month earlier, and Nationwide was making no effort to investigate.
Clay also complained that Nationwide was still deducting premiums from his checking account even though the policy had a waiver of premiums provision. Otey responded that the premiums would have to continue until he was satisfied of total disability and that company policy was that any premiums that should have been waived would be refunded later.
During this December 21 conversation, Clay continued to request that Otey get the file. Otey suggested that if Clay could give him the claim number, he might be able to retrieve the file. Clay sorted through his papers and, using a magnifying glass, read the claim number to Otey. Clay testified that Otey responded, "well, that proves you can read and we don't owe you any disability," and accused him of concealing income.
Otey also asked Clay if he had any other insurance. Clay's testimony about this exchange includes the following:
On December 30, Clay called Otey, who said the claim had been turned over to the legal department. Around this time, Otey *538 took the file to John Harker, claims attorney for Nationwide. On January 13, 1978, Harker and Otey requested Nationwide's in-house doctor to review Clay's doctors' reportsthe file now included Dr. Harrison's report, Dr. Ross's report, and the two reports from Dr. Rencherand answer the question, "Noting the degree of sight he has in each eye, would an individual of this occupation be totally disabled?" The doctor returned the form on the same day with the notation, "Not completely and totally unable to perform his usual and customary occupation." Otey mentioned to Harker the probability of other insurance being involved. He testified that taking the claim to Harker effectively terminated his active involvement in handling the file.
On January 11, 1978, O.B. Carr, an insurance investigator with the Alabama Department of Insurance, sent a letter to Nationwide, which reads: "Please advise this department relative to disposition of referenced claim. Mr. Clay alleges to have been continuously totally disabled since September 7, 1977." Nationwide received this letter on January 16.
Also on January 16, Harker wrote Clay stating that Nationwide would not pay the claim. Harker testified that he disagreed with the in-house doctor's conclusion and believed Clay was totally disabled from practicing law. He based the denial of coverage on his conclusion that Clay's cataracts pre-existed the effective date of coverage. Harker's letter stated that Dr. Ross's report "indicates that although he did not treat you until August 29, 1977, symptoms of your condition began prior to 1977." (See the portion of Dr. Ross's report duplicated above.) The letter concluded with a statement that Nationwide would be "more than happy to review" any additional information from Clay and reconsider the claim.
Clay telephoned Harker on January 11, 17, and 18, but was told Harker was not in. He reached Harker on the morning of January 19th before receiving his mail. Harker told him of the letter tentatively denying coverage due to pre-existence of cataract symptoms. After Clay received the letter in the mail later that day, he called Harker back and accused him of intentionally misreading Dr. Ross's report. Harker told Clay he would immediately send a payment for one month's benefits and approve payment on the claim as soon as Dr. Ross confirmed that Clay did not have cataracts prior to 1977. Clay testified that he did not receive this first check until February 13.
In his notes on the conversation, Harker included a note to have Equifax inquire whether Clay had any other policies. In conducting an investigation, Equifax learned that Clay had not filed income tax returns for 1975, 1976, or 1977. Nationwide also learned that Clay had a $2200 Paul Revere policy that was a "make over" of the policy mentioned on Clay's application with Nationwide. Clay testified that he talked to Harker on January 31, 1978, and Harker said that if the Paul Revere policy was issued after the Nationwide policy, it wouldn't affect Clay's coverage with Nationwide, but that "they [Nationwide] would pay full coverage." Harker later received a letter from Paul Revere stating that their policy was a "new policy" issued in February 1977 as a make-over of his 1966 policy. When he talked to Clay on February 20, he said, according to Clay, that the Nationwide policy had been issued first. Based on this information, Clay agreed with Paul Revere to reduce his coverage from $2200 per month to $1250 per month with a one-year additional benefit of $150 per month.
During this period, the question of the onset of Clay's disability was settled to Harker's satisfaction. He did not talk to Dr. Ross the day after the January 19 conversation with Clay, but wrote a letter to Dr. Ross on February 7 asking for the date the cataracts appeared. Dr. Ross replied that there had been nothing abnormal when he had examined Clay on November 3, 1976, and no sign of "any significant impairment of visual acuityuntil the exam of August 29, 1977." Harker had instructed Otey to request "continuation of disability" statements from Clay and Dr. *539 Ross and include these forms with the check authorized on January 19, which Clay received on February 13. When Harker received the letter from Dr. Ross on February 23, he sent it to Otey with instructions to pay Clay's sickness disability income. Otey noticed that the "continuation of disability" forms were not in the file, initialed Dr. Ross's letter with a notation "Forms out," and held up the benefits.
On February 28, Nationwide received another letter from O.B. Carr of the Alabama Department of Insurance, referring to the unanswered January 11 letter and requesting Nationwide to advise the department as to the present status of Clay's claim. Harker responded on March 7, stating that he was unable to determine if Nationwide had received the first letter. He recited the history of Clay's application, claim, and the treatment thereof. The letter concluded, "At this time, we are awaiting only return of claim forms from Mr. Clay indicating disability and dates of treatment through the present. Immediately upon receipt of that information, we will be in a position to bring Mr. Clay's disability payments up to date."
When Clay received a copy of this letter on March 9, he called Harker and said there was a lot in the letter that was not true, particularly the statement that Nationwide was merely awaiting forms from Clay. Clay testified that the forms were not inclosed with the check. He said he complained to Harker, "[I]t's been one series of promises after another and you've never said anything about waiting on anything from me.... [E]very time that you say you'll pay as soon as you get a medical report you don't pay." Clay threatened to have the insurance department investigate or to sue, whereupon Harker said, according to Clay, "[I]f you file suit, you won't get a nickel for at least ten years."
Harker offered to send another one-month "good faith" payment of $1300, and Clay responded, "[A]bsolutely not ... either pay it up or deny the claim." Harker agreed to pay the benefits current to February 1, and Clay agreed to return a current medical report if Harker sent him a form along with the payment. Harker's notes on this conversation read:
An Equifax agent asked Clay on March 15 to release his income tax returns, which Clay refused to do. The agent called Otey to tell him this, and that Clay apparently had not filed a return for 1976. Also on March 15, Dr. Ross completed the continuation of disability forms and sent them to Nationwide. They were received on March 21.
Harker testified that if Clay had not filed income tax returns, "there was a strong possibility in my mind that he had had no income.... If his income was less, it would have affected the policy as well based on the other insurance that he had."
*540 Clay testified that when he received this letter he called Harker and told him:
His testimony continued:
On April 5, O.B. Carr again wrote Harker, stating that "Obviously, Mr. Clay is concerned over your change of plan." Harker wrote back, asking Carr to help Nationwide to persuade Clay to submit his income tax returns. Clay filed this suit on July 14, 1978.
Clay's original complaint, filed on July 14, 1978, sought damages in the amount of $100,000 for breach of contract. Nationwide answered with a general denial of the allegations of breach, stating that "at this time it has still not completed its investigation." Nationwide included with its answer a request for production of Clay's federal and state income tax returns and his hospital, doctor, and medical reports. When Clay did not respond, Nationwide filed a motion for the court to compel Clay to produce the documents. The court granted this motion on February 8, 1979, giving Clay 20 days to comply. When he did not, Nationwide filed on March 6 a motion styled "Motion for Default Judgment," which we take to be a motion to dismiss pursuant to Rule 37(b)(2)(C), A.R.Civ.P.
In response to this motion, Clay stated that he had not filed income tax returns for the years in question. He gave a deposition concerning these matters on May 30, 1979. The case was continued several times, and in March 1980, Clay's original counsel withdrew and his present counsel entered an appearance. The parties conducted further discovery and the court granted continuances until, on April 29, 1981, Clay filed his first amended complaint.
The amended complaint included three counts: one for bad faith "in failing and refusing to pay the plaintiff the benefits due under such policy and in continuing to require and accepting premiums for said policy;" a second count for fraud; and a third count for breach of contract. The first two counts each sought $1,500,000 in damages, and the third sought $150,000. This amendment came shortly after this Court recognized a cause of action against insurers for bad faith failure to pay a claim in Chavers v. National Security Fire & Cas. Co., 405 So. 2d 1 (Ala.1981).
Nationwide sought discovery from Clay of documentation of Clay's income for 1970 through 1980. On May 8, 1981, Nationwide filed a motion to compel Clay to respond to these discovery requests. On January 28, 1982, Clay filed a motion to limit discovery. The court on February 5 granted the motion "to the extent that the Plaintiff shall at this time produce to the Defendant the amount of deposits to his attorney accounts during the period in question." Clay supplied a listing of deposits for the years 1969 through 1976. Approximately two weeks before trial, Clay provided records of his bank deposits for January through September of 1977.
On February 22, 1982, Clay filed a second amended complaint, which corrected some of the factual allegations. Nationwide filed an answer to this amended complaint (it had not answered the first amended *541 complaint), denying that it had acted in bad faith and stating that it received information in March 1978 which prevented the previously anticipated resolution of the claim. Clay filed a third amended complaint on April 23, 1982, amending the ad damnum clauses of each count to claim $3,000,000.
Nationwide's answer to the third amended complaint added defenses that Clay's earnings were insufficient to provide the benefits provided in the policy; that any benefits due were to be prorated with Clay's other disability income policies; that Clay had misrepresented his income in obtaining the policy; that, to obtain the Nationwide policy, Clay had represented he would cancel the Paul Revere policy, but instead had increased it; that Nationwide had breached no duty of good faith; and that Nationwide had a lawful basis for ceasing to make payments. Clay points out that Nationwide also denied having demanded premium payments and added as a defense that Clay "failed to mitigate his claim by undergoing corrective surgery within a reasonable period of time after becoming disabled." Nationwide withdrew this defense on the morning of trial.
The case went to trial on December 13, 1982, and the trial lasted through December 17. The trial court denied motions by Nationwide for directed verdict at the close of Clay's evidence and at the close of all the evidence. At the close of all the evidence, the trial court granted Clay's motion for directed verdict on the contract count and denied it on the bad faith count. The court granted a directed verdict for Nationwide on the fraud count. On the contract claim, the trial court awarded $46,165.00. The jury returned a verdict of $1,250,000.00 on the bad faith claim. The trial court later denied Nationwide's motion for judgment notwithstanding the verdict, new trial, or remittitur. Nationwide appealed.
Nationwide states eleven issues, but argues them under the following four headings: 1) The trial court erred in directing a verdict for Clay under the contract claim; 2) The trial court erred in denying Nationwide's motions for directed verdict on the bad faith claim; 3) Various rulings by the trial court improperly and materially prejudiced the defendant; and 4) The trial court erred in refusing to order a remittitur. We shall discuss the issues under corresponding headings.
Nationwide argues that the court should not have directed a verdict for Clay because there was evidence in favor of Nationwide's position that it was not liable on the contract claim. Nationwide asserts that there was substantial evidence that Clay misrepresented his income and falsely stated that he would cancel the Paul Revere policy. According to Nationwide, each of these misrepresentations provided a basis upon which to void the policy. Nationwide further argues that the dispute as to the amount due on the policy makes the directed verdict improper.
Regarding Clay's statement on the application that his income was $1800 per month, Nationwide's primary argument is that, although Clay's deposits to his law office account for 1976 totalled $26,714.41, his office overhead averaged $900 to $1000 per month and thus his income was less than $1800 per month. Nationwide argues that it does not have to prove that Clay intentionally misstated his income, because Code 1975, § 27-14-7, provides that
Nationwide argues that it would not have issued as much coverage if it had known the true amount of Clay's income.
This argument depends upon Nationwide's position that "average earned monthly income" on the application means "net income" after deduction of office overhead. Nothing on the application compels such a conclusion, but Nationwide argues that its "Agent's Portfolio," introduced as Plaintiff's Exhibit 13, defines income so as to require deduction of expenses. Under "Monthly Indemnity Benefits," that exhibit defines "earned income" as "1. Income before taxes arising from occupation, or 2. Net income, after expenses, but before taxes, arising from the operation of a business."
Although the record indicates that the trial court stated that the policy is to be construed against the "insured," this is clearly either a typographical error or a slip of the tongue. The trial court correctly applied the rule that ambiguities are to be construed against the insurer. See the many cases cited in 12 Alabama Digest Insurance Key # 146.7(1). See, for example, Employers Ins. Co. of Alabama v. Jeff Gin Co., 378 So. 2d 693 (Ala.1979); Alabama Farm Bureau Ins. Co. v. McCurry, 336 So. 2d 1109 (Ala.1976); and Mutual Benefit Health & Accident Ass'n of Omaha v. Reid, 279 Ala. 136, 182 So. 2d 869 (1966).
Counsel for Clay cited to the court the cases of Rambin v. Continental Casualty Co., 186 So. 2d 861 (La.Ct.App.1966), writ refused, 249 La. 578, 187 So. 2d 740 (1966); and Allstate Ins. Co. v. Winnemore, 413 F.2d 858 (5th Cir.1969). In the former, the Louisiana court held that "`average monthly earnings' is ambiguous," that "`earnings'... does not necessarily mean `net earnings' unless qualified in some manner," and that the interpretation most favorable to the insured would be adopted. 186 So. 2d at 864. In the latter case, the Fifth Circuit Court of Appeals stated that even though an innocent misrepresentation might void the policy, "[W]e think it is possible that if Winnemore did not know or could not be expected to know the meaning of `earnings' on the insurance application, he did not make a misrepresentation." 413 F.2d at 863.
Nationwide cites General Accident, Fire & Life Assurance Corp. v. Jordan, 230 Ala. 407, 411, 161 So. 240, 242 (1935), for the Court's statement, "That [plaintiff] was repaid for his business expenses is not, in our opinion, a part of his earnings." Reimbursement for out-of-pocket expenses, however, is quite different from fees earned by an attorney: in the former case, the individual pays his expenses out of ordinary income, and inclusion of reimbursement as income would cause the sum to be included twice. On the other hand, an attorney would normally consider the entire amount of a fee paid to him as income, and could not be expected to deduct expenses unless specifically instructed to do so.
We agree with the trial court and the cited authorities that Nationwide's failure to tell Clay that "average earned monthly income" means net income prevents it from avoiding coverage on this ground. Furthermore, even within Nationwide's internal rules, there is an ambiguity as to whether Clay's law practice would constitute an occupation or a business, and only in the latter instance would expenses be deducted. Finally, the "Relation of Earnings to Insurance" clause of the policy contemplates the use of a two-year period to determine average monthly earnings. In the two-year period preceding the application, Clay averaged over $2,000 income *543 per month even after the deduction of office expenses. Thus, the trial court's decision to rule for Clay on this issue was eminently proper: not only did Clay have no reason to suspect he should give a "net income" figure, but also Nationwide's own rules, interpreted strictly against the insurer, preclude the use of a one-year net income average for a professional, whose income arises from an occupation, not a business.
Nationwide also argues that the trial court erred in granting a directed verdict on the contract count, because Clay represented that he would cancel the Paul Revere policy, but, instead, increased it. This argument has two branches: one, that Nationwide should not have to pay benefits because of the misrepresentation; and two, that the trial court should not have directed a verdict because the existence of other insurance presented a factual question on the amount of benefits due. Clay's response essentially is that he did cancel the existing policy as he said he would do, and the fact that he took out higher coverage with Paul Revere after he obtained the Nationwide policy does not allow Nationwide to avoid coverage under its policy. He asserts that the calculation of benefits due was a simple matter of arithmetic and Nationwide made no objection before the jury retired to the trial court's performing this calculation.
The trial court made the following remarks during argument about the admissibility of evidence on this issue:
Paul Revere's agents treated the policy issued to Clay in February 1977 as a "make-over" of the policy he had at the time he applied for the Nationwide policy. Nationwide insists that this indicates Clay did not cancel the existing policy and thus that he made a misrepresentation when he said he would cancel it; and that this misrepresentation gives Nationwide a basis for rescinding its policy.
The difference between increasing the pre-existing policy and taking out a new policy after securing the Nationwide policy comes into play for the following reason: if Nationwide takes an application to supplement an existing policy, it will deduct the existing coverage from the amount of coverage it is otherwise willing to provide. Nationwide will write disability insurance for approximately half of an insured's income, reasoning that more coverage would be "overinsurance," tempting the insured to prolong a disability. Thus, with Clay stating that he made $1800 per month, if he had said he would keep the Paul Revere coverage of $400 per month, Nationwide would have provided only $500 additional coverage.
On the other hand, as a Nationwide underwriter testified, Nationwide cannot control what an insured does after he takes *544 out a policy with Nationwide. Therefore, the policy includes the "Relation of Earnings to Insurance" clause. This clause provides that, if the total "loss of time" coverage exceeds the insured's monthly income "at the time disability commenced or his average monthly earnings for the period of two years immediately preceding a disability..., whichever is greater," Nationwide will pay a prorated amount of benefits and return the excess premiums.
As it turned out, when Clay made his claim Paul Revere reduced its coverage to $1250 per month with an additional one-year benefit of $150 per month. The trial court calculated the benefits due under Clay's Nationwide policy when it directed a verdict on the contract claim. These calculations were not preserved in the record. Clay, in his appellee's brief, provides calculations which would justify the $46,165.00 award made by the trial court. He states, moreover, that these calculations give Nationwide the benefit of the doubt in three respects: they allow proration of his Nationwide policy in spite of Harker's representation that the Paul Revere, not the Nationwide, policy should be prorated; they allow the relation-of-earnings provision to apply to the $1300-per-month rider, which is inconsistent with Nationwide's position that the waiver-of-premium provision in the policy did not apply to the rider; and they do not give Clay any refund of excess premiums for prorated benefits.
Clay further makes the argument that when Harker denied coverage on the basis of a pre-existing condition, he waived the defense of misrepresentation regarding cancellation of the Paul Revere policy, because he already knew of the $2200 Paul Revere policy.
Nationwide argues that the "stacking" of coverage shows an intent to defraud. Clay's attorney responded at trial that Nationwide had not pled a defense raising this issue, and the court agreed: "It doesn't make any difference how many policies he has unless you are relying upon a defense that he knew he was going to be disabled." During this colloquy, which occurred during Clay's testimony on the third day of trial, the court remarked:
Nationwide argues that these remarks were improper because it had not yet begun to put on its case. However, the court did not direct a verdict at this time, but did so only at the close of all the evidence. Moreover, the court stated that its conclusion was tentative, "absent some other evidence."
Nationwide points to the fact that Clay made no answer to the question on the claim form asking whether he had other insurance. The question, however, asked for "any other Companies with whom you may carry Accident & Sickness insurance." Clay testified that he thought of disability coverage as "income insurance" and thought the question meant medical insurance. Indeed, Clay's policy is titled a "Disability Income Policy." See Mutual Benefit Health & Accident Ass'n of Omaha v. Reid, 279 Ala. 136, 182 So. 2d 869 (1966), in which the Court held that a clause in a health and accident policy referring to "other insurance" did not include a life insurance policy providing additional benefits for death or disability by accidental means.
At any rate, when he talked to Otey on the telephone, Otey said he was aware of the Paul Revere and National Home policies. Furthermore, the existence of the Paul Revere policy came to Nationwide's attention before Harker denied coverage *545 based on a pre-existing condition, so Clay argues that Nationwide waived any defense on this basis.
We find no error in the trial court's action. Paul Revere issued the $2200 policy after Nationwide issued its policy. Since the higher Paul Revere policy was not in existence at the time Nationwide issued coverage, it could have had no effect on Nationwide's decision to issue its policy. Therefore, while the Paul Revere policy might have an effect on the amount of benefits due under the Nationwide policy, it could not serve to void the Nationwide policy completely.
Neither does Nationwide present any error in the trial court's decision to calculate the amount of benefits due under the contract. The only objections Nationwide made were to the general issue of directing a verdict on the contract count. When the trial court repeatedly stated that it would calculate the benefits, Nationwide made no objection. Neither did it make any effort to preserve a record of the manner in which the trial court made the calculation. Thus the only question presented for our review is the actual decision to direct a verdict on the contract count, and we have resolved that question above.
Nationwide argues that the numerous disputes raised questioning Clay's disability, income, and other insurance show that there were arguable reasons for denying the claim and thus it was error for the trial court to deny its motion for directed verdict on the bad faith claim.
The trial court correctly instructed the jury on the elements of an action for bad faith refusal to pay an insurance claim:
We note that these instructions omitted the element of "intentional failure to determine whether or not there was any lawful basis for such refusal." See, e.g., Cincinnati Ins. Co. v. Little, 443 So. 2d 891 (Ala.1983); National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357 (Ala.1982); and National Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179 (Ala.1982).
Nationwide argues that the element of refusal to pay is lacking because Nationwide made four payments on the claim and ceased only because Clay, instead of providing income information in response to Nationwide's March 28, 1978, letter, filed this lawsuit.
Clay responds that Nationwide's repeated refusals to cooperate justified him in disbelieving the letter's statement that *546 the income information would settle the matter. He states that the course of negotiating the claimthe failure to return his calls, the refusals to locate his file, and the denials of receiving letters and reports (which did in fact turn out to be in his file)show at least a bad faith failure to investigate, if not that Nationwide's periodic refusals to pay were made with actual knowledge of a lack of an arguable reason.
Clay also argues that Harker's decision to deny coverage based on a pre-existing condition waived a defense of misrepresentation that the Nationwide policy would replace the Paul Revere policy. He says this choice of grounds for denying the claim constitutes a waiver because Harker knew at the time he made this denial of coverage that Clay had a Paul Revere policy in effect. We need not reach this claim that such a waiver shows that Nationwide later raised the "other insurance" and "insufficient income" grounds in bad faith. There was sufficient evidence of bad faith assertion of these grounds without a finding that Nationwide had waived them as a matter of law.
Harker stated that he decided that Clay might not have sufficient income on the sole basis that Clay had not filed income tax returns, and he refused to explain to Clay why he wanted the income information. This evidence supports a finding that Harker's attempt to have Clay prove he was entitled to coverage was made in bad faith. When this evidence is considered along with the evidence of Nationwide's seriatim assertions of grounds for denying coverage, which were not supported by the facts and documents before Otey and Harker, but only by their assumptions, it becomes clear that the evidence was sufficient to go to the jury on the bad faith claim. Therefore, the court did not commit error in denying Nationwide's motion for directed verdict on that claim.
This group of arguments presupposes that the trial court was in error on the merits on various aspects of the case. Most of the rulings complained of have been set out or discussed specifically above. We need not address the others explicitly because to do so would only require a reiteration of the holdings already made herein.
Nationwide insists that the verdict on the bad faith claim was excessive under the facts of the case. In light of the punitive nature of the damages, we find nothing in the record to show that the jury exceeded its discretion. There was no evidence before the trial court that paying the verdict would be unduly oppressive to Nationwide. Nationwide's repeated unjustified denials of Clay's valid claim constitute the very type of claims handling which the bad faith action is designed to prevent. The jury fixed the amount and there is no evidence of "bias, prejudice, corruption, or other improper motive," which would require the trial court to set aside the jury's verdict. Shiloh Const. Co. v. Mercury Const. Corp., 392 So. 2d 809 (Ala.1980); B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979). The trial court denied Nationwide's motion for JNOV, new trial, or remittitur.
The judgment is affirmed.
AFFIRMED.
FAULKNER, JONES, SHORES, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., dissents in part and concurs in part, with opinion, in which BEATTY, J., concurs.
MADDOX, J., dissents with opinion.
ALMON, Justice.
OPINION MODIFIED. APPLICATION OVERRULED.
FAULKNER, JONES, SHORES, EMBRY, and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX, and BEATTY, JJ., dissent.
TORBERT, Chief Justice (dissenting in part and concurring in part).
I dissent from that part of the majority opinion which affirms the bad faith judgment *547 for Clay. Once again we are faced with a bad faith claim where the facts unquestionably show that the insurer's conduct was not an example of how to properly process a claim made by an insured. To the contrary, the claim was badly handled, but this is clearly not the issue here. And as I said in Aetna Life & Casualty Insurance Co. v. Lavoie, 470 So. 2d 1060 (Ala. 1984), and Continental Assurance Co. v. Kountz, 461 So. 2d 802 (Ala.1984), alternatives to the tort of bad faith should be pursued in order to regulate the improper conduct of insurers. However, the question presented here is whether a jury could find that this insurer's conduct rose to the level of "bad faith" as currently defined by this Court.
First, I will address the propriety of the directed verdict on the contract claim. Nationwide contends that Clay's misrepresentation of income on the application entitles Nationwide to void the policy. Obviously, the first inquiry should be whether Clay in fact made a misrepresentation as to his "average earned monthly income." Nationwide maintains that the term "average earned monthly income" means the average of net monthly income, that is, gross income less expenses. However, there is no evidence that Clay knew that Nationwide meant net "average earned monthly income." It is only if neither Clay's net nor his gross "average earned monthly income" was the amount stated that it could be said that Clay misrepresented his income. At trial it became clear that using either a one-year or two-year average of monthly earnings prior to the disability, Clay's gross income was at least the amount stated in the application. Under the two-year average method, his net income also was at least the amount stated in his application. The trial court's finding that there was no evidence to support the misrepresentation claim was correct.
Clay's level of income was important for another reason. The extent of Nationwide's liability under its "relationship of earnings to insurance" clause was a function of two factors, Clay's income and the amount of loss-of-time coverage Clay held with other insurers. I find no error in the trial court's determination of the extent of Nationwide's liability based upon the information produced at trial.
However, while at trial there was sufficient information from which the extent of Nationwide's liability could be determined, that information was not made available to Nationwide until just before trial. Whether Nationwide acted in "bad faith" depends upon whether at the time of denial of benefits, Nationwide had a debatable reason for denying the claim.[1] On the initial claim form submitted by Clay, the questions asking for monthly income and whether the insured had other insurance were not answered. Subsequently, Nationwide learned that Clay had not filed federal income tax returns for the years 1975, 1976, and 1977. The facts that Clay had not disclosed his income on the claim form and that he had not filed tax returns for the three years preceeding his disability were sufficient to create a debatable reason as to whether Clay had sufficient income to entitle him to the full benefits of the policy. Clay's adamant refusal to reveal any financial information, no matter how justified he may have felt in refusing to answer, certainly served to confirm Nationwide's concerns that Clay's income was not what Clay originally represented in his application.
I believe that Nationwide had a debatable reason for questioning the extent of its liability and that the existence of this debatable reason precludes a finding of bad faith.
BEATTY, J., concurs.
MADDOX, Justice (dissenting).
I believe there was at least a "scintilla" of evidence of a factual dispute between the parties over whether the terms "average earned monthly income" in the policy meant "net income" after deduction of office *548 overhead; therefore, a directed verdict on the contract count was error, in my opinion. On the bad faith portion of the claim, I remain convinced that these disputes could best be resolved by the procedure I outlined in my dissent in Continental Assurance Co. v. Kountz, 461 So. 2d 802 (Ala.1984).
PER CURIAM.
Motion denied on the authority of Aetna Life & Casualty Co. v. Lavoie, 470 So. 2d 1060 (Ala.1985).
MOTION DENIED.
All the Justices concur.
[1] Clay was 38 when his cataracts developed.
[1] This is clearly a "first tier" bad faith case, as the trial court did not even charge the jury as to the "second tier" of bad faith. | April 5, 1985 |
bf219912-84f4-4af5-b770-0e610bda6c84 | Finch v. Finch | 468 So. 2d 151 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 151 (1985)
Warren L. FINCH
v.
Richard Inge FINCH, as Executor, etc.
83-1133.
Supreme Court of Alabama.
March 29, 1985.
Dennis J. Knizley of Alexander & Knizley, Mobile, for appellant.
Robert E. McDonald, Jr., Mobile, for appellee.
ALMON, Justice.
This is an appeal from a dismissal by the circuit court of an appeal to that court *152 from a probate court decree on a final settlement of an estate. Appellant Warren L. Finch filed his appeal with the clerk of the circuit court within the required time, but did not pay the filing fee until after the time limit had expired.
Code 1975, § 43-2-354, governs the notice and hearing in the probate court on disputed claims against estates. This section also grants an appeal to circuit court from a probate court decree but does not specify the procedure for the appeal. The appeal must be taken within 30 days.
Code 1975, §§ 12-22-20 and -21, grant the general right to take an appeal from probate to circuit court. Neither statute provides for the procedure to be followed in taking the appeal. Section 12-22-21(5) gives 42 days to appeal from a judgment on a final settlement of an estate.
Appellant Warren L. Finch ("Finch") and appellee Richard Inge Finch, the executor of the estate of John Edward Luenberg (hereinafter "the estate" when referred to as a party) are two of four brothers who take equally under the will of their deceased uncle Luenberg. The probate court records are not before us, but it appears that Luenberg died in 1979 and his will was probated in that year. Finch asserts that disputes arose during the administration of the estate, with him and at least one of the other brothers contesting Richard's accounting and disbursement of funds and contending that he had received substantial advancements.
It is not apparent from the record whether Finch filed a claim against the estate as provided in § 43-2-354. Because the decree is upon a final settlement, we think the longer appeal time of § 12-22-21(5) would apply. This is not actually at issue, however, because the notice of appeal was filed 30 days after the judgment but the filing fee was not paid until more than 42 days after the judgment. The probate court entered its decree on January 30, 1984. On February 15 the probate court on its own motion amended the decree nunc pro tunc to correct clerical errors. The original decree had recited that Finch's interest was subject to a tax lien and the amended decree changed some of the wording relative to the interest of the United States Government under the tax lien.
On February 29, 1984, Finch filed in the probate court a notice of appeal to the circuit court from the judgment entered on January 30. He was not represented by an attorney at the time. On March 5 he filed a jury demand. On April 9 the estate filed a motion to strike the jury demand and a motion to dismiss the appeal. The latter motion recited as grounds that Finch had not paid his filing fee on appeal within the time prescribed by law, had not designated a record for review or prosecuted his appeal actively, and had appealed from the January 30 order which was rendered null and void by the order amending it in toto on February 15.
The circuit court granted the motion to dismiss on May 1. Finch, represented by an attorney for the first time, filed on May 31 a motion to reconsider the order dismissing the appeal. The motion recited the following grounds:
*153 The circuit court denied this motion on June 11, 1984, and Finch appealed to this Court.
The only ground of the motion to dismiss which we deem to present a serious question is that raising the failure to pay filing fees. In view of the short time between the filing of the notice of appeal and the filing of the motion to dismissforty daysa contention of failure to diligently prosecute an appeal cannot be grounds for dismissing the appeal. The contention that the appeal was taken from a void order does not have merit in these circumstances. An order nunc pro tunc relates back to a prior order to correct non-judicial errors in the prior order; it cannot modify or enlarge the judgment. Campbell v. Beyers, 189 Ala. 307, 66 So. 651 (1914); Wilmerding v. Corbin Banking Co., 126 Ala. 268, 28 So. 640 (1899). Thus, any error in failing to designate the appeal as being from the later order is de minimis and should not serve as grounds for dismissing the appeal, at least in this case where the notice of appeal was within 30 days of the first order and 14 days of the later order.
The Alabama Rules of Appellate Procedure apply only to appeals to this Court, the Court of Civil Appeals, and the Court of Criminal Appeals. Rule 1, A.R. A.P.; Prine v. Wood, 447 So. 2d 725 (Ala. 1984). In such cases, the only jurisdictional requirement is the timely filing of notice of appeal with the trial court. Rules 2 and 3, id.
Section 12-19-70 provides for filing fees in circuit court:
Section 12-19-71 gives the schedule of docket fees in circuit and district courts.
Rule 7, Alabama Rules of Judicial Administration, provides that "Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes." The Court of Civil Appeals has held, and the Clerk of this Court has given the opinion, that the filing of an appeal in the circuit court from a district court judgment is an original filing within the meaning of Rule 7 and requires the filing fee prescribed in §§ 12-19-70 and -71. Hand v. Thornburg, 425 So. 2d 467 (Ala.Civ.App. 1982), cert. denied, 425 So. 2d 467 (Ala. 1983); Scott v. Kimerling, 417 So. 2d 204 (Ala.Civ.App.1982), cert. quashed, 417 So. 2d 204 (Ala.1982); Opinion of the Clerk No. 16, 362 So. 2d 1259 (Ala.1978).
The Clerk based his opinion on cases establishing that an appeal is a new statutory proceeding in the appellate court. Ohio Cas. Ins. Co. v. Gantt, 256 Ala. 262, 54 So. 2d 595 (1951); Anders Bros. v. Latimer 198 Ala. 573, 73 So. 925 (1917); Cook v. Adams, 27 Ala. 294 (1855); Mazange v. Slocum & Henderson 23 Ala. 668 (1853).
The Court of Civil Appeals has further held that appeals from district to circuit court require timely notice of appeal in the district court, payment of the filing fee in the circuit court, and security for costs or affidavit of hardship as provided in Rule 62(dc)(5), A.R.Civ.P. Gomillion v. Whatley Supply Co., 446 So. 2d 52 (Ala.Civ.App. 1984); Hardeman v. Mayfield, 429 So. 2d 1097 (Ala.Civ.App.1983); Hand v. Thornburg, supra; and Scott v. Kimerling, supra. Section 12-12-70, which provides for such appeals, mentions only the notice of appeal and the security for costs.
Gomillion and Hardeman involved the failure to file a bond for costs; Hand involved the adequacy of such a bond. Only in Scott does the payment of filing fees appear to have been at issue. In that case, the appellants "refuse[d] to post any bond or pay any money to enjoy [the] right to trial by jury." 417 So. 2d at 204. The *154 Court of Civil Appeals held that the trial court committed no error in dismissing the appeal.
The holding that appeals from district court to circuit court require a filing fee in the circuit court should be extended to appeals from probate court to circuit court. It does not necessarily follow, however, that the circuit court was correct in dismissing the appeal. Nothing in the above-cited authorities establishes that the payment of filing fees in the circuit court within the time allowed for appeal is a jurisdictional requirement for perfecting such an appeal. Section 12-22-25 requires security for costs in appeals such as this one, but specifically states that "the filing of security for costs is not a jurisdictional prerequisite."[1] By the same token, although payment of a filing fee is required, we do not find a jurisdictional defect in this case for failure to pay the fee within the time allowed for the appeal.
Finch filed, along with his notice of appeal on February 29, a security for costs with Travelers Insurance Company as surety. Finch's motion for reconsideration stated that the amount of the filing fee was undetermined at the time of filing the notice of appeal and that the circuit clerk accepted the notice without demanding a filing fee. The motion recited that Finch had paid the filing fee. Finch's brief asserts that he paid the fee on April 9, the same day the estate filed its motion to dismiss. This was fifty-four days after the February 15 amendment of the January 30 final judgment.
In view of the above circumstances and the lack of any clear precedent that a filing fee was required upon appealing from probate to circuit court, much less that such a fee was jurisdictional, and in view of the practice in the higher appellate courts that only timely notice of appeal is jurisdictional, it was error to dismiss the appeal in the instant case. The judgment of the circuit court is therefore reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur.
[1] Culp v. Godwin, 295 Ala. 316, 329 So. 2d 88 (1976), held that filing security for costs on appeal from probate to circuit court is jurisdictional, "and upon failure to so file within 30 days of the order, the appeal is subject to being dismissed." 295 Ala. at 320, 329 So. 2d at 91. This was decided under Code 1940, t. 7, § 782, which did not include the quoted language. | March 29, 1985 |
e4683438-c694-46f7-9b34-7d4b389c822e | Larry Savage Chevrolet, Inc. v. Richards | 470 So. 2d 1168 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1168 (1985)
LARRY SAVAGE CHEVROLET, INC.
v.
Michael RICHARDS.
83-1250.
Supreme Court of Alabama.
March 29, 1985.
Rehearing Denied April 26, 1985.
*1169 James T. Baxter III of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellant.
Robert C. Gammons of Timberlake and Gammons, Huntsville, for appellee.
TORBERT, Chief Justice.
Larry Savage Chevrolet, Inc., (Savage) appeals from a judgment in favor of Michael Richards in his suit for fraud in connection with the sale of an automobile. Richards was awarded $4000 in compensatory damages and $62,500 in punitive damages.
The evidence at trial reveals that Richards went to Savage's car lot looking for a new Chevrolet Camaro automobile. He found a white Camaro that he liked among the new cars on the lot. Richards and Jack Armstrong, a salesman at Savage, examined the car. Richards noticed that a section of stripe was missing on the front *1170 spoiler and that there appeared to be paint overspray, as if the car's finish had been touched up. Richards questioned Armstrong about this, and Armstrong, while disavowing specific knowledge concerning these defects, speculated that the car was damaged when it was unloaded from the transport truck. Richards testified that at that time he informed Armstrong that he was concerned about whether the car had been wrecked. He said he always bought new cars because they had a "known history." Richards and Armstrong agreed to meet the following Sunday in order to allow Richards's fiancée to inspect the car, because he was buying it for her use. Armstrong also agreed to find out more about the damage.
Richards and his fiancée returned on Sunday and test drove the car. Richards and Armstrong then began negotiating for the sale of the car. During these negotiations Armstrong informed Richards that the car had been damaged when vandals jacked up the front end, stole the tires, and then dropped the car. Richards agreed to buy the car, and the car was delivered to Richards's fiancée the next day.
When the car was delivered, Richards's fiancée signed a form entitled "Acknowledgement of Disclosure by Dealer of Damaged and Repaired Motor Vehicle." This form indicated that the wheels had been stolen, the two front fenders had been replaced, the left "¼" panel repaired, and the front spoiler replaced, and that the repaired areas had been refinished and restriped. There is a dispute as to whether the blank in the form which contained this information had been filled in at the time Richards's fiancée signed the form.
Richards noticed other defects in the car over the next six months. When the car was taken to another Chevrolet dealer to have a windshield problem repaired, he was informed that the windshield in the car was not the factory installed windshield. Richards filed suit. Subsequently he found out that the car had been more extensively damaged than he was originally told, and that the windshield and hood also had been replaced as the result of the prior vandalism.
Savage contends that Richards could not have relied on any alleged misrepresentation because he had made up his mind to purchase before any alleged misrepresentation was made. We disagree. The evidence shows that Richards questioned Armstrong concerning the damage on Richards's initial visit to the car lot. Armstrong told him that he guessed the damage occurred during unloading but that he would find the exact cause before Richards returned. When Richards returned, he was told that the car had been jacked up, the wheels stolen, and the car dropped. Armstrong admitted that he told Richards this while they were negotiating the price of the car, and that Armstrong assumed the damage was taken into consideration when negotiating the price.
In addition, Richards made it clear that he wanted a "new" car. The car he purchased was represented as being a "new" car. Savage maintains that this was not a misrepresentation because the car had never been the subject of a first sale for use. Code 1975, § 32-8-2(10). However, the definition of "new vehicle" in § 32-8-2(10) is only for the purposes of the Alabama Uniform Certificate of Title and Antitheft Act. We have previously rejected adopting an objective legal test as determinative of the "new car" issue. Boulevard Chrysler-Plymouth Inc. v. Richardson, 374 So. 2d 857 (Ala.1979). The jury, in accordance with a "reasonable expectations" standard, could have found from the evidence that Savage falsely represented that the car was "new." There was substantial evidence from which the jury could find that fraudulent representations were made prior to the consummation of the sale and that Richards relied upon them.
Savage raises several issues concerning the award of damages. Savage first questions the competency of Richards to give an opinion as to the fair market value of the car as it actually existed. The general rule is that "[t]he owner of personal *1171 or real property may testify as to the value of such property without other qualifications." C. Gamble, McElroy's Alabama Evidence, § 128.11 (3rd ed.1977). While Richards admitted that he did not know the value of used cars in general, he had purchased a number of cars in his lifetime and he had looked at about thirty new and used Camaros since he began experiencing trouble with his car. We disagree with Savage's assertions that Richards was incompetent to give an opinion as to the value of the car.
Savage also contends that the award of compensatory damages was the product of conjecture and compromise. Initially we note that "jury verdicts carry with them a presumption of correctness, such presumption being strengthened when a motion for a new trial is denied by the trial court." Carroll Kenworth Truck Sales, Inc. v. Leach, 396 So. 2d 1044, 1046 (Ala.1981). Such is the case here.
Generally, in an action for fraud the measure of damages is the difference between the value of the property as represented and its actual value. Mobile Dodge, Inc. v. Waters, 404 So. 2d 26 (Ala.1981). Armstrong testified that the difference in value was zero. Richards testified in effect that the difference in value was between $4900 and $5900. The jury awarded $4000. The role of the jury in determining damages is discussed in Stone v. Echols, 351 So. 2d 902 (Ala.1977):
Id. at 903, 904. In this case the jury heard conflicting opinion testimony as to the difference in value of the car and returned a verdict for an amount within the range of values given. Under these facts we find no error. See, Smith v. Heath, 207 Ala. 4, 91 So. 799 (1921); Nashville, Chattanooga & St. Louis Railway v. Bingham, 182 Ala. 640, 62 So. 111 (1913).
Finally, Savage contends that there was no evidence that would authorize an award of punitive damages or, alternatively, that even if there was such evidence, the award of $62,500 was excessive. We disagree.
Defendant contends that in order to sustain the jury verdict of punitive damages, an intent to deceive and injure must be present and the fraud must be gross, malicious, or oppressive. Mobile Dodge, Inc. v. Waters, 404 So. 2d 26 (Ala.1981). There *1172 was evidence presented from which the jury could find that punitive damages were authorized. It is undisputed that Savage knew the car had been extensively damaged and repaired. It is also undisputed that Savage had a fairly elaborate procedure to ensure that its management discloses damages to a car to the buyer. As part of that procedure, when Armstrong sought the sales manager's approval of the deal, the transaction folder on that car should have been checked. That folder clearly indicated that disclosure was required concerning the damage to the car, yet only part of the damage was disclosed. Savage's secretary-treasurer testified that it would be "extremely unusual" for a proper disclosure not to be made. Armstrong testified that the Camaro was "the hottest piece of merchandise on the lot," yet it took about five months to sell this particular car. In Boulevard Chrysler-Plymouth, Inc., supra, we affirmed an award of punitive damages in a case analogous to the case before us. In that case the dealer represented as "new" a car that had been extensively damaged and repaired. While I dissented as to the award of punitive damages in that case, the evidence of misconduct which would authorize an award of punitive damages in this case is much stronger.
"Damages are considered excessive if they shock the judicial conscience or are so great as to indicate they are the product of sympathy, passion, or prejudice." Village Toyota Co. v. Stewart, 433 So. 2d 1150, 1155 (Ala.1983). The trial court denied a motion for new trial on the ground that the damages were excessive; therefore, the presumption of correctness as to the jury verdict is strengthened. We find no indication that the verdict is the product of sympathy, passion, or prejudice; therefore, the verdict is due to be upheld.
In summary, we find no error in the proceedings below. The judgment is affirmed.
AFFIRMED.
FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
df5c60dd-0612-4e20-b727-c81502397d31 | Jefferson County v. Sulzby | 468 So. 2d 112 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 112 (1985)
JEFFERSON COUNTY, Alabama
v.
William D. SULZBY.
83-79.
Supreme Court of Alabama.
March 29, 1985.
*113 Edwin A. Strickland, Co. Atty., and Charles S. Wagner, Asst. Co. Atty., for appellant.
Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
FAULKNER, Justice.
This appeal arose out of a personal injury action brought by plaintiff, William D. Sulzby, against Jefferson County, Alabama. On the evening of June 12, 1978, Sulzby was driving his AMC Jeep vehicle on 23rd Avenue N.W., a two-lane county road in Jefferson County. It had been raining earlier in the evening. The road was extremely dark and hilly in some areas. According to the evidence, Sulzby was using the centerline as a guide. Apparently, after he crested a hill in front of the Sun Valley Church of Christ he became "lost in a sea of asphalt," and he could no longer see in which direction to go. Where the road curved to the left, he veered off the road. Sulzby then turned his vehicle to the left, saw a pole in front of him, and then cut to the left again. The Jeep overturned and Sulzby was thrown from the vehicle.
In his complaint, Sulzby alleged that Jefferson County was responsible for the design and construction of 23rd Avenue N.W. and that its negligence in designing and maintaining the road was the proximate cause of his injuries and damages. The jury returned a verdict in favor of Sulzby and awarded damages in the amount of $75,000.00. After the trial court denied Jefferson County's motion for judgment notwithstanding the verdict or in the alternative for new trial, the County appealed.
The County argues that this case presents one of first impression regarding the statewide application of the standards established by the Alabama Manual of Uniform Traffic Control Devices (AMUTCD). Jefferson County urges that "in its present posture this case stands for the proposition that juries, [and not qualified engineers], will decide the standard, i.e., DUTY of counties and cities of road design, road marking and road signing for county and city streets."
Specifically, the County raises three issues on appeal:
Initially, Jefferson County contends that the trial court committed reversible error in denying its motions for directed verdict and judgment notwithstanding the verdict. The County argues that the case should not have been submitted to the jury because (1) there was insufficient evidence that the County had actual or constructive notice of a defective roadway condition and; (2) there was insufficient evidence to prove that the County was under a legal duty to install curve warning signs or edge-of-pavement markings. Claiming that because the Alabama Manual of Uniform Traffic Control Devices (AMUTCD) does not require edge-of-pavement markings or curve warning signs at the accident site, the County contends that it was under no duty, statutory or otherwise, to install such devices. We disagree.
The 1972 AMUTCD, which was in effect on the date of Sulzby's accident, provides in part:
The manual, while providing standards for the statewide application of traffic control devices, is not intended to be a substitute for engineering judgment.
It is undisputed that governmental entities, by virtue of their exclusive authority to maintain and control the roadways; are under a common law duty to keep the streets in repair and in a reasonably safe condition for their intended use. Cf. § 23-1-80, Code of Alabama 1975.
This Court has addressed the issue of a county's duty with regard to the maintenance of public roadways in Cook v. County of St. Clair, 384 So. 2d 1 (Ala. 1980). This Court held that the plaintiffs could sue St. Clair County and Houston County and the county commissions for negligence for injuries arising as a result of defects in the public roads. This holding was based on Code 1975, § 11-1-2, which provides "Every county is a body corporate, with power to sue or be sued in any court of record."
Since the county can be sued for its negligence, and is exclusively responsible for the maintenance and control of its roadways, its standard of care is to keep its streets in a reasonably safe condition for travel, and to remedy defects in the roadway upon receipt of notice.
In the instant case, the evidence presented justified submission to the jury on the issue of whether the County had notice of a defective roadway condition and thus was under a duty to remedy the alleged defects. Although there was conflicting testimony as to whether the County had in fact breached its duty, there was evidence from which the jury could have reasonably inferred that the County had at least constructive notice of a defective condition of 23rd Avenue N.W. The testimony at trial showed that Jefferson County received an independent traffic engineering survey of this street in November 1977, just seven months prior to Sulzby's accident. The survey, as it relates to a 1.2 mile stretch of this roadway, stated:
*115 The summary with respect to 23rd Avenue N.W. included the following statements and recommendations:
Additionally, Darryl Skipper, the county safety engineer, testified that on February 17, 1978, the center and edge lines of 23rd Avenue N.W., including the accident site, had been restriped by the County. However, the evidence indicated that no edge-of-pavement markings were visible or existent in June 1978 when Sulzby's accident occurred. The evidence also indicated that none of the other recommendations from the survey had been followed on the date of the accident, but that in subsequent years the road had been straightened and repaired to correct some of the defects.
While we agree with the County's contention that a jury cannot set the standard for a governmental entity's duty to mark the roadways, in this instance there was ample evidence by which a jury could have reasonably concluded that Jefferson County had notice of the defective roadway condition and had breached its duty to keep the roadway in a reasonably safe condition for travel.
The County's second argument on appeal is that the trial court should have directed a verdict as a matter of law due to Sulzby's in-court admission of contributory negligence.
The colloquy in issue was set out by the trial court as follows:
Sulzby further testified that he did not stop his vehicle even when he saw the pole directly in front of his Jeep because he had lost contact with where he was.
We cannot agree with the County's contention that this testimony constitutes an admission of contributory negligence as a matter of law. See Elba Wood Products, Inc. v. Bracklin, 356 So. 2d 119 (Ala. 1978).
*116 Generally a motorist whose vision is obscured is under a duty to exercise greater care than in ordinary circumstances. On the other hand, a motorist, without fault of his own, confronted with a sudden emergency, is not required to exercise the same presence of mind as would a prudent person under more deliberate circumstances. Williams v. Worthington, 386 So. 2d 408 (Ala.1980); Pittman v. Calhoun, 231 Ala. 460, 165 So. 391 (1935). A motorist's duty in any given case is dependent upon the circumstances.
We find that the evidence in this case was sufficient to create a jury question as to whether, considering the circumstances, Sulzby's failure to stop or slow down constituted contributory negligence. The trial court properly submitted the issue to the jury, who, by their verdict, necessarily found that Sulzby was not contributorily negligent.
Finally, the County contends that the jury improperly ignored the testimony of Mr. John Noettl, a qualified Jeep accident reconstruction expert.
Mr. Noettl testified that AMC Jeep vehicles, like the one Sulzby was driving, were unstable and more likely to roll over as a result of a sudden turn by the driver. He further testified that the design of the vehicle was the cause of the accident, and that only a Jeep would roll over under the circumstances on 23rd Avenue, N.W.
In Alabama, opinion testimony of an expert witness is binding upon a jury only when such testimony concerns a subject which is exclusively within the knowledge of experts and the testimony is uncontroverted. Ex parte Blue Cross-Blue Shield of Alabama, 401 So. 2d 783, 785 (Ala.1981).
In this case the testimony was far from uncontroverted as to the cause of Sulzby's accident. Although testimony on one side indicated that the Jeep design may have been the cause of the accident, there was also evidence that the defective condition of 23rd Avenue N.W. was at least a contributing proximate cause of the accident. Accordingly, there was sufficient evidence to submit the issue to the jury, and for the jury to determine the liability of the County.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
145274d9-caa9-4b17-a291-1459d549e766 | Sadie v. Martin | 468 So. 2d 162 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 162 (1985)
James SADIE
v.
Donald M. MARTIN, et al.
83-1417.
Supreme Court of Alabama.
March 29, 1985.
*163 Kenneth J. Mendelsohn of Beasley & Wilson, Montgomery, for appellant.
Warren H. Goodwyn and Keith B. Norman of Balch & Bingham, Montgomery, for appellees Martin, Martin Realty and Const. Co., Solomon Page, and C & C Land Corp., Inc.
Henry C. Chappell, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees Ann Carmichael and Bernard Carmichael.
SHORES, Justice.
Plaintiff James R. Sadie, appeals from a summary judgment granted in favor of the defendants in this action to recover damages for fraud and conversion. We affirm.
James Sadie filed a complaint in the Circuit Court of Montgomery County, naming as defendants Donald M. Martin, Martin Realty and Construction Company (Martin Company), Solomon Page, Carmichael and Carmichael (a partnership consisting of Ann Carmichael and Bernard Carmichael), and C and C Land Corporation, Inc. (C & C).[1] Sadie alleged that the individual defendants, Ann Carmichael, Bernard Carmichael, Martin, and Page, and the corporate defendants, Martin Company and C & C, acting through Martin as agent of each corporation, defrauded him, converted funds belonging to him, and conspired to defraud and convert funds belonging to him. All defendants were granted a summary judgment, and Sadie appeals.
In 1980, Sadie, Page, and Martin formed a partnership for the purpose of purchasing and restoring certain fire damaged commercial property located in Montgomery, Alabama. They discussed at that time the possibility of converting the property into office condominiums. Martin negotiated the financing and purchase of the property, and Page handled the repair and restoration. Sadie's contribution to the partnership was his discovery of the property.
Martin received financing from First Southern Federal Savings and Loan Association of Mobile (First Southern). However, as a prerequisite for making a loan, First Southern required an appraisal of the property by an appraiser selected from its designated panel of appraisers. Martin chose Ann Carmichael from that panel and retained her to make the appraisal. On July 22, 1980, she appraised it as having a fair market value of $148,000.00. Based upon that appraisal, First Southern loaned the partnership $100,000.00, and the partners executed a note and mortgage to First *164 Southern. The partners incurred no out-of-pocket expense in the purchase. The loan was to be repaid from future income generated by the property.
The actual purchase price of the property was $55,000.00. After closing, the excess loan proceeds were deposited by Martin into either the Martin Company or C & C accounts and used to pay expenses, including the costs of repair. Sadie claims that Martin represented to him that the repairs would cost between $15,000.00 and $18,000.00. Martin denies making any representations of that nature. The partnership's accountant showed actual partnership expenditures on the property, including the cost of purchase and repair, as $100,808.94. Sadie requested and received the documentation detailing those expenditures.
Upon completion of the repairs, the property was rented. It was never converted into office condominiums as had been originally discussed.
In the spring of 1983, Sadie requested that Martin and Page purchase his interest in the partnership. Martin agreed, but instructed him to secure another appraisal of the property, whereupon he and Page would purchase his interest for an amount based upon that appraisal. Sadie did not secure an appraisal. Martin suggested that Bernard Carmichael reappraise the property for him, and Sadie made no objection.
Prior to the commencement of that appraisal, the First Southern loan came up for renewal, and First Southern requested a reappraisal of the property. Consequently, Martin hired O.G. Pinkston to conduct that appraisal. Pinkston's appraisal, dated May 11, 1983, valued the property at $125,000.00. First Southern refused, however, to accept it, because Pinkston was not a member of its approved panel of appraisers. Martin retained Bernard Carmichael to reappraise the property for First Southern. His appraisal, dated June 10, 1983, valued the property at $120,000.00. Martin and Page subsequently offered Sadie $12,000.00 for his interest in the partnership based upon Bernard Carmichael's June 10th appraisal. Bernard Carmichael addressed the difference between the valuation in his 1983 appraisal and Ann Carmichael's 1980 appraisal in a letter to Sadie, dated June 27, 1983, where in substance he stated that the respective appraisals were some three years apart and that market conditions had substantially changed during that period of time. Sadie refused to accept this explanation, insisting that his partnership interest was worth far more than what Martin and Page had offered. Martin and Page declined, however, to pay Sadie more than the previously offered $12,000.00 for his interest, and this lawsuit followed.
Sadie contends that Ann Carmichael intentionally misrepresented the true market value of the property in 1980 by appraising it at a value in excess of its true fair market value to enable Martin and Page to secure an inflated loan from First Southern. He argues that he relied upon that appraisal and became liable on the note. In the alternative, he contends that Bernard Carmichael intentionally misrepresented the true market value of the property in 1983 by appraising it at a value below its true fair market value at that time to enable Martin and Page to purchase his partnership interest for less than its actual value. Sadie also contends that Martin, Page, Martin Company, and C & C, acting through Martin as agent, converted partnership funds to their own use, and that Martin and Page intentionally misrepresented to him the amount of money to be spent on the repairs and misled him with respect to the conversion of the property into office condominiums. He argues that he relied upon those representations and entered into the partnership. He finally contends that all of the defendants conspired to defraud him.
The defendants insist that there is no evidence supporting Sadie's allegations and that the undisputed facts in this case establish that the transactions between themselves and Sadie were at arm's length and commercially reasonable. Therefore, they *165 argue, summary judgment was properly granted in their favor. We agree.
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Fountain v. Phillips, 404 So. 2d 614 (Ala. 1981).
To constitute a conversion of property, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse. The gist of the action 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.1978).
The species of fraud alleged by Sadie requires a misrepresentation of material fact made with the intent to deceive and relied upon by, and resulting in damages to, the injured party. Holcombe v. Whitaker, 294 Ala. 430, 318 So. 2d 289 (1975).
A civil conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. The gist of the action is not the conspiracy alleged, but the wrong committed. O'Dell v. State, 270 Ala. 236, 117 So. 2d 164 (1960).
We have examined and considered all of the evidence in this case and all reasonable inferences to be drawn from it in a light most favorable to Sadie. Neither the evidence nor any reasonable inference arising from it furnishes a scintilla in support of Sadie's allegations. Sadie's undisputed testimony on deposition is as follows:
Assuming that Martin incorrectly represented to Sadie that the repairs would not exceed $18,000.00, there is no evidence that he intended to deceive him in this respect. It is undisputed that $55,000.00 of the loan proceeds was spent to purchase the property and that later $45,808.94 was spent to repair it and pay other expenses associated with its purchase. Thus, expenditures on the property, $100,808.94, actually exceeded the loan amount. Sadie's testimony on deposition continues:
The undisputed facts in this case show that the transactions between these parties were at arm's length and commercially reasonable. The difference between Ann Carmichael's 1980 and Bernard Carmichael's 1983 appraisals was explained by Bernard Carmichael in his June 27th letter to Sadie. Sadie's only basis for disputing the content of that letter or the correctness of either of the appraisals is his personal opinion that one of them has to be wrong. Again, Sadie's testimony on deposition:
Sadie's personal opinions and beliefs concerning the correctness of the two appraisals or the conduct of the defendants do not raise a genuine issue of material fact. Rule 56(e), A.R.Civ.P.
There being no evidence of conversion or fraud on behalf of any of the defendants, the conspiracy claim fails because there is no "actionable wrong" to support it. Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983).
Therefore, there was no error in granting a summary judgment in favor of the defendants.
The judgment appealed from is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.
[1] First Southern Mortgage Corporation and First Southern Federal Savings and Loan Association of Mobile were also named as defendants, but were dismissed on motion of the plaintiff. | March 29, 1985 |
7144b2df-a43d-4757-9907-46ac8c344970 | Anonymous v. Anonymous | 469 So. 2d 588 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 588 (1985)
ANONYMOUS
v.
ANONYMOUS.
84-190.
Supreme Court of Alabama.
April 12, 1985.
David J. Evans, Jr. and Gina Matthews, Boaz, Guardians ad Litem and counsel for appellant.
F. Timothy Riley of Carnes & Carnes, Albertville, for appellee.
BEATTY, Justice.
The judgment appealed from is reversed on the authority of Hudson v. Hudson, 373 So. 2d 310 (Ala.1979). Having considered the record and briefs, we hereby remand the case for the entry of an order dismissing the cause and assessing costs against petitioner, including fees of the guardians ad litem for legal services rendered in the trial and on the appeal.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and MADDOX, ALMON, SHORES and ADAMS, JJ., concur.
FAULKNER and JONES, JJ., dissent.
EMBRY, J., recuses himself.
JONES, Justice (dissenting).
With all due respect, I would remand this cause to the trial court for reconsideration pursuant to the stringent guidelines proposed in the following dissenting opinion.
Appellees, the natural parents of a fourteen-year-old daughter, filed in the circuit court a "Petition for Sterilization of Mentally Deficient Child." The petition alleged that the child has the intelligence level of a four-year-old; that she cannot care for herself; that she is often at a special school and out of the physical control of her parents; and "that such a sterilization procedure is in her best interests and medically necessary in order to prevent further deterioration or adverse impact upon her mental and emotional condition should said child become pregnant." The petition concludes with the request for the circuit court "to allow said child to undergo a sterilization procedure at the expense of her parents."
*589 The child's guardians ad litem counterclaimed for a permanent injunction to forbid the parents to have their child sterilized. Basically, the assertions made on the child's behalf were that sterilization was not medically necessary to the health of the child and that less drastic means for preventing pregnancy were available.
Four witnesses testified at the hearing: The pediatrician who has treated the child since 1978; a clinical psychologist who examined the child pursuant to a court-ordered examination requested by the guardians ad litem; and the parents of the child. In his memorandum opinion, the circuit judge stated:
The circuit judge then declared:
The record of the hearing in the circuit court fully supports the judge's findings of fact:
We note further from the hearing transcript that the child has been examined by several other doctors and psychiatrists. The opinion of the child's pediatrician was that the child suffers from organic brain syndrome and cannot carry on a conversation. A clinical psychologist testified that, based upon his examination of the child, she suffers from an organic brain abnormality. Additionally, he classified one of the child's conditions as autism and, in summation, stated, "I don't see an opportunity for really any further substantial improvement in her cognitive functioning or her adaptive behavior."
The parents testified that the child is often away from them at a special school for three weeks at a time. Because the child is physically attractive and sometimes affectionate to others, the parents fear that someone may have the opportunity to sexually take advantage of her while she is away from home in schools and institutions.
The testimony as to alternative forms of birth control came from the child's pediatrician who stated that, while any of the alternative temporary methods of birth control would be effective, there would be serious problems with any of them. Birth control pills can cause side effects and must be administered on a strict schedule in order to work. While missing a dosage of tranquilizing medication is self-evidencing in the deterioration of the child's behavior, misdosage of birth control pills does not carry such a symptomatic guarantee. An intrauterine device (I.U.D.) should not be left in the uterus for more than several years, and certainly not for the entire period of the child-bearing years. Some individuals cannot tolerate the presence of an I.U.D. and the device can pose a serious health threat in that it can cause severe cramps, uterine infections, and uterine perforations.
Further, stated the pediatrician, this child would, of necessity, have to be put to sleep during the procedure due to her inability to remain still and tolerate the uncomfortable insertion of an I.U.D. He also noted that neither the birth control pill nor the I.U.D. provides absolute safety against conception. Any of the other temporary methods of birth control (e.g., diaphragm and spermicides) are used just prior to intercourse and would be inappropriate because any intercourse involving this child would be "on a spur of the moment ... not really of her free choice." The pediatrician added that this child does not suffer from a genetic abnormality which would result in a deformed offspring should she become pregnant.
Two preliminary observations will be helpful in placing in perspective the issue presented for our review: 1) The trial court's three-part order(a) denying the Petitioner's request for an order directing the sterilization; (b) denying the injunction sought by the guardians ad litem; and (c) declaring the rights of the parents to exercise their discretion in the matteralthough declining to direct the requested procedure, authorized the parents to have *591 such procedure performed; and 2) while the "Issues Presented," as stated by the guardians ad litem, make no explicit reference to Part 2 of the trial court's order, the argument section of their brief makes it clear that the trial court's denial of their request to enjoin the parents from having their ward sterilized forms the core of their allegations of error.
Our focus is further sharpened by the respective contentions of the parties. The guardians ad litem cite Hudson v. Hudson, 373 So. 2d 310 (Ala.1979), for the proposition that, absent statutory authority, the inherent equity power of the court over both incompetents and minors did not include the power to order surgical sterilization. The parents argue, alternatively, that 1) Hudson's holding is predicated on the absence of any "contention that a surgical procedure is medically necessary or that the failure to authorize sterilization will endanger the [incompetent's] life or health;" and 2) virtually every jurisdiction that has addressed this issue since Hudson has recognized the court's inherent chancery power to authorize the surgical procedure of sterilization of an incompetent under restrictive guidelines.[2] To be sure, insist the parents, the court's intervention is absolutely essential in order to prevent unwarranted sterilization of defenseless incompetents.
I would begin my analysis by reaffirming Hudson.[3] The focal point of Hudson is the constitutionally protected private right of the individual to marry and have children. This fundamental right of decision with respect to bearing children is not subservient even to parental rights; and minors whose incompetency is due only to non-age have the absolute right to resort to the courts for its enforcement. Likewise, a competent adult has the unqualified right to choose for herself any form of contraception, including sterilization. (The use of the female gender is not intended as a limitation. I see no reason why the same considerations should not apply, when appropriate, to both male and female incompetents.)
The more difficult question, of course, is the surrogate or substitute decision on behalf of a mentally incompetent person. Hudson answers the question in those situations where there is no showing "that a surgical procedure is medically necessary." That is to say, Hudson stands four-square for the proposition that the parents cannot be authorized to act on behalf of their mentally incompetent minor child absent a showing that "the failure to authorize sterilization will endanger the [incompetent's] life or health." It is apparent that the latter-quoted phrase ("the failure to authorize sterilization will endanger the incompetent's life or health") is but an explanation of the former ("that a surgical procedure is medically necessary").
The ultimate question, then, is: What is the test for determining the right of the parents to act, as surrogates, for the incompetent *592 child?[4] Otherwise stated, assuming that the parents allege that surgical sterilization is medically necessary for the well-being of their mentally incompetent child, what are the guidelines that must be met as a condition to a court order authorizing the parents to proceed as requested?
As a preliminary step in a search for the answer, and at the risk of a certain degree of repetition, I deem it appropriate to make a few observations. I am keenly aware of the seriousness of the decision before us; and, because of the awesomeness of this responsibility, I perforce begin my consideration with the acknowledgement that the right to bear children is "fundamental to the very existence and survival of the race." Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942). The deprivation of this basic liberty, through unwanted sterilization, is so grave in its consequences to both the individual and society as a whole as to strengthen the court's resolve to protect the individual's right of meaningful choice. But, here, because of her severe mental deficiency, the incompetent cannot exercise either of her constitutional rights; that is, she does not have the ability to choose between sterilization and procreation, or among other methods of contraceptiona choice which, if legally competent, she would presumably make in her best interest.
Query: Should her inability to make a meaningful choice result in the forfeiture of the effective protection of her "best interest"a protection rooted in her right of privacy guaranteed by the Constitution? I approve the answer given by the New Jersey Supreme Court in Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976): "[If the right of choice is] a valuable incident to her right of privacy, as we believe it to be, then it should not be discarded solely on the basis that her condition prevents her conscious exercise of the choice." Quinlan, at 70 N.J. 41, 355 A.2d 664. I would hold that the effective protection of that right, under the appropriate circumstances of medical necessity, may require the court to assert the right of choice on behalf of the incompetent.
I would propose these applicable standards for determining whether to authorize sterilization.
1. Ultimately, it is the duty of the court, and not the parents, to determine the need for sterilization. As said before, the constitutional right here involved is a right personal to the individual. While the parents' duty of custody, care, and nurture gives rise to their right to advise a child and participate in any decision, a decision relating to reproductive anatomy belongs to the child and not to the parents. I agree with the Supreme Court of Washington when it observed that
2. Where application is made for authorization to sterilize an alleged incompetent person, the court should appoint a guardian ad litem, who must zealously represent the interest of his ward in all appropriate ways.
3. In addition to receiving medical and psychological testimony by qualified professionals offered by the parties, the court, in its discretion, may appoint its own experts to examine the alleged incompetent person, to assist the court in its evaluation of the incompetent's best interest, and to testify at the hearing.
4. Where practicable, as part of the proceedings on the petition, the trial judge should personally meet with the individual and form his own opinion of competency, as well as any other matters relating to the individual's best interest.
*593 5. The trial judge must find that the alleged incompetent is so mentally deficient as to lack capacity to make any decision relating to the sterilization and that such incapacity is total and permanent in nature. Because the trial court must exercise extreme care not to substitute its consent for that of any person capable of making his or her own decision, the proponent of sterilization must bear the burden by proving by clear and convincing evidence that the alleged incompetent lacks the capacity to consent or to withhold consent.
6. The trial court must be persuaded by clear and convincing evidence that sterilization is in the incompetent person's best interest. I would emphasize that a finding of "best interest" requires a specific concomitant finding that a surgical procedure is medically necessary; that is, that the failure to authorize sterilization would endanger the incompetent's life or health. In making this determination, the court should consider at least the following factors:
A) The probability or likelihood that the incompetent person may become pregnant. The court may presume fertility unless the evidence raises doubts.
B) The probability or likelihood that the incompetent person will experience substantial trauma (physical or psychological) if she becomes pregnant or gives birth, and, conversely, the probability or likelihood of such damage from the sterilization procedure.
C) The probability or likelihood that the individual will be subjected to sexual activity by voluntarily engaging in sexual intercourse or be exposed to situations where sexual intercourse is imposed upon the incompetent.
D) The inability of the incompetent person to understand reproduction or contraception and the likely permanence of that inability.
E) The medical advisability and practical feasibility of less drastic means of contraception at the present time and under foreseeable future circumstances.
F) The urgency of sterilization at the present time as opposed to the advisability of the proposed surgical procedure at some time in the future. The court should be cautious to deny authorization unless and until it is persuaded by clear and convincing proof that the proposed sterilization procedure is a medical necessity under all the current circumstances.
G) The ability of the incompetent person to care for a child, either at the present time or at some future time with any degree of reasonable certainty.
H) Reasonable inferences from the evidence that scientific advances may occur which will either make possible improvement of the individual's condition or render feasible alternative and less drastic contraception procedures.
I) A showing that the proponents of sterilization are acting in good faith and that their sole concern is for the best interest of the incompetent person, rather than for their own or the public's convenience.
Other pertinent factors may also be considered, and each should be given appropriate weight as the particular circumstances dictate. The ultimate criterion is the best interest of the incompetent person as I have sought to define that interest; that is, that the failure to authorize sterilization, under all of the circumstances of the particular case, will likely endanger the incompetent person's life or health.
One further observation before I conclude this section of my dissent: None of the several courts that have recognized their inherent power to address this problem have made "medical necessity" the test for determining "best interest." To those who will complain that the "best interest" test which I propose exacts too heavy a burden on the proponent of sterilization, I can only respond that I have done so consciously and purposefully. Because of the grave consequences of the surgical procedure of sterilization, I adhere to the view that courts must exercise their inherent parens patriae jurisdiction in such matters with extreme caution.
*594 It is not my purpose to criticize those courts that have formulated a more liberal set of guidelines; but I am firm in my conviction that, when the law moves into a heretofore unknown arena, as in this case, it is the wisdom of the common law that it make the move slowly and with great deliberation. The court's authorization of one person to exercise a constitutionally granted choice on behalf of another, even when the one is a caring and dutiful parent and the other a severely mentally retarded child who can never exercise that choice for herself, must be given under such stringent standards as to insure, as best it knows how, that any error committed will be committed in denying, as opposed to granting, the petition for sterilization. Yet, consistent therewith, I am just as firm in my resolve that, for the protection of the incompetent's fundamental rights, the court cannot simply step aside and wash its hands of the matter without risking grave violations of these precious rights. Because this Court has declined to act, the legislature, with all deliberate haste, should move into the vacuum and establish the requisite public policy criteria so as to prevent the indiscriminate use of standardless procedures calculated to result in serious and irreversible injury to defenseless incompetents.
I return now to the trial court's order and test its contents against the above-stated standards. Although it is readily apparent that the trial court's "findings of fact" evince due consideration of many of the herein prescribed factors, and are in substantial compliance with the requisites for determining the best interest of the incompetent child, it is likewise apparent that in one particular aspect the thrust of the trial court's order is at variance with the central theme of this dissenting opinion. Furthermore, I would opine that to the extent that its authorization is grounded on the rights of the parents and not focused solely on the rights of the incompetent, whose sterilization is in issue, the trial court's order cannot be permitted to stand.
Thus, I would remand this cause to the circuit court for reconsideration, utilizing the "clear and convincing" standard of persuasion in evaluating the evidence and utilizing the above-prescribed guidelines in determining the "best interest" of the incompetent, as herein defined. I would further provide that the order of remand be without prejudice to the rights of the parties to appeal from the final judgment entered by the trial judge upon remand of this cause.
FAULKNER, J., concurs.
[1] The child has had her fourteenth birthday since the date of the entry of the court's order.
[2] A partial list of subsequent cases includes In re Nilsson, 122 Misc.2d 458, 471 N.Y.S.2d 439 (1983); In re Moe, 385 Mass. 555, 432 N.E.2d 712 (1982); In re Terwilliger, 304 Pa.Super. 553, 450 A.2d 1376 (1982); Brode v. Brode, 278 S.C. 457, 298 S.E.2d 443 (1982); In re Grady, 85 N.J. 235, 426 A.2d 467 (1981); In re Johnson, 45 N.C.App. 649, 263 S.E.2d 805 (1980); In re Hayes, 93 Wash. 2d 228, 608 P.2d 635 (1980); and In re Penny N., 120 N.H. 269, 414 A.2d 541 (1980).
Although In re Gradya well-reasoned, well-written opinionestablishes a more liberal "best interest" test, from the standpoint of the proponent of sterilization, than the standards I propose in this dissenting opinion, I have adopted much of its rationale. I particularly commend the Grady court for its excellent historical account of the evolution of cultural attitudes toward, and society's frequent abuse of, the practice of sterilization of mentally incompetent and disabled persons.
[3] For the sake of clarity, it should be noted here that I do not disagree with the majority's interpretation of Hudson. Because the legislature has not interceded in these matters, the majority is effectively extending the application of Hudson `s holding in the instant context in which the parents allege and prove "medical necessity"a missing component in Hudson.
[4] This reference to "right of the parents to act" is used in the context of the instant case in which the parents are the petitioners, seeking sterilization. It is not necessary here, particularly by way of a dissenting opinion, to discuss the range of persons who may petition for authorization to act on behalf of an incompetent. | April 12, 1985 |
9cf35a45-abe1-47ca-b49a-9de15b0aaca7 | Dean v. Myers | 466 So. 2d 952 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 952 (1985)
William G. DEAN, Jr.
v.
Doyle R. MYERS and Alfred R. McCracken.
83-245.
Supreme Court of Alabama.
March 22, 1985.
*953 Aubrey O. Lammons of Lammons, Bell & Sneed, Huntsville, for appellant.
J. Allen Brinkley of Brinkley & Ford, Huntsville, for appellees.
ALMON, Justice.
This is an appeal from a judgment on a verdict awarding $45,000 to plaintiffs, Doyle R. Myers and Alfred R. McCracken, in their suit against William G. Dean, Jr., for breach of a joint venture agreement among the three. Dean argues that the contract was void under the Statute of Frauds and that there was insufficient evidence of breach or damages.
Although Dean raised the Statute of Frauds as an affirmative defense, he admitted the existence of a joint venture agreement and most of its terms in alternative defenses and in his testimony. He also filed a counterclaim based on the contract.
The essence of the agreement, admitted by all parties, is that Dean, Myers, and McCracken agreed to pool their efforts and resources to construct a condominium complex in Huntsville. The complex was to be known as "Crossgate Condominiums." Dean was to provide the land and financial backing, while Myers and McCracken were to provide construction expertise and to oversee construction and sales. The plans called for construction in five phases of twelve units each.
*954 The parties agreed to divide profits, 50% to Dean and 50% to Myers and McCracken. Myers and McCracken were to receive $25,543.31 in construction fees for Phase I, and they did receive this amount plus about $3,000 more. Dean contended at trial that this money was intended to be a draw against their share of the profits, but Myers and McCracken denied this. Myers testified that this fee was paid for their actual services as general contractors and had nothing to do with their design, consulting, and other work performed before, during, and after the construction phase. Moreover, Myers and McCracken contended this figure was less than half what they would charge as general contractors without the profit sharing agreement. Dean, on the other hand, was to receive $20,000 per acre for his land (about 4.4 acres in all), and he did not consider this to come out of his share of the profits.
The parties made the oral agreement to form the joint venture around September of 1979. Construction of Phase I began in April 1981 and was completed by March 1982.
In December 1981, after Myers and McCracken had substantially completed Phase I of the project, Myers walked in on a meeting between Dean and a realtor in which Dean was discussing selling out of the project. According to Myers and McCracken, Dean told them on the following day that he was selling the project to another developer, that he had made no financial provisions for them, and that he was terminating the relationship. Dean had their utilities at the construction site turned off the following month, effectively driving them off the property and terminating their involvement in the project.
At the beginning of the project, Dean transferred title to his land to Crossgate, Incorporated, a corporation of which he was the sole stockholder. On May 6, 1980, Dean, as president of Crossgate, Inc., caused the corporation to mortgage this land to him individually as security for a $16,000 debt. On the same date, he personally mortgaged the same land for $180,000 to a third party who contemporaneously transferred the mortgage back to Dean. These two mortgages (but not the transfer back) were recorded. Dean never told Myers and McCracken of these mortgages.
On March 27, 1981, Dean executed an affidavit "for the purpose of inducing the Phenix Federal Savings and Loan Association of Phenix City, Alabama, to pay out money." On the same date, Phenix Federal accepted a mortgage from Crossgate, Inc., for construction financing. Dean's affidavit recited that Dean was the owner of the land in question and that there were no encumbrances on the property except a preliminary development mortgage, which was to be subordinated to the mortgage to Phenix Federal. Dean did not mention the two above-described mortgages.
Dean contends that the trial court erred in failing to grant his motion for directed verdict or his motion for JNOV or new trial, because the oral joint venture agreement is void under the Statute of Frauds, Code 1975, § 8-9-2, either as a contract not to be performed in one year or as a contract for the sale of an interest in land.
We question whether the joint venture agreement was a contract for the sale of land within the contemplation of the Statute of Frauds. Hunt v. Hammonds, 257 Ala. 586, 60 So. 2d 355 (1952). The contract was not to be performed within one year, however; certainly not the full five-phase development, whose anticipated profits formed a major part of the complaint. The plans prepared by the parties showed development over the course of three years, and the first phase alone was not actually completed until more than two years after they entered into the agreement.
We are aware of the statements that a contract is not within the Statute of Frauds unless it cannot possibly be performed within a year. See, e.g., Kitsos v. Mobile Gas Service Corp., 404 So. 2d 40 (Ala.1981), appeal after remand, 431 So. 2d 1150 (Ala. 1983); Land v. Cooper, 250 Ala. 271, 34 So. 2d 313 (1948). There must be a reasonable possibility of performance within a year, however. W.P. Brown & Sons Lumber *955 Co. v. Rattray, 238 Ala. 406, 192 So. 851 (1939). We see no such reasonable possibility under the circumstances, and certainly not within the intentions of the parties.[1] The contract therefore was within the Statute of Frauds.
The trial court did not err in denying Dean's motions, however, because the facts of the case support a conclusion that Dean was estopped to assert the Statute of Frauds. He admitted the existence of the contract in his answer, counterclaim, and sworn testimony. Although Dean did not sign a joint venture agreement as such, he formed Crossgate, Inc., to carry out the business of the joint venture. He signed documents in connection with financing the project, and he signed checks to pay the bills as the project advanced. Extensive plans for the entire project were drawn up, and Dean was familiar with these as he participated in the development. He accepted the benefits of the improvements to his land, including parcels other than that on which Phase I was built. Finally, his conduct in regard to his mortgages on the land and his unilateral termination of the joint venture are evidence from which the jury could find fraudulent intent on his part.
"The purpose and intent of the Statute of Frauds is to prevent fraud, and not to aid in its perpetration." 73 Am.Jur.2d Statute of Frauds § 562 (1974) (citations omitted). Campbell v. Regal Typewriter Co., 341 So. 2d 120 (Ala.1976); Nelson Realty Co. v. Darling Shop of Birmingham, Inc., 267 Ala. 301, 101 So. 2d 78 (1957). A party may waive the Statute of Frauds by affirmative act such as bringing an action based on the oral contract. Conway v. Andrews, 286 Ala. 28, 236 So. 2d 687 (1970); Hooper v. Reed, 211 Ala. 451, 100 So. 875 (1924).
This Court has held that while a contract within the Statute of Frauds may not be made effectual by estoppel merely because the promisee has acted on it and the promisor has not performed, acceptance of the benefits by the promisor may give rise to estoppel, particularly if the promisee has fully performed. Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So. 2d 350 (1974), appeal after remand, 336 So. 2d 148 (Ala.1976). The court did not err in denying Dean's motions for directed verdict and for JNOV or new trial based on the Statute of Frauds.
Dean further argues that the trial court erred in denying his motion for directed verdict and his motion for JNOV or new trial, because there was no evidence of breach of the contract or of damages. The evidence set out above is sufficient to indicate that there was evidence from which the jury could find that Dean breached the contract. A fuller discussion in regard to damages follows.
Myers and McCracken itemized as damages $147,000 in expenses they had incurred in performing their part of the project. The parties had submitted figures to the banks from which they obtained construction loans, showing that they expected to make approximately $276,000 in profits. Most of the profits were to come from the third, fourth, and fifth phases of the project.
One of the suppliers of the project was not paid. McCracken, as on-site foreman, had personally guaranteed the bill when the materials had been delivered. The supplier sued him, received a $10,000 judgment, and filed a lien against McCracken's house. Myers and McCracken contended at trial that paying this bill was Dean's responsibility.
Myers and McCracken did feasibility studies and planning on a project on some other property that belonged to Dean. Myers helped Dean persuade Liberty National Life Insurance Company to build an office on the site. After Dean terminated the joint venture, he developed this property, using the preparations made by Myers and McCracken. Their itemization of damages *956 included charges for their time and expenses in connection with this work.
The jury was entitled to believe this and other evidence of a breach by Dean of the joint venture agreement and damages to Myers and McCracken. A joint venture is not terminable at the pleasure of one of the parties prior to the completion of the purpose to be accomplished by the agreement. Pfingstl v. Solomon, 240 Ala. 58, 197 So. 12 (1940).
Upon Dean's breach, the work and labor done and expenses incurred by Myers and McCracken, together with profits reasonably certain to be realized from later stages of the project, became proper elements of damages. Malone v. Reynolds, 213 Ala. 681, 105 So. 891 (1925); Varner v. Hardy, 209 Ala. 575, 96 So. 860 (1923). The jury awarded damages far lower than those claimed by Myers and McCracken for their time and expenses.
Finding no error, we affirm the judgment.
AFFIRMED.
All the Justices concur.
[1] Nor could rescission within a year prevent the contract from being within the Statute of Frauds, because in such a case the agreement would not be performed. 2 Corbin on Contracts § 451 (1950). Thus, the "employment for life" situation in Kitsos is distinguishable, because the contract is performed under its terms if the employee dies within a year. | March 22, 1985 |
fef6ed32-e965-4d14-87b7-94654b36479a | Ex Parte Felder | 470 So. 2d 1330 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1330 (1985)
Ex parte Samuel Lee FELDER.
(In re: Samuel Lee Felder v. State of Alabama.)
84-108.
Supreme Court of Alabama.
March 15, 1985.
Rehearing Denied May 10, 1985.
George W. Cameron, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for respondent.
PER CURIAM.
Having read and considered the record, together with the briefs and arguments of counsel, this Court has concluded that the judgment of the Court of Criminal Appeals (Felder v. State, 470 So. 2d 1321 (Ala.Crim. App.1984)), must be affirmed. A.R.A.P. 39(k).
AFFIRMED.
All the Justices concur. | March 15, 1985 |
c099fd42-c83a-45cf-a686-5c245c96b133 | American Pioneer Life Ins. Co. v. Sandlin | 470 So. 2d 657 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 657 (1985)
AMERICAN PIONEER LIFE INSURANCE COMPANY and American Pioneer Corporation
v.
Fred C. SANDLIN, Jr., as Executor of the Estate of E. Kenneth Ayres, deceased.
82-1063.
Supreme Court of Alabama.
April 12, 1985.
*659 Clifford Fulford of Fulford, Pope and Natter, Birmingham, and Maryon F. Allen of Bell, Allen and Johnson, Pelham, for appellants.
Charles E. Sharp, Eugene P. Stutts, and John H. Bentley of Sadler, Sadler, Sullivan, Sharp & Stutts, and William Atkinson of Fite, Davis & Atkinson, Hamilton, for appellee.
ALMON, Justice.
In this insurance fraud case, the jury rendered a verdict for plaintiff, awarding $100,000 compensatory damages and $3,000,000 punitive damages. The defendant insurance companies raise numerous issues, which we shall consider in appropriate order.
The suit arises from the purchase by E. Kenneth Ayres of an annuity from American Pioneer Life Insurance Company (American Pioneer Life) in 1978. At the instigation of L. Paul McWhorter, Ayres cancelled three life insurance policies and withdrew the cash value thereof. Using this cash, Ayres invested $24,000 in a "Flexible Premium Annuity" issued by American Pioneer Life. This annuity was designed for a much smaller initial payment (generally $100 or less) and annual payments thereafter until retirement. McWhorter represented to Ayres that the annuity only required a one-time payment, that the full initial payment constituted the cash value of the annuity, and that Ayres *660 could withdraw his money with interest at any time.
In fact, the cash value of the annuity was only $12,000. It paid a 50% commission, which would have been much smaller if the payments were smaller, the term was shorter, or the annuity was in fact a single premium annuity. McWhorter filled out the application so that Ayres's grandson, Fred C. Sandlin, Jr., was the annuitant while Ayres was the applicant and beneficiary. This meant that Ayres was investing the $24,000 and giving it to his grandson, who would receive the annuity payments upon retirement forty years later. Without further premiums, the payments would be substantially reduced. In the event that Sandlin predeceased Ayres, Ayres would receive as a death benefit the amount paid in to the annuity plus a certain amount of interest. The application showed that Sandlin was 30 years old and that Ayres was his grandfather. Ayres was 69 at the time, although this did not appear on the application.
McWhorter was a registered agent of Lincoln National Life Insurance Corporation. He approached Ayres because he knew of Ayres's life insurance policy with Lincoln National, which was one of the policies McWhorter persuaded Ayres to cancel. McWhorter engaged in a series of transactions similar to this one, as evidenced by the testimony of ten witnesses in this case and by actions filed against him and various insurance companies in the Federal District Court for the Northern District of Alabama and consolidated as The McWhorter Insurance Cases, No. CV 83-P-1744-S. McWhorter has since filed for bankruptcy, so Ayres's action against him was stayed and is not at issue in this appeal.
When Ayres's application reached American Pioneer Life's offices in Orlando, Florida, Chuck Green, Agency Vice President, took it to Lois Johnson, Senior Underwriter, because, in Johnson's words, Green "wanted me to rush this policy through." Johnson became "upset" and refused to issue the annuity because she was being told to issue an annuity where the applicant had $24,000 and "the very minute I issued it it became worth $12,000." She took the application to Harold Pickett, Senior Vice President, who agreed that American Pioneer Life should not issue the annuity. Green, however, persuaded Derrell Haus, the president of American Pioneer Life, to overrule Johnson and Pickett.
American Pioneer Life issued the annuity in May 1978. When Ayres received it, he stored it in his safe deposit box. In August 1979, American Pioneer Life sent him a notice that his premium due on May 18 had not been received. McWhorter had previously assured him that any premiums were optional and that he could throw away any letters notifying him of premiums due, so he ignored it. In October 1981 Ayres tried to borrow money on the annuity, but his banker said the policy was not worth anything for a loan. Ayres filed this suit in December 1981 against McWhorter; American Pioneer Life; Milton L. Culver, American Pioneer Life's brokerage agent in Birmingham; and Underwriting Services of Alabama, Culver's agency.
On September 24, 1982, Ayres amended his complaint to include as defendants Lincoln National Life Insurance Company, Lincoln National Sales Corporation of Central Alabama, and American Pioneer Corporation, the parent company of American Pioneer Life.[1] McWhorter filed for bankruptcy on April 11, 1983, and the trial court stayed the action against him. The case went to trial against all other defendants on April 14, 1983. Underwriting Services of Alabama was dismissed as a defendant during trial. After a five-day trial, the jury returned a verdict of $100,000 compensatory damages against the remaining defendants and $3,000,000 punitive damages against all remaining defendants except Culver. Thus, the jury assessed punitive *661 damages against the two American Pioneer defendants and the two Lincoln National defendants.
These four defendants filed notice of appeal.[2] Before the case was argued and submitted, however, the Lincoln National defendants entered into a settlement agreement with Ayres's estate, Mr. Ayres having died after the trial. The American Pioneer appellants filed a motion to make the settlement agreement part of the record and for judgment in their favor on the grounds that the settlement amounted to a satisfaction of the judgment and therefore discharged the American Pioneer appellants from liability. They cite Butler v. GAB Business Services, Inc., 416 So. 2d 984 (Ala.1982); and Maddox v. Druid City Hospital Board, 357 So. 2d 974 (Ala.1978).
In both of the cited cases, this Court upheld summary judgments for defendants who were sued subsequent to the satisfaction of "pro tanto judgments" against their joint tortfeasors. In both cases, the first-sued defendant paid the judgment and the plaintiff accepted it. The Court in Butler held that "Payment of a judgment is satisfaction thereof." 416 So. 2d at 986 (emphasis in original). The pro tanto release of Lincoln National, however, is only a partial satisfaction of the judgment under the express holdings of this Court in many cases, including Butler and Maddox, supra; Williams v. Colquett, 272 Ala. 577, 133 So. 2d 364 (1961); and Steenhuis v. Holland, 217 Ala. 105, 115 So. 2 (1927). Code 1975, § 12-21-109, requires that "All ... releases... must have effect according to the intention of the parties thereto."
In Steenhuis v. Holland, supra, the Court clearly set out the circumstances under which claims against one joint tortfeasor are and are not barred by prior settlements with, releases of, judgments against, or satisfactions of judgments against, any other joint tortfeasor(s):
Id., 217 Ala. at 107-108, 115 So. at 3-4 (citations omitted).
This right to release one joint tortfeasor has been recognized even in the cases where the Court has held that the action at bar was barred by a prior satisfaction. "The parties here could have entered into a pro tanto release agreement and preserved the [remaining] claims." Butler, supra, at 985. "Likewise, it is the right of the injured party to accept satisfaction in part from one tort-feasor, release him, and proceed against the other. Such release operates *662 in favor of such other only as satisfaction pro tanto." Maddox, supra, at 976.
The settlement agreement between the Ayres estate and Lincoln National is styled "Pro Tanto Release" and its content shows an intent only to release the Lincoln National defendants from liability. Fred Sandlin, Jr. executed the release as the executor of Mr. Ayres's estate, and the heirs, legatees, and beneficiaries of the estate executed an attached consent and ratification. The release specifically retains all claims against McWhorter, Culver, American Pioneer Life, American Pioneer Corporation, and the surety on American Pioneer's supersedeas bond. It includes nothing to indicate that it was intended to operate as full satisfaction of the claim, and much to the contrary.
The pro tanto release of Lincoln National does release American Pioneer to the extent of the settlement, $900,000, under the rule of the authorities discussed above. Because the release does not operate as a full satisfaction of the judgment, we deny the motion for judgment in American Pioneer's favor. We now proceed to the issues which American Pioneer raises in the principal appeal.
American Pioneer Life pled the statute of limitations in its answer. American Pioneer Corporation filed a motion to dismiss the complaint because the action was barred by the statute of limitations. The trial court denied American Pioneer Corporation's motion to dismiss. Both defendants made and argued motions for directed verdict at the close of plaintiff's evidence, including as a ground the statute of limitations.
The gist of American Pioneer's argument is that Ayres should have discovered the alleged fraud more than one year prior to the time he filed suit. After Ayres received the annuity in May 1978, Pickett, the vice president who did not think it ought to issue, wrote a letter to him in August. Pickett testified regarding this letter:
American Pioneer sent the following letter with Mr. Pickett's signature:
"Dear Mr. Ayres:
RE: Policy Number 28736
AnnuitantFred C. Sandlin, Jr.
*663 None of the statements in this letter were so inconsistent with McWhorter's alleged representations about the policy as to persuade us to hold as a matter of law that Ayres should have inquired and discovered the fraud upon receiving this letter. In fact, with an understanding that premiums were optional, Mr. Ayres would hardly be likely to sense anything amiss from this letter.
Mrs. Johnson, the underwriter who was upset about the annuity, testified that she sent a letter to Ayres at the end of 1978 with the cash value of his policy underlined in red, but Ayres denied receiving this letter. He did acknowledge receiving the following letter, sent by a policyholders' service representative at American Pioneer Life on August 30, 1979:
This letter has a stronger tendency to put Mr. Ayres on notice of facts which should have led him to discover the fraud, yet, under the circumstances, the trial court did not err in declining to rule that it constituted such notice as a matter of law. The letter makes a single reference to cash value in the course of discussing premium payments. At the time Mr. Ayres received the letter, he was seventy years old, he did not have much experience with insurance (he had worked in forestry and road construction), and he had been prepared by McWhorter to disregard letters requesting premiums. Mr. Ayres testified that he thought both letters were about optional premium payments, that he did not understand them, and that he disregarded them according to McWhorter's instructions. Thus, the question was for the jury whether these letters were sufficient to raise his suspicion to the extent that the statute of limitations should begin to run.
American Pioneer asserts that the trial court erred in instructing the jury on the statute of limitations because no instruction was given that Mr. Ayres could not recover against the American Pioneer defendants if, with reasonable diligence, he should have discovered the fraud more than one year prior to bringing the action. See Code 1975, §§ 6-2-3, 6-2-39; Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983); Retail, Wholesale and Department Store Employees Union, Local 453 v. McGriff, 398 So. 2d 249 (Ala.1981); Papastefan v. B & L Const. Co., 385 So. 2d 966 (Ala.1980).
When American Pioneer objected that the court failed to instruct that the statute of limitations would begin to run at any time when Ayres should have discovered the fraud, the court responded, "One of the charges did." The court gave the following requested instruction for Lincoln National:
*664 Ayres argues that the jury, by returning a verdict against Lincoln National, necessarily found that the facts were not such that Ayres should have discovered the fraud more than one year prior to the time he brought suit. We agree that this is truethe statute of limitations began to run against all defendants at the same time. In fact, this instruction could conceivably have worked to the advantage of American Pioneer Life: it refers to the date of the amended complaint which added Lincoln National and American Pioneer Corporation as defendants.
We note also that American Pioneer did not submit a written requested instruction on this issue, so it has less grounds to object that the trial court did not specifically instruct the jury on this issue as to American Pioneer. Even though American Pioneer pointed out to the trial court that the written instruction pertained to Lincoln National, the trial court's decision not to call the jury back in to instruct it that the same principle applied to American Pioneer is not reversible error. If the jury had returned a verdict in favor of Lincoln National but against American Pioneer, American Pioneer would have grounds to complain. As it is, any error is harmless because the jury found in favor of Ayres on the question of whether he should have discovered the fraud prior to the time his banker told him the policy would not support a loan. Rule 45, A.R.A.P.
American Pioneer asserts that McWhorter was not its agent. It argues that McWhorter was a licensed agent of Lincoln National; that as between Ayres and American Pioneer, he was Ayres's agent; and that Culver was American Pioneer's agent in the transaction. American Pioneer argues that McWhorter was not its agent under the statutory definition of an agent in the "Life and Disability Insurance Representatives" chapter of the Code title covering insurance:
Code 1975, § 27-8-1(a).
The trial court, during arguments on the defendants' motions for directed verdicts, observed:
The trial court's instructions to the jury included the following:
*665 McWhorter was not a registered agent for American Pioneer when he sold Ayres the annuity, although he did become one a few months later. The comprehensive charge which the court gave to the jury on agency covered the possibility that McWhorter was "authorized by [American Pioneer] to solicit applications or to negotiate for insurance or annuity contracts." Section 27-8-1(a), supra. McWhorter sent the application to American Pioneer Life without Ayres's or Sandlin's signature. After approving the contract pending signatures (over Pickett's and Johnson's objections), American Pioneer returned the application to McWhorter for him to procure the signatures. McWhorter accepted Ayres's check for the premium, and the annuity states that "All premiums shall be payable in advance either at the Home Office of the Company, or to an authorized agent of the Company upon delivery of a receipt signed by the President or Secretary of the Company and countersigned by such agent."
American Pioneer cites Sellers v. Commercial Fire Ins. Co., 105 Ala. 282, 16 So. 798 (1895), for the proposition that McWhorter was Ayres's agent, not American Pioneer's. In that case, however, the evidence showed that Trimble and Co. were independent brokers and had no tendency to prove that they acted as agents for the insurance company. As noted above, there was disputed evidence in this case, so the question was for the jury.
The trial court gave an instruction as to insurance brokers, so the possibility that McWhorter was merely a broker was covered.
American Pioneer asserts that it was entitled to a directed verdict on Ayres's conspiracy count. There was evidence from which the jury could have inferred a conspiracy among McWhorter, Culver, and Green. Among the testimony in support of a conspiracy theory is that of Lois Johnson, who testified as to similar, later annuity applications which she questioned so strongly as to have Equifax Services investigate. The continuing participation of Culver and Green in these applications serves as inferential evidence of a scheme among them to issue fraudulent policies.
American Pioneer cites Tuskegee Institute v. May Refrigeration Co., 57 Ala.App. 344, 328 So. 2d 598 (1976), aff'd in part and rev'd in part, 344 So. 2d 156 (Ala.1977), as holding that a corporation cannot conspire with its agents. We question whether this statement by the Court of Civil Appeals stands in light of this Court's reversal. This Court affirmed on the insufficiency of evidence of actual or apparent authority but reversed on the issue of ratification, all the while accepting the complaint's theory of a conspiracy between the corporation and its agents. Even Justice Bloodworth's dissent appears to accept the principle of such a conspiracy, but does not agree that the corporation can ratify its own conspiracy.
If the question were a conspiracy between McWhorter and American Pioneer as an abstract entity, we might agree with American Pioneer's position. As we stated above, however, the evidence would support a finding of a conspiracy among the agents of American Pioneer; or, for example, between McWhorter and American Pioneer through the actions of its vice president, Chuck Green. The court did not err in submitting Ayres's conspiracy count to the jury. American Pioneer did not object to the giving of Ayres's requested jury charge on conspiracy, so we need not address the propriety of that instruction.
On the next to the last day of trial, Ayres added Count IX as an amendment to his complaint:
American Pioneer complains that this was the first time any allegation of duty to disclose and suppression of material facts had been made against the American Pioneer defendants. Count VIII of the complaint raised such allegations against Lincoln National.
The court held a hearing on American Pioneer's motion to correct the record to reflect whether the court allowed Count IX or not. After much discussion, the court ruled, "in view of the fact that no ruling is required on this and it doesn't appear in the record that I ... struck it, I'm going to leave it in."
The court's instructions to the jury include following references to duty to disclose and suppression:
These instructions do not distinguish between Lincoln National and American Pioneer, but we see no error. The allowance of Count IX against American Pioneer was proper under Rule 15(b), A.R.Civ.P., "Amendments to Conform to the Evidence."
The testimony of Johnson and Pickett, which was the first testimony taken at trial, clearly raised the question of whether American Pioneer, under the circumstances of the application, was under a duty to disclose to Mr. Ayres the highly unusual and financially imprudent nature of purchasing the annuity in the amount requested. Among those circumstances which have not been set out above are Pickett's testimony that Alabama approved the annuity for payments only up to $7,500.00, and Johnson's testimony that the application pertained to an out-of-date annuity for which she had to retrieve a form from storage and which gave the agent a higher commission than similar annuities being issued at the time. American Pioneer cannot complain about the allowance of Count IX to conform to this evidence tending to establish a duty to disclose, because it did not object to this testimony on the grounds that it related to matters outside the pleadings nor to Pickett's testimony that Green and Haus objected to his contacting Ayres and edited his letter.
*667 The evidence in this case supports a finding that American Pioneer had a duty to disclose the matters raising serious questions in the minds of two of its senior officers about the propriety of issuing this annuity. This duty arose under the principle that one party, in a superior bargaining position and with particular knowledge and expertise, has a duty to disclose material facts not known to the other party. Code 1975, § 6-5-102; Jim Walter Homes, Inc. v. Waldrop, 448 So. 2d 301 (Ala.1983); and State Farm Mut. Auto Ins. Co. v. Ling, 348 So. 2d 472 (Ala.1977). In light of Johnson's and Pickett's conviction that the policy should not issue, American Pioneer should have informed Mr. Ayres of the unprecedented size of the annuity for which he was applying, the immediate loss of cash value, the fact that the Alabama Department of Insurance did not approve this annuity in so large an amount, and the other factors described above. Instead, American Pioneer approved the application and returned it for Ayres's and Sandlin's signatures and Ayres's check for $24,000.
American Pioneer objects that the trial court allowed Johnson and Pickett to testify that they thought issuing the annuity was unethical. This testimony was merely part of these two witnesses' description of why, as an executive officer and a senior employee of American Pioneer, they refused to issue the annuity. Furthermore, in the context of the testimony as a whole it was not error to allow this testimony.
American Pioneer, in its cross-examination of Pickett at the beginning of the trial, asked, "Did you know Mr. Haus to be an honorable man? A. Yes. Q. So you didn't have any reason to think that Mr. Haus was up to anything when he [told you to go ahead and issue the policy], did you? A. No." This question sufficiently opened the door on "ethics" that the trial court's later ruling allowing Ayres to ask such questions is not reversible error. Shortly thereafter, American Pioneer asked Pickett if he knew of anyone doing anything illegal in the issuance of the annuity.
Later, in redirect examination, Mr. Ayres's attorney asked Pickett if he thought the application was ethical. The court sustained an objection, and the attorney rephrased the question, "Would you say from your standpoint as a CLUwould you say this was an unethical application? A. Yes." No objection was made to this question, nor did American Pioneer move to exclude the answer. Ayres's attorney asked no further questions, but American Pioneer's attorney immediately thereafter extensively cross-examined Pickett on the question of ethics. After this cross-examination, the court granted American Pioneer's motion to exclude Pickett's answer. We see nothing in this exchange to which American Pioneer can object.
Later, during questioning of Johnson, she was asked if she thought issuing the policy was unethical. The court overruled an objection, and she answered that she though it was unethical. This again was a single question in the course of her testimony about her objections to the policy being issued. In light of how extensively the door had been opened during Pickett's testimony, we do not find that the court erred in overruling the objection. We note further, incidentally, that the court sustained objections to questions of whether Pickett and Johnson thought Green was an honorable man, an issue explicitly opened by American Pioneer with respect to Mr. Haus.
Ayres introduced testimony of ten witnesses to whom McWhorter had sold ten annuitiestwo from American Pioneer, and eight from another insurance company. American Pioneer argues that the trial court erred in allowing these witnesses to testify as to the amounts of their losses under the holding of Cartwright v. Braly, 218 Ala. 49, 117 So. 477 (1928). Ayres argues that Cartwright is distinguishable because in that case the testimony as to the amounts lost was not necessary to proof of fraudulent intent, while in this case such *668 testimony was necessary to establish the fraudulent nature of the transaction.
In Cartwright the defendant defrauded plaintiff and others by representing that defendant's bank was solvent and its assets were good, thereby inducing purchases of the bank's stock. The bank failed, causing plaintiff and his witnesses to lose money. Ayres points out that because the fact of the failure of the bank was sufficient proof of the fraudulent scheme, this Court held that admission of evidence of amounts lost was prejudicial error. Ayres argues that without the testimony of his witnesses that they in fact lost money due to McWhorter's representations and the sale of annuities to them, there would be no proof that the representations (as to recovery of principal, accumulation of interest, etc.) were false, and thus the testimony would not have tended to prove a common scheme.
We think this distinction is sound. The complicated nature of these annuities made it proper for Ayres to present to the jury the common elements of these transactions. The two witnesses who had purchased American Pioneer annuities were retired, elderly persons who invested over $20,000 each into the same type of flexible premium annuities, from which they lost fifty percent of their investment. These transactions took place within two months after Ayres bought his annuity. Lois Johnson testified that she took exception to these and other such sales, to the extent that she requested Equifax investigations into the financial status of some of the applicants. The specifics of the losses were thus an integral part of the proof of the fraudulent scheme and it was not error for the court to allow this testimony.
The court instructed the jury that the testimony from the eight other witnesses was relevant to Ayres's action against Lincoln National, but not to the claims against American Pioneer. Ayres had some thirty other witnesses available to testify, but the court cut off this line of testimony.
American Pioneer Corporation argues that it could only be held liable as the owner of the stock of American Pioneer Life Insurance Company if Ayres had shown that American Pioneer Life was a mere instrumentality of American Pioneer Corporation, and insists that there was a total lack of proof on this point. The principle of this argument is correct, but the allegation as to the lack of proof is not. Ayres introduced the deposition of Grant C. Hunt, who was president of American Pioneer Life at the time of trial and who until shortly before had also been vice president of American Pioneer Corporation. He stated that in those capacities he ran the day-to-day operations of both corporations. Mr. Hunt's deposition spoke of regular transfers of funds between American Pioneer Corporation and American Pioneer Life and a complete overlap of the executive committees of the two corporations.
Not only do we find that Hunt's testimony presented at least a scintilla of evidence that American Pioneer Life was the alter ego of American Pioneer Corporation, but we also find that American Pioneer Corporation did not preserve any error on this issue. It made a general motion for directed verdict on the ground that there was no evidence connecting it to the transaction, but in view of the "alter ego" allegation of the complaint and the evidence tending to prove that allegation, the court did not err in denying the motion.
American Pioneer argues that the court erred in submitting verdict forms to the jury which only allowed one amount for compensatory damages against all defendants whom the jury found liable and one amount for punitive damages against all defendants subject thereto. American Pioneer insists that the evidence was different against the various defendants and thus the court should have given the jury separate forms. The only action taken by American Pioneer at trial, however, was to request the court to give the jury verdict forms as to each count (not each defendant). American Pioneer made no objection *669 and took no exception even on this ground, much less on the issue now argued, so nothing is presented for our review.
American Pioneer also argues that the damages were excessive. The trial court overruled American Pioneer's motion for new trial or remittitur, however, and we see no reason to disturb that decision in light of the evidence of the intentional, gross, and oppressive nature of the fraud.
American Pioneer has filed a motion for reduction of the supersedeas bond because of the pro tanto settlement by Lincoln National. The bond came up for renewal after the pro tanto settlement and American Pioneer sought to pay its surety a premium only on the judgment as reduced by the settlement. We are informed that American Pioneer and its surety have agreed to base the premium on this Court's decision on this motion.
Such a reduction is appropriate under the posture of this case. The question, after the pro tanto settlement, was whether American Pioneer would be totally discharged or have its liability reduced by the $900,000 settlement. Thus, the bonding company was subject to liability only on the $2,200,000 potential liability of American Pioneer after the settlement, and its premium should be reduced accordingly. Ayres' objection in the trial court to such a reduction was that an order to that effect might constitute a satisfaction of the judgment and discharge American Pioneer. There is no such problem in the case as now postured. We therefore grant the motion.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
This Court's creation of the tort of bad faith, and this Court's authorization of verdicts such as the one rendered in this case, convince me again that the Legislature should address the policy ramifications on insurance companies and policyholders. As I stated in my dissent in Continental Assurance Co. v. Kountz, 461 So. 2d 802 (Ala. 1984), I believe an award of extracontractual damages probably would solve what I believe to be a serious public policy problem, but my view has not been adopted by the majority of the Court, and I cannot personally see how the verdict here is more "shocking" than that upheld in Aetna v. Lavoie, 470 So. 2d 1060 (Ala.1984).
I have expressed in the best language possible why I think that the majority has erred in the past, but I question whether I should continue to insist on a view which obviously is not a majority view.
While I would vote to grant a remittitur in this case, I cannot conscientiously say that this verdict is more shocking than others this Court has approved. Consequently, I concur specially to express my individual view.
[1] We shall refer to "American Pioneer" or "the American Pioneer defendants" only for positions taken equally by the two parties.
[2] The American Pioneer defendants are represented on appeal by counsel different from their trial counsel. | April 12, 1985 |
bb4492fb-0e16-4962-b51c-f2bd6a321334 | Hoppe v. Preferred Risk Mut. Ins. Co. | 470 So. 2d 1161 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1161 (1985)
Robert HOPPE and Jack Green
v.
PREFERRED RISK MUTUAL INSURANCE COMPANY.
83-899.
Supreme Court of Alabama.
March 29, 1985.
Rehearing Denied April 26, 1985.
*1162 Mack B. Binion and James E. Robertson, Jr. of Lyons, Pipes & Cook, Mobile, for appellants.
Vaughan Drinkard, Jr. and Mary Beth Mantiply of Drinkard & Sherling, Mobile, for appellee.
FAULKNER, Justice.
Preferred Risk Mutual Insurance Company brought this action seeking an injunction and money damages against its former agent, Robert Hoppe, and against Hoppe's business partner, Jack Green, for violating provisions in Hoppe's contract with Preferred Risk prohibiting him from soliciting Preferred Risk's policyholders. After a hearing on the request for an injunction, the trial court ruled in Preferred Risk's favor, granting the injunction, and entered a Rule 54(b), A.R.Civ.P., order. The defendants appeal.
From 1973 until the end of 1983 Hoppe operated an insurance agency, selling Preferred Risk's policies. Hoppe's contract with Preferred Risk provided that while he was a Preferred Risk agent, Hoppe was not to write or service insurance for any other company. It also stated that all information regarding Preferred Risk's policyholders, such as names, addresses, and expiration and renewal dates of their policies, were trade secrets owned by Preferred Risk. Hoppe also agreed that after termination of his relationship with Preferred Risk he would not solicit any of Preferred Risk's policyholders for the purpose of attempting to persuade them to purchase insurance from another insurance company for a period of one year.
In November of 1983, without notifying Preferred Risk, Hoppe moved from his office to a new location and began selling other companies' policies under the name of Greene and Hoppe Insurance Agency, Inc. Hoppe transferred the telephone number which he had used for a number of years while a Preferred Risk agent to the Green and Hoppe Agency. Green and Hoppe's advertisement in the yellow pages of the Mobile telephone directory stated that Green and Hoppe represented Preferred Risk and several other insurance companies.
On November 28, 1983, Preferred Risk notified Hoppe that it was terminating their contract as of December 31 of that year because of Hoppe's breach of their contract. The following day Preferred Risk requested that Hoppe return its property, including its policyholder service files. Hoppe returned some of the requested property, including rate manuals, envelopes, brochures, and forms; however, he refused to return the policyholder service files.
Preferred Risk filed this action and after a hearing on the request for an injunction the trial court found that Hoppe had entered into a binding contract with Preferred Risk and that Preferred Risk had properly terminated the agreement after Hoppe's breach. It found that the defendants had solicited the plaintiff's insureds in violation of the contract and that the non-renewal rate of the Preferred Risk policies sold by Hoppe increased from an average of 15% prior to termination of the contract to over 50% for December 1983 and January 1984. It ordered the defendants to return all of Preferred Risk's property, including *1163 the policyholder service files, to refrain from using the telephone number in question to solicit Preferred Risk's policyholders or prospective customers, and to refrain for a period of one year from initiating contact with persons known to the defendants to have been Preferred Risk policyholders at the time the contract was terminated for the purposes of soliciting or inducing Preferred Risk's policyholders to surrender or cancel their coverages with Preferred Risk or allow them to lapse. The order went on to provide, however, that Hoppe could solicit individuals who "were his personal customers by reason of defendant Hoppe's own individual sales attributes and not because of his being a Preferred Risk Mutual Insurance Company agent."
On appeal, Hoppe and Green argue: (1) that the contract provision preventing Hoppe from soliciting plaintiff's policyholders violates § 8-1-1, Code of Alabama 1975; (2) that the contractual provision in question was not supported by consideration, and, therefore, is unenforceable; and (3) that injunctive relief was improper because plaintiff had an adequate remedy at law.
Section 8-1-1 provides that a provision in a contract which restrains anyone from exercising a lawful profession, trade, or business is void unless the contract falls within one of three exceptions. First, the seller of a business may agree not to carry on a business similar to that of the purchaser of the good will of the business. Second, one who "is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such an employer within a specified county, city or part thereof so long as the ... employer carries on a like business therein." Third, as a part of the dissolution of a non-professional partnership, partners can agree not to compete.
Hoppe argues that under the terms of their agreement he was not Preferred Risk's agent, but was, instead, an independent contractor. He contends that under § 8-1-1, because on his status as an independent contractor, he cannot be subject to non-competition or trade secret restrictions. Premier Industrial Corp. v. Marlow, 292 Ala. 407, 295 So. 2d 396 (1974).
Assuming, arguendo, that Hoppe was an independent contractor Preferred Risk could not enforce a non-competition agreement against him. The contract would not fall within any of the exceptions contained in § 8-1-1. If he was an independent contractor, Hoppe was not "employed as an agent, servant or employee" of Preferred Risk. It is unnecessary to determine whether he was an independent contractor, however, because the contractual provision in question is not a non-competition agreement. A prohibition against soliciting the plaintiff's customers whose identities became known to the defendant in confidence as a result of the parties' prior relationship is not the same as a prohibition against engaging in a lawful profession, trade, or business. State Farm Mutual Automobile Ins. Co. v. Dempster, 174 Cal. App. 2d 418, 344 P.2d 821, 825 (1959).
This case is governed by our decision in Famex, Inc. v. Century Ins. Services, Inc., 425 So. 2d 1053 (Ala.1982). The plaintiff in that case, Famex, Inc., was a subsidiary of Fireman's Fund Insurance Company. Famex was engaged in marketing insurance. It consulted with insurance agencies, developed group insurance programs, and organized sales networks for marketing groups. The defendant, Century Insurance Services, Inc., was an independent insurance agency of Fireman's Fund. Century entered into an agreement with Famex whereby Famex provided materials pertaining to the implementation of the Famex marketing plan, premium rates, underwriting criteria, and "leads." Famex also conducted market and loss control research for Century's benefit. The parties operated under the terms of their agreement until Century breached the contract by selling several insurance policies for carriers not affiliated with Famex or Fireman's Fund. Famex brought an action seeking to enforce *1164 a provision in the contract prohibiting Century from soliciting Famex's insureds. The trial court ruled that the provision violated § 8-1-1. This court reversed on the authority of Hibbett Sporting Goods, Inc. v. Biernbaum, 391 So. 2d 1027 (Ala. 1980), and Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 73 So. 889 (1916). Those cases stand for the proposition that, although contracts in general restraint of trade are void, partial restraints of trade may, in appropriate instances, be enforceable. We concluded that because Century was not prohibited from doing business, but only from soliciting Famex insureds, the clause in question was a partial restraint of trade and, therefore, not violative of § 8-1-1:
425 So. 2d at 1055.
Hoppe, like Famex, was not prohibited by the trial court's order from selling insurance. He was merely prevented from soliciting Preferred Risk's policyholders. His argument that he has been "restrained from exercising a lawful profession, trade or business" within the meaning of § 8-1-1 is unfounded.
Hoppe's argument that the clause in question is void for want of consideration is also meritless. In addition to paying him commissions, Preferred Risk allowed Hoppe to hold himself out as a Preferred Risk agent. He was provided rate manuals, soliciting information, and other documents helpful in the operation of his business. Their relationship extended over a period of about ten years and, from all that appears in the record, it would have continued indefinitely had Hoppe not begun selling policies issued by other insurers. There was ample consideration for Hoppe's promise not to solicit Preferred Risk's customers upon termination of the agreement.
Finally, Hoppe argues that injunctive relief was improper because Preferred Risk had an adequate remedy at law. He argues that allowing an injunction "would cause the underlying damage claim ... to be tried on erroneous precedent."
We disagree. Injunctive relief may be awarded to enforce a covenant not to compete. Neither the granting nor the denying of such a request precludes an action for damages. James S. Kemper & Co. v. Cox & Assoc., 434 So. 2d 1380, 1385 (Ala. 1983); Cullman Broadcasting Co. v. Bosley, 373 So. 2d 830, 837 (Ala.1979). If a prior agent or employee can be enjoined from practicing his trade or business, we can see no logical reason to adopt a different rule with regard to a partial restraint of trade such as the one involved here.
The judgment of the trial court is hereby affirmed.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
00040ac3-ce86-42c8-80c7-d04ac41d830d | Ex Parte Alabama Mobile Homes, Inc. | 468 So. 2d 156 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 156 (1985)
Ex parte ALABAMA MOBILE HOMES, INC.
(Re ITT Diversified Credit Corporation v. Alabama Mobile Homes, Inc., et al.)
83-1267.
Supreme Court of Alabama.
March 29, 1985.
*158 Jon B. Terry of Bains & Terry, Bessemer, for petitioner.
Richard F. Ogle and Douglas J. Centeno of Denaburg, Schoel, Meyerson, Ogle, Zarzaur & Max, Birmingham, for respondent.
FAULKNER, Justice.
Alabama Mobile Homes filed this petition for a writ of mandamus seeking an order from this court to the Honorable Ingram Beasley of the Circuit Court of Jefferson County directing Judge Beasley to set aside or quash a pre-judgment garnishment ordered at the behest of the plaintiff, ITT Diversified Credit Corporation.
On April 1, 1983, Alabama Mobile Homes executed a financing statement and security agreement granting ITT a security interest in its inventory of mobile homes and in all proceeds generated from sales of its inventory. Upon the sale of any mobile home financed by ITT, Alabama Mobile Homes was obligated by its agreement to "immediately pay [ITT] in cash the pertinent amount of the total indebtedness allocable [to the mobile home which was sold]."
During January of 1984 Alabama Mobile Homes sold a mobile home in which ITT had a security interest, without paying ITT the amount due it allocable to the mobile home. On March 30, 1984, ITT notified Alabama Mobile Homes that it was in default and ITT filed suit to recover the funds due it under the parties' agreement. In his deposition, the president of Alabama Mobile Homes testified that the proceeds of the sale of the mobile home in question had been deposited in a checking account at Colonial Bank of Birmingham. ITT then filed a motion for a pre-judgment writ of seizure, along with the requisite bond and supporting affidavit, seeking to have the $11,500.00 seized. A judge of the Birmingham Division of the Jefferson County Circuit Court entered an order directing the sheriff to take possession of $11,500.00 from the defendant's bank account. When the sheriff attempted to execute the order, he was informed that the bank account did not contain $11,500.00. ITT then amended its motion by asking for an order directing the sheriff to seize all sums up to $11,500.00. The judge then issued an order in accordance with the amended motion and the sheriff collected $2,352.50 from the defendant's bank account. The sheriff never served a notice or copy of the order on the defendant. The money was deposited in the circuit court clerk's office. Alabama Mobile Homes filed a motion to quash the garnishment. After a hearing, the Honorable Ingram Beasley overruled the motion.
The following issues were presented in the parties' briefs:
The respondent has raised an issue concerning our jurisdiction over this proceeding. Since subject matter jurisdiction is a threshold matter, we will dispose of that issue first. The Court of Civil Appeals has exclusive jurisdiction in civil cases where the "amount involved" does not exceed $10,000.00. Where there has been a recovery in the lower court, the amount involved is the amount of the recovery. ITT argues that the recovery was $2,352.50 and, therefore, that the Court of Civil Appeals has exclusive jurisdiction over the issuance of writs of mandamus in relation to matters concerning its claim. Sections 12-3-10 and 12-3-11, Code of Alabama.
Jurisdiction is determined by the amount of the recovery ordered by the lower court. It is not affected by the fact that the judgment has been only partially satisfied. See Great Central Insurance Co. v. Edge, 292 Ala. 613, 298 So. 2d 607 (1974). In this case the court ordered the sheriff to seize all funds "up to $11,500.00." Although the sheriff was able to seize only $2,352.50, the trial court ordered a recovery of $11,500.00. Therefore, the amount involved exceeds $10,000.00 and this Court has jurisdiction.
Petitioner argues that Alabama's pre-judgment garnishment procedure violates the due process standards set out in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975). The petition states that "a pre-judgment garnishment of a bank account is, on its face, unconstitutional."
In North Georgia Finishing, supra, the Supreme Court ruled that Georgia's pre-judgment garnishment statute violated due process guarantees of the fourteenth amendment. The Georgia statute allowed a pre-judgment garnishment of a bank account pursuant to an order issued by the clerk of the court based only on conclusory allegations in an affidavit by the plaintiff's attorney, who was not required by the statute to have personal knowledge of the facts contained in the affidavit. The statute prescribed the filing of a bond by the defendant as the only means of dissolving the garnishment. There was no provision for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment.
We deem it unnecessary to elaborate on the procedure for a pre-judgment garnishment under Alabama law. It is sufficient to say that the provisions of Rule 64, Alabama Rules of Civil Procedure, coupled with the requirements of the garnishment statute, §§ 6-6-370 et seq., Alabama Code 1975, appear to be adequate to protect the defendant's due process rights. Rule 64 was drafted specifically to comply with the mandates of Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), and its progeny, including North Georgia Finishing, supra.
It is not disputed that ITT had a perfected security interest in a mobile home which Alabama Mobile Homes sold and that Alabama Mobile Homes did not remit that portion of the proceeds of the sale due to ITT under the terms of the parties' agreement. Under § 7-9-306(2), ITT's security interest in the mobile home continued in the "identifiable cash proceeds" of the sale. Alabama Mobile Homes argues that the funds in question are not the identifiable cash proceeds of the sale and, therefore, that ITT did not have a security interest in the funds. Alabama Mobile Homes contends that the proceeds from the sale of the mobile home in question were transferred from its bank account "to the defendant's attorney for other purposes."
*160 When proceeds of a sale of collateral are placed in the debtor's bank account the proceeds remain identifiable and a security interest in the funds continues even if the funds are commingled with other funds. Anderson, Clayton & Co. v. First American Bank, 614 P.2d 1091, 1093, 29 U.C.C.Rep. 280 (Okla.1980). The rules employed to distinguish the identifiable proceeds from other funds are liberally construed in the creditor's favor by use of the "intermediate balance rule." See, e.g., C.O. Funk & Sons, Inc. v. Sullivan Equipment, Inc., 89 Ill. 2d 27, 59 Ill.Dec. 85, 431 N.E.2d 370 (1982); In re Turner, 32 U.C.C.Rep. 1240, 13 B.R. 15, 22 (Bkrtcy. Neb.1981); In re Martin, 36 U.C.C.Rep., 25 B.R. 25, 28 (Bkrtcy.N.D.Tex.1982). This rule provides a presumption that proceeds of the sale of collateral remain in the account as long as the account balance equals or exceeds the amount of the proceeds. The funds are "identified" based on the assumption that the debtor spends his own money out of the account before he spends the funds encumbered by the security interest. If the account balance drops below the amount of the proceeds, the security interest in the funds on deposit abates accordingly. This lower balance is not increased if funds are later deposited into the account. See Skilton, "The Secured Party's Rights in a Debtor's Bank Account Under Article 9 of the Uniform Commercial Code," 1977 So.Ill.Univ.L.J. 120, 140-143. The rule is analogous to the presumption which arises when a trustee commingles trust funds with his own. In re Turner, supra, 13 B.R. at 22.
In this case the proceeds were deposited into the debtor's account. When the garnishment was executed, the account balance was $2,352.50. Under the intermediate balance rule, ITT was entitled to the $2,352.50 unless the balance of the account was lower than $2,352.50 at some time between the deposit of the proceeds and the execution of the garnishment. If there was a lower intermediate balance, then ITT was entitled only to an amount equal to the lower balance.
It would appear that the resolution of this issue would depend on where the burden of proof lies. At the hearing on the defendant's motion to quash the writ, was it incumbent on ITT to introduce evidence that the defendant's account balance had not been lower than $2,352.50 at any time since the proceeds of the sale were deposited? Or should it have been incumbent on Alabama Mobile Homes to show that its lowest intermediate balance was less than the amount recovered? Since application of the lowest intermediate balance rule was not discussed in the parties' briefs, the issue of allocating the burden of proof was not argued. Alabama Mobile Homes did, as a part of its due process argument, make the assertion that due process requires that the burden of proof remain with the creditor. The basis of that position is a statement found in North Georgia Finishing, supra. We do not read that case as broadly as the defendant does, however. In that case the Court states, as one of its reasons for striking down the Georgia statute, the fact that "There is no provision [in Georgia's pre-judgment garnishment law] for an early hearing at which the creditor would be required to demonstrate at least probable cause for the garnishment." 419 U.S. at 607, 95 S. Ct. at 723. As we read North Georgia Finishing, due process requires only that at the hearing the creditor establish "probable cause for the garnishment."
In this case it is undisputed that ITT had a security interest in the proceeds and that Alabama Mobile Homes commingled the proceeds with its own money instead of paying the funds to ITT as it had agreed to. It can hardly be disputed that there was sufficient evidence in the record before the court to support a finding of a risk of "concealment, transfer, or other disposition" of the funds. The defendant's transfer of funds to its attorney could be construed as an attempt to prevent ITT from receiving the proceeds of the sale of its collateral. If the attorney took the funds with knowledge of the creditor's rights in them and if the transfer was not in the *161 ordinary course of business, it would appear that ITT may be entitled to proceed against the funds in the hands of the attorney. See Comment 2(c) to § 7-9-306, Code of Alabama; In re Martin, 25 B.R. 25, 29 (Bkrtcy.N.D.Tex.1982); Anderson, Clayton & Co. v. First American Bank, 614 P.2d 1091, 1094-95 (Okla.1980).
Based on our reading of North Georgia Finishing, supra, it appears to us that due process requires the creditor to demonstrate probable cause for the garnishment at the hearing. If this were a case between two innocent parties, we might be inclined to place the entire burden of proof on the creditor. See Funk, supra. To establish probable cause for the garnishment in this case, it was sufficient for the creditor to show that the proceeds were wrongfully withheld from it, that they were placed in the account, that the amount in question was on deposit when the garnishment was executed, and that there was a significant risk of concealment, transfer, or other disposition of the funds between the time the motion was filed and the time a judgment could be taken. If the debtor was able to prove that there was an intermediate balance lower than $2,352.50, or if it was able to present any other evidence that the garnishment was wrongful, it could have presented that evidence at the hearing.
It is undisputed that the sheriff failed to serve a notice of the order of garnishment on the defendant as is required by Rule 64. Alabama Mobile Homes argues that because it was not given proper notice the trial court erred in refusing to dismiss the order.
The purpose of the notice requirement is to notify the defendant that its property has been seized and inform it of its right to be heard within 15 days of the seizure on the issue of the dissolution of the writ if it files a request for such a hearing within five days. If such a request is made, the order will expire on the 15th day from the date of the seizure unless a hearing is held and the court continues the order in effect. Rule 64(b)(2)(B), A.R. Civ.P.
The order in question was issued on June 6, 1984, and the sheriff seized the funds on that day. Although no notice was given, the defendant was informed by the bank of the seizure and it did, in fact, within five days file a motion seeking a hearing on the dissolution of the writ. Moreover, a hearing was held on the question of the dissolution of the writ within the 15-day time limit. Since the defendant did, in fact, file a timely request and receive the hearing to which it was entitled, its claim that it was, in effect, deprived of an opportunity to be heard is without merit. The error was harmless and cannot provide the basis for a reversal. A.R.A.P. 45.
Finally, Alabama Mobile Homes argues that the plaintiff should have brought its action in the Bessemer Division of the Jefferson County Circuit Court. Alabama Mobile Homes does business in Bessemer and the collateral was kept in Bessemer before it was sold.
The threshold determination with regard to whether an action should be brought in the Bessemer Division or the Birmingham Division is to determine whether the action should be brought in Jefferson County. The venue statute provides that a domestic corporation may be sued in any county in which it does business or was doing business at the time the action arose. Section 6-3-7, Code of Alabama 1975. The principal place of business of the defendant in this case is Jefferson County. Therefore, the action was properly brought in that county.
Since this case was properly brought in Jefferson County, we must determine which of the two divisions the case should have been filed in. An action must *162 be brought in Bessemer if it "arises" within the territorial boundaries of the Bessemer Cutoff. Local Act No. 213, § 2, p. 62, Ala. Acts 1919. All suits maintainable in Jefferson County which do not arise in Bessemer should be brought in the Birmingham Division. Ex parte Central of Georgia Ry. Co., 243 Ala. 508, 512, 10 So. 2d 746, 750 (1942). See Cleveland, "Territorial Jurisdiction of the Circuit Court in the Bessemer Cutoff," Vol. 3, No. 2, Birmingham Bar Ass'n Bull. (Summer 1982). For purposes of determining which division a case should be filed in, an action on a promissory note is said to "arise" where the note is payable and where default in payment occurs. Metrobank v. Real Coal Co., 374 So. 2d 296, 297 (Ala.1979); Seaboard Surety Co. v. William R. Phillips & Co., 279 Ala. 510, 187 So. 2d 264, 267 (1966). The performance of the obligations under this note was due in Georgia. Since the action was maintainable in Jefferson County and it did not arise in Bessemer, it was properly brought in the Birmingham Division.
Defendant's petition for the writ of mandamus is due to be denied.
WRIT DENIED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
bd2342d1-cebe-416f-b54f-a3e6f60ee636 | Bowman v. McElrath Poultry Co., Inc. | 468 So. 2d 879 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 879 (1985)
Carl BOWMAN
v.
McELRATH POULTRY COMPANY, INC.
83-592.
Supreme Court of Alabama.
March 29, 1985.
R. Ben Hogan III of Hogan, Smith, Alspaugh, Samples and Pratt, Birmingham and Robert H. King, Gadsden, for appellant.
Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellee.
EMBRY, Justice.
This is a civil action for legal fraudulent misrepresentation. The trial court, at the close of plaintiff's evidence, granted defendant's motion for directed verdict. The plaintiff appealed; we affirm.
Carl Bowman is a poultry farmer. McElrath Poultry Company (McElrath) is a company in the business of producing breeder eggs and broilers. McElrath regularly contracts with producers such as Bowman. At one time, McElrath had forty-eight (48) producers, some of whom produced broilers (chickens sold for meat), and others who produced breeder eggs (eggs used to breed other hens).
A contractual relationship existed between McElrath Poultry Company and Bowman's first wife, Katherine Bowman, between 1973 and 1977. Carl Bowman and McElrath entered into written agreements in December of 1977, October of 1978, August of 1979, and November of 1979.
Under all of the written contracts of either Katherine or Carl Bowman with McElrath, the Bowmans were required to furnish the land, buildings, equipment, water, fuel, electricity, labor, and facilities necessary to the production of breeder eggs. The Bowmans gathered the eggs, cleaned the eggs, counted the eggs, packed the eggs, and sold the eggs to McElrath. In addition, from 1978 on, Bowman was required to keep records of daily egg production, mortality, and daily feed consumption.
McElrath was required to furnish a flock of chickens to the Bowman farm, and to deliver feed, medication, and sanitation *880 products as necessary to keep the chickens healthy and laying. McElrath picked up the eggs twice a week, paid the Bowmans once a month, and furnished to the Bowmans its written compilation of the number of eggs produced on a monthly basis.
McElrath paid the Bowmans certain amounts of monies per bird during the non-egg-laying cycle of the flock, and paid the Bowmans a certain amount of money per dozen eggs produced.
Carl Bowman was paid the following amounts by McElrath for the following years: 1976$41,248.45; 1977$39,998.74; 1978$40,476.90; 1979$54,346.05; 1980$51,770.32.
The last contract between Carl Bowman and McElrath Poultry Company was cancelled, per the contract provisions, by McElrath in March of 1980. Bowman testified at trial that in 1974, while his former wife had a contract with McElrath, he was approached by Billy Vann Croft, McElrath's field representative, who told him that if they wanted to keep the contract with McElrath, they would have to install automatic egg-gathering equipment. Croft left some brochures with Bowman and later went with him to visit a farm that had installed the equipment. Bowman stated that Croft told him that McElrath would not pick up any of the costs for the equipment, but would put in more chickens, and that the equipment would increase production.
In 1974 and 1975, Bowman purchased the equipment from a third party and had it installed. He also built two new chicken houses, in which he installed the equipment. His expense for the egg-gathering equipment and the alterations to his chicken houses totalled in excess of $70,000.
Bowman alleges that, between the time of installation and the cancellation of his contract, Croft, whenever asked, would tell him that the egg-gathering equipment was doing "just terrific," and that Croft told him for the first time in 1980 that his contract was being cancelled by McElrath because he was not getting as much production out of the equipment as other farmers were getting from hand gathering. Bowman alleges that because Croft kept all the egg production records, he had no way of knowing whether the egg-gathering equipment had improved his operation. Bowman contends McElrath misrepresented to him that the mechanical egg-gathering equipment would increase his production and was suitable for his operation and that McElrath concealed from Bowman its knowledge of the unsuitability of the equipment until 1980, when McElrath cancelled his contract. Bowman commenced this action on 4 November 1980.
The issue presented on appeal is whether there is evidence which reasonably affords an inference that the plaintiff was defrauded. The essential elements of a fraud claim, as required under the provisions of § 6-5-101, Code 1975, are: (1) misrepresentation of a material fact; (2) made willfully to deceive, or recklessly without knowledge; (3) acted upon by the opposite party; and (4) reliance by the complaining party which was justifiable under the circumstances.
Our careful review of the record reveals the trial court was correct in granting a directed verdict in favor of McElrath. The facts presented by the plaintiff simply do not support a cause of action for fraud. McElrath's agent did give Bowman a brochure on an automatic egg-gathering system, prepared by the manufacturer of such a system, which indicated automation would increase egg production by as much as 10%. However, Bowman himself negotiated the purchase and installation of the system; McElrath was not involved, except to have encouraged Bowman to purchase the system. Therefore, Bowman could not have justifiably relied on representations made by McElrath, if any, that indicated the automatic egg-gathering system would function properly and improve Bowman's production.
Furthermore, Bowman had a responsibility, at least after 1977, pursuant to his contracts with McElrath, to maintain his own records. Prior to that date, the responsibility *881 of the maintenance of records was not set forth in the contract. It is clear, however, that Bowman was in a position to discover, more than a year before he filed suit, whether the automatic egg-gathering system had increased or decreased his production.
In short, we do not see any material evidence that suggests or reasonably implies that the defendant McElrath Poultry Company, through its agent, Croft, defrauded Bowman. The judgment below is therefore due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | March 29, 1985 |
cb76eaa0-1bef-4acf-b452-ceee6e2a1948 | Brad's Industries, Inc. v. Coast Bank | 468 So. 2d 129 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 129 (1985)
BRAD'S INDUSTRIES, INC.
v.
COAST BANK, a Corporation.
83-490.
Supreme Court of Alabama.
March 29, 1985.
James L. Shores, Jr. of Shores & Booker, Birmingham, for appellant.
*130 John P. Scott, Jr. of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham and Jeffrey D. Lewin of Sullivan, Markham & Lewin, San Diego, Cal., for appellee.
EMBRY, Justice.
Appellee, Coast Bank, a California banking corporation, commenced this action by filing its complaint seeking recovery from appellant, Brad's Industries, Inc. (Brad's), a California corporation, on a promissory note, and from other individual defendants, on their guarantees on that note.
The individual defendants filed their answer, alleging the note was part of an agreement whereby Coast Bank would extend credit to Brad's over a period of time, and that Coast Bank had failed to keep the agreement.
The answer filed by Brad's alleged in more detail the agreement that Coast Bank was to take over the accounts receivable interest previously held by another bank, and agreements to loan additional money to Brad's. Brad's alleged that Coast Bank had failed to carry out these agreements and, therefore, that Brad's was not liable for payment of the note. It did not, however, at that time, file a counterclaim against Coast Bank based on those agreements.
Coast Bank filed a motion for summary judgment against the defendants. The trial court granted that motion except as to one of the individual defendants. This court reversed the trial court's judgment in April of 1983, holding that defendants had raised issues of material fact in their answers. Brad's Industries v. Coast Bank, 429 So. 2d 1001 (Ala.1983).
On remand, Brad's proceeded to file a counterclaim against Coast Bank, alleging breach of the same agreements referred to in its original answer to Coast Bank's complaint. The trial court denied Brad's motion to allow the counterclaim and Brad's sought reconsideration of that denial, alleging it had found additional evidence concerning one of the alleged agreements made by Coast Bank to provide financing and that this ground warranted the allowance of the untimely filing of the counterclaim. The trial court again denied the motion and directed that its order be made final pursuant to Rule 54(b), ARCP.
Brad's appeals to this court from the denial of its motion. The issue presented on appeal is whether the trial court abused its discretion by denying Brad's motion to allow a counterclaim.
Brad's seeks to bring its counterclaim pursuant to Rule 13(f) of the Alabama Rules of Civil Procedure, which provides as follows:
Brad's claims that "justice requires" that the claim be allowed.
The decision by the trial court whether to allow a counterclaim to be pleaded is a matter of judicial discretion and may be reversed on appeal only if the party can demonstrate that the court abused its discretion. Rohner, Gehrig & Co. v. Capital City Bank, 655 F.2d 571 (5th Cir.1981). Brad's has failed to demonstrate any facts or circumstances to indicate that the court below abused its discretion.
This court allowed Brad's motion to supplement the record on appeal to include Brad's "newly discovered" evidence. It appears clear, however, that the new evidence was available earlier, but was not requested by Brad's, and that defendants were aware of facts concerning the alleged agreements between Coast Bank and Brad's, long before the filing of the counterclaim.
Authority cited by Brad's in its brief in support of its "new facts" argument is not pertinent. In Zerostat Components Ltd. v. Shure Brothers, Inc., 91 F.R.D. 164 (N.D.Ill.1981), the counterclaimant discovered the first evidence to support a conspiracy theory late in the action and, therefore, such late discovery supported the late filing *131 of a counterclaim. However, in this case, Brad's had claimed the existence of such agreements, the breach thereof, and the facts in support of its claims long before the filing of the counterclaim. Brad's offers no logical or credible excuse for the delay in filing.
The more appropriate authority for dealing with this issue is Imperial Enterprises, Inc. v. Fireman's Fund Insurance Co., 535 F.2d 287 (5th Cir.1976), reh. denied, 540 F.2d 1085 (5th Cir.1976). Imperial Enterprises brought suit against Fireman's Fund on an insurance policy for a fire loss. Fireman's Fund had previously paid Imperial on the building coverage, but denied liability under the contents coverage on the ground that Imperial had undervalued inventory. Later, Fireman's Fund attempted to file a counterclaim to recover the amounts it claimed were mistakenly paid on the building coverage. The trial court denied the motion to allow the counterclaim, and the Fifth Circuit affirmed. In reaching its decision, the Fifth Circuit stated:
535 F.2d at 293.
Likewise, in the instant case, almost three years passed between the time that Brad's filed its answer and the time it attempted to raise a counterclaim. It is clear that Brad's knew of the facts underlying its alleged counterclaim for the entire period of time. Accordingly, the trial court, in the exercise of its sound and broad discretion, was justified in denying the counterclaim. Its decision is, therefore, due to be affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, ALMON and ADAMS, JJ., concur. | March 29, 1985 |
5d3451e4-2b69-4fdc-a08e-52b241beca34 | Ex Parte Henry | 468 So. 2d 902 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 902 (1985)
Ex parte Joseph Clyde HENRY.
(In re: Joseph Clyde HENRY v. STATE of Alabama).
84-440.
Supreme Court of Alabama.
March 29, 1985.
J. Michael Williams, Sr., Auburn, for petitioner.
Charles A. Graddick, Atty. Gen., for respondent.
Prior report: 468 So. 2d 896 (Ala.Cr.App. 1984).
PER CURIAM.
In denying the writ, this Court is not to be understood as agreeing with the Court of Criminal Appeals' statements concerning the inference that the Defendant's later request for a lawyer supported a finding that a prior waiver of the right to an attorney was intelligently made.
WRIT DENIED.
TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur. | March 29, 1985 |
f474b2f6-444b-4de4-891f-1fbbbd88a148 | Pickron v. State | 475 So. 2d 599 | N/A | Alabama | Alabama Supreme Court | 475 So. 2d 599 (1985)
Ex parte State of Alabama.
(Re Myra Jean PICKRON v. STATE of Alabama).
83-1064.
Supreme Court of Alabama.
March 15, 1985.
Charles A. Graddick, Atty. Gen., and Douglas L. Anderson, Asst. Atty. Gen., for petitioner.
D. Patrick Harris, Montgomery, for respondent.
MADDOX, Justice.
This Court granted petitioner's request that we review the opinion of the Court of Criminal Appeals in this case. 475 So. 2d 593 (1984).
The sole question presented is whether a trial court loses jurisdiction to consider a motion to amend a sentence, which is filed within 30 days after the imposition of the sentence, but which is not presented to the trial judge within the 30-day period.
The Court of Criminal Appeals held that "[a]lthough a motion to amend the sentence does not come within the precise language of Rule 13(c) [Temporary Rule of Criminal Procedure, effective March 1, 1982], we think it is within the coverage thereof in light of the clear intent of Rule 13 captioned `Post-trial motions.'" The Court of Criminal Appeals was correct in noting that a motion to amend or correct a sentence does not come within the precise language of Temporary Rule 13,[1] and was *600 also correct in holding that the requirement that post-trial motions be presented to the trial judge within 30 days is no longer the law of this state. It is true that under the provisions of Code 1940 (Recomp.1958), Title 13, § 119, all post-trial motions, in both civil and criminal cases, had to be called to the trial judge's attention within 30 days of judgment, but this requirement was not carried forward into the 1975 Code. The procedure applicable in criminal cases is provided for by Temporary Rule 13, Ala.R. Crim.P., which became effective March 1, 1982.
Based on the foregoing, we determine, as did the Court of Criminal Appeals, that because the motion is one made after the trial, it should be treated as one that need not be presented to the trial judge within 30 days. It was the intent of Temporary Rule 13, Ala.R.Crim.P., to abrogate the necessity of presenting post-judgment motions in criminal cases to the judge and entering orders continuing the motions in order to keep them alive. In this sense, Temporary Rule 13 corresponds with Rule 59, Ala.R.Civ.P., and accomplishes the same result as that rule.
Based on the foregoing, the judgment of the Court of Criminal Appeals is due to be affirmed.
AFFIRMED.
FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., not sitting.
[1] The Advisory Committee on Alabama Rules of Criminal Procedure presented to this Court for adoption a Rule which would have clearly delineated the powers of a trial court to reduce a sentence, as petitioner sought to have the court do here. The Advisory Committee's proposed Rule 24.3 reads as follows:
"Rule 24.3 Correction or Reduction of Sentence.
"(a) Correction. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for reduction of sentence.
"(b) Reduction. The court may reduce a sentence within 120 days after the sentence is imposed, unless a notice of appeal has been filed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of Supreme Court of Alabama denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation.
"COMMENT
"This rule is taken from Rule 35, Federal Rules of Criminal Procedure, and permits the trial judge the opportunity of reducing a sentence after imposition. There are any number of situations where such power is useful and appropriate. The rule is drafted on the basis that sentencing will be in the court rather than a jury. If by special provision sentence were set by the jury the court would not have power to reduce the sentence under section (b). The court in most instances should give notice to the parties prior to actual reduction of the sentence." Ala.R.Crim.P., Advisory Committee Draft, June 1, 1977."
The fact that this Court did not include in Temporary Rule 13 provisions similar to those contained in proposed Rule 24.3 does not mean that this Court cannot broaden the scope of Temporary Rule 13 to include motions to alter or correct a sentence, even though the rule only refers to motions to amend and motions in arrest of judgment. Any post-trial motion to amend or correct a sentence, however, must be filed within 30 days after sentence is pronounced, as provided in Temporary Rule 13(a)(2) and the provisions of subsection (d) regarding denial of such a motion by operation of law would also apply. | March 15, 1985 |
36eca953-91e2-49e2-84f0-2339343a73da | Sessions v. Handley | 470 So. 2d 1164 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1164 (1985)
Betty F. SESSIONS and L.D. Sessions
v.
Florence B. HANDLEY.
83-1153.
Supreme Court of Alabama.
March 29, 1985.
Rehearing Denied April 26, 1985.
*1165 William T. Faile, Selma, for appellant.
Wyman O. Gilmore, Grove Hill, and L.Y. Sadler, Jr., Camden, for appellee.
FAULKNER, Justice.
Betty F. Sessions, as proponent of the last will and testament of Birdie Pugh, appeals from a jury verdict against her and in favor of Florence B. Handley, the daughter of Mrs. Pugh.
The facts giving rise to the will contest are as follows:
Betty and L.D. Sessions had been neighbors of Birdie Pugh for approximately 25 years. Sometime in 1981, Mrs. Pugh contacted the Sessionses in regard to selling her home and property to them, reserving a life estate for herself. The Sessionses contacted their bank and had the property appraised. The appraisal indicated that the property had a fair market value of $10,500.00, but the appraiser reduced the amount to $6,500.00 because of the reservation of the life estate.
On August 4, 1981, Betty Sessions took Mrs. Pugh to see an attorney, Mr. Howard Haygood, in regard to preparing the deed for sale of the property. While at the attorney's office, Mrs. Pugh executed a last will and testament leaving $2,000.00 to the Awin Church of Christ, and leaving the residue and remainder of both her real and personal property to her sister-in-law, Katie Lou Markis.
According to the testimony of Betty Sessions, Mrs. Pugh had told her that her sister-in-law, Mrs. Markis, had become angry when she found out that Mrs. Pugh *1166 had conveyed her real estate to the Sessionses for $6,500.00. Apparently, Mrs. Pugh had offered the same property to her nephew Gilbert Pugh for $27,000.00 just two months prior to selling the property to the Sessionses.
Although Mrs. Markis did not testify, the testimony at trial indicates that prior to 1981 Mrs. Markis had helped Mrs. Pugh with her errands and had carried her to the doctor and to church each week. Sometime thereafter, in the spring of 1981, Mrs. Sessions began taking Mrs. Pugh to church, to Greenville to cash her check, to buy groceries, and to the doctor. She testified that she would do these errands whenever Mrs. Pugh would call on her. The testimony also indicates that other neighbors and friends would also carry Mrs. Pugh to do her errands.
The evidence also indicates that sometime around September 1981, Mrs. Pugh wrote her bank, asking that Betty Sessions be allowed to sign her checks if she should ever become disabled. The signature cards signed by Betty Sessions indicated that a joint account was set up whereby Betty Sessions was given authority to sign checks should Birdie Pugh be unable to do so. There was no evidence that Betty Sessions ever signed a check for Mrs. Pugh or that any money was ever taken out of the account by Mrs. Sessions.
On September 10, 1981, Mrs. Pugh returned to Attorney Hagood's office and informed him that she wanted to change the will that she had made in August. After some discussion, she told him that she no longer wanted to leave her estate to the church and Mrs. Markis. She asked to make a new will that would bequeath a cedar chest and her clothing to her daughter, Florence Handley, and the residue to Betty F. Sessions.
Mrs. Birdie Pugh died of cancer on November 19, 1982. The purported last will and testament dated September 10, 1982, was offered for probate. Thereafter, Florence B. Handley, as daughter of Birdie Pugh, contested the probate of the will. In her contesting complaint, Florence Handley alleged that Birdie Pugh did not possess testamentary capacity to make a will and that the purported will was procured through undue influence upon Birdie Pugh by Betty F. Sessions and/or L.D. Sessions.
After a jury verdict in favor of the contestant, Betty Sessions appealed, claiming, inter alia, that her motion for directed verdict should have been granted by the trial court and that the evidence before the jury was not sufficient to support the verdict.
In Pruitt v. Pruitt, 343 So. 2d 495 (Ala. 1977), this Court set forth the requisite elements for a will challenge based upon undue influence:
Id., 343 So. 2d at 499 (citations omitted). See also Penn v. Jarrett, 447 So. 2d 723, 724 (Ala.1984), and cases cited therein.
In this case, we find that evidence of the first two elements was presented at trial; a confidential relationship and a dominant or controling influence by the favored beneficiary, Betty Sessions.
The determinative question then, is whether there was undue activity on the part of Betty Sessions in procuring the execution of the will. Proof of undue activity is essential to prove that the free agency of a testator was destroyed and the wishes of another substituted therefor. Rabon v. Rabon, 360 So. 2d 971 (Ala.1978). In general, undue activity in the procurement *1167 or execution of the will may be proved by circumstantial evidence. Moreover, all that is needed to submit the case to a jury is a mere scintilla of evidence from which a jury can reasonably infer undue activity on the part of the favored beneficiary. Reed v. Shipp, 293 Ala. 632, 636, 308 So. 2d 705, 708 (1975). However, the scintilla standard is not satisfied by mere suspicion or speculation. In this case, Florence Handley failed to present even a scintilla of evidence that Birdie Pugh did not execute the September 10, 1981, will of her own volition. There was not even a mere spark of evidence that Betty Sessions had anything to do with the procurement of the September 10, 1981, will.
While Florence Handley makes much of the fact that Betty Sessions was the one who brought Birdie Pugh to the attorney's office on August 4, 1981, there was no evidence that Betty Sessions was present when the September 10, 1981, will was executed or that she even discussed this will with the testatrix until after its execution. Additionally, the fact that Betty Sessions helped Birdie Pugh by carrying her on errands and to appointments and the fact that Birdie Pugh made her checking account a joint one between her and Sessions, does not give rise to an inference that there was any undue activity in procuring the September 10, 1981, will. "There must be evidence, in addition to the fact of relationship, of active interference in procuring the execution of the will." Arrington v. Working Woman's Home, 368 So. 2d 851 (Ala.1979).
We therefore find that the issue of undue activity was improperly submitted to the jury.
The law presumes that every person has the capacity to make a will; therefore, the contestant has the burden to prove lack of testamentary capacity. Fletcher v. DeLoach, 360 So. 2d 316, 318 (Ala.1978). In a will contest, whether a directed verdict should have been granted depends upon whether the contestant produced at least a scintilla of evidence in support of his or her claim. Koonce v. Mims, 402 So. 2d 942 (Ala.1981).
In Fletcher v. DeLoach, supra, 360 So. 2d at 318, this Court reaffirmed the proposition that in order to execute a valid will, the testatrix must have "testamentary capacity," which we defined as follows:
In the instant case, we cannot find even a scintilla of evidence to indicate that Birdie Pugh lacked testamentary capacity when she executed the will on September 10, 1981. On the contrary, the evidence from Attorney Hagood and his secretary, Virginia Russell, indicated that Birdie Pugh was alert and of sound mind when she made the will on September 10, 1981.
The only testimony indicating that Mrs. Pugh did not possess testamentary capacity came from the contestant, Florence Handley. She testified that during 1980 and 1981, when she was able, she would visit her mother at least every two weeks, that during that period of time her mother became increasingly feeble and unable to handle her affairs, and that she did not know half the time what she was doing. Florence Handley also testified that her mother was afraid that if the Sessionses got mad at her they would place her in a nursing home. This evidence, however, is insufficient to show that Birdie Pugh lacked testamentary capacity on September 10, 1981, the date the will was executed. As we must reiterate, "the scintilla rule is not satisfied by speculation." Arrington v. Working Woman's Home, 368 So. 2d 851, 854 (Ala.1979).
*1168 Contestant also argues that there were other suggestions from the testimony that Mrs. Birdie Pugh lacked testamentary capacity at the time she executed her will, such as the unreasonableness of distributions made by her in her will. While we agree that an unequal disposition of property may, in some cases, reflect upon a testatrix's capacity to recall the natural object of her bounty, an unequal disposition of property, per se, raises no presumption of testamentary incapacity, nor is it per se unnatural. Fletcher v. DeLoach, supra, 360 So. 2d at 318. In this case, the evidence showed that Florence Handley was not included at all in the August will nor in any prior will. The testimony also indicated that Birdie Pugh spoke at length to Attorney Hagood regarding the state of her family relations and her intentions regarding the testamentary disposition to her daughter, Florence.
We are not pursuaded by the contestant's argument that the fact that Birdie Pugh conveyed to the Sessionses the same real property that the earlier will would have bequeathed to Katie Lou Markis indicates that she was unaware of the natural objects of her bounty. At the time of making the August 4, 1981, will, Mrs. Pugh also made a deed which conveyed her home and property. This conveyance, however, does not show that she was unaware of the natural objects of her bounty, nor does it necessarily indicate that she intended to bequeath the same property that she was conveying. The provision in the August 1981 will was a residuary clause, which left all remaining property to Katie Lou Markis. This is a standard provision included in most wills that allows for both real and personal property, present and later acquired, to be left to a desired beneficiary. Additionally, even if we were to accept the contestant's argument, this evidence would not be indicative of Birdie Pugh's mental condition at the time the September will was executed. Accordingly, there was not even a scintilla of evidence to indicate that Birdie Pugh lacked testamentary capacity on the date the will was executed.
Therefore, a verdict should have been directed in favor of Betty Sessions on both the issue of undue influence and the issue of lack of testamentary capacity.
REVERSED AND REMANDED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
52a29fc5-2272-4944-997c-2a837bd29e29 | Abrams v. Wheeler | 468 So. 2d 126 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 126 (1985)
Della Rena ABRAMS
v.
Malcolm L. WHEELER, as General County Administrator for the Estate of James Cohill.
83-388.
Supreme Court of Alabama.
March 29, 1985.
*127 George V. Eyraud, Jr., Birmingham, for appellants.
Malcolm L. Wheeler, Birmingham, for appellee.
EMBRY, Justice.
This is an appeal from a final decree entered in the Jefferson County Probate Court naming Ethel Banks as the sole surviving heir to the estate of the late James Cohill. Della Rena Abrams, Cohill's illegitimate daughter, appeals. We reverse.
James Cohill died intestate in Jefferson County on 17 March 1981, having had no children by his marriage to the late Addie Cohill. Cohill was survived, however, by his illegitimate child, Della Rena Abrams.
Although Cohill never filed a declaration of paternity, or married the appellant's mother, he did recognize Abrams as his own and from time to time supported her. Cohill even allowed Abrams to live with him.
Paternity proceedings were brought by the state on Abrams's behalf when she was seventeen years old. On 4 May 1977, a judicial determination of paternity was made in the Juvenile Court of Jefferson County naming James Cohill as the father of Della Rena Abrams. Thereafter, Cohill supported his daughter as required by the paternity order.
The appellee, Ethel Banks, is the cousin of the decedent, being a child of the decedent's maternal aunt.
On 27 November 1983, the trial court found that although Della Rena Abrams was the illegitimate child of James Cohill, she was not entitled to inherit from his estate, as the judicial determination of paternity was not made within two years of Abrams's birth as required by Everage v. Gibson, 372 So. 2d 829 (Ala.1979) cert. denied 445 U.S. 931, 100 S. Ct. 1322, 63 L. Ed. 2d 765 (1980). In light of the recent decisions of Pickett v. Brown, 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed. 2d 372 (1983), and State v. Martin, 437 So. 2d 1311 (Ala.Civ. App.1983), the trial court's findings are in error and must be reversed.
The single issue presented is whether the two-year statute of limitations on paternity proceedings set out in Code 1975, § 26-12-7,[1] now bars the appellant from inheriting from the decedent's estate by intestate succession. We answer the question in the negative.
In order to comport with the equal protection requirements of the Fourteenth Amendment as outlined in Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), this court in Everage v. Gibson, *128 372 So. 2d 829 (Ala.1979), cert. denied 445 U.S. 931, 100 S. Ct. 1322, 63 L. Ed. 2d 765 (1980), fashioned a third alternative by which an illegitimate child could inherit from the putative father's estate. There, this court held:
Thus, in addition to the two traditional methods by which an illegitimate could heretofore be "legitimated" for purposes of inheritance, marriage of the parents and subsequent recognition of the child by the father or a written declaration of paternity, signed, attested and filed with the probate judge, the court in Everage recognized "legitimation" through a "judicial determination of paternity" under the provisions of Code 1975, § 26-12-1 et seq.
It is the two-year statute of limitations set out in Code 1975, § 26-12-7, which is at issue today. Code 1975, § 26-12-7, states that paternity proceedings must be commenced within two years of the child's birth.[2]Everage expressly recognized, however, that the constitutionality of this limitation was questioned neither in the case before the bar, nor in Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518, 58 L. Ed. 2d 503 (1978), a case upon which the Everage decision heavily relied. 372 So. 2d at 829, n. 5.
More recently, the constitutionality of a two-year statute of limitations on paternity actions was addressed in Pickett v. Brown, 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed. 2d 372 (1983). In that case, the Supreme Court struck down Tennessee's two-year statute of limitations on paternity proceedings as being in violation of the equal protection clause of the Fourteenth Amendment. The rationale for this ruling was that the limitation failed to afford illegitimate children an adequate opportunity to obtain child support while failing to be substantially related to the state interest of preventing the litigation of stale or fraudulent claims. Id., 462 U.S. at 13, 103 S. Ct. at 2206-07.
In light of this decision, the Alabama Court of Civil Appeals in State v. Martin, 437 So. 2d 1311 (Ala.Civ.App.1983), expressly invalidated Code 1975, § 26-12-7, as being likewise in violation of the Fourteenth Amendment. It follows that Della Rena Abrams, legitimated by means of a paternity decree before the death of her father, may not now be barred from inheriting from her father's estate based upon the application of an invalidated, and unconstitutional, statute of limitations.
This court notes that neither Pickett nor Martin concerned legitimation for purposes of inheritance, but rather, for purposes of support. Nevertheless, Everage recognized that a judgment of paternity serves the same state purpose as legitimation in establishing the right to intestate succession. Everage, 372 So. 2d at 833. Thus, if Alabama's two-year statute of limitations invidiously discriminates against illegitimates for the purpose of establishing support, it likewise discriminates for purposes of establishing the right to inherit from a putative father's intestate estate. To hold otherwise would be to regress to an antiquated principle of law of which Everage expressly disapproved. Specifically, this court announced:
We hold that in light of an earlier judicial determination of paternity, the trial court erred in finding that Code 1975, § 26-12-7, forever bars the appellant from inheriting from her father by intestate succession. To the extent which Everage v. Gibson, supra, or any other case, suggests such a *129 result, it is hereby modified. Accordingly, the judgment of the trial court is reversed, and the case remanded for action consistent with this opinion.
REVERSED AND REMANDED.
FAULKNER, ALMON and ADAMS, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
In Everage v. Gibson, 372 So. 2d 829 (Ala. 1979), this Court said:
On May 4, 1977, Cohill was judicially determined in a proceeding under § 26-12-1, et seq., to be the father of Della Rena Abrams. Under Everage, that determination was sufficient to establish the right of Della Rena Abrams to inherit from her intestate father's estate.[1] The question whether the paternity proceeding was barred by the statute of limitations should have been raised in that proceeding and not by a collateral attack in this proceeding to determine heirs.
[1] The legislature first expanded the limitations period to five years, see Code 1975, § 26-12-7 (Cum.Supp.1982), and then repealed the chapter altogether in favor of the Alabama Uniform Parentage Act, Code 1975, § 26-17-1 et seq. (Cum.Supp.1984).
[2] Code 1975, § 26-12-7, contains a "saving provision" which tolls the statute of limitations where the putative father has legally acknowledged or has supported the child.
[1] In Code 1975, § 43-8-48, enacted after this case arose, the legislature addressed the issue presented in this case, reaching the same result as the holding in this case. See also the commentary to § 43-8-48. | March 29, 1985 |
e076fab2-222a-45b2-8d8e-afd6c0a471fd | Marshall v. Mid-State Homes, Inc. | 468 So. 2d 131 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 131 (1985)
Diane MARSHALL, a legal heir of Juanita Coxsom
v.
MID-STATE HOMES, INC., et al.
83-572.
Supreme Court of Alabama.
March 29, 1985.
*132 Alice L. Anderson, Enterprise, for appellant.
R.A. Norred, Birmingham, for appellees.
FAULKNER, Justice.
Plaintiff, Juanita Coxsom, filed an action seeking to set aside a mortgage held by Mid-State Homes, Inc. Plaintiff attempted to obtain service on Mid-State by registered mail. The summons and the complaint were returned to the clerk's office marked "unclaimed." Plaintiff then published a notice in a local newspaper and took a default judgment against Mid-State on January 30, 1974. In January of 1977 Mid-State filed a motion seeking to set aside the default judgment. The motion was granted. Juanita Coxsom died in July 1981. The action was revived in the name of her legal heir as plaintiff and a trial on the merits was conducted in September 1983. The court rendered a judgment in Mid-State's favor and plaintiff appeals on the grounds that the trial court erred in setting aside the default judgment. We affirm.
Mid-State Homes is a corporation whose home office is in Tampa, Florida. It had numerous officers at its home office who were amenable to service of process on its behalf. It also had appointed agents in Alabama for service of process. Plaintiff chose to serve Mid-State by certified mail pursuant to Rule 4.2(b)(1) A.R.Civ.P. The envelope containing the summons and the complaint was addressed to Mid-State's vice-president, O.C. King, and marked "deliver to addressee only." After the summons and the complaint were returned marked "unclaimed," plaintiff filed a motion stating, inter alia:
An order of publication was signed by the clerk and a notice was published for four consecutive weeks in a local paper. Plaintiff then made application for, and was granted, a default judgment granting the relief prayed for.
Since the defendant's residence was known, plaintiff could not serve Mid-State by publication unless it had avoided service of process. Rule 4.3(b), A.R.Civ.P. See FDIC v. Sims, 100 F.R.D. 792 (N.D. Ala.1984). In order to obtain service of process by publication against a defendant who is avoiding service it is necessary to file an affidavit "averring facts showing such avoidance." Rule 4.3(d)(1), A.R.Civ.P. There were no averments in the plaintiff's affidavit alleging that Mid-State had attempted to avoid service of process. While a failure to claim mail may, in some instances, be construed as an avoidance of service, that was clearly not the case here. During the time in question, O.C. King was *133 the defendant's vice president, but he was ill and often spent considerable periods of time away from the office. When the envelope was returned unclaimed, plaintiff could have inquired as to the identities of other Mid-State corporate officers or she could have contacted the Secretary of State's office and found out who the defendant's agents in Alabama were and effected personal service on them.
Since the plaintiff failed to comply with the provisions of the Rules of Civil Procedure with regard to serving the plaintiff, the default judgment was void. The only time limitation with regard to attacking a void judgment is that it be done within a reasonable time. Rule 60(b)(4), A.R.Civ.P. Under the facts of this case, the trial court acted properly in setting aside the default judgment.
AFFIRMED.
TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur. | March 29, 1985 |
1a379aa3-507e-4fbc-8c0e-08b84fe1263e | Booth v. United Services Auto. Ass'n | 469 So. 2d 1281 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 1281 (1985)
Barry L. BOOTH
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION.
83-714.
Supreme Court of Alabama.
April 19, 1985.
Robert T. Cunningham, Jr. and Richard E. Browning, Mobile, for appellant.
Caine O'Rear III and Kathryn E. Errington of Hand, Arendall, Bedsole, Greaves & Johnson, Mobile, for appellee.
ADAMS, Justice.
Plaintiff, Barry L. Booth appeals from the summary judgment entered against him and in favor of the defendant, United Services Automobile Association, in the Mobile County Circuit Court. We reverse.
Briefly, the facts of this case are as follows:
In December 1974, Booth purchased a homeowner's insurance policy from United Services Automobile Association (USAA) for his beach house on Fort Morgan Road in Baldwin County, Alabama. The policy had a maximum coverage of $28,000.00. He also had a policy with USAA which covered his residence in Montrose, Alabama. The limit of that policy was $120,000.00.
In the summer of 1979, Booth received a letter from USAA which suggested that he increase the coverage on his residence in Montrose. Booth subsequently filled out *1282 the form and mailed it back to USAA. Upon receipt of the form, USAA raised the policy limits on the Montrose residence from $120,000.00 to $150,000.00. Booth claimed that he sent a similar form back to USAA at the same time to effectuate an increase in the policy limits on the Baldwin County beach house from $28,000.00 to $90,000.00. USAA denied ever having received the form, or having any correspondence with Booth about increasing the coverage on the beach house prior to the end of September 1979.
On September 12, 1979, Hurricane Frederic struck the Gulf Coast and destroyed Booth's beach house. Approximately two weeks later, Booth contacted a representative from USAA regarding the beach house loss. It was at this time, USAA claimed, that it was first made aware of the supposed increase in coverage. Booth asserted that, pursuant to the form he claimed to have mailed to USAA in July of 1979, the maximum coverage for the beach house was $90,000.00. USAA maintained its position that it had received nothing from Booth, and, therefore, the policy limit remained $28,000.00.
USAA sent Booth a check for $7,000.00, representing payment of Booth's claim. After holding the check for a while, Booth cashed it, and filed this suit against USAA for the remaining $83,000.00 he claims USAA owes him under the policy. After the pleadings were filed, USAA filed a motion for summary judgment, which the court granted. It is from that judgment that Booth appeals.
The sole issue for our review is whether the trial court erred when it granted USAA's motion for summary judgment.
The standard used by a trial court to determine if summary judgment should be granted is stated in Rule 56, Alabama Rules of Civil Procedure. In order for the court to grant summary judgment, it must find that there is no genuine issue of a material fact and that the movant is entitled to a judgment as a matter of law. Silk v. Merrill Lynch, Pierce, Fenner & Smith, 437 So. 2d 112 (Ala.1983). The burden of proof is on the movant to show that there is no genuine issue of fact that the jury must decide in the case. Worley v. Worley, 388 So. 2d 502 (Ala.1980). Also, the scintilla rule has been applied to summary judgment cases, and that rule increases the burden of proof borne by the movant. Therefore, if there is a scintilla of evidence which supports the position of the non-movant, summary judgment must not be granted. Silk v. Merrill Lynch, Pierce, Fenner & Smith, supra.
In the instant case, the question is whether the policy limits on Booth's beach house were increased from $28,000.00 to $90,000.00. In order to make this decision, certain facts which are not admitted must be determined. For instance, it must be determined what, if anything, was written to the plaintiff by the defendant in the summer of 1979. What was the reply of the plaintiff to whatever the defendant may have written him? Did the plaintiff make the first communication, reasonably requiring a reply from the defendant? Also, did plaintiff actually mail his response? We have said:
Horton v. Northeast Alabama Regional Medical Center, Inc., 334 So. 2d 885, 888 (Ala.1976).
Appellant Booth has proffered at least two theories upon which he may recover: (1) that the letter Booth sent back to USAA was Booth's acceptance of USAA's offer to increase coverage on the beach house, and *1283 (2) even if the letter Booth sent to USAA was only an offer or an invitation to make an offer, USAA was under a duty to act upon the request within a reasonable time, which it arguably did not do in this case.
Since Booth does have a chance of ultimately recovering from USAA, USAA not having met its burden of proving no genuine issue as to any material fact, we find that the summary judgment should not have been granted in this case. Therefore, we reverse the decision of the trial court and remand the cause for proceedings consistent with this opinion.
REVERSED AND REMANDED.
FAULKNER, ALMON and EMBRY, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
I agree that summary judgment was inappropriate. In concurring, I do not necessarily agree with the implication that plaintiff has stated two good theories of recovery. | April 19, 1985 |
dbaf0fee-cf4a-45cd-aeb6-93067a40111f | Smith v. Clark | 468 So. 2d 138 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 138 (1985)
Ordell SMITH
v.
Deborah K. CLARK.
83-792.
Supreme Court of Alabama.
March 29, 1985.
*139 James G. Stevens, Birmingham, for appellant.
David A. Sullivan, Birmingham, for appellee.
*140 BEATTY, Justice.
This is an appeal by defendant Ordell Smith from the denial of his Rule 60(b), A.R.Civ.P., motion for relief from a judgment previously rendered against him. We affirm.
The judgment from which defendant sought relief arose out of a lawsuit brought by plaintiff Deborah K. Clark. That lawsuit grew out of a real estate transaction.
Sometime in late 1978, plaintiff Clark contacted defendant Smith and asked him to represent her, or to be her agent, in the purchase of a home. Smith agreed to do so, and the transaction was completed.
After discovering defects in the roofing of her new home and finding her requests for their repair ignored, Clark filed a complaint in Jefferson County Circuit Court on June 4, 1980, against Norman W. Vandergriff, Jr., Paula Vandergriff, Vulcan Realty Company, Realty Sales Company, Robert McElroy, and Smith, alleging facts constituting fraud, deceit, misrepresentation, breach of contract, and breach of fiduciary duty against all the defendants, and claiming damages of $150,000.
The law firm of Corretti and Newsom of Birmingham, through attorney N. Daniel Rogers, represented co-defendants Robert McElroy and Realty Sales Company. On October 22, 1982, the defendants in the case, with the sole exception of Ordell Smith, were dismissed with prejudice as parties to the suit. After that date, N. Daniel Rogers was no longer involved as attorney in the dispute at bar.
On April 19, 1983, a default judgment was entered against Smith by Circuit Judge John N. Bryan, Jr., with leave for the plaintiff to prove damages.
Plaintiff Deborah Clark subsequently proved damages against defendant Smith on August 30, 1983, and was awarded the sum of $15,000. The presiding judge at the hearing on damages was N. Daniel Rogers, who, as an attorney, had represented co-defendants Robert McElroy and Realty Sales Company 10 months previously.
On February 22, 1984, almost six months later, the defendant filed a Rule 60(b) motion for relief from judgment, requesting that the order of August 30, 1983, awarding damages be set aside on the ground that Judge Rogers had a conflict of interest in the case. The motion was transferred to Judge Ingram Beasley of the Jefferson Circuit Court on March 5, 1984.
After a hearing before Judge Beasley on March 20, 1984, the defendant's Rule 60(b) motion was denied. On May 1, 1984, the defendant filed this appeal, claiming that Judge Beasley's refusal to set aside Judge Rogers's award of damages constituted reversible error.
Rule 60(b) sets out the grounds upon which a party may seek relief from a final judgment, order, or proceeding. In his motion, the defendant did not specify the grounds upon which he relied. From the nature of his motion, the defendant must have been relying upon one or the other of two grounds: "(4) the judgment is void;... or (6) any other reason justifying relief from operation of the judgment."
Clause (6) of this rule and the first five clauses of this rule are mutually exclusive, and relief cannot be obtained under (6) if it would have been available under one of the other five clauses. Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So. 2d 228 (Ala.1978); City of Birmingham v. City of Fairfield, 396 So. 2d 692 (Ala.1981). Consequently, relief under Rule 60(b)(6) is available only under circumstances not arising under 60(b)(1)-(5); Rule 60(b)(6) is reserved for "extraordinary circumstances," and is available only in cases of "extreme hardship or injustice," City of Birmingham, supra, or when the case involves "aggravating circumstances," Giles v. Giles, 404 So. 2d 649 (Ala.1981). The decision to grant or to withhold Rule 60(b)(6) relief being discretionary, the trial court's decision will not be reversed except for an abuse of that discretion. Textron v. Whitfield, 380 So. 2d 259 (Ala.1979).
*141 On the other hand, a Rule 60(b)(4) motion has a different standard of review on appeal. When the grant or denial turns on the validity of the judgment, discretion has no place for operation. If the judgment is void, it is to be set aside; if it is valid, it must stand. Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala. 1978). A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Ibid.
None of the facts that would establish a void judgment are present in the case at bar. In rendering his order awarding damages, Judge Rogers did not lack jurisdiction over the subject matter, nor did he lack jurisdiction over the parties. For aught that appears, he did not act in a manner inconsistent with due process. Indeed, a judgment is not void because of disqualification of a judge, but is only voidable on direct attack by appeal or by motion to set it aside. State ex rel. Burns v. Phillips, 250 Ala. 120, 33 So. 2d 239 (1947). Consequently, defendant here could not prevail under a Rule 60(b)(4) assertion under these facts.
An appeal from an order denying a Rule 60(b) motion presents for review only the correctness of that order. The final judgment is not brought up for review. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So. 2d 271 (1975). Furthermore, it must be assumed that Judge Beasley was aware that Rule 60(b)(6) is an extreme and powerful remedy and should be resorted to only under extraordinary circumstances. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So. 2d 20 (1974), cert. denied, 293 Ala. 775, 307 So. 2d 24 (1975). Accordingly, Judge Beasley's action in refusing the 60(b)(6) motion must be overturned only if he abused his discretion or erred in applying the law.
The defendant contends that the Honorable N. Daniel Rogers violated § 12-1-12, Code of 1975, and Canon 3C.(1)(b) of the Canons of Judicial Ethics.
Section 12-1-12 states:
In Rushing v. City of Georgiana, 361 So. 2d 11 (Ala.1978), this Court held that the trial judge should have recused himself by reason of his having prosecuted a criminal case against Rushing. The key element in that decision was the fact that a pending civil case and the previous criminal case arose out of the same matter in controversy. Rushing is distinguishable from the case at bar, however, because Rushing involved review of a refusal by the Court of Civil Appeals to grant a writ of mandamus requiring the circuit court judge to recuse himself before trial. In the case before us, a default judgment was entered against Smith, and the order to pay damages on the judgment had been outstanding six months before any complaint of bias was filed by the defendant. Because this appeal proposes a review of a ruling on a Rule 60(b)(6) motion rather than a review of a pre-trial denial of a writ of mandamus, Judge Beasley's duty to balance the finality of judgments against the desire to remedy injustice must be taken into account. Frazier v. Malone, 387 So. 2d 145 (Ala. 1980). Deference should be given his judgment in this regard. Appellant should *142 have protested against Judge Rogers's sitting as a judge before or at the hearing on damages. It is well settled that the broad power granted by Rule 60(b)(6) is not for the purpose of relieving a party from free, calculated, and deliberate choices he has made. Tichansky, supra.
In a case with facts similar to the present one, Acromag-Viking v. Blalock, 420 So. 2d 60 (Ala.1982), this Court considered a Rule 60(b)(6) motion to set aside a judgment where it was argued that the judge should have been disqualified. That case involved a trial judge who was on the board of directors of a publishing concern that employed one of the named defendants. The judge denied an informal request by the plaintiff to recuse himself. That request was made during a recess at trial. The judge entered a judgment for the defendants. Plaintiff then filed a Rule 60(b)(6) motion. The motion declared that the information on the trial judge's relationship to the defendant had not been available to plaintiff at the time of trial and that, had it been, a motion to recuse would have been made. The motion was heard and denied by that very same trial judge. This Court held that those facts were sufficient to constitute reversible error, and the case was remanded for a new trial.
Important differences exist between the instant case and Blalock, supra. First of all, the Rule 60(b)(6) motion in Blalock was heard by the same judge who was complained of in the motion. In the case at bar, on the other hand, the judge complained of recused himself from hearing the motion and transferred the case to a different judge. Arguably, when the judge who rules upon the Rule 60(b)(6) motion is not the judge who heard the case and his actions are subsequently complained about, it will be more difficult to show abuse of discretion.
Another important difference in these two cases is that, in Blalock, the trial judge had a relationship with one of the defendants which was ongoing and continued right up to the time of the appeal. However, in the case at bar, the judge complained of had no connection with either of the parties at the time of the appeal, nor at the time of the judgment. He had represented a co-defendant in the case; this co-defendant had been dismissed as a party 10 months before he rendered the decision complained of.
Doubtless, Judge Beasley concluded that this tenuous relationship to the matter in controversy did not represent facts substantial enough to have demanded Judge Rogers's recusal at the damages hearing. Thus, Judge Beasley's exercise of his broad discretion cannot be viewed as an abuse thereof. It follows that his order denying Rule 60(b) relief is due to be affirmed. It is so ordered.
AFFIRMED.
MADDOX, JONES and SHORES, JJ., concur.
TORBERT, C.J., concurs specially.
TORBERT, Chief Justice (concurring specially).
Under the facts of this case, I agree with the result reached. Given our limited scope of review in cases challenging the propriety of denying a Rule 60(b)(6) motion, the trial court's order is due to be affirmed. However, I want to make it clear that the holding in this case should not be interpreted as approving of a judge's sitting in a case when he previously served as an attorney with regard to the matter in controversy. | March 29, 1985 |
e91af6a9-a24c-498c-b5cd-22db324c781e | Osborn v. Johns | 468 So. 2d 103 | N/A | Alabama | Alabama Supreme Court | 468 So. 2d 103 (1985)
Johnny M. OSBORN
v.
J.D. JOHNS, et al.
82-945.
Supreme Court of Alabama.
March 29, 1985.
*105 Gerald D. Colvin, Jr. and Jeffrey C. Kirby of Bishop, Colvin & Johnson, Birmingham, for appellant.
George P. Ford of Simmons and Ford, Gadsden, for appellee Universal Equipment Rental, Inc.
Michael L. Roberts of Floyd, Kenner & Cusimano, Gadsden, for appellee First Citizens Bank of Etowah.
BEATTY, Justice.
Plaintiff Johnny Osborn appeals from a summary judgment granted in favor of defendant First Citizens Bank of Etowah and from judgments on directed verdicts granted in favor of defendants J.D. Johns [1] and Universal Equipment Rental, Inc. We affirm.
On April 16, 1981, Osborn filed suit alleging default in payment of a note and fraud against defendants, J.D. Johns; L. Alan Wilson; Service Concrete Company, Inc. (Service Concrete); Universal Equipment Rental, Inc. (Universal Equipment); First Alabama Bank of Gadsden (First Alabama Bank); and First Citizens Bank of Etowah (Citizens Bank). By amendment, plaintiff added Gadsden Ready Mix (Ready Mix) as a party defendant and asserted an additional claim for breach of lease against all defendants. Also in this amendment, plaintiff revived his action against the estate of J.D. Johns, pursuant to § 6-5-466, Code of 1975.
The following dispositions have occurred with regard to the respective defendants:
(1) On October 2, 1981, First Alabama Bank obtained a summary judgment in its favor. No appeal was taken.
(2) On October 29, 1981, the trial court granted summary judgment in favor of Citizens Bank dismissing all claims against it. Osborn's motion to reconsider was denied.
(3) On November 23, 1982, Wilson was severed from this case as a result of his filing a petition for bankruptcy.
(4) On March 4, 1983, a directed verdict and judgment for $50,435 in favor of Osborn was entered against Service Concrete and Ready Mix.
(5) On March 4, 1983, the trial court granted a directed verdict in favor of Johns and Universal Equipment on all claims. Plaintiff's motion for new trial was denied.
The record is composed of the evidence introduced on Citizens Bank's motion for summary judgment and the evidence adduced at trial. While our review of the summary judgment in favor of Citizens Bank must be based on the evidence before the trial court at the time it granted summary judgment, see Ex parte Bagby Elevator & Electric Co., 383 So. 2d 173, 176 (Ala.1980), and our review of the directed verdict in favor of Johns and Universal Equipment must of necessity be based on evidence presented at the trial, see Harris v. Hall, 234 Ala. 115, 173 So. 849 (1937), the same basic facts were involved in each proceeding. At the trial, however, much of the evidence was admitted against some parties but not against others. Without delineating the origin of the evidence or against which party or parties it was admitted, we set forth the following synopsis of the facts:
Plaintiff Osborn was the owner of all the stock (1,000 shares) in Service Concrete, which had a ready-mix concrete plant in Rainbow City. In April of 1976, plaintiff entered into negotiations to sell this business. The agreed-upon terms of the sale, as embodied in the sales contract, included a price of $350,000, less the indebtedness of Service Concrete, of which Osborn was to receive 29% down, with the balance to be paid over a five-year period. In addition, *106 Osborn agreed to lease to Service Concrete the property upon which it was then operating for a five-year period at $1,600 per month and the buyer agreed to assume all indebtedness of Service Concrete. At the time of the sale, Service Concrete had outstanding three notes to First Alabama Bank totalling some $180,000 and secured by virtually all of the company's assets. Some $18,000 to $20,000 of this $180,000 was used by Osborn to construct the buildings housing the Service Concrete operations, which were subsequently leased to Service Concrete.
The sale was closed on April 16, 1976, in the office of J.D. Johns, then president of First Alabama Bank. Although plaintiff asserts that he was selling Service Concrete to Johns, a different person, L. Alan Wilson, was designated in the transaction documents as the purchaser of Osborn's stock, and Wilson executed the promissory note that evidenced the deferred portion of the purchase price. This note, in the amount of $114,212.60, was secured by the 1,000 shares of Service Concrete stock and provided that "5 annual installments of $22,842.52 plus interest from date at 8%" were to be paid Osborn each January 15, beginning in 1977. At the closing, Osborn received a check drawn on Universal Equipment in the amount of $46,650.21 as the 29% down payment.
Shortly after the sale, Johns left First Alabama Bank and became president of Citizens Bank. Service Concrete then began to bank at Citizens Bank. Thereafter, several loans made to Service Concrete by various financial institutions were guaranteed by Johns or Universal Equipment, which corporation plaintiff Osborn asserts is actually the alter ego of Johns. One such loan, in the amount of $180,000 from Birmingham Trust National Bank, was actually a refinancing of the original indebtedness of Service Concrete which was assumed by Wilson in the sale.
In 1979 and 1980, Wilson was unable to meet his yearly obligation to Osborn. These installments were renegotiated between Osborn and Wilson, without the involvement of anyone else. New promissory notes for these installments were executed by Wilson or by Wilson and Service Concrete. During one of these renegotiations, Wilson informed Osborn that Service Concrete was having financial difficulties. Prior to this, in late 1977 or early 1978, Osborn had instructed his attorney to obtain from the Secretary of State information concerning financing statements filed on Service Concrete. A response was received indicating that the assets of the company were subject to a number of security interests.
Service Concrete operated at a loss during 1977, 1978, 1979, and 1980. Universal Equipment, after paying off every loan to Service Concrete which it had guaranteed, including the loan from Birmingham Trust National Bank, and taking assignments of the security interests involved in those loans, eventually instituted foreclosure proceedings against Service Concrete. Universal Equipment purchased Service Concrete's assets at the foreclosure sale and subsequently leased the equipment to Ready Mix, a corporation formed by one D.L. Ashley and managed by Wilson. Ready Mix failed to make the payments due Universal Equipment under the lease, and Universal Equipment repossessed the equipment and thereafter sold it at auction for $43,000.
At the time suit was filed, Osborn had received all but approximately $37,880 on the original note for $114,212.60 and the notes executed for the 1979 and 1980 annual payments. In his complaint, plaintiff alleges that this amount is due him "under the notes" from all defendants. His claim against all defendants for breach of lease alleges "that defendants have failed and refused to return the real property as described in said lease to the plaintiff in condition in conformity to the provisions of the lease." It is undisputed that Osborn has received all monies due him under the terms of the lease. In regard to his claim for fraud, plaintiff alleges that all of the defendants conspired to defraud him in that defendants, through the misuse of corporate *107 identities and other acts, caused the stock in Service Concrete, which was his only collateral for the purchase price, to become totally worthless by "wast[ing] and dilut[ing] the assets of Service [Concrete]."
First, we address the issue of whether the trial court was correct in granting summary judgment in favor of Citizens Bank. Citizens Bank based its motion for summary judgment on the pleadings and on Osborn's deposition, directing the court's attention to the portions of the deposition containing the following excerpts:
Osborn responded to Citizens Bank's motion by offering the following affidavit in opposition:
This affidavit clearly does nothing more than restate the allegations and conclusions contained in Osborn's original complaint. Furthermore, it was unaccompanied by certified copies of the documents referred to. Consequently, it does not, as Citizens Bank correctly asserts, comply with Rule 56(e), A.R.Civ.P., which provides in pertinent part:
In Moore's Federal Practice, we find the following language regarding affidavits in support of, or in opposition to, summary judgment:
6 J. Moore & J. Wicker, Moore's Federal Practice, Paragraph 56.22[1] at 56-1312 through 56-1317 (2d ed. 1982) (footnotes omitted). See also Day v. Merchants National Bank of Mobile, 431 So. 2d 1254 (Ala.1983).
Citizens Bank's motion for summary judgment was argued and submitted to the trial court based on Osborn's deposition and affidavit on October 1, 1981. The judgment in favor of Citizens Bank was entered October 29, 1981. Osborn filed his motion for reconsideration October 30, 1981, "pray[ing] that the depositions of Shirley Miller, Elizabeth Turner, and Jane Hartsook be published and considered by the Court in connection with this motion." Plaintiff also filed another affidavit and attached several documents in support thereof. The depositions referred to in the motion were all filed prior to the trial court's decision (Turner's deposition was filed October 19, Miller's on October 23, and Hartsook's on October 27), but after the submission of the motion.
This Court dealt with an identical situation in Guess v. Snyder, 378 So. 2d 691 (Ala.1979), which involved a claim for medical malpractice. In opposition to the defendant doctor's motion for summary judgment, plaintiff filed an affidavit from her attorney to which was attached an unsworn letter from a Kentucky physician. This affidavit, like Osborn's herein, was insufficient under Rule 56(e). The motion for summary judgment was submitted March 2, 1978, on the affidavit of plaintiff's attorney and the evidence filed by the defendant. On March 9, plaintiff filed an additional opposing affidavit from the Kentucky physician. The trial court granted summary judgment for the defendant on March 14. Recognizing that "[t]he trial court can consider only that material before it at the time of submission of the motion" and that any material filed thereafter "comes too late," this Court concluded that the affidavit of the Kentucky physician filed March 9 was "unquestionably untimely." 378 So. 2d at 692 (emphasis added). See also Mathis v. Jim Skinner Ford, Inc., 361 So. 2d 113 (Ala.1978). Applying these principles to the present case, we find that none of the material referred to in Osborn's motion for reconsideration was properly before the trial court and, therefore, cannot be considered on appeal by this Court. See Ex parte Bagby, supra.
It is well settled that summary judgment is proper only where the moving party has clearly shown the absence of any genuine issue of material fact and is entitled to judgment as a matter of law. Savage v. Wright, 439 So. 2d 120, 123 (Ala. *109 1983); Rule 56(c), A.R.Civ.P. Citizens Bank offered, in support of its motion, Osborn's deposition in which he stated he had no claim against Citizens Bank, and, further, that he knew of no reason why the bank should be involved in the case. In opposition, as we demonstrated above, Osborn essentially relied on his initial pleadings. Rule 56(e), A.R.Civ.P., provides:
Since Osborn's deposition affirmatively shows that he had no basis for any claim against Citizens Bank, we can only conclude that the trial judge was correct in granting the bank's motion for summary judgment on all claims. See Stallings v. Angelica Uniform Co., 388 So. 2d 942 (Ala. 1980) (summary judgment properly granted for defendant in negligence action where defendant's motion for summary judgment was supported by depositions, including that of plaintiff wherein she stated "that she did not know of any specific act of [defendant's] that caused any damage to her" and plaintiff offered nothing to contradict this evidence).
Osborn's claims against Johns, Universal Equipment, Service Concrete, and Ready Mix were tried before a jury. Osborn testified in his own behalf and called Wilson and Johns' son as adverse witnesses. When plaintiff rested, defendants Johns and Universal Equipment moved for a directed verdict. After excusing the jury, the trial judge heard arguments on this motion, then granted a directed verdict for defendants Johns and Universal on all claims. In regard to this, the judge stated:
*110 Plaintiff has raised several peripheral questions in relation to the directed verdict for the defendants, such as the trial court's alleged misapplication of the Dead Man's Statute, § 12-21-163, Code of 1975, and whether Johns and Universal Equipment were one and the same under the alter ego doctrine. As we demonstrate below, plaintiff's claims against both Johns and Universal Equipment must fail for other reasons. Therefore, we need not address these peripheral issues.
Turning first to plaintiff's claims on the promissory note, we point out that neither Johns nor Universal Equipment was a signatory as to this document. However, plaintiff has raised two alternative theories of liability upon which he seeks to recover.
First, plaintiff argues on appeal that Wilson was acting as the agent of Johns and/or Universal Equipment in signing the document. While the complaint does contain an allegation that "L. Alan Wilson executed said note as agent for and on the part of all defendants," this theory was not relied on at trial. In fact, while arguing against defendants' motion for directed verdict, in relation to the claim on the note, plaintiff's counsel stated:
While a directed verdict is improper if there is a scintilla of evidence to support a theory of recovery or defense advanced by the opposing party, see Baker v. Chastain, 389 So. 2d 932, 934 (Ala.1980), that theory must, of necessity, have been advanced at trial. This follows from the well-established rule that a party may not raise on appeal a theory or issue not advanced at trial. See Vaughn v. Thomas, 372 So. 2d 1309, 1311 (Ala.1979), and cases cited at 2 Ala.Dig. Appeal and Error Key No. 171(1) (1955 and Supp.1984). Since the agency theory was not relied upon below to provide liability on the note, we need not determine whether there existed a scintilla of evidence to support such a theory.
The second alternative theory of liability advanced by plaintiff, as indicated by the above quote, is that he had an oral contract with Johns for the sale of Service Concrete and that this contract should be considered in addition to the written contract with Wilson. During the hearing on the motion for directed verdict, the following exchange occurred:
It is clear from this exchange that plaintiff conceded that his claim on an oral contract would be defeated by the written contract. Having agreed with the trial court that the written contract would take precedence over any alleged oral contract, plaintiff may not now assert that the court erred in entering a directed verdict against him on that ground. As this Court stated in Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 157, 130 So. 2d 178, 182 (1961):
The evidence concerning the alleged breach of lease was not admitted against defendants Johns and Universal Equipment as they were not signatories to the lease. Plaintiff has not contested this exclusion on appeal. There being no evidence against these defendants on the breach of lease claim, a directed verdict in their favor was proper.
In regard to the fraud claim against Johns and Universal Equipment, we are in agreement with the trial court that, if there was any fraud perpetrated upon the plaintiff, this claim is barred by the statute of limitations.
Actions for fraud are subject to a one-year statute of limitations. Section 6-2-39, Code of 1975. Although the statute does not begin to run until the fraud is discovered, § 6-2-3,
Jefferson County Truck Growers Association v. Tanner, 341 So. 2d 485, 488 (Ala. 1977) (emphasis added).
Generally, the question of when a plaintiff discovered an alleged fraud is a question for the jury and is therefore not a proper matter for directed verdict. Cf. Papastefan v. B & L Construction Co., Inc. of Mobile, 356 So. 2d 158 (Ala.1978) (holding that the time of discovery of fraud is not a proper matter for summary judgment). However, even matters which are usually considered to be jury questions can be resolved on motion for directed verdict when the evidence clearly warrants it. For example, we held in Cooper & Co. v. Bryant, 440 So. 2d 1016 (Ala.1983), that a directed verdict on the question of agency, which is normally a question for the jury, was proper where there was no scintilla of evidence to support the existence of an agency relationship.
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 or (2) where there is no disputed issue of fact upon which reasonable men could differ. Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 856 (Ala.1981). A directed verdict is appropriate in the second situation only "if the facts and inferences point so strongly and overwhelmingly in one party's favor that reasonable persons could only arrive at one verdict." Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir.1981).
The evidence at trial clearly established the following facts:
(1) Although asserting he sold his business to Johns, it is undisputed that, in April 1976, Osborn accepted a sales contract and promissory note signed by Wilson along with a check from Universal Equipment;
(2) In late 1977 or early 1978, Osborn had his attorney acquire from the Secretary of State a list of financing statements indicating that Service Concrete's assets were encumbered by several security interests; and
(3) In 1979 and 1980, Osborn renegotiated the annual installments due on the original note with Wilson alone, at which time Wilson indicated that Service Concrete was having financial difficulty.
Even reviewing the facts in the light most favorable to Osborn, as we are required to do, Alabama Power Co. v. Robinson, 404 So. 2d 22 (Ala.1981), we are of the opinion that reasonable men could only conclude that Osborn was in possession of sufficient facts which would lead a reasonable man to investigate the possibility of fraud at least as early as January 1980 when Wilson was forced to renegotiate the yearly installment a second time. Since Osborn failed to file suit until some 16 months later, his action for fraud was time barred.
*112 For the reasons stated above, we hold that the trial judge did not err in granting summary judgment on all claims in favor of defendant Citizens Bank nor in granting a directed verdict on all claims in favor of defendants Johns and Universal Equipment.
Let the judgment be affirmed.
AFFIRMED.
MADDOX, JONES, ALMON and EMBRY, JJ., concur.
[1] Although this appeal comes to us with J.D. Johns named as an appellee, we understand that the case actually proceeded against the estate of Johns. | March 29, 1985 |
4a796826-6219-4d93-983d-ece834e5219b | Liberty Nat. Life Ins. Co. v. Beasley | 466 So. 2d 935 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 935 (1985)
LIBERTY NATIONAL LIFE INSURANCE COMPANY
v.
Vickie A. BEASLEY and John W. Beasley, a minor, By and Through his guardian, mother and next friend, Vickie A. BEASLEY.
83-876.
Supreme Court of Alabama.
March 1, 1985.
*936 Robert H. Brogden of Brogden & Quattlebaum, Ozark, for appellant.
Edward M. Price, Jr. and Rufus R. Smith, Jr. of Farmer, Price, Espy & Smith, Dothan, for appellees.
PER CURIAM.
Because the first two "Issues Presented" were not properly preserved for review on the merits, and because the third and last issue relates only to the procedure for assessing attorney's fees, neither a statement of the case nor a statement of the facts is necessary to our opinion.
As to the evidentiary issue, initially raised in the trial court by the Appellant's motion in limine, we find the record totally devoid of any objection or adverse ruling when the matter earlier challenged by the motion was offered and received in evidence at trial. Furthermore, in face of the trial court's comment, in ruling upon the motion in limine, that the challenged evidence was admissible for a limited purpose, no limiting instructions were requested either at the motion in limine hearing or at the time of trial.
We hold, therefore, that an appellant who suffers an adverse ruling on a motion to exclude evidence (or other matters, e.g., argument of counsel), made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence or other matters and assigns specific grounds therefor at the time of trial, unless he has obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds therefor are not necessary. See C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981).
Here, because the evidence was admissible, albeit for a limited and qualified purpose, and the trial judge so indicated in denying the motion in limine (thus rendering unfeasible the latter condition set out above, i.e., obtaining the trial judge's express acquiescence), it was incumbent upon Appellant to register his objection and assign grounds therefor in order to preserve the alleged error for review. A.R.Civ.P. 46. For an excellent discussion for the motion in limine and its application to specifically proffered evidence, see, also, Banner Welders, Inc. v. Knighton, 425 So. 2d 441 (Ala.1982).
*937 The Supreme Court of Indiana, in addressing this identical issue, observed:
As to the allegation of error with respect to the trial court's oral jury instruction, we hold that where a party submits to the court a statement of the applicable foreign law (A.R.Civ.P. 44.1), and the court substantially follows that statement in instructing the jury, the party submitting the statement cannot then claim error in the giving of that instruction. We quote from the record the trial court's remark immediately following counsel's objection:
It is axiomatic that, under the "invited error" rule, a party cannot seek reversal upon alleged error induced by him. State Farm Mutual Automobile Insurance Co. v. Humphres, 293 Ala. 413, 304 So. 2d 573, 577 (1974).
The Appellant's final allegation of error, with respect to the award of attorney's fees pursuant to the applicable Florida statute (under which the case was tried by consent of the parties), was properly preserved for review. Although we agree with the Appellees that Appellant's objections to the evidence regarding attorney's fees were general in nature, and thus insufficient as a predicate for challenging admissibility, we believe the larger question of the propriety of the court's allowance of an attorney's fee as part of the jury's verdict was properly preserved through Appellant's objections, with specific grounds assigned therefor, to the trial court's jury instructions.
While we reject Appellant's argument that the statutory use of the term "courts of this state" precludes an Alabama court from awarding attorney's fees (see Carr v. American Universal Insurance Company, 341 F.2d 220 (6th Cir. 1965)), we agree with Appellant's alternative argument that the plain wording of § 627.428 of the Florida Statutes makes the award of attorney's fees a court function and not a function of the jury.
Because of this error, that portion of the judgment awarding attorney's fees is reversed and this cause is remanded for a hearing before the trial court for determination of attorney's fees for the trial, as well as for the appeal, of this case. For the applicable guidelines under Florida law in the setting of attorney's fees in such matters, see Gibson v. Walker, 380 So. 2d 531 (Fla.Dist.Ct.App.1980).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
MADDOX, JONES, EMBRY, BEATTY and ADAMS, JJ., concur. | March 1, 1985 |
cd7424da-fe46-4c28-a57a-eb55e6a7d0c9 | Ex Parte Talley | 479 So. 2d 1305 | N/A | Alabama | Alabama Supreme Court | 479 So. 2d 1305 (1985)
Ex parte Bernard TALLEY.
(Re Bernard Talley v. State of Alabama).
84-692.
Supreme Court of Alabama.
September 20, 1985.
Robert M. Beno, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
Bernard Talley was convicted of escape from the custody of a police officer under Code 1975, § 13A-10-33. The Court of Criminal Appeals, 479 So. 2d 1300 (1985), affirmed the conviction. We granted Talley's petition for a writ of certiorari to decide whether the officers who arrested Talley in fact had the authority to do so. We hold that the arrest was illegal because the officers did not possess a warrant. We, therefore, reverse.
The facts of the case are as follows:
On March 3, 1982, Montgomery police officer Stephen Eiland went to Talley's sister's residence with two other officers in order to arrest Talley for three unpaid misdemeanor fines. None of the officers had a warrant with them at the time of the arrest. Testimony indicated that Talley was also wanted for questioning in reference to a burglary.
Talley was found at his sister's residence, and the officers attempted to place him under arrest. Talley escaped from their custody, however, and was not captured until a later date. He was then tried and convicted of escape from custody, the conviction from which this appeal arises.
The testimony at Talley's trial showed that at the time of his arrest, there were three unpaid fines outstanding against Talley in the Municipal Court of Montgomery. Talley had been convicted on two charges of discharging a firearm within the city limits, for which he was fined $25.00 plus costs on each case. Additionally, he had been convicted of concealing his identity, for which he was also fined $25.00 plus costs. These were misdemeanor convictions.
The court administrator for the City of Montgomery testified as to the processing of warrants for such convictions:
The administrator testified further that a capias warrant is an arrest warrant issued against a defendant who fails to appear in court or fails to pay a fine. She stated that in March 1982 source documents were in existence for Talley's three misdemeanors. There was a dispute in the evidence, however, as to whether there were actually capias warrants issued against Talley at the time of his arrest. The administrator testified as follows:
As Talley points out, this testimony indicates that in March of 1982, when he was arrested, the administrator's office had not even begun typing the capias warrants from the source documents.
On the other hand, Officer Eiland testified that on March 3, 1982, he found three capias warrants outstanding on Talley at the clerk's office. Eiland stated that it was upon discovering the warrants that he and two uniformed officers set out to arrest Talley. This is when the escape occurred.
Talley argues that the evidence shows that a warrant for his arrest was not even in existence on March 3, 1982, and alternatively, if it did exist, that the officers did not have the warrant with them at the time of the arrest. Since the arrest was pursuant to three misdemeanors, the arrest would be valid only with a warrant, unless the officers had witnessed the misdemeanor. Adams v. State, 175 Ala. 8, 57 So. 591 (1912).
The state takes the position that in order to make a valid arrest for a misdemeanor which was not witnessed by the officer, a warrant must exist, but need not be in the officer's physical possession at the time of the arrest.
We agree with Talley's second argument. For an arrest to be valid on a misdemeanor offense which was not witnessed by the arresting officer, the officer must have an arrest warrant in his possession at the time of arrest. Having reached this holding, we need not address whether a warrant was actually in existence.
The circumstances under which an arrest is allowed without a warrant are codified as follows:
Code 1975, § 15-10-3. (emphasis added). Under this statute, a warrant is required to effect an arrest on a misdemeanor not witnessed by the police officer. The statute, however, does not mention whether the warrant has to be in the arresting officer's possession.
In Adams v. State, 175 Ala. 8, 57 So. 591 (1912), the Court interpreted Code 1907, § 6269, the precursor of § 15-10-3, to require that the arresting officer actually have the warrant in his possession. The Court stated this:
175 Ala. 11, 57 So. 592. It is a clear inference from the emphasized sentence above that an arresting officer must have the warrant in his possession at the time of the arrest in a misdemeanor case.
In United States v. Robinson, 650 F.2d 537 (5th Cir.1981), Judge Lynne, sitting by designation on the Circuit Court of Appeals, construed § 15-10-3 together with Adams, supra, and held that the arresting officer must have the misdemeanor warrant in his possession to effect a lawful arrest. The opinion states as follows:
650 F.2d at 539. Although we are not bound by this federal court interpretation of Alabama law, we nevertheless agree with the holding.
The state would have us adopt a new rule abandoning the requirement that a police officer actually possess the warrant when making a misdemeanor arrest. In light of the language of § 15-10-3 and Adams and Robinson, supra, we see no reason to change a long existing and just principle of law. For these reasons, the judgment of the Court of Criminal Appeals is hereby reversed and remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON and BEATTY, JJ., concur. | September 20, 1985 |
52d7297e-4ac3-42f7-8047-a91777705873 | Wallace Const. Co. v. Industrial Boiler Co. | 470 So. 2d 1151 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1151 (1985)
WALLACE CONSTRUCTION CO., INC. and Hartford Accident & Indemnity Co., Inc.
v.
INDUSTRIAL BOILER CO., INC.
83-1232.
Supreme Court of Alabama.
March 22, 1985.
Rehearing Denied May 10, 1985.
John T. Robertson IV of Henslee and Bradley, Gadsden, for appellants.
Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellee.
SHORES, Justice.
We granted permission for the defendants, Wallace Construction Company, Inc., and Hartford Accident and Indemnity Company, Inc., to appeal from the trial court's denial of their motion for summary judgment in this action brought by Industrial Boiler Company, Inc., to recover damages for breach of contract. We affirm.
Industrial Boiler Company, Inc. (Industrial Boiler), a Georgia corporation, filed suit against Wallace Construction Company, Inc. (Wallace), and Hartford Accident and Indemnity Company, Inc. (Hartford), seeking damages for breach of contract. Wallace was the successful bidder for a contract with the University of Montevallo for, among other things, the installation of a heating system at the school. Hartford *1152 was the surety on Wallace's bond for that project. By virtue of a subcontract with Wallace, dated August 18, 1981, Industrial Boiler agreed to manufacture and install the boiler system. This it did. On June 16, 1983, Industrial Boiler filed a complaint, naming Wallace and Hartford as defendants, alleging Wallace's failure to pay under this contract and Hartford's liability thereon as surety.
Wallace and Hartford contend that Industrial Boiler's activities concerning the assembly and installation of the boiler constituted doing business in Alabama. They further argue that Industrial Boiler failed to qualify to do business in Alabama until after the execution of the contract in question and that it is, therefore, precluded, as a matter of law, from enforcing the contract under § 10-2A-247 and § 40-14-4, Ala.Code 1975, and Article XII, § 232, of the Alabama Constitution of 1901.
Industrial Boiler does not dispute its failure to timely qualify to do business in Alabama, but insists that its activities within Alabama were necessary and incidental to the interstate sale of the boiler and, therefore, did not constitute "doing business" within the meaning of the provisions relied upon by Wallace and Hartford. We agree.
Section 232 of the Alabama Constitution, § 10-2A-247, and § 40-14-4, supra, bar a foreign corporation not qualified to do business in Alabama from enforcing its contracts in the courts of this state. These laws apply, however, only when the business conducted in this state by the non-qualified corporation is intrastate in nature. Johnson v. MPL Leasing Corp., 441 So. 2d 904 (Ala.1983). A non-qualified foreign corporation is not barred from enforcing its contracts in Alabama when its activities within this state are incidental to the transaction of interstate business. Johnson v. MPL Leasing Corp.; Cobb v. York Ice Mach. Corp., 230 Ala. 95, 159 So. 811 (1935); York Mfg. Co. v. Colley, 247 U.S. 21, 38 S. Ct. 430, 62 L. Ed. 963 (1918); Article I, § 8, cl. 3, United States Constitution.
Summary judgment is proper 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. The undisputed facts in this case show that Industrial Boiler contracted with Wallace on August 18, 1981, to manufacture and install a wood fuel boiler system, but failed to qualify to do business in Alabama until September 13, 1982. The boiler was manufactured by Industrial Boiler in Georgia and shipped to the jobsite in 300 to 400 separate parts, where Industrial Boiler personnel assembled and installed it. Assembled, the boiler was approximately 40 feet wide, 60 feet long, and 25 feet high. The number of full-time Industrial Boiler personnel on the jobsite varied from time to time and included one to five employees who were skilled in the assembly and installation of boilers. When required, these employees stayed overnight at local motels. Industrial Boiler also hired three to five local residents to perform temporary manual labor. Industrial Boiler never maintained an office on the jobsite and had no telephone, gas, water, or electrical service connected. Industrial Boiler contracted with a local crane service for the use of a crane and operator and also leased a forklift and a portable air compressor. When necessary, Industrial Boiler personnel purchased certain parts from local merchants. The boiler was installed within a building built especially for that purpose and consisted of a steel structure resting on a concrete foundation. Industrial Boiler did not build any part of this building and did no work on the jobsite other than the assembly and installation of the boiler. The assembly and installation of the boiler was not within the capability of most general contractors, including Wallace, but required skilled personnel with a background in boiler machinery. Industrial Boiler makes installation services available to its purchasers, who usually desire it, and while it has certain competitors capable of providing these services, Industrial Boiler was awarded the contract with Wallace on the basis of its low bid. The assembly and installation of the boiler was to be completed within 250 days, but took approximately *1153 45 days longer. The contract also required Industrial Boiler to provide 5 days of adjustment, start up, and training upon completion of the installation.
In Puffer Mfg. Co. v. Kelly, 198 Ala. 131, 73 So. 403 (1916), the Court reversed the trial court's decision barring suit by a non-qualified foreign corporation which had sold and installed a soda fountain and appurtenances in Alabama. The Court wrote as follows:
198 Ala. at 133, 135-136, 73 So. at 404-405.
In York Mfg. Co. v. Colley, supra, the United States Supreme Court directly addressed the commerce-clause implications of interstate sale and installation contracts. In that case, the non-qualified foreign corporation contracted to sell an ice plant consisting of various items of machinery which were shipped to Texas, where they were assembled, installed, and tested under the supervision of an engineer employed by the seller. The installation of the ice plant took approximately three weeks, and the testing took an additional week. After a demonstration of its successful operation, it was accepted by the purchasers. The Court held that the installation and testing of the ice plant did not constitute local commerce and stated:
247 U.S. at 24-26, 38 S. Ct. at 431-432.
In the case of In re Delta Molded Products, Inc., 416 F. Supp. 938 (N.D.Ala.1976), affirmed, 571 F.2d 957 (5th Cir.1978), the district court, applying Alabama law, held that the non-qualified foreign corporation (IMPCO) was not barred from enforcing its contracts for the sale of complex machinery used in the plastics industry. The court, emphasizing the complex and sophisticated nature of the equipment and the expertise necessary in assembling the machinery, stated as follows:
In this case the agreement to perform the services by IMPCO was a prime inducement for the signing of the contract. This activity did not destroy the interstate character of the contract....
416 F. Supp. at 943-944.
Applying the law to the undisputed facts in this case, we hold that the combined local activities of Industrial Boiler in Alabama concerning the assembly and installation of the boiler did not constitute intrastate business, but were necessary and incidental to the interstate sale of the boiler itself. Industrial Boiler was able to provide assembly, installation, adjustment, start-up, and training in conjunction with the sale of the boiler and still remain the low bidder on the contract. Wallace, lacking the expertise required to assemble and install the boiler, contracted with Industrial Boiler for this service. Wallace and Hartford argue that the contract in question was for construction with the sale of the boiler incidental thereto. They erroneously rely upon a line of cases which stand for the proposition that activities inherently intrastate, such as construction, do not lose *1156 their essential nature because they form a part of an interstate commerce contract to which they have no necessary relation. That argument does not fit these facts. It is undisputed that Industrial Boiler did no work on the jobsite other than assemble and install the boiler. Furthermore, the contract was for the manufacture and sale of a complex piece of machinery, and the agreement to install it was not only a valuable trade inducement but a reasonable and appropriate incident of the sale itself. Therefore, Industrial Boiler is not barred from litigating its claims in the courts of this state, despite its failure to be qualified to do business here at the time of the transaction.
Accordingly, because Wallace and Hartford were not entitled to a judgment as a matter of law, summary judgment was properly denied.
The order appealed from is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, ALMON, EMBRY and ADAMS, JJ., concur.
FAULKNER and BEATTY, JJ., dissent.
BEATTY, Justice (dissenting):
The case authority on which the majority relies for the proposition that the assembly and installation of the boiler system at the University of Montevallo were incident and necessary to the interstate sales contract is distinguishable on some important bases.
The first case the majority discusses is Puffer Manufacturing Co. v. Kelly, 198 Ala. 131, 73 So. 403 (1916). While the Court in Puffer concluded that the assembly and installation of a soda fountain was incident to the sale, the Court added:
Furthermore, the fact that Industrial Boiler's contracts with local merchants were "reasonable and incidental" to the performance of its contract with Wallace does not make Industrial Boiler's installment contract with Wallace any less intrastate in character. In fact, based on the considerations outlined in Puffer, supra, set out above, the necessity for such local contracts, as well as the length of time the assembly and installation required, and the permanent nature of the boiler system further support the conclusion that the contract was intrastate in character.
The majority also relies on and quotes extensively from York Manufacturing Co. v. Colley, 247 U.S. 21, 38 S. Ct. 430, 62 L. Ed. 963 (1918). Given the common meaning of the terms "relevant" and "appropriate," I do not dispute that the contract for the assembly and installation of the boiler system was "relevant" and "appropriate" to its sale, especially in view of Industrial Boiler's low bid; however, being "relevant" and "appropriate" in an ordinary sense does not make the contract "necessary" and "incidental" to the sale, nor does it nullify the other considerations that point up the intrastate character of the contract and its performance. It seems to me that the following language taken from York Manufacturing Co., supra, which attaches a narrower definition of "relevant" *1157 and "appropriate" in the context of these cases, nevertheless indicates a recognition by that Court of the "necessity" that the manufacturer /seller perform the assembly and installation of the machinery and test its efficiency where the machinery is complex and assembly is required to be performed with the expertise it is assumed only the manufacturer/seller would have:
Thus, as I interpret this passage, it is the requirement that the contract for installation, etc., be necessary that makes it relevant and appropriate.
It is precisely this line of reasoning that was applied by the court in In re Delta Molded Products, Inc., 416 F. Supp. 938 (N.D. Ala.1976), affirmed, 571 F.2d 957 (5th Cir.1978), on which the majority relies. In Delta, the court emphasized the fact that, in that case, no one else in Alabama was available to assemble and install the machinery in question:
These factors are not present here, nor is there an allegation that only Industrial Boiler possessed the required "mechanical skill and precision" necessary to make the boiler system operative. In fact, the contrary is true. In its opinion, the majority points out that Industrial Boiler "has certain competitors capable of providing these services," but that "Industrial Boiler was awarded the contract with Wallace on the basis of its low bid." (Emphasis added.) This hardly meets the "necessity" test set forth in In re Delta Molded Products, supra, and implied by the Court in York Manufacturing Co., supra. Moreover, it appears that the assembly and installation work was a "separate distinct undertaking" *1158 by Industrial Boiler, and not "merely a part of the interstate agreement."
The majority gives no other reasons to substantiate its conclusion that Industrial Boiler's assembly and installation services were "necessary and incidental to the interstate sale of the boiler [system]." In fact, there being others available to perform these services, Industrial Boiler's activities were not necessary nor merely incidental. Since the facts of this case do not fit the exceptions carved out by those authorities upon which the majority relies, I would hold that Industrial Boiler's assembly and installation contract, and the performance of it, were intrastate in character. Accordingly, Industrial Boiler should have qualified to do business in Alabama in order to enforce its contracts in the courts of this state. For these reasons, Wallace and Hartford's motion for summary judgment was improperly denied.
FAULKNER, J., concurs. | March 22, 1985 |
5d4ab945-7e78-44be-97a5-1ab1951a7876 | Ex Parte Kennedy | 472 So. 2d 1106 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 1106 (1985)
Ex parte Victor KENNEDY.
(Re: Victor Kennedy v. State of Alabama).
83-664.
Supreme Court of Alabama.
March 22, 1985.
Rehearing Denied June 7, 1985.
*1108 Gould H. K. Blair, Birmingham, and William T. Denson, Goodwater, for petitioner.
Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
This is a capital murder case. The facts are fully and accurately reported in the opinion of the Court of Criminal Appeals, 472 So. 2d 1096; therefore, we briefly summarize the facts here only to the extent necessary to our holding.
On December 24, 1980, petitioner entered the home of eighty-six-year-old Mrs. Annie Laura Orr in Montevallo. Petitioner was accompanied by Darrell Grayson. (See Grayson v. State, [7 Div. 3, Jan. 31, 1984] (Ala.Crim.App.1984), affirmed, [MS. 83-756, Feb. 15, 1985] (Ala.1985).) One of the men was armed with a pistol. Inside Mrs. Orr's home the two men assaulted Mrs. Orr and placed a pillowcase over her head. They then wrapped her head with masking tape so that her head resembled that of a mummy. Mrs. Orr was repeatedly raped and terrorized with threats and gunfire. Finally, petitioner and Grayson left the house with two decks of playing cards, Mrs. Orr's wallet, and a small amount of money. Mrs. Orr slowly suffocated to death.
Petitioner was convicted of capital murder and sentenced to death. The Court of Criminal Appeals affirmed his conviction and overruled his application for rehearing. We granted certiorari as a matter of right pursuant to Rule 39(c), Ala. R.A.P. Petitioner presents seven issues for our review.
Relying on Bufford v. State, 382 So. 2d 1162 (Ala.Crim.App.1980), petitioner contends that during the sentencing phase, the judge's instructions to the jury regarding aggravating circumstances included an offense which constituted an element of the indictment and, as a result, he contends he was being punished twice for the same offense. We disagree.
As the Court of Criminal Appeals correctly held, Bufford was effectively overruled in Kyzer v. State, 399 So. 2d 330, 334-39 (Ala.1981), and Beck v. State, 396 So. 2d 645 (Ala.1980); Dobard v. State, 435 So. 2d 1338 (Ala.Crim.App.1982), affirmed, Ex parte Dobard, 435 So. 2d 1351 (Ala. 1983), cert. denied, ___ U.S. ___, 104 S. Ct. 745, 79 L. Ed. 2d 203 (1984).
Kennedy contends that the effect of Bufford cannot be overruled because the language of Code 1975, § 13A-5-31, mandates that a death sentence be imposed only if certain crimes are committed "with aggravation." The trial court found the following aggravating circumstances: (1) The capital felony was committed while the defendant was engaged in the commission of a rape, robbery, and burglary; and, (2) the capital felony was especially heinous, atrocious, and cruel, especially when compared to other capital felonies.
We have reviewed the findings made by the trial judge and hold that the evidence supports the judge's determination that two aggravating circumstances were present in this case.
Finally, Kennedy contends that even though Bufford has been overruled, the instant offense was committed before it was overruled; consequently he contends that if Bufford is not applied, the result is an ex post facto violation. Again, we find this argument to be without merit.
As the Court of Criminal Appeals indicated, the Bufford court's misinterpretation of Code 1975, § 13A-5-31, was corrected in Kyzer v. State, supra. It is a settled principle that the constitutional ban on ex post facto laws applies strictly to legislative acts and does not extend to changes in law effected by judicial decisions. This principle was expressly stated in the following Supreme Court cases: Marks v. United States, 430 U.S. 188, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977); Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 582, 59 L. Ed. 969 (1915); Ross v. Oregon, 227 U.S. 150, 33 S. Ct. 220, 57 L. Ed. 458 (1913); Calder v. Bull, 3 U.S. 386, 3 Dall 386, 1 *1109 L. Ed. 648 (1798). Specifically, it was declared in Frank v. Mangum, supra, that the constitutional prohibition against state enactment of ex post facto laws is, "as its terms indicate, directed against legislative action only, and does not reach erroneous or inconsistent decisions by the court." 237 U.S. at 344, 35 S. Ct. at 593. (Emphasis added.)
Petitioner next contends that the trial judge's instruction defining "aiding and abetting" violated the eighth and fourteenth amendments, which prohibit the imposition of the death penalty on one who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. He cites Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). We find that Enmund is not applicable to the case at hand.
Prior to instructing the jury regarding the meaning of "aiding and abetting," the trial judge familiarized the jury with the meaning of "intent to kill." He instructed the jury as follows:
It was after the judge had thoroughly instructed the jury on the need for finding that Kennedy intended to kill that the trial judge instructed the jury regarding the complicity statute and the definition of "aiding and abetting." The jury was instructed as follows:
The Court of Criminal Appeals, in addressing this issue, held:
We adopt the holding of the Court of Criminal Appeals as being the law of this case.
Petitioner's third contention is that the trial judge's instructions during the sentencing phase of the trial had the effect of misleading the jury into believing that voluntary intoxication was immaterial to the determination of his sentence. We disagree.
The specific instruction which Kennedy contends to be misleading is as follows:
Having carefully reviewed this charge in the context in which it was heard by the jury, we find no error. We agree with the Court of Criminal Appeals' finding that the above charge merely instructed the jury to apply the same rules and guidelines in ascertaining the factual truth from the evidence presented in the sentencing phase as they applied in the guilt phase. Furthermore, at the sentencing hearing, although the trial judge did not specifically instruct the jury on intoxication, he did instruct the jury that they could consider "a substantially lessened or substantially diminished capacity" as a mitigating factor.
Kennedy's fourth contention is that under Brady v. Maryland, 373 U.S. 83, 835 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), he was denied due process because the trial judge refused to grant his request for production of the written confessions of co-defendant Grayson.
To establish a Brady violation, Kennedy must demonstrate (1) that the prosecution suppressed evidence; (2) that that evidence was favorable to him or exculpatory; and (3) that the evidence was material. United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir.1983), citing Ogle v. Estelle, 641 F.2d 1122 (5th Cir.1981).
Here, as the Court of Criminal Appeals found, favorable or exculpatory evidence was not suppressed:
Grayson's statements were reviewed in camera by the trial court and were reviewed by the Court of Criminal Appeals. After carefully re-examining Grayson's statements we find that this evidence is not in any way favorable to Kennedy. Having found the evidence to be neither suppressed nor favorable to Kennedy, we find his contentions under Brady are without merit.
Kennedy's fifth contention is that the trial judge erroneously charged the jury that Kennedy could be convicted of capital murder on the basis of criminal negligence. After reviewing the charge in its entirety, we find no error in the trial court's jury instructions.
The trial court, in defining mental culpability, read Code 1975, § 13A-2-2, to the jury verbatim, thereby defining each mental state along the spectrum from "intentional" to "criminal negligence." Each definition was relevant to the various verdict options except "criminal negligence." The definition of "intentionally" was relevant to the court's instructions on the "intent to kill" element of the capital offense. The definition of "knowingly" was relevant to the court's instructions on first degree burglary and theft. The definition of "recklessly" was relevant to the court's instructions on the lesser included offense of manslaughter. While the charge on criminal negligence served no purpose except to provide a contrast to the other definitions, the court's inclusion of this definition in the jury charge is not reversible error because here the instructions as a whole present the case properly, in that the trial court repeatedly instructed the jury that it must find the killing to have been intentional in order to render a verdict of capital murder. This same result was reached in Harris v. State, 412 So. 2d 1278 (Ala.Crim.App.1982), where the court found as follows:
412 So. 2d at 1281. See Bighames v. State, 440 So. 2d 1231, 1234 (Ala.Crim.App.1983); Bragg v. State, 453 So. 2d 756, 759 (Ala. Crim.App.1984).
Furthermore, we note that at the time these instructions were given, Kennedy made no objection. While this failure to object does not preclude review in a capital case, it does weigh against any claim of prejudice. Bush v. State, 431 So. 2d 563, 565 (Ala.), cert. denied, ___ U.S. ___, 104 S. Ct. 200, 78 L. Ed. 2d 175 (1983); cf. Ex parte Harrell, 470 So. 2d 1309 (Ala.1985). As this Court pointed out in Harrell, the plain error doctrine is one which this *1112 Court may apply if we find substantial prejudice, even though no objection was made at trial.
Kennedy's sixth contention is that because of prejudicial pretrial publicity, the trial court's denial of his motion for change of venue constituted reversible error. This allegation is totally unsupported by the record and, therefore, we find, as did the Court of Criminal Appeals, no error.
In Ex parte Magwood, 426 So. 2d 929 (Ala.), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1355 (1983), this Court examined the standard of review utilized when reviewing a trial court's ruling on a motion for change of venue and the defendant's burden of proof to show he was actually prejudiced. This Court held as follows:
In Anderson v. State, 362 So. 2d 1296 (Ala.Crim.App.1978), the Court of Criminal Appeals held as follows:
"Recently the Supreme Court affirmed the principles expressed in Murphy.
362 So. 2d at 1298-99.
To establish prejudice, Kennedy introduced evidence of a telephone survey in which thirty out of one hundred people surveyed felt as though the two men arrested were probably guilty. In addition, Kennedy contends that there was a "strong probability of prejudice" because the crimes involved were rape, murder, and robbery of an elderly and prominent white woman by a black man on Christmas Eve in the "small-town atmosphere" of Shelby County. As the Court of Criminal Appeals found, no newspaper articles or other examples of media coverage were introduced into evidence. Thus, this was not a case in which the "trial atmosphere was utterly corrupted by press coverage." In addition, the telephone survey was conducted in Shelby County, which has a population of approximately 66,000 residents. Because only 100 people were questioned, this is not sufficient to demonstrate extensive knowledge in the community and is not sufficient to warrant a finding that the trial was constitutionally unfair. Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977). Finally, here as in Dobbert, the defendant pointed "to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected." Dobbert, supra, at 303, 97 S. Ct. at 2303.
Finally, Kennedy contends that the admission into evidence of the transcript of his tape-recorded statement, without production of the tape itself, erroneously violated the best evidence rule. We disagree.
Here, as the Court of Criminal Appeals indicated, the officer who listened to the confession at the time of the recording testified that the transcript accurately reflected the conversation. Hawkins v. State, 443 So. 2d 1312 (Ala.Crim.App.1983); Beech v. State, 439 So. 2d 1331 (Ala.Crim. App.1983). We find that the Court of Criminal Appeals carefully examined and reviewed this issue and we find no error in its application of the law to the facts at hand.
In accordance with Beck v. State, 396 So. 2d 645 (Ala.1980), and Code 1975, § 13A-5-53, we find no error in the Court of Criminal Appeals' affirmance of the imposition of the death penalty in this case. Pursuant to Beck, we find that Kennedy did violate Code 1975, § 13A-5-31(a)(4), which is a capital offense; similar crimes are being punished capitally throughout the state, Lindsey v. State, 456 So. 2d 383 (Ala.Crim.App.1983), 456 So. 2d 393 (Ala. 1984); Clisby v. State, 456 So. 2d 86 (Ala. Crim.App.1982), affirmed in part and remanded in part, 456 So. 2d 95 (Ala.1983).
Having carefully reviewed all issues raised and having independently examined the record for error, we hold that the judgment of the lower court is due to be, and it is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
MADDOX, Justice.
Petitioner, on his application for rehearing, raises some claims that were not *1114 raised in his initial petition. Because this is a capital case, we will address each of these claims of prejudicial error.
First, petitioner argues that the jury should have been charged on burglary in the second and third degrees and on criminally negligent homicide. He claims that failure to instruct the jury on these lesser included offenses violates the principle of law set out in Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). We disagree. As stated in Spaziano v. Florida, 468 U.S. ___, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984), "nothing in Beck requires that the jury determine the guilt or innocence of lesser included offenses for which the defendant could not be convicted and adjudicated guilty."
The elements of burglary in the first degree are:
The elements of burglary in the second degree are:
Burglary in the third degree is described as follows:
A defendant is not entitled to charges on lesser included offenses where the only reasonable conclusion from the testimony is that he is guilty of the crime charged or no crime at all. Williams v. State, 377 So. 2d 634 (Ala.Cr.App. 1979), cert. denied, 377 So. 2d 639 (Ala.1979).
The indictment in this case charged, as follows:
The indictment was returned in January 1981, prior to the effective date of Act No. 81-178, Acts 1981 (§§ 13A-5-39 through 13A-5-59).
The only reasonable conclusion from the testimony in this case was that the defendant broke or entered, in the nighttime, an inhabited dwelling house, with intent to commit a felony, to wit: robbery; therefore, because the evidence supported a conviction of no offense of burglary less than first degree burglary, the trial court did not err in failing to charge the jury on the lesser degrees of burglary.
Here, the indictment charged the defendant with an intentional killing during a nighttime burglary, and there was no rational basis in the evidence for convicting the defendant of any degree of burglary less than first degree.[1]
Petitioner also argues, for the first time, that the state failed to tender a copy of one of the three statements he gave to police. At trial, petitioner's counsel stated for the record that the state failed to furnish him with a copy of petitioner's first statement, and that he was unaware that this statement existed until after the trial had already commenced. Petitioner's counsel claims that he made statements in his opening statement which were inconsistent with information contained in the first statement given and, thus, that Kennedy was severely prejudiced.
We have carefully reviewed the trial transcript regarding this issue, and we find that there is direct testimony that defendant's counsel was furnished with all statements made by Kennedy. The record reflects, therefore, that petitioner's counsel was given copies of all statements or was aware of all information contained in the statements. As this Court stated on original deliverance: "To establish a Brady violation, Kennedy must demonstrate (1) that the prosecution suppressed evidence; (2) that that evidence was favorable to him or exculpatory; and (3) that the evidence was material."
Based on the sworn testimony in the record, we find no Brady violation here.
Finally, petitioner contends that this Court applied in his case rules of decision different from the rules applied in other cases, with a view toward upholding the death sentence imposed. In particular, appellant argues as follows:
The portion of the original opinion he claims is erroneous reads as follows:
He contends that this statement of the law is a violation of his right to equal protection and due process.
On original deliverance we followed fundamental rules regarding appellate review of jury instructions, and we have not applied any rule of law to petitioner which we have not applied in other appeals.
In addition, Kennedy reargues all claims raised in his petition for certiorari which we addressed on original deliverance. We have reviewed the original opinion in light of Kennedy's argument on rehearing, and we are of the opinion that the application is due to be overruled.
OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.
All the Justices concur.
[1] While not applicable here, it is noted that Code 1975, § 13A-5-41, now provides as follows:
"Subject to the provisions of section 13A-1-9(b), the jury may find a defendant indicted for a crime defined in section 13A-5-40(a) not guilty of the capital offense but guilty of a lesser included offense. Lesser included offenses shall be defined as provided in section 13A-1-9(a), and when there is a rational basis for such a verdict, include but are not limited to, murder as defined in section 13A-6-2(a), and the accompanying other felony, if any, in the provision of section 13A-5-40(a) upon which the indictment is based. (Acts 1981, No. 81-178, § 3.)" | March 22, 1985 |
290371a9-188c-4dd7-9630-3d9970c5ab8e | Ex Parte State | 495 So. 2d 705 | N/A | Alabama | Alabama Supreme Court | 495 So. 2d 705 (1985)
Ex parte State of Alabama.
(Re: Elton COBB v. STATE).
84-330.
Supreme Court of Alabama.
March 22, 1985.
Charles A. Graddick, Atty. Gen., and Alice Ann Boswell, Asst. Atty. Gen., for petitioner.
V. Lee Pelfrey, Troy, for respondent.
SHORES, Justice.
We should not be understood as approving the following statement of the Court of Criminal Appeals, 495 So.2d 701:
The expression "all reasonable doubt" has been rejected in favor of the conventional "a reasonable doubt," as the proper standard to be applied. Chavers v. State, 361 So. 2d 1106 (Ala.1978); Craft v. State, 402 So. 2d 1078 (Ala.Crim.App.1981). However, the Court of Criminal Appeals' misstatement of the law in this respect in no way affects the decision reached in the case. Therefore, the writ is denied.
WRIT DENIED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | March 22, 1985 |
8744b87a-08dd-4851-a7ec-0d4301683aa8 | Coghlan v. FIRST ALA. BANK OF BALDWIN COUNTY | 470 So. 2d 1119 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1119 (1985)
Charles C. COGHLAN, Jr., et al.
v.
FIRST ALABAMA BANK OF BALDWIN COUNTY, N.A.
83-57.
Supreme Court of Alabama.
March 15, 1985.
Rehearing Denied May 10, 1985.
*1120 James R. Owen, Bay Minette, and Lee L. Hale, Mobile, for appellants.
J. Connor Owens, Jr. of Owens & Simpson, Bay Minette, for appellee.
EMBRY, Justice.
Charles and Elaine Coghlan appeal from a decree entered in behalf of the First Alabama Bank of Baldwin County in its declaratory judgment action. After an ore tenus trial, the court declared Elaine Coghlan trustee, for satisfaction of the indebtedness of Charles Coghlan, Jr., and to the benefit of the First Alabama Bank of Baldwin County, of a one-half undivided interest in certain properties previously held by Elaine Coghlan in fee simple. We affirm.
First Alabama Bank initiated this action in order to enforce an unpaid judgment previously entered against Charles Coghlan, Jr., for the amount of $69,641.80. The bank alleged that through the agency of a judicial proceeding, Mr. Coghlan had conveyed his interest in certain real properties to his wife, without consideration, with the intention to defraud, hinder or delay First Alabama Bank in its attempt to recover all or part of its judgment. As relief, the bank sought a declaration that Mrs. Coghlan held the properties as trustee for the satisfaction of Mr. Coghlan's indebtedness.
The Coghlans argued at trial that the conveyances made to Mrs. Coghlan occurred before Mr. Coghlan ever entered into indebtedness with First Alabama Bank and therefore, absent a showing of a specific intent to defraud future creditors, the conveyances to Mrs. Coghlan are valid.
The trial court found that on two occasions, Mr. Coghlan had transferred certain properties to Mrs. Coghlan and that the conveyances were voluntary and without consideration. The trial court further found that the conveyances were made with the specific intent to defraud, hinder, or delay First Alabama Bank in its attempt *1121 to recover all or part of its judgment. Accordingly, the trial court granted the relief sought by First Alabama Bank.
The Coghlans filed a motion for a new trial, which was denied by operation of law on 21 June 1983. See ARCP 59.1. From that order, the Coghlans appeal.
The Coghlans argue on appeal that First Alabama Bank failed to meet its burden of proving that Mr. Coghlan formed a specific intent to defraud existing and future creditors when he conveyed the properties in question to his wife. We do not agree, and we hold that sufficient evidence was presented upon which the trial court could conclude as it did in this case.
The record in this cause reveals the following: On 11 June 1980, a judgment in favor of First Alabama Bank of Baldwin County and against Charles Coghlan for the amount of $69,641.80 was recorded in the Probate Court of Baldwin County, Alabama. The indebtedness upon which the judgment was based was dated 26 June 1978.
Elaine Coghlan testified that in 1974, her husband's uncle, Origen Coghlan, had promised that if she would move from Camden to his residence in Tensaw, Alabama, and care for him, he would deed her his interest in the Tensaw property. On 15 April 1977, Origen Coghlan executed a deed to Charles and Elaine Coghlan which purportedly conveyed an undivided interest in the Tensaw property. On cross-examination, Mrs. Coghlan admitted that in an earlier deposition she had testified that the conveyance was not for services rendered, but rather, was merely a gift.
On 4 May 1977, Charles Coghlan conveyed his one-half undivided interest in the property to his wife Elaine. This was a voluntary conveyance and without consideration. Mrs. Coghlan testified that she agreed to sell her home in Camden, Alabama, if her husband would convey his interest in the Tensaw property to her. However, her husband never received any proceeds from the sale of the Camden property. In fact, the entire proceeds were deposited in the account of Elaine G. Coghlan.
During the course of the proceedings, the trial judge made the following inquiry:
Subsequent to the 1977 conveyance of the Tensaw property from Origen Coghlan to Charles Coghlan, Jr., and Elaine Coghlan, Charles Coghlan, Sr., individually and as administrator of the estate of Malachi Coghlan, filed suit to set aside certain conveyances from the late Malachi Coghlan to Origen Coghlan. Among these disputed conveyances was the transfer of a one-half undivided interest in the Tensaw residence, the property in question in this suit. Consequently, a judgment was entered on 30 October 1978, divesting Elaine Coghlan and Charles Coghlan, Jr., of a one-half undivided interest in that property.
Thereafter, Charles Coghlan, Sr., filed suit for partition and division or sale of the subject property. Charles and Elaine Coghlan answered the suit by alleging that they had both made valuable improvements to the property.
As a result of this litigation, on 29 February 1980, a consent decree was entered by the Baldwin County Circuit Court ordering that the subject property be sold at a private *1122 sale to Charles Coghlan, Jr., and Elaine Coghlan for $135,000.
The final decree was entered on 20 November 1980. After the decree dated 29 February 1980, but prior to the final decree, First Alabama Bank recorded its judgment against Charles M. Coghlan, Jr., in the sum of $69,641.80. The final decree, entered 20 November 1980, directs Elaine G. Coghlan to pay into court the sum of $15,940, which was to be applied to the purchase price of the subject property. The decree also directs the executrix of the Coghlan Estate to pay money from the judgment rendered on 29 February 1980 to Elaine G. Coghlan with no mention of Charles G. Coghlan, Jr. The decree further directed that the register execute a deed to the subject property to Elaine G. Coghlan, again with no mention of Charles M. Coghlan, Jr. On 5 January 1981, that was done.
Finally, evidence presented at trial showed that although Mr. Coghlan conveyed his interest in the Tensaw property to his wife, he continued to live on the property and continued to make valuable permanent improvements on the property. Furthermore, since the year 1975, Mr. Coghlan's receipts from his logging operations had steadily declined to such an extent that in 1977, he filed no income tax return.
The presence or absence of actual fraud is a question for the trier of fact. Because fraud is a factual question, and because the trial court tried this case ore tenus, this court will indulge all favorable presumptions to uphold that court's decision. Roberts v. Peoples Bank and Trust Company of Sylacauga, 410 So. 2d 393, 395 (Ala.1982). Absent plain error or manifest injustice, the trial court's findings of fact will not be disturbed on appeal. After a careful scrutiny of the entire record, we conclude there is adequate evidence to sustain the findings of the trial court. Accordingly, the judgment is due to be, and is hereby, affirmed.
AFFIRMED.
MADDOX, FAULKNER, JONES, BEATTY and ADAMS, JJ., concur.
TORBERT, C.J., and SHORES, J., dissent.
ALMON, J., not sitting.
TORBERT, Chief Justice (dissenting).
I respectfully dissent.
I recognize that it is the policy of this Court to presume correct the findings of a trial court based upon competent evidence, when that evidence is presented ore tenus; however, the presumption of correctness is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment. Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala.1981). When the proof at trial fails to support the material allegations on which a suit is based, the judgment rendered cannot be upheld on appeal. First Alabama Bank of Montgomery v. Coker, 408 So. 2d 510 (Ala.1982). After a careful review of the record in this case, I cannot agree that the evidence presented was sufficient as a matter of law to sustain the trial court's finding that the May 1977 conveyance of an undivided one-half interest in property by Charles Coghlan to Elaine Coghlan "was for the purpose of defrauding present or subsequent creditors."
The pertinent facts in this case are here set out chronologically:
1. April 15, 1977. Charles's uncle, Origen Coghlan, conveyed certain properties to Charles and Elaine as tenants in common.
2. May 4, 1977. Charles conveyed his undivided one-half interest in the aforementioned property to Elaine; thus, Elaine held the property in fee simple.
3. May 13, 1977. Elaine recorded the deed from Charles.
4. January 13 and 26, 1978. Charles obtained loans from First Alabama Bank of Baldwin County (First Alabama).
5. June 26, 1978. The two January 1978 loans were consolidated into one note.
*1123 6. June 9, 1980. First Alabama took a judgment against Charles based on the June 26, 1978, indebtedness.
Inasmuch as it is undisputed that the conveyance from Charles to Elaine occurred prior to Charles's obtaining the loans from First Alabama, the only issue this Court must address is whether there was presented evidence that Charles intended to defraud future or subsequent creditors, namely, First Alabama, when he conveyed his undivided one-half interest to Elaine.
The right of subsequent creditors to avoid a conveyance as fraudulent depends upon the existence of actual fraud at the time of the execution of the conveyance, and the burden of proving such fraud rests with the subsequent creditor. Fraud must be proved and will not be presumed, where facts and circumstances are consistent with honest intentions. Muscogee Construction Co. v. Peoples Bank & Trust Co., 286 Ala. 258, 238 So. 2d 883 (1970); W.T. Rawleigh Co. v. Barnette, 253 Ala. 433, 44 So. 2d 585 (1950).
In its attempt to show evidence tending to prove actual fraud, First Alabama contends that the May 1977 conveyance was voluntary and without consideration, and that, following the conveyance, Charles retained a beneficial interest in the property. First Alabama also contends that at the time of the conveyance Charles had no income, was sick, and was working for his wife.
I agree with that part of the majority opinion holding that the May 1977 conveyance was a voluntary conveyance without consideration; nevertheless, the fact that the conveyance was voluntary does not support the trial court's determination that the conveyance was fraudulent. This Court in Allen v. Overton, 208 Ala. 504, 94 So. 477 (1922), had occasion to consider the effect of a voluntary conveyance on the rights of future or subsequent creditors. Allen held:
208 Ala. at 506, 94 So. at 480 (emphasis added).
First Alabama also contends that Charles reserved a beneficial interest in the subject property in that he continued to reside on the property after the conveyance to Elaine. First Alabama is correct in its assertion that the reservation of a beneficial interest may be considered as evidence of fraud, L. W. & P. Armstrong v. Miller, 238 Ala. 17, 189 So. 74 (1939); however, I find no merit in the argument that merely because Charles continued to reside with his wife, First Alabama has somehow met its burden of proof. First Alabama does not contend that after the conveyance Charles represented to others that he owned the property, that he received rents from the property, or that he paid taxes on *1124 the property, all of which would indicate the reservation of a beneficial interest. Justice McClellan in Mathews v. J.F. Carroll Merc. Co., 195 Ala. 501, 505, 70 So. 143, 145 (1915), a case involving a conveyance from a debtor husband to his wife, noted that the "fact that there was no apparent change of possession of the residence property, which was occupied by the husband and the wife, after the voluntary conveyance was made, could not alone suffice to characterize the transaction as the product of bad motives."
Likewise, I find no merit in First Alabama's argument that actual fraud could be inferred from the facts that Charles was sick, worked for his wife, and failed to file an income tax return for 1977. I would add, however, as evidence that the conveyance was consistent with honest intention, that Charles conveyed his interest a full eight months prior to obtaining the loans from First Alabama and that when Charles received the loans he was debt free. Moreover, Charles never represented to First Alabama that he had an interest in the property, and First Alabama took a financial statement from Charles prior to approving the loans.
As further evidence of actual fraud, First Alabama relies on a series of judicial proceedings which occurred subsequent to the May 1977 conveyance. The heirs of Malachi Coghlan filed suit to set aside certain conveyances from Malachi to Origen. The disputed conveyances involved, in part, a portion of that property which Origen conveyed to Charles and Elaine as tenants in common. As a result of the suit filed by the heirs of Malachi, Charles and Elaine were divested of a one-half interest in that property which Origen had conveyed to them.
Malachi's heirs then filed a suit for partition and division and sale of the subject property. This suit resulted in the entry of a consent decree by the Baldwin County Circuit Court ordering that the property that had been conveyed by Origen to Charles and Elaine and then divested after the suit filed by the heirs of Malachi, be sold at a private sale to Charles and Elaine. The consent decree was entered February 29, 1980. On November 29, 1980, the circuit court entered its final decree; however, the final decree ordered the register of the circuit court to execute a deed to Elaine. No mention was made of Charles. Between the time of the decree with the order to sell the property to Charles and Elaine and the final decree with the order to execute a deed to Elaine, First Alabama obtained its judgment against Charles. First Alabama contends in its brief that the change that occurred was "dictated" by the judgment obtained against Charles.
Two inferences can be drawn from the change. First, it can be inferred that the Baldwin County Circuit Court made a mistake when it ordered the sale to Charles and Elaine and that the court corrected its mistake in the final decree. It is possible that the court, when it entered the order of sale, inadvertently failed to consider the conveyance of May 1977 in which Charles conveyed all his interest in the subject property to Elaine. The second inference is that the Baldwin County Circuit Court participated in a fraud against First Alabama. On the basis of the evidence presented, I am not prepared to indulge in the inference that the circuit court participated in a fraud.
In summary, there is simply no evidence of actual fraud in connection with the May 4, 1977, conveyance from Charles to Elaine; therefore, the judgment of the trial court should be reversed.
SHORES, J., concurs. | March 15, 1985 |
e40b4776-1e0a-44b0-99f0-902e2c1fe9f8 | Bruck v. Jim Walter Corp. | 470 So. 2d 1141 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1141 (1985)
Robert BRUCK, as Administrator of the Estate of Joachim Bruck, Jr.
v.
JIM WALTER CORPORATION, et al.
83-484.
Supreme Court of Alabama.
March 22, 1985.
Rehearing Denied May 10, 1985.
*1142 Alex W. Newton and John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
James L. Clark and Johnnie F. Vann of Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.
TORBERT, Chief Justice.
This is an appeal from a judgment entered on a jury verdict in favor of the defendants in a wrongful death action which arose out of a collision between a car and a tractor-trailer truck.
The issues raised on appeal do not require detailed knowledge of the facts of the accident for resolution. It is sufficient to know that Joachim Bruck, Jr., died from injuries sustained in a collision between a car in which he was riding as a passenger and a truck driven by Steven Reynolds. At the time of the accident, Reynolds was employed by TLI, Inc., which was hauling for Jim Walter Transportation, an operating division of Celotex Corporation. Celotex Corporation is owned by Jim Walter Corporation.
The plaintiff, Robert Bruck, as administrator of the decedent's estate, filed a wrongful death action against Reynolds, Celotex, Jim Walter Transportation, and Jim Walter Corporation. The complaint contained one count which alleged negligent or wanton operation of the truck. Subsequently, the plaintiff amended his complaint to add a second count of negligent or wanton entrustment of the truck, by the corporate defendants, to the defendant driver Reynolds. The amended complaint also added Reynolds's employer, TLI, Inc., as a party defendant. All the defendants filed an answer denying liability.
The first day of trial, the defendants filed a motion in limine requesting the trial court to enter an order prohibiting the introduction of testimony, documents, or other evidence relating to Reynolds's driving record. The motion specifically included the following charges: four speeding violations, driving an overweight truck, and running a red light. All of the alleged offenses occurred within the four-year period immediately preceding the fatal accident.
During arguments on the motion, it was admitted that Reynolds was acting as an agent for the corporate defendants at the time of the accident. It was also admitted that Reynold's driving record, as set forth in the motion, was correct. The trial court granted the motion.
Following the close of the plaintiff's testimony, the defendants moved for a directed verdict. The trial court overruled it as to the negligent or wanton operation count, but granted it as to the negligent or wanton entrustment count. The jury returned a verdict in favor of the defendants, and judgment was entered accordingly. The plaintiff's motion for new trial was denied.
On appeal, the plaintiff contends the trial court erred to reversal by granting the motion in limine, thereby precluding him from introducing evidence necessary to prove the count of negligent or wanton entrustment. The defendants argue that admission of the agency relationship with Reynolds made proof of Reynolds's driving record immaterial, and thus, that it was properly excluded as irrelevant and prejudicial. The defendants also argue that if the granting of the motion in limine was error it was merely harmless error because 1) liability based on negligent entrustment *1143 is dependent upon there being an injury proximately resulting from the incompetence of the entrustee and 2) the jury verdict in favor of all defendants on the negligent or wanton operation count precluded any finding that Reynolds's alleged incompetence proximately caused injury to the decedent.
Liability for negligent entrustment has been recognized in this state since Parker v. Wilson, 179 Ala. 361, 60 So. 150 (1912), wherein this court stated, "No doubt liability will arise where the owner intrusts a machine of such dangerous potentialities to the hands of an inexperienced or incompetent person...." 179 Ala. at 370-71, 60 So. at 153. It is now established that one who entrusts a motor vehicle to an incompetent driver who is likely to cause injury to others through its use by reason of his incompetence may be liable for any damages proximately resulting therefrom. Keller v. Kiedinger, 389 So. 2d 129 (Ala. 1980); see, Comment, Negligent Entrustment in Alabama, 23 Ala.L.Rev. 733 (1971).
The liability which attaches to the entrustor for injuries proximately caused by the incompetence of the driver to whom a motor vehicle has been entrusted does not arise out of the relationship of the parties but rather is an independent tort resting upon the negligence of the entrustor in entrusting the vehicle to an incompetent driver. 7A Am.Jur.2d Automobiles and Highway Traffic § 643 (1980). As Justice Somerville said in Rush v. McDonnell, 214 Ala. 47, 50, 106 So. 175 (1925):
214 Ala. at 51-52, 106 So. at 178.
The plaintiff presented this action in the form a valid, well-pleaded complaint consisting of two separate and distinct counts. Count one alleged negligent or wanton operation of the truck and count two alleged negligent or wanton entrustment. Rule 8(e), Alabama Rules of Civil Procedure, provides in part:
(Emphasis added.) Rule 8 is identical in relevant aspects to the corresponding Federal Rule of Civil Procedure. In Breeding v. Massey, 378 F.2d 171 (8th Cir.1967), the Court of Appeals specifically addressed the issue of a complaint asserting claims of negligent entrustment and respondeat superior. The appellant argued that the claims were alternative theories of liability and that recovery for negligent entrustment could only be made when respondeat superior liability did not exist. The court held:
378 F.2d at 177-78.
The holding in Breeding regarding a plaintiff's right to proceed on separate claims is consistent with recent Alabama decisions. United States Fidelity & Guaranty Company v. Warwick Development Company, 446 So. 2d 1021 (Ala.1984); National Security Fire & Casualty Company v. Vintson, 414 So. 2d 49 (Ala.1982).
The plaintiff, in order to prove his claim for negligent or wanton entrustment, had to show, as one of the elements of his claim, that the defendants either knew or should have known that Reynolds was incompetent to drive. Consequently, evidence of Reynold's driving record was highly relevant. Obviously, we recognize, as do the defendants, that such evidence carries with it the potential for prejudice. The jury might infer, because Reynolds had been charged with negligent conduct in the past, that he was negligent at the time of the accident. This would be in contravention of the general rule that evidence of similar prior acts of negligence is inadmissible on the issue of negligence at the time of the injury complained of in an action. 29 Am.Jur.2d Evidence § 315 (1967). Therefore, one of the questions we must address is whether the resulting inconsistency can be resolved. We think it can.
The admissibility of a driving record was discussed in Thompson v. Havard, 285 Ala. 718, 235 So. 2d 853 (1970). Thompson involved an action for negligent entrustment in which the defendant was alleged to have entrusted her car to her son, knowing at the time that he was a dangerous and incompetent driver. To prove the son's incompetence, the plaintiff, over the defendant's objection, introduced a certified document from the Alabama Department of Public Safety containing the driving record of the son. The certified document revealed that the son had committed eleven moving violations within approximately three years of the accident. The Court stated:
285 Ala. at 723, 235 So. 2d at 858. Clearly the Court was aware that evidence of the son's driving record might be used to infer negligence on his part at the time of the accident; nevertheless, the Court determined that such evidence could properly go to the jury.
In Lockett v. Bi-State Transit Authority, 94 Ill. 2d 66, 67 Ill.Dec. 830, 445 N.E.2d 310 (1983), the Illinois Supreme Court held that a trial court's order prohibiting admission of a defendant's driving record was impermissible. As in the case at bar, Lockett involved an action for wrongful death. There, the decedent was killed when hit by a bus owned by the Bi-State Transit Authority. The plaintiff, as administrator of the decedent's estate, filed a complaint against the Transit Authority and the bus driver. The complaint contained counts of negligent misconduct, willful and wanton misconduct, negligent entrustment, and willful and wanton entrustment. Before trial the court granted the defendant's motion in limine barring evidence concerning the bus driver's record prior to the accident. The jury returned a verdict in favor of the plaintiff; however, the Illinois Appellate Court reversed on the grounds that a question posed by plaintiff's counsel during *1145 trial violated the in limine order. The Illinois Supreme Court reversed the Appellate Court decision and held that proof of the bus driver's driving record was "highly relevant, if not essential, to the plaintiff's case, and to preclude its use was, in practical effect, to abolish plaintiff's cause of action for willful and wanton misconduct... labeled as entrustment." 94 Ill. 2d at 74, 67 Ill.Dec. 834, 445 N.E.2d at 314. Furthermore, the court held that the necessity of proof of the Transit Authority's misconduct, in allowing the bus driver to operate one of its vehicles, was not eliminated merely by the acknowledgement of an agency relationship. Id.
The court in Lockett was keenly aware that evidence of the driving record might prejudice the jury against the defendant; nevertheless, the court felt that such evidence was so highly relevant that its complete exclusion would be impermissible. 94 Ill. 2d at 74, 67 Ill.Dec. 834, 445 N.E.2d at 314. The court did suggest, however, that the defendant might have been entitled to an instruction cautioning the jury that proof of the driving record should not be considered in determining the nature of the driver's conduct on the occasion of the accident. Id. We would add that such a clarifying instruction by the bench would not be inconsistent with trial practice in this state. C. Gamble, McElroy's Alabama Evidence § 12.01 (3d ed. 1977).
The Georgia Court of Appeals has also considered the admissibility of a prior driving record in an action alleging theories of respondeat superior and negligent entrustment wherein agency was admitted. In Chupp v. Henderson, 134 Ga.App. 808, 216 S.E.2d 366 (1975), it was held that evidence of a driving record would be prejudicial and irrelevant in the resolution of issues presented on a claim based on respondeat superior, but that such evidence was not only relevant but essential to the viability of a claim of negligent entrustment. However, the court did require separate trials of the issues in order to prevent the possibility that evidence of the driving record would prejudice the jury on the issue of the driver's conduct at the time of the accident.
Under our rules of civil procedure, the trial court may also order separate trials. Rule 42(b), A.R.Civ.P., provides that the court, "in furtherance of convenience or to avoid prejudice ... may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues...." Generally, trial judges are possessed of broad discretion to order the separate trial of various issues in the interest of convenience and to avoid prejudice. Robinson v. Computer Servicenters, Inc., 360 So. 2d 299 (Ala.1978); Chiriaco v. Jacks, 421 So. 2d 1272 (Ala.Civ. App.1982).
On the basis of the foregoing analysis, we are led to the conclusion that the trial court erred in granting the defendant's motion in limine. Evidence of Reynolds's driving record was highly relevant, if not essential, to the plaintiff's ability to show knowledge on the part of the corporate defendants of Reynolds's alleged incompetence. Moreover, the trial court had available, aside from the motion in limine, adequate safeguards to protect against the possible prejudicial effect of such evidence. The practical effect of the in limine order was to abolish the plaintiff's cause of action for negligent or wanton entrustment. Nevertheless, because of the defendant's second argument, we do not reverse.
The defendants also argue that even if the exclusion of the driving record was error, as we have found it to be, it was merely harmless error and the judgment of the trial court should be affirmed. The defendants argue that because the jury returned a verdict in favor of all defendants, including Reynolds, on the negligent or wanton operation count, Reynolds's conduct could not have been the proximate cause of the decedent's injuries, and any claim for negligent or wanton entrustment could not be sustained. We agree.
The rule has been established that an entrustor is not liable for injury resulting from negligent entrustment of a vehicle to an incompetent driver unless the injury is *1146 proximately caused by his legal culpability. As this Court stated in Rush v. McDonnell, 214 Ala. 47, 52, 106 So. 175, 178 (1925):
Except in those rare instances where the entrustee's incompetence results from non-culpable inability to function as a driver (as in the case of a minor under the age of legal accountability or a mental incompetent), "liability of the entrustor must rest upon a consideration of the [legally culpable] conduct of the [entrustee] to establish the necessary element of incompetence as a proximate cause of injury." Bonds v. Busler, 449 So. 2d 244, 245 (Ala.Civ.App.1984).
The record in this case reveals nothing that would indicate that the entrustee, Reynolds, a mentally competent adult, falls within the exception. Furthermore, as previously indicated, the jury returned a verdict in favor of all the defendants, including Reynolds, on the negligent or wanton operation count. When the foregoing principles are applied to the jury's verdict, it is clear that Reynolds was found free of any culpable conduct resulting in injury to the decedent; such a finding would prevent a finding of liability of the entrustors, the corporate defendants, on a theory of negligent entrustment. Bonds v. Busler, supra. Because of the jury's finding, implicit in its verdict of a lack of culpable conduct on the part of Reynolds, the error committed by the trial court in granting the motion in limine was rendered harmless. Consequently, the judgment of the trial court is hereby affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.
FAULKNER, JONES and ADAMS, JJ., dissent.
JONES, Justice (dissenting).
I respectfully dissent as to the application of the "harmless error" rule. If the result of this decision, dictated by application of the "harmless error" rule, is measured by pure logic, it is correct; but, when the result is tested by the requisite degree of fundamental fairness, it is not correct. To be sure, its logic is simple and absolute. The premises: 1) The entrustee's culpable conduct must proximately cause the injury in order to fix liability for negligent entrustment; and 2) the jury found no liability on behalf of the entrustee. The conclusion: Therefore, the error in excluding material evidence against the entrustors is harmless.
Now, let us apply the fundamental fairness test: The case went to trial against all named Defendants, including the driver and the allegedly negligent entrustors. Admittedly, the trial judge could have required separate trials to avoid potential prejudice to the driver, or he could have given limited jury instructions upon admitting the proffered evidence; but he did neither. The Plaintiff's proffered evidence of negligent entrustment against the entrustors was erroneously excluded. Unquestionably, this error, precluding lawful evidence, injected the element of basic unfairness into the entire trial as against the entrustors.
Once the Plaintiff was put to trial against all Defendants, he was entitled to a fair trial; he, in fact, received an unfair trial. Query: Does the jury's verdict (coming as it did at the conclusion of an unfair trial) restore fairness simply because, by hindsighting the jury's finding of no liability on the part of the driver, one can conclude that the entrustors cannot be liable? Maybe it was just such an anomaly that caused Justice Holmes to comment in one of his treatises: "The life of the law has not been logic: it has been experience." O.W., Jr., Holmes, The Common Law, p. 1 (1881)
The application of abstract logic may produce "harmless error"; but the application *1147 of a sense of basic fairness, in my opinion, mandates that the only way to get this case back on track and afford all the parties a fair trial is to reverse the judgment and remand the cause for a new trial as to each of the Defendants. For a case substituting fundamental fairness for pure logic, see Price v. Southern Railway Co., 470 So. 2d 1125 (Ala.1985), holding that the application of the amendment rule (A.R.Civ.P. 15), under the circumstances, would be unjust. | March 22, 1985 |
d207aeb2-c252-4eeb-99c7-f524a16f592f | Price v. Southern Ry. Co. | 470 So. 2d 1125 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1125 (1985)
Donna PRICE, As Administratrix of the Estate of Lonnie Price; Donna Price, as Mother of Annastocia Price
v.
SOUTHERN RAILWAY COMPANY, a Corporation.
83-468.
Supreme Court of Alabama.
March 22, 1985.
Rehearing Denied May 10, 1985.
*1126 Robert Wyeth Lee, Jr. of Wininger & Lee, Birmingham, for appellant.
Crawford S. McGivaren, Jr. and Larry B. Childs of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.
Grover S. McLeod, Birmingham, for amicus curiae in support of Donna Price, appellant.
PER CURIAM.
This Court's opinion of September 7, 1984, is hereby withdrawn, and the following opinion is substituted therefor.
This is an appeal by the plaintiff, Donna Price, from a summary judgment entered in favor of the defendant, Southern Railway Company. We reverse and remand.
On September 15, 1981, a gasoline tanker truck collided with a Southern Railway Company (Southern) train at a railroad crossing in Huntsville, Alabama. Lonnie Price and his daughter, Annastocia, were waiting in their car at that crossing when the collision occurred. Lonnie Price was severely injured, and his daughter was killed by the explosion and fire resulting from the collision. Lonnie Price and his wife, Donna Price, filed suit on September 24, 1981 (first action) to recover damages for his personal injuries and her loss of consortium, naming Southern, among others, as defendant. The following day, September 25, 1981, Lonnie Price died from his injuries.
On November 3, 1981, Donna Price amended the complaint filed in the first action, substituting herself as "Administratrix of the Estate of Lonnie Price deceased," for "Lonnie Price" as co-plaintiff. She also added, in substance, a count for the wrongful death of Lonnie Price. Another amendment was filed on September 10, 1982. This amendment named additional defendants, realleged the previous eight counts, and added specific counts (nine through eighteen) of negligence, wantonness, and breach of warranty against the newly named defendants and Southern in causing Donna Price's loss of consortium and the injuries and deaths of Lonnie and Annastocia Price.
That same day, September 10, Donna Price as administratix of the estate of Lonnie Price, and as mother of Annastocia Price, filed a new lawsuit (second action) against Southern, and others, claiming damages for the wrongful deaths of Lonnie and Annastocia. The allegations of negligence, wantonness, and breach of warranty were substantially the same as those made in the prior complaint, as amended, filed in the first action. Southern moved to dismiss this second action on October 26, 1982, because of the pendency of the previously filed first action. The circuit court overruled Southern's motion to dismiss, conditioned upon the plaintiff's voluntary dismissal of Southern from the first action. On December 21, 1982, Donna Price voluntarily and without prejudice dismissed Southern as a party to the first action, and the next day, the circuit court entered an order to that effect.
The condition of the court's order denying Southern's motion to dismiss having been fulfilled, Southern filed its answer in the second action, asserting, as it had in its motion to dismiss, that the action was barred by the election of remedies statute, Code of 1975, § 6-5-440, set forth below:
On September 13, 1983, upon proper motion, the circuit court ordered the first action and the second action consolidated for discovery purposes only. On October 7, 1983, Southern filed a motion for summary judgment in the second action, again asserting that the second action was barred by § 6-5-440, supra. The circuit court granted Southern's summary judgment motion on December 14, 1983, in effect dismissing the second action. On December 31, 1983, plaintiff filed a motion under Rule 60(b), A.R.Civ.P., in the first action asking the trial court to set aside the order dismissing Southern from that action. The motion was denied. Plaintiff did not appeal the denial of this Rule 60(b) motion in the first action; however, on January 23, 1984, she filed this appeal from the summary judgment for Southern in the second action.
This appeal raises issues which heretofore have not been directly addressed by this Court in light of the adoption of the Alabama Rules of Civil Procedure and our holding in Benefield v. Aquaslide `N' Dive Corp., 406 So. 2d 873 (Ala.1981). First, we must decide whether, on these facts, the personal injury action filed by Lonnie Price prior to his death may be amended by Donna Price, the administratrix of his estate, to add a claim for his wrongful death; and second, whether Donna Price's own claim for loss of consortium survived the death of her husband Lonnie, when he died as a result of the injuries he sustained.
Southern argues that in fact plaintiff was prosecuting the same claims in her various capacities against the same defendants in two separate lawsuits. Therefore, Southern contends that the second lawsuit was properly dismissed under the plain language of § 6-5-440, supra, that "[n]o plaintiff is entitled to prosecute two actions... at the same time for the same cause and against the same party." Southern reasons that, although Lonnie Price's claim for personal injuries did not survive his death, Donna Price's claim for loss of consortium did survive. Consequently, according to Southern, Rule 15(d), A.R.Civ.P., set forth below, allows her to amend that claim in her first action to add the claims for the wrongful deaths of her daughter and her husband:
Plaintiff, on the other hand, first contends that she was not attempting to state a claim for the wrongful deaths of Lonnie and Annastocia Price in her amendments to the first lawsuit. In support of this contention, she explains in her brief the trial court's rationale in conditioning its denial of Southern's motion to dismiss the second action on plaintiff's dismissal of Southern from the first action without prejudice: the plaintiff had argued before the trial court that she, in her representative capacity, was entitled to pursue an action under warranty against the other defendants in the first action filed by her husband, as recognized by this Court in Benefield v. Aquaslide `N' Dive Corp., supra. In Benefield, this Court held that a breach of warranty claim seeking compensatory damages for personal injuries was a separate and distinct claim from the wrongful death claim, and, because it was a contract claim, it survived the death of the injured *1128 party under Code of 1975, § 6-5-462. Plaintiff maintains that, since the trial court found that no claim in the first action under a warranty theory existed against Southern and the tort claim for personal injuries did not survive, Lonnie's death having resulted from the accident in question, it concluded that only Southern should be dismissed from the first lawsuit. By refusing to dismiss the second action entirely, she argues, the trial court believed the first action could not be amended to state a claim for wrongful death.
The original complaint in the first action, filed before Lonnie Price's death, did not state a claim for breach of warranty. It was only after his death that Donna Price sought to amend that complaint to state a claim for breach of warranty. This amendment had no effect, because Lonnie's claim as stated in the original complaint was extinguished, and, thus, the action was no longer viable. Because his tort claim for personal injury abated, the action, as filed by Lonnie Price, ended; consequently, it could not be amended. See Proctor v. Gissendanner, 579 F.2d 876 (5th Cir.1978).
This is not to say that a claim for personal injuries from breach of warranty does not survive unless the claim had been filed prior to the death of the injured party. Clearly, Benefield, supra, holds:
Nevertheless, in order for an action for personal injury, based upon warranty, filed by the decedent prior to his death to survive for purposes of substitution under Rule 25, A.R.Civ.P., the decedent must have stated a claim for breach of warranty. Otherwise, a new action must be filed in which the breach of warranty claim may be asserted.
Plaintiff further argues that, even if she had sought, after Lonnie's death, to amend the complaint in the first action so as to sue in a representative capacity and state a claim for his wrongful death and reallege her individual claim for loss of consortium, it was improper for her to do so and would have had no effect. Her proper course of action, she says, was to file a new lawsuit, because under the rule stated in Parker v. Fies & Sons, 243 Ala. 348, 10 So. 2d 13 (1942), a complaint for personal injuries cannot be amended to state a subsequently accruing claim for wrongful death. She further argues that her claim for loss of consortium did not survive the death of her husband. We do not agree with this last contention.
Southern contends that Parker, supra, is no longer relevant in light of the enactment of the Alabama Rules of Civil Procedure, since the Court in Parker was construing the former amendment statute, Title 7, § 239, Code of 1940, which has been superseded by Rule 15, A.R.Civ.P. See Appendix II, Alabama Rules of Civil Procedure.
It is true, as Southern argues, that the basis for the holding in Parker was that the former statute permitted only those amendments which could have been alleged at the time the original complaint was filed, while, on the other hand, Rule 15 now allows a party to amend, alleging "transactions or occurrences or events" which have happened subsequent to the date of the original complaint. Nevertheless, the trial court having treated the rule in Parker as controlling, it would be unjust to apply A.R.Civ.P. 15(d) to completely deprive this plaintiff of both actions.
When Southern filed its motion to dismiss the second action, setting up § 6-5-440, the trial court should have denied the motion to dismiss the new action seeking damages for Lonnie Price's wrongful death because this Court has not heretofore construed Rule 15, A.R.Civ.P., to modify the rule announced in Parker v. Fies & Sons, supra. That rule was, as Southern correctly points out, based upon a statute, Tit. 7, § 239, which prohibited an amendment to *1129 add a claim which did not exist at the time the original complaint was filed. We agree with Southern that there is no reason for the retention of the rule announced in Parker, but it would be unjust to apply a new rule to bar the new suit for wrongful death of Lonnie Price in the posture of this case.
This Court has not squarely decided this "amendment" issue since the enactment of the Alabama Rules of Civil Procedure. We cited Parker v. Fies & Sons, Inc., supra, in McMickens v. Waldrop, 406 So. 2d 867 (Ala. 1981), where Lavonne McMickens filed suit against two doctors for the harm caused her as a result of their alleged medical malpractice. She later died. Her malpractice suit was dismissed on the joint motion of all parties, and the administrator of her estate filed a new lawsuit seeking damages for her wrongful death. In a footnote to its opinion in that case, this Court pointed out:
The Rules of Civil Procedure do change the rule announced in Parker v. Fies & Sons, in that now a complaint may be amended to add a claim which accrues after the filing of the original complaint. Apparently being conscious of that fact, the plaintiff in this case filed an amendment to add a claim for Lonnie Price's wrongful death in the pending action for his personal injuries and her loss of consortium. However, also being aware that Parker (albeit based upon a now superseded statute) prohibited the addition of the wrongful death claim by way of amendment, she also filed a separate action, at the same time, stating a claim for Lonnie Price's wrongful death. When she dismissed the first action on motion of Southern and at the direction of the Court, she was justified in assuming that the trial court was applying the Parker rule, thus holding that she was compelled to state the wrongful death claim by way of a new action. It would be unjust now to hold that because Rule 15 permits the amendment, it also mandates that the wrongful death claim be stated by way of amendment to the first action. Southern's argument, although sound, would result in injustice if applied to prevent the maintenance of the wrongful death action altogether.
Southern also argues that even though Lonnie Price's tort claim for personal injuries did not survive, Donna's claim for loss of consortium did survive. Therefore, Southern contends that Donna Price, individually, continued as a party to that first action, and under the rule stated in Sessions v. Jack Cole Co., 276 Ala. 10, 158 So. 2d 652 (1963), and followed in Geer Brothers, Inc. v. Crump, 349 So. 2d 577 (Ala.1977), she could not split her cause of action into two lawsuits even though she is suing in both actions in different capacities (individually, as administratrix of the estate of Lonnie Price, and as parent of Annastocia Price, deceased), claiming different damages, because all of the claims arise out of the same wrongful act or occurrence. Thus, Southern argues that, since her claim survived, the action survived and she continued and remained a party to the first action; therefore, Southern says, Rule 15(d) allowed her, and Sessions v. Cole Co., supra, required her, to amend the first action, rather than bring a second lawsuit.
We agree, insofar as the loss of consortium claim and the claim for wrongful death of the minor daughter are concerned, that the plaintiff cannot maintain both. This is the exact teaching of Sessions. Sessions holds that a parent's claim for wrongful death of a minor child and a claim for loss of consortium must be brought in a single suit and cannot be split. However, when the plaintiff dismissed her claim for loss of consortium, it no longer prevented her from pursuing her claim for wrongful death of her minor daughter in the second *1130 action. When the plaintiff filed her amendment in the first action to state a claim for the wrongful death of her minor daughter, she simultaneously filed a new action for the wrongful death of her minor daughter. When she dismissed the first action, which she was compelled to do, under § 6-5-440, this removed the impediment to the maintenance of a new suit.
Southern is correct that a spouse's claim for loss of consortium does survive where the injured spouse dies from his injuries. This does not compel an election of remedies as between the action for loss of consortium or the action for the spouse's wrongful death (unlike the action for the child's wrongful death) under § 6-5-440, supra. It is, of course, the law that no plaintiff is entitled to prosecute two actions at the same time for the same cause of action against the same party. § 6-5-440, supra.
The statute does not, however, prevent the prosecution of the action by the widow for wrongful death of the husband in her capacity as personal representative, because her separate action for loss of consortium is not an action for the same cause against the same defendant. We hold that the death of the husband did not abate the wife's action for loss of consortium. This has been the rule in this state since 1928 and was the rule at common law and is the rule in most other jurisdictions. In Graham v. Central of Georgia Ry. Co., 217 Ala. 658, 117 So. 286 (1928), speaking directly to this point, the Court said:
217 Ala. at 660, 117 So. at 288.
There is no reason in law or logic to hold that a wife's cause of action for loss of consortium abates with the death of her husband. The cause of action belongs to her, and the loss is hers, not his. She has been deprived of her right of full marital participation with her husband because of the acts of the defendant. The fact that her husband died should not deprive her of the damages she suffered from the time of his injury until his death. 2 Harper & James, The Law of Torts, § 23.8 (1956), and Prosser, The Law of Torts, § 125 (4th ed. 1971).
Although we need not look to authority from other jurisdictions, since it is established law in this state that the wife's action does not abate with the husband's death, the following from the Supreme Court of Iowa expresses why this is the law in most jurisdictions, including Alabama:
Wilson v. Iowa Power & Light Co., 280 N.W.2d 372 (Iowa 1979).
It is not the death of Lonnie Price that prevents Donna Price from proceeding with her claim for loss of consortium. It is the fact that she filed a separate action as mother of her deceased daughter and elected to prosecute it that prevents her pursuit of the loss of consortium claim. Again, this is the holding in Sessions, supra, where the Court said:
276 Ala. at 11-12, 158 So. 2d at 653-54.
The judgment appealed from is reversed and the cause remanded for further proceedings, in the claim by Donna Price, as personal representative for the alleged wrongful death of her deceased husband, Lonnie Price, and individually for the alleged wrongful death of her deceased minor daughter.
APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
FAULKNER and BEATTY, JJ., dissent.
BEATTY, Justice (dissenting):
Admittedly, this case is a procedural quagmire. Nevertheless, this Court is obliged to wade through the record in order to ascertain exactly what transpired below, and the Court must then determine the precise legal effect of each action or transaction. The majority's holding in this case not only overlooks the effect of certain actions by the plaintiff, but also contravenes well-established principles of law involving the election of remedies requirement and wrongful death in Alabama, as well as the express provisions of Rules 15(d) and 25(a), A.R.Civ.P.
Assuming arguendo that the claim for loss of consortium should survive the death of the injured spouse, the majority correctly concludes that, under Sessions v. Jack Cole Co., 276 Ala. 10, 158 So. 2d 652 (1963), Donna Price cannot split her claim for loss of consortium and her claim for the death of her daughter, Annastocia. The majority, *1132 nevertheless, goes on to hold that only Donna Price's consortium claim in the second action is barred by the election of remedies statute. The majority reasons that
This quoted conclusion is not supported by the facts contained in the record. The record fails to show that Donna Price either "dismissed her claim for loss of consortium" or "dismissed the first action." Rather, the record shows that she dismissed Southern from the first action after the second action was filed. That being the case, the same legal reasoning used by the majority to bar the plaintiff's consortium claim must perforce operate to bar the claim for the wrongful death of the plaintiff's child. The majority, relying on Sessions, supra, concludes that "[i]t is the fact that she filed a separate action as mother of her deceased daughter that prevents her pursuit of the loss of consortium claim."
Without question, Donna Price not only asserted claims for loss of consortium in both actions, but she also asserted claims for the wrongful death of Annastocia in both actions. In fact, Counts "Seventeen" and "Eighteen" of the amendment to the first action, filed September 10, 1982, are almost identical to Counts "IX" and "X," respectively, of the second action, filed on the same day:
Contrary to the majority's holding, Southern correctly points out that, under § 6-5-440, Code of 1975, where the plaintiff commences two actions at different times against the same party for the same cause, the plaintiff has no further election. The statute provides that the "pendency of the former is a good defense to the latter," and, therefore, the later action must be dismissed. In Terrell v. City of Bessemer, 406 So. 2d 337, 340 (Ala.1981), this Court explained:
While it is true that the amendment to the first action was filed the same day the second action was filed, pursuant to Rule 15(c), A.R.Civ.P., the amendment related back to the date the original complaint in the first action was filed. Therefore, although the same claims were filed "simultaneously" (i.e., on the same day), the actions were not filed simultaneously; thus, under the plain language of § 6-5-440, plaintiff is not free to elect, "and the pendency of the former is a good defense to the latter." Although the exact reasoning of the majority on this point is unclear, the unavoidable conclusion is that if, as the majority holds, the consortium claim in the second action is barred by the election of remedies statute, so, too, must the claim for the wrongful death of Annastocia be barred.
The majority goes on to hold, without explanation, that the survivorship of Donna Price's claim for loss of consortium
I disagree with this conclusion.
If the surviving spouse, who is appointed personal representative of her husband's estate, brings two separate actions, the first for her loss of consortium, and the second for his wrongful death, whether the election of remedies statute would bar the second action depends on
Sessions v. Jack Cole Co., 276 Ala. 10, 12-13, 158 So. 2d 652, 654-655 (1963).[1]
In Sessions, a parent brought a suit individually claiming, among other things, compensatory damages for loss of the consortium of his spouse as a result of an automobile accident. In a second action, arising out of the same accident, the same parent claimed punitive damages for the wrongful death of his minor daughter. This Court held that the second action, filed during the pendency of the first action, was barred by the election of remedies statute. In so holding, the Court said:
"See also O'Neal v. Brown, 21 Ala. 482." (Emphasis added.) 276 Ala. at 12, 158 So. 2d at 654.
In the present case, Donna Price filed two actions against Southern arising out of the same "wrongful act." In both actions, she sued individually and in a representative capacity. The first, as amended, stated a claim for her loss of consortium and claims for the wrongful deaths of Lonnie and Annastocia. The second action also stated a claim for the wrongful deaths of Lonnie and Annostocia. Sessions clearly prohibits Donna Price from splitting her claim for consortium and her claim for the wrongful death of her minor child. The only aspect that distinguishes this case from Sessions is the additional fact that Donna Price is also suing in the capacity of personal representative, which raises the issue of whether the "parties to both suits [are] substantially identical." Wheeler, supra. The Court in Sessions, however, reserved the issue of whether the same result reached in that case would also be *1135 reached on facts such as those present in the case sub judice:
The majority opinion decides this issue in part and holds that the rule in Sessions "does not compel an election of remedies as between the action for loss of consortium or the action for the spouse's wrongful death ... because her action for loss of consortium is not an action for the same cause." I disagree and find that the reasoning applied by the Court in Sessions, when applied to these facts, compels the conclusion that these claims must be brought in the same action, whether or not they are the same cause of action.
The Sessions court, quoting Chappell v. Boykin, supra, stated the rule that "a `cause of action' grows out of the wrongful act and not the various forms of damages that may flow from the single wrongful act." The Sessions court also noted that there, as in the present case, the "damages recovered in both actions, while not of the same character, will go to the same person for his sole use." It seems to me, notwithstanding the fact that Donna Price is suing as personal representative for the wrongful death of her husband, the logical application of Sessions would require that, where the personal representative stands to recover personally from the wrongful death action (here, Donna Price is the sole beneficiary), that action should be brought together with any other claims the personal representative has, individually, arising out of the same wrongful act.
Furthermore, the Court in Sessions, in applying the res judicata (or collateral estoppel) test, set out above, concluded:
Here, the result is no different merely because the spouse is suing as "personal representative" for the death of her husband, rather than suing as "parent" for the death of her child. Clearly, the identical issue involved and necessary to both actions is that of Southern's liability to the plaintiff (in her individual and representative capacity), arising out of the same incident, and it "would be supported by the same evidence, save for proof of each element of damage." Sessions, supra.
Because this is an issue of first impression, it is worthwhile and instructive to look to decisions from other jurisdictions. Two cases directly in point are Keith v. Willers Truck Service, 64 S.D. 274, 266 N.W. 256 (1936), and Voorhees v. Chicago & A.R. Co., 208 Ill.App. 86 (1917).
In Voorhees, supra, Mattie Ryan and her minor son, Stuart, were killed in a train collision. Marcus Ryan, husband of Mattie and father of Stuart, was the only next of kin to his wife and their son, and sole beneficiary of their estates. Marcus waived his right to serve as administrator and Voorhees was appointed. Pursuant to the Illinois Injuries Act, which permits an action to be maintained by the administrator for the benefit of the next of kin, Voorhees filed two actions: the first for Mrs. Ryan's wrongful death, and the second for her son's wrongful death. Under that Act, neither the administrator nor the estate of the deceased has any interest in or right to the benefits of any judgment recovered.
Judgment was entered in favor of the defendant railroad in the first action for
*1136 Mrs. Ryan's death. In defense of the second action for the child's death, the defendant pleaded estoppel by verdict or res judicata. The Court upheld the plea, stating:
The court in Voorhees went on to hold:
In Keith v. Willers Truck Service, supra, the plaintiff was injured in the same accident as that in which his wife was killed. First, the plaintiff filed an action for his own personal injuries; the jury returned a verdict in favor of the defendant. The plaintiff then brought an action, in his capacity as administrator, for the alleged wrongful death of his wife. Here, as in Voorhees, supra, the defendant set up the defense of estoppel by judgment or res judicata. The court upheld the defense, holding plaintiff's second action was barred.
Although conceding that the two actions involved separate causes of action, the court reasoned that matters adjudicated in reaching a judgment on one cause of action may not be relitigated in another action between the same parties. The court recognized that a former judgment would not have res judicata effect unless the second action were not only between the same parties, but also between them in the same capacity; but even though the plaintiff was suing in different capacities in the two actions-first in his individual capacity, and then as administrator in the wrongful death actionthe court held that the two actions were between the same parties, since the plaintiff was bringing the wrongful death action for his own benefit, because he, as the sole surviving beneficiary of the deceased, was entitled to the *1137 proceeds of any recovery for her wrongful death.
It is important to note from Keith, supra, a case which is practically "on all fours" with the case at bar, that the South Dakota wrongful death statute, like Alabama's, gives the cause of action to the deceased's personal representative:
The court in Keith went on to explain:
We have also recognized in Alabama that the real parties in interest in a death case are the statutory distributees, and that the personal representative is only the nominal or formal party. This is especially true where the personal representative is the sole statutory distributee. In Board of Trustees of the University of Alabama v. Harrell, 43 Ala.App. 258, 261, 188 So. 2d 555, 557 (1965), cert. denied, 279 Ala. 685, 188 So. 2d 558 (1966), the Court of Appeals stated:
In view of the fact that the personal representative acts as trustee for the beneficiaries, the question arises: Can the personal representative act as trustee for her own benefit where she is the sole beneficiary?
In a later case citing Harrell, supra, this Court stated:
See also Wilkey v. Southwestern Greyhound Lines, Inc., 322 P.2d 1058 (Okla. 1957), in which it was held that where a husband had brought three separate actions for his own personal injuries and loss of consortium, for the wrongful death of his child, and the wrongful death of his wife, all arising out of the same automobile accident, judgment for the defendant in the wife's death action, which was tried first, conclusively settled the defendant's liability to answer for any and all damages as a result of the accident.
Applying the reasoning of the foregoing cases to the facts of this case, I am compelled to conclude that Donna Price could not have split her cause of action for consortium from her action as personal representative for the wrongful death of her husband.
The majority also concludes that "there is no reason for the retention of the rule announced in Parker," with apparent disregard for the result one must necessarily reach when Rules 15(d) and 25(a)(1) are applied to cases in which a spouse's claim for loss of consortium is not joined to the other spouse's personal injury action. Rule 15(d) provides:
Rule 15 does not abrogate the basis for the rule in Parker, where a complaint, filed by the deceased before his death, stated only a tort claim for personal injuries and the personal representative later sought to amend that complaint to state a claim for breach of warranty and wrongful death. It is well established that a tort claim for personal injury does not survive the death of the injured party. Therefore, in order to continue to prosecute a personal injury action after the injured party dies, Rule 25(a), governing substitution of parties in case of death, must be complied with before a supplemental claim can be stated under Rule 15. Rule 25(a) provides, in part:
Rule 15(d) presupposes that the person seeking to supplementally amend will already be a party, and such an amendment requires the court's permission. Without a proper substitution, the deceased party is no longer before the court; therefore, the court lacks the authority to proceed. Henderson v. Briarcliff Nursing Home, 451 So. 2d 282 (Ala.1984). See Wells v. Wells, 376 So. 2d 750 (Ala.Civ.App.1979).
I readily agree that in certain other cases Rule 15(d) might permit what the rule applied in Parker would not. For example, if A sues B for breach of contract and, during the trial of the case, B assaults and injures A, Rule 15(d) allows A to amend his complaint to state a claim for personal injury. But if A dies as a result of those injuries, the question becomes one of whether or not the claim for breach of contract survives the death of A. It is this survivability issue that determines whether or not a given complaint may be amended and by whom. In short, the legal representative of the estate of a deceased party cannot, merely by amendment or intervention, revive a lawsuit where the death of that party extinguished all claims asserted therein. And to that extent, the Rules of Civil Procedure do not change the rule of Parker, as explained above. Rule 25 clearly requires a proper substitution of parties where a party dies, and this step cannot be bypassed. Henderson v. Briarcliff Nursing Home, supra.
Finally, the majority's reliance on Graham v. Central of Georgia, 217 Ala. 658, 117 So. 286 (1928), for its holding that the claim for loss of consortium survives the death of the spouse, is fallacious. The Court in Graham, quoting from Hyatt v. Adams, 16 Mich. 180, held that "`where death does not at once ensue,'" a husband may maintain an action for compensatory damages "`accruing between the injury and the death, and such action is not barred by the death.'" Graham, 217 Ala. at 660, 117 So. at 288. Under Graham, these compensatory damages would include not only the loss of her services or society (consortium), but also all medical and funeral expenses. Graham stands alone; it has never been applied in a case where the injured spouse died as a result of his or her injuries; it has been authority only in injury cases where the wife did not die. Moreover, while the consortium issue has not been addressed by any appellate court in this state since Graham, the law is well-settled that medical and funeral expenses are not recoverable in a wrongful death case, and, to that extent, Graham has already been overruled sub silentio. Board *1140 of Trustees of the University of Ala. v. Harrell, 43 Ala.App. 258, 188 So. 2d 555 (1965). Without question, the bulk of the damages awarded in Graham was for medical and funeral expenses for which the husband was legally responsible, because at that time the law imposed a duty on the husband to provide for and take care of his wife. See Birmingham Southern Ry. Co. v. Lintner, 141 Ala. 420, 38 So. 363 (1904).
Clearly, the majority's holding is out of line with the principles of law that have been well-established and recognized by this Court in the 57 years since Graham was decided; namely, that under our wrongful death statute, all tort claims arising out of a personal injury are extinguished by the death of the injured party where he dies as a result of those injuries, and a statutory cause of action for wrongful death arises, which affords only punitive damages. Carter v. City of Birmingham, 444 So. 2d 373 (Ala.1983), cert. denied, ___ U.S. ___, 104 S. Ct. 2401, 81 L. Ed. 2d 357 (1984); Breed v. Atlanta, B. & C.R. Co., 241 Ala. 640, 4 So. 2d 315 (1941); Bruce v. Collier, 221 Ala. 22, 127 So. 553 (1930).
In Swartz v. United States Steel Corp., 293 Ala. 439, 304 So. 2d 881 (1974), this Court recognized the right of a wife to bring an action for loss of consortium and held that each spouse has a cause of action for loss of consortium caused by the tortious act of a third party. The Court further held that, although a wife's right of consortium must be considered as her personal property right,
The majority opinion in Swartz cites with approval the case of Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897 (1968), for the above quoted proposition. The court in Millington expressed this proposition as follows:
Further, Justice Faulkner, in his special concurrence in Swartz, explained:
Southern contends that the term "derivative" in this context means merely that the spouse's right of action for loss of consortium depends on the right of the deceased spouse, had he survived, to maintain an action for personal injuries, citing Keller v. Kiedinger, 389 So. 2d 129 (Ala.1980). I agree that this condition applies to the right of the wife to recover for loss of consortium; however, it is upon the death of the husband that the rule in Keller applies, but only in determining whether a cause of action for wrongful death lies, not a claim for loss of consortium.
The well-established rule that an injured party's tort claim for personal injury abates upon his death is a sufficient reason for finding a termination of the decedent's claimequivalent to a termination "on the merits adversely to him," inasmuch as no recovery for compensatory damages for personal injury may be had in an action for wrongful death. To that extent, the claim of a decedent's spouse for loss of consortium is derivative, and the death of the injured spouse should operate as a bar to *1141 the surviving spouse's claim for loss of consortium. The right of action under the wrongful death statute remains the exclusive tort remedy available where an injured party dies from his injuries. Indeed, there is no provision in state law allowing the decedent's survivors to recover compensatory damages in tort where a claim for wrongful death arises. Painter v. Tennessee Valley Authority, 476 F.2d 943 (5th Cir.1973). The fact that there have been no cases reported in which Graham was followed may be further evidence that, in fact, no surviving spouse has relied on Graham to recover consortium damages as a result of an alleged injury and subsequent wrongful death.
Based on the foregoing, I respectfully dissent.
FAULKNER, J., concur.
[1] If there is a question as to "identity of parties," it is only with respect to the various capacities in which the plaintiff, Donna Price, is suing. | March 22, 1985 |
863a5bb1-e0ed-49f0-94b8-3126770a654e | Broadway v. Great American Ins. Co., Inc. | 465 So. 2d 1124 | N/A | Alabama | Alabama Supreme Court | 465 So. 2d 1124 (1985)
Thomas BROADWAY
v.
GREAT AMERICAN INSURANCE COMPANY, INC.
83-1105.
Supreme Court of Alabama.
February 22, 1985.
J. Doyle Fuller, Montgomery, for appellant.
David E. Allred of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
MADDOX, Justice.
This case involves interpretation of a homeowner's insurance policy issued by Great American Insurance Co., Inc. The only dispute is whether that policy provides coverage for certain personal injuries suffered by the plaintiff, Thomas Broadway.
The following facts are pertinent: Sometime in September 1982, George Ryals purchased a 1974 Dodge Duster automobile as a high school graduation present for his son. Ryals's son drove the car for approximately three months. Then, apparently sometime in December, Ryals's son called from school and informed his father that he was having problems with the vehicle. Ryals proceeded to Prattville High School, where the car was parked, hooked a chain *1125 to it, and, using his company pickup truck, towed the car back to his residence in Prattville. Upon arriving at his home, he cranked the vehicle momentarily and then moved it into a tin garage behind his house where he frequently does repair work on his vehicles. He subsequently determined that the car needed extensive repairs, amounting to a complete engine overhaul. Because he did not have the money at that time to make the needed repairs, he left the Duster parked in the shed for approximately one month. Thereafter, he removed the engine from the vehicle and proceeded to rebuild it.
On March 1, 1983, Kirk Alison went to Ryals's home after work to help him complete repairs on the Duster. Thomas Broadway, who car-pooled to and from work with Alison, accompanied him.[1] Ryals and Alison worked on the car approximately two hours, remounting and reconnecting the engine, preparing it to be started. During this time, Broadway, who had no mechanical aptitude, stood nearby and watched. After the engine was remounted and reconnected, except for the valve covers, Ryals and Alison attempted to crank it in order to set the engine's timing. Ryals entered the passenger compartment and turned the ignition switch, while Alison primed the previously dry carburetor by pouring gasoline into it. At that point the engine backfired, igniting the cup of gasoline that Alison was holding. A portion of the burning gasoline spilled onto Alison's hand, burning it and causing him to throw the cup of burning gasoline toward the front of the car. The cup struck the nose of the vehicle and spattered burning gasoline onto Broadway, setting his clothes afire. As a result, Broadway suffered burns to his chest, stomach, and legs.
Broadway brought suit against Ryals and Alison, charging negligence, and also filed claims with American States Insurance Company, which provided automobile coverage on the Duster, and Great American Insurance Co., Inc., with whom Ryals had the homeowner's insurance policy previously referred to. After conducting an investigation, American States determined that its policy provided coverage, settled with Broadway for $7,500, and obtained a release. Great American, on the other hand, denied coverage.
After settlement with American States, Broadway continued to prosecute his negligence action against Ryals and Alison, eventually obtaining a default judgment in the amount of $25,000. Another claim was then filed with Great American, which again denied coverage. As a result, Broadway brought suit directly against Great American, which counterclaimed, seeking a judgment declaring that its policy did not cover Broadway's injuries. Both Broadway and Great American moved for summary judgment. On May 30, 1984, the Circuit Court of Montgomery County granted summary judgment in favor of Great American.
It is undisputed that on March 1, 1983, Ryals was the owner of a homeowner's policy issued by Great American. It is also undisputed that the policy contained the following exclusions:
Great American contends that Broadway's injuries occurred during maintenance of the vehicle in question and therefore are excluded from coverage. Broadway argues, as he did before the trial court, that *1126 at the time of his injuries the Duster was not a motor vehicle within the meaning of the exclusion. His argument is based on that portion of the definitions section of the policy, which defines "motor vehicle" as:
Broadway asserts that, even though maintenance was being performed on the Duster at the time of his injuries, because the vehicle had been inside Ryals's shed for over three months without being driven, it was in "dead storage" on the insured location. Great American counters by arguing that, because repairs were being performed on the car at the time of Broadway's injuries, the automobile was not in dead storage. In granting summary judgment, the trial court agreed with Great American, holding:
We agree with the trial court's interpretation of the policy.
This Court has never before been called upon to decide a case of this nature; however, the Third District Court of Appeal of our neighboring state Florida, in Lawson v. Allstate Insurance Co., 456 So. 2d 1235 (Fla.Dist.Ct.App.1984), has. In that case, the Florida court held that a vehicle which was being restarted after undergoing extensive engine repairs was not in storage of any kind.
Because the facts in Lawson are so strikingly similar to the facts of the present case, we set forth that opinion in toto:
"The facts show that in July 1979 Jim Hazelrig towed a truck to his truck repair business for the purpose of replacing an engine. He could not find a replacement engine so he removed the one from the truck and sent it to another company to be rebuilt. The truck sat outside his building in that condition for almost seven months. On or about February 6, 1980, the rebuilt engine was returned. Two days later, Hazelrig completed reinstalling the engine and attempted to start the truck. His friend, Clarence Neville, who volunteered to help, poured gasoline into the carburetor from a cup while Hazelrig cranked the engine. A spark ignited the gasoline and Neville threw the cup and gasoline over his shoulder. Neville's minor grandson, Scott Lawson, who was standing nearby, was severely burned. Lawson brought suit against, inter alia, Allstate Insurance Company, Neville's insurer under a homeowner's insurance policy. Allstate's denial of coverage was based on the following exclusionary provision:
"At a hearing on a Request for Declaratory Judgment, the trial court concluded that because the truck was not in dead storage at the time of the incident, the exclusion applied, resulting in no coverage.
"We agree that generally where a vehicle is left with a garageman for the purpose of making repairs it is not in storage. See Owens v. Pyeatt, 248 Cal. App. 2d 840, 57 Cal. Rptr. 100, 105 (1967) (no charge for storage is implied during the period of time an automobile left with a garageman is undergoing repairs);
This Court is, of course, aware that Lawson is distinguishable because the court therein narrowly based its decision on the fact that the vehicle was in the possession of a "garageman" at the time the injuries complained of occurred. Nevertheless, this Court is of the opinion that Lawson supports a broader principle, that where an automobile is temporarily put away for the purpose of undergoing maintenance it cannot be considered as being in storage, either live or dead. It would be illogical to hold that a vehicle delivered to a mechanic for the purpose of making repairs is not in storage, but that the same vehicle, if placed out of commission at the owner's home for the same purpose, is.
As this Court perceives the terms "dead storage" and "maintenance of a motor vehicle," they are mutually exclusive. In other words, a motor vehicle in dead storage is one which is not undergoing maintenance, while a vehicle which is undergoing maintenance cannot be in dead storage.[2] Regardless of the status of the Duster during the time it remained in Ryals's garage untouched, it was undergoing maintenance at the time Broadway's injuries occurred; consequently, it was not in dead storage. Therefore, the dispositive questions are whether "maintenance" was being performed on the Duster at the time Broadway's injuries occurred and, if so, whether his injuries arose out of that maintenance, within the meaning of the exclusion. We find that both questions must be answered in the affirmative.
It is undisputed that, just prior to the accident causing Broadway's injuries, Ryals and Alison had completed remounting and reconnecting the Duster's engine and that, at the moment the accident occurred, they were trying to crank it by pouring gasoline into the carburetor. In another Florida case, Volkswagen Insurance Co. v. Dung Ba Nguyen, 405 So. 2d 190 (Fla.Dist.Ct.App.1981), an attempt to crank a truck using the same method was held to be maintenance within the meaning of a homeowner's policy, even though no work was performed on the engine immediately prior to its being cranked. In Dung Ba Nguyen, just as in the present case, the plaintiff was injured when a cup of gasoline which was being used to prime a carburetor was accidently ignited and thrown onto him.
In determining if a homeowner's policy owned by one of the defendants provided coverage, Florida's Third District Court of Appeal wrote:
The attempt to start the truck by pouring gas into the carburetor, which resulted in the ignition of the gas, involved the `maintenance' of the vehicle within the terms of this exclusion.
7 Appleman, Insurance Law and Practice § 4315 (emphasis supplied)
Since the term `maintenance' was held to be unambiguous, authorities using that term with reference to an automobile policy's insuring clause are also persuasive.
"If pouring gas into a carburetor involves its maintenance for purposes of an insuring clause, the same definition would exist for an exclusion because the term is not ambiguous. Winston, supra. Accordingly, since the pouring of gas in the carburetor was done for the purpose of starting the truck, resulting injuries suffered by Ming arose out of the maintenance of the vehicle." (Footnote omitted.)
*1129 This Court finds the reasoning expressed in Dung Ba Nguyen to be sound. Therefore, we adopt that reasoning and find that, at the time Broadway's injuries occurred, Ryals's Dodge Duster was undergoing maintenance within the meaning of Great American's policy exclusion. Furthermore, we find that his injury was a direct and proximate result of that maintenance. Consequently, this Court is of the opinion that coverage under Great American's policy was properly denied and that the trial court committed no error in so holding.
The summary judgment granted in favor of Great American is due to be affirmed.
AFFIRMED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.
[1] The record shows that Ryals, Alison, and Broadway were all employed by the same company and that Ryals was the supervisor of the other two. There is, however, no allegation that the accident in question occurred while any of those involved were working within the line and scope of their employment.
[2] We should not be understood as holding that in all cases once maintenance is begun, dead storage ends. We can conceive of situations in which initial repairs are begun but for some reason are discontinued for an extended period of time, perhaps several months or years. We cannot say that in such a situation the vehicle would not reacquire the status of being in dead storage. Such is not the case here. The evidence clearly shows that after finally beginning repairs, Ryals continued to work on the Duster regularly, although intermittently, for a week. In any event, there is no doubt that he worked on it just prior to Broadway's accident. | February 22, 1985 |
cb7b5353-1e25-4e4f-b509-1bb6d7ae27df | Pettaway v. Mobile Paint Mfg. Co., Inc. | 467 So. 2d 228 | N/A | Alabama | Alabama Supreme Court | 467 So. 2d 228 (1985)
Jonas PETTAWAY & Shirley M. Parker Pettaway
v.
MOBILE PAINT MANUFACTURING COMPANY, INC., a Corporation or other entity.
83-387.
Supreme Court of Alabama.
March 8, 1985.
Douglas Inge Johnstone, Mobile, for appellants.
Jon A. Green of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
EMBRY, Justice.
Jonas and Shirley Parker Pettaway appeal from a summary judgment entered against them and in favor of one defendant, Mobile Paint Manufacturing Company, Inc. (hereinafter Mobile Paint), arising out of a personal injury action. We affirm.
On or about 18 September 1981, appellant Jonas Pettaway was burned severely by an explosion on the premises of Mobile Paint.
Some three months before Pettaway suffered his injuries, he had gone to Manpower, Inc., an employment agency, and filled out an application in an effort to obtain work. Thereafter, Pettaway returned to Manpower several times to receive work assignments. On several occasions, Manpower sent Pettaway to different jobsites for the purpose of providing temporary labor.
Approximately two weeks before his injury, Manpower informed Pettaway of an available work assignment at Mobile Paint. Manpower asked Pettaway if he would accept such an assignment, as this was the normal procedure. Pettaway agreed to do so.
Before going to work at Mobile Paint, Pettaway stopped by Manpower to pick up a time sheet. He then went to the Mobile plant and performed ordinary labor. According to Pettaway, it was his practice to return to Manpower only at the end of the *229 week to get a new time sheet and receive a pay check.
Pettaway was paid $3.75 an hour for labor at Mobile Paint. Manpower in turn charged Mobile Paint at the rate of $5.34 an hour. A portion of the difference was used by Manpower to purchase Workmen's Compensation insurance.
Lastly, while at the jobsite, Pettaway's work was directed and supervised exclusively by Mobile Paint, with the exception that written permission from Manpower was necessary before Pettaway could handle vehicles or machinery.
Pettaway was injured his third week on the job. Thereafter, Pettaway and his wife filed suit against Mobile Paint and others, alleging negligence and breach of contract. On defendant's motion, summary judgment was entered in favor of Mobile Paint. The Pettaways appeal.
By stipulation of the parties, the single question presented by this appeal is whether Mobile Paint is immune to the Pettaways' personal injury action by virtue of the employer's immunity under the Alabama Workmen's Compensation Act. We hold that under the facts presented, Mobile Paint was an "employer" of Jonas Pettaway under the Alabama Workmen's Compensation Act, and as such is immune from civil liability for the personal injuries sustained by Pettaway. Code 1975, § 25-5-53.
The dispositive facts of this case are indistinguishable from those presented in Terry v. Read Steel Products, 430 So. 2d 862 (Ala.1983). In Read Steel, this court upheld a summary judgment entered in favor of the defendant, Read Steel, on the basis that Read Steel was immune from suit as an employer under the Workmen's Compensation Act. Read Steel, as does this case, involved a situation where a general employer (Manpower, Inc.) merely provided laborers to special employers and then performed clerical tasks for the special employer. This court noted that in such a situation, the dispositive test to be applied is whether a contract of hire existed between the special employer and the employee, in this case Mobile Paint and Jonas Pettaway. After reviewing the entire record we find that: (1) An implied contract of hire existed between Pettaway and Mobile Paint; (2) Pettaway's work was essentially that of Mobile Paint; (3) Mobile Paint had the right to control the details of the work. Accordingly, Mobile Paint is immune from civil liability for the injuries suffered by Pettaway. Terry v. Read Steel Products, 430 So. 2d 862 (Ala.1983); Code 1975, § 25-5-53.
Appellants argue that since Pettaway was never paid directly by Mobile Paint, Code 1975, § 25-5-1(4), precludes any finding that Mobile Paint was Pettaway's employer. In fact, appellants assert that had this issue been raised in Terry v. Read Steel Products, the outcome of that case would have been different.
Code 1975, § 25-5-1(4), a definitional code section, reads in pertinent part:
Contrary to the Pettaways' assertions, the definitional sections cited are not conclusive in and of themselves. This court stated in Terry v. Read Steel Products, 430 So.2d at 866:
Craig v. Decatur Petroleum Haulers, Inc., 340 So. 2d 1127, 1130 (Ala.Civ.App. 1976).
We find that Mobile Paint was Jonas Pettaway's special employer despite the fact that Mobile Paint never paid Pettaway directly. Terry v. Read Steel Products, 430 So. 2d 862 (Ala.1983). Therefore, Mobile Paint is immune from suit under Code 1975, § 25-5-53, and is entitled to a judgment as a matter of law. Accordingly, the judgment is due to be, and is hereby, affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur. | March 8, 1985 |
01f94278-fde0-4261-a71a-f577facc765c | Keeton v. Bank of Red Bay | 466 So. 2d 937 | N/A | Alabama | Alabama Supreme Court | 466 So. 2d 937 (1985)
Herman A. KEETON and Amy T. Keeton
v.
The BANK OF RED BAY, et al.
83-880.
Supreme Court of Alabama.
March 1, 1985.
*938 Stanley E. Munsey of Rosser & Munsey, Tuscumbia, for appellants.
Charles R. Driggars of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellees.
JONES, Justice.
This appeal arises from a suit filed by Herman A. Keeton and Amy T. Keeton against the Bank of Red Bay, Red Bay Lumber Company, Dr. Z.L. Weatherford, Pat Childers Nelson, and Romie Duncan, seeking $1,000,000.00 in damages for breach of contract, outrageous conduct, bad faith, fraud, and misrepresentation. The trial court, without a jury, heard evidence during five days of oral testimony and entered judgment in favor of Appellees, but made no written findings of fact or conclusions of law. Appellants' motion for reconsideration or, alternatively, for a new trial, was denied; thus, this appeal. We affirm.
The uncontroverted facts are that Appellant Herman A. Keeton owned a lumber mill in Red Bay, Alabama, and operated it as the Keeton Lumber Company. During *939 the period of early 1967 through April of 1975, Keeton borrowed a total of $104,565.39 from the Bank and $196,949.63 from Dr. Weatherford. Keeton had, during this time, induced the Bank to make loans by presenting to the Bank certain invoices which Keeton alleged represented shipments of lumber to buyers. The Bank would loan Keeton 80% of the face value of the invoices, take the invoices, and look for repayment as the invoices were paid.
Property of the Keeton Lumber Company was mortgaged as security for some of the loans; therefore, when the loans were in default, foreclosure proceedings were commenced. Prior to the date set for the foreclosure sale, Keeton, Dr. Weatherford, and the Bank entered an agreement whereby, rather than foreclosing on the mortgages and shutting down the mill, Red Bay Lumber Company would take over the Keeton Lumber Company for one year, thus giving Keeton the opportunity to get his financial matters in order and then to buy back the mill.
Testimony at trial indicated that this agreement was reached because Keeton allegedly had a buyer interested in the mill and the value of the mill would be greatly enhanced if the mill continued to operate. Keeton reviewed, approved, and executed both the agreement/contract and a deed with a bill of sale conveying to Red Bay Lumber Company all of Keeton's right, title, and interest in all the real estate, equipment, machinery, parts, inventory, and work in progress involved with the Keeton Lumber Company.
Red Bay Lumber Company took over the operation of the Keeton Lumber Company, with Appellees Romie Duncan and Pat Childers Nelson handling the day-to-day business matters of the mill. The Bank made a number of further loans and advances to Red Bay Lumber Company during the following year.
When the agreement year was up, the Bank reconveyed the mill, inventory, accounts receivable, and all equipment to Keeton upon his payment of the redemption price. Keeton then filed suit, claiming he had been defrauded by Appellees in their alleged mismanagement of the mill and their alleged conspiracy in arriving at the redemption price, which, Appellants say, they "had no alternative but to accept... as correct because of the imminent redemption deadline date and because of the [Appellees'] refusal to supply any financial information prior to the [Appellants'] redemption."
The remainder of the material factual evidence was fiercely disputed. The testimony of the various witnesses yielded contradictory accounts of everything from who initiated the negotiations for the agreement to the methods used to value the mill and its properties. There was conflicting testimony concerning the inventory of the mill's equipment and work in progress at the time of the agreement; whether Keeton or any of the Appellees removed inventory or equipment from the mill premises and for what reasons; the history of the financial difficulties of both Keeton and the mill (including past threats of foreclosure); the accounting method used for computing "operating losses" during the year of Red Bay's operations and for computing the final redemption figure; the sale of certain mill property as salvage and the sale of mill equipment and machinery during the year of operations under the agreement; whether Keeton had access to the mill's records during the year under the agreement; the loss of (and later regaining of) the mill's Southern Pine Inspection Certification; and the veracity of invoices representing shipments from the mill allegedly made before Red Bay's takeover of mill operations.
In their briefs to this Court, all parties merely restate that evidence adduced at trial which would support their contentions of either justification for the decision of the trial court or of a conclusion "overwhelmingly" contrary to the final judgment for Appellees. We note, too, that, in setting forth the "issue on appeal" in their brief, Appellants simply recite the standard of appellate review of a final judgment entered by the trial court after hearing ore *940 tenus evidence without a jury. We emphasize that the only ground for challenge of the judgment here presented is the weight and preponderance of the evidence, not the sufficiency of the evidence.
In applying the appropriate standard of review to the instant case, we find, initially, that the wrongs complained of by Appellants are questions to be determined by the trier of fact. John Deere Industrial Equipment Co. v. Keller, 431 So. 2d 1155 (Ala.1983) (fraud and breach of contract); American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1981) (outrageous conduct).[1] Further, it is fundamental law in Alabama that when the trial judge sits as the trier of fact, and hears ore tenus evidence, his resolution of the factual issues, based upon that evidence, is presumed correct and will be affirmed by this Court if, under any reasonable aspect, it is supported by any credible evidence. This we call the "ore tenus" rule. Chism v. Hicks, 423 So. 2d 143 (Ala.1982); Dicon, Inc. v. Great Atlantic & Pacific Tea Co., 381 So. 2d 18 (Ala.1980). It is the burden of the appellant, then, in an appeal from a judgment subject to the ore tenus rule, to prove that the judgment is either unsupported by any credible evidence or is plainly erroneous and manifestly unjustwhich burden the instant Appellants have not carried.
Neither does the trial court's failure to enter findings of fact or its denial of Appellants' post-judgment motion indicate error:
When we apply the ore tenus standard of review to the conflicting testimony before the trial judge in the instant case, we find competent evidence supporting his judgment, and we cannot say that the judgment was erroneous and manifestly unjust. Because we find no error below, the judgment appealed from is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur.
[1] A tort claim for bad faith breach of contract is not a cognizable cause of action except in the context of a contract of insurance. Sprowl v. Ward, 441 So. 2d 898 (Ala.1983). | March 1, 1985 |
8a979673-c7f1-4d13-ace9-cda4357653cd | Kennemer v. McFann | 470 So. 2d 1113 | N/A | Alabama | Alabama Supreme Court | 470 So. 2d 1113 (1985)
Michael KENNEMER, J.W. Wallace, Charles Partain, and Ricke Jenkins
v.
Paul J. McFANN, Kathy McFann, and Curtis Broughton.
83-82.
Supreme Court of Alabama.
March 15, 1985.
Rehearing Denied May 10, 1985.
*1114 William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellants.
John Plunk of Alexander, Corder & Plunk, Athens, for appellees.
JONES, Justice.
This co-employee suit, pursuant to Code 1975, § 25-5-11, presents three issues on appeal: Whether the trial court erred 1) in its oral instructions to the jury with respect to the duties owed to Plaintiffs by Defendants; 2) in its denial of Defendants' motions for a directed verdict and judgment notwithstanding the verdict; and 3) in instructing the jury on certain rules of the road.
Plaintiffs Paul J. McFann and Curtis Broughton[1] suffered on-the-job injuries while passengers in a truck owned by their employer, Wright and Lopez, Inc., and operated by their immediate supervisor, Michael (Mike) Kennemer, one of the Defendants. Although the case was initiated against multiple third-party defendants, it was submitted to the jury against Mike Kennemer, J.W. Wallace, Charles Partain, and Ricke Jenkins, co-employees of the injured Plaintiffs.
The statement of Plaintiffs' claims may be summarized as follows: 1) the driver of the truck, Kennemer, was negligent in beginning descent of a mountain when he knew or should have known that the truck was overloaded and that it had a defective braking system; in descending the mountain in too high a gear; in descending with excessive speed; in failing to inspect the truck's and its trailer's braking systems; in failing to provide a safe place for Plaintiffs to work; and in failing to implement an effective safety program; 2) supervisors Jenkins, Partain, and Wallace were negligent in inspecting the truck's and its trailer's braking systems; in failing to properly train, instruct, and warn Defendant Kennemer in the use, operation, maintenance, and management of the truck; in failing to provide a reasonably safe place for Plaintiffs to work; in failing to implement an effective safety program; and in failing to warn Defendant Kennemer of the defective condition of the truck's and its trailer's braking systems.
The jury instruction made the basis of this allegation of error reads:
This instruction, say Appellants, left the jury with the erroneous impression that the law imposed upon co-employee defendants the same duty as that imposed by law upon employers. If the trial judge's instruction had ended here, we would not hesitate to reverse the judgments; however, the above-quoted language is but a portion of his entire charge relating to the co-employee Defendants' legal duty. It is not necessary to set out the whole of his instructions. Suffice it to quote the judge's comments in response to Defendants' objection:
The record supports the trial judge's own explanation that his reference to the "safe place" statutea duty imposed upon the employerwas a mere background or overview approach from which he then detailed the requirement of assumption or delegation of that duty to or by the co-employee as a requisite for a finding of individual liability. Indeed, the trial court gave the Defendants' requested charges 10 and 13:
The subject of co-employee liability has evoked scholarly comment in recent years in both the Alabama Lawyer and the Cumberland Law Review. We quote from J. Smith, Common Law Liability of Supervisory Employee to Subordinate, 40 Ala.Law. 230, 251 (1979):
*1116 In a law review note, Co-Employee and Workmen's Compensation Carrier SuitsCommon-Law Assault Upon Workmen's Compensation Exclusivity in Alabama, 11 Cum.Law Rev. 639, 648 (1980), the following appears:
The analysis of these two legal articles, beginning with the employer's duty and then tracing that duty forward to the employee when it is delegated to or assumed by the employee, is in essence the analysis used by the trial judge in the instant jury instructions. Furthermore, his instructions left for the jury's determination all factual issues raised by the evidence.
The trial judge, by quoting portions of § 25-1-1, 1975 Code, when taken in concert with the entire charge, including giving Defendants' requested instructions, informed the jury that the employer is primarily responsible for providing employees a safe place to work, but that that duty may be assumed by or delegated to a co-employee, who may be liable for its breach. Furthermore, it was clear from the judge's instructions that without personal fault on the part of a co-employee defendant, regardless of the liability of some other person, the co-employee defendant must be absolved. We hold, therefore, that the trial judge's charge, when taken as a whole, did not constitute reversible error. Treadway v. Brantley, 437 So. 2d 93 (Ala.1983). See, also, Welch v. Jones, 470 So. 2d 1103 (Ala. 1985).
While Appellants/Defendants have argued each of the three issues presented vigorously and thoroughly, it is fair to observe that they treat the directed verdict issue as their major ground for reversal. We agree that this is the most troublesome of the three issues. Our analysis of this issue must encompass an individualized treatment of the evidence as it relates to each individual co-employee Defendant.
We begin with Defendant Partain, who at the time of the accident maintained an office in Cedartown, Georgia, and who had general, administrative responsibility for the company-wide safety program.
Appellees/Plaintiffs have invited our attention to the following excerpts from the record as supportive of the judgment against Partain:
Partain contends that his general superintendence of the overall safety program for his employer did not impose upon him the individualized duty to personally inspect or to otherwise have personal familiarity with each item of the company's equipment; that, in fact, he had never seen the truck involved in this accident; and therefore that the co-employee test of liability set out in Fireman's Fund American Ins. Co. v. Coleman, 394 So. 2d 334 (Ala.1980), and followed by Welch, supra, has not been met. We agree. We find that Partain's general administrative responsibility for company-wide safety, under the instant facts, bears such a remoteness to the specific defect which proximately resulted in Plaintiffs' injuries as to entitle Partain to a directed verdict at the close of the evidence, and failing this, to a JNOV.
We understand and appreciate the position of Appellees/Plaintiffs that Partain's own testimony (quoted above) made out a jury issue as to his liability. Appellees *1118 point specifically to his testimony to the effect that it was his duty "to see that the safety program and procedures were implemented and followed," and that "part of that safety program was that no unsafe conditions were allowed to exist." We reject Appellees' contention because we are unable to conclude that this testimony raises a reasonable inference of personal and individual culpability for the defective and unsafe condition of the truck which resulted in their injuries.
Next, we consider the liability of Kennemer, driver of the vehicle in question and the immediate supervisor of the injured Plaintiffs. An overview of the pertinent facts surrounding the accident is dispositive of this issue. Kennemer, as truck driver and foreman, and McFann and Broughton, as laborers, were assigned by their employer, Wright and Lopez, to set anchors for telephone poles on top of Keel Mountain in Madison County on July 25, 1980. They drove to the worksite in a two-year-old, two-ton truck outfitted with pole-setting equipment, including an air compressor mounted on a trailer. The trailer weighed between 3000 and 3600 pounds and was not equipped with brakes of any sort. Neither the speedometer nor the emergency brake on the truck was operative.
On the return trip from the jobsite, at the point of a curve about halfway down the mountain, with the truck operating in its third forward gear, the brakes failed completely, and, upon Kennemer's attempt to downshift, the clutch also failed. Kennemer was able to maneuver the truck about another half mile down the mountain before it crashed into a rock embankment. Experts testified to the effect that, under the totality of the circumstances, the lack of any brakes on the trailer, the inoperative speedometer and emergency brake system on the truck, and the failure of Kennemer to properly gear the truck down at the beginning of the descent of the mountain, were all contributing causes of the wreck.
In view of Kennemer's intimate familiarity with the truck over a period of several months and the circumstances under which he was operating it at the time of the accident, we have no difficulty in concluding that the trial judge did not err in denying Kennemer's motion for a directed verdict or JNOV. The evidence of Kennemer's liability was more than sufficient to meet the test of Fireman's Fund and Welch, supra.
Having concluded that the evidence was insufficient to sustain the judgment against Partain because of the remoteness of his duties with respect to the ultimate instrumentality of harm to the injured Plaintiffs, and having concluded to the contrary with respect to Kennemer's direct connection to the accident and the resulting injuries, we now direct our consideration to the remaining supervisory employees. Admittedly, Jenkins, as assistant area manager of Alabama operations, and Wallace, as supervisor of various foremen in North Alabama, with respect to their liability to the Plaintiffs, occupy some middle ground between the two extremes represented by Kennemer and Partain.
While the contrast between Partain's no-liability status and Kennemer's liability status, when viewed from the perspective of the sufficiency of the evidence, is readily apparent, the resolution of Jenkins's and Wallace's liability is more difficult. The evidence of record, however, reveals that the factual issue determinative of the two supervisors' liability is more closely akin to that of Kennemer than to that of Partain. While neither Jenkins nor Wallace was actively involved in the operation of the truck at the time of the accident, they each had personal knowledge that the truck in question was not equipped with an operative emergency brake system, that the trailer was equipped with no brakes, and that the condition of the truck being operated by Kennemer at the time of the accident was in direct violation of the company safety manual's requirement that "all rubber tire vehicles must have service brakes, emergency brakes, and parking brake systems in good service."
*1119 We appreciate the serious contention made by Jenkins and Wallace that they stand in the same no-liability shoes as Partain. They argue that Partain's delegation of responsibilities for safety to them was further delegated by them to truckdriver Kennemer. The facts supportive of Partain's position, however, are dissimilar to the facts surrounding the immediacy of the duties delegated to Jenkins and Wallace. Each of them had first-hand knowledge of the very defect which was a contributing cause to the injuries suffered by McFann and Broughton. Thus, as with Kennemer, we find no error in the trial court's denial of a directed verdict and JNOV as to Jenkins and Wallace.
We find no merit in the contention of Appellants/Defendants that the "Rules of the Road" instructions were improperly given because the Plaintiffs failed to prove that the accident in question occurred on a public highway. The record is replete with evidence, including maps of the area, from which the jury could reasonably infer that Keel Mountain Road is a public highway. Code 1975, § 32-1-1.1(23); Davenport v. Cash, 261 Ala. 380, 74 So. 2d 470 (1950).
AFFIRMED AS TO DEFENDANTS KENNEMER, JENKINS, AND WALLACE. REVERSED AND JUDGMENT RENDERED AS TO DEFENDANT PARTAIN.
FAULKNER, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
TORBERT, C.J., and MADDOX, J., concur specially.
BEATTY, J., concurs in part and dissents in part.
MADDOX, Justice (concurring specially).
Even though I believe that Grantham v. Denke, 359 So. 2d 785 (Ala.1978), which authorizes co-employee suits by persons covered by the Workmen's Compensation Act, was incorrectly decided (see my reasons in my dissenting opinion in that case), I can see no just reason to continue dissenting in like cases, especially in view of the fact that the legislature has now addressed the question of co-employee suits in Alabama by adopting legislation which affects those suits. Act No. 85-41, Acts of Alabama, adopted January 9, 1985, Second Special Session, 1984.
TORBERT, C.J., concurs.
BEATTY, Justice (concurring in part; dissenting in part):
I concur in the majority opinion except as to that part which deals with the liability of defendant Partain.
It is true that the testimony of defendant Partain indicates that as safety director, his general administrative duty was to implement the safety programs. However, he also testified that "it was a part of [his] duties to attempt to furnish a reasonably safe place and safe equipment" for the employees. Thus, Partain's duty was to do more than act as a mere supervisor of others; his duty was to actually furnish safe equipment, etc. This testimony provided at least a scintilla of evidence necessary to prove that Partain had a personal duty toward the injured employees themselves and not merely a general administrative duty. Therefore, the co-employee test of liability was in fact met.
[1] The third Plaintiff is McFann's wife, Kathy, the validity of whose loss of consortium judgment, of course, rests upon the merits of her husband's case.
[2] There follows an analysis of how co-employees may become liable for breach "of a duty that the employer owed the employee when the employer's duty is delegated to or is assumed by supervisors or officers." Id., at 650. | March 15, 1985 |
ce47c810-96cd-48a4-bbc0-eb0c59715ad1 | Warwick Development Co., Inc. v. GV CORP. | 469 So. 2d 1270 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 1270 (1985)
WARWICK DEVELOPMENT COMPANY, INC.
v.
The GV CORPORATION and Grayson Valley Golf and Country Club, Inc.
The GV CORPORATION
v.
WARWICK DEVELOPMENT CO., INC., Claude H. Grayson and Grayson Valley Golf & Country Club, Inc.
82-206, 83-570.
Supreme Court of Alabama.
March 8, 1985.
Rehearing Denied April 5, 1985.
*1272 Samuel Maples of Corretti & Newsom, and W.L. Longshore, Jr. of Longshore & Longshore, Birmingham, for appellant/cross-appellee.
Walter Fletcher and Carleton P. Ketcham, Jr. of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for The GV Corporation.
William B. Lloyd, Jr., and Richard C. Fruechtenicht of Lloyd, Ennis & Lloyd, Birmingham, for Grayson Valley Golf & Country Club, Inc.
PER CURIAM.
Rehearing is granted; the case is submitted for consideration by the entire court. The opinion of September 21, 1984, is withdrawn, and this opinion is substituted in its place.
Defendant/Appellant Warwick Development Company, Inc. (Warwick), appeals from an adverse judgment entered on a jury verdict in favor of Plaintiffs/Appellees GV Corporation (GV) and Grayson Valley Golf and Country Club, Inc. (Club). The Plaintiffs alleged, and the jury found, that Defendant Warwick had trespassed upon Plaintiffs' property, interfering with a lease agreement and causing irreparable damage to the golf course situated on the property. The jury assessed damages, by way of separate verdicts, in the aggregate amount of $70,000 for trespass, breach of the lease agreement, and abuse of process.
GV cross-appeals from the trial court's order granting motions for directed verdicts in favor of Warwick and Claude H. Grayson on Count IV of GV's complaint. Count IV alleged that Grayson and Warwick were liable for fraud in misrepresenting the acreage encompassed in the lease and option-to-purchase agreement.
We affirm as to the appeal and reverse as to the cross-appeal, and remand this cause to the trial court for a new trial as to Count IV.
On December 1, 1976, Warwick entered into a written agreement with Grayson, leasing to him certain real property situated in Jefferson County, Alabama, for use as a golf course. The lease included an option to purchase the real property on certain terms and conditions, and required payment of ad valorem taxes as additional rent. On November 11, 1977, Grayson, with Warwick's permission, assigned his lease and option to Richard Widick and Bobby Lepper at an advertised voluntary public auction. Subsequent to the auction, but before closing the sale, Widick and Lepper and their wives formed the GV Corporation. GV ratified the auction contract and took the assignment from Grayson. Widick and Lepper and their wives then sold their ownership interests in GV Corporation to four other individuals.
In late 1979, Warwick began plans for installation of a sewer line across certain *1273 parts of the golf course in order to further develop land surrounding the golf course owned by Warwick but not included in the lease. Warwick surveyed and staked out the location of the sewer line across the golf course in December 1979, and executed a sewer easement to Jefferson County on December 31 of that year.
On January 24, 1980, James Grayson, Claude Grayson's son and president of Warwick, called the Club concerning the timetable for installing the sewer lines. The manager, who was not a member or stockholder of the Club, responded that he would cooperate in the laying of the sewer. The manager instructed Grayson to contact the person in charge of work on the golf course when construction was to begin.
Construction of the lines began after Warwick guaranteed, in writing, that any damage to the course would be properly repaired and paid for by Warwick. Construction continued for approximately four weeks, until the golf course manager ordered the work stopped.
GV filed suit against Warwick for trespass and breach of the lease agreement. GV also sought injunctive relief to prohibit further trespass and to require removal of the sewer lines which were laid on the golf course.
In October 1980, a $33.68 tax notice was mailed to Warwick, which had previously changed the tax assessment from Grayson to Warwick. Warwick did not pay the taxes due, nor did it mail the notice to GV. The property was sold for taxes, whereupon Warwick redeemed the property, and sent GV a notice of eviction for failure to pay the taxes. The notice read in part as follows:
Following the notice of eviction, Warwick counterclaimed against GV and the Club, which had previously been allowed to intervene as a party plaintiff, claiming unlawful detainer and demanding possession of the premises. GV and the Club amended the complaint to charge Warwick with abuse of process and demanded compensatory and punitive damages. Prior to trial, a survey was conducted which showed that the 2.7 acres of Warwick's land surrounding the leased property, but not within the property description of the lease, was being used as a golf playing area. Warwick again amended its counterclaim seeking ejectment against GV and the Club with regard to this 2.7 acres. Additionally, Warwick requested reformation of the lease to increase the rental payment due Warwick from GV for this acreage. GV and the Club again amended the complaint, to claim fraud on the part of Warwick and to add Grayson as a party defendant. GV and the Club claimed that Warwick and Grayson had misrepresented the correct acreage contained in the lease at the time of its assignment by Grayson to the promotors of GV.
At trial, following the close of all the evidence, the trial judge directed verdicts in favor of Grayson and Warwick on the fraud issue. The directed verdict effectively dismissed Grayson from the lawsuit. The jury returned verdicts favorable to GV and the Club on all remaining issues. The court, in its final decree, awarded use of *1274 the disputed property outside the leasehold to Plaintiffs.
Warwick advances several theories to support a reversal of the judgment below. After careful analysis of the lengthy briefs and voluminous record, we deem it necessary, in regard to the appeal, to discuss only Warwick's claim that the trial judge's failure to dismiss the abuse of process claim brought by GV and the Club constitutes reversible error.
Warwick's initial position that an underlying action of some sort must terminate in the plaintiff's favor before an abuse of process action can be maintained is misplaced. Abuse of process is often confused with the tort of malicious prosecution. Several important elements, however, distinguish the two. The chief distinction is that in an action for malicious prosecution the original action must terminate in favor of the plaintiff. An abuse of process action, on the other hand, does not require termination in favor of the person bringing the action; in fact, abuse of process does not even require termination of the suit. The reason for the distinction is that malicious prosecution concerns the wrong in the issuance of the process, while abuse of process rests on the wrongful use of the process after it has been issued. Wilson v. Brooks, 369 So. 2d 1221 (Ala.1979); Clikos v. Long, 231 Ala. 424, 165 So. 394 (1936); Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986 (1912). An abuse of process action "presupposes an originally valid and regular process, duly and properly issued, and the validity of the process is no defense to an action for its abuse." Farm Country Homes, Inc. v. Rigsby, 404 So. 2d 573, 576 (Ala.1981). See also Board of Education v. Farmingdale Classroom Teacher Association, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975), for a good discussion of the evolution of the tort.
GV and the Club filed their abuse of process claim following Warwick's amendment to its counterclaim seeking to eject GV and the Club from the premises for failure to pay a portion of the ad valorem taxes. Here, the "process" issued with the filing of the counterclaim by Warwick, not with the letter notice sent to GV declaring the lease null and void. The burden is on the plaintiff to show that the process was issued for an illegal purpose.[1] The defendants contend that because they had some reason to test the validity of the lease, the filing of the counterclaim contesting the validity does not constitute abuse of process. However, we do not believe that the resolution of the issue of whether there was an abuse hinges on whether there is a valid use for which process could be used, but whether there was an ulterior purpose in filing this action and a willful act in the use of the process not proper in the regular conduct of the proceeding. Reynolds v. McEwen, 416 So. 2d 702 (Ala.1982). For example, in Board of Education v. Farmingdale Classroom Teacher Association, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975), the court held there was abuse of process when an attorney subpoenaed 87 teachers as witnesses for a hearing when it was proven that it was done for the ulterior purpose of harassment and intent to injure the Board of Education. Obviously, he had a right to subpoena witnesses for the hearing. The court held, "[w]here process is manipulated to achieve some collateral advantage, whether it be denominated extortion, blackmail or retribution, the tort of abuse of process will be available to the injured party." Id., 38 N.Y.2d at 404, 380 N.Y.S.2d at 643, 343 N.E.2d at 283.[2] A *1275 typical case of abuse of process is where criminal proceedings are started for the purpose of collecting a debt. Tolbert v. State, 294 Ala. 738, 321 So. 2d 227 (1975); Hotel Supply Co. v. Reid, 16 Ala.App. 563, 80 So. 137 (1918); see generally W. Prosser, Handbook of the Law of Torts § 121 (4th ed. 1971). The fact that there was a proper use for the criminal proceedings would not be a defense to an abuse of process action.
In this case plaintiff contends that defendants' only purpose for filing the unlawful detainer claim was retribution for being sued. There is evidence from which the jury could infer that the defendant orchestrated the non-payment of taxes so as to set up the unlawful detainer claim. James Grayson testified to the following at trial:
As this exchange shows, prior to being sued defendants had cooperated in allowing plaintiffs to pay the taxes. After being sued they did not do so because of the fact that they were being sued. The failure to pay taxes was the basis of the unlawful detainer claim. Therefore, this claim would not call into question the validity of the lease at the time plaintiffs' claims arose. The jury could infer from this that upon being sued the defendant created a claim and sued plaintiffs in retribution.
We believe that under these facts there was sufficient evidence from which the jury could find that defendants initiated the unlawful detainer proceedings as retribution for plaintiffs' having sued the defendants and not to test the validity of the lease. Therefore, the judgment for plaintiffs is affirmed.
GV contends that the trial judge erred in directing verdicts in favor of Grayson and Warwick on the fraud count. Thus, the issue presented on the cross-appeal is whether a scintilla of evidence was presented at trial to support GV's assertion that a misrepresentation was made by Grayson to the promoters of GV and that the misrepresentation was relied upon by GV, thereby causing GV to be damaged. There is ample evidence of record from which the jury could reasonably conclude that a misrepresentation, however innocent, was made; and, that because of that misrepresentation, GV was unable to exercise the option to purchase the golf course contained in the lease.
The evidence shows that Grayson owned the lease on the golf course as of October 27, 1977. Subsequent to that date, he placed his leasehold interest in the golf course property and its accompanying clubhouse facilities for sale at a public auction. The brochures and other materials distributed for the sale included a map of the golf *1276 course as it was actually being played at the time of the sale. Unknown to Grayson, or to the purchasers of the lease, Grayson held an accompanying option to purchase 2.7 acres of land which was being used as a golf playing area, but which was not contained in the legal description of the leased property.
The lease and option were purchased by Widick and Lepper. They, along with their wives, formed GV Corporation for the express purpose of owning, operating, and maintaining the golf course. GV, with the express permission and consent of Grayson and Warwick, assumed and took an assignment of Widick's and Lepper's bid rights. GV ratified the contract and closed the sale with Grayson. In the process, Widick and Lepper and their wives transferred their ownership rights in GV to four other individuals.
The trial judge directed a verdict in favor of Grayson and Warwick on the fraud count, not because there was no misrepresentation, but because the purchase by GV separated GV from the transaction. This analysis is misplaced. A corporation can act only through its officers and agents. Even though promoters or initial incorporators are not technically agents of the corporation to be formed, once the corporation is formed and the new corporation ratifies the acts of its promoters and incorporators, the corporation succeeds to all the rights and remedies, as well as the liabilities, which the promoters and initial incorporators had acquired before incorporation.
Although we find no Alabama decisions on this point, we quote with approval the following language from 18 C.J.S. Corporations § 123 (1939):
The fact that the incorporators sell their interest in the corporation to others does not create another step that separates the promisor from the promisee. It is the corporation, not the individual incorporators or their assignees, that here asserts its misrepresentation claim.
Alternatively, Warwick contends that GV's fraud claim must fail for lack of proof of damages. But Warwick's assertion that it never objected to GV's use of the entire golf course (including the 2.7 contested acres) speaks only to one part of the agreementthe lease of the premises. The other, an equally important part of the agreement, concerns the option to purchase the golf course property at a specified time at a specified price. Because of the disputed acreage, Warwick refused to honor the agreed-upon option. Moreover, Warwick's efforts to evict GV from the property is hardly consistent with the "lack of objection to GV's use" argument.
Because the trial judge erred in directing verdicts in favor of Grayson and Warwick on GV's fraud claim, we reverse the judgment and remand the cause as to that issue. Therefore, on remand, a new trial is ordered on GV's fraud claim.
REHEARING GRANTED; OPINION OF SEPTEMBER 21, 1984, WITHDRAWN; OPINION SUBSTITUTED.
AFFIRMED AS TO THE APPEAL.
REVERSED AND REMANDED AS TO THE CROSS-APPEAL.
TORBERT, C.J., and MADDOX, ALMON, SHORES and BEATTY, JJ., concur.
*1277 FAULKNER, JONES, EMBRY and ADAMS, JJ., concur as to the cross-appeal and dissent as to the appeal.
JONES, Justice (concurring in part and dissenting in part).
I agree with the Court's opinion in all its aspects except one. I respectfully disagree with what I perceive to be an extension of the cause of action for abuse of process. Previously, ulterior motive, coupled with frivolousness of the claim, has not been the test of Alabama's version of this tort.
Citing Reynolds v. McEwen, 416 So. 2d 702 (Ala.1982), the Court formulates the test: "[T]he resolution of the issue of [abuse of process] hinges on ... whether there was an ulterior purpose in filing this action and a willful act in the use of the process not proper in the regular conduct of the proceeding." The opinion then proceeds to emphasize the first prong of the test without again mentioning the second prong. Here, contrary to the factual premise of Reynolds (a malicious prosecution case), there was no improper use of the process in the regular conduct of the proceeding.
In the instant case, although the purpose may have been unfounded on its merits, and one on which GV ultimately would prevail, its purpose was the very one Warwick sought to achieve: to contest the validity of the lease on the ground that GV failed to pay $33.68 in taxes. In other words, however weak or ineffectual Warwick's affirmative claim or defense of GV's nonpayment of taxes may have been, nonetheless, in my opinion, the requisite element of unlawful or abusive purpose for which the process was issued has not been shown.
The wisdom of issuing the process is not the test of its abusiveness or its propriety. While the evidence is replete with reasonable inferences of Warwick's breach of the lease agreement and of its trespass upon the leasehold, Warwick's counterclaim, seeking relief on grounds of GV's alleged breach, albeit a weak claim, is not so devoid of merit, as a matter of law, as to impugn the legality of its use and thus constitute abuse of process. Farm Country Homes, Inc. v. Rigsby, 404 So. 2d 573 (Ala.1981), is factually distinguishable from the instant case in that the abuse of process defendant in Rigsby willfully and improperly used the process in the regular course of the proceedings.
Here, while Warwick's amendment to its counterclaim sought to eject GV and the Club from the lease premises (based on the alleged breach), no order of ejectment, interlocutory or otherwise, ever issued; and no interference with the person or property of either of the Appellees resulted from the unlawful detainer suit. Dempsey v. Denman, 442 So. 2d 63, 65 (Ala.1983). In other words, Warwick's claimed breach of the lease for nonpayment of taxes, with its prayer for ejectment based on such breach, was a mere pleading in the ongoing litigationa pleading upon which Warwick did not ultimately prevail.
Ironically, the majority opinion relies upon Professor Prosser's explanation of the tort of abuse of process (also quoted in Reynolds):
A word of caution to Bench and Bar: Facts from which ulterior motive may be *1278 gleaned, coupled with a frivolous claim, now constitutes a valid claim for abuse of process. No longer must the abuse of process plaintiff show that the defendant willfully used the process, which he caused to be issued, for an improper purpose in the regular course of the proceeding. By eliminating this "illegal use" or "improper act" element, the Court, in effect, has now created a cause of action for malicious prosecution without the requirement that the former action be terminated in favor of the plaintiff in the subsequent action.
I must say, in conclusion, that if I were in agreement with the newly-created cause of action, I would then agree that the instant facts comport with the opinion's prescribed test of such a claim.
[1] It should be noted that the word "purpose," when used in this context, does not mean the original purpose for which the process may legally be employed, but the illegal purpose for which, in fact, the process was used.
[2] Arguably, Rigsby, supra, was a case where the court found that no proper use of the garnishment and ejectment proceedings existed because they grew out of fraudulent and deceitful conveyances. However, as stated, we do not believe that such a finding is a prerequisite to establishing an abuse of process claim. | March 8, 1985 |
f1930c7e-55ae-465a-9388-d24271c910b6 | Ex Parte Kerr | 474 So. 2d 145 | N/A | Alabama | Alabama Supreme Court | 474 So. 2d 145 (1985)
Ex parte Ronald Lee KERR.
(In re: Ronald Lee Kerr v. State of Alabama).
83-1342.
Supreme Court of Alabama.
March 8, 1985.
Rehearing Denied May 10, 1985.
*146 Donald R. Rhea and Clarence F. Rhea, Rhea, Boyd & Rhea, Gadsden, for petitioner.
Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for respondent.
PER CURIAM.
We granted Petitioner's request to review the Court of Criminal Appeals' affirmance of his conviction for violating Code 1975, § 20-2-80 (trafficking in cannabis). 474 So. 2d 142, appealing after remand 416 So. 2d 781. Our grant of the writ was grounded on Petitioner's claim that the trial court erred in refusing his requested jury instruction on lesser included offenses. We reverse and remand.
The facts of the case are fully reported in the Court of Criminal Appeals' opinion and will be referred to here only to the extent necessary to our holding. The Court of Criminal Appeals, in affirming the trial court's denial of Petitioner's request for a charge on lesser included offenses, used the following language:
The problem with the Court of Criminal Appeals' analysis of the issue lies in its assumption that the propriety of a lesser-included-offense charge is tested by whether the evidence supports the higher offense. Rather, the appropriate test is whether there was evidence to support a finding of a lesser included offense. If the instant jury had believed the accused's defense theorythat he possessed the quantity of marijuana found beside him on the car seat and that he had no knowledge of the contents of the duffel bag in the trunkit would have been justified in returning a verdict of guilty pursuant to § 20-2-70. Here, the evidence would support a finding under either § 20-2-70 or § 20-2-80. The fact that the indictment was returned under § 20-2-80 and the further fact that the evidence is sufficient to support a guilty verdict pursuant to that higher offense, do not preclude the giving of a lesser-included-offense charge.
As we stated in Fulghum v. State, 291 Ala. 71, 277 So. 2d 886 (1973), "A defendant who is accused of the greater offense is entitled to have the court charge on the lesser offenses included in the indictment, if there is any reasonable theory from the evidence which would support the position." Indeed, Fulghum finds its mandate in Code 1975, § 13A-1-9:
Conduct proscribed by § 20-2-70 is clearly a lesser offense included in the criminal conduct addressed in § 20-2-80; and a jury instruction to that effect is required, where requested, if any reasonable theory of the evidence supports a finding of the lesser offense. Here, the absence of a lesser included offense charge left the jury without the option of finding the accused guilty of violating § 20-2-70 in accordance with his own theory of possession of less than 2.2 pounds for his personal use.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.
MADDOX and BEATTY, JJ., dissent.
BEATTY, Justice (dissenting):
The majority holds that the defendant Kerr was entitled to a charge on the lesser included offense of possession for personal use under Code of 1975, § 20-2-70, because the jury could have believed Kerr's defense "that he possessed the quantity of marijuana found beside him on the car seat [less than 2.2 pounds], and that he had no knowledge of the contents of the duffel bag in the trunk [substantially over 2.2 pounds]." Although Kerr argues this point in brief, there is nothing properly before this Court which indicates that such a defense was raised at trial. The opinion by the Court of Criminal Appeals makes no mention of the defense relied on by Kerr. That opinion merely states that more than seven pounds of marijuana was found in Kerr's car, some in the front seat, the remainder in the trunk. Kerr did not file a Rule 39(k), A.R.A.P., motion to present for our consideration any additional facts. Therefore, the only facts upon which this Court can base its review are those recounted by the Court of Criminal Appeals. Ex parte Bates, 461 So. 2d 5 (Ala.1984); Rule 39(K). Under those facts, the Court of Criminal Appeals was correct in holding that Kerr was not entitled to a charge on possession for personal use under § 20-2-70. See Beasley v. State, 408 So. 2d 173 (Ala.Crim.App.1981), cert. denied, 408 So. 2d 180 (Ala.1982).
MADDOX, J., concurs.
[1] Beasley was not concerned with the propriety of a lesser-included-offense charge. To be sure, the trial court in Beasley instructed the jury that the accused could not be found guilty under § 20-2-70 if he possessed more than 2.2 pounds of marijuana. Thus, the charge approved in Beasley is consistent with our instant holding that the trial court erred in refusing Kerr's request for a lesser-included-offense charge. | March 8, 1985 |
11a4d5ac-4f4a-480f-b744-f69c0cad9730 | Pacheco v. Paulson | 472 So. 2d 980 | N/A | Alabama | Alabama Supreme Court | 472 So. 2d 980 (1985)
Carol S. PACHECO
v.
Sally L. PAULSON.
No. 84-25.
Supreme Court of Alabama.
May 31, 1985.
*981 Steven D. Tipler of Tipler, Roden & Hayes, Birmingham, for appellant.
Julian P. Hardy, Jr. and Deborah S. Braden of Yearout, Hardy & Myers, Birmingham, for appellee.
SHORES, Justice.
The plaintiff in a personal injury action appeals from a judgment of the trial court denying her motion for new trial after a jury returned a verdict in favor of the defendant. We affirm.
On December 23, 1982, Carol Pacheco (plaintiff) was stopped in her automobile at an intersection in the City of Birmingham when Sally Paulson (defendant) bumped her automobile into plaintiff's rear bumper. Both women inspected the automobiles, and Ms. Paulson noted a small dent in Ms. Pacheco's bumper. Their testimony differed on the size of the dent, Ms. Pacheco describing it as about the size of her hand, and Ms. Paulson describing it as about the size of her thumb. A policeman was called, but did not write an accident report because city policy was not to write a report if the damage was less than $200. The bumper was later replaced for $190.00. Although there was a conflict in the evidence as to whether Ms. Pacheco told both Ms. Paulson and the policeman that she was not hurt, both women drove their cars home. The plaintiff's teenaged daughter was in the passenger seat of her mother's car and was not hurt.
Ms. Pacheco testified that she began to experience pain in her neck later on that night and went to an emergency center, where she was X-rayed, placed in a cervical collar, and given medication for pain. She testified that she was unable to work for four weeks and that she consulted an orthopedic specialist three weeks after the accident because she continued to experience pain. This physician X-rayed Ms. Pacheco and sent her to physical therapy. Although he found no objective explanation for the pain, based upon the history that the patient gave him, his opinion was that it was a result of cervical strain.
Ms. Pacheco returned to work after four weeks, on January 24, 1983. Thereafter, in August 1983, a bone scan and CAT scan were performed on her, both of which were normal. Suit was filed on September 30, 1983. Thereafter, in March 1984, Ms. Pacheco enrolled in a pain management center, where she was treated by a clinical psychologist. No physical basis for her pain was ever found.
These facts were largely undisputed. What was disputed, and strenuously, was whether the pain and suffering were psychological and, if not, whether they were the result of the accident.
The only issue before us is the propriety of the trial court's order denying the plaintiff's motion for a new trial. The determination of the propriety of that order turns on whether the issue of proximate cause was one for the jury under these facts. The defendant did not deny that she bumped into the plaintiff's automobile. She concedes that, under Alabama law, she had a duty, on approaching an intersection, to have her automobile under control so as not to bump into another automobile. Gribble v. Cox, 349 So. 2d 1141 (Ala.1977). It is precisely this case which the plaintiff contends requires the trial court to order a new trial. The plaintiff is correct in saying that Gribble reversed a trial court order refusing to grant a new trial in a rear-end collision case. However, significantly, in that case, the Court expressly said:
349 So. 2d at 1144.
Although it is true that the defendants in Gribble argued that the plaintiffs did not suffer injury as a result of the accident, just as the defendant here argues that this plaintiff suffered no injury as a *982 result of this accident, in that case, unlike this one, the plaintiffs offered expert evidence to the effect that the accident was the cause of the injuries complained of. Here, there is no direct evidence that the accident caused the injury. This is not to say that there was no evidence from which the jury could have found that the accident was the proximate cause of the alleged injury, but simply to point out that the question of proximate cause of the alleged injury was one for the jury.
The trial court recognized that a jury issue was presented on the issue of proximate cause by denying the defendant's motion for directed verdict, and submitted the case to the jury on a correct charge as to the law applicable to the case. The jury could have, under the evidence, returned a verdict in favor of the plaintiff; that is to say, under the evidence, the jury could have believed the plaintiff's version of the case, including her claim that she suffered pain and discomfort for more than a year following the accident, and that the pain and discomfort resulted from the accident. However, the jury was also free, under the evidence, to believe that, although the defendant was negligent in bumping into the plaintiff's automobile, that negligence did not cause injury to the plaintiff or, alternatively, that any subsequent pain and suffering which the plaintiff experienced were not the proximate result of the defendant's negligence. We have no way of knowing which version the jury believed. But, as we have said, the only question before us is whether the trial court abused its discretion in refusing to grant the plaintiff another trial on the ground that the verdict was against the weight and preponderance of the evidence. We hold that it did not.
We have carefully examined recent decisions from this Court involving rear-end collisions. In Glanton v. Huff, 404 So. 2d 11 (Ala.1981), this Court reversed a trial court order which denied the plaintiff's motion for new trial. Not surprisingly, the plaintiff/appellant here contends that Glanton requires a reversal. However, in that case, there was direct evidence that the negligence of the defendant caused the plaintiff's injury. The Court said:
404 So. 2d at 13.
Again, this case is distinguishable in that there was a conflict in the evidence as to whether the pain suffered by the plaintiff, if the jury believed she suffered any, was caused by the defendant's negligence. Therefore, whether to grant a new trial was a matter for the trial court's discretion. Our sole role is to determine whether that discretion was abused. We hold that it was not. That is not to say that, had the trial court granted the plaintiff's motion for new trial, it would have abused its discretion. In Clinton v. Hanson, 435 So. 2d 48 (Ala.1983), this Court did affirm a trial court order granting a plaintiff a new trial in a rear-end case. In that case, the jury specifically found that the defendant was not negligent. That verdict was found by the trial court to be unjust under those facts, where, under the applicable law, the defendant was negligent in the operation of his automobile when he ran into the plaintiff's *983 stopped van. Likewise, there it was uncontroverted that the accident resulted in injury to the plaintiff.
It is true, as Justice Almon said, speaking for the Court in Glanton v. Huff, supra, that a jury is free to determine the extent of a plaintiff's injuries, but not free to ignore the fact that she was injured, so long as there is no dispute in the evidence as to the fact of injury or not, or, alternatively, where there is no dispute as to the cause of the injury, which was the situation in Glanton. However, where there is a factual dispute as to whether there was injury or whether, if so, it was proximately caused by the acts of the defendant, it is peculiarly within the province of the jury to resolve those conflicts. In this case, the jury resolved those disputed facts in favor of the defendant. We hold that the trial court did not abuse its discretion in refusing to grant the plaintiff a new trial.
The judgment appealed from is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur. | May 31, 1985 |
a9c2db64-e095-492a-b33c-4dc14372113b | Upton v. Mississippi Valley Title Ins. Co. | 469 So. 2d 548 | N/A | Alabama | Alabama Supreme Court | 469 So. 2d 548 (1985)
W. Dave UPTON and Ann Y. Upton
v.
MISSISSIPPI VALLEY TITLE INSURANCE COMPANY.
MISSISSIPPI VALLEY TITLE INSURANCE COMPANY
v.
V.C. HANDY, Bobbie L. Handy, Homer L. Dobbs, and Peggy R. Dobbs.
MISSISSIPPI VALLEY TITLE INSURANCE COMPANY
v.
W. Dave UPTON and Ann Y. Upton.
83-582, 83-585 and 83-1034.
Supreme Court of Alabama.
February 22, 1985.
Rehearing Denied April 5, 1985.
*549 Charles R. Driggers of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellants/cross-appellees W. Dave Upton and Ann Y. Upton.
Larry O. Putt of Smyer, White, Taylor, Putt & Campbell, Birmingham, for appellant/cross-appellee Mississippi Valley Title Ins. Co.
Douglas Corretti and Mary Douglas Hawkins of Corretti & Newsom, Birmingham, for appellees V.C. Handy, Bobbie L. Handy, Homer L. Dobbs, and Peggy R. Dobbs.
Rehearing Denied in 83-585 April 5, 1985.
BEATTY, Justice.
These consolidated appeals are from judgments entered in Jefferson Circuit *550 Court against the appellants herein, Mississippi Valley Title Insurance Company and W. Dave Upton, in an action to determine liability for an undisclosed and unrecorded easement. We reverse and remand.
In August 1974, W. Dave Upton and Roger D. Grubbs, who were business partners, purchased a parcel of land containing over 272 acres situated in Shelby County, Alabama (hereinafter referred to as the "subject property"). The property was purchased for a cattle farm. Grubbs lived on the property and handled the day-to-day operation and management of the farm.
On January 23, 1975, Upton was served a copy of a complaint filed in Shelby Circuit Court against himself and Grubbs. The complaint, filed by Shelby County and other named plaintiffs, sought to enforce an easement over the subject property. Because Upton considered himself a passive investor in the property, and because Grubbs handled all the business matters relating to the property, Upton contacted his partner and turned the matter over to Grubbs, who hired an attorney to handle the case. Upton did not in any way participate in the litigation: he never had any communication with the attorneys involved, and he never received a copy of the final judgment entered on November 6, 1975, granting the plaintiffs the easement or right-of-way they sought. This judgment was filed in the office of the clerk of the Shelby Circuit Court, but was never recorded in any record book in the office of the probate judge of Shelby County.
On July 11, 1978, Grubbs began bankruptcy proceedings. Upton continued to pay the partnership debts and began looking for a buyer for the subject property. He contacted Homer Dobbs about purchasing the property. Upton met Dobbs and they drove over the property together, during which time Upton claims that he told Dobbs that his (Upton's) partner, Grubbs, had agreed not to lock a certain gate so as to allow a Mr. Roy Holcomb and his hunting club access over the property. Dobbs and Handy denied this and further denied any knowledge whatsoever of any rights of ingress and egress over the property. Upton did not tell Dobbs that Holcomb and his hunting club, as well as others, had obtained a judgment granting them that right-of-way, because, Upton claims, he had not known about the judgment, and, at that time, had thought the matter was settled by a mere agreement between Grubbs and Holcomb.
On August 15, 1978, Upton, as seller, and Homer and Peggy R. Dobbs (Dobbs), and V.C. and Bobbie L. Handy (Handy), as buyers, contracted for the sale of Upton's one-half interest in the subject property, contingent on a similar sale by Grubbs's trustee in bankruptcy. The sales contract required Upton to furnish Handy and Dobbs title insurance in the amount of the total purchase price. Upton contracted with Mississippi Valley Title Insurance Company (Mississippi Valley), to have it issue an interim title binder and a title insurance policy on the subject property with the four grantees named as insureds under the policy.
Prior to issuing an interim title binder, Mississippi Valley performed a title search on the subject property, which entailed a search of certain public records affecting real property in Shelby County. The search included the records of the tax assessor, tax collector, U.S. Bankruptcy Court, and the probate judge's office. Mississippi Valley did not, however, search the records of the clerk of the Shelby Circuit Court. Mississippi Valley issued an interim title insurance binder to Handy and Dobbs on October 23, 1978, which was expressly made "subject to the terms, provisions, and conditions and stipulations of the form of policy applied for."[1] The binder did not list as an exception from coverage the November *551 6, 1975, judgment granting a right-of-way over the property.
Grubbs's trustee in bankruptcy conveyed Grubbs's one-half interest in the subject property to Handy and Dobbs on November 28, 1978; and on December 12, 1978, Upton conveyed by warranty deed his one-half interest to Handy and Dobbs. Mississippi Valley issued a title insurance policy to Handy and Dobbs dated December 13, 1978. This policy also did not expressly exclude the 1975 right-of-way judgment, but did exclude "easements ... not shown by the public records," as well as a "[r]ight of way for road and rights in connection therewith as granted to Shelby County, Alabama, as shown by instrument [dated December 8, 1952] recorded in Deed Book 157, page 64." Furthermore, the policy itself expressly defined "public records" as "those records which by law impart constructive notice of matters relating to said land."
Following the conveyance, a dispute arose between Upton and Handy and Dobbs relating to certain participation certificates (capital stock) in the Federal Land Bank of New Orleans. Upton contended that he did not intend for these certificates, worth approximately $13,000, to be transferred to Handy and Dobbs at the time of the conveyance of the subject property. Handy and Dobbs disputed this and claimed that they knew they were supposed to get the certificates in the deal. The dispute escalated into a lawsuit filed by Upton in the Jefferson Circuit Court, seeking reformation of the transfer of the Federal Land Bank certificates due to a mutual mistake and misunderstanding.
Handy and Dobbs filed a counterclaim against Upton, alleging a breach of the warranties of title contained in the warranty deed from Upton. Dobbs had learned of the November 6, 1975, judgment from Roy Holcomb in June 1979, and in their counterclaim, Handy and Dobbs asserted that this judgment constituted an encumbrance that had not been disclosed to them and that greatly diminished the value of the subject property. The counterclaim was severed from the reformation suit and transferred to the "law side" of the Jefferson Circuit Court, where it was tried separately. The reformation suit, which remained in the "equity side," is not a part of this appeal.[2]
Upton filed a third-party complaint against Mississippi Valley, alleging that its failure to find and list as an exception the 1975 easement judgment was a breach of both the title insurance binder and policy. Upton sought indemnification from Mississippi Valley for all sums adjudged against Upton based on the counterclaim filed by Handy and Dobbs. Later, by amendment, Upton claimed expenses and attorneys fees, alleging Mississippi Valley had a duty to defend him.
Handy and Dobbs cross-claimed against Mississippi Valley, alleging negligence in its failure to uncover an easement of public record. Handy and Dobbs further claimed that in deciding to purchase the subject property they detrimentally relied on the expertise of Mississippi Valley in its preparation of the interim title insurance binder, which failed to list the 1975 judgment as an encumbrance on the title. They also alleged that Mississippi Valley breached the title insurance policy by failing to reimburse Handy and Dobbs for the resulting reduction in the value of the subject property.
Mississippi Valley then counterclaimed against Upton, alleging a breach of the warranties of title, and sought to be subrogated to the rights of Handy and Dobbs against Upton for all sums adjudged against Mississippi Valley in favor of Handy and Dobbs.
The following illustration may be helpful in explaining the various claims of each of the parties:
*552
Mississippi Valley's motion for summary judgment was denied. Trial ensued. At the close of the trial, Handy and Dobbs dismissed their claims against Upton. Mississippi Valley and Upton each moved for a directed verdict, and both motions were denied. The jury returned a verdict of $103,000 for Handy and Dobbs against Mississippi Valley, and a verdict of $48,000 for Mississippi Valley against Upton. Judgment to this effect was entered, and all post-judgment motions were denied. Upton and Mississippi Valley appealed, and, by order dated June 5, 1984, these appeals were consolidated for hearing in this Court.
The threshold issue raised in this case is whether Mississippi Valley's appeals are due to be dismissed because its post-judgment motions were not timely filed in the proper court. Judgment was entered in this case on October 20, 1983. Mississippi Valley then filed motions for judgment notwithstanding the verdict or, in the alternative, for new trial on November 17, 1983, less than 30 days after the entry of judgment. Rule 59(b) and (e), A.R.Civ.P. These motions, however, were filed in the office of the District Court of Jefferson County, rather than the Circuit Court of Jefferson County. The motions were transmitted to the circuit court office by the district court office on November 29, 1983, more than 30 days after entry of judgment. Handy and Dobbs contend that this constituted a late filing. We disagree.
Mississippi Valley correctly points out that Rule 5(e), set forth below, governs the place for filing these post-judgment motions:
Furthermore, Code of 1975, § 12-17-160, provides that the clerk of the circuit court shall serve as the ex officio clerk of the district court, unless, pursuant to § 12-17-161, this Court authorizes a separate clerk's office for the district court:
No such written request has been submitted to this Court by the circuit court clerk or district judges of Jefferson County. Therefore, we conclude that Mississippi Valley's filing of its post-judgment motions in the district court office was a sufficient and timely filing with the clerk of the Jefferson Circuit Court under Rule 5(e), supra.
The dispositive issue in this case is whether Mississippi Valley was entitled to a directed verdict or judgment notwithstanding the verdict on both the breach of contract claim and the negligence claim asserted by Handy and Dobbs. With respect to the contract claim, Mississippi Valley argues that under the express terms of the contract of insurance, it was not required to search the records of the Shelby Circuit Court. With respect to the negligence count, Mississippi Valley argues that, apart from the contract, there is no other duty imposed by law on title insurance companies requiring them to search circuit court records. We agree with Mississippi Valley's conclusions and further agree that these issues were questions of law for the trial judge and should have been resolved in favor of Mississippi Valley. Thus, Mississippi Valley's motion for a directed verdict or judgment notwithstanding the verdict was due to be granted on all claims asserted by Handy and Dobbs.
The standard applicable to this Court's review of a trial court's ruling on a motion for directed verdict and a motion for judgment notwithstanding the verdict is the same standard applicable to the trial court. That standard is the scintilla rule. Turner v. Peoples Bank of Pell City, 378 So. 2d 706 (Ala.1979). In Wadsworth v. Yancy Bros. Co., 423 So. 2d 1343 (Ala. 1982), we adopted the following test for a motion for directed verdict:
The same test applies to a motion for judgment notwithstanding the verdict. Marion v. Hall, 429 So. 2d 937 (Ala.1983); Ex parte Bennett, 426 So. 2d 832 (Ala.1982).
Whether the scintilla rule requires that a given case go to the jury, or whether the sufficiency of the evidence supports the jury verdict, depends on the substantive law. Alabama Power Co. v. Taylor, 306 So. 2d 236, 293 Ala. 484 (1975). The trial court must decide, as a matter of substantive law, those questions on which there is no genuine issue of material fact. Rose v. Miller & Company, 432 So. 2d 1237 (Ala.1983). Moreover, a directed verdict is proper where the law would not authorize a jury to render a verdict on the evidence or where a verdict by a jury would be contrary to principles of law as applied to the facts presented at trial. O'Donohue v. Citizens Bank, 350 So. 2d 1049 (Ala.Civ.App. 1977).
As a general rule, whether or not a written contract is ambiguous is a question of law for the trial court. Smiths Water Authority v. City of Phenix City, 436 So. 2d 827 (Ala.1983). If the contract is *554 deemed to be unambiguous, the trial court must also determine the force and effect of its terms as a matter of law. Brown Mechanical Contractors v. Centennial Ins. Co., 431 So. 2d 932 (Ala.1983). Further, where there is no ambiguity in the terms of an insurance contract, it is the duty of this Court to apply its terms and enforce the contract as written. Turner v. United States Fidelity & Guaranty Co., 440 So. 2d 1026 (Ala.1983). We cannot defeat the express provisions of a policy, including any exclusion, by making a new contract for the parties. Turner, supra. This Court has consistently recognized that
Moreover, "[t]he mere fact that adverse parties contend for different constructions [of a particular policy provision] does not of itself force the conclusion that the disputed language is ambiguous." Antram v. Stuyvesant Life Ins. Co., 291 Ala. 716, 720, 287 So. 2d 837, 840 (1973).
As pointed out above, the title insurance policy in question excluded from coverage any "easement not shown by the public records." (Emphasis added.) The term "public records" is defined in the policy as "those records which by law impart constructive notice of matters relating to said land." (Emphasis added.) Mississippi Valley moved for a directed verdict on the ground that these policy provisions obligated it to search only the records of the probate court because those are the only public records which by law impart constructive notice of easements. Mississippi Valley has cited Code of 1975, §§ 35-4-51 and -63, which provide in pertinent part:
In denying Mississippi Valley's motion for directed verdict, the trial court said:
We think the trial court erred not only in denying Mississippi Valley's motion for directed verdict on the merits, but also in concluding, in essence, that, because each side contended for a different construction of the term "public records," the *555 term is ambiguous, disregarding the express and unambiguous definition of the term contained in the policy. Antram v. Stuyvesant Life Ins. Co., supra. Assuming arguendo that an ambiguity had existed, it was also error to delegate to the jury the function of construing the terms of the policy. In Aetna Life Ins. Co. v. Hare, 47 Ala.App. 478, 256 So. 2d 904 (1972), the court explained:
We find nothing ambiguous in the definition of the term "public records" contained in the policy, and therefore construction of the policy, in the usual sense, was unnecessary. Accordingly, the trial court had the duty only to construe and enforce the policy as it was written, giving it effect according to the obvious meaning of provisions expressed in unambiguous terms. Woodall v. National Life and Accident Ins. Co., 269 Ala. 606, 114 So. 2d 889 (1959). See generally 44 C.J.S. Insurance § 290 (1945).
The parties by contract clearly limited the records-search requirement with express reference to the law that determines those records which impart constructive notice. The determination of which records "by law impart constructive notice of matters relating to land" was patently a question of law for the trial court. In resolving that question, we need only to give effect to the obvious meaning of the word "law" and refer to those things of which the law is composed, namely the statutes, constitution, and case precedent of this state.[3] The only law we find declaring that certain records shall impart constructive notice of matters relating to land is Code of 1975, *556 §§ 35-4-51 and -63, set out above. We find no cases, nor are we cited to any legal precedent whatsoever in this state, that holds that any other court records, in addition to those in the office of the probate judge of any county, shall impart constructive notice of an easement in real estate.
After all, Mississippi Valley did not undertake to render a title opinion on the property, and such an undertaking would have amounted to the unauthorized practice of law. Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 299 So. 2d 289 (1974). Mississippi Valley simply insured the title to the extent it was contractually obligated to search the records, as is evidenced by the first statement contained in the title insurance binder:
Any other construction of this statement would make the binder tantamount to a title opinion.
Therefore, with respect to the breach of contract claims asserted against Mississippi Valley by Handy and Dobbs, we conclude that the trial court erred in refusing to grant Mississippi Valley's motion for directed verdict on the ground that, as to easements, the policy definition of "public records" as a matter of law limited Mississippi Valley's contractual obligation to a search only of the records of the probate judge's office.
Because we have found that the case must be reversed for the failure of the trial judge to grant Mississippi Valley's motion for directed verdict on the policy definition of public records, we need not reach the question of whether the easement in question constituted a lien or encumbrance upon the purchaser's title, and, thus, whether it was within the scope of coverage under the policy of insurance which expressly excluded marketability.
Handy and Dobbs contend that it is the necessity, obligation, duty, and responsibility of a title insurer such as Mississippi Valley to examine and search the records of the circuit clerks and registers, notwithstanding the provisions to the contrary contained in the contract of insurance. In support of this argument, Handy and Dobbs point to the fact that Mississippi Valley did actually conduct a search of records beyond those contained in the probate judge's office, including a review of the records of the tax assessor's office, the tax collector's office, and the United States Bankruptcy Court for the Northern District of Alabama. Therefore, Handy and Dobbs maintain that Mississippi Valley was negligent in failing to include the circuit court records in its search. We disagree.
In essence, Handy and Dobbs contend that the duty to search all public records springs from the fact that Mississippi Valley did indeed conduct a search of records beyond those it was contractually obligated to search. In so doing, Handy and Dobbs argue, Mississippi Valley assumed the duty to conduct such a search in a reasonable manner, which they argue would have included a search of the records of the Shelby Circuit Court. We decline to recognize this theory of reasonableness espoused by Handy and Dobbs because its application to the duty of title insurance companies to search is altogether too indeterminate. By undertaking to examine the records of office A, does a title insurance company assume the duty to also examine the records of office B, or C, or D, depending on the office in which the undiscovered encumbrance may be found? Stated differently, does the fact that Mississippi Valley searched the Bankruptcy Court records and the tax records in Shelby County justify Handy and Dobb's alleged reliance on Mississippi Valley to also search the Shelby Circuit Court records? We think not.
The ascertainment or measurement of reliance on facts such as these presents too tenuous a situation upon which to base an affirmative duty. To impose such a duty would place an undue burden on title insurance companies that have sought, by contract, to limit their duty to search.
Whether or not Mississippi Valley would be liable in negligence had it voluntarily searched the records of the Shelby Circuit Court and failed to discover the judgment in question, we need not decide.
Mississippi Valley argues that, apart from the contract of insurance, it had no other duty to search circuit court records. We agree, and we find no authority in this state for imposing a common-law duty on title insurance companies that would require them to search circuit court records. Handy and Dobbs cite the Court of Appeals of Washington in Shotwell v. TransAmerica Title Ins. Co., 16 Wash. App. 627, 558 P.2d 1359 (1976), as further authority for the standard to which they would have this Court hold Mississippi Valley. The regulation of the title insurance industry in the state of Washington, however, precludes the application of the same standard to a title insurance company in Alabama. The Court in Shotwell explained:
The title insurance companies in Alabama are not by law required to maintain tract indexes in a county in which it transacts business. Therefore, the concept of title insurance and the expectancy of a policyholder as found in the state of Washington have no application to the title insurance industry in the state of Alabama. Consequently, we conclude that Mississippi Valley had no legal duty to search circuit court records and thus, "[n]o tort exists when no legal duty is owed from the alleged tortfeasor to the party claiming injury." Ranger Ins. Co., supra, at 42.
Finding that the contract of insurance here negates the existence of any duty owed to Handy and Dobbs to search the circuit court records, we hold that Handy and Dobbs have not established a claim for negligence in Mississippi Valley's failure to search those records. Ranger Ins. Co., supra. Accordingly, the trial court erred in failing to grant Mississippi Valley's motion for directed verdict on the negligence count.
We have concluded that Mississippi Valley was entitled to a directed verdict on both the claim of breach of contract and the claim of negligence asserted by Handy and Dobbs. The claim for breach of warranty of title asserted by Handy and Dobbs against the Uptons was voluntarily dismissed. *558 The judgment from which the Uptons appeal was rendered against them on the subrogation claim asserted by Mississippi Valley. Since we hold that Mississippi Valley is not liable to Handy and Dobbs, we need not reach any issues with respect to the liability of the Uptons to subrogate Mississippi Valley, and the judgment against the Uptons is due to be reversed.
For the foregoing reasons, the judgment below is due to be, and it hereby is, reversed, and the cause is remanded for entry of judgment consistent with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and FAULKNER, ALMON and EMBRY, JJ., concur.
ADAMS, J., concurs specially.
MADDOX, JONES and SHORES, JJ., not sitting.
ADAMS, Justice (concurring specially).
I concur because the records of the probate court are the only records which by law impart constructive notice of easements. There is presently no law which says that a circuit court judgment granting an easement imparts to the world constructive notice of the existence of that easement.
This Court is bound by existing legislation and case law and cannot take upon itself the job of remedying this situation. There is a need, however, that encumbrances on land titles, such as the easement in this case, be recorded in a manner which imparts constructive notice of their existence. The undetected presence of such an easement is a serious threat to the unwary buyer of real property and could lead to drastic consequences.
In this case, Mississippi Valley Title Company searched the records of the tax assessor, the tax collector, the U.S. Bankruptcy Court, and the probate court. In addition to these steps, some title companies would have searched the records of the circuit court. The majority opinion, however, now makes it clear that under the contract language involved in this case, only the records of the probate court need be examined, and no others. This is an unfortunate, but unavoidable, result.
It is up to the legislature to correct this situation. What is needed is a statutory declaration that circuit court judgments which grant easements in land impart constructive notice of the existence of those easements.
[1] In their brief, Handy and Dobbs argue that "the terms and provisions of the title policy are not incorporated in the title binder by reference." Our reading of the title binder, however, disclosed the provisions quoted in the text above, which does make the binder subject to the terms of the policy.
[2] Although the practice in Jefferson County is to the contrary, with the adoption of the Alabama Rules of Civil Procedure in 1975, the judicial system of Alabama heralded in the merger of law and equity.
[3] The parties do not dispute that this insurance contract is to be given effect in accordance with Alabama law. | February 22, 1985 |
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